Pernell v. United States

RUIZ, Associate Judge,

dissenting in part:

I agree with the majority except on the issue of the application of D.C.Code § 33-541(e). On that issue, I believe the case should be reversed and remanded because the trial court abused its discretion by adopting and implementing in appellant’s case a “uniform rule” that impermissibly limited its consideration of appellant for probation under § 33-541(e).

In essence, section 33-541(e)1 provides *998that a judge “may, without entering a judgment of guilty and with the consent of such person,” place the person on probation for no more than a year on such reasonable conditions as the court may provide. Violation of the terms of probation may, in the discretion of the judge, subject the person to conviction and sentencing for drug possession. If the person is placed on probation and observes the conditions imposed by the judge, however, the person is entitled to discharge and dismissal of the proceedings without adjudication of guilt. Once discharged, the person is not deemed to have a conviction and thus is not subject to “disqualifications or disabilities imposed by law upon conviction of a crime ... or for any other purpose.” D.C.Code § S3 — 541(e)(1). Upon discharge and dismissal, the person may obtain expungement of “all official records,” 2 including arrest, indictment or information, trial, finding of guilt, dismissal and discharge. See D.C.Code § 33-541(e)(2). The purpose, in short, is to “restore such person, in the contemplation of this law, to the status he or she occupied before such arrest or indictment or information.” Id. For example, a discharged person whose records have been expunged does not commit perjury and is not considered to give a false statement “by reason of failure to recite or acknowledge such arrest, or indictment, or trial in response to any inquiry made of him or her for any purpose.” Id.

*999The foregoing recitation of the provisions of § 33-541(e) makes clear that its application bestows important benefits that go beyond the outcome of the immediate criminal proceeding and can have an impact on a person’s subsequent activities in school, employment, etc. The question presented by this appeal is a new one, concerning the scope of the trial court’s discretion in determining who is eligible for consideration for such beneficial treatment.

It is easy to reject appellant’s contention that a trial court must apply § 38 — 541(e) so long as a person meets the minimum requirements set out in the statute: the person is a first-time drug offender, is found guilty of drug possession and consents to disposition under subsection (e). The statute expressly states that the court “may” defer proceedings and place the person on probation. See D.C.Code § 33-541(e)(1). Elsewhere in the same subsection (e), the statute provides that the court “shall” discharge the person if the conditions of probation are met, and “shall” issue an order expunging the records if the person was discharged and the proceedings dismissed. See id. Therefore, the trial court’s discretion whether to impose probation in the first instance is plain. See Houston v. United States, 592 A.2d 1066, 1067 (D.C.1991).

The more substantive claim on appeal is that the trial court abused its discretion by impermissibly adopting an across-the-board or uniform rule as to when it would consider disposition under § 33-541(e). Specifically, appellant contends that the trial court incorrectly limited the universe of those it would consider eligible for § 33-541(e) when it stated that:

It’s the court’s view that [§ 33-541(e) ] is designed for the person who makes a mistake and has a drug problem, and the defendant stands before the court and says to the court, I’ve made a mistake, I really want a second chance, Judge. And [§ 33-541(e) ] is designed for the purpose to help so that person can get their lives back together.
Ms. Pernell simply indicated that she was wrongly convicted and that’s her right to do so. She does not have to personally accept the court’s verdict. The court does not believe that [§ 33-541(e) ] is the appropriate avenue here.

Appellant did not so present herself to the judge when she requested probation under § 33-541(e). Rather than admitting that she had made a “mistake,” appellant maintained her innocence, stating that she had not possessed drugs and that she had been wrongly found guilty. Instead, she argued that she had never been arrested or convicted of a drug offense or any other offense, that she had a young child who primarily depended on her for care, a job that was imperiled by the jail sentence and that she was attending daily job training classes to improve her employment situation.3 As a result, she contended, the *1000judge should place her on probation under § 33-541(e), instead of sentencing her, so as to safeguard her ability to care for her child and perform her job responsibilities. I disagree with the majority, and do not find support in the transcript for the majority’s premise, that the trial court denied appellant’s request for probation under § 33-541(e) because she “gave false testimony during her trial.” See majority opinion, ante, at 996. In denying appellant’s request for probation under § 33-541(e), the trial court did not refer to or weigh the individual grounds appellant put forward, nor did she reason that appellant committed perjury or lacked “candor.” See majority opinion, ante, at 996.4 As quoted earlier, the trial court indicated only that appellant did not come within the category of persons who admitted making a “mistake” for whom § 33 — 541(e) is “designed.” 5

In Houston we held that it was an abuse of discretion for a trial court to adopt a “uniform policy” that § 33-541(e) did not apply to “people involved in selling and buying hard drugs, heroin and cocaine.” 592 A.2d at 1067-68.6 When a trial court is called upon to make a discretionary ruling, as here, “it is improper for the court to refuse to decide the question as a matter of discretion, but instead purport to be bound by a hard and fast rule.” Id. (citing Johnson v. United States, 398 A.2d 354, 364 (D.C.1979)).

