KAREEM JAMAL BROWN, Appellant/Defendant v. PEOPLE OF THE VIRGIN ISLANDS, Appellee/Plaintiff
Brown v. People
HODGE, Chief Justice', CABRET, Associate Justice', and CARROLL III, Designated Justice. CARROLL, Designated Justice, concurring.
KAREEM JAMAL BROWN, Appellant/Defendant v. PEOPLE OF THE VIRGIN ISLANDS, Appellee/Plaintiff
KAREEM JAMAL BROWN, Appellant/Defendant v. PEOPLE OF THE VIRGIN ISLANDS, Appellee/Plaintiff
S. Ct. Criminal No. 2011-0022
Supreme Court of the Virgin Islands
May 24, 2012
GAYLIN VOGEL, Esq., Hodge & Francois, St. Thomas, USVI, Attorney for Appellant.
Julie Ann Meade, Esq., Assistant Attorney General, St. Thomas, USVI, Attorney for Appellee.
HODGE, Chief Justice', CABRET, Associate Justice', and CARROLL III, Designated Justice. CARROLL, Designated Justice, concurring.
Associate Justice Ive Arlington Swan has been recused from this matter. The Honorable James S. Carroll III sits in his place by designation pursuant to title 4, section 24(a) of the Virgin Islands Code.
OPINION OF THE COURT
(May 24, 2012)
HODGE, Chief Justice-.
Kareem Jamal Brown appeals from the Superior Court's March 10, 2011 Judgment and Commitment, which sentenced him to ten years of incarceration for voluntary manslaughter as a result of his guilty plea. For the reasons that follow, we will affirm the Superior Court's Judgment.
I. STATEMENT OF FACTS AND PROCEDURAL POSTURE
This matter originated when the People of the Virgin Islands charged Brown and his co-defendant, Keelo Jacobs, with numerous offenses, including first degree murder, stemming from the September 12, 2005 death of Jahleel Halliday during a fight at a retail shoe store on St. Thomas. Prior to trial, the People offered both defendants the opportunity to plead to the charge of voluntary manslaughter. Brown rejected the offer and elected to proceed to trial while Jacobs accepted the plea offer and pled guilty to voluntary manslaughter in exchange for a recommended maximum sentence of seven and one-half years of incarceration, and his promise to testify against Brown during his March 25-28, 2008 trial. Although Jacobs testified that Brown had suddenly stabbed Halliday three times with a knife, every other individual who witnessed the incident testified at trial that Jacobs stabbed Halliday, and the People had proceeded under a theory that Brown had aided and abetted Jacobs by providing him with the knife. The jury found Brown guilty of all charges, and the Superior Court ultimately sentenced Brown to life imprisonment for first degree murder. Jacobs was subsequently sentenced to five years incarceration on his plea to voluntary manslaughter.
When Brown appealed his convictions to this Court, it ordered a new trial on the basis that the Superior Court erroneously admitted improper character evidence that affected the fairness of his trial. See Brown v. People, 54 V.I. 496, 516 (V.I. 2010). But on remand, rather than proceeding with a new trial, Brown entered into a plea agreement with the People, in which he agreed to plead guilty to voluntary manslaughter as an aider and abettor. However, at the March 3, 2011 sentencing, counsel for the People contended, based solely on Jacob's testimony, that Brown had been the primary aggressor and should receive the maximum sentence of ten years of incarceration, notwithstanding the fact that, at the February 4, 2011 change of plea hearing, Brown had participated in an allocution under oath as an aider and abettor. Ultimately, the Superior Court orally imposed the maximum sentence of ten years incarceration, and memorialized its decision in a Judgment and Commitment signed on March 9, 2011 and entered on March 10, 2011. The Superior Court, however, did not explain on the record its reasons for sentencing Brown to a significantly longer period of incarceration than Jacobs. Brown timely filed his notice of appeal on March 8, 2011.
