Lennon v. US

• Decision Date: 15 July 1999
• Docket Number: No. 97-CM-1334., No. 97-CM-1240
• Citation: 736 A.2d 208
• Parties: George LENNON, Appellant, v. UNITED STATES, Appellee.
• Court: D.C. Court of Appeals

736 A.2d 208

George LENNON, Appellant, v. UNITED STATES, Appellee.

Nos. 97-CM--CM-1334.

District of Columbia Court of Appeals.

Argued May 5, 1998.

Decided July 15, 1999.

John A. Briley, Jr., appointed by the court, for appellant.

Matthew L. Levine, Assistant United States Attorney, with whom Wilma A. Lewis, United States Attorney, and John R. Fisher and Kristina L. Ament, Assistant United States Attorneys, were on the brief, for appellee.

Before WAGNER, Chief Judge, and TERRY and REID, Associate Judges.

TERRY, Associate Judge.

Appellant was convicted of two counts of failure to appear in court when required, in violation of D.C.Code § 23-1327 (1996), commonly known as the Bail Reform Act (BRA). In these consolidated appeals from the two convictions, appellant contends that the trial court erred in denying his motion to dismiss one of the counts on the ground that the two charges violated the Double Jeopardy Clause of the Fifth Amendment. We agree, and thus we affirm one conviction and reverse the other.

I

On July 4, 1996, appellant was charged in a felony complaint with one count of assault with a dangerous weapon (ADW).¹ The court scheduled a preliminary hearing for July 24 and released him on his own recognizance after he signed a written notice to return on that date. When appellant did not show up for the preliminary hearing, the court issued a bench warrant for his arrest. He was arrested on that warrant on October 7, and soon thereafter the government obtained a felony indictment against him for failing to appear in court on July 24.² On March 26, 1997, the government reduced the charges by filing a misdemeanor assault information in the ADW case and dismissing the felony complaint, and by also filing a misdemeanor BRA information in the separate BRA case in lieu of the felony indictment. At a status hearing on April 4, at which appellant was present, the trial court consolidated the two new misdemeanor charges (assault and BRA) under Super. Ct.Crim. R. 13. At that point, therefore, appellant had two misdemeanor charges against him awaiting trial.³

The court then continued the status hearing until April 30. After signing a single "Notice to Return to Court" form containing the case numbers of both of the underlying charges, appellant was released without bond. When he did not appear on April 30, the court issued a second bench warrant for his arrest. On May 19 the government filed two additional BRA informations, charging appellant separately with failure to appear on April 30 in the assault case and the original BRA case. After his arrest on the new bench warrant, appellant filed a motion to dismiss one of the new charges as multiplicitous, arguing that because he failed to appear for a single hearing, he therefore committed only one BRA violation and could not be punished twice for it. The court denied the motion, and the case went to trial without a jury. At the conclusion of the defense case, the government dismissed the original BRA information (see note 3, supra), and appellant was convicted of two BRA violations for his failure to appear on April 30. The court suspended the imposition of sentence in each case, and appellant filed separate notices of appeal from the two convictions. We later consolidated the two appeals.

II

The sole issue before us is whether appellant's two convictions, resulting from his failure to appear at a single hearing, violate the Double Jeopardy Clause. It is well settled that the Double Jeopardy Clause "protects against multiple punishments for the same offense." North Carolina v. Pearce, 395 U.S. 711, 717, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969); accord, e.g., Gardner v. United States, 698 A.2d 990, 1002 (D.C.1997)

. However, the function of the Double Jeopardy Clause in a case such as this "is limited to assuring that the court does not exceed its legislative authorization by imposing multiple punishments for the same offense." Brown v. Ohio, 432 U.S. 161, 165, 97 S.Ct. 2221, 53 L.Ed.2d 187 (1977); accord, Byrd v. United States, 598 A.2d 386, 388-389 (D.C.1991) (en banc). There is therefore no double jeopardy violation when the legislative intent is to impose more than one punishment for the same criminal act. Missouri v. Hunter, 459 U.S. 359, 368-369, 103 S.Ct. 673, 74 L.Ed.2d 535 (1983); Freeman v. United States, 600 A.2d 1070, 1071 (D.C.1991).

