Government of the Vi v. Joseph Elliott , 304 F. App'x 127 ( 2008 )

Opinions of the United
2008 Decisions States Court of Appeals
for the Third Circuit
12-19-2008
Government of the Vi v. Joseph Elliott
Precedential or Non-Precedential: Non-Precedential
Docket No. 08-2695
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"Government of the Vi v. Joseph Elliott" (2008). 2008 Decisions. Paper 67.
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NOT PRECEDENTIAL
IN THE UNITED STATES COURT
OF APPEALS
FOR THE THIRD CIRCUIT
NO. 08-2695
GOVERNMENT OF THE VIRGIN ISLANDS
v.
JOSEPH ELLIOTT,
Appellant
On Appeal From the District Court
of the Virgin Islands,
Division of St. Croix
(D.C. No. 1-05-cr-00040-1)
District Judges: Hon. Curtis V. Gomez, Hon. Raymond L. Finch
Superior Court Judge: Hon. Leon A. Kendall
Submitted Pursuant to Third Circuit LAR 34.1(a)
December 11, 2008
BEFORE: FISHER, JORDAN and STAPLETON
Circuit Judges
(Opinion Filed : December 19, 2008)
OPINION OF THE COURT
STAPLETON, Circuit Judge:
Appellant Joseph Elliott pled guilty to burglary in the second degree and assault in
the third degree pursuant to a plea agreement. He was sentenced to fifteen years of
imprisonment on the burglary charge and five years imprisonment on the assault charge,
with the sentences to be served consecutively. On appeal, the Appellate Division of the
District Court of the Virgin Islands affirmed.
In this appeal, Elliott argues that (1) his pleas were not knowing, voluntary and
intelligent, (2) his sentence was disproportionate to his criminal conduct and accordingly
violated the Cruel and Unusual Punishment Clause of the Eighth Amendment, (3) he was
denied effective assistance of counsel, and (4) the assault count of the information fails to
state a crime. Elliott advanced the first three of these contentions before the Appellate
Division, and essentially for the reasons given by it in its opinion (App. at 96-106), we
will affirm.
After reading the ten page transcript of the exchange between Elliott and the Court
during the plea hearing, we, too, are satisfied that Elliott was advised of, and fully
understood, the nature of the charges to which he pled and the possible consequences of
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his pleas. Given what was established at the plea hearing, it was not necessary that the
Court personally spell out the elements of each charge. Bradshaw v. Stumpf, 545 U.S.
175, 183 (2005).
As the Appellate Division noted, the Supreme Court has held that “when
considering Eighth Amendment challenges to sentencing for felony crimes, ‘the length of
the sentence actually imposed is purely a matter of legislative prerogative.’” App. at 103
(quoting from Rummel v. Estelle, 445 U.S. 263, 274 (1980)). Given the Supreme Court’s
subsequent application of that principle in Hutto v. Davis, 454 U.S. 370 (1982), there is
clearly no Eighth Amendment problem here.
Elliott insists that his counsel (1) “duped and forced” him to enter his pleas, (2) did
not explain, or even provide him with a copy of, the information, and (3) did not offer
unspecified mitigating evidence on his behalf during the sentencing hearing. These
charges cannot be evaluated on the basis of the existing record, however, and this is not
one of those rare cases in which we can adjudicate an ineffective assistance of counsel
claim in a direct appeal.
Giving Elliott the benefit of the doubt, we will view his fourth and final argument
as a contention that Count III of the information failed to state a crime. As so viewed, it
would not be barred by his guilty plea. United States v. Ruttenberg, 625 F.2d 173 (7th
Cir. 1980). Count III alleges that Elliott “did with unlawful violence and with intent to
injure, assault Susan Sheats with a deadly weapon, to wit, a paint can, by throwing said
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paint can at Susan Sheats and attempting to strike Susan Sheats with said paint can.” JA
at 14. Elliott acknowledges that whether something is a “deadly weapon” depends not
only on what it is but also how it is used. His argument is that a paint can cannot be
employed in a manner that renders it a “deadly weapon” within the meaning of 14 V.I.C.
§ 297(1).
As we pointed out in Government of the Virgin Islands v. Robinson, 29 F.3d 878
(3d Cir. 1994), the common law definition of a “deadly weapon” is as follows:
A deadly weapon is one which, from the manner used, is calculated or
likely to produce death or serious bodily injury. Thus whether a weapon is
deadly depends upon two factors: (1) what it intrinsically is and (2) how it
is used. If almost anyone can kill with it, it is a deadly weapon when used
in a manner calculated to kill. Thus the following items have been held to
be deadly weapons in view of the circumstances of their use . . . iron bars,
baseball bats, bricks, rocks, ice picks, automobiles, and pistols used as
bludgeons.
Id. at 886 (quoting Wayne R. LaFave & Austin W. Scott, Jr., Handbook on Criminal Law
537 (1972)). In adopting this definition in Robinson, we did “not think it difficult to
determine whether Robinson’s use of the two-by-four constituted use of a ‘deadly
weapon.’ When Robinson picked up the two-by-four and swung it at [another], it became
a weapon which was likely to cause . . . serious bodily injury.” Id. Adopting that same
common law definition here, we conclude that a paint can can, indeed, be used in a
manner that renders it a “deadly weapon” within the meaning of 14 V.I.C. § 297(1).
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We will affirm the judgment of conviction without prejudice to Elliott’s ability to
press his ineffective assistance of counsel claim hereafter in an appropriate proceeding.1
1
Our noting that we do not finally resolve Elliott’s ineffective assistance of counsel
claim constitutes no comment on the merits of that claim.
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