II. DISCUSSION
A. Jurisdiction and Standard of Review
"The Supreme Court [has] jurisdiction over all appeals arising from final judgments, final decrees or final orders of the Superior Court, or as otherwise provided by law." V.I. Code Ann. tit. 4 § 32(a). An order is considered to be "final" for purposes of this statute if it "ends the litigation on the merits, leaving nothing else for the court to do except execute the judgment." Williams v. People, 55 V.I. 721, 727 (V.I. 2011). Because the Superior Court's March 10,2011 Judgment and Commitment is a final judgment, we have jurisdiction over Brown's appeal. See, e.g., Browne v. People, S. Ct. Crim. No. 2010-0069, 2012 V.I. Supreme LEXIS 9, at *6 (V.I. Feb. 2, 2012) (in a criminal case, written judgment embodying the adjudication of guilt and the sentence imposed based on that adjudication constitutes a final judgment for purposes of 4 V.I.C. § 32(a)); Melendez v. People, S. Ct. Crim. No. 2010-0071, 2012 V.I. Supreme LEXIS 8, at *6 (V.I. Feb. 2, 2012) (same).
"Generally, this Court will not review a sentence which falls within the bounds prescribed by the applicable statute. In that regard, the trial court's sentencing determination will be interfered with only upon a showing of illegality or abuse of discretion." Cheatham v. People, S.Ct. Crim. No. 2008-0026, 2009 V.I. Supreme LEXIS 22, at *4 (V.I. 2009) (unpublished) (quoting Warner v. Gov't of the V.I., 332 F. Supp. 2d 808, 810, 46 V.I. 251 (D.V.I. App. Div. 2004)). Nevertheless, when a criminal defendant fails to object to a Superior Court decision or order, this Court ordinarily only reviews for plain error, provided that the challenge has been forfeited rather than waived. Francis v. People, 52 V.I. 381, 390 (V.I. 2009).
We note that the parties disagree as to the appropriate standard of review for the sole issue that is the subject of this appeal: whether the Superior Court sufficiently explained the sentencing disparity between Brown and Jacobs. According to the People, plain error review is warranted because neither Brown nor his counsel objected to the sentence on any ground after it was announced. (Appellee's Br. 10.) Brown, however, argues that he never possessed an opportunity to object because the Superior Court purportedly immediately "ended [Brown's] sentencing hearing after it pronounced the sentence." (Reply Br. 5.)
We agree with the People that plain error review is warranted. Despite Brown's claim that the Superior Court abruptly ended the sentencing hearing, the matter did not adjourn until Brown's counsel asked, "Your Honor, may I please be excused?" (J.A. 68.) In addition, there is absolutely no indication that, had Brown's counsel brought any issues to the Superior Court's attention instead of requesting an adjournment, the judge would have nevertheless proceeded to terminate the hearing instead of addressing those issues on the merits. Moreover, even if Brown's counsel did not recognize the Superior Court's error until after the hearing adjourned, it is not clear why Brown could not have filed a written motion to correct or reduce his sentence pursuant to Superior Court Rule 136. Therefore, we review the sole issue on appeal only for plain error, since Brown possessed an opportunity to request the Superior Court to further explain the reasons for its sentence, but failed to do so. See V.I.S.Ct.R. 22(m) ("Issues that were . . . not raised or objected to before the Superior Court... are deemed waived for purposes of appeal, except that the Supreme Court, at its option, may notice an error not presented that affects substantial rights.").
B. Failure to Explain Sentencing Disparity
Brown, for his sole issue on appeal, argues that the Superior Court erred when it disparately sentenced Brown and Jacobs for the same offense —• voluntary manslaughter — without explaining, on the record, why Brown received a substantially greater sentence. Specifically, Brown contends that such an explanation was necessary because there is absolutely nothing in the record to justify such a large disparity, given (1) Brown's lack of prior convictions, (2) that every witness, other than Jacobs himself, testified that it was Jacobs and not Brown who stabbed Halliday, and (3) the concerns about "clique" and "gang" activity in the community, as well as the impact of Halliday's death on his family, applied equally to both Brown and Jacobs. According to Brown, the only possible explanations for the disparity are a desire to punish Brown for exercising his right to proceed to trial and to appeal his original murder conviction, or to enhance his sentence to respond to increased clique or gang-related activity, committed by unrelated third parties, that occurred during the three-year period between his and Jacobs's respective sentencing hearings.
