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DISTRICT OF COLUMBIA COURT OF APPEALS
No. 16-CO-803
GEORGE FADERO, APPELLANT,
03/22/2018
V.
UNITED STATES, APPELLEE.
Appeal from the Superior Court
of the District of Columbia
(CF3-3523-11)
(Hon. Ronna Lee Beck, Trial Judge)
(Submitted January 30, 2018 Decided March 22, 2018)
George Fadero, pro se.
Channing D. Phillips, United States Attorney at the time the brief was filed,
and Elizabeth Trosman, Chrisellen R. Kolb, and O. Andrea Coronado, Assistant
United States Attorneys, were on the brief for appellee.
Before GLICKMAN, FISHER, and THOMPSON, Associate Judges.
FISHER, Associate Judge: Appellant George Fadero challenges the trial
court‘s denial of his D.C. Code § 23-110 (2012 Repl.) motion for post-conviction
relief. We affirm.
2
I.
This case reaches us for the third time. We summarized the facts in Fadero
v. United States, 59 A.3d 1239, 1242–44 (D.C. 2013) (Fadero I), and do so only
briefly here. On February 12, 2011, a Metropolitan Police Department Officer
stopped appellant for a traffic violation. As the officer was walking away from
appellant, he turned around to see appellant‘s van slowly moving toward him in
reverse. The van hit the officer, knocking him to the ground, and causing him
injuries. It then sped away from the scene.
The government charged appellant with several offenses based on this
conduct, including felony assault on a police officer while armed (―APOWA‖).
A jury convicted appellant of four of the charged offenses, including APOWA.
We affirmed all convictions, except one, which we held merged with the APOWA
count. While that appeal was pending, appellant collaterally attacked the
conviction through a § 23-110 motion, claiming ineffective assistance of trial
counsel. Fadero v. United States, No. 13-CO-479, Mem. Op. & J. at 1 (D.C.
Apr. 23, 2014) (Fadero II). The trial court denied the motion without a hearing,
and we affirmed that decision, too. Id. at 4, 6. Appellant filed this second § 23-
3
110 motion pro se. The trial court denied it without a hearing and this appeal
followed.
II.
This appeal focuses on appellant‘s APOWA conviction, an offense that
derives from two statutory provisions. See Fadero I, 59 A.3d at 1242 n.1 (defining
the elements of APOWA). The first is felony assault on a police officer, D.C.
Code § 22-405 (c), which makes it illegal to (1) assault a person when the
defendant (2) ―knew or should have known that the victim was a [law
enforcement] officer‖ and (3) ―caused a ‗significant bodily injury to the law
enforcement officer,‘ or committed ‗a violent act that create[d] a grave risk of
causing significant bodily injury to the officer.‘‖ Id. (quoting § 22-405 (c))
(alterations in original). The second predicate is D.C. Code § 22-4502, which
provides that defendants may face additional punishment if they commit ―a crime
of violence . . . when armed with or having readily available . . . [a] dangerous or
deadly weapon.‖
4
III.
Appellant principally argues that the phrase ―grave risk of causing
significant bodily injury,‖ incorporated in § 22-405 (c), is unconstitutionally vague
in light of Johnson v. United States, 135 S. Ct. 2551 (2015). In that case, the
Supreme Court considered a provision of the Armed Career Criminal Act (ACCA)
that defined a ―violent felony,‖ in relevant part, as ―any crime punishable by
imprisonment for a term exceeding one year . . . that . . . is burglary, arson, or
extortion, involves use of explosives, or otherwise involves conduct that presents a
serious potential risk of physical injury to another.‖ 135 S. Ct. at 2555–56
(quoting 18 U.S.C. § 924 (e)(2)(B) (2012)) (first alteration in original). The Court
referred to the italicized language as the ―residual clause‖ and held it void for
vagueness. Id. at 2556, 2557. Appellant analogizes the ―grave risk‖ language in
§ 22-405 (c) to the ―serious potential risk of physical injury‖ language in the
ACCA and contends that if the latter phrase offends due process, the former must
as well.
We disagree. The holding in Johnson turned on the manner in which that
sentencing enhancement provision operated. Whether the residual clause applied
depended on whether the given offense created a sufficiently high risk of injury to
5
others. See 18 U.S.C. § 924 (e)(2)(B)(ii). Yet, the Supreme Court had held that
the relevant ACCA provision, 18 U.S.C. § 924 (e)(2)(B)(ii), required a ―categorical
approach.‖ Taylor v. United States, 495 U.S. 575, 600 (1990). In other words,
judges were barred from assessing an offense‘s potential for harm based on the
way a defendant committed it. Johnson, 135 S. Ct. at 2557. Instead, § 924
(e)(2)(B)(ii) required judges to ―imagine how the idealized ordinary case of the
crime subsequently play[ed] out‖ and evaluate ―whether that abstraction
present[ed] a serious potential risk of physical injury.‖ Id. at 2557–58. Defining
the ―ordinary‖ way a crime unfolded was a highly subjective exercise—as the
Court noted, ―the ordinary instance of witness tampering [could] involve offering a
witness a bribe . . . [o]r threatening a witness with violence‖— and as a result,
courts measured risk from a ―speculative‖ starting point. Id. In holding the
residual clause unconstitutionally vague, the Court emphasized this peculiar
context. Id.
