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            DISTRICT OF COLUMBIA COURT OF APPEALS

                                No. 15-CM-1209

                             PAZ CRUZ, APPELLANT,

                                       V.


                            UNITED STATES, APPELLEE.

                        Appeal from the Superior Court
                          of the District of Columbia
                                (CMD-3591-15)

                   (Hon. Geoffrey M. Alprin, Motion Judge)

(Submitted April 19, 2017                                Decided August 3, 2017)

      Gregory W. Gardner was on the brief for appellant.

       Channing D. Phillips, United States Attorney, and Elizabeth Trosman, John
P. Mannarino, and Anwar Graves, Assistant United States Attorneys, were on the
brief for appellee.

      Before FISHER, BECKWITH and EASTERLY, Associate Judges.

      BECKWITH, Associate Judge:     Appellant Paz Cruz, charged with simple
                                         2


assault,1 moved under D.C. Code § 24-607 (b) (2012 Repl.)2 to be treated for

alcoholism in lieu of being prosecuted. The trial court denied Mr. Cruz‘s motion,

apparently relying on a Pretrial Services Agency (PSA) officer‘s representation

that PSA had previously recommended ―intensive outpatient treatment‖ and that

Mr. Cruz had ―said he [did not] want it.‖ The record does not indicate what

significance the trial court attached to the officer‘s representation or whether the

court considered other factors in denying Mr. Cruz‘s motion. Concluding that the

record is inadequate to demonstrate that the trial court properly exercised its

discretion, we vacate the court‘s denial of Mr. Cruz‘s motion and remand the case

for further consideration.


                                         I.


      Two weeks before his scheduled trial date, Mr. Cruz, through counsel, filed

a ―motion for treatment in lieu of criminal prosecution.‖ Mr. Cruz asserted that he

would ―voluntarily‖ submit to ―treatment for chronic alcoholism,‖ and asked the

court to ―conduct a civil hearing‖ to determine whether he qualified for alcoholism

treatment in lieu of prosecution under D.C. Code § 24-607 (b). Mr. Cruz proffered
      1
          D.C. Code § 22-404 (a)(1) (2013 Supp.)
      2
         All subsequent D.C. Code citations, unless otherwise noted, are to the
2012 replacement set.
                                           3


that PSA had ―found that [he] is in need of treatment and [had] recommended

intensive outpatient treatment,‖ and he also proffered that ―[t]here are adequate and

appropriate programs, such as APRA,[3] that are able to provide such [treatment].‖

The government filed a memorandum in opposition to Mr. Cruz‘s motion, arguing

that ―civil commitment under § 24-607 should only be used in the rarest of

occurrences‖ and that Mr. Cruz had failed to meet ―the statutory requirements.‖

The government specifically noted that Mr. Cruz had not proffered a ―medical

diagnosis‖ in support of his claim that he is a ―chronic alcoholic.‖


      The trial court heard argument on the motion at a subsequent status hearing.

In response to the argument raised by the government in its opposition

memorandum, Mr. Cruz‘s counsel acknowledged that Mr. Cruz had not received a

medical diagnosis of alcohol dependency. Counsel represented, however, that Mr.

Cruz was ―willing to . . . [be] assessed‖ and requested that a hearing on Mr. Cruz‘s

motion ―be scheduled for another date to allow [counsel] to obtain an expert to

conduct an analysis.‖ The trial court questioned why Mr. Cruz had not already

sought a diagnosis: ―[I]t is a little difficult to walk in on the trial date,[4] although


      3
        See D.C. Code § 7-3002 (1) (abbreviating ―Addiction Prevention and
Recovery Administration‖ as ―APRA‖).
      4
          The status hearing was held on the date originally scheduled for the start
                                                                     (continued…)
                                           4


you filed this a few days ago, and say we oughta have him—we oughta have the

client examined by a medical doctor.‖ Mr. Cruz‘s counsel responded that he had

waited to seek relief under § 24-607 (b) because he had initially ―tried to explore

