Bruce Williams v. U.S.
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Notice: This opinion is subject to formal revision before publication in the Atlantic and Maryland Reporters. Users are requested to notify the Clerk of the Court of any formal errors so that corrections may be made before the bound volum es go to press. DISTRICT OF COLUMBIA COURT OF APPEALS No. 02-CF-556 B RUCE W ILLIAMS, A PPELLANT, v. U NITED S TATES, A PPELLEE. Appeal from the Superior Court of the District of C olumbia (F-3456-01) (Hon. Thomas J. Motley, Trial Judge) (Submitted September 11, 2003 Decided September 18, 2003) Deborah D. Wright, appointed by the cou rt, was on th e brief for app ellant. Roscoe C. Howard, Jr., United States Attorney, and John R. Fisher, Roy W. McLeese III, Ian P. Alberg, and Suzanne C. Nyland, Assistant United States Attorneys, were on the brief for appellee. Before FARRELL and W ASHINGTON, Associate Judges, and K ING, Senior Judge. P ER C URIAM: Following a bench trial, appellant was found guilty of felony escape, D.C. Code § 22-2601 (a)(1) (2001), based upo n his succe ssive failures to report to jail to serve weekend sentences. We affirm. I. In March 2000, appellant was convicted in the Superior Court of two counts of assault, and was sentenced to concurre nt terms of 1 80 days in prison. As to one cou nt, however, the court suspended execution of the sentenc e entirely, and as to the other the 2 court suspended execution of the sentence except for ten consecutive weekends of incarceration. The court further ordered appellant to serve two years of supervised probatio n. Appe llant wa s ordere d to beg in servin g his w eeken ds in jail a t 8:00 p .m. on Friday, March 17, 2000. He reported to jail as ordered on the weekends of March 17, March 24, and March 31, 2000, but failed to report on the weekend of April 7, 2000, or thereafter.1 Consequently, he was placed on escape status and was arrested for escape on or about June 7, 2000. On March 7 and 8, 2002, the Superior Court held a stipulated trial on the escape charge . Appellant argued that he was not guilty of escape because he was on probation on the dates he failed to report to jail, and thus was not in custody. The trial court rejected these arguments and found him guilty of felony escape. II. Appellant argues that, because he wa s on proba tion at the tim e, he was n ot in custody for purposes of the escape statute when he failed to re port to jail as ordered. As explained above , in the underlying case the court had suspended execution of one of appellant s sentences a s to all but ten w eekends in jail, and further ordered h im to serve two 1 In his brief, appellant cla ims that he failed to report to jail on April 7, 2000, because he was working as a mover outside of Washington, D.C. and did not make a rrangem ents to return to jail in time fro m a rem ote location (B rief for App ellant at 8). Ap pellant did not provide this or any other explanation for his escape during the trial. Even on appeal he does not attempt to explain why he was unable to return from the unspecified remote location before he w as arrested two m onths later. 3 years probation. A ppellant ha d only serv ed three of th e ten require d week ends in jail when he failed to report for the fourth and subsequent weekends of incarceration. Whether appellant had begun his probation ary period on the day of sentencing2 does not answer the question whether he was in custody a t the time he was due to report to jail on the weekend s. In analogous circumstances, we have held that probation is tolled or suspended when a defendant is in jail rather than under actual probationary supervision. See Payne v. United States, 792 A.2d 237, 240 (D.C. 2001) (for purposes of calculating length of probationary term , probation is tolled while defendant serves weekend s in jail); Belcher v. United States, 572 A.2d 453, 454 (D.C . 1990) (pro bationary s upervision could not begin while defen dant was incarcerated on unrelated charge ). Even if appellant was under probationary supervision during the weekdays, his status changed on weekends when he was reman ded to the custody o f the Attorney Ge neral for incarceration by virtue of the sentencing order. See Payne, 792 A.2d at 240-41. It is that custody, not his probation, that subjected him to the reach of the escape statute.3 Relatedly, appellant arg ued at trial that h e was no t in custody u nder the sta tute because he was not held in a halfway house i.e., in physical custody during the weekdays. But, again, it was the legal restraint requiring him to report to jail on weekends, 2 The government impliedly disputes appellant s premise that his probation had begun on March 14, 2000, when he was sentenced, but in view of our analysis in the text we need not resolve this dispute. 3 Our holding, which addresses only the issue of confinement or custody for purposes of the escape statute, casts no doubt on the principle that, for purposes of revocation of probation, probation is deemed to have begun o n the date of sentencing even if service of the probat ion has not beg un. See Resper v. United States, 527 A.2d 125 7, 1259 (D.C. 1987); Wright v. United States, 315 AS.2d 83 9, 841-42 (D.C . 1974). 4 not where he spent his time while not in jail, that placed him in custody for purposes of the escape statute. See Demus v. United States, 710 A.2d 858, 861 -62 (D.C . 1998); Gonzalez v. United States, 498 A.2d 1172, 1174 (D.C. 1985) (citatio ns omitted ); Days v. United States, 407 A.2d 702, 704 (D.C. 1979) ( [w]hatever may have been the privileges which [defendan t] was permitted to enjoy [outside the halfway house], he was nevertheless under the legal restraint of his sentence and in the custod y of the A ttorney G eneral ); see also United States v . Keller, 912 F.2d 1058, 1060 (9th Cir. 1990) (defendant guilty of federal escape when he failed to report for incarceration, as ordered, on date certain; h e was effectively ordered into custody as of that date, and [a]n instant later, he was an escapee ). Finally, appellant argues that because he failed to report for jail to serve a sentence in a misd emea nor cas e, the trial court should have used its discretion to convict him of misdemeanor failure to return, D.C. Code § 24-241.05 (b) (2001), instead of felony escape under D.C. C ode § 2 2-260 1. Even if appellant had properly preserved this claim, which he did not, see United States v. Olano, 507 U.S. 725 (1993), it fails for two reasons. First, D.C. Code § 24-241.05 (b) is inapplicable since appellant was not placed in a work-release program. See Armstead v. United States, 310 A.2d 255, 257 (D.C. 1973). Second, assuming he could have been prosecuted under either statute, this court rejected the same challenge to prosecutorial choice in Demus, 710 A.2d at 862-63, and Gonzalez, 498 A.2d at 1176 ( nothing in the legislative h istory of [D.C. Code § 24-241 .05 (b)] com pels us to conclude that this provision was enacted with the intent to preempt or detract from other preexisting authority [D.C. Code § 22-2601] to prosecute prison escape cases ). Accord, Days, 407 A.2d at 703 n.1 ( While the escape statute [§ 22-2601] and § 24-[241.05 (b)] 5 overlap in coverage, it is well settled that when an act violates more than one criminal statute, the Government may prosecute und er either so long as it does not d iscriminate against any class of defen dants (citation omitted)). 4 Affirmed. 4 Appellant also suggests he should have been charged with contempt of court instead of escape, but as noted in Days, the government may chose which offenses to prosecute so long as it does no t discrimina te against any class of defendants in doing so. Appellant raises no such cl aim he re.
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