Section 22-405 (c) does not pose the same concerns. Whether a defendant
―commit[ted] a violent act that create[d] a grave risk of causing significant bodily
injury to the officer‖ is a question of fact. See, e.g., Mobley v. United States, 101
A.3d 406, 421 (D.C. 2014) (holding trial judge committed plain error by ―not
instruct[ing] the jury that to return a guilty verdict on the APOWA offenses, it
6
must find‖ that the defendant caused a significant bodily injury or created a grave
risk thereof (emphasis added)). It turns on the fact-finder‘s assessment of the
defendant‘s actual conduct and does not require judges to measure the risk posed
by reference to abstractions. See id. Demonstrating this point, on appellant‘s
direct appeal, we approved the judge‘s jury instruction on APOWA‘s ―significant
bodily injury‖ element, Fadero I, 59 A.3d at 1248, a holding we could only have
reached if we assumed that element posed a jury question—that is, one resolved by
―apply[ing] the law to th[e] facts.‖ United States v. Gaudin, 515 U.S. 506, 514
(1995). Similarly, when we held the evidence sufficient to establish that appellant
created a ―grave risk‖ of harm to the officer, we based our holding on the risks
posed by appellant‘s behavior rather than the potential for harm inherent in the
―ordinary‖ APOWA incident. Fadero I, 59 A.3d at 1252. As appellant‘s own case
illustrates, § 22-405 (c) does not share the constitutional defects the Supreme Court
perceived in the residual clause.
Moreover, § 22-405 (c) is precisely the type of statute the Johnson Court
assumed its decision would not affect. The Court stated that ―[a]s a general matter,
we do not doubt the constitutionality of laws that call for the application of a
qualitative standard such as ‗substantial risk‘ to real world conduct.‖ Johnson, 135
S. Ct. at 2561. Section 22-405 (c)‘s grave risk language fits comfortably in this
7
category—indeed, the Court specifically highlighted the phrase ―grave risk‖ as one
it did not view as inherently vague. Id. Because § 22-405 (c)‘s grave risk standard
differs from the residual clause in ways the Court deemed ―[c]ritical[],‖ appellant‘s
Johnson challenge fails. Id. at 2557.
IV.
We address appellant‘s remaining arguments summarily. First, appellant
challenges the sufficiency of the evidence supporting his convictions for APOWA,
Fleeing from Scene of Accident after Causing Personal Injury (D.C. Code § 50-
2201.05 (a)(1) (2001)),1 and Fleeing from a Law Enforcement Officer in a Motor
Vehicle (D.C. Code § 50-2201.05b (b)(2) (2001)). On direct appeal, appellant
already challenged the sufficiency of the evidence supporting the first two
convictions and lost. Fadero I, 59 A.3d at 1251–52. ―It is well-settled that where
an appellate court has disposed of an issue on appeal, it will not be considered
afresh on collateral attack in a trial court of the same judicial system, absent special
circumstances.‖ Doepel v. United States, 510 A.2d 1044, 1045–46 (D.C. 1986).
Appellant has identified no such special circumstances; accordingly, the trial court
1
After appellant lost on direct appeal, the Council of the District of
Columbia repealed, amended, and recodified this provision as § 50-2201.05 (c)
(2014 Repl.).
8
properly held that the sufficiency challenges to the first two convictions were
procedurally barred.
With respect to the third conviction, appellant did not raise a sufficiency
challenge on direct appeal even though the argument was available to him. See
Fadero I, 59 A.3d at 1251–52. Consequently, he may only assert the claim in this
§ 23-110 proceeding if he can establish cause for and prejudice from his failure to
make the argument previously. (Charles) Thomas v. United States, 772 A.2d 818,
824 (D.C. 2001). Appellant has not attempted such a showing, and, as a result, the
trial court did not err in rejecting the third sufficiency challenge on procedural
grounds.2
Next, appellant argues that § 22-405 (c) does not qualify as a ―crime of
violence‖ under § 22-4502 because crimes of violence require intentional conduct
and, he asserts, § 22-405 (c) does not. Appellant relies primarily on federal cases
for the supposed rule that whether an offense qualifies as a crime of violence
depends on its intent element; however, the United States and the District of
2
Moreover, appellant did not explain why the evidence at trial was
insufficient, making his argument too ―perfunctory‖ for our review. See Comford
v. United States, 947 A.2d 1181, 1188 (D.C. 2008) (quoting United States v.