community service‖—since Mr. Cruz did not have any prior convictions—but that

this proposal had been ―denied.‖ 5 Counsel further explained that he had been

trying to ―conserve resources in getting an expert‖—he did not want to expend

funds on an expert if the court was going to deny the motion in any case. 6




(…continued)
of the trial, and at the hearing, the trial court initially seemed unaware that the case
was not going to proceed to trial on that day. The court expressed concern that Mr.
Cruz‘s motion came ―too late‖—the court thought that granting Mr. Cruz‘s motion
would inconvenience the government‘s witnesses by pushing back the trial date.
After being reminded that the court had already converted the trial date to a status-
hearing date and being informed that none of the government‘s witnesses were
present, the court indicated that it was no longer concerned that Mr. Cruz had
waited too long to file his motion: ―[T]hat changes the matter for me.‖ Mr. Cruz
also pointed out that the trial date had already been continued once before—that
time, because the government had not provided timely discovery. In total,
approximately four months had passed between Mr. Cruz‘s arrest and the status
hearing.
      5
        The record does not reveal precisely what defense counsel meant by this,
but he was likely explaining a failed attempt to enter into a deferred-prosecution
arrangement with the government. See Oliver v. United States, 832 A.2d 153, 156
n.2 (D.C. 2003).
      6
           Mr. Cruz‘s counsel stated, ―My experience has been that when th[e] issue
[of treatment in lieu of prosecution] is raised, . . . we‘ve been allowed some time to
obtain . . . the medical treatment or medical assessment as to whether or not [the
                                                                         (continued…)
                                        5


      The prosecutor responded by arguing that Mr. Cruz‘s proposed treatment

option, APRA, ―does [not] do civil commitments.‖          The prosecutor further

represented that he had concerns about whether ―Mr. Cruz . . . want[ed] to be

civilly committed to [the] hospital for his chronic alcoholism.‖ The prosecutor

contended that ―[t]his isn‘t just going to an outpatient treatment and going back

home. This is civil commitment.‖ Mr. Cruz‘s counsel responded that D.C. Code

§ 24-607 (b) did not require ―commitment, per se,‖ and that ―in th[is] day and age

what we‘re dealing with is treatment.‖ Counsel acknowledged, however, that

inpatient commitment ―obviously . . . is an option if deemed necessary.‖ The trial

court noted that under § 24-607 (b), Mr. Cruz ―could wind up in a hospital for‖ up

to 180 days—the maximum sentence for simple assault—and asked, ―[I]s that

something he wants?‖ Mr. Cruz‘s counsel replied, ―What he wants is treatment for

his alcoholism.‖


      The court stated that Mr. Cruz ―can have treatment . . . through the regular

criminal process‖ rather than through § 24-607 (b). The court asked a PSA officer

who was present in the courtroom ―what PSA offers in [a] situation like this.‖ The



(…continued)
defendant] is a chronic alcoholic.‖ Counsel represented that he had ―done [a D.C.
Code § 24-607 (b)] hearing[] once before with Judge [Harold] Cushenberry.‖
                                            6


officer responded:


              The Defendant‘s assessment that he received previously
              indicated intensive outpatient treatment. So, that‘s the
              level, but below residential.             And from my
              understanding[,] when the Defendant reported to our
              office, which he has continuously done, he‘s never taken
              up the opportunity to participate in treatment. He said he
              doesn‘t want it.

After hearing from the PSA officer, the trial court denied Mr. Cruz‘s motion. The

court indicated that the general basis for the denial was the PSA officer‘s

representation7 but did not further elaborate. 8


      Mr. Cruz was later convicted of simple assault in a bench trial and given a

sentence of ninety days in jail, suspended as to all but five days.


                                           II.


      D.C. Code § 24-607 (b)(1)(A) provides that ―[t]he [c]ourt may . . . commit to


      7
          The court said, ―Well, given that, . . . I think I would deny this motion.‖
      8
         Mr. Cruz‘s counsel sensed that the court denied the motion on the basis
that Mr. Cruz did not want treatment, and asked the court to reconsider: ―[I]f [the
PSA assessment] was back in March, . . . and we filed this motion [for treatment]
several months later, I believe that . . . [Mr. Cruz] is entitled to change his mind if
he wants to.‖ The court responded that Mr. Cruz could ―still possibly . . . get
[treatment] in the context of the criminal case‖ and reiterated, without further
explanation, that it was denying Mr. Cruz‘s motion.
                                           7


the custody of the Mayor for treatment and care for up to a specified period of time

a chronic alcoholic who . . . [i]s charged with any misdemeanor and who, prior to

trial . . . , voluntarily requests such treatment in lieu of criminal prosecution.‖ As

this provision uses the permissive ―may‖ rather than the imperative ―shall‖—and

given the absence of contrary indicators in the text of the statute or in the

legislative history—the decision whether to grant treatment in lieu of prosecution

is committed to the discretion of the trial court. 9 See Kaiser Found. Health Plan of

