Coleman v. United States, 8190.

• Decision Date: 05 February 1975
• Docket Number: No. 8190.,8190.
• Citation: 332 A.2d 355
• Parties: James COLEMAN, Jr., Appellant, v. UNITED STATES, Appellee.
• Court: D.C. Court of Appeals

332 A.2d 355

James COLEMAN, Jr., Appellant, v. UNITED STATES, Appellee.

No. 8190.

District of Columbia Court of Appeals.

Submitted November 13, 1974.

Decided February 5, 1975.

Richard Hildreth, Washington, D. C., appointed by this court, was on the brief for appellant.

Earl J. Silbert, U. S. Atty., and John A. Terry, James F. McMullin, Michael O'Bryant and David E. Wilson, Asst. U. S. Attys., were on the brief for appellee.

Before GALLAGHER, YEAGLEY and HARRIS, Associate Judges.

HARRIS, Associate Judge:

The principal charge in a three-count indictment returned against appellant was assault with intent to commit robbery while armed. D.C.Code 1973, §§ 22-501, 22-3202. His original trial date was postponed. During the postponement, Coleman became 22 years of age. He thus lost the opportunity to be sentenced under the Youth Corrections Act, 18 U.S.C. § 5005 et seq. (1970), after he was found guilty at his delayed non-jury trial. He was given an adult sentence of two to six years. Appellant now argues that he was denied his Sixth Amendment right to a speedy trial, and that the circumstances which resulted in the continuance of his trial date beyond his 22d birthday deprived him of his right to due process of law under the Fifth Amendment. We affirm.

I

On the evening of May 23, 1973, appellant was one of two men who went to the night deposit slot of the Colonial Parking Company. He was wearing a Colonial Parking Company shirt. Unbeknownst to appellant, a security guard was in the immediate area. When a company employee approached to make a deposit, appellant pulled a gun (actually a starter's pistol) and ordered him to give up the money. The security guard then entered the picture. Appellant started to flee, but turned towards the security officer with the pistol still in his hand. The officer fired one shot, critically wounding appellant.

Coleman spent nearly a month in the hospital. A complaint was filed on June 14, while he remained hospitalized. Presentment was conducted on June 27, and a preliminary hearing was scheduled for July 2. The indictment was returned July 26. At an August 6 arraignment, Coleman pleaded not guilty, and a status hearing was scheduled for September 7. At the status hearing, a trial date of November 2 was set. On November 2, however, the court was occupied by a trial it: progress which had taken longer than anticipated. Defense counsel stated: "An) date in January is satisfactory to me." Al parties agreed to a continuance of the trial to January 15, 1974. On December 24 1973, Coleman became 22 years of age.

The trial was conducted on the continued date, less than eight months after the incident (and less than seven months after Coleman left the hospital). There was no contention in the trial court that he had been denied a speedy trial. Having not only been caught in the act of attempted robbery while armed, but moreover having been shot in the process, Coleman did not deny being a participant in the incident. Rather, he chose to advance the defense that he had gone into the alley that night to relieve himself, whereupon an unidentified stranger accosted him with a gun, forcing him to put on a Colonial Parking Company shirt and to seek to rob the first person who came to make a deposit of the company's receipts.

The court found appellant guilty of attempted robbery while armed, and did not reach the two lesser included offenses with which he had been charged. It was Coleman's first adult conviction. However, one week prior to sentencing, he was arrested on another robbery charge. At sentencing, the court noted that his age precluded utilization of the provisions of the Youth Corrections Act, and sentenced him as an adult.

II

Appellant claims that the 2½-month continuance to which all parties agreed prejudiced him by making him ineligible for Youth Corrections Act treatment. The notes correctly that the record reflects no discussion of this subject when the continuance was agreed to. Appellant has no quarrel with the fairness of his trial, nor with the legality of his sentence. Rather, he argues first that he was denied a speedy trial, and second that he was deprived of due process of law by the fact that the prosecutor, the court, and defense counsel did not discuss the problem of Youth Corrections Act eligibility when the continued trial date was chosen. Neither argument is persuasive.

The speedy trial claim borders on the frivolous, and may be disposed of briefly. The length of the continuance was not per se unreasonable or presumptively prejudicial. Nor did the entire period of nearly eight months from arrest to trial by itself constitute a denial of a speedy trial. Sec liedgepeth v. United States, 125 U.S.App.D.C. 19, 365 F.2d 952 (1966). The delay was not instigated by the prosecutor. Rather, it was due solely to the court's involvement in other litigation. See United States v. Jones, 154 U.S. App.D.C. 211, 475 F.2d 322 (1972). Appellant made no objection in the trial court to the continuance, nor did he assert any Sixth Amendment rights prior to this appeal. See Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972). Further, any prejudice which may have resulted from the delay was not prejudice to one of the enumerated interests the Sixth Amendment was designed to protect. See Barker v. Wingo, supra at 532, 92 S.Ct. 2182; Riley v. United States, D.C.App., 291 A.2d 190, 192 (1972).

The due process argument advanced on behalf of appellant is novel. It is keyed solely to the absence of an onthe-record discussion of the Youth Corrections Act possibility at the time a continuance was decided upon. That absence, it is argued by appellant's able and conscientious counsel, constituted a

. . . lack of diligence by the prosecutor, the court and the defense attorney [which] warrants reversal of Coleman's conviction on due process grounds. * * * [E]ach of the three failed in their respective duties to the accused and to our system of justice. Due process of law is denied where the accused is deprived of effective assistance of counsel. Powell v. Alabama, 287 U.S. 45, 68-71, [53...