Burke v. United States, 1439.

• Decision Date: 12 March 1954
• Docket Number: No. 1439.,1439.
• Citation: 103 A.2d 347
• Parties: BURKE v. UNITED STATES.
• Court: D.C. Court of Appeals

Page 347

103 A.2d 347

BURKE v. UNITED STATES.

No. 1439.

Municipal Court of Appeals for the District of Columbia.

Argued February 1, 1954.

Decided March 12, 1954.

Melvin M. Feldman, Washington, D. C. (appointed by this court), for appellant.

Hubert B. Pair, Asst. Corp. Counsel, Washington, D. C., with whom Vernon E.

West, Corp. Counsel, Chester H. Gray, Principal Asst. Corp. Counsel, Harry L. Walker and Richard W. Barton, Asst. Corp. Counsel, Washington, D. C., were on the brief, for appellee.

Before CAYTON, Chief Judge, and HOOD and QUINN, Associate Judges.

CAYTON, Chief Judge.

Appellant was charged, by information filed in the Juvenile Court, with nonsupport of his wife and minor children. The information covered the period from September 12, 1952, until December 23, 1952, the date on which it was filed. On January 13, 1953, appellant pleaded guilty. He was placed on probation until January 22 when the court ordered him imprisoned for one year, the maximum sentence authorized by the applicable statute. Code 1951, § 22-903. The information under which appellant was sentenced was fatally defective, since it omitted the word "wilfully," a part of the statutory definition of nonsupport¹ On that account, in May 1953, while appellant was in prison, the government filed a new information charging him with nonsupport from September 12, 1952, until May 21, 1953. Five days later, on motion of government counsel, appellant's commitment was set aside and the first case was dismissed. On the same day appellant was brought into court and again waived counsel and pleaded guilty. He was sentenced once more to imprisonment for a year; sentence was suspended, and he was placed on probation. On July 24, 1953, probation was revoked and a one-year sentence was again imposed. Approximately two months later appellant filed a motion to vacate sentence on the ground that he had twice been placed in jeopardy for the same crime. He invoked the protection of 28 U.S.C. § 2255 (Supp. V, 1952). The court denied the motion (which the government had not answered) without a hearing and without appointing counsel, although appellant had in his motion requested that counsel be appointed to represent him.

Defendant then !filed in his own behalf a notice of appeal in which he set out that he was without funds to prosecute the appeal and asked that counsel be appointed to represent him. We appointed Mr. Melvin M. Feldman of the Legal Aid staff of the D. C. Bar Association, and his brief and argument reflect painstaking industry in the protection of appellant's rights. He has presented several interesting and substantial claims of error.

Government counsel take the position that the United States Code gave the Juvenile Court no right to hear the motion to vacate and that this court has no jurisdiction to review the action taken thereon. The question is whether the Juvenile Court of the District of Columbia may be considered "a court established by Act of Congress", under the cited section of the United States Code, and whether as such it was empowered to entertain a motion to vacate a sentence. We set out in the margin the parts of the United States Code section here pertinent.² Originally it applied to "court[s] of the United States," but, in 1949 it was amended so as to apply to courts "established by Act of Congress."³ This change was made in order to conform the terminology to that used in 28 U.S.C. § 1651 (Supp. V, 1952),⁴ and to make it clear that the section applied to federal district courts in the territories and possessions.⁵

We think it is clear beyond question that the section as originally enacted did not apply to the Juvenile Court. "Court of the United States" is defined by 28 U.S.C. § 451 (Supp. V, 1952) to include courts created by Act of Congress, the judges of which hold office during good behavior. Since judges of the Juvenile Court are appointed for a term of six years,⁶ that court is not by such test a court of the United States.⁷ Nor did Congress, in amending the section, evidence any intent to include the Juvenile Court in its application. United States district courts of the territories and possessions were specifically mentioned in the committee report accompanying the legislation, but no reference was made to the Juvenile Court.⁸ Moreover, it clearly appears from the committee reports that Congress regarded the change in section 2255 as purely a matter of language conformity and did not intend to make any change in, or to enlarge the substantive scope of the section.⁹

