Gov't of VI v. Warner , 31 V.I. 373 ( 1995 )

Opinions of the United
1995 Decisions States Court of Appeals
for the Third Circuit
2-6-1995
Gov't of VI v Warner
Precedential or Non-Precedential:
Docket 94-7381
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"Gov't of VI v Warner" (1995). 1995 Decisions. Paper 34.
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UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
Nos. 94-7381 and 94-7289
GOVERNMENT OF THE VIRGIN ISLANDS
v.
ELVETH WARNER
Appellant in No. 94-7381
GOVERNMENT OF THE VIRGIN ISLANDS
v.
JACQUELINE MONSANTO-SWAN
Appellant in No. 94-7289
On Appeal from the Appellate Division of the
District Court of the Virgin Islands -- St. Thomas
(D.C. Nos. 92-cr-00135 and 93-cr-00211)
No. 94-7289 Submitted Pursuant to Third Circuit LAR 34.1(a)
December 8, 1994
No. 94-7381 Argued December 8, 1994
BEFORE: SLOVITER, Chief Judge
SCIRICA and COWEN, Circuit Judges
(Filed February 6, 1995)
Pamela L. Wood (argued)
Office of Attorney General of
Virgin Islands
Department of Justice
8050 Kronprindsens Gade, Suite 1
Charlotte Amalie, St. Thomas
USVI, 00802
COUNSEL FOR GOVERNMENT OF THE
VIRGIN ISLANDS, Appellee (No. 94-7381)
Augustin Ayala (argued)
Office of Public Defender
P.O. Box 6040
Charlotte Amalie, St. Thomas
USVI, 00804
COUNSEL FOR ELVETH WARNER,
Appellant (No. 94-7381)
Robert W. Bornholt
Office of Attorney General of
Virgin Islands
Department of Justice
8050 Kronprindsens Gade, Suite 1
Charlotte Amalie, St. Thomas
USVI, 00802
COUNSEL FOR GOVERNMENT OF THE
VIRGIN ISLANDS, Appellee (No. 94-7289)
Rhys S. Hodge
Law Office of Rhys S. Hodge
19 Norre Gade
P.O. Box 6520
Charlotte Amalie, St. Thomas
USVI, 00804
COUNSEL FOR JACQUELINE MONSANTO-SWAN,
Appellant (No. 94-7289)
OPINION
COWEN, Circuit Judge.
Elveth Warner and Jacqueline Monsanto-Swan, in two
related cases, appeal from orders of the Appellate Division of
the District Court of the Virgin Islands that dismissed their
appeals for lack of jurisdiction. These two cases present
essentially the same issue of jurisdiction: whether the appellate
division has jurisdiction to entertain an appeal of a defendant
who has pled guilty where the defendant claims an error in the
sentencing procedure. Accordingly, we will address the two cases
together. Because the appellate division erred in determining
that it lacked jurisdiction to hear these appeals, we will
reverse.
I.
A. Government of the Virgin Islands v. Warner
Elveth Warner was arrested and charged with possession
of a controlled substance in violation of V.I. Code Ann. tit. 19,
§ 607(a). He pled guilty to this charge on September 8, 1989.
At sentencing, which did not take place until May 5, 1993, Warner
contended that he was prejudiced by a lengthy delay between his
plea of guilty and sentencing. According to the Government, the
reason for the delay was that when this matter was first
scheduled for sentencing, Warner did not appear and failed to
inform either the court or his attorney as to his whereabouts.
The Territorial Court of the Virgin Islands sentenced
Warner to a suspended 6 month period of incarceration, 400 hours
of community service, a $700 fine, $25 in court costs, and placed
him on supervised probation for one year.1 On appeal to the
1
. The territorial court stayed imposition of this sentence
pending appeal. Government of the Virgin Islands v. Warner,
Crim. No. 290-89 (Terr. Ct. V.I. May 26, 1993). Accordingly,
this matter is not moot.
Appellate Division of the District Court of the Virgin Islands,
Warner renewed his argument that he was prejudiced by the lengthy
delay between his plea and sentencing. The appellate division
dismissed the appeal for lack of jurisdiction. This appeal
followed.
