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IN THE SUPERIOR COURT THE VIRGIN ISLANDS DIVISION OF ST. THOMAS AND ST. JOHN PEOPLE OF THE VIRGIN ISLANDS, ) ) Plaintiff, ) CASE NO. ST-05-CR-385 ) V. ) ) KAREEM JAMAL BROWN, ) ) Defendant. ) ) MEMORANDUM OPINION Pending before the Court is Defendant’s July 5, 2012, Motion to Correct or Reduce Sentence filed pursuant to Superior Court Rule 136. For the reasons stated below, Brown’s Motion will be denied. FACTUAL AND PROCEDURAL HISTORY Following a remand from the Supreme Court dated October 27, 2010, reversing Brown’s conviction of murder in the first degree and ordering a new trial, Defendant pled guilty to voluntary manslaughter in the September 2005 stabbing death of Jahleel Halliday. On March 3, 2011, Brown was sentenced to ten (10) years imprisonment. Brown again appealed to the Supreme Court, arguing that this Court erred by failing to explain its reasons for imposing a sentence on Brown that was more harsh that that of his co- defendant Keelo Jacobs, who had also entered a plea of guilty to voluntary manslaughter. Following Jacobs’ testimony on behalf of the People at Brown’s trial under a plea agreement, Jacobs had been sentenced in 2008 to incarceration for five (5) years. On May 24, 2012, the Supreme Court affirmed Brown's voluntary manslaughter conviction and sentence, holding that, although this Court’s failure to explain the basis for the different sentences was error, Brown’s People v. Kareem Jamal Brown Case No. ST-05-CR-385 Memorandum Opinion, July 18, 2012 sentence would not be vacated because he had failed to show that the lack of an explanation “impacted his substantial rights or affected the fairness, integrity, or public reputation of the proceeding.”’ Even though the Supreme Court has determined that he is not entitled to resentencing, Brown now asks that the Court reduce his sentence to the same term as that imposed on Jacobs. Alternatively, he belatedly seeks to have the Court explain the sentencing “disparity” through the Rule 136 Motion he could have filed long ago. STANDARD Under Super. Ct. R. 136, the Court may correct an illegal sentence at any time and may correct a sentence imposed in an illegal manner or reduce a sentence within one hundred twenty (120) days after the sentence is imposed or a mandate or order affirming a judgment or dismissing an appeal has become final. From the plain meaning of the wording of the statute, it is clear that the decision whether to correct or reduce a sentence lies within the discretion of the Court.” ANALYSIS Initially, the Court notes that, as the Supreme Court recognized,’ Brown failed to seek a correction or reduction of his sentence within one hundred twenty (120) days of his sentencing. While Defendant’s current Motion may be considered “timely” in that it is filed within one hundred twenty (120) days of the Supreme Court’s denial of his appeal, the Supreme Court did not remand this matter for reconsideration of Brown’s sentence. Because Brown failed to establish in the Supreme Court that he is entitled to relief from his sentence, the Court questions whether it should even consider Defendant’s Motion. The Supreme Court’s Opinion does not, as Brown argues, offer an invitation for him to file the instant Motion; it is a recognition that Defendant failed to ' Kareem Jamal Brown vy. People of the Virgin islands, — VA.__, S.Ct. Crim. No. 2011-0022 (March 24, 2012). * See People v. Joseph, VA.__, 2031 V.1. LEXIS 22 (April 7, 2011); People v. Lake, VAL. 2081 VA. LEXIS 50 (Sept. $ 2011) > The Supreme Court indicated that “since the error in this-case...could have very easily been resolved at the Superior Court level {through a timely Rale 136 motion] — yet no attempt was made to do so — [the Supreme Court} decline[s] to exercise fits]..-discretion to remand this matter for re-sentencing.” S.Ct Crim No. 2011-0022. at 10 setieaieriaatene anit ries minnie eaettiaceaaalaainent em iaeneeeietirta tennant People v. Kareem Jamal Brown Case No. ST-05-CR-385 Memorandum Opinion, July 18, 2012 properly present this issue to this Court in the first instance so that the unnecessary, expensive, and time consuming second venture through the appellate process could have been avoided. The Supreme Court did not say that this Court’s error “can be” easily resolved at the trial court level as Defendant inaccurately states. Rather, it observed that the error “could have been” easily resolved had Defendant given the Court an opportunity to address the basis for his sentence during or shortly after the sentencing hearing. Further, Brown now argues that he is entitled to a sentencing reduction because the Court erred in imposing a sentence different from that received by Jacobs. That is clearly not the argument he raised in the Supreme Court, nor the thrust of the Supreme Court’s Opinion, since the Court clearly stated: 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. We recognize that Brown... heavily emphasizes that he is not requesting that the Court direct the Superior Court to actually impose a lower sentence, but only to explain the reasons for disparate sentences...Based upon 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.