United States v. Stokes, 10159.

• Decision Date: 21 October 1976
• Docket Number: No. 10159.,10159.
• Citation: 365 A.2d 615
• Parties: UNITED STATES, Appellant, v. Louis J. STOKES, Jr., a/k/a Phillip L. Willis, Appellee.
• Court: D.C. Court of Appeals

365 A.2d 615

UNITED STATES, Appellant, v. Louis J. STOKES, Jr., a/k/a Phillip L. Willis, Appellee.

No. 10159.

District of Columbia Court of Appeals.

Argued May 11, 1976.

Decided October 21, 1976.

Bernard J. Panetta, II, Asst. U. S. Atty., Washington, D.C., with whom Earl J. Silbert, U. S. Atty., John A. Terry, Charles E. Wagner, Joseph B. Valder and David R. Addis, Asst. U. S. Attys., Washington, D.C., were on the brief, for appellant.

Fred C. Timberlake, Washington, D.C., appointed by the court, for appellee.

Before KELLY, FICKLING and NEBEKER, Associate Judges.

KELLY, Associate Judge:

The government here appeals the imposition of a sentence under the Federal Youth Corrections Act, 18 U.S.C. § 5005 et seq. (Youth Act), upon appellee Stokes following his conviction of first-degree felony murder, D.C.Code 1973, § 22-2401.¹ Appellee's convictions of first-degree felony murder, second-degree murder armed robbery and carrying a pistol without a license,² stemmed from his participation in a supermarket robbery during which he shot and killed store clerk Harry Bronfin. Concurrent sentences under the Youth Act ranging up to twenty-three years were imposed with a recommendation by the trial judge that appellee be incarcerated a minimum of four years.³ The issue presented for review, aside from the question of this court's jurisdiction, is whether by reason of the mandatory language of D.C.Code 1973, § 22-2404⁴ a trial judge lacks discretion to sentence an individual convicted of first-degree murder under the Youth Act.⁵

I

There must be an initial determination whether the government may appeal a sentencing order pursuant to D.C.Code 1973, § 11-721(a)(1),⁶ which gives this court jurisdiction of appeals from "all final orders and judgments of the Superior Court of the District of Columbia."⁷ As a point of departure, we note that in Carroll v. United States, 354 U.S. 394, 400, 77 S. Ct. 1332, 1 L.Ed.2d 1442 (1957), the Supreme Court stated: "[A]ppeals by the Government in criminal cases are something unusual, exceptional, not favored. . . ." It held that absent express statutory authority, the government may only appeal those adverse decisions which either terminate a prosecution or "possess sufficient independence from the main course of the prosecution to warrant treatment as plenary orders. . . ." Id. at 403, 77 S.Ct. at 1338. With respect to collateral orders which are appealable by virtue of their distinctive character, the Court noted that the only criminal order which it had held appealable under this category was an order setting the amount of bail. Ibid., citing Stack v. Boyle, 342 U.S. 1, 72 S.Ct. 1, 96 L.Ed. 3 (1951). Reference was made to earlier cases which permitted appeals of certain orders relating to the suppression or return of illegally seized property where the motion was distinct from the main course of the prosecution because it was made prior to indictment, or in a different district from that in which the trial occurred, or after dismissal of the case, or where the emphasis of the motion was on the return of property rather than the suppression of evidence. Id., 354 U.S. at 403, 404, 77 S.Ct. 1332.

A sentencing order, of course, has none of the independent characteristics noted above. Representing as it does the culmination of a successful prosecution, it can be regarded neither as independent of that prosecution nor as terminating the prosecution for purposes of ascertaining its appealability by the government. Accord, United States v. Lane, 284 F.2d 935, 938 (9th Cir. 1960). Therefore, acceding to the government's alternative request,⁸ we proceed to the merits of this appeal by regarding the government's brief as a petition for a writ of mandamus, a recognized means of reviewing an allegedly unauthorized sentence. Ex parte United States, 242 U.S. 27, 37 S.Ct. 72, 61 L.Ed. 129 (1916); United States v. Lane, supra. See also United States v. Braman, D.C.App., 327 A.2d 530 (1974).

II

In United States v. Howard, 146 U.S.App.D.C. 10, 449 F.2d 1086 (1971), faced with the precise question before us, the United States Circuit Court concluded that an individual convicted of first-degree felony murder before reaching age twenty-two was eligible to receive a Youth Act sentence.⁹ While, as the government notes, this decision is not binding on this court, M.A.P. v. Ryan, D.C.App., 285 A.2d 310 (1971), we nevertheless believe that Howard was correctly decided and accordingly reach the same result.

