Government of the Virgin Islands v. James

CHRISTIAN, Presiding Judge; O’BRIEN, District Judge and FEUERZEIG, Territorial Court Judge OPINION OF THE COURT This appeal requires us to define some of the circumstances under which an habitual offender penalty may be imposed. We hold that the territorial court may sentence a defendant as a recidivist in any matter in which it has jurisdiction over the underlying substantive offense. We hold, moreover, that the territory’s habitual offender statute applies solely to an offense committed after a prior conviction. I. FACTS Appellant Edward James is a twice-convicted felon. He was first convicted by a district court jury on October 25, 1985, of second and third degree burglary, grand larceny, possession of stolen property, assault and possession of a dangerous weapon. James committed these crimes in June 1985. On March 4, 1986, Edwards — 207 — was convicted in the territorial court of third degree burglary, attempted grand larceny and possession of a dangerous weapon during the commission of a crime of violence, all crimes over which the territorial court has jurisdiction. These crimes were committed in March 1985. Following the second conviction, the Government filed an habitual offender information and the territorial court imposed a recidivist sentence against James pursuant to 14 V.I.C. § 61(a) (Supp. 1986), which makes an enhanced penalty mandatory where the Government proves that the defendant has been convicted of two felonies. James now appeals the enhanced penalty on the grounds that § 61(a)’s sanction may only be imposed on the basis of a felony that was committed after a prior conviction. II. DISCUSSION A. Jurisdiction The threshold issue in this appeal is whether the territorial court has the power to impose an habitual offender sentence that exceeds five years. The territorial court has concurrent jurisdiction with the district court in all criminal actions wherein the maximum sentence does not exceed imprisonment for five years. 4 V.I.C. § 76(b) (Supp. 1986).1 Pursuant to the recidivist laws, a criminal defendant may be subjected to an additional sentence upon a second conviction. 14 V.I.C. § 61 (Supp. 1986). In Government of the Virgin Islands v. Ortiz, 615 F. Supp. 61 (D.V.I. 1985), a ten-year sentence imposed by the territorial court pursuant to § 61(a) was upheld as consistent with local jurisdiction because the enhanced penalty does not constitute a substantive offense over which jurisdiction is limited by § 76(b). Like the Ortiz appellant, James was convicted of felonies that are clearly within the territorial court’s jurisdiction and received an additional ten-year sentence as an habitual offender. The parties were ordered to brief the jurisdictional issue to afford a three208 judge-appellate-panel review of the rule of Ortiz. We now adopt that rationale.2 Section 62(a) defines the procedure for imposing an habitual offender sentence. It provides: No person who stands convicted of an offense under the laws of the Virgin Islands shall be sentenced to increased punishment by reason of one or more previous convictions, unless prior to sentencing, the United States Attorney or the Attorney General of the Virgin Islands, as the case may be, files an information with the Clerk of the Court and serves a copy of such information on the person or counsel for the person, stating in writing the previous convictions to be relied upon. Upon a showing by the Government that facts regarding previous convictions could not with due diligence be obtained prior to sentencing, the court may postpone the sentencing for a reasonable period for the purpose of obtaining such facts. Clerical mistakes in the information may be amended at any time prior to the pronouncement of sentence. In dissent and concurrence, Presiding Judge Christian argues that because an habitual offender information may be filed by either the federal or local prosecutor “as the case may be,” § 62(a) should be construed as mandating federal prosecution of all habitual offender informations seeking a sentence in excess of five years. The more reasonable interpretation of this phrase is that the attorney general may file an habitual offender information in the territorial court in any case where the court has jurisdiction over the substantive offense. Thus, because the office of the attorney general properly filed its information against James in the territorial court, the post-conviction filing of the habitual offender information there was also proper, as was the imposition of sentence thereunder. This is the reasoning of Ortiz and merely reflects the important distinction between “the power of a court to try an offense and the supplementary authority for a court to impose penalties.” 