Butler v. District of Columbia, 3413.

• Citation: 200 A.2d 86
• Decision Date: 30 April 1964
• Docket Number: No. 3413.,3413.
• Parties: Clarence E. BUTLER, Appellant, v. DISTRICT OF COLUMBIA, Appellee.
• Court: Court of Appeals of Columbia District

200 A.2d 86

Clarence E. BUTLER, Appellant, v. DISTRICT OF COLUMBIA, Appellee.

No. 3413.

District of Columbia Court of Appeals.

Argued March 23, 1964.

Decided April 30, 1964.

Richard B. Sobol and Ralph J. Temple, Washington, D. C., with whom Dennis G. Lyons, Washington, D. C., was on the brief, for appellant.

Ted D. Kuemmerling, Asst. Corporation Counsel, with whom Chester H. Gray, Corporation Counsel, Milton D. Korman, Principal Asst. Corporation Counsel, and Hubert B. Pair, Asst. Corporation Counsel, were on the brief, for appellee.

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

MYERS, Associate Judge.

Appellant was convicted by the trial court of making a false report to the Metropolitan Police Department in violation of Article 19, Section 5, of the Police Regulations of the District of Columbia, and sentenced to pay a fine of $150 or, in default thereof, to serve sixty days in jail. Appellant paid the full amount of the fine. Ten days later he filed this appeal. For reasons hereinafter stated, we must dismiss the appeal as it has become moot by appellant's paying the fine in full.

The rule of mootness in criminal appeals, terminating further consideration of the case on its merits, was clearly enunciated in St. Pierre v. United States, 319 U.S. 41, 63 S.Ct. 910, 87 L.Ed. 1199 (1943). That case laid down certain guidelines for determining whether review of the merits was required after the defendant had completed service of sentence and secured an unconditional release. Subsequent decisions of the Supreme Court involving mootness have not changed these criteria or overruled the principles of the St. Pierre case. Fiswick v. United States, 329 U.S. 211, 67 S.Ct. 224, 91 L.Ed. 196 (1946); United States v. Morgan, 346 U.S. 502, 74 S.Ct. 247, 98 L. Ed. 248. (1954); Pollard v. United States, 352 U.S. 354, 77 S.Ct. 481, 1 L.Ed.2d 393 (1957). In each of these cases the Court was required to decide whether the conviction entailed collateral legal disadvantages which survived the satisfaction of the sentence served, or the fine paid, which afforded the defendant a substantial interest or stake in the appeal justifying consideration of the case on the merits. The contention that there is a right to clear a moral stigma or to protect loss of economic opportunities was expressly rejected as a basis for ignoring the bar of mootness. St. Pierre v. United States, supra, 319 U.S. page 43, 63 S.Ct. 910, 87 L.Ed. 1199; Parker v. Ellis, 362 U.S. 574, 80 S.Ct. 909, 4 L.Ed.2d 963 (1960). See also Hill v. United States, D.CMun.App., 75 A.2d 138 (1950).

In Hanback v. District of Columbia, D. C.Mun.App., 35 A.2d 189 (1943), we held that the general principles announced in St. Pierre v. United States also governed a criminal appeal involving full payment of a fine after conviction and sentence, saying:

"The authorities permitting appeals where fines have been paid, and in some instances even where sentences have been served, say the appeal should be allowed to give appellant an opportunity `to clear his reputation,' to `undo the disgrace and legal discredit,' to be `relieved of the odium and disgrace,' and to `remove the stigma' of the convictions. This view was urged on the Supreme Court in the St. Pierre case but the court rejected it, saying: `Petitioner also suggests that the judgment may impair his credibility as witness in any future legal proceeding. But the moral stigma of a judgment which no longer affects legal rights does not present a case or controversy for appellate review. * * *'" (35 A.2d p. 191)

The principle of this decision has been followed by a number of Federal circuit courts of appeal. Williams v. United States, 105 U.S.App.D.C. 166, 265 F.2d 358 (1959); United States v. Galante, 298 F.2d 72 (2nd Cir. 1962); Government of Virgin Islands v. Ferrer, 275 F.2d 497 (3rd Cir. 1960); Williams v. United States, 261 F.2d 224 (9th Cir. 1959), cert. denied 358 U.S. 942, 79 S.Ct. 349, 3 L.Ed.2d 349 (1959); Gillen v. United States, 199 F.2d 454 (9th Cir. 1952); Kelley v. United States, 199 F.2d 265 (4th Cir. 1952).