Thus in this case, in which appellant received multiple punishments under a single statute for a single act,⁴ our role is to determine what the legislature intended to be the allowable "unit of prosecution." Bell v. United States, 349 U.S. 81, 83, 75 S.Ct. 620, 99 L.Ed. 905 (1955); see Dunham v. District of Columbia, 442 A.2d 121, 124-125 (D.C.1982)

. We must ascertain whether the legislative intent behind D.C.Code § 23-1327 is to punish the single act of failing to appear for a unitary court proceeding or the two separate acts of not appearing for trial on each underlying charge. Appellant contends that the prohibited offense is the failure to appear in court, regardless of how many underlying charges may have been consolidated into a single proceeding; therefore, according to appellant, he can be charged with, and convicted of, only one violation of D.C.Code § 23-1327. The government argues, on the other hand, that the proscribed act is the failure to appear for trial on each of the underlying charges in a consolidated case. Thus, the government maintains, because appellant faced two charges when he failed to appear at the April 30 status hearing, he could properly be charged with, and convicted of, two counts of failure to appear.

In interpreting any statute, we look first to its plain meaning, and "[i]f the meaning of [the] statute is plain on its face, resort to legislative history or other extrinsic aids to assist in its interpretation is not necessary." United States v. Young, 376 A.2d 809, 813 (D.C.1977); see Burgess v. United States, 681 A.2d 1090, 1095 (D.C. 1996)

; Citizens Ass'n of Georgetown v. District of Columbia Board of Zoning Adjustment, 642 A.2d 125, 128 (D.C.1994) (citing cases). Moreover, we construe the words of the statute "according to their ordinary sense and with the meaning commonly attributed to them." Davis v. United States, 397 A.2d 951, 956 (D.C.1979).

The relevant portion of section 23-1327 reads as follows:

(a) Whoever, having been released under this title prior to the commencement of his sentence, willfully fails to appear before any court or judicial officer as required, shall ...

(1) if he was released in connection with a charge of felony ... be fined not more than $5,000 and imprisoned not less than one year and not more than five years, [or]

(2) if he was released in connection with a charge of misdemeanor, be fined not more than the maximum provided for such misdemeanor and imprisoned for not less than ninety days and not more than 180 days ....

The government, citing the penalty provisions, contends that the statutory language shows that the unit of prosecution is the individual charge for which the defendant failed to appear. It argues that because the statute sets the penalty for a violation according to whether the defendant was released "in connection with a charge of felony [or] . . . a charge of misdemeanor," Congress intended the unit of prosecution to be the underlying charge or charges for which the defendant failed to appear.

We read the statute differently. As we see it, the essence of the offense is found in the first clause of the statute specifying the prohibited act, not in the ensuing penalty provisions. The criminal act which the statute prohibits is "willfully fail[ing] to appear ... as required" after having been released. Thus we agree with appellant that the prohibited act, or "unit of prosecution," is the willful failure to appear at the time and place specified by the court.⁵ It follows that a defendant who fails to appear for a single court proceeding may be convicted of only one violation of D.C.Code § 23-1327.

The government relies on two state cases, People v. Albarran, 40 Ill.App.3d 344, 352 N.E.2d 379 (1976), and State v. Richter, 189 Wis.2d 105, 525 N.W.2d 168 (Ct.App.1994), but we find them both distinguishable. In Albarran the defendant was released on two separate bonds and failed to appear for trial. He was subsequently charged with and convicted of two counts of bail jumping.⁶ On appeal he contended that the two convictions arose from "one course of conduct" and therefore were violative of the Double Jeopardy Clause. 40 Ill.App.3d at 347, 352 N.E.2d at 382. The court rejected his argument because he had been admitted to bail on two separate complaints, failed to appear on both, and therefore committed two separate acts of bail jumping. Similarly, in Richter the defendant was released on three separate bonds and was convicted of three counts of bail jumping after he made a single phone call in violation of a condition of each of his three bonds.⁷ The court, concluding that the defendant had violated three bond agreements and thus had committed three separate criminal acts, rejected his contention that the three convictions violated the Double Jeopardy Clause.⁸ For unit of prosecution purposes, each defendant committed a separate act when he violated the terms of a particular bail bond. In the present case, however, appellant was not admitted to bail, but was released on his personal recognizance after he signed a single notice to appear. More significantly, the statute under which he was convicted specifically proscribes failing to appear in court as required, whereas the statutes in Albarran and Richter proscribed violating the terms of a bond agreement. Therefore, we do not find either Albarran or Richter to be of any particular relevance to this case.⁹

The present case is more like McGee v. State, 438 So.2d 127 (Fla.Dist.Ct.App. 1983). Although the defendant in McGee was also released on bail, there was a single bond for multiple...