                                                                                                                           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Precedential or Non-Precedential: Non-Precedential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.
http://digitalcommons.law.villanova.edu/thirdcircuit_2008/67


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                                                  NOT PRECEDENTIAL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



                                              2
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



                                              3
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).




                                             4
       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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