Harvin v. United States, 4473.

• Decision Date: 05 September 1968
• Docket Number: No. 4473.,4473.
• Parties: Augustus E. HARVIN, Appellant, v. UNITED STATES, Appellee.
• Court: D.C. Court of Appeals

Page 307

245 A.2d 307

Augustus E. HARVIN, Appellant, v. UNITED STATES, Appellee.

No. 4473.

District of Columbia Court of Appeals.

Argued March 18, 1968.

Decided September 5, 1968.

Frank J. O'Berg, Washington, D. C., appointed by this court, for appellant.

Lee A. Freeman, Jr., Asst. U.S. Atty., with whom David G. Bress, U.S. Atty., and Frank Q. Nebeker, Asst. U.S. Atty., were on the brief, for appellee.

Foy R. Devine, Washington, D. C., appointed by this court, argued as amicus curiae.

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

KELLY, Associate Judge:

We decide in this appeal that the trial judges of the District of Columbia Court of General Sessions have authority to impose sentence under the Federal Youth Corrections Act.¹

Appellant was charged by information with petit larceny, D.C.Code 1967, § 22-2202, and unlawful entry, D.C.Code 1967, § 22-3102. Represented by counsel, appellant withdrew his jury demand and elected a trial by the court. At the close of the Government's case a motion for judgment of acquittal on the charge of petit larceny was granted, and at the close of all of the evidence the court found appellant guilty of unlawful entry. There is no indication in the record that appellant was notified at any time prior to the finding of guilt that he might be sentenced under the Federal Youth Corrections Act.

After an initial screening by the probation office, appellant was sent to the Federal Youth Correction Center for a 60-day examination pursuant to § 5010(e) of the Act.² Upon his return to court appellant objected to being sentenced as a youth offender because under § 5017(c) of the Act³ he could receive up to four years' imprisonment, with an additional two years on probation, while the maximum sentence he could be given for unlawful entry under D. C.Code 1967, § 22-3102 was six months. The court nonetheless sentenced appellant to the custody of the Attorney General for treatment and supervision under § 5010(b) of the Act⁴ and made the written finding that the "defendant [is] 19 years [of] age, and suitable for handling under Federal Youth Corrections Act. * * *" The court further made specific observations of record as to why it felt appellant would be suitable to and profit from youth of fender treatment, citing the reports received from the Youth Correction Center, from the acting supervisor, and from the clinical psychologist.

This appeal questions only the jurisdiction of the District of Columbia Court of General Sessions to impose sentence under the Federal Youth Corrections Act, appellant's sole point being that the legislative history indicates the Act was intended to apply only to the United States District Court for the District of Columbia and not to the Court of General Sessions.

In general, several guiding principles of law are settled. First, it has been held that the Act's application in the federal district courts to any offense punishable by imprisonment includes misdemeanors, Carter v. United States, 113 U.S.App.D.C. 123, 306 F.2d 283 (1962); Cunningham v. United States, 256 F.2d 467 (5th Cir. 1958), and petty offenses, Brisco v. United States, 368 F.2d 214 (3d Cir. 1966). Second, there is no constitutional barrier to sentencing a youth of fender to a period of incarceration longer than he lawfully could have received if he were an adult offender convicted of the same offense. Johnson v. United States, 374 F.2d 966 (4th Cir. 1967); Rogers v. United States, 326 F.2d 56 (10th Cir. 1963); Carter v. United States, supra; Cunningham v. United States, supra. The reasoning, as stated in Carter, 113 U.S.App. D.C. at 125, 306 F.2d at 285, is that

[C]ommitment under the Youth Corrections Act may be longer than one year in cases of misdemeanors, essentially because such confinement cannot be equated with incarceration in an ordinary prison. * * * Actual confinement under the Youth Corrections Act may be greater or may be less depending on many factors we cannot know or anticipate. But the basic theory of that Act is rehabilitative and in a sense this rehabilitation may be regarded as comprising the quid pro quo for a longer confinement but under different conditions and terms than a defendant would undergo in an ordinary prison.⁵

Specifically, as originally written the Act excluded the District of Columbia.⁶ It was amended in 1952⁷ and in 1967⁸ to include the District. The exclusion appears to have been because of budgetary problems, different methods of sentencing and handling of probation within the District, and the District's separate Parole Board; and the amendments designed to include the District in such a way as to obviate these problems. In extending coverage to the District, however, Congress did not state that the Act was to apply only to cases brought in the District Court. In fact, the Act now reads as if to include all of the trial courts in the District of Columbia.

