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             DISTRICT OF COLUMBIA COURT OF APPEALS

                                 No. 16-CO-803

                          GEORGE FADERO, APPELLANT,
                                                                      03/22/2018
                                        V.

                           UNITED STATES, APPELLEE.

                         Appeal from the Superior Court
                          of the District of Columbia
                                 (CF3-3523-11)

                       (Hon. Ronna Lee Beck, Trial Judge)

(Submitted January 30, 2018                              Decided March 22, 2018)

      George Fadero, pro se.

      Channing D. Phillips, United States Attorney at the time the brief was filed,
and Elizabeth Trosman, Chrisellen R. Kolb, and O. Andrea Coronado, Assistant
United States Attorneys, were on the brief for appellee.

      Before GLICKMAN, FISHER, and THOMPSON, Associate Judges.

      FISHER, Associate Judge:     Appellant George Fadero challenges the trial

court‘s denial of his D.C. Code § 23-110 (2012 Repl.) motion for post-conviction

relief. We affirm.
                                          2

                                          I.



         This case reaches us for the third time. We summarized the facts in Fadero

v. United States, 59 A.3d 1239, 1242–44 (D.C. 2013) (Fadero I), and do so only

briefly here. On February 12, 2011, a Metropolitan Police Department Officer

stopped appellant for a traffic violation. As the officer was walking away from

appellant, he turned around to see appellant‘s van slowly moving toward him in

reverse. The van hit the officer, knocking him to the ground, and causing him

injuries. It then sped away from the scene.



         The government charged appellant with several offenses based on this

conduct, including felony assault on a police officer while armed (―APOWA‖).

A jury convicted appellant of four of the charged offenses, including APOWA.

We affirmed all convictions, except one, which we held merged with the APOWA

count.     While that appeal was pending, appellant collaterally attacked the

conviction through a § 23-110 motion, claiming ineffective assistance of trial

counsel. Fadero v. United States, No. 13-CO-479, Mem. Op. & J. at 1 (D.C.

Apr. 23, 2014) (Fadero II). The trial court denied the motion without a hearing,

and we affirmed that decision, too. Id. at 4, 6. Appellant filed this second § 23-
                                         3

110 motion pro se. The trial court denied it without a hearing and this appeal

followed.



                                        II.



      This appeal focuses on appellant‘s APOWA conviction, an offense that

derives from two statutory provisions. See Fadero I, 59 A.3d at 1242 n.1 (defining

the elements of APOWA). The first is felony assault on a police officer, D.C.

Code § 22-405 (c), which makes it illegal to (1) assault a person when the

defendant (2) ―knew or should have known that the victim was a [law

enforcement] officer‖ and (3) ―caused a ‗significant bodily injury to the law

enforcement officer,‘ or committed ‗a violent act that create[d] a grave risk of

causing significant bodily injury to the officer.‘‖    Id. (quoting § 22-405 (c))

(alterations in original). The second predicate is D.C. Code § 22-4502, which

provides that defendants may face additional punishment if they commit ―a crime

of violence . . . when armed with or having readily available . . . [a] dangerous or

deadly weapon.‖
                                         4

                                        III.



      Appellant principally argues that the phrase ―grave risk of causing

significant bodily injury,‖ incorporated in § 22-405 (c), is unconstitutionally vague

in light of Johnson v. United States, 135 S. Ct. 2551 (2015). In that case, the

Supreme Court considered a provision of the Armed Career Criminal Act (ACCA)

that defined a ―violent felony,‖ in relevant part, as ―any crime punishable by

imprisonment for a term exceeding one year . . . that . . . is burglary, arson, or

extortion, involves use of explosives, or otherwise involves conduct that presents a

serious potential risk of physical injury to another.‖      135 S. Ct. at 2555–56

(quoting 18 U.S.C. § 924 (e)(2)(B) (2012)) (first alteration in original). The Court

referred to the italicized language as the ―residual clause‖ and held it void for

vagueness. Id. at 2556, 2557. Appellant analogizes the ―grave risk‖ language in

§ 22-405 (c) to the ―serious potential risk of physical injury‖ language in the

ACCA and contends that if the latter phrase offends due process, the former must

as well.