615 F. Supp. at 63. Moreover, as noted in Ortiz, “it was — 209 — the intention of the Legislature that the Habitual Offender Act apply, in its entirety, to all Courts of the Virgin Islands.” Id. The dissent’s reliance on Martin v. United States, 283 A.2d 448 (D.C. App. 1971), does not mandate a different result. The Martin defendant was convicted of a firearms offense in the District of Columbia’s equivalent of the territorial court, which had statutory authority to impose a maximum sentence of 18 months. Id. at 450. The defendant had been previously convicted of a firearms charge and, thus, faced sentencing under one of two recidivist statutes— a general one carrying a maximum penalty of 1% years and a more specific one imposing a mandatory ten-year term on twice-convicted firearms offenders. The prosecutor elected before trial, as he was required to do by law, to pursue the former sanction and the defendant was sentenced to a one-year term. On appeal, the defendant argued that the prosecutor was required to proceed under the harsher law, and that the local court lacked jurisdiction to try him. The Court of Appeals held that recidivist treatment for weapons violators was appropriate solely under the more specific ten-year penalty law and noted that, had this route been elected, a district court trial would have been required. However, the court upheld the substantive conviction because the one-year sentence was within the court’s jurisdiction. Finally, the Martin court expressly affirmed Lawrence v. United States, 224 A.2d 306 (D.C. App. 1966), which was of central importance in Ortiz. Martin, supra at 481 n.5. The rule of Lawrence is that the local D.C. court had jurisdiction to impose a 1%-year recidivist sentence in appropriate cases. There is a glaring distinction between the jurisdiction of the territorial court and that of the District of Columbia court. Section 76(b) defines jurisdiction by reference to the maximum penalty authorized for the substantive crime charged. By contrast, Congress specifically limited the length of sentence which the District of Columbia court could impose. The statutory schemes are conceptually distinguishable and we find, therefore, that the dissent’s reliance on Martin is misplaced. Finally, we note that the impracticability of transferring cases such as James’ to the federal system for the habitual offender procedure dictates against such an interpretation. The district court docket would surge as would the workload of the federal prosecutors. And, consequently, the sentencing of the criminal would be bureaucratically delayed. — 210 — The most unfair ramification, however, is that transfers violate the basic precept that “sentence^] should ordinarily be imposed by the Judge who presided at the trial.” C. E. Torcia, Wharton’s Criminal Procedure, § 609 p. 204 (12th ed. 1976). Accord Fed. R. Crim. P. 25. Section 61(a) subjects a twice-convicted felon like James to an habitual offender sentence of ten years to life imprisonment. It would obviously be difficult for the district judge to properly exercise this discretion without the benefit of the insights typically gleaned from pre-sentence observation of the defendant. For the foregoing reasons, we hold that the territorial court may impose an habitual offender sentence exceeding five years in any case where it has jurisdiction over the underlying substantive offense. B. Sequence of Conviction The remaining issue is whether this sentence may only be imposed on the basis of a crime committed after a previous conviction. The habitual offender statute provides in pertinent part: Penalties (a) Whoever, whether under the laws of the Virgin Islands, the United States or a state or territory thereof, or any other jurisdiction, has been convicted of an offense which would be a felony in the Virgin Islands, shall upon a subsequent conviction of a felony in the Virgin Islands, be incarcerated for a term of imprisonment of not less than ten years and may be incarcerated for the remainder of his natural life. If the last conviction is for a crime of violence, as defined in Title 23, section 451 of the Code, imposition or execution of this minimum period of incarceration shall not be suspended, nor shall probation be granted; neither shall parole or any other form of release be granted for this minimum period of incarceration. 14 V.I.C. § 61(a) (Supp. 1986). The express language of § 61(a) mandates the imposition of an enhanced penalty upon “a subsequent conviction of a felony.” It is silent, however, as to whether the primary felony — the crime triggering recidivist treatment — must have been committed after a previous felony conviction. The Government argues that this — 211 — silence should be construed to mean that the sequence of the convictions is immaterial. More persuasively, James argues that sequential convictions must be required to give the statute its intended effect — to punish persistent criminal activity more harshly.. As noted earlier, James’ second conviction, for which he was sentenced as an habitual criminal, was for a crime committed before the crime which resulted in his original conviction. In line with the overwhelming majority of American jurisdictions, we will adopt the latter view. See, e.g., Annot., 24 A.L.R. (1952); Annot., 39 Am. Jur. 2d 307 (1968).3 The aim of recidivist laws is virtually universal. “Habitual