In this case there can be no doubt that the trial court had a policy not to apply § 33 — 541(e) except to persons who, once found guilty, admitted to having a drug problem and making a mistake. That is no different, in the sense that it is a “uniform rule,” than the policy we rejected in Houston that § 33-541(e) is not available to persons found guilty of possessing hard drugs. It is particularly telling that the trial court rejected appellant’s request only by reference to its view of the applicability of § 33-541(e) to such a subcategory of persons found guilty of drug possession and did not mention at all the particular circumstances put forth by appellant as reasons why the trial court should exercise discretion in her favor. This was not “the discretion called for ... [which ] is the *1001exercise of discretion in individual cases, not the discretion of the trial judge to adopt a uniform policy ... in all cases irrespective of circumstances.” Houston, 592 A.2d at 1067 (text omitted in original) (quoting United States v. Queen, 140 U.S.App.D.C. 262, 263, 435 F.2d 66, 67 (1970)).

A significant difference between this case and Houston is that here, the trial court expressed its “uniform policy” in terms of what it thought § 33-541(e) was designed to accomplish. The question becomes then, not whether the trial court had and implemented a uniform policy— the record makes clear that it had and did so in this case — but whether that policy was an abuse of discretion because it was arbitrary or permissible because it accurately reflects the purpose of § 33-541(e). This is an issue we have not explored before.

As always, we start with the statutory language. See Rider v. U.S., 687 A.2d 1348, 1352 (D.C.1996). Nothing in the language of § 33-541(e) limits the category of persons who may be considered under its provisions except for three qualifications: that the person not have been convicted of a drug offense, that the person be found guilty of possession in the case under consideration and that the person consent to disposition under § 33-541(e). The statute otherwise deals exclusively with the consequences of proceeding with probation and, if appropriate, discharge, dismissal and expungement of records. The only indication in the statute of the scope of discretion afforded the judge is the permissive “may” which we said in Houston requires the trial court to consider the circumstances in individual cases and prohibits the application of a uniform rule.7 This would appear to give the trial court the broadest possible discretion to consider probation in every case of first time drug possession, depending on individual circumstances. Further, the broad remedial consequences that § 33-541(e) mandates where the person satisfies the conditions of probation, also suggest that the trial court should take into account individual life circumstances that might be impacted if a first-time drug possessor is not given the opportunity to secure those favorable consequences.8 Based on the broad statutory grant of discretion, I have no question that, as the trial court noted, a person who admits she has a drug problem and made a mistake may well be a good candidate for probation under § 33-541(e). I disagree, however, that the statute limits consideration to only such persons. Therefore, I would reverse and remand the case on the *1002issue of the imposition of probation under § 33-541(e) so that the trial court may consider the particular circumstances which appellant argued should weigh in her favor.

. D.C.Code § 33-541(e) (1998 Repl.) provides:

(1) If any person who has not previously been convicted of violating any provision of this chapter, or any other law of the United States or any state relating to narcotic or abusive drags or depressant or stimulant substances is found guilty of a violation of *998subsection (d) of this section and has not previously been discharged and had the proceedings dismissed pursuant to this subsection, the court may, without entering a judgment of guilty and with the consent of such person, defer further proceedings and place him or her on probation upon such reasonable conditions as it may require and for such period, not to exceed one year, as the court may prescribe. Upon violation of a condition of the probation, the court may enter an adjudication of guilt and proceed as otherwise provided. The court may, in its discretion, dismiss the proceedings against such person and discharge him or her from probation before the expiration of the maximum period prescribed for such person’s probation. If during the period of probation such person does not violate any of the conditions of the probation, then upon expiration of such period the court shall discharge such person and dismiss the proceedings against him or her. Discharge and dismissal under this subsection shall be without court adjudication of guilt, but a nonpublic record thereof shall be retained solely for the purpose of use by the courts in determining whether or not, in subsequent proceedings, such person qualifies under this subsection. Such discharge or dismissal shall not be deemed a conviction for purposes of disqualifications or disabilities imposed by law upon conviction of a crime (including the penalties prescribed under § 33-548 for second or subsequent convictions) or for any other purpose.
(2) Upon the dismissal of such person and discharge of the proceedings against him under paragraph (1) of this subsection, such person may apply to the court for an order to expunge from all official records (other than the nonpublic records to be retained under paragraph (1) of this subsection) all recordation relating to his or her arrest, indictment or information, trial, finding of guilty, and dismissal and discharge pursuant to this subsection. If the court determines, after hearing, that such person was dismissed and the proceedings against him or her discharged, it shall enter such order. The effect of such order shall be to restore such person, in the contemplation of this law, to the status he or she occupied before such arrest or indictment or information. No person as to whom such order has been entered shall be held thereafter under any provision of any law to be guilty of perjury or otherwise giving a false statement by reason of failure to recite or acknowledge such arrest, or indictment, or trial in response to any inquiry made of him or her for any purpose.