For this Court to reverse the Superior Court under the plain error standard of review, "there must be (1) 'error,' (2) that is 'plain,' and (3) that 'affect[s] substantial rights.' " Francis, 52 Y.I. at 390 (quoting Johnson v. United States, 520 U.S. 461, 466-67, 117 S. Ct. 1544, 137 L. Ed. 2d 718 (1997)). However, even "[i]f all three conditions are met," this Court may reverse the Superior Court "only if (4) the error seriously affect[s] the fairness, integrity, or public reputation of judicial proceedings." Id. at 390-91. The defendant bears the burden of establishing the existence of plain error. See United States v. Olano, 507 U.S. 725, 734-735, 113 S. Ct. 1770, 123 L. Ed. 2d 508 (1993); United States v. Guadalupe, 402 F.3d 409, 410 n.1 (3d Cir. 2005) (same); Nanton v. People, 52 V.I. 466, 491 (V.I. 2009) (Hodge, C.J., concurring in part and dissenting in part) (same).
We find that the first and second prongs of the plain error test are met. Although the People are correct that it is "exceedingly rare" that a sentence will be overturned on appeal due to sentencing disparities between co-defendants, see Hutto v. Davis, 454 U.S. 370, 374, 102 S. Ct. 703, 70 L. Ed. 2d 556 (1982), it was well established, at the time the Superior Court sentenced Brown, that a sentencing disparity premised on the fact that one defendant exercised a constitutional right — such as the right to proceed to trial — represents an error of a constitutional magnitude that, if preserved, mandates resentencing as a remedy. See Gov't of the V.I. v. Walker, 261 F.3d 370, 376 (3d Cir. 2001); see also United States v. Roberts, 404 Fed. Appx. 624, 625 (3d Cir. 2010) (summarizing instances in which sentencing disparities between co-defendants will warrant reversal). Similarly, it was equally well established that, when parties properly raise an issue during the course of Superior Court proceedings, the Superior Court possesses an obligation to explain the reasons for its decision in order to enable effective appellate review by this Court. See, e.g., Turnbull v. Turnbull, S.Ct. Civ. No. 2009-0092, 2011 V.I. Supreme LEXIS 4, at *4 (V.I. Mar. 1, 2011) (unpublished); Spencer v. Navarro, S. Ct. Civ. No. 2007-0069, 2008 V.I. Supreme LEXIS 18, at *7-8 (V.I. June 27, 2008) (unpublished).
In this case, counsel for both Brown and the People repeatedly referenced Jacobs's sentence during their arguments at the sentencing hearing, with Brown's counsel arguing that "Mr. Brown should not be given a punishment more than Mr. Jacobs because it was actually Mr. Jacobs who did the stabbing," (J.A. 60), while the People contended that Brown should receive a greater sentence than Jacobs based on Jacobs's trial testimony that Brown had stabbed Halliday and that Brown had received a "major break" by avoiding life imprisonment. (J.A. 55-56.) The Superior Court, however, never mentioned Jacobs's sentence in its explanation of Brown's sentence, did not resolve the parties' competing claims as to whether Brown or Jacobs had been the primary aggressor, and did not acknowledge the People's request to impose a greater sentence as a result of Brown receiving a "major break," even though imposing a greater sentence solely because Brown had successfully appealed his murder conviction or otherwise exercised his constitutional rights would be unlawful under Walker. Significantly, the only reasons given in support of the ten-year sentence — the impact on Halliday's family and the community — applied with equal force to both Brown and Jacobs. Thus, the Superior Court effectively made it impossible for Brown to challenge — whether pursuant to Walker or some other authority — the disparate sentence on appeal by failing to comply with Turnbull, Navarro, and similar precedents that were in effect at the time of the March 3, 2011 sentencing hearing. See Murrell v. People, 54 V.I. 338, 366 (V.I. 2010) (explaining that an error is "plain" only if the error is clear under current law, and thus "there can be no plain error where there is no precedent. . . directly resolving it.") (quoting United States v. Lejarde-Rada, 319 F.3d 1288, 1291 (11th Cir. 2003)). Therefore, the first and second prongs of the plain error test have been satisfied.
