Government of the Virgin Islands v. George, 83-3582

• Decision Date: 10 August 1984
• Docket Number: No. 83-3582,83-3582
• Citation: 741 F.2d 643
• Parties: GOVERNMENT OF the VIRGIN ISLANDS v. GEORGE, Melvin A., Appellant.
• Court: U.S. Court of Appeals — Third Circuit

Page 643

741 F.2d 643

GOVERNMENT OF the VIRGIN ISLANDS v. GEORGE, Melvin A., Appellant.

No. 83-3582.

United States Court of Appeals, Third Circuit.

Argued April 27, 1984.

Decided Aug. 10, 1984.

Eszart A. Wynter (argued), Frederiksted, St. Croix, V.I., for appellant.

James W. Diehm, U.S. Atty., Genevieve Holm (argued), Asst. U.S. Atty., Christiansted, St. Croix, V.I., for appellee.

Before SEITZ, GARTH, and HIGGINBOTHAM, Circuit Judges.

OPINION OF THE COURT

GARTH, Circuit Judge:

Melvin George appeals from a judgment of conviction for assault and attempted rape, and his sentence as a habitual offender entered on this judgment. We reject his challenge to the conviction. We hold, however, that he was improperly sentenced as a habitual offender, because his admission that he had committed a previous crime was not a knowing, intelligent, and voluntary waiver of his constitutional rights. We will therefore affirm George's conviction, but we will remand to the district court for resentencing.

I.

George was charged by information on August 11, 1983 with first degree assault in violation of 14 V.I.C. Sec. 295(3) (1964) and first degree attempted rape, id. Sec. 1701. He was tried before a jury, and was convicted of both charges in the District Court of the Virgin Islands on November 3, 1983.

On November 14, 1983 the United States Attorney filed an information pursuant to the Virgin Islands habitual offender statute, 14 V.I.C. Secs. 61-62 ¹ charging George with being a habitual offender. George appeared at a hearing pursuant to this statute on November 16, 1983. There, accompanied by his attorney, he was asked by the court whether he was the same Melvin George who had been convicted of first degree attempted rape on November 7, 1979. George said that he was. The court thereupon sentenced him to ten years' imprisonment without probation, suspension, or parole.

On appeal to this court, George raises three issues. First, he argues that there was insufficient evidence to prove one element of the rape offense, viz., that the victim was not his wife. We find this argument to be without merit. Second, he argues that he was deprived of the effective assistance of counsel at trial and at the sentencing hearing. This issue is not properly before us on direct appeal from his conviction.

Finally, George contends that he was deprived of his constitutional rights at the habitual offender sentencing hearing because he was not told of the consequences of his admission of a prior crime. ² We find this last contention to be meritorious, and we will therefore vacate George's judgment of sentence, and remand to the district

court for resentencing under the guidelines established in this opinion.

II.

A.

George argues that there was insufficient evidence adduced at trial to prove that his victim was not his wife. First degree rape is defined as follows in the Virgin Islands Code:

Whoever perpetrates an act of sexual intercourse with a female not his wife--

(1) when through idiocy, imbecility or any unsoundness of mind, either temporary or permanent, she is incapable of giving consent, or, by reason of mental or physical weakness or immaturity or any bodily ailment, she does not offer resistance;

(2) when her resistance is forcibly overcome;

(3) when her resistance is prevented by fear of immediate and great bodily harm which she has reasonable cause to believe will be inflicted upon her;

(4) when her resistance is prevented by stupor or weakness of mind produced by an intoxicating, narcotic or anaesthetic agent, or when she is known by the defendant to be in such state of stupor or weakness of mind from any cause; or

(5) when she is, at the time unconscious of the nature of the act and this is known to the defendant--

is guilty of rape in the first degree and shall be imprisoned not more than 20 years.

14 V.I.C. Sec. 1701 (1964).

If there is substantial evidence in the record, taking the view most favorable to the Government, to support a jury verdict of guilty, the verdict must be sustained. Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 469, 86 L.Ed. 680 (1942). Our review of the evidence adduced at trial leads us to conclude that there was sufficient evidence to prove beyond a reasonable doubt that the victim was not George's wife.

The victim was asked at trial whether she was married. The transcript reads as follows:

Q Okay

Now a question I failed to ask you earlier: You're not married; are you?

Okay

Now, after the comment of pig man coming and they ran away, did somebody else come there?

