Barnes v. U.S.

• Decision Date: 29 July 1987
• Docket Number: No. 86-499.,86-499.
• Citation: 529 A.2d 284
• Parties: Floyd L. BARNES, Jr., Appellant, v. UNITED STATES, Appellee.
• Court: D.C. Court of Appeals

529 A.2d 284

Floyd L. BARNES, Jr., Appellant, v. UNITED STATES, Appellee.

No. 86-499.

District of Columbia Court of Appeals.

Submitted June 5, 1987.

Decided July 29, 1987.

William T. Morrison, Washington, D.C., was on brief, for appellant.

Joseph E. diGenova, U.S. Atty., Michael W. Farrell, Thomas E. Zeno and Dennis R. Carluzzo, Asst. U.S. Attys., Washington, D.C., were on brief, for appellee.

Before NEBEKER, TERRY and ROGERS, Associate Judges.

NEBEKER, Associate Judge:

This appeal, from a denial of a motion to "reduce/correct" appellant's sentence, presents the question whether a conviction which has previously been "set aside" under 18 U.S.C. § 5021 (1982 & Supp. III 1985) may be considered in imposing sentence. We hold that it may, despite the due process challenge leveled at it.

Appellant Barnes pleaded guilty to involuntary manslaughter as a lesser-included offense of the crime of involuntary manslaughter while armed with a dangerous weapon, D.C.Code §§ 22-2405 (1981), -3202 (1986 Supp.), for which he was indicted. According to the presentence investigation report, made available to the judge at the sentencing hearing pursuant to Super.Ct. Crim.R. 32(b)(1), appellant had been involved in two prior criminal incidents. One of the previous incidents resulted in a conviction for armed robbery. The other incident, the one that is at issue in this appeal, involved a conviction for attempted robery. This latter conviction had been "set aside" according to § 5021 of the Federal Youth Corrections Act (FYCA). 18 U.S.C. §§ 5005 et seq. (1982 & Supp. III 1985) (repealed 1984).¹ Appellant contends that he was denied due process of law when the sentencing judge considered the set-aside conviction prior to pronouncing appellant's sentence. The issue before us is whether a conviction which has been set aside pursuant to § 5021 of the FYCA may properly be brought to the attention of the court when the defendant is being sentenced for a later offense.

During the course of the sentencing hearing, there was a colloquy between the judge, counsel for appellant and the government regarding the prior criminal incidents appearing in the presentence investigation report. There was some question as to the exact number of prior convictions as well as to which one of them had been set aside under the FYCA. It was finally determined that there had been two prior convictions and that one had been set aside. After allocution by both counsel for appellant and the prosecutor, the judge addressed appellant in pronouncing the sentence:

THE COURT: All right, Mr. Barnes, first of all, Mr. Watters [defense counsel], I commend you on an excellent allocution. Nonetheless, I feel that Mr. Zeno's [prosecutor] representation is the correct one or Mr. Zeno's characterization is the correct one. I am sorry, Mr. Barnes, it appears that you were starting to clean up your life after rather disastrous earlier years and this has caused a regression, but somebody's dead and for no good purpose. So, Mr. Barnes, my sentence is as follows, a term of not less than forty months, nor more than twelve years for the Involuntary Manslaughter charge.

During the sentencing hearing, counsel for appellant did not comment either about the possible prejudice to appellant due to the appearance of the set-aside conviction in the presentence report or about the fact that the judge made a general reference to appellant's past criminal behavior in his remarks during pronouncement of the sentence.

Two months after the sentencing hearing, appellant filed a motion to "reduce/correct" sentence in which he contended that that there was a due process violation when information about the conviction which had been set aside came to the attention of the sentencing judge. Appellant argued that the records dealing with that particular conviction should have been sealed. Moreover, he argued, once the set-aside conviction became known to the court, it was impossible for the judge to impose a sentence without taking the prior behavior into account. Appellant urged that the conviction set aside under the FYCA should have had no bearing on the sentence imposed in the instant case.

The Superior Court order of March 12, 1986, which denied appellant's motion, stated that neither the record reflected nor did the court recall that appellant's set-aside conviction was a factor considered by the court when it determined the sentence in the present case. This appeal is from the denial of the motion to reduce/correct sentence. We, as appellant, read the record as reflecting consideration of the set-aside conviction.

