Howerton v. U.S.

• Decision Date: 19 February 2009
• Docket Number: No. 04-CF-1058.,No. 06-CO-599.,04-CF-1058.,06-CO-599.
• Parties: Joseph C. HOWERTON, Appellant, v. UNITED STATES, Appellee.
• Court: D.C. Court of Appeals

964 A.2d 1282

Joseph C. HOWERTON, Appellant, v. UNITED STATES, Appellee.

No. 04-CF-1058.

No. 06-CO-599.

District of Columbia Court of Appeals.

Argued March 11, 2008.

Decided February 19, 2009.

Cynthia Nordone, appointed by the court, for appellant.

James Klein and Alice Wang, Public Defender Service, filed a brief amicus curiae on behalf of appellant.

Sharon A. Sprague, Assistant United States Attorney, with whom Jeffrey A. Taylor, United States Attorney, Roy W. McLeese III and Elizabeth Trosman, Assistant United States Attorneys, were on the brief, for appellee.

Before, THOMPSON, Associate Judge, FARRELL, Senior Judge,^* and ISCOE, Associate Judge, Superior Court of the District of Columbia.^**

THOMPSON, Associate Judge:

On May 13, 2004, a jury convicted appellant Joseph Howerton of the following charges: assault with a dangerous weapon (gun) ("ADW") (D.C.Code § 22-402 (2001)); threatening to injure a person ("felony threat") (D.C.Code § 22-1810 (2001)); carrying a pistol without a license ("CPWL") (D.C.Code § 22-4504(a) (2001)); possession of an unregistered firearm ("UF") (D.C.Code § 7-2502.01 (2001)); unlawful possession of ammunition ("UA") (D.C.Code § 7-2506.01(3) (2001)); unlawful possession of drug paraphernalia (D.C.Code § 48-1103(a) (2001)); and, unlawful possession of a controlled substance (crack cocaine) with the intent to distribute it ("PWID") (D.C.Code § 48-904.01 (2008 Supp.)).¹ Appellant challenges his convictions on the weapons charges (CPWL, UF, and UA) on the ground that they were obtained in violation of his rights under, and on the basis of statutory provisions that he asserts were invalid under, the Second Amendment to the U.S. Constitution. He challenges his CPWL conviction on the additional ground that the evidence was insufficient to sustain the charge. As to his drug convictions, appellant contends that joinder of the drug charges with the ADW and threat charges was improper. He also argues that his trial counsel's failure to challenge the joinder or to move for severance amounted to ineffective assistance of counsel, entitling him to relief. We reject appellant's arguments and affirm.

I.

The government's evidence at trial established that at the time of the incidents that led to his arrest, appellant shared an apartment with his girlfriend, Kimberly Harrison, and the couple's then-seven-year-old child. In January 2004, appellant received a paycheck from which an amount had been deducted in payment of court-ordered child support. On January 26, 2004, appellant demanded that Harrison "call them [i.e., the court or other District of Columbia officials] and tell them you don't want [child support]." When Harrison refused, appellant held a gun to her head and told her he was going to kill her. Harrison reported the incident to police, and a warrant issued for appellant's arrest.

On January 28, 2004, police entered the apartment with keys supplied by Harrison and found appellant wearing only his boxer shorts, talking on the telephone in the doorway to the kitchen. Police arrested and handcuffed appellant and had him sit on a couch while they searched the apartment. On the kitchen table, police found what appeared to be (and was later determined to be five grams of) crack cocaine, along with implements used to cut and package the drug for sale. In the bedroom, about 18-20 feet from where appellant had been standing when police entered the apartment, police found a loaded black 9mm Glock handgun, surrounded by appellant's work identification, wallet, and various other possessions, on top of a dresser that appellant used. Harrison identified it as the same gun that appellant had pointed at her on January 26. Police officers found additional ammunition in a drawer of the same dresser.

After a jury found appellant guilty on all charges brought as a result of the incidents described above, the trial court sentenced him, on July 26, 2004, to a total term of twelve years' incarceration, followed by five years of supervised release. The sentence included three years plus a period of supervised release for ADW, one year for CPWL, one year for UF, and one year for UA, all to be served consecutively. Appellant's trial counsel filed a direct appeal.

On May 31, 2005, appellant, with new counsel, moved to vacate judgment and sentence pursuant to D.C.Code § 23-110 (2001), arguing that his trial counsel was constitutionally ineffective for failing to challenge the joinder of offenses under Super. Ct.Crim. R. 8(a), or to move for severance under Super. Ct.Crim. R. 14. The trial court denied appellant's motion without a hearing. He appealed from that ruling, and on June 9, 2006, we ordered consolidation of the two appeals. The appeals were argued on March 11, 2008. Thereafter, we allowed supplemental briefing by the parties and by amicus Public Defender Service ("PDS") in light of the Supreme Court's decision in District of Columbia v. Heller, ___ U.S. ___, 128 S.Ct. 2783, 171 L.Ed.2d 637 (2008).² That briefing was completed on October 30, 2008.

