HOLIDAY v. U.S., 95-CF-1054

Citation683 A.2d 61
Case DateJuly 30, 1996
CourtCourt of Appeals of Columbia District
683 A.2d 61
Steven HOLIDAY, Appellant, v. UNITED STATES, Appellee.Jae Hoa PARK, Appellant, v. UNITED STATES, Appellee.UNITED STATES, Petitioner, v. The Honorable Mildred EDWARDS, Respondent,James H. Palmer, Real Party in Interest. UNITED STATES, Petitioner, v.The Honorable Mildred EDWARDS, Respondent, Frederick Burgess, Real Partyin Interest.
Nos. 95-CF-1054, 95-CF-1390, 95-SP-1457 and 95-SP-1467.
District of Columbia Court of Appeals.
Argued March 26, 1996.
Decided July 30, 1996.




Andrew D. Lipps, Washington, DC, appointed by this court, with whom Arthur S. Cheslock and William J. Mertens were on the brief, for appellant Holiday in No. 95-CF-1054.

John R. Fisher, Assistant United States Attorney, with whom Eric H. Holder, Jr., United States Attorney, and Robert T. Swanson and Leslie A. Blackmon, Assistant United States Attorneys, were on the brief, for appellee in No. 95-CF-105.

Robert E. Morin, Washington, DC, with whom Gerald I. Fisher was on the brief, for appellant Park in No. 95-CF-1390.

John R. Fisher, Assistant United States Attorney, with whom Eric H. Holder, Jr., United States Attorney, and G. Bradley Weinsheimer and Elizabeth H. Danello, Assistant United States Attorneys, were on the brief, for appellee in No. 95-CF-1390.

Christopher Warnock, Washington, DC, with whom Eleanor Frucci, Silver Springs, MD, was on the brief, for James H. Palmer, the real party in interest, in No. 95-SP-1457.

Adgie O'Bryant, Jr., filed an appearance on behalf of Frederick Burgess, the real party in interest, in No. 95-SP-1467.

John R. Fisher, Assistant United States Attorney, with whom Eric H. Holder, Jr., United States Attorney, was on the brief, for petitioner in Nos. 95-SP-1457 and 95-SP-1467.

Before FERREN, STEADMAN, and SCHWELB, Associate Judges.

FERREN, Associate Judge:

These consolidated cases present a common issue requiring interpretation of the 1995 statute that repealed mandatory-minimum sentences for certain nonviolent drug offenses. We must determine whether the mandatory-minimum sentencing provisions apply when the offense was committed before — but the defendant was sentenced after — the effective date of the repealing legislation. In addition, appellants Holiday and Park argue that a variety of errors during their respective trials — including issues of severance, other crimes evidence, and the constitutionality of the particular punishment for possession with intent to distribute under 50 grams of powdered cocaine — require reversal of their convictions and thus new trials.

After addressing — and deflecting — the threshold question whether the government's petitions for writ of mandamus (alternatively styled as government appeals) are properly before us, we reach the common issue and conclude that mandatory-minimum sentences must be imposed in all four cases under the circumstances presented here. The reason is straightforward. Because the Council of the District of Columbia did not say whether the repealer should, or should not, apply to pending cases, we are compelled by controlling case law to apply two nearly identical statutes enacted to cover such omissions: the so-called federal and local "savings statutes." Congress and the Council, respectively, have deemed each of these statutes — both applicable in the District of Columbia — to be, without exception, a provision of every statute that repeals another statute imposing a penalty, forfeiture, or liability. Both say that unless the repealer "expressly provides" for the repealer itself to apply to pending cases — which unquestionably is not the case here — the old law, i.e., the newly repealed law, shall still apply. We therefore see no choice in the matter but to hold that mandatory-minimum sentencing is still required here.

Finally, after resolving the principal issue, we consider — and reject — the other contentions made in individual cases.


Holiday was convicted of a March 23, 1994, distribution of cocaine, D.C. Code § 33-541(a); possession of a prohibited weapon id.§ 22-3214(a) (1989 Repl.); carrying a pistol without a license, id. § 22-3204(a); possession of an unregistered firearm, id. § 6-2311(a) (1995 Repl.); and possession of unregistered ammunition, id. § 6-2361(3). On July 20, 1995, Judge Canan sentenced Holiday to four to twelve years in prison, imposing a mandatory-minimum of four years for the distribution conviction. Holiday was sentenced to one-year term of imprisonment on each of his weapons convictions, to run concurrently with the distribution conviction.

