Kirk v. United States

• Decision Date: 05 June 1986
• Docket Number: No. 85-804.,85-804.
• Citation: 510 A.2d 499
• Parties: Kinston KIRK, Appellant, v. UNITED STATES, Appellee.
• Court: D.C. Court of Appeals

510 A.2d 499

Kinston KIRK, Appellant, v. UNITED STATES, Appellee.

No. 85-804.

District of Columbia Court of Appeals.

Argued February 25, 1986.

Decided June 5, 1986.

Daniel M. Schember, Washington, D.C., appointed by the court, for appellant.

Linda S. Chapman, Asst. U.S. Atty., with whom Joseph E. diGenova, U.S. Atty., and Michael W. Farrell, and Thomas J. Tourish, Jr., Asst. U.S. Attys., Washington, D.C., were on brief, for appellee.

Before PRYOR, Chief Judge, and MACK and NEWMAN, Associate Judges.

MACK, Associate Judge:

The principal question presented by this collateral attack upon a criminal conviction is the degree of retroactivity to be attached to our constitutional interpretation in Arnold v. United States, 467 A.2d 136 (D.C. 1983). We hold that Arnold is fully retroactive, and that appellant Kinston Kirk is entitled to benefit from the double jeopardy rule it sets forth. We hold also that our rejection of appellant's claim on direct appeal in an unpublished memorandum order issued prior to Arnold does not preclude his raising the issue again by way of this § 23-110 motion.¹

On May 11, 1979, appellant was convicted of grand larceny while armed, D.C.Code §§ 22-3202, -3812 (1981 & 1985 Supp.), and unauthorized use of a vehicle, D.C.Code § 22-3815 (1985 Supp.).² On direct appeal, appellant asked us to consider "[w]hether, as a matter of law or under the facts of the case, [his] consecutive sentence for unauthorized use of a motor vehicle merge[d] with his conviction for grand larceny of the same motor vehicle which arose from the same transaction." On May 21, 1981, a division of this court rejected appellant's contention and affirmed his convictions in an unpublished opinion.³

On October 5, 1983, reaching the opposite conclusion on indistinguishable facts, another division held that the Double Jeopardy Clause of the Fifth Amendment prohibits separate convictions for grand larceny and unauthorized use of a vehicle arising out of the same transaction. Arnold, supra, 467 A.2d at 138-39. Appellant returned to the trial court and unsuccessfully argued that his unauthorized use conviction should be vacated in view of our decision in Arnold. Because Arnold is fully retroactive, the trial court should have granted appellant's § 23-110 motion to vacate an unconstitutional conviction and sentence; moreover, this court's prior rejection of the same argument on direct appeal does not bar the present division from affording appellant his requested relief in light of the intervening caselaw. We reverse and remand.

I

On the afternoon of July 9, 1979, Eric Mann was driving through the District of Columbia on his way from Atlantic City, New Jersey, to his home in North Carolina. He stopped on Kenilworth Avenue, N.E., to examine his tires and a loose stereo speaker. As Mann did so, he noticed two strangers standing by a nearby fence. Suddenly these men, appellant and codefendant Melvin Thomas, approached Mann from behind, placed a sawed-off shotgun in his back, and ordered their captive back into the car. Mann was forced to drive for a while and then, at gunpoint, to hand over his watch and his wallet. At some point, appellant took over the wheel and the victim was moved into the back seat. About 30 to 45 minutes after the ride began, Mann was abandoned in Marlow Heights, Maryland, and appellant and Thomas drove off in his car.

Mann succeeded in stopping a passing motorist for help and went to a local police station to report the incident. The police took him back to the neighborhood where the kidnapping began. After a ten-minute search, Mann spotted the stolen car in an alley, with Thomas leaning inside and appellant standing next to it. Both men fled. Thomas was apprehended after a brief chase and identified at the scene by Mann. Appellant was later arrested on a warrant and identified by Mann in a line-up and at trial.

Appellant received three concurrent sentences of fifteen to forty-five years imprisonment, including the term for his grand larceny while armed.⁴ It is the consecutive sentence of eighteen to fifty-four months for unauthorized use of a motor vehicle that appellant now challenges under the double jeopardy rule in Arnold.⁵

II

In Arnold we held that dual convictions for grand larceny and unauthorized use of a motor vehicle were improper. We reasoned that because the grand larceny contained within it the unauthorized use of the vehicle, and the unauthorized use conviction required proof of no fact which the grand larceny did not, the defendant had been subjected to multiple punishments for the "same" offense. See Brown v. Ohio, 432 U.S. 161, 166-68, 97 S.Ct. 2221, 2225-26, 53 L.Ed.2d 187 (1977); Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 182, 76 L.Ed. 306 (1932). Such cumulative sentences are prohibited by the Double Jeopardy Clause of the Fifth Amendment.⁶ The conviction and sentence for unauthorized use of a vehicle were therefore unconstitutional and we remanded to the trial court with instructions that they be vacated.