Nevertheless, we cannot agree that the Superior Court's failure to state, on the record, its reasons for the sentencing disparity affected Brown's substantial rights. We recognize that Brown, in his appellate brief, heavily emphasizes that he is not requesting that this Court direct the Superior Court to actually impose a lower sentence, but only to explain the reasons for the disparate sentences. But while multiple courts have ordered matters remanded due to a judge's failure to adequately explain a sentence, see, e.g., United States v. Peters, 512 F.3d 787, 788-89 (6th Cir. 2008); United States v. Miranda, 505 F.3d 785, 796 (7th Cir. 2007); State v. Marlin, 2009 N.J. Super. Unpub. LEXIS 88, at *23 (NJ. Super. Ct. App. Div. 2009) (unpublished), in such cases the appellate courts proceeded as if the error had been properly preserved. Notwithstanding the fact that the error is a failure to provide an explanation — rather than the failure to actually impose a lower sentence — courts applying the plain error standard of review have held that the third prong is satisfied only if the defendant can "demonstrate a reasonable probability that his sentence would have been lower had the [trial] court not committed the error." United States v. Cantu-Ramirez, 669 F.3d 619, 630 (5th Cir. 2012); see also United States v. Perazza-Mercado, 553 F.3d 65, 78 (1st Cir. 2009) ("[T]here is a reasonable probability that the court might not have imposed the prohibition if it had fulfilled its obligation to explain the basis for the condition or at least made sure that the record illuminated the basis for the condition.").
Based on the record before us, we cannot conclude that there is a reasonable probability that the Superior Court, if ordered to explain the sentencing disparity, would ultimately impose a lower sentence. While this Court is highly disturbed that counsel for the People argued that a greater sentence was appropriate because Brown had received a "major break from the system" and had "already gotten his reduction" by having his first degree murder conviction set aside on appeal, (J.A. 55-57), we note that the Superior Court judge stated, on the record at the March 3, 2011 sentencing hearing, that he had encouraged Brown, at his first degree murder sentencing hearing following his jury trial, to appeal his murder conviction to this Court. (J.A. 63-64.) Therefore, although the better practice would have been for the Superior Court to unambiguously reject the People's argument that reversal of Brown's murder conviction by this Court justified imposition of the maximum sentence for voluntary manslaughter, unlike Walker and similar cases, the record contains absolutely no indication that the Superior Court imposed the ten-year sentence to punish Brown for exercising any of his constitutional rights. Moreover, while the Superior Court did reference gang activity, it did so only by stating that the stabbing of Halliday was "one of the most significant events that brought home to this community that young people in this community were involved in gangs or cliques, as they were described during this trial, and that members who had associated themselves with those groups were willing to engage in the most serious of criminal acts over disputes because people were from different neighborhoods or different parts of this Island," (J.A. 66), and thus the record contains no evidence that the Superior Court sought to punish Brown for any crimes committed by third parties during the three years that passed since Jacobs's sentencing hearing.
In addition to the absence of any evidence that the trial judge imposed the ten-year custodial sentence for impermissible reasons, the record is replete with evidence that Brown and Jacobs were not similarly situated. Contrary to Brown's claim that Jacobs is unquestionably the primary aggressor, Jacobs, like Brown, had pled guilty to aiding and abetting voluntary manslaughter — specifically, to aiding and abetting Brown in killing Halliday. (Jacobs Presentence Rep. 3.) Even if we were to assume, without deciding, that the Superior Court, by referencing the fact that "Mr. Brown was adamant in that plea agreement that he had not stabbed Mr. Halliday," (J.A. 65), proceeded under the assumption that Jacobs was the primary aggressor, courts have consistently held that an aider and abettor may receive a greater sentence than the primary aggressor if other considerations are present that warrant a lesser sentence for the primary aggressor, such as cooperation with the government and agreement to testify against the aider and abettor at trial. See, e.g., United States v. Cirilo-Munoz, 504 F.3d 106, 141-42 (1st Cir. 2007) (rejecting the argument that a disparity between a sentence of 27 years for a defendant convicted of aiding and abetting, compared to a 17-year sentence for the primary aggressor, was on its face grounds for vacating the longer sentence); United States v. Cain, 487 F.3d 1108, 1114-15 (8th Cir. 2007) (upholding as reasonable a sentence twice as long as that received by an allegedly more culpable co-defendant where co-defendant cooperated and testified for the government); United States v. Ramirez, 221 Fed. Appx. 883, 887-88 (11th Cir. 2007) (upholding as reasonable a 16-year sentence for a peripheral participant with no criminal history, even though a more central player received a seven-year sentence, where the more central player had assisted the government's investigation); United States v. Boscarino, 437 F.3d 634, 637-38 (7th Cir. 2006), cert. denied, 551 U.S. 1161, 127 S. Ct. 3041, 168 L. Ed. 2d 755 (2007) (upholding as reasonable a sentence longer than that imposed on co-defendant, even though co-defendant's Sentencing Guidelines range was higher, where that co-defendant had cooperated with the government). Moreover, if an aider and abettor's "mens rea is more culpable than another's, that person's guilt may be greater even if the other might be deemed the actual perpetrator." People v. McCoy, 25 Cal. 4th 1111, 108 Cal. Rptr. 2d 188, 24 P.3d 1210, 1217 (Cal. 2001). Therefore, even if Jacobs stabbed Halliday, the Superior Court could properly find Brown more culpable for Halliday's death given that Brown, knowing that a fight would occur, had made the decision to rush over to the area where he saw the students from an earlier school altercation and to openly bring a knife with him, thus greatly increasing the potential that someone would be seriously hurt or killed during the altercation.