Mid-Atl. States, Inc. v. Rose, 583 A.2d 156, 158 (D.C. 1990). To order such

discretionary relief, however, the court must first find, ―after a medical diagnosis

and a civil hearing,‖ that ―[t]he [defendant] is a chronic alcoholic‖ 10 and that

―[a]dequate and appropriate treatment provided by the Mayor is available for the

[defendant].‖ D.C. Code § 24-607 (b)(2)(A).11



      9
          This discretion must be exercised in light of Congress‘s pronouncement
that ―all public officials in the District of Columbia shall take cognizance of the
fact that . . . a chronic alcoholic is a sick person who needs, is entitled to, and shall
be provided appropriate medical, psychiatric, institutional advisory, and
rehabilitative treatment services.‖ D.C. Code § 24-601.
      10
          A ―chronic alcoholic‖ is a ―person who chronically and habitually uses
alcoholic beverages to the extent that (A) [t]hey injure his health or interfere with
his social or economic functioning; or (B) [h]e has lost the power of self-control
with respect to the use of such beverages.‖ D.C. Code § 24-602 (1).
      11
           In addition to allowing the court to order treatment when a defendant is
                                                                     (continued…)
                                          8


      When reviewing a discretionary decision of the trial court, we ―examine[]

the record and the trial court‘s determination for those indicia of rationality and

fairness that will assure [us] that the trial court‘s [decision] was proper.‖ Johnson

v. United States, 398 A.2d 354, 362 (D.C. 1979). This court first of all determines

whether ―the trial court recognize[d] that it had . . . discretion‖ and whether it

―purport[ed] to exercise‖ such discretion. Id. at 363. A trial court errs when it

―[f]ail[s] to exercise choice in a situation calling for choice.‖ Id. This court next

assesses whether ―the record reveal[s] sufficient facts upon which the trial court‘s

determination was based.‖ Id. at 364. The trial court‘s discretionary decision must

be ―based upon and drawn from a firm factual foundation‖: A court errs ―if no

valid reason is given or can be discerned for [its discretionary decision]‖ or ―if the

stated reasons do not rest upon a specific factual predicate.‖ Id.


      If this court finds that the trial court did in fact exercise its discretion and

that there is an adequate record for this court to review that exercise of discretion,

(…continued)
charged with a misdemeanor, the statute allows the court to order treatment where
a defendant has been convicted of public drinking or public intoxication, see D.C.
Code § 25-1001 (2017 Supp.), or acquitted of one of those offenses ―on the ground
of chronic alcoholism.‖ D.C. Code § 24-607 (b)(1)(A)(ii)–(iii). When the
defendant has been convicted of the offense, the court may not order relief under
§ 24-607 (b) unless it first finds that the defendant ―constitutes a continuing danger
to the safety of himself or of other persons.‖ D.C. Code § 24-607 (b)(2)(A)(iii).
                                          9


then this court must ―determine whether the trial court‘s action was within the

range of permissible alternatives.‖ Johnson, 398 A.2d at 365. If not—or if ―the

[court] failed to consider a relevant factor, . . . relied upon an improper factor, [or

stated] reasons [that do not] reasonably support the conclusion‖—then the trial

court‘s exercise of discretion was erroneous. Id. (quoting Note, Perfecting the

Partnership: Structuring the Judicial Control of Administrative Determinations of

Questions of Law, 31 Vand. L. Rev. 91, 95 (1978)). See generally Richardson v.

United States, 98 A.3d 178, 186 (D.C. 2014) (summarizing this court‘s abuse-of-

discretion standard of review). Our standard of review thus reflects that although

we accord the trial court substantial ―latitude‖ in its exercise of discretion, this

latitude comes with conditions: that the ―court . . . take no shortcuts,‖ that it

―exercise its discretion with reference to all the necessary criteria,‖ and that it

explain its reasoning in sufficient detail to permit appellate review. Ibn-Tamas v.

United States, 407 A.2d 626, 635 (D.C. 1979).


