Allen v. United States

MACK, Associate Judge,

dissenting:

The majority’s position, stated simply, is that in ruling on Allen’s direct appeal a division of this court did consider Allen’s claim that two of the offenses charged in the indictment merged, 1 and rejected this claim, finding no plain error. The court also holds that even if the division had not considered this issue, Allen would have been foreclosed from raising it subsequently by way of a Rule 35 motion. Since I believe that the first conclusion is wrong as a matter of fact, and the second as a matter of law, I must dissent.

Allen was convicted of, inter alia, assault with intent to commit robbery — while armed with an imitation pistol — and assault with a deadly weapon (using the same imitation pistol). Under our case law, normally these two offenses would merge, requiring vacation of one of the convictions. E.g., Leftwich v. United States, 460 A.2d 993 , 997 & n. 3 (D.C.1983). Instead, the trial court imposed consecutive sentences.

On his direct appeal Allen urged this court to reverse and remand to the trial court with instructions to vacate one of the convictions. The government maintained that by charging Allen separately with assault with intent to commit robbery while armed (AWICRw/A) and assault with a dangerous weapon (ADW), it intended to refer to separate confrontations between Allen and the complainant, and that consecutive sentences were appropriate because the government had introduced distinct evidence in support of each count. The government so claimed even though the indictment makes no such distinction between the two counts, and the judge did not instruct the jury that each count was supported by separate facts. Allen contended that from the face of the indictment and the jury verdict there is no way to be sure that the jury understood that the two counts referred to separate incidents; and given the fact that no attempt was made by the trial court to separate out for the jury the evidence relating to each count, by way of an instruction, the jury may well have simply cumulated the evidence and returned verdicts of guilty on the two counts based on the same evidence. In those circumstances, the imposition of consecutive sentences on the two counts was error. The government responded that the burden was upon Allen to seek an instruction that would insure that the jury understood that separate incidents were involved. It urged the division on direct appeal to find no plain error in the trial court’s failure sua sponte so to instruct the jury.

*1155 In a Memorandum Opinion and Judgment affirming Allen’s conviction, this court refused to grant the requested relief, on the following grounds:

We do not reach the suggestion of whether the conduct involved in the two charges was “separate and distinct,” thus permitting conviction on each under Bates v. United States, 327 A.2d 542 (D.C.1974). Appellant has raised this issue for the first time on appeal and we thus need not and do not consider it.

By its plain language the division indisputably — and erroneously — decided that it did not even have to entertain Allen’s claim. The majority’s conclusion to the contrary here — that by use of the language “we thus need not and do not consider” the issue, what the division meant to say is that it actually had considered the claim but rejected it — is certainly convenient, but turns clear language on its head. 2 Since, according to the majority, this court disposed of the claim on the merits on the direct appeal, there is no avenue open to Allen for a collateral attack upon the sentence or the underlying convictions on this basis. Resting upon a faulty premise, this jerry-built conclusion is both unsound and unfair.

The majority goes on to say that even if the issues had not been addressed by the division in its opinion on the direct appeal, this court could not now consider it in any event, because Allen has used the wrong vehicle to raise the question. Allen challenged the imposition of consecutive sentences for the AWICRw/A and ADW convictions by way of a Rule 35(a) “motion to correct illegal sentence” filed with his sentencing judge following his direct appeal. In its discussion of this issue, the majority does not mention our decision in Harling v. United States, 460 A.2d 571, 572, 574 (D.C.1983), in which we entertained a challenge by way of an appeal from a denial of a Rule 35 motion to the imposition of consecutive sentences for ADW and armed robbery, and we vacated the ADW conviction. The majority distinguishes a multitude of similar cases, stating that they all involved dual convictions based on a single act. This is a distinction without a difference, since this is precisely what Allen is contending — that an uninstructed jury returned two convictions based upon a single, undifferentiated, mass of evidence, and very possibly upon a single event, and that the two convictions therefore merged. The idea that we may only entertain these merger questions through the vehicle of a Rule 35 motion when the government concedes in advance that the evidence is undifferentiated, which the majority seems to imply by its holding, not only is unworkable but would require mind-reading skills from the defendant and his counsel.

