Southall v. US, 95-CO-1007

• Decision Date: 30 July 1998
• Docket Number: No. 95-CO-1007,96-CO-1858.,95-CO-1007
• Citation: 716 A.2d 183
• Parties: Johnny Ray SOUTHALL, Appellant, v. UNITED STATES, Appellee.
• Court: D.C. Court of Appeals

716 A.2d 183

Johnny Ray SOUTHALL, Appellant, v. UNITED STATES, Appellee.

Nos. 95-CO-1007, 96-CO-1858.

District of Columbia Court of Appeals.

Submitted October 9, 1997.

Decided July 30, 1998.

David Jonathan Sitomer, filed a brief for appellant in No. 95-CO-1007.

Rufus W. McKinney, Jr., filed a brief for appellant in No. 97-CO-1858.

Eric H. Holder, Jr., United States Attorney at the time the brief was filed, and John R. Fisher, Thomas J. Tourish, Jr., and Stuart G. Nash, Assistant United States Attorneys, were on the brief, for appellee.

Before WAGNER, Chief Judge, FARRELL and KING, Associate Judges.

WAGNER, Chief Judge:

Appellant, Johnny Ray Southall, was indicted for first degree burglary (D.C.Code § 22-1801(a) (1996)), aggravated assault while armed (shovel) (D.C.Code §§ 22-504.1, -3202), mayhem while armed (shovel) (D.C.Code §§ 22-506, -3202), and threatening to injure a person (D.C.Code § 22-2307). He entered pleas of guilty to the lesser-included offenses of second degree burglary and aggravated assault, and the government dismissed the remaining charges at the time of sentencing. The trial court sentenced Southall to consecutive terms of incarceration of four to twelve years on the burglary count and three to nine years on the aggravated assault count. The court also ordered Southall to pay restitution to the victim in the amount of $2015.75 "to be taken from any and all earnings while incarcerated," designed to "compensate ... the victim for her pain and suffering and medical expenses." In his direct appeal from the trial court's order denying his motion to reduce sentence, Southall argues that the trial court erred in imposing a sentence which included a restitution order to compensate the victim, in part, for pain and suffering and in requiring that all of his income be used to discharge the restitution obligation. In his collateral appeal, Southall challenges the trial court's denial of his motion to withdraw guilty plea. We affirm the trial court's decision, except that we remand for resentencing consistent with this opinion.

I. Procedural Background

Southall was charged originally by complaint on October 24, 1994, with first degree burglary while armed. Following a preliminary hearing on October 26, 1994, he was held without bond pursuant to D.C.Code § 23-1322(b).¹ On November 17, 1994, his original attorney was granted leave to withdraw. Michael Frucci was appointed trial counsel, and a status hearing was set for December 27, 1994. At the status hearing, the case was continued for a further status hearing, and a tentative trial date was set for January 23, 1995. In the interim, on January 18, 1995, Southall was indicted in this case on the charges of first degree burglary (with intent to commit an assault), aggravated assault while armed, mayhem while armed, and threatening to injure a person. Southall was arraigned on the indictment on January 25, 1995. At the time of the arraignment, Mr. Frucci reported to the court that Southall had requested that he withdraw as counsel. After considering each of Southall's complaints about Mr. Frucci's representation, the trial court denied the request.² With Southall's consent, defense counsel requested, and the court granted, a continuance of the trial date until February 27, 1995.

On the scheduled trial date, defense counsel requested a continuance, contending that there was an essential eyewitness whose name Southall had not been able to provide until five days before the trial date.³ Counsel explained further that his investigator had searched for several days, but was unable to locate the witness. Counsel represented further that Southall had given an address only the day before "where the witness might be located."⁴ The court requested a proffer of the witness' expected testimony, and defense counsel proffered that

right from the beginning of the case ... Mr. Southall has told me ... that there was another individual in the room with the complaining witness and that they were involved in sexual intercourse.

That Mr. Southall came into the room and a fight ensued between him and the other man. And that in the—the complaining witness tried to get between them and in the process was injured but he didn't strike her intentionally, he didn't know if he struck her or the other gentleman.

Counsel also stated that the witness, the man in the apartment with the complainant at the time, would testify that someone else broke the window. Defense counsel explained that Southall had a key with which he let himself into the premises. The trial court denied the motion for continuance and called for a jury, stating: "After giving due consideration to the proffer of evidence, the Court has determined that in the interest of justice it requires that this case proceed."