Park was convicted of a June 24, 1993 possession with intent to distribute cocaine, id. § 33-541(a), and Judge Richter sentenced her to a mandatory-minimum prison term of five to fifteen years on September 29, 1995.

Palmer pled guilty to a September 15, 1994, distribution of dilaudid, id. § 33-541(a), and Judge Edwards sentenced him on September 25, 1995, to three to nine years in prison, not to a mandatory-minimum term. The judge, moreover, suspended execution of the sentence and placed Palmer on probation for two years, adding a condition that he enter and complete an inpatient drug treatment program.

Burgess pled guilty to a November 23, 1993, distribution of cocaine, id. § 33-541(a) (1993 Repl.), and Judge Edwards sentenced him on September 28, 1995 to four to twelve years in prison — execution of sentence suspended as to all but time served — and to one year of supervised probation. Again, the judge declined to impose a mandatory-minimum prison sentence.

In short, each of these defendants was convicted of committing non-violent drug offenses in 1993 or 1994, but none was sentenced until after the Council had repealed (as of May 25, 1995) the mandatory-minimum sentencing provisions of D.C. Code § 33-541(c) that were in force on the dates of their crimes. The central question, therefore, is whether the new, more lenient sentencing provisions (omitting mandatory-minimums) can be applied here, simply because sentencing had not taken place until after the effective date of the repealer; or whether instead, because the Council did not say one way or another what sentencing scheme was to apply to cases pending on the effective date, an earlier-adopted general "savings statute" necessarily applies and requires the sentencing judges to impose the mandatory-minimums in effect when the offenses were committed.


There is, however, a preliminary procedural question: whether this court should entertain the government's petitions for writ of mandamus in the two Edwards cases (involving Burgess and Palmer). As we have recognized in previous cases, "the writ of mandamus is an extraordinary writ that should be issued only in exceptional circumstances." Turner v. Bayly, 673 A.2d 596, 602 (D.C. 1996) (quoting Yeager v. Greene, 502 A.2d 980, 983 (D.C. 1985)). Counsel for Palmer contends that the government has not met its burden of showing that its right to issuance of the writ of mandamus is "clear and indisputable." Foster v. Canan, 661 A.2d 636, 636 (D.C. 1995) (per curiam) (quoting Gulfstream Aerospace Corp. v. Mayacamas Corp. 485 U.S. 271, 289, 108 S.Ct. 1133, 1143, 99 L.Ed.2d 296 (1988)). The government notes conflicting authority in this jurisdiction as to its right to appeal, or to petition for a writ of mandamus, to correct an illegal sentencing order. Compare United States v. Stokes, 365 A.2d 615, 617 (D.C. 1976), with United States v. Shorter, 343 A.2d 569, 571 (D.C. 1975).

We find it unnecessary to resolve this possible conflict, at least at this time, since we can resolve the merits of the mandatory-minimum sentencing issue on direct appeal in Holiday and Park. Because Super.Ct.Crim.R. 35(a) (1996) permits the trial court to "correct an illegal sentence at any time," we are confident that steps will be taken to assure that the sentences imposed on Burgess and Palmer will be revisited in light of our rulings in Holiday and Park.


Before we discuss the particular repealing legislation at issue here, we believe it is useful to explain the evolution of general savings statutes that inevitably become part of the analysis when a repealer does notexpressly say what classes of cases it covers. (Part A.). We then focus on the quite different approaches the state courts (Part B.) and the federal courts (Part C.) have taken in construing general savings statutes. Appellants stress the predominant state court view that favors retroactive application of ameliorative sentencing legislation despite a general savings statute. The government, on the other hand, presses the federal court approach — derived substantially from Supreme Court authority — that uses the federal general savings statute to bar retroactive application unless the new sentencing legislation itself "expressly" says it shall apply to pending cases. Finally, once we have determined whether the federal and District general savings statutes apply here (we conclude they do), we consider (Part D.) whether, under the terms of the savings statutes, the repealing legislation itself "expressly" provides for retroactive application by making clear that the new sentencing regime applies to pending prosecutions of offenses committed before May 25, 1995.


Although nonpenal statutes traditionally operate prospectively, unless there is evidence of legislative intent to the contrary,1 an opposite presumption applies to repeals of criminal statutes. At common law, such repealing legislation applied retroactively, abating every prosecution which had not yet resulted in final conviction (including appeal to the highest reviewing court) — unless a special provision had been enacted to...

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