Jeffrey v. U.S., No. 01-CF-932.

• Decision Date: 16 February 2006
• Docket Number: No. 01-CF-932.,No. 04-CO-252.
• Citation: 892 A.2d 1122
• Parties: Anthony JEFFREY, Appellant, v. UNITED STATES, Appellee.
• Court: D.C. Court of Appeals

892 A.2d 1122

Anthony JEFFREY, Appellant, v. UNITED STATES, Appellee.

No. 01-CF-932.

No. 04-CO-252.

District of Columbia Court of Appeals.

Argued May 3, 2005.

Decided February 16, 2006.

COPYRIGHT MATERIAL OMITTED

Thomas D. Engle, Indianapolis, IN, appointed by the court, for appellant.

Joycelyn S. Ballantine, Assistant United States Attorney, with whom Kenneth L. Wainstein, United States Attorney, John R. Fisher, Assistant United States Attorney at the time the brief was filed, and Elizabeth Trosman, and Diane G. Lucas, Assistant United States Attorney, were on the brief, for appellee.

Before WASHINGTON,¹ Chief Judge, and REID, Associate Judge, and TERRY,² Senior Judge.

AMENDED OPINION³

WASHINGTON, Chief Judge.

After a jury trial, appellant Anthony Jeffrey ("Jeffrey") was convicted of carrying a pistol without a license ("CPWL") in a gun-free zone,⁴ possession of an unregistered firearm,⁵ and possession of ammunition.⁶ On appeal, Jeffrey contends that (1) the trial court erred when it denied his § 23-110 motion, or in the alternative, that this court should address his ineffective assistance claim under the common law writ of coram nobis; (2) the trial court erred when it refused to hold a hearing on his § 23-110 motion or compel trial counsel to cooperate with his appellate counsel; and (3) the evidence was insufficient to support his enhanced conviction of carrying a pistol without a license in a gun-free zone. We affirm.

I.

As Jeffrey states in his brief on appeal, "[m]ost of the evidence at trial was not contested." The government's evidence showed that, at about 7:30 p.m. on August 14, 1999, Metropolitan Police Lieutenants Dianne Groomes and Edward Delgado were on patrol near the alley behind the 1200 block of Neal Street, Northeast. The officers had received complaints about the alley being used for drug deals and prostitution. According to the testimony, on the other side of the 1200 block of Neal Street, Northeast "is Wheatley Elementary School and the day care center and there is a playground area and the parking lot." As the officers approached the alley, they noticed a car blocking the alley. The officers noticed two people, one of whom was Jeffrey, in the car reclining back in their seats.

Lieutenant Delgado saw Jeffrey turn around to look at the officers from the front passenger's seat and then bend down toward the floorboard of the car. When the officers got out of their car to investigate, both officers also detected the smell of marijuana coming from the car. At this point, Jeffrey jumped out of the car and started walking to the front of the car. Lieutenant Groomes tried to block him, and Jeffrey did "kind of like a little skirmish-type of a thing, kind of what we call on the street like a faking me out."

Lieutenant Delgado pulled Jeffrey onto the trunk of the car and put him in the frisk position. Because the car door was left ajar, Lieutenant Groomes noticed a barrel of a gun protruding from underneath the passenger's seat. The officers told the female passenger to stay seated in the car. According to Lieutenant Groomes, Jeffrey spontaneously told the officers that the female passenger had nothing to do with it, that it was his car and that he had just bought it. Lieutenant Delgado testified that Jeffrey also admitted that "[w]hatever is in the car is mine."

A crime scene search technician responded to the scene, saw the gun protruding from underneath the car seat, and took photographs. The technician also measured the distance from the location of the gun to the property line near the fence of Wheatley Elementary School, and testified at trial that the distance was 151 feet and 7 inches.

Jeffrey presented no evidence at trial. After deliberations, a jury found Jeffrey guilty of all counts. Jeffrey was sentenced on June 22, 2001, to multiple sentences of two years supervised probation, all to run concurrently. On May 17, 2002, Jeffrey's probation was revoked and he was sentenced to one to three months' incarceration.

II.