At the beginning of the hearing, in response to the court's inquiry, defense counsel represented that his relationship with his client seemed fine and that Southall had not mentioned any problems when he saw him the previous day. However, after the court's denial of the request for continuance of the trial, defense counsel stated that Southall wanted him to seek to withdraw as counsel. The trial court rejected the request, stating that it had already explored those issues with him. After a forty minute recess, a venire panel was brought to the courtroom, and defense counsel then reported that Southall had agreed to accept the government's plea offer

II. The Direct Appeal (Case No. 95-CO-1007)

A.

Preliminarily, the government argues that the court lacks jurisdiction to entertain Southall's direct appeal, in which he challenges the restitution order, because it was filed untimely. Unless otherwise specified, a notice of appeal in a criminal case must be filed within thirty days after the entry of the order or judgment from which the appeal is taken. D.C.App. R. 4(b)(1). This time period may be extended by the trial court for a period not to exceed thirty additional days for "excusable neglect." D.C.App. R. 4(b)(3). The court has no jurisdiction to consider appeals filed outside these time limits. Bratcher v. United States, 604 A.2d 858, 859 (D.C.1992).

The trial court sentenced Southall on April 18, 1995, and he did not note an appeal from his sentence until July 11, 1995, which is well beyond the thirty day period prescribed by Rule 4(b)(1), and even beyond any extension of time which might have been obtained under Rule 4(b)(3). Thus, this court has no jurisdiction to review the judgment and sentence imposed on April 18, 1995. See id.

However, Southall timely filed a document questioning the restitution component of his sentence, which the trial court construed as "a motion for modification of sentence" under Rule 35, and denied in an order signed on June 8, 1995. Although the order was signed on June 8, it was not filed and mailed to the parties until June 12, 1995. The notice of appeal from that order was filed on July 11, 1995, twenty-nine days later, within the jurisdictional time limit. Southall's written submission to the trial court may properly be considered a challenge to the correctness of the restitution element of his sentence, and we hold that the denial of that motion is properly before us for review. See Super. Ct.Crim. R. 35(a).⁵

B.

Southall argues that the trial court erred in setting a restitution amount to compensate the victim for pain and suffering. In its order denying the motion for reconsideration of sentence, the trial court stated as its reasons that the amount ordered as restitution "will serve as some compensation to the victim for her pain and suffering and medical expenses." In a criminal case, the trial court may order the convicted defendant to pay restitution, "in addition to any other sentence imposed as a condition of probation or as a sentence itself." D.C.Code § 16-711(a) (1997). The trial court has broad discretion in imposing a restitution order under the statute. Sloan v. United States, 527 A.2d 1277, 1290 (D.C.1987). However, we have interpreted this statute as excluding from restitution amounts any damages which are not readily measureable, such as pain, disfigurement, suffering and anguish. Id. "These damages are generally not properly part of a criminal proceeding, but are left to a more exacting determination in a civil proceeding, where the primary purpose is compensation of the victim." Id. (citing State v. Stalheim, 275 Or. 683, 552 P.2d 829, 831 (1976)). Therefore, in providing restitution to compensate the victim for pain and suffering in this case, the trial court considered an impermissible element. To that extent the sentence was illegal and correctible by a motion under Rule 35(a). See, e.g., Robinson v. United States, 454 A.2d 810, 813 (D.C.1982) (Rule 35(a) motion lies to correct sentence imposed beyond court's statutory authority). Therefore, we must remand to the trial court for resentencing.⁶

III. The Collateral Appeal (Case No. 97-CO-1858)

A.

In his collateral appeal, Southall challenges the trial court's denial of his post-sentencing motion to withdraw his guilty plea filed pursuant to Super. Ct.Crim. R. 32(e) and D.C.Code § 23-110(c). A motion to withdraw guilty plea after sentencing is tested under a high standard; it will be granted to prevent manifest injustice. Super. Ct. Crim. R. 32(e);⁷ Williams v. United States, 656 A.2d 288, 293 (D.C.1995).

A guilty plea may be withdrawn after sentencing only if the defendant affirmatively establishes that the trial court's acceptance of his or her plea was manifestly unjust, and that the plea proceeding was fundamentally flawed such that there was a complete miscarriage of justice.

Id. (quoting (Linda) Johnson v. United States, 631 A.2d 871, 874 (D.C.1993)). Motions testing the voluntariness of a guilty plea under D.C.Code § 23-110 are subject to the same standard. McClurkin v. United States, 472 A.2d 1348, 1352 (D.C.), cert. denied, 469 U.S. 838, 105 S.Ct. 136, 83 L.Ed.2d 76...