Many years ago in United States v. Mills, 11 App.D.C. 500, a similar question was raised regarding the District of Columbia Police Court (consolidated by Congress with the Municipal Court in 1942, D.C.Code 1951, § 11-751 et seq.). That tribunal, like the Juvenile Court, owed its existence to congressional enactment. There was a dispute as to the jurisdiction of the United States Commissioner over a defendant who in default in payment of a fine had been imprisoned by the Police Court. The appeals court posed the question in this language : "Whether the Police Court of the District of Columbia is one of the courts of the United States whose sentences are intended to be included within the provisions of Sections 1042 and 52% of the Revised Statutes of the United States [18 U.S.C. § 3569] relative to the discharge of poor convicts unable to pay the fines imposed upon them, after they have been in prison for thirty days for the nonpayment of such fines." United States v. Mills, supra, 11 App.D.C. at page 503. Answering the question in the negative the court held that though the Police Court was in one sense a court of the United States, that fact did not necessarily make applicable to it all laws enacted for the courts of the United States.

Appellant relies on Green v. Peak, 62 App.D.C. 176, 65 F.2d 809, 811. That case is readily and clearly distinguishable. It involved a violation of the National Prohibition Act, 27 U.S.C.A. § 1 et seq., and the question was whether the defendant was entitled to relief as provided by the Indigent Prisoners' Act, which by its terms applied only to prisoners sentenced by a United States court. One of the important facts there was that under an act national in scope denial of the relief sought would result in the imposition of longer sentences in the Police Court than in the United States District Court. The court held that such an anomaly was not intended by Congress. But, referring to the Mills decision the court concluded its opinion thus: "* * * of course we do not now hold that * * * the present Indigent Prisoners' Act, has any application in such a matter [a prosecution for larceny] or to the local jurisdiction of the police court under local statutes or municipal regulations." (Emphasis added.)

Though in nonsupport cases the jurisdiction of the Juvenile Court is concurrent with that of the District Court, it is obvious that it was a "local statute" which defined the offense and fixed the punishment; hence the procedure for vacating judgment is not governed by the United States Code.

But it by no means follows that defendants imprisoned by a District of Columbia court are without a remedy, or have no right by motion or petition to seek at the hands of the sentencing court a vacation or correction of the sentence. At common law, and prior to the enactment of section 2255, the power of trial courts to modify or vacate sentences was well established.¹⁰ Generally this control was held to end with the term at which sentence was entered,¹¹ and in the present case the motion was filed in a later term.¹² But in 1941 the Supreme Court held that the proper remedy of one imprisoned under consecutive sentences, the second of which was alleged to be void, was "to apply for vacation of the sentence and a resentence in conformity to the statute under which he was adjudged guilty." Holiday v. Johnston, 313 U.S. 342, 349, 550, 61 S.Ct. 1015, 1017, 85 L.Ed. 1392. This was said despite the fact that the term at which the prisoner had been sentenced had long since expired.

Following that ruling there has been wide recognition and exercise of the power of United States district courts to vacate sentences void in whole or in part, even after the term had expired.¹³ Indeed, section 2255 has been held to represent Congressional recognition of and clarification of the power.¹⁴

We think the Juvenile Court, following the Holiday decision, may properly entertain a motion to vacate a sentence partially or totally void, after the expiration of the term at which it was entered. Like the power to grant new trials,¹⁵ the authority of the Juvenile Court to vacate sentence may be regarded as inherent and there is no reason why the decisions of higher federal courts and of the Supreme Court, recognizing, defining or extending the limits of this type of remedy should not furnish a guide for Juvenile Court action. That the power has been codified as to federal courts does not operate to divest the Juvenile Court of its authority. On the contrary, the jurisdiction of the Juvenile Court in this respect remains as it existed before the federal statute (section 2255) was enacted.

While there may have been some confusion before section 2255 as to the situations in which motions to vacate could be filed after term,¹⁶ we need not, for the purposes of the present case, attempt to resolve any conflicts, or to define comprehensively the scope of the relief. It is sufficient to say that relief has been afforded in analogous situations, and that general precepts of justice and orderly and accepted procedures warrant, in the District of Columbia courts, the consideration of motions of the type here under discussion. There seems to be no bar to the promulgation of procedural rules on this subject, either by the Juvenile Court or by the Municipal Court.

Motions to vacate were most frequently filed where a sentence was alleged to be in excess of the...