Zannino, 895 F.2d 1, 17 (1st Cir. 1990)).
9
Columbia define ―crime of violence‖ in ―very different‖ ways. Colter v. United
States, 37 A.3d 282, 283 (D.C. 2012). While the United States Code defines such
crimes by their ―characteristics,‖ see 18 U.S.C. § 16, the D.C. Code identifies them
―by reference to a list of the offenses so designated.‖ Id. (describing the
relationship between § 22-4502 and § 23-1331 (4), the provision that enumerates
―crimes of violence‖). ―[A]ssault on a police officer (felony)‖—D.C. Code § 22-
405 (c)—appears on that list. D.C. Code § 22-1331 (4). Therefore, it qualifies as a
crime of violence regardless of whether it would satisfy the federal definition.3
Finally, appellant argues that the government violated article I, § 1 of the
United States Constitution (―All legislative Powers herein granted shall be vested
in a Congress of the United States. . . .‖) by charging him with APOWA, an
offense appellant contends the legislature never established. Appellant did not
raise this challenge to the indictment before trial. That makes the contention
3
The trial court held this claim procedurally barred, and the government
urges that we do the same. We do not address the procedural arguments because
we choose to reject the claim on the merits. In doing so, we exercise our authority
to affirm the trial court‘s judgment on ―alternative ground[s].‖ James v. United
States, 718 A.2d 1083, 1089 (D.C. 1998) (affirming trial court‘s denial of § 23-110
motion on different rationale than trial court invoked). Resolving appellant‘s claim
in this way is not procedurally unfair to him. The government made the dispositive
argument in its brief. Appellant could have responded to it but choose not to file a
reply brief. Cf. District of Columbia v. Patterson, 667 A.2d 1338, 1347 (D.C.
1995) (disposing of claim based on argument raised in defendant‘s brief to which
plaintiff failed to respond in its reply brief).
10
untimely, see Super. Ct. Crim. R. 12 (b)(3)(B)(v), and appellant has not attempted
to excuse his delay by showing ―good cause,‖ see id. at 12 (c)(3). Accordingly, the
trial court did not err in holding the argument procedurally barred. Cf. Ko v.
United States, 722 A.2d 830, 836 n.17 (D.C. 1998) (―By failing to assert the claim
of duplicity [in the indictment] at trial, Ko waived it.‖).
Even if appellant had followed proper procedures, his claim would still fail.
In essence, appellant contends that the legislature did not intend prosecutors to
combine D.C. Code §§ 22-405 (c) and -4502 (a)(1) into a single, chargeable
offense. To the contrary, by enacting § 22-4502, the legislature authorized
increased punishment for a broad category of offenses committed in an aggravated
manner. It did so by ―add[ing] an additional element, i.e., while armed with or
having readily available a dangerous weapon, to certain underlying offenses.‖
(Michael) Thomas v. United States, 602 A.2d 647, 653 n.18 (D.C. 1992). Thus, it
was the legislature, not the executive branch, that established aggravated offenses
such as APOWA, murder while armed, and armed robbery. Consistent with that
plain reading, this court treats such offenses no differently from any others. See,
e.g., Robinson v. United States, 100 A.3d 95, 105 (D.C. 2014) (applying traditional
aiding and abetting liability principles to ―while armed‖ offenses); Pope v.
United States, 739 A.2d 819, 821 (D.C. 1999) (discussing ―the offense of assault
11
with intent to kill while armed (AWIKWA), [a] violation of D.C. Code §§ 22-503,
-3202 [the predecessor of -4502]‖ (emphasis added)). Accordingly, we reject
appellant‘s premise: APOWA is an offense created by the legislature and,
therefore, the prosecutor could not contravene legislative will—let alone usurp
legislative powers—by charging him with it.4
V.
Appellant‘s arguments have no merit. Thus, we affirm the trial court‘s
denial of his § 23-110 motion.
So ordered.
4
Appellant‘s argument suffers an additional defect: in relying on U.S.
Const. art I, § 1, it assumes that Congress retains exclusive power to legislate for
the District of Columbia. This is not so. Under the Home Rule Act, Congress
delegated significant legislative authority to the Council of the District of
Columbia, including the power ―to enact new criminal statutes.‖ In re Perrow, 172
A.3d 894, 898 (D.C. 2017); see also D.C. Code § 1-203.02 (2012 Repl.).