A. Jeffrey's Section 23-110 Motion

On October 16, 2002, Jeffrey filed an Ex Parte Motion to Compel Cooperation of Trial Counsel, which the trial court denied on November 4, 2002. The motion stated that cooperation of trial counsel was necessary to determine whether an ineffective assistance of counsel motion would be appropriate. On February 11, 2003, Jeffrey filed a Motion to Vacate Sentence pursuant to D.C.Code § 23-110 (2001) alleging ineffective assistance of trial counsel. Specifically, Jeffrey argued that trial counsel was ineffective because he should have put forth evidence showing that Jeffrey did not own the vehicle, and that, because of this, Jeffrey had no knowledge of the gun underneath the seat. Jeffrey contended that this evidence was crucial to his defense, and that, had his attorney established such facts, the outcome of his trial would have been different.

The trial court denied Jeffrey's motion on March 11, 2004. On appeal, Jeffrey challenges the trial court's denial of his § 23-110 motion on the merits, the trial court's denial of his motion without a hearing, and the trial court's denial of his motion to compel trial counsel to cooperate with appellate counsel for purposes of the § 23-110 motion.

The government opposed Jeffrey's § 23-110 motion arguing that Jeffrey had failed to show either deficient performance or prejudice from his trial counsel's alleged ineffectiveness. The government also argued, however, that because Jeffrey was no longer "in custody," the § 23-110 motion was not properly before the court.

On appeal, the government again argues that Jeffrey was not "in custody" at the time he filed his motion to vacate sentence under § 23-110, and thus, the motion was not properly before the trial court. The government points out that on May 17, 2002, Jeffrey was sentenced to one to three months incarceration and that, by February 11, 2003, when Jeffrey filed his motion, he had already served his sentence.

Upon a review of the record, we agree that the trial court lacked jurisdiction to hear Jeffrey's § 23-110 motion and, thus, his challenge to the trial court's ruling was not properly before the Superior Court. Although this precise argument was not made to the trial court, "jurisdictional challenges may be raised at any time." Friendship Hosp. for Animals, Inc. v. District of Columbia, 698 A.2d 1003, 1006 (D.C. 1997). Motions made pursuant to § 23-110, under which Jeffrey sought relief, may only be made by a "prisoner in custody under sentence of the Superior Court." D.C.Code § 23-110(a) (2001) (emphasis added). Moreover, we have expressly held that "[t]o meet the in-custody requirement of § 23-110, a prisoner must currently be serving or detained upon a sentence imposed by the Superior Court." Thomas v. United States, 766 A.2d 50, 51 (D.C. 2001). Because Jeffrey had already served his sentence, and therefore was not detained or in custody at the time he filed his § 23-110 motion, the motion was not properly before the trial court. Because the trial court lacked jurisdiction to hear Jeffrey's ineffective assistance of counsel claim, we need not address whether the court erred substantively in denying the motion or whether it erred in refusing to hold a hearing on the matter. Furthermore, we need not address Jeffrey's claim that the court erred in denying his motion to compel, as this motion was directly related to his investigation on his § 23-110 motion.

While the appellant could not bring his § 23-110 claim in the Superior Court because he did not meet the custody requirement under the statute, this court is not precluded from reviewing the appellant's ineffective assistance claim as part of a direct appeal, as long as that review is confined to the record. See Mack v. United States, 570 A.2d 777, 785-86 (D.C. 1990) (noting that when an ineffective assistance claim is brought as part of a direct appeal, "[a]ny assessment [the court] could make of counsel's performance would therefore necessarily have to be based exclusively on the trial record"). In order to succeed on a claim of ineffective assistance of counsel, the appellant must satisfy a two-pronged analysis:

First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.

Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). "[A] movant must show not only that trial counsel's performance was deficient under prevailing professional norms, but also that but for trial counsel's error there is a reasonable probability that the defendant would have been found not guilty." Smith v. United States, 608 A.2d 129, 131 (D.C. 1992) (citing Strickland, supra, 466 U.S. at 693, 694, 104 S.Ct. 2052).

"In assessing counsel's performance, `a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that under the circumstances, the challenged action might be considered sound trial strategy.'" Smith, supra, 686 A.2d at 547 (quoting Strickland, supra, 466 U.S. at 687, 104 S.Ct. 2052). In analyzing a claim of ineffective assistance of counsel, "[j]udicial scrutiny of counsel's performance must be deferential." Lane v. United States, 737 A.2d 541, 549 (D.C. 1999) (citing Strickland, supra, 466 U.S. at 687, 104 S.Ct. 2052). "In considering whether a defendant has been prejudiced by counsel's deficiencies, the question is `whether counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on...