                                                                                                                           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Precedential or Non-Precedential: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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Recommended Citation
"Gov't of VI v Warner" (1995). 1995 Decisions. Paper 34.
http://digitalcommons.law.villanova.edu/thirdcircuit_1995/34


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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.