Putting aside the question of the appropriateness of the Rule 35 vehicle, it is indisputable that we are not bound by the title of the motion and that we may consider it as filed under our collateral attack statute, D.C. Code § 23-110 (1981). We interpret that statute by reference to the parallel federal law, 28 U.S.C. § 2255 (1982), 3 and in construing that law the Supreme Court has held that a cognizable claim incorrectly asserted by way of a Rule 35 motion must be considered by the court under the collateral attack statute instead, for “in this area of the law ... ‘adjudication upon the underlying merits of claim is not [to be] hampered by reliance upon the titles petitioners put upon their documents.’ ” Andrews v. *1156 United States, 373 U.S. 334, 338 , 83 S.Ct. 1236, 1239 , 10 L.Ed.2d 383 (1963) (holding that lower court was obliged to consider motion filed under Rule 35 as filed under § 2255, rather than reject it). 4 Because Allen contends that the consecutive sentences imposed here by the trial court were based on a single event, or series of events, he may attack his sentence under our collateral attack statute as “imposed in violation of the Constitution of the United States or the laws of the District of Columbia” or as “in excess of the maximum authorized by law,” D.C. Code §§ 23-110 (a)(1), -110(a)(3). Since this is not a case in which the appellant failed to raise the issue on his direct appeal, but instead presents a unique case of erroneous failure by this court to consider an asserted claim, I believe that the correct standard of review at this point must be the “plain error” standard rather than some more stringent test.

Reaching the merits, the conclusion is inescapable that the jury was given no hint that the AWICRw/A and ADW counts represented separate incidents. As the majority notes, the issue here “involves a matter of proof,” supra at 1150; and the government contends that after adducing proof of two incidents for the jury — an initial assault in the complainant’s hallway with an imitation pistol, followed by a second, later assault with the pistol, along with a coat hanger and an axe — it connected each incident separately to the AWICRw/A and ADW counts. In other words, the government maintains that it was clear to the jury that the AWICRw/A count referred only to the first assault where only an imitation pistol was used, and that the ADW count referred to the incident a few minutes later, in which multiple weapons were used. A review of the record reveals not only that this assertion is false, but that the government’s presentation confused even the trial judge, who based his instructions to the jury on both the AWICRw/A and ADW counts on the same underlying evidence until corrected by the government. At the risk of being tedious, I think it necessary to detail the circumstances surrounding what the majority describes as a mere “instructional error.” In explaining the AWICRw/A count, the trial judge said:

Now, here, ladies and gentlemen, the Government relies upon several types of assaults, the striking with the pistol or the imitation pistol, the alleged striking with the ax, the hanger. [Y]ou may consider in regards to this charge whether any weapon was used....

The government then objected, stating that it intended the AWICRw/A to encompass only assault with an imitation pistol, and that the indictment mentioned only an imitation pistol as the weapon used in this count. An imitation pistol was used in both incidents, however, and the government’s objection to the court’s instruction was not based on the fact that the AWICRw/A count was intended only to encompass the “first” assault. Moreover, it is plain from the trial judge’s response and his corrected instruction that he did not understand the government to be objecting on this basis. The court first correctly noted that the AWICRw/A count in the indictment is “ambiguous”; it does not refer to the first assault and it plausibly could be read to encompass both assaults, inasmuch as the language used is assault with intent to commit robbery while “armed with a dangerous weapon, that is, an imitation pistol.” As the Judge pointed out, the indictment “doesn’t necessarily say that the assault was committed with a pistol.” It could be read to cover assaults with other weapons, as the Judge initially construed it, and therefore to cover the second of the government’s two incidents as well, where weapons other than an imi *1157 tation pistol were employed. The court went on to instruct the jury as follows:

[SJince this is the Government’s indictment, I will modify my instructions with respect to the assault to commit robbery while armed. The Government is contending, ladies and gentlemen, on this count, that the assault — or, it’s pitching its case on the assault solely on the use of the pistol, no other weapon, with respect to this particular charge.... Now, I’m constrained to tell you, therefore, that with regard to assault with intent to commit robbery while armed, this charge does not include the use of any other weapon or instrumentality. So, it must stand or fall on the use of the pistol or the imitation pistol.