Likewise, we also cannot conclude that the error in this case affected the fairness, integrity, or public reputation of the proceedings to such an extent'that it would warrant this Court exercising its discretion to remand for re-sentencing. The fourth prong of the plain error test is least likely to be satisfied when "a timely objection.in the trial court could have eliminated, or substantially ameliorated, any error by means well short of the drastic relief . . . necessary to remedy the error on appeal." United States v. Promise, 255 F.3d 150, 194 (4th Cir. 2001) (Motz., J., concurring in part and dissenting in part) (collecting United States Supreme Court cases). Had Brown's counsel simply asked that the Superior Court explain the reasons for the sentencing disparity, rather than request to be excused immediately after the sentence had been announced, it is likely that the Superior Court would have provided an explanation and this entire appeal would have been unnecessary. Similarly, at any point during the pendency of this appeal, Brown could have filed a motion for correction or reduction of sentence pursuant to Superior Court Rule 136, which could have mooted this appeal in the event the Superior Court, upon reviewing the motion, realized its error and requested permission from this Court to issue an explanation. See V.I.S.Ct.R. 5(b)(3). In other words, since the error in this case was not only obvious, but could have very easily been resolved at the Superior Court level — yet no attempt was made to do so — we decline to exercise our discretion to remand this matter for re-sentencing even if the third prong of the plain error test had been met.
III. CONCLUSION
Given the existence of extensive, binding case law establishing (1) that sentence disparities between co-defendants may violate the United States Constitution or otherwise be illegal if the sentence is imposed to punish a defendant for exercising his constitutional rights, and (2) that trial judges must explain, on the record, their reasons for imposing disparate punishments upon similarly situated defendants, the Superior Court erred when it failed to provide any explanation for the sentencing disparity between Brown and Jacobs. Nevertheless, Brown has not satisfied either the third or fourth prongs of the plain error test, in that he has failed to demonstrate that the Superior Court's error impacted his substantial rights or affected the fairness, integrity, or public reputation of the proceedings. Accordingly, we affirm the March 10, 2011 Judgment and Commitment.
See United States v. Rivera-Hidalgo, 458 Fed. Appx. 449, 452-53 (6th Cir. 2012) (reviewing, for plain error, claim that trial court failed to adequately explain apparent inconsistency in sentence); United States v. Valdes-Rodriguez, 455 Fed. Appx. 494, 495-96 (5th Cir. 2011) ("Because Valdes-Rodriguez's general objection to 'the reasonableness of the sentence' did not sufficiently raise below his argument that the district court failed to explain adequately the sentence imposed, we review the issue for plain error."); United States v. Burrell, 622 F.3d 961, 965 (8th Cir. 2010) ("Indeed, an argument that a district court failed to explain a sentence must be reviewed for plain error if it was not raised to the district court 'at the time of sentencing.' ") (quoting United States v. Statman, 604 F.3d 529, 534 (8th Cir. 2010)); United States v. Ciappetta, 284 Fed. Appx. 854, 855 (2d Cir. 2008) ("Ciappetta's first claim — that the district court failed to explain how Ciappetta engaged in more culpable conduct than one of his co-defendants — is reviewed for plain error because Ciappetta did not object to the district court's explanation of its sentence below.") (citing United States v. Villafuerte, 502 F.3d 204, 211 (2d Cir.2007)); United States v. Romero, 491 F.3d 1173, 1176-77(10th Cir. 2007) (holding that plain error review is used for unpreserved challenges to the method by which the trial court arrived at a sentence, including arguments that the sentencing court failed to explain adequately the sentence imposed).