‘ Nonetheless, because Brown’s Motion is totally without merit, the Court will disabuse Brown of any lingering misunderstanding he may suffer regarding his sentence so that yet another unnecessary appeal need not be embarked upon. Simply put, there is no basis for “correction” of Defendant’s sentence umder Rule 136. Brown’s sentence was obviously not illegal, since he was appropriately sentenced within the 4S. Ct. Crim. No. 2014-0022, at *5, n.3, and at *8-9 (March 24, 2012). People v. Kareem Jamal Brown Case No. ST-05-CR-385 Memorandum Opinion, July 18, 2012 permissible range of incarceration provided in the applicable statute. Under 14 V.ILC. 925,a person convicted of voluntary manslaughter “shall be imprisoned for not more than ten (10) years”. Thus, Defendant’s sentence of ten (10) years imprisonment fell within the authorized limit of punishment, and, as such, it is presumptively valid.° Nor was Brown’s sentence imposed in an illegal manner, as he now claims. Brown speculates that the Court imposed a harsher sentence on Brown than Jacobs as punishment for Brown’s exercise of his right to stand trial and because he successfully appealed his murder conviction. That argument was expressly rejected by the Supreme Court, when it noted, “...the record contains absolutely no indication that the Superior Court imposed the ten-year sentence to 6 And, Brown’s argument is entirely punish Brown for exercising any of his constitutional rights. illogical. Brown received the sentence about which he complains after a plea of guilty under a plea agreement, not following a trial. Moreover, after the murder trial, the Court urged Brown to appeal his original conviction. It is absurd to suggest that the Court would encourage Defendant to appeal and then punish him for doing so. Rather than the Court’s failure to explain its sentence, it is Defendant’s argument, in the complete absence of supporting evidence, that tends to lower the judicial system as a whole in the estimation of the public. That Brown was initially convicted following a jury trial and that the conviction was subsequently reversed on appeal played absolutely role in the Court’s sentencing decision following his guilty plea, and the Supreme Court wisely refused to accept Brown’s speculative, unfounded argument to the contrary. Nor, was Defendant’s sentence inappropriately influenced by unrelated “gang or clique activity” that occurred either before, or, as Defendant argues, after the September 2005 incident. As the Supreme Court also obsreved, the discussion of gang activity Brown quotes in his Motion merely described the context in which the trial had taken place. Again, the Supreme Court ° Government v. Martinez, 42 V1. 146, 149 (D.V.LApp. 1999). ®S. Ct Crim. No. 2011-0022, at #10 (March 24. 2012), People v. Kareem Jamal Brown Case No. ST-05-CR-385 Memorandum Opinion, July 18, 2012 correctly emphasized, “...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.”’ This Court did not indicate that the stated context was a reason for Brown’s sentence; it merely pointed out that an increased community awareness of the presence of gangs grew out of the incident that led to the charges. This portion of Defendant’s argument too is wholly without merit. That counsel for the People may have improperly argued for a sentence on the basis of Defendant’s gang activity or the “major break” Defendant got in avoiding a life sentence when his conviction was reversed is similarly of no moment, since the Court was not influenced by the People’s argument and did not sentence Brown on that basis. As the Supreme Court also pointed out, this Court did not indicate that those arguments played any role in its sentencing decision. Finally, and most significantly for the purpose of this decision, as the Supreme Court eloquently stated, “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.”® This Court did not sentence Jacobs to the maximum available under the statute in substantial part because he cooperated with the People and provided testimony against Brown at trial