      We disagree. The holding in Johnson turned on the manner in which that

sentencing enhancement provision operated. Whether the residual clause applied

depended on whether the given offense created a sufficiently high risk of injury to
                                         5

others. See 18 U.S.C. § 924 (e)(2)(B)(ii). Yet, the Supreme Court had held that

the relevant ACCA provision, 18 U.S.C. § 924 (e)(2)(B)(ii), required a ―categorical

approach.‖ Taylor v. United States, 495 U.S. 575, 600 (1990). In other words,

judges were barred from assessing an offense‘s potential for harm based on the

way a defendant committed it. Johnson, 135 S. Ct. at 2557. Instead, § 924

(e)(2)(B)(ii) required judges to ―imagine how the idealized ordinary case of the

crime subsequently play[ed] out‖ and evaluate ―whether that abstraction

present[ed] a serious potential risk of physical injury.‖ Id. at 2557–58. Defining

the ―ordinary‖ way a crime unfolded was a highly subjective exercise—as the

Court noted, ―the ordinary instance of witness tampering [could] involve offering a

witness a bribe . . . [o]r threatening a witness with violence‖— and as a result,

courts measured risk from a ―speculative‖ starting point. Id. In holding the

residual clause unconstitutionally vague, the Court emphasized this peculiar

context. Id.



      Section 22-405 (c) does not pose the same concerns. Whether a defendant

―commit[ted] a violent act that create[d] a grave risk of causing significant bodily

injury to the officer‖ is a question of fact. See, e.g., Mobley v. United States, 101

A.3d 406, 421 (D.C. 2014) (holding trial judge committed plain error by ―not

instruct[ing] the jury that to return a guilty verdict on the APOWA offenses, it
                                         6

must find‖ that the defendant caused a significant bodily injury or created a grave

risk thereof (emphasis added)). It turns on the fact-finder‘s assessment of the

defendant‘s actual conduct and does not require judges to measure the risk posed

by reference to abstractions. See id. Demonstrating this point, on appellant‘s

direct appeal, we approved the judge‘s jury instruction on APOWA‘s ―significant

bodily injury‖ element, Fadero I, 59 A.3d at 1248, a holding we could only have

reached if we assumed that element posed a jury question—that is, one resolved by

―apply[ing] the law to th[e] facts.‖ United States v. Gaudin, 515 U.S. 506, 514

(1995). Similarly, when we held the evidence sufficient to establish that appellant

created a ―grave risk‖ of harm to the officer, we based our holding on the risks

posed by appellant‘s behavior rather than the potential for harm inherent in the

―ordinary‖ APOWA incident. Fadero I, 59 A.3d at 1252. As appellant‘s own case

illustrates, § 22-405 (c) does not share the constitutional defects the Supreme Court

perceived in the residual clause.



      Moreover, § 22-405 (c) is precisely the type of statute the Johnson Court

assumed its decision would not affect. The Court stated that ―[a]s a general matter,

we do not doubt the constitutionality of laws that call for the application of a

qualitative standard such as ‗substantial risk‘ to real world conduct.‖ Johnson, 135

S. Ct. at 2561. Section 22-405 (c)‘s grave risk language fits comfortably in this
                                           7

category—indeed, the Court specifically highlighted the phrase ―grave risk‖ as one

it did not view as inherently vague. Id. Because § 22-405 (c)‘s grave risk standard

differs from the residual clause in ways the Court deemed ―[c]ritical[],‖ appellant‘s

Johnson challenge fails. Id. at 2557.



                                          IV.



      We address appellant‘s remaining arguments summarily. First, appellant

challenges the sufficiency of the evidence supporting his convictions for APOWA,

Fleeing from Scene of Accident after Causing Personal Injury (D.C. Code § 50-

2201.05 (a)(1) (2001)),1 and Fleeing from a Law Enforcement Officer in a Motor

Vehicle (D.C. Code § 50-2201.05b (b)(2) (2001)). On direct appeal, appellant

already challenged the sufficiency of the evidence supporting the first two

convictions and lost. Fadero I, 59 A.3d at 1251–52. ―It is well-settled that where

an appellate court has disposed of an issue on appeal, it will not be considered

afresh on collateral attack in a trial court of the same judicial system, absent special

circumstances.‖ Doepel v. United States, 510 A.2d 1044, 1045–46 (D.C. 1986).

Appellant has identified no such special circumstances; accordingly, the trial court

      1
         After appellant lost on direct appeal, the Council of the District of
Columbia repealed, amended, and recodified this provision as § 50-2201.05 (c)
(2014 Repl.).
                                        8

properly held that the sufficiency challenges to the first two convictions were

procedurally barred.



       With respect to the third conviction, appellant did not raise a sufficiency

challenge on direct appeal even though the argument was available to him. See

Fadero I, 59 A.3d at 1251–52. Consequently, he may only assert the claim in this

§ 23-110 proceeding if he can establish cause for and prejudice from his failure to

make the argument previously. (Charles) Thomas v. United States, 772 A.2d 818,

824 (D.C. 2001). Appellant has not attempted such a showing, and, as a result, the

trial court did not err in rejecting the third sufficiency challenge on procedural

grounds.2



       Next, appellant argues that § 22-405 (c) does not qualify as a ―crime of

violence‖ under § 22-4502 because crimes of violence require intentional conduct

and, he asserts, § 22-405 (c) does not. Appellant relies primarily on federal cases

for the supposed rule that whether an offense qualifies as a crime of violence

depends on its intent element; however, the United States and the District of

      2
           Moreover, appellant did not explain why the evidence at trial was
insufficient, making his argument too ―perfunctory‖ for our review. See Comford
v. United States, 947 A.2d 1181, 1188 (D.C. 2008) (quoting United States v.
Zannino, 895 F.2d 1, 17 (1st Cir. 1990)).
                                          9