B. Government of the Virgin Islands v. Monsanto-Swan
Jacqueline Monsanto-Swan was arrested and charged with
misappropriating public monies to her own use in violation of
V.I. Code Ann. tit. 14, § 1662(1), and altering a check in
violation of V.I. Code Ann. tit. 14, § 791(1). Monsanto-Swan
pled guilty to count seven of a nine count information in
exchange for the Government dismissing the remaining eight
counts. Count seven concerned the misappropriation of two checks
worth an aggregate amount of $2,028.49. At the change of plea
hearing before the Territorial Court of the Virgin Islands, the
Government advised the court that it would make a recommendation
for sentencing.
Shortly prior to the date of sentencing, the Government
filed a motion seeking restitution from Monsanto-Swan pursuant to
V.I. Code Ann. tit. 5, § 3721.2 The Government moved the
2
. Section 3721 states:
If a person is convicted of a crime and is otherwise
eligible, the court, by order, may withhold sentence or impose
sentence and stay its execution, and in either case place the
person on probation for a stated period, stating in the order the
reasons therefor, and may impose any conditions of the probation
which appear to be reasonable and appropriate to the court. If
the court places the person on probation, the court shall require
restitution designed to compensate the victim's pecuniary loss
territorial court to require $96,586.42 in restitution, the total
of the various amounts alleged in the information. Count seven,
however, involved only the sum of $2,028.49. In her response to
the motion for restitution, Monsanto-Swan agreed not to oppose
the Government's request for the larger amount, provided the
sentence be imposed pursuant to V.I. Code Ann. tit. 5, § 3721,
and provided that the court permit a sufficient period of time
for making restitution. The territorial court accepted the
Government's motion as unopposed and supported by Monsanto-Swan,
and stated that it was going to withhold sentence pursuant to §
3721 because Monsanto-Swan was expecting a baby. The court,
however, required Monsanto-Swan immediately to begin making
restitution.
Prior to the new date set for sentencing, Monsanto-Swan
had already paid $8,000 in restitution to the Government. At
sentencing, Monsanto-Swan contended that her agreement to pay the
full amount of restitution entitled her to a sentence under §
3721, a sentence that would not include incarceration as a
(..continued)
resulting from the crime to the extent possible, unless the court
finds there is substantial reason not to order restitution as a
condition of probation. If the court does not require
restitution to be paid to a victim, the court shall state its
reason on the record. The court may require that restitution be
paid to an insurer or surety or government entity which has paid
any claims or benefits to or on behalf of the victim. If the
court does require restitution, it shall specify the amount.
If the court does require restitution, it shall require the
person or defendant to pay a surcharge equal to 5 percent of the
amount of restitution to the clerk of the court for
administrative expenses under this section.
V.I. Code Ann. tit. 5, § 3721 (Supp. 1993)
component. Over Monsanto-Swan's objection, however, the
territorial court sentenced her to four years imprisonment.
Monsanto-Swan appealed this sentencing issue to the
Appellate Division of the District Court of the Virgin Islands.
The appellate division dismissed the appeal for lack of
jurisdiction. Her appeal also followed.
II.
Jurisdiction in the Territorial Court of the Virgin
Islands was predicated upon V.I. Code Ann. tit. 4, § 76(b) (1993
Supp.). The Appellate Division of the District Court of the
Virgin Islands dismissed this case for lack of jurisdiction. We
exercise jurisdiction pursuant to 48 U.S.C. § 1613a(c) (1988).
III.
Both Warner and Monsanto-Swan contend that the
appellate division erred in dismissing their claims for lack of
jurisdiction. According to the defendants, Congress provided
that local law would determine the jurisdiction of the appellate
division of the district court. Nevertheless, the defendants
argue, local law cannot deny review of rights based on the United
States Constitution. We agree.
