Logan v. United States

MACK, Senior Judge,

concurring in part and dissenting in part:

With respect to appellant Burgess, I cannot agree that a misstatement of the court of conviction in an information filed pursu*854ant to D.C.Code § 23-111 (1989 Repl.), can be “harmless error.” 1

We appear to be in complete accord with the principle that, in this jurisdiction, strict compliance by the government and the sentencing courts with the enhanced sentencing provisions of § 23-111 is required. See Boswell v. United States, 511 A.2d 29, 31 (D.C.1986), and cases cited therein. Thus, we have consistently vacated enhanced sentences, and remanded for resentencing, where there has been a failure on the part of the trial court to follow the mandatory language of § 23-lll(b) in informing, inquiring of, and warning the defendant. See Arnold v. United States, 443 A.2d 1318, 1320 (D.C.1982); Fields v. United States, 396 A.2d 990, 991 (D.C.1979); (Robert) Smith v. United States, 356 A.2d 650, 652 (D.C.1976); (Ernestine) Smith v. United States, 304 A.2d 28, 34 (D.C.), cert. denied, 414 U.S. 1114, 94 S.Ct. 846, 38 L.Ed.2d 741 (1973).

With respect to the statute’s mandate that no enhanced punishment may be imposed unless the prosecutor has filed (and served a copy of) an information stating in writing the previous convictions to be relied upon prior to trial (see § 23-111), we have held that “prior to trial” means prior to the “start of the empaneling of the jury.” Arnold v. United States, supra, 443 A.2d at 1327. In that case we reasoned that the two-fold purpose of the statute was to (1) give notice to the defendant so that he may reasonably assess whether to plead guilty or go to trial, and (2) to avoid the unfairness of increasing the potential punishment after the trial had begun. Id. at 1326. We held that the failure of the prosecutor to timely file the information was “harmless error” because the record showed that the appellant had notice of the government’s intent for more than four months prior to trial (thus meeting the first prong of the statute’s purpose) and because the trial court in sentencing did *855not rely on this information in any event. Id. at 1328. We nevertheless remanded for resentencing on one count for the trial court’s failure to properly inquire and inform. Id. at 1320, 1328. In Key v. United States, 587 A.2d 1072 (D.C.1991), faced with an ambiguous record, we rejected the government’s argument of “harmless error” in purported reliance on Arnold, and ordered the vacation of an enhanced sentence, noting that the government had not met its burden of negating prejudice.

In the instant case, we do not have an issue of timely filing of an information; we have an issue of a defective information. The mistake in the information was neither a “clerical” one nor a “technical” one. The government filed a certified copy of an information on May 10,1989, (one day prior to the date set for trial) listing inter alia a 1982 conviction in the Superior Court that was non-existent in that court). On June 22, 1989, defense counsel filed a response denying all allegations. On August 14, 1989, in preparation for after-trial sentencing on August 29, 1989, the government, at the request of the court, filed a memorandum conceding that the validity of enhanced sentencing turned upon the validity of the 1982 conviction (which in fact was a conviction in the federal court) since another 1986 conviction in the Superior Court has been reversed on appeal. The government argued, however, that it had no obligation to provide the name of the correct court2 and that the mistake was a clerical one in any event. In sentencing, the trial court amended the information verbally in its personal inquiry to Mr. Burgess and obtained an admission as to the entry of a plea in the federal court.

Under these circumstances, I cannot agree that the failure of the prosecutor to file and serve valid notice was harmless error. Measured by the test of Arnold, neither of the twofold purposes of the statute were honored. It is difficult to understand how notice of a non-existent conviction in the Superior Court could make it possible for defense counsel, or the defendant, to “reasonably assess” the defendant’s best interest in deciding whether to plead guilty or go to trial, and it would be an under-assessment to suggest that the defendant, after having denied the conviction and after having gone to trial, must have been surprised by the increased potential for punishment. The fact that the defendant might have been aware of another conviction in another court was irrelevant under § 23-111. The argument of “awareness” was rejected by the Senate when it took precautions to assure that the possibility of increased punishment was brought to the defendant’s attention by requiring that enhanced penalty papers be filed separately with the court prior to trial. See Arnold, supra, 443 A.2d at 1324-25. There is no obligation on the part of a defendant to come forward with information that is incriminating. The prejudice to the defendant here is obvious and is only exacerbated by the trial court’s action in eliciting an admission from the defendant as to a previous conviction not “alleged in the information” at the time of sentencing. See D.C. Code § 23-lll(b) (1989 Repl.).

Under the statutory scheme of § 23-111, the burden is on the government to give the required notice. Under our case law, the burden is on the government to negate prejudice flowing from its failure to do so. See Key, supra, (D.C.1991). Certainly, with so much at stake for the defendant, it is not asking too much of the government to file a valid notice. Indeed, the statute, contemplating that in some cases a prosecutor, after due diligence, might not be able to complete a defendant’s criminal record, specifically provides for a continuance for such purpose (§ 23-111(a)). And although the statute does not require that every conviction be certified, {see § 23-111(c)(1)) it does require that every certified conviction be substantively accurate {see § 23-111(d)(2)). To hold otherwise would be to defeat the purpose of the statute.

*856I would remand the Burgess case for resentencing.

. Pertinent sections of D.C.Code § 23-111 (1989 Repl.) read as follows:

Section 23-111(a)(1) provides:
(a)(1) No person who stands convicted of an offense under the laws of the District of Columbia shall be sentenced to increased punishment by reason of one or more previous convictions, unless prior to trial or before entry of a plea of guilty, the United States attorney or the Corporation Counsel, as the case may be, files an information with the clerk of the court, and serves a copy of such information on the person or counsel for the person, stating in writing the previous convictions to be relied upon. Upon a showing by the Government that facts regarding previous convictions could not with due diligence be obtained prior to trial or before entry of a plea of guilty, the court may postpone the trial or the taking of the plea of guilty for a reasonable period for the purpose of obtaining such facts. Clerical mistakes in the information may be amended at any time prior to the pronouncement of sentence.
Section 23-111(b):
(b) If the prosecutor files an information under this section, the court shall, after conviction but before pronouncement of sentence, inquire of the person with respect to whom the information was filed whether he affirms or denies that he has been previously convicted as alleged in the information, and shall inform him that any challenge to a previous conviction which is not made before sentence is imposed may not thereafter be raised to attack the sentence. Section 23-111(c)(1) provides:
(c)(1) If the person denies any allegation of the information of previous conviction, or claims that any conviction alleged is invalid, he shall file a written response to the information. A copy of the response shall be served upon the prosecutor. The court shall hold a hearing to determine any issues raised by the response which would except the person from increased punishment. The failure of the Government to include in the information the complete criminal record of the person or any facts in addition to the convictions to be relied upon shall not constitute grounds for invalidating the notice given in the information required by subsection (a)(1). The hearing shall be before the court without a jury and either party may introduce evidence. Except as otherwise provided in paragraph (2) of this subsection, the prosecuting authority shall have the burden of proof beyond a reasonable doubt on any issue of fact. At the request of either party, the court shall enter findings of fact and conclusions of law. Section 23-111(d)(2) provides:
(2) If the court determines that the person has not been convicted as alleged in the information, that a conviction alleged in the information is invalid, or that the person is otherwise not subject to an increased sentence as a matter of law, the court shall, at the request of the prosecutor, postpone sentence to allow an appeal from that determination. If no such request is made, the court shall impose sentence as provided by law. The person may appeal from an order postponing sentence as if sentence had been pronounced and a final judgment of conviction entered.

. The transcript at sentencing raises a question as to whether the case number was misleading since the federal and local courts have similar numbers.