On two other occasions we have addressed issues which arose concerning the operation of the FYCA "set-aside" provision. In Tuten v. United States, 440 A.2d 1008 (D.C. 1982), aff'd, 460 U.S. 660, 103 S.Ct. 1412, 75 L.Ed.2d 359 (1983), we held that a prior conviction under the FYCA which had not been set aside under § 5021(b) could serve as the basis for imposing a recidivist penalty under D.C.Code § 22-3204 (1981). From that holding, it is understood that an earlier conviction which has been set aside cannot be considered for the purpose of an enhanced penalty under a recidivist statute. Id. at 1010. See Tuten v. United States, 460 U.S. 660, 664-65, 103 S.Ct. 1412, 1415-16, 75 L.Ed.2d 359 (1983). Recently, we discussed to a limited extent the operative effect of receiving a set-aside under § 5021(b), as it compares to that of a judgment of acquittal. Lindsay v. United States, 520 A.2d 1059 (D.C. 1987). In Lindsay, we noted that "the set-aside conviction has sweeping effect in expunging the conviction from records available to the public, as well as removing legal disabilities created by the conviction." 520 A.2d at 1063.² Importantly, we further stated that "[t]he conviction records continue to be available to law enforcement personnel and court officials who have legitimate purposes for consulting the records." Id. Thus, in Lindsay we recognized that to set aside a conviction is not to obliterate the conviction records. Yet the question remains in the present case, to what extent may information about a prior conviction which has been set aside be used by the court in sentencing for a later offense.

The United States Court of Appeals for the District of Columbia Circuit examined the legislative history of the FYCA and stated that in order for the "purposes of the Act . . . to be effectuated, the set-aside provision must be accorded a liberal construction." Doe v. Webster, 196 U.S.App. D.C. 319, 331, 606 F.2d 1226, 1238 (1979). Thus, expungement³ was defined as requiring the FBI to physically remove the conviction records from its central criminal files so as to prevent those records from being "disseminated to anyone, public or private, for any other purpose." Id. at 337, 606 F.2d at 1244. Use of the conviction records by law enforcement agencies for the purpose of a subsequent criminal investigation was expressly permitted. Id. In a later case, the court ruled that the legislative purpose behind § 5021 further required that court records revealing a setaside conviction be removed and excluded from those court records which are made available for public scrutiny. United States v. Doe, 235 U.S.App.D.C. 99, 101, 730 F.2d 1529, 1531 (1984). In the same decision, the court recognized that "[j]udges and other court officers may need to consult the court records . . . if information in the records bears on related cases." Id. at 103, 730 F.2d at 1533. For this reason, expungement was limited so as to "in no way restrict access to such records by law enforcement personnel or officers of the court who have legitimate law enforcement . . . purposes for consulting the records." Id.

Other courts which have looked to the legislative history of the FYCA have treated the records of a set-aside conviction in various manners. United States v. Doe, 747 F.2d 1358, 1360 (11th Cir. 1984), held that "§ 5021(a) does not require destruction of the conviction record."⁴ The First Circuit similarly ruled that § 5021 neither directed that the records of conviction be destroyed nor required that the records be sealed. United States v. Doe, 732 F.2d 229, 231-32 (1st Cir. 1984). Instead, the court stressed that the purpose of the set-aside provision is to eliminate "any legal disabilities that might flow from a conviction." Id. at 232. See note 3, supra. As an example of a legal disability which is removed once a conviction is set aside, the opinion cited to an earlier decision in Mestre Morera v. United States Immigration and Naturalization Service, 462 F.2d 1030 (1st Cir. 1972), which "did not permit a conviction that had been set aside to serve as a basis for deportation of an alien, even though the Immigration and Naturalization Act provides that conviction of certain offenses can serve as a basis for deportation." 732 F.2d at 232. In United States v. Purgason, 565 F.2d 1279, 1280 (4th Cir. 1977), the Fourth Circuit declared that it was unnecessary to determine the scope of "expunction" under § 5021(b); however, in that case the court did rule that "a conviction which is set aside by the court is vacated and can have no further operative effect." Id. Specifically, Purgason held that a conviction set aside under the FYCA cannot serve as the prior felony offense upon which to predicate certain firearms crimes which require a prior conviction. Id. at 1281. The holdings in Mestre Morera and Purgason are not inconsistent with our decision in Tuten v. United States, supra, 440 A.2d at 1010. However, appellant urges us to move past the holdings of these cases and to set a much broader restraint on the court's use of records from a set-aside conviction. That is, a sentencing judge should not be informed in a presentence report or otherwise about a criminal defendant's prior offense if that conviction has been set aside. None of the foregoing cases argue for that type of restriction. But see People...