This Court exercises plenary review over questions of
jurisdiction. Boarhead Corp. v. Erickson, 923 F.2d 1011, 1016
(3d Cir. 1991). Title 48, § 1613a of the United States Code
provides for the jurisdiction of the Appellate Division of the
District Court of the Virgin islands. This provision states, in
pertinent part:
Prior to the establishment of the appellate court
authorized by section 1611(a) of this title,
the District Court of the Virgin Islands shall have
such appellate jurisdiction over the courts of the
Virgin Islands established by local law to the
extent now or hereafter prescribed by local law:
Provided, That the legislature may not preclude the
review of any judgment or order which involves the
Constitution, treaties, or laws of the United States,
including this chapter . . . .
48 U.S.C. § 1613a(a) (1988) (first and third emphasis added).
Accordingly, we must look to local law to determine the
jurisdiction of the appellate division of the district court.
The applicable local law conferring jurisdiction upon
the appellate division of the district court is V.I. Code Ann.
tit. 4, § 33. That section provides, in relevant part:
The district court has appellate jurisdiction to review
the judgments and orders of the territorial court in
all civil cases, in all juvenile and domestic relations
cases, and in all criminal cases in which the defendant
has been convicted, other than on a plea of guilty.
V.I. Code Ann. tit. 4, § 33 (Supp. 1993) (emphasis added).
According to the plain language of this statute, defendants who
have pled guilty do not have an appeal to the appellate division
of the district court. The appellate division relied on this
provision in dismissing the appeals of Warner and Monsanto-Swan.
Jacqueline Monsanto-Swan v. Government of the Virgin Islands, No.
92-211, slip op. at 6-7 (D.V.I. App. Div. May 2, 1994); Elveth
Warner v. Government of the Virgin Islands, No. 93-135, at 2 n.1
(D.V.I. App. Div. June 16, 1994) (order of dismissal) (relying on
Jacqueline Monsanto-Swan, No. 92-211 (D.V.I. App. Div. May 2,
1994)). According to the appellate division, because Warner and
Monsanto-Swan pled guilty, it lacked jurisdiction. Id. We
disagree.
Warner and Monsanto-Swan allege error in the sentencing
procedure, not errors that occurred prior to pleading guilty.
Taken literally, of course, § 33 does not distinguish between
errors prior to the guilty plea and errors in sentencing.
Indeed, as a matter of interpretation of this statute, we would
find it difficult to conclude that the appellate division had
jurisdiction to hear this appeal. However, in the Revised
Organic Act, Congress provided that local law cannot "preclude
the review of any judgment or order which involves the
Constitution, treaties, or laws of the United States." 48 U.S.C.
§ 1613a(a). Therefore our inquiry must focus on whether the
operation of § 33 in these cases creates such a result.
In the cases at hand, both Warner and Monsanto-Swan
articulate colorable constitutional claims. Warner contends that
his sentence was imposed in violation of the Sixth Amendment.
Warner correctly argues that the Sixth Amendment right to a
speedy trial applies through sentencing. Burkett v. Cunningham,
826 F.2d 1208, 1220 (3d Cir. 1987). Warner asserts that a delay
in sentencing for over three and one half years, from September
8, 1989 to May 5, 1993, violated his right to a speedy trial.
While we do not pass on the merits of Warner's claim, we hold
that Warner's appeal raises a constitutional issue. Pursuant to
§ 1613a(a), the local law of the Virgin Islands cannot preclude
review of this constitutional issue.
Similarly, Monsanto-Swan's appeal raises a colorable
constitutional claim. Monsanto-Swan argues that the Government
sought $96,586.42 in restitution. According to Monsanto-Swan,
this figure reflects the total of various restitution amounts
charged in the information, not the restitution for the single
charge to which she pled guilty. Monsanto-Swan asserts that she
agreed to the larger amount of restitution in exchange for an
agreement by the court to sentence her pursuant to § 3721, a
statute which speaks only about restitution and not about
incarceration.3 Monsanto-Swan argues that she would not have
agreed to such a large amount of restitution if she were aware
that she could receive a period of incarceration in addition to
this restitution.