. Disposition under 33-541(e) is limited to one time. See D.C.Code § 33 — 541 (e)(l). Therefore, a non-public record is kept solely for the purpose of determining whether a person has already benefitted from disposition under this provision. See id.

. Specifically, appellant argued to the trial court in her motion for reconsideration of sentence that:

The defendant is a 40 year old resident of the District of Columbia who has lived in one address all her life. She has never been arrested or detained by the police until the events of May 28, 1998.
The defendant is the mother of a four year old daughter, [D.P.].
The defendant has no babysitter. She is [sic] primarily takes care of her daughter’s daily needs.
The defendant is at risk of being separated by her employer as a result of the ten days she must spend in jail if this harsh sentence is not reduced.
The defendant is also a student of the Temporary Assistance for Needy Families’s Job Club, where [she] attends classes daily so that she would get into more challenging positions in her workplace.
The incarceration of Ms. Purnell has already thrown her home into chaos as she does not know the whereabouts of her daughter.
*1000The court declined to sentence the Defendant under Section 33 — 5[41](e) because she, the defendant, disagreed with the version of the officers.

. Even if the trial court had denied probation based on appellant giving “false testimony,” or lying to the court, I do not believe that the trial court may disregard the individual factors presented in favor of probation if those factors were not precluded by the legislature.

. In denying the appellant's motion for reduction of sentence, the trial court stated that “[t]he defendant has not set forth any factors that the court did not consider at the time of sentencing. Therefore, for the reasons stated in open court at the time of sentencing the motion [is] denied.” [R. at 14] The trial court's acknowledgment at the time of sentencing that appellant did not have to agree with the court’s verdict, coupled with its view that such agreement was required, in the form of admitting a mistake, to benefit from § 33-541(e), renders the basis for the trial court’s decision crystal clear. The trial court did not, in fact, consider the individual circumstances put forth by appellant because the court considered them irrelevant under § 33-541(e).

.The majority cites to Walden v. U.S., 366 A.2d 1075 (D.C.1976), for the proposition that "it is not our role to review sentences which are within statutory limits.” Id. at 1077. If the trial court here had imposed sentence in the usual course, I would agree with the majority that virtually the only question on appeal is whether the sentence is within the parameters provided by law, although even there, uniform policies are not permissible. See generally Johnson v. U.S., 398 A.2d 354 (D.C.1979). However, where, as here, the judge is asked to sentence under a particular statute that has fully developed consequences that evidence an important legislative purpose, the judge must exercise discretion in accordance with the statute.

. To the extent that the legislative history provides insight as to the purpose of § 33-541(e), the D.C. Council Committee Report states (under the section entitled "Structuring of Penalties Based on the Seriousness of the Conduct Involved”) that the legislation focuses on the "goal of structuring penalties according to the nature of the offense." See Council of the District of Columbia, Report on Bill 4-123, the District of Columbia Uniform Controlled Substances Act of 1981, (April 8, 1981) at 6 (emphasis added). The Report indicates that the penalty adjustments provided for in § 33-541(e) are for "first offenders who have violated the provision prohibiting simple possession of controlled substances,” (such as Pernell) rather than offenders who have committed more serious crimes such as distribution of a controlled substances to minors, or second or repeat offenders. See id. The Report does not distinguish among persons found guilty of simple possession for the first time.

. The D.C. Council Committee Report states, "[t]his [penalty] structure includes innovations which would provide the means for giving certain first offenders the opportunity to make a new start without the handicap of a criminal record,” and “offers first offenders, at the court's option, the chance to ‘wipe the slate clean’ .... for example in response to a job application question....” Id. at 6-7, 31.