As noted above, Congress in 1962 provided that first-degree murder in the District of Columbia be punishable by death or life imprisonment. D.C.Code 1973, § 22-2404. The government argues forcefully that having taken this step, Congress could not have intended to extend the liberalized sentencing provisions of the Youth Act¹⁰ to this offense when in 1967 it acted to make the Act applicable to District of Columbia Code of offenses.¹¹ Unfortunately, the legislative history of these enactments offers no guidance for the resolution of their potential conflict. But the government suggests a number of ways in which Congress may be viewed to have indirectly expressed an intent that those convicted of first-degree murder in the District be excepted from Youth Act coverage.

Initially, the government urges that first-degree murder should not be regarded as an "offense . . . punishable by imprisonment" for purposes of Youth Act eligibility, because at the time the Act was made applicable to District of Columbia Code offenses first-degree murder was punishable by death as well as life imprisonment.¹² In our view, however, the literal meaning of the phrase "offense . . . punishable by imprisonment" clearly embraces an offense for which life imprisonment is an alternative punishment. And in the absence of persuasive evidence to the contrary, we are not empowered to look beyond the plain meaning of a statute's language in construing legislative intent. See Boston Sand & Gravel Co. v. United States, 278 U.S. 41, 48, 49 S.Ct. 52, 73 L.Ed 170 (1928).

The government contends next that even assuming first-degree murder can be regarded as "offense . . . punishable by imprisonment" for purposes of Youth Act coverage, the mandatory language of D.C.Code 1973, § 22-2404 must prevail as the clearest expression of legislative intent. It argues that to allow the option of Youth Act sentencing for those convicted of first-degree murder would be tantamount to carving an exception into D.C.Code 1973, § 22-2404 unintended by Congress. This argument, however, can be advanced with equal plausibility in support of the statutory construction the government opposes. Because, to the extent that the provisions of 18 U.S.C. § 5010(b) (1970) and D.C.Code 1973, § 22-2404 are in direct conflict, the result we reach must necessarily involve the "carving of a statutory exception" not expressly contemplated by Congress. Furthermore, the government's contention implies that had Congress intended to make Youth Act treatment available to those convicted of first-degree murder, it would have incorporated this exception into D.C.Code 1973, § 22-2404 at the time of its enactment in 1962. Congress, of course, had no reason to take into account the possibility of Youth Act sentencing for first-degree murder at that time, because, as noted supra, the Act was not made applicable to District of Columbia Code offenses until 1967.

We think it is more logical to assume that had Congress intended the exclusion of first-degree murder from Youth Act coverage, this intent would have been expressed at the time the provisions of the Act were fully extended to the District of Columbia. Instead, Congress merely provided: This chapter [the Youth Act] shall apply . . . in the District of Columbia." 18 U.S.C. § 5024.

In one instance where it has been the intent of Congress to limit the scope of a statute which afforded a liberalized sentencing alternative, the limitation has been expressly provided in the statutory language. This statute, 18 U.S.C. § 4209, enacted in 1958, makes Youth Act treatment available to "young adult offenders" ages twenty-two through twenty-five. The Act by its terms "[does] not apply to any offense for which there is provided a mandatory penalty."¹³

The government relies on United States v. Lane, 284 F.2d 935 (9th Cir. 1960), to support its contention that Congress' intent may be apparent, and thus controlling, even though not specifically expressed. In Lane, the court held that an individual convicted of a narcotics offense¹⁴ before reaching the age of twenty-two was nevertheless ineligible to receive a suspended sentence pursuant to 18 U.S.C. § 5010(a) because of the mandatory sentencing provisions¹⁵ applicable to this offense. It noted that there was "solid support" in the legislative history of the statute in question for the conclusion that its enactment effected an implicit repeal of 18 U.S.C. § 5010(a) with respect to the sentencing of certain narcotics offenders. Id. at 940. The court quoted a congressional committee report which stated that the legislation was specifically aimed at deterring the recruitment of young persons as narcotics couriers. Ibid. By contrast, as noted above, we find no such direct evidence of intent to exclude young offenders convicted of first-degree murder of from coverage under the Youth Act.

Finding the provisions of D.C. Code 1973, § 22-2404 and 18 U.S.C. § 5010(b) to be in direct conflict with respect to the sentencing of young offenders convicted of first-degree murder, we are compelled to adopt a construction of these statutes which imposes the more lenient punishment. Bell v. United States, 349 U. S. 81, 83, 75 S.Ct. 620, 99 L.Ed 905 (1955); United States v. Universal C.I.T. Credit Corp., 3-14 U.S. 218, 221-22, 73 S.Ct. 227, 97 L.Ed 260 (1952); United States v. Howard, supra, 146 U.S.App.D.C. at 19, 449 F.2d at 1095 (MacKinnon, J., concur ring). Our position is not unlike that of the Supreme...