Our conclusion in Arnold was arrived at by looking at the facts of the case rather than by limiting our analysis to "abstract consideration of the statutes involved." 467 A.2d at 139 (quoting Hall v. United States, 343 A.2d 35, 39 (D.C. 1975)). This factual appraisal was necessary because we recognized that in some circumstances "it is possible that a conviction for grand larceny might be had without proof of this particular element of unauthorized use." Arnold, supra, 467 A.2d at 139. An examination of the factual record before us here is accordingly required in order for us to determine whether appellant's conviction for unauthorized use of a vehicle merged with the more serious offense of grand larceny while armed.

In this regard, the record is crystal clear. Both offenses arose out of the same fact pattern; there was nothing in appellant's unlawful use of a vehicle conviction that was not also used as proof of the grand larceny while armed. Under our holding in Arnold, we have no choice but to conclude that appellant's unlawful use of a vehicle conviction violated his Fifth Amendment guarantee against double jeopardy, and that the resulting eighteen to fifty-four months sentence of consecutive imprisonment meted out by the trial court was unconstitutional.

III

The government concedes the unconstitutionality of the consecutive sentence of imprisonment, acknowledging, with admirable candor, "that the facts of this case cannot meaningfully be distinguished from Arnold. But even so," it continues less generously, "appellant's claim must fail." The sole justification urged for keeping appellant incarcerated pursuant to an unconstitutional sentence is that this precise issue has been decided adversely to appellant on his direct appeal. The decision in Arnold, the government admits, would otherwise control.

In support of this position, the government cites M.A.P. v. Ryan, 285 A.2d 310 (D.C. 1971), in which we announced that "[a]s a matter of internal policy, we have adopted the rule that no division of this court will overrule a prior decision of this court . . . and that such result can only be accomplished by this court en banc." Id. at 312 (footnote omitted). Our Internal Operating Procedures (IOPs) echo this policy: "To avoid conflicts in division decisions and to preserve stability of the court's decisions, no subsequent division may overrule a published opinion of a previous division. En banc consideration is required to overrule a previous decision of the court. . . ." D.C.App. IOP § VIII H (1985). Because our prior rejection of appellant's merger contention was by way of an unpublished opinion, which does not normally constitute binding authority, the government also refers us to another provision in our IOPs:

Decisions designated as not for publication shall not be cited to the court in any material prepared for the court except when the opinion is relevant under the doctrines of the law of the case, res judicata or collateral estoppel, or in a criminal action or proceeding involving the same defendant. . . .

Id. § IX C (emphasis added). The combined effect of M.A.P. v. Ryan and IOP §§ VIII H and IX C, argues the government, precludes this division — though, strangely, not the Superior Court — from considering the acknowledged unconstitutionality of appellant's sentence of imprisonment. Having unsuccessfully raised the merger issue on direct appeal, the argument goes, appellant must live with his defeat unless he can point to intervening authority from the Supreme Court or else persuade us to revisit the matter en banc.⁷

The government, in making this argument, ignores the purpose behind our rule that one division cannot overrule another. The rule is designed to preserve uniformity in the decisions of this court. Arnold did not undermine that policy because its double jeopardy interpretation ran counter to no published opinion on the same point. Yet the government contends that a division such as this should disregard our otherwise binding decision in that case and thus rule differently from every other division that has confronted the issue since publication of Arnold.⁸ Instead, the government contends, we are bound to follow a prior unpublished decision which cannot be cited in any case other than the present. In our view the ideal of uniformity in the decisions of this court, as expressed in M.A.P. v. Ryan and our IOPs, is defied by the government's position.⁹

The government also fails to comprehend the true nature of a collateral attack. One primary purpose of § 23-110 is to enable convicted prisoners to escape the shackles of res judicata when constitutional rights have been violated or other illegalities have occurred in their sentencing. By its very definition, a collateral attack on a tainted sentence involves a challenge to the decision of the court that has previously adjudicated the issue. Despite this fact, § 23-110 requires ...