In essence, Monsanto-Swan is alleging a violation of
due process in the court's reneging on an alleged agreement as to
sentencing. Courts have recognized, in the context of a guilty
plea, that where the court accepts a plea agreement, it cannot
"`impose a sentence greater than that agreed upon.'" United
States v. Burruezo, 704 F.2d 33, 38 (2d Cir. 1983) (quoting
United States v. Mack, 655 F.2d 843, 847 n.4 (8th Cir. 1981)).
While we express no position as to the strength of Monsanto-
Swan's due process claim, particularly because her allegations
involve sentencing and not the guilty plea proceeding, we find
3
. See supra note 2 for the text of this statute.
that Monsanto-Swan's allegations implicate a constitutional
issue. Accordingly, we conclude that the local law of the Virgin
Islands may not preclude review of her claim.
Given that both Warner and Monsanto-Swan allege
colorable constitutional claims, we are called upon to determine
whether the operation of V.I. Code Ann. tit. 4, § 33 in the
matters at hand precludes review of these constitutional claims.
The appellate division reasoned that because 48 U.S.C. § 1613a(a)
does not state that direct review is required, dismissal of this
action does not entirely preclude review of any alleged
constitutional violations. Jacqueline Monsanto-Swan, No. 92-211,
slip op. at 7 n.6; Elveth Warner, No. 93-135, at 2 n.1 (order of
dismissal) (relying on Jacqueline Monsanto-Swan, No. 92-211
(D.V.I. App. Div. May 2, 1994)). According to the appellate
division, Warner and Monsanto-Swan can still bring a collateral
proceeding, pursuant to local law, to challenge their sentences.
Id.
We are unpersuaded by the appellate division's
reasoning. Concededly, the language of § 1613a(a) does not, by
its own terms, state whether Congress believes collateral review
to be sufficient to protect the constitutional rights at stake.
We believe, however, that Congress did not intend to force a
criminal defendant to institute a collateral proceeding in order
to obtain review of such rights.
A prisoner's rights in a habeas corpus proceeding are
more limited than on direct appeal. For example, the Supreme
Court has determined that while the Constitution guarantees the
right to counsel on direct appeal, it does not guarantee the
right to counsel in a habeas petition. Wright v. West, U.S.
, 112 S. Ct. 2482, 2490 (1992) (citing Douglas v. California, 372
U.S. 353, 355-58, 83 S. Ct. 814, 815-17 (1963)); Pennsylvania v.
Finley, 481 U.S. 551, 555, 107 S. Ct. 1990, 1993 (1987). The
Supreme Court has also explained that while defendants whose
direct appeals are pending get the benefit of new constitutional
rules of criminal procedure, a new constitutional rule is not
applicable to collateral proceedings unless the rule falls within
certain narrowly defined exceptions. See Teague v. Lane, 489
U.S. 288, 310-12, 109 S. Ct. 1060, 1075-76 (1989). According to
the Court, these differences "simply reflect the fact that habeas
review `entails significant costs.'" Wright, U.S. at ,
112 S. Ct. at 2491 (citing Engle v. Isaac, 456 U.S. 107, 126, 102
S. Ct. 1558, 1571 (1982)). We conclude that the more limited
rights provided to a prisoner on collateral review are
insufficient to give proper effect to the language of § 1613a(a)
that requires a forum for review of issues involving the
Constitution. Therefore, we hold that the local law of the
Virgin Islands cannot operate to deny these parties a direct
appeal to the appellate division.
Accordingly, we will reverse the orders of the
appellate division which dismissed these appeals for lack of
jurisdiction and remand these cases back to that court for
further consideration on the merits.4
4
. To the extent that Monsanto-Swan asserts other claims that do
not involve the United States Constitution, a treaty, or federal
(..continued)
law, we find that the appellate division of the district court
was correct in dismissing such claims for lack of jurisdiction.
Since the appellate division dismissed all of Monsanto-Swan's
claims without deciding which ones involved constitutional
issues, we leave to that court the task of categorizing Monsanto-
Swan's claims into those that involve constitutional issues, and
those that do not. Because Warner's sole claim on appeal
involves the right to a speedy trial, a constitutional right, we
simply direct that the appellate division exercise its
jurisdiction to hear this claim.