The concurrence argues that Brown, through his counsel, "directly involved the trial court that [he] should not be given a punishment that is harsher than the punishment imposed on Jacobs," and that this statement "was sufficient to preserve Brown's issue on appeal." (Con. Op. 4.) We emphasize, as Brown does in both his principal and reply briefs, that the issue before this Court is not whether the Superior Court committed error by imposing a disparate sentence. Rather, the sole issue Brown raises on appeal is whether the Superior Court erred when it failed to explain, on the record, the reasons for the sentence disparity. Importantly, Brown never argued — whether at the sentencing hearing itself, or in a subsequent motion —that the reasons given for the disparate sentence were insufficient. While Brown's counsel argued that "Mr. Brown should not be given a punishment more than Mr. Jacobs because it was actually Mr. Jacobs who did the stabbing," (J.A. 60 (emphasis added)), at no point did Brown inform the Superior Court — either through argument or citation to any legal authority • — • that it could not impose a harsher punishment without justifying the disparate sentence on the record.
We note that both Brown and the People, in their respective briefs, cite to numerous federal appellate court decisions interpreting the Federal Sentencing Guidelines and similar federal authorities. Such federal authorities, however, are not applicable to Virgin Islands local courts, and thus case law interpreting 18 U.S.C. § 3553 and similar provisions provide both this Court and the Superior Court with little to no guidance.
Moreover, appellate courts in other jurisdictions have also required trial courts to explain the basis for a sentencing disparity on the record. See, e.g., United States v. Davis, 437 F.3d 989, 997 (10th Cir. 2006); State v. Bailey, 251 Kan. 527, 834 P.2d 1353, 1356 (Kan. 1992); State v. Roach, 146 N.J. 208, 680 A.2d 634, 646 (N.J. 1996); Commonwealth v. Cleveland, 703 A.2d 1046, 1048 (Pa. Super. Ct. 1997). Importantly, this had been the practice in some federal courts even before the federal Sentencing Guidelines mandated such explanations in order to maintain the appearance of judicial impartiality and protect defendants from retaliatory sentencing. See United States v. Hall, 778 F.2d 1427, 1428-29 (9th Cir. 1985) (collecting cases and discussing United States v. Capriola, 537 F.2d 319, 321 (9th Cir. 1976)).
The concurrence correctly recognizes that 18 U.S.C. § 3553(c) is not applicable to proceedings in the Superior Court. However, as noted above, we do not rely on this federal statute for our holding that the Superior Court erred when it failed to explain the reasons for its sentence. Rather, we base our holding on our prior precedents that the Superior Court must, as a general matter, explain the reasons for its decisions so that this Court can review the decision on appeal.
The concurrence erroneously characterizes this Court as holding that the first two prongs of the plain error test are met because the Superior Court issued a disparate sentence due to Brown deciding to proceed to trial. But this is not the egregious error the Superior Court committed; as explained above, the first and second prongs are satisfied solely because the Superior Court failed to explain, on the record, the reason for the disparate sentence. As we discuss in our analysis of the third factor, Brown has failed to establish that the Superior Court's failure to explain its decision affected his substantial rights, since there is absolutely no evidence in the record that the Superior Court sentenced Brown more harshly than Jacobs as a result of Brown exercising his right to proceed to trial and to appeal his murder conviction.
In its appellate brief, the People argue that this Court cannot review the instant appeal because Brown has not provided the transcript of Jacobs's sentencing hearing. (Appellee's Br. 6.) However, as noted above, the People misunderstand the impetus behind the instant appeal, for Brown is not arguing that he must receive a lower sentence, but is solely contending that the Superior Court's failure to provide any explanation for the sentencing disparity necessitates a remand so that the Superior Court can state its reasons on the record. Nevertheless, given that our review is for plain error, submission of Jacobs's sentencing transcript could have assisted this Court in evaluating the third prong of the plain error test.