Bailey v. United States ( 2024 )

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DISTRICT OF COLUMBIA COURT OF APPEALS
No. 22-CO-0938
FRANK L. BAILEY, APPELLANT,
V.
UNITED STATES, APPELLEE.
Appeal from the Superior Court
of the District of Columbia
(2022-DVM-000416)
(Hon. Kimberley Knowles, Trial Judge)
(Submitted November 9, 2023 Decided July 11, 2024)
Adrian E. Madsen was on the brief for appellant.
Matthew M. Graves, United States Attorney, and Chrisellen R. Kolb, John P.
Mannarino, and Kristina L. Ament, Assistant United States Attorneys, were on the
brief for appellee.
Before BLACKBURNE-RIGSBY, Chief Judge, and EASTERLY and SHANKER, ∗
Associate Judges.
∗
Associate Judge AliKhan was originally assigned to this case. Following
her appointment to the U.S. District Court for the District of Columbia, effective
December 12, 2023, Associate Judge Shanker was assigned to take her place on the
panel.
2
EASTERLY, Associate Judge: Frank Bailey appeals from the Superior Court’s
decision to require him to serve the balance of his original suspended sentence of
incarceration after he violated the terms of his probation. We conclude that this case
is moot and thus dismiss his appeal.
I. Facts and Procedural History
In July 2022, Frank Bailey pleaded guilty to one count of simple assault in
2022-DVM-416 and was sentenced to 180 days of incarceration, execution of
sentence suspended as to all but thirty days, as well as twelve months of probation
and a $50 assessment under the Victims of Violent Crimes Compensation Act. A
little over a month after being released on probation, Mr. Bailey was arrested for
theft and attempted threats, and held in pretrial detention in this new case,
2022-DVM-841. Mr. Bailey subsequently pleaded guilty in 2022-DVM-841 to one
count of attempted threats in exchange for dismissal of the theft count.
The next day, the Superior Court held a hearing to address Mr. Bailey’s
violation of the terms of his probation in 2022-DVM-416 and sentencing in
2022-DVM-841. After hearing from Mr. Bailey’s mother, the complainant in both
cases, who implored the court not to lock up her son and to help him get treatment
for his drug dependence and mental health issues, the court first turned to
Mr. Bailey’s probation violation. Defense counsel asked the court not to revoke
3
Mr. Bailey’s probation in 2022-DVM-416 and explained that he would be asking for
probation with treatment in the 2022-DMV-841 matter “to try[] to get Mr. Bailey . . .
out of this cycle.” Mr. Bailey told the court that he had been unable to report to his
probation officer on several occasions because he had been incarcerated. And his
probation officer confirmed that “there was some time where [Mr. Bailey] had
[some] issue[s] reporting due to rearrest,” although his compliance had otherwise
been poor, and noted that Mr. Bailey had taken a “lockup [drug] test which was
positive for PCP.” The government did not take a clear position on how to address
the probation violation.
While acknowledging Mr. Bailey’s “substance abuse . . . problem,” the
Superior Court revoked Mr. Bailey’s probation on account of his “not tak[ing]
advantage of probation,” as demonstrated by the fact that he had just “pled guilty to
committing a new offense while on probation.” The court confessed that it did not
remember the facts of the case on which Mr. Bailey had been on probation (it had
not been on the court’s calendar due to an apparent administrative error), but
explained that “at the time [it] sentence[s] people, [it] sentence[s] them to what [it]
believe[s] is the appropriate sentence,” should probation be revoked. Without
further explanation, the court sentenced Mr. Bailey to “180 days[,] credit for time
served.” Turning to 2022-DVM-841, the trial court sentenced Mr. Bailey to a
ninety-day suspended sentence and twelve months of probation. Mr. Bailey timely
4
appealed his sentence.
II. Analysis
Mr. Bailey challenges the trial court’s “uniform policy of imposing the
remainder of the original sentence upon revocation of probation,” arguing that “the
trial court abused its discretion by applying a uniform policy in a circumstance
calling for choice,” and citing case law explaining a court’s obligation to exercise its
discretion—rather than adhering to a uniform policy—in sentencing generally,
Houston v. United States, 592 A.2d 1066, 1067 (D.C. 1991), and when revoking
probation specifically, Mulky v. United States, 451 A.2d 855, 856 (D.C. 1982).
Although Mr. Bailey has completed his 180-day sentence in 2022-DVM-416, he
contends that his challenge to the court’s sentencing decision post revocation is not
moot because (1) he has not paid the entirety of his $50 assessment to the Victims
of Violent Crime Fund (VVC Fund) and (2) resentencing on remand “could result
in time currently credited toward [his] sentence in this matter [2022-DVM-416]
instead being credited to his sentence in 2022[-]DVM[-]841,” should his probation
in that case be revoked. Alternatively he argues that “even assuming that this appeal
is moot, a trial court abusing its discretion by applying a uniform policy of imposing
the remainder of the original sentence upon revocation is ‘a matter of importance
that is likely to recur, yet evade review with respect to others similarly situated.’”