A Yeah.

(Tr. 24). In context (and when read with a preceding colloquy reported in a similar manner), it is abundantly clear that "Okay" was the U.S. Attorney's response to the witness's silent negative response. Other evidence pointed to by the Government is that the victim was 15 years old, attended eighth grade, and lived with her grandmother. Also, the victim testified that her grandmother would be angry if she had a boyfriend. This testimony, although conceivably not inconsistent with her being married, is nevertheless telling evidence that she was not married, and certainly substantial enough to support the jury's verdict.

B.

George contends that he was denied effective assistance of counsel. On direct appeal, this court does not generally consider such claims, as we regard a full record, as developed in the district court, to be essential to the determination of such issues. E.g., United States v. Davis, 710 F.2d 104, 110 (3d Cir.1983); United States v. Frankenberry, 696 F.2d 239 (3d Cir.1982), cert. denied, --- U.S. ----, 103 S.Ct. 3544, 77 L.Ed.2d 1392 (1983). The allegations set forth by George are not of a nature to justify departing from this practice.

He alleges first that his trial counsel advised him not to testify, and that this was bad advice. Also, he alleges that his counsel's failure to object to certain evidence, to cross-examine witnesses regarding a photograph, and to raise the issue of lack of evidence of no marriage constituted ineffective assistance of counsel. He alleges

                other failings:  counsel's omissions to advise him of his right to remain silent at the sentencing hearing, and to tell him he would be subject to the habitual offender statute.  While not all of George's assertions may be relevant to the issue of ineffective assistance of counsel, it is evident that the allegations addressed to that issue depend on extra-record evidence, which cannot be considered by this court at this time and on this record.   See Davis, supra, 710 F.2d at 110.  We therefore will not address this claim.  Of course, by declining to pass on this issue at this stage, we do not preclude George from raising on an appropriate record the claim of his counsel's alleged ineffective assistance by collateral proceedings
                

C.

Finally, George challenges his sentence under the Virgin Islands habitual offender statute, 14 V.I.C. Secs. 61-62. Under this statute, a person who has been previously convicted of a felony may upon conviction of another felony be sentenced to a prison term of ten years or more without probation or parole. The U.S. Attorney or Attorney General of the Virgin Islands must file an information stating the previous convictions to be relied on. Id. Sec. 62(a). When he does so, the court is to

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.

Id. Sec. 62(b).

If the defendant denies the previous conviction or challenges its validity, he must file a "response" to the information, and the court is then required to hold a nonjury hearing "to determine any issues raised by the response which would except the person from increased punishment." Id. Sec. 62(c)(1). The prosecutor has the burden of proof beyond a reasonable doubt on any issue of fact, id., except that the defendant may raise the affirmative defense of the constitutional invalidity of any conviction, and must prove it by a preponderance of the evidence. Id. Sec. 62(c)(2). If the defendant files no response, or if the court determines, after a hearing, that the defendant is subject to increased punishment by reason of one or more previous convictions, the court is to impose sentence according to the substantive provisions of the Act, 14 V.I.C. Sec. 61(a)-(e).

Briefly, those provisions provide for the minimum sentence that can be imposed on a person found to be a habitual offender. The minimum varies according to the severity of the predicate offense and the previous offense(s).

Here, the U.S. Attorney filed an information on November 14, 1983, charging that George had been previously convicted (on November 7, 1979) of attempted rape; a certified copy of the prior conviction was provided. George filed no response. At the sentencing proceeding the court asked George if he was the same Melvin George who had previously been convicted:

THE COURT: Good morning, sir.

Before we proceed to sentencing, may I inquire of Melvin George whether he is the same Melvin George who on November 7th, 1979, in the District Court of the Virgin Islands in the Division of St. Thomas and St. John was the subject of a judgment and commitment on a charge of Attempted Rape in the First Degree for which a judgment of conviction was entered and a sentence thereby tendered.

Are you the same Melvin George?

THE DEFENDANT: Yes, sir.

THE COURT: Is there any dispute at all about that?

ATTORNEY NEWMAN: I have discussed it with my client, Your Honor, and he has said that he recalls that commitment.

(App. 42).

The court thereupon found George to be a habitual offender pursuant to 14 V.I.C. Secs. 61 & 62. (App. 43). Accordingly George now contends that his sentence was illegally imposed upon...