      In the present case, the record is inadequate to support the trial court‘s denial

of Mr. Cruz‘s motion for treatment in lieu of prosecution. The trial court appeared

to view as dispositive the PSA officer‘s representation that Mr. Cruz had been

recommended for ―intensive outpatient treatment‖ yet had failed to undergo the
                                         10


recommended treatment. 12 But the trial court did not explain—even in general

terms—the significance it attached to this representation. It might be that the trial

court thought the PSA officer‘s representation established that Mr. Cruz did not

want alcoholism treatment. Given, however, that the trial court did not state that it

was rejecting Mr. Cruz‘s counsel‘s contrary representation that Mr. Cruz wanted

treatment—let alone provide a reason for rejecting it—we cannot conclude on the

record before us that there was a firm factual foundation for the trial court to give

definitive weight to the PSA officer‘s representation. Cf. Concord Enters., Inc. v.

Binder, 710 A.2d 219, 224–25 (D.C. 1998) (―Where the trial court provides only

conclusory findings, unsupported by subsidiary findings, or by an explication of

the court‘s reasoning with respect to the relevant facts, a reviewing court simply is

unable to determine whether or not those findings are clearly erroneous.‖ (quoting

U.S. Fid. & Guarantee Co. v. Kaftarian, 520 A.2d 297, 300 (D.C. 1987))).


      More likely, the trial court might have thought that because Mr. Cruz had


      12
           We note that the trial court had asked the PSA officer ―what PSA offers
in [a] situation like this,‖ suggesting that the trial court was asking the officer to
comment on the issue of treatment in lieu of prosecution. The PSA officer‘s
response apparently addressed the pretrial treatment that PSA had recommended—
not PSA‘s position on whether treatment in lieu of prosecution was appropriate
under the facts of this case. On remand, the trial court should clarify how it
understood the PSA officer‘s representation.
                                         11


been recommended for ―intensive outpatient treatment‖ rather than inpatient

treatment, Mr. Cruz was ineligible for relief. This would have been consistent with

the government‘s position at the motion hearing that treatment under § 24-607 (b)

―isn‘t just going to an outpatient treatment and going back home.‖ But such a

conclusion would have been unsupported by the text of § 24-607. The statute does

not require inpatient commitment, and in fact indicates that outpatient commitment

is an option. See D.C. Code § 24-607 (d) (―The Mayor may transfer any . . .

committed person‖ who has not been adjudged a danger to himself or others ―from

inpatient to outpatient status, and any committed person from outpatient to

inpatient status, without permission of the Court . . . .‖ (emphases added)).

Accordingly, if the trial court rejected Mr. Cruz‘s motion on the ground that Mr.

Cruz could not be committed under § 24-607 (b) for outpatient treatment, then the

trial court erred. See Henson v. United States, 122 A.3d 899, 902 (D.C. 2015)

(―[W]here a trial court makes an error of law, it infects the exercise of

discretion.‖).13


       It is also possible that the trial court thought that Mr. Cruz‘s failure to

       13
           Even though outpatient commitment is permissible under D.C. Code
§ 24-607 (b), it may be that as a practical or factual matter there are no outpatient-
commitment programs that can accommodate Mr. Cruz. The trial court should
address this issue on remand.
                                          12


participate in the treatment recommended by PSA, combined with Mr. Cruz‘s

possible tardiness14 in applying for relief under § 24-607 (b) and the nature of the

offense with which he was charged, weighed against granting treatment in lieu of

punishment. See United States v. Cureton, Nos. M-11412-81 & M-11522-81, 110

D.W.L.R. 245, 250 (D.C. Super. Ct. Jan. 4, 1982) (Schwelb, J.).              But even

assuming such reasons would be sufficient to support the trial court‘s exercise of

discretion, this court cannot ignore that these were not the trial court‘s stated

reasons.


      The government, quoting D.C. Code § 24-607 (b)(2)(A), contends that we

should affirm the trial court‘s discretionary ruling because in the trial court, Mr.