D.C.Code 1967, § 11-963 makes it clear that unless otherwise expressly provided the Court of General Sessions and the District Court have concurrent original criminal jurisdiction of

(1) offenses committed in the District for which the punishment is by fine only or by imprisonment for one year or less; * * *.

It is true that in practice the majority of misdemeanor cases are brought in the Court of General Sessions, but this is not required by law. Significantly, these cases are brought in the name of the United States, prosecuted by the United States Attorney, and include United States Code misdemeanors as well as violations of the District of Columbia Code, both laws of the United States. And since the Act itself does not speak in terms of felonies, misdemeanors or petty offenses, but only of offenses punishable by imprisonment, there seems to us no reasonable distinction to be made between misdemeanors and petty offenses prosecuted in the District Court and those prosecuted in the Court of General Sessions.

Moreover, there is no bar to General Sessions having jurisdiction because the eventual term of commitment for one offense may exceed one year under the Act. As we stated in Lawrence v. United States, D.C.App., 224 A.2d 306, 308 (1966), in speaking of the second of fender statute,

The authority of the trial court to try an offense is founded not upon the penalty imposed after conviction but upon the penalty prescribed by the statute for that particular offense. * * *

* * * We find no basis for * * * a contention, which confuses the power of the court to try an offense with the supplementary authority to impose penalties beyond its original jurisdictional limitation in cases involving repeaters.

As we have seen, a fine, but legally valid distinction is made in the application of the Act between imprisonment and incarceration for treatment and rehabilitation. And if it is modern penal philosophy that short sentences for misdemeanors and petty offenses accomplish little for the youthful criminal, or for society, and that effective treatment and rehabilitation of youth offenders require detention for extended periods of time in their most formative years, the benefits of the Act must logically apply in the trial court in this federal district which handles the bulk of youth offender cases. We therefore hold that in the absence of contrary congressional intent there is jurisdiction in the Court of General Sessions to impose sentence under the Act.⁹

Amicus curiae, whom we appointed to assist us in this case, agrees there is jurisdiction in the Court of General Sessions to sentence under the Act, but raises several other issues, not raised by appellant in the trial court or on appeal, which relate to the application of the Act to the facts of this case. We consider these issues briefly since, to our knowledge, appellant is the first person to find himself in this unexpected and unwelcome circumstance.

Amicus argues that while the court found appellant to be a youth offender, it failed to make the necessary finding that the offense was punishable by imprisonment under other applicable provisions of law before imposing sentence. Assuming that 18 U.S.C. § 5010(b) is to be read as requiring a finding by the trial court (1) that the person convicted is a youth of fender and, in addition, (2) that the offense is punishable by imprisonment under applicable provisions of law other than this subsection, as was held in Rogers v. United States, supra, we think the record here clearly shows such finding was made.

Amicus suggests that appellant's Fifth Amendment right to be prosecuted by indictment for a capital or otherwise infamous crime¹⁰ was denied because he was subject to imprisonment for more than one year when sentenced under the Act. Such was the holding in United States v. Reef, 268 F.Supp. 1015 (D.Colo.1967), based upon the court's view that youth offender treatment is still imprisonment no matter what euphemistic name it is given. However, we think that by far the majority of cases, including Carter in this circuit, make what is considered a valid distinction between youth offender treatment and imprisonment, and we therefore hold that an indictment was not constitutionally required.

Amicus' last and most serious contention is that failure to give appellant advance warning that he was subject to sentencing under the Act invalidated his waiver of jury trial, citing as controlling Dobkin v. District of Columbia, D.C.App., 194 A.2d 657 (1963), and Lawrence v. United States, supra. Those cases required advance notice of an intention to prosecute as a second of fender under D.C.Code 1967, § 22-104, which created the possibility of a longer sentence, in order that the right to a jury trial might not be denied or unknowingly waived. In Dobkin, this court explained that advance notice of intention to prosecute as a second offender is required because the term of possible added imprisonment created a right to a jury trial which had not existed before. In Lawrence, this...