offenders are not punished the second time for the earlier offense but the repetition of criminal conduct aggravates their guilt and justifies heavier penalties when they are again convicted.” Graham v. West Virginia, 224 U.S. 620, 623 (1912). The rationale is that “‘[i]t is the commission of the second felony after conviction for the first. . . that is deemed to make the defendant incorrigible.’” State v. Ellis, 333 N.W.2d 391, 394 (Neb. 1983) (emphasis in original) quoting Coleman v. Commonwealth, 125 S.W.2d 728 (1939). The Supreme Court of Alaska eloquently stated its reasoning for embracing the rule that we adopt today: Habitual criminal statutes are founded on the general principle that persistent offenders should be subject to greater sanctions than those who have been convicted only once. These statutes serve as a warning to first time offenders and provide them with an opportunity to reform. See Moore v. Coiner, 303 F. Supp. 185 (N.D.W. Va. 1969); State v. Lohrbach, 217 Kan. 588, 538 P.2d 578, 581-82 (1975). It is only upon subsequent convictions for repeated criminal conduct that increasingly stiffer sentences are imposed. The reason the sanctions become increasingly severe is “not so much that [the] defendant has sinned more than once as that he is deemed incorrigible when he persists in violations of the law after conviction of previous infractions.” Annot., 24 A.L.R.2d 1247, 1249 (1952). A majority of jurisdictions, recognizing both the purposes underlying habitual criminal statutes and the severity of their penalties, require for their application that prior convictions must precede the commission of the principal offense. Id. and — 212 — cases cited therein. As the state points out, in most of the cases construing the statutes, the sequence of prior convictions is not in issue. However, where the sequence of prior convictions is in issue, the rule followed in the majority of jurisdictions is that each successive felony must be committed after the previous felony conviction in order to count towards habitual criminal status. E.g., Johnson v. Cochran, 139 So.2d 673 (Fla. 1962); Gossett v. Commonwealth, 302 S.W.2d 380 (Ky. 1957); see State v. Johnson, 109 N.J. Super. 69, 262 A.2d 238 (1969) (second violation and indictment thereon must occur after first conviction); 4 Wharton’s Criminal Procedure § 631 (12th ed. 1976); Annot., 24 A.L.R.2d 1247, 1249 (1952). State v. Carlson, 560 P.2d 26, 28-29 (Ala. 1977).4 We agree that a recidivist sanction must be reserved for the defendant who persistently engages in criminal conduct after a conviction. Having once been burned, it is the conscious refusal to reform that presents an increased threat to society and which, in turn, justifies the harsher sentence. Since James was sentenced as a recidivist for the first felony he committed, the sentence imposed under § 61(a) must be vacated. III. CONCLUSION In accordance with the foregoing, the sentence imposed on the appellant pursuant to 14 V.I.C. § 61(a) must be vacated. JUDGMENT ORDER The Court having filed its Opinion dated April 30, 1987, and the premises considered, now therefore it is ORDERED AND ADJUDGED: That the sentence imposed by the Territorial Court on Appellant Edward James pursuant to the provisions of Title 14, V.I.C. § 61(a) be, and the same is, hereby VACATED and thus is hereby REMANDED to the Territorial Court of the Virgin Islands for — 213 — further proceedings consistent with the above-mentioned Opinion of this Court. DATED this 15th day of June, 1987. Footnotes [1] The jurisdiction of the territorial court was extended in criminal matters to those actions wherein the maximum sentence does not exceed fifteen years. Act No. 5040 (December 20, 1984). However, the effective date of this provision was extended to October 1, 1991 by Act No. 5206 (November 17, 1986). [2] The decision in Ortiz was by a single district judge sitting as an appellate court. The trial judge herein correctly recognized it as binding for purposes of imposing a sentence. We heard oral argument and permitted briefing on the habitual offender issue to permit the issue to be further resolved by a three-judge-appellate-panel. The territorial court obviously remains bound by appellate decisions in the district court, whether by one judge or a panel. [3] This Court is legally bound to follow the majority rule. 1 V.I.C. § 4. See Polius v. Clark Equipment Co., 802 F.2d 75, 77 (3d Cir. 1986). [4] Like § 61(a), the habitual offender statutes of Alaska and Nebraska were silent on the issue of sequence. See also State v. Tavaras, 630 P.2d 633, 636 (Hawaii 1981); People v. Nees, 615 P.2d 690, 693 (Colo. 1980); Populo v. State, 477 So. 2d 1081 (Fla. App. 1985). Several jurisdictions have incorporated this rule directly into their statutes. See Rogers v. United States, 419 A.2d 977, 981 (D.C. App. 1981); Rummel v. Estelle, 687 F.2d 651, 656 (5th Cir. 1978) aff’d 445 U.S. 263 (1980); State v. Anderson, 451 A.2d 1326, 1327 (N.J. App. 1982) aff’d 459 A.2d 302 (1983); Castle v. Gladden, 270 P.2d 675, 681-82 (Ore. 1954).