Cruz ―failed to show that: (1) ‗after a medical diagnosis,‘ he had been found to be

‗a chronic alcoholic‘; or (2) ‗adequate and appropriate treatment provided by the

Mayor was available for [him]‘‖ (alteration in original). 15 But the trial court did

not rely on Mr. Cruz‘s purported failure to satisfy the § 24-607 (b)(2)(A) statutory

      14
           But see supra note 4.
      15
            Although not material to our disposition of this appeal, it is worth noting
that it is not clear that Mr. Cruz did in fact fail to show the availability of adequate
treatment options. Mr. Cruz proposed one specific treatment provider—APRA—
and suggested that other unspecified options were available. The prosecutor
contended that APRA does not do ―civil commitments,‖ but he may have meant
that APRA does not do inpatient civil commitments. But see supra note 13.
                                          13


requirements in declining to grant Mr. Cruz‘s motion.           Moreover, Mr. Cruz

specifically requested that the trial court schedule a hearing so that he could

present expert medical testimony and other evidence in support of his motion.

Perhaps the trial court could have refused to hold such a hearing on the ground that

Mr. Cruz had waited too long to request it or that Mr. Cruz had failed to make an

adequate proffer—and then proceeded to deny Mr. Cruz‘s motion for lack of

evidentiary support—but the trial court did not indicate that it was doing so.

Denying Mr. Cruz a hearing without adequate justification—thus depriving him of

an opportunity to present evidence relevant to the question whether he satisfied the

statutory prerequisites for relief under § 24-607 (b) and relevant to the court‘s

discretionary decision whether to grant such relief—was itself an erroneous

exercise of discretion. Cf. Dawkins v. United States, 41 A.3d 1265, 1272 (D.C.

2012) (―By declining to hear the [defendant‘s] proffer, the trial court denied itself a

‗firm factual foundation,‘ which would have allowed it to make ‗an informed

choice among the alternatives‘ before it.‖ (quoting Johnson v. United States, 960

A.2d 281, 295 (D.C. 2008))).16



      16
           The government also contends ―that the record does not show that
appellant voluntarily, knowingly, and with the advice of counsel waived such
constitutional rights as are implicated by commitment in lieu of prosecution.‖
When a similar argument was made in the trial court, the court appeared to reject it
                                                                    (continued…)
                                          14


      In sum, the trial court failed to set forth sufficient reasons in support of its

discretionary ruling denying Mr. Cruz‘s motion for treatment in lieu of

prosecution: We lack the record necessary ―to determine whether the [court‘s]

choice was both reasonable and proper in the specific factual context‖ of this case.

Johnson, 398 A.2d at 364. Further, because the record is inadequate to reveal what

principles the court considered in denying Mr. Cruz‘s motion, we cannot conclude

that the trial court would, after due consideration of the motion and applying the

correct legal principles, deny the motion. Had the court granted the motion, Mr.

Cruz would not have faced trial and conviction. 17




(…continued)
(at least provisionally) on the ground that it was defense counsel‘s ―job‖ to
determine whether Mr. Cruz wanted treatment in lieu of prosecution. We do not
have occasion to review the trial court‘s possible resolution of this issue or address
the government‘s argument on the merits, because we lack an adequate record.
And the question whether a defendant must make a showing of affirmative consent
on the record—for example, go through something akin to the Super. Ct. Crim. R.
11 colloquy—was not squarely raised in the trial court. Nonetheless, if on remand
it is determined that Mr. Cruz did not want treatment in lieu of prosecution (or no
longer wants such treatment), then Mr. Cruz cannot be committed. See D.C. Code
§ 24-607 (b)(1)(A)(i) (requiring the defendant to ―voluntarily request[] . . .
treatment‖).
      17
           Our decision to remand the case to the trial court obviates consideration
(at least for now) of Mr. Cruz‘s alternative argument that the trial court violated his
due process rights by ―plac[ing] undue weight on the Pretrial Service agent‘s
representation‖ and by failing to ―giv[e] Mr. Cruz a chance to deny or explain it.‖
                                        15


                                        III.


      For the foregoing reasons, we vacate the trial court‘s denial of Mr. Cruz‘s

motion for treatment in lieu of prosecution and remand the case for further

consideration of the motion.18 We do not reverse Mr. Cruz‘s conviction. But

unless the trial court again decides to deny Mr. Cruz‘s motion, the trial court must

vacate Mr. Cruz‘s conviction and sentence and grant any other appropriate relief.




                                                   So ordered.




      18
          The trial court should consider whether Mr. Cruz still wants treatment in
lieu of prosecution. See supra note 16.