It is apparent that the court at this point was still laboring under what the government must term a “misconception”: that the AWICRw/A count encompassed the entire sequence of events, involving separate assaults with three different weapons, but that the government had chosen for some reason to “stand or fall” on the use of the imitation pistol — whether during the “first” or “second” assault — in this count. The court’s “confusion” on the question of the relation of the AWICRw/A count to the evidence, however, was a true reflection of an ambiguous indictment and an ambiguous presentation by the government. In addition, the court’s understanding of the government’s case, as reflected in its instructions, mirrors the jury’s likely misper-ception of the relationship between the counts and the evidence.

In considering claims identical to Allen’s, we have held that although two convictions of this type would normally merge as a matter of law, we will not find merger if two conditions are satisfied: first, the two counts in the government’s indictment must clearly charge the defendant with criminal acts arising out of two distinct incidents; and second, the trial court must instruct the jury that the two counts represent independent offenses, distinct in time and circumstances. Davis v. United States, 367 A.2d 1254, 1270 (D.C.1976), cert. denied, 434 U.S. 847 , 98 S.Ct. 154 , 54 L.Ed.2d 114 (1977); see Bates v. United States, 327 A.2d 542, 547 (D.C.1974); Dixon v. United States, 320 A.2d 318, 321 (D.C.1974). This approach is necessary to foreclose the possibility that the jury will inadvertently return two convictions based on identical conduct, representing in effect but a single offense, and in addition to insure that the jury will be unanimous as to the predicate facts underlying each separately charged incident.

Neither one of the Davis conditions is satisfied here. The indictment does not charge separate incidents, and the trial court did not instruct on separate incidents because it did not understand this to be the government’s position. The majority concedes that “in cases where there is particular danger of ‘jury confusion,’ a sua sponte instruction may be required.” Ante at' 1152. It apparently has overlooked the fact that the overriding issue in this case is that very danger.

The government would have this court shift the entire burden to meet the Davis responsibility to the defendant. I believe that both the government and the trial court bear corresponding burdens, and that their failure to meet their respective obligations in this case, with the result that appellant may well have been sentenced twice for the same conduct, rises to the level of plain error. I accordingly dissent.

. Allen v. United States, No. 79-695 (D.C. Aug. 6, 1981) (unpublished).

. The majority then feels obliged to "place the language in the panel’s decision” in the "appropriate perspective," ante at 1153, and devotes a considerable part of its opinion to a convoluted justification of the division’s alleged application of the plain error standard to Allen’s claim. Unfortunately, it is impossible to discern from the panel's opinion the application of any standard of review, let alone a plain error standard, on the direct appeal.

. Gregg v. United States, 395 A.2d 36, 39 (D.C.1978); Pettaway v. United States, 390 A.2d 981, 984 (D.C.1978); Gibson v. United States, 388 A.2d 1214 , 1215 n. 3 (D.C.1978); Hurt v. St. Elizabeths Hosp., 366 A.2d 780 (D.C.1976). See also Swain v. Pressley, 430 U.S. 372, 375 , 97 S.Ct. 1224, 1226 , 51 L.Ed.2d 411 (1977) (§ 23-110 and § 2255 procedures are comparable).

. See abo Hill v. United States, 368 U.S. 424, 430 , 82 S.Ct. 468, 472 , 7 L.Ed.2d 417 (1962) (§ 2255 petition considered as brought under Rule 35); Duggins v. United States, 240 F.2d 479, 484 (6th Cir.1957) (same); United States v. Hay, 702 F.2d 572, 573-74 (5th Cir.1983) (§ 2255 petition considered as application for writ of coram nobis).