5
Appellant Br. at 9 (quoting McBride v. United States, 255 A.3d 1022, 1028 (D.C.
2021)). We are unpersuaded.
Generally, when “a judgment has been fully executed, and an appellate
decision will not affect the rights and duties of the litigants, there is no longer a live
controversy, and the appeal must be dismissed as moot.” Holley v. United States,
442 A.2d 106, 107 (D.C. 1981). Applying this rationale, this court has held that the
service of the entirety of an appellant’s sentence will moot out their appeal of a trial
court’s probation revocation decision. Smith v. United States, 454 A.2d 1354, 1356
(D.C. 1983) (adopting the Supreme Court’s reasoning in Lane v. Williams, 455 U.S.
624, 632-33 (1982), in the analogous context of parole); accord Marshall v. District
of Columbia, 498 A.2d 190, 192 (D.C. 1985) (“Because appellant has already served
his full sentence, . . . []his claim [that his probation was improperly revoked] is . . .
moot.” (citing Smith, 454 A.2d 1354; Holley, 442 A.2d 106; Lane, 455 U.S. 624)).
Mr. Bailey does not cite to any of this binding precedent. Instead he first
argues that he has not in fact completely served his sentence because he has yet to
pay his full assessment to the VVC fund. Were his claim on appeal related to his
obligation to pay this assessment, we would surely agree that his appeal was not
moot. Cf. Ruffin v. United States, 135 A.3d 799, 801 n.3 (D.C. 2016) (recognizing
that a trial court has a duty to impose a valid assessment under the VVC Fund). But
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Mr. Bailey’s claim has nothing to do with imposition of the statutorily-defined
assessment, D.C. Code § 4-516, and instead concerns the court’s alleged failure to
exercise its discretion in imposing a sentence of incarceration after its decision to
revoke his parole. 1
Mr. Bailey offers a “second, independent reason” that his appeal is not moot:
“if resentenced to a lesser period of incarceration, time currently credited toward
Mr. Bailey’s sentence in the conviction giving rise to this appeal could be credited
toward Mr. Bailey’s sentence in 2022[-]DVM[-]841, a case in which Mr. Bailey is
serving a probationary sentence, should his probation in that matter be revoked.”
But this potential benefit requires far too many “ifs” to constitute a collateral
consequence of his post-revocation sentence. Cf. Spencer v. Kemna, 523 U.S. 1, 15-
16 (1998) (rejecting appellant’s proffered collateral consequence—that his parole
revocation “could be used to impeach him should he appear as a witness or litigant
in a future criminal or civil proceeding”—as too speculative to be considered in
determining mootness issue).
Alternatively, relying on this court’s decision in McBride, Mr. Bailey argues
that even if his case is moot, it “involves [an] overarching issue[] important to the
1
Mr. Bailey’s reliance on Bradley v. District of Columbia, 107 A.3d 586, 602
n.40 (D.C. 2015), is misplaced; unlike Mr. Bailey, the defendant in that case was
required to pay monetary fines for his crimes.
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resolution of an entire class of future [cases].” 255 A.3d at 1028 (explaining that
this court may “consider whether a case presents ‘a matter of importance that is
likely to recur, yet evade review’” so long as the case surmounts this bar). 2 But as
we explained in McBride, this is an “exacting standard” which has only been met in
a “narrow category of criminal cases” presenting questions “elemental to the
functioning of the criminal justice system.” McBride, 255 A.3d at 1028. Mr. Bailey
has not demonstrated that his case satisfies this standard.
Although his observation that “the imposition of probation and thus
revocation of probation is more common in misdemeanor cases [with relatively short
sentences] than in felony cases” suggests that the issue of improper sentencing upon
probation revocation is one capable of evading review, Mr. Bailey has provided no
information or evidence to suggest that misdemeanor probationers are, upon
probation revocation, regularly subjected to the full sentence that was held in
abeyance when they received probation, without consideration of their
individualized circumstances, including any new information provided to the court
2
Mr. Bailey does not argue that we should review this case because it presents
an issue which is “capable of repetition yet evading review” under the test set forth
by the Supreme Court. See Weinstein v. Bradford, 423 U.S. 147, 149 (1975)
(explaining this exception applies only where “(1) the challenged action was in its
duration too short to be fully litigated prior to its cessation or expiration, and
(2) there was a reasonable expectation that the same complaining party would be
subjected to the same action again”).
8
subsequent to their initial sentencing. In other words, he “has presented an
interesting legal problem but not one so vital, urgent, or likely to recur while evading
review as to justify deciding the issue in the context of a moot appeal.” Id. at 1029.
See id. at 1028 (collecting the handful of cases where this court has exercised its
discretion “to reach the merits of a seemingly moot controversy”).
III. Conclusion
For the foregoing reasons, the appeal is dismissed.
So ordered.