Columbia define ―crime of violence‖ in ―very different‖ ways. Colter v. United

States, 37 A.3d 282, 283 (D.C. 2012). While the United States Code defines such

crimes by their ―characteristics,‖ see 18 U.S.C. § 16, the D.C. Code identifies them

―by reference to a list of the offenses so designated.‖          Id. (describing the

relationship between § 22-4502 and § 23-1331 (4), the provision that enumerates

―crimes of violence‖). ―[A]ssault on a police officer (felony)‖—D.C. Code § 22-

405 (c)—appears on that list. D.C. Code § 22-1331 (4). Therefore, it qualifies as a

crime of violence regardless of whether it would satisfy the federal definition.3



      Finally, appellant argues that the government violated article I, § 1 of the

United States Constitution (―All legislative Powers herein granted shall be vested

in a Congress of the United States. . . .‖) by charging him with APOWA, an

offense appellant contends the legislature never established. Appellant did not

raise this challenge to the indictment before trial. That makes the contention

      3
           The trial court held this claim procedurally barred, and the government
urges that we do the same. We do not address the procedural arguments because
we choose to reject the claim on the merits. In doing so, we exercise our authority
to affirm the trial court‘s judgment on ―alternative ground[s].‖ James v. United
States, 718 A.2d 1083, 1089 (D.C. 1998) (affirming trial court‘s denial of § 23-110
motion on different rationale than trial court invoked). Resolving appellant‘s claim
in this way is not procedurally unfair to him. The government made the dispositive
argument in its brief. Appellant could have responded to it but choose not to file a
reply brief. Cf. District of Columbia v. Patterson, 667 A.2d 1338, 1347 (D.C.
1995) (disposing of claim based on argument raised in defendant‘s brief to which
plaintiff failed to respond in its reply brief).
                                           10

untimely, see Super. Ct. Crim. R. 12 (b)(3)(B)(v), and appellant has not attempted

to excuse his delay by showing ―good cause,‖ see id. at 12 (c)(3). Accordingly, the

trial court did not err in holding the argument procedurally barred. Cf. Ko v.

United States, 722 A.2d 830, 836 n.17 (D.C. 1998) (―By failing to assert the claim

of duplicity [in the indictment] at trial, Ko waived it.‖).



      Even if appellant had followed proper procedures, his claim would still fail.

In essence, appellant contends that the legislature did not intend prosecutors to

combine D.C. Code §§ 22-405 (c) and -4502 (a)(1) into a single, chargeable

offense. To the contrary, by enacting § 22-4502, the legislature authorized

increased punishment for a broad category of offenses committed in an aggravated

manner. It did so by ―add[ing] an additional element, i.e., while armed with or

having readily available a dangerous weapon, to certain underlying offenses.‖

(Michael) Thomas v. United States, 602 A.2d 647, 653 n.18 (D.C. 1992). Thus, it

was the legislature, not the executive branch, that established aggravated offenses

such as APOWA, murder while armed, and armed robbery. Consistent with that

plain reading, this court treats such offenses no differently from any others. See,

e.g., Robinson v. United States, 100 A.3d 95, 105 (D.C. 2014) (applying traditional

aiding and abetting liability principles to ―while armed‖ offenses); Pope v.

United States, 739 A.2d 819, 821 (D.C. 1999) (discussing ―the offense of assault
                                        11

with intent to kill while armed (AWIKWA), [a] violation of D.C. Code §§ 22-503,

-3202 [the predecessor of -4502]‖ (emphasis added)). Accordingly, we reject

appellant‘s premise:    APOWA is an offense created by the legislature and,

therefore, the prosecutor could not contravene legislative will—let alone usurp

legislative powers—by charging him with it.4



                                             V.



      Appellant‘s arguments have no merit. Thus, we affirm the trial court‘s

denial of his § 23-110 motion.



                                              So ordered.




      4
          Appellant‘s argument suffers an additional defect: in relying on U.S.
Const. art I, § 1, it assumes that Congress retains exclusive power to legislate for
the District of Columbia. This is not so. Under the Home Rule Act, Congress
delegated significant legislative authority to the Council of the District of
Columbia, including the power ―to enact new criminal statutes.‖ In re Perrow, 172
A.3d 894, 898 (D.C. 2017); see also D.C. Code § 1-203.02 (2012 Repl.).