II.

We begin with appellant's argument, which relies on the Supreme Court's opinion in Heller, that his convictions for CPWL, UF and UA were obtained in violation of the Second Amendment.³

A. Standard of Review

Appellant did not raise his Second Amendment claim in the trial court. His failure to preserve the claim means that we will consider it only "under the rubric of plain-error review." Sims v. United States, 963 A.2d 147 (D.C.2008). This means that, to prevail, appellant must show that entry of judgment on his weapons convictions "was (1) error, (2) that is plain, (3) that affects substantial rights, and (4) that seriously affects the fairness, integrity or public reputation of judicial proceedings." Coleman v. United States, 948 A.2d 534, 544 (D.C.2008) (quotation marks and citation omitted).

Appellant argues that harmless-error review⁴ rather than plain-error review is warranted because the Second Amendment claim he now raises asserts a jurisdictional error, which can be raised at any time. We rejected substantially the same argument in Sims, finding persuasive the reasoning of the United States Court of Appeals for the District of Columbia Circuit, in United States v. Drew, 339 U.S.App. D.C. 413, 418, 200 F.3d 871, 876 (2000), and United States v. Baucum, 317 U.S.App. D.C. 63, 80 F.3d 539 (1996), that a constitutional claim is not jurisdictional and may be forfeited by failure to raise it in the trial court. Sims, 963 A.2d at 149. We must reject the argument here as well. See M.A.P. v. Ryan, 285 A.2d 310 (D.C. 1971) ("[n]o division of the court may overrule another division").

Appellant argues that Arrington v. United States, 585 A.2d 1342 (D.C.1991), requires a different result, but the facts of that case make it (and its dictum on which appellant relies) inapposite here. The claim in Arrington related to a schedule of controlled substances, which by statute was to be revised and republished annually. See D.C.Code § 33-523 (1988). Arrington argued that the latest revised schedule had expired, and thus the relevant statutory prohibition had "ceased to exist," before the date when he possessed and was prosecuted for possessing the substance in question. Arrington, 585 A.2d at 1344 n. 2. He contended that the expiration meant that the government had no valid ground for prosecuting him for unlawful possession of a controlled substance, and that the court had no basis for criminal jurisdiction (there being no violation of any law). Id. at 1343-44. We rejected that argument on the merits, finding that the schedule of controlled substances had not expired upon the failure to re-publish. Id. at 1347. In a footnote, we also addressed the government's assertion that Arrington had waived the argument that he was advancing on appeal by failing to raise it in the trial court. It was in that context that we observed that "[a]ppellants' challenge to the validity of the Act, that the statute had become invalid and ceased to exist, raises a jurisdictional issue.... Challenges to a court's subject matter jurisdiction cannot be waived." Arrington, 585 A.2d at 1344 n. 2.

Even if we assume that this statement in Arrington were other than dictum, it would not control on the quite different facts that are before us in this case. Here, there is no question that the various statutes under which appellant was convicted were in effect at the time he committed his weapons offenses as well as when he was prosecuted and convicted.⁵ Consequently, the trial court was not without jurisdiction to try him. As the Baucum court explained:

When a federal court exercises its power under a presumptively valid federal statute, it acts within its subject-matter jurisdiction.... It is true that once a statute has been declared unconstitutional, the federal courts thereafter have no jurisdiction over alleged violations (since there is no valid "law of the United States" to enforce), but Baucum's belated assertion of a constitutional defect does not work to divest that court of its original jurisdiction to try him for a violation of the law at issue.

Baucum, 317 U.S.App. D.C. at 64-65, 80 F.3d at 540-41.

B. Plain-Error Analysis

Turning to our plain-error analysis, we reject appellant's prayer for relief from his CPWL, UF and UA convictions. In Heller, the issue was the constitutionality of the District of Columbia's ban on "the possession of usable handguns in the home." Heller, 128 S.Ct. at 2787-88 (emphasis added). Because appellant's weapon-possession offenses took place in the apartment appellant shared with Harrison, his case is distinguishable from Sims,⁶ and comes within the scope of Heller at least with respect to the location of his gun. But, in the end, appellant Howerton fares no better than the appellant in Sims. The focus of the Supreme Court's analysis in Heller was the right "to use arms in defense of hearth and home." 128 S.Ct. at 2821 (emphasis added). The...