Appellant urges in argument that the bar of mootness in criminal appeals has been completely eliminated and that every defendant therefore should be entitled to a review of the merits of his appeal without regard to the fact that his sentence has been served or his fine paid in full.

We are not prepared to rule that it was the intention of the federal decisions to date that every criminal appeal should survive the bar of mootness merely because a conviction may carry with it some adverse effect upon the legal status of the defendant. As we interpret them, any noticeable liberality in the allowance of appellate review in these situations appears only in those cases where defendant can show that ascertainable, collateral consequences are present and sufficiently substantial to justify an examination of the merits. Review is neither an automatic nor presumptive right of every criminal defendant, and where he has satisfied his sentence, the burden is upon him to produce competent evidence that he in fact has an actual, definable stake in the proceeding (See St. Pierre v. United States, supra; Pollard v. United States, supra) — that the conviction has a material effect upon present legal rights, not upon some unforeseeable, remote event that could possibly arise in appellant's future.

The record fails to substantiate that appellant's legal rights are materially affected by the judgment of conviction or that adverse consequences will flow if it is left undisturbed. Neither possible loss of economic opportunities nor possible ineligibility for employment dispels the barrier to mootness in this criminal appeal involving a conviction for violation of a municipal regulation, for which appellant has paid the penalty.

Had appellant (who had the advice and assistance of competent counsel during trial) wished to preserve his right to review on the merits, he could have requested the trial court to stay payment of the fine and permit him to post it in lieu of bail pending final disposition of an appeal. This is normal procedure in such a case. He, however, made no protest. There is no claim that the payment was made by mistake. The most that can be said on his behalf is that he paid the fine in order to avoid a default, for which a jail sentence would have followed. Whatever his intention is not material, for a complete satisfaction of the judgment was effected.¹ The indisputable fact is that his action left nothing to litigate.

Appeal dismissed.

HOOD, Chief Judge (concurring).

I concur in the opinion of Judge Myers, but feel I should make these few observations.

With respect to voluntary payment of the fine, it should be noted that before trial appellant stated he neither needed nor wanted counsel, but nevertheless the trial court appointed counsel for him and such counsel was present at the time of sentencing. It seems obvious to me that appellant had available means of ascertaining his right of appeal and right to post the amount of the fine as bail on appeal. Without seeking advice on the matter he paid the fine, and in my opinion such payment was voluntary in the sense that it could have been avoided pending appeal.

With respect to the collateral consequences of a conviction necessary to prevent the appeal becoming moot by payment of fine or service of a sentence, it is my understanding those consequences must affect some right of the defendant existing at the time, and that the possibility that some right may be affected in some way at some future time is not sufficient. It is conceivable that a conviction of any criminal offense may at some time in a defendant's life have a detrimental effect, but if this is to be the test, then the question of mootness by service of sentence or payment of fine is completely eliminated in all cases.

Finally, if the rule that a conviction should not be reviewed because it has become moot by reason of service of sentence or payment of fine, appears to be harsh in that it may leave standing an erroneous conviction, I suggest it is no more harsh than the long-established rule that if the sentence imposed is supported by one count of an indictment, the question of the validity of a conviction under other counts charging other crimes need not be considered. Claassen v. United States, 142 U.S. 140, 12 S.Ct. 169, 35 L.Ed. 966 (1891). Thus, just recently the United States Court of Appeals for this Circuit, finding that convictions under counts three and four of an indictment were proper, held it was not necessary to pass upon the validity of convictions under counts one and two.¹ And likewise this court recently in affirming convictions of soliciting for lewd and immoral purposes found it unnecessary to review convictions of vagrancy.² Under this rule, as under the mootness rule, there is always the chance that an erroneous conviction may stand unreviewed and unreversed.

QUINN, Associate Judge (dissenting).

This case presents a simple issue: Are we to deny appellant review of a criminal conviction¹ because he unwittingly paid a $150 fine before noting his appeal? I cannot agree with a rule which places procedural niceties above the fair and effective administration of justice.

The record reveals that appellee filed a motion to dismiss the appeal on the ground of mootness prior to oral argument. Appellant entered an opposition thereto and, after due deliberation, we unanimously denied the motion. Appellee, nevertheless, renewed the contention in its brief and a majority of the court now finds the contention dispositive. I would affirm our prior ruling.

Appellant attached an affidavit to his opposition which stated:

"Immediately following sentencing, I was taken down to a cell block in the courthouse building. I did not receive advice from anyone as to my right to appeal or my right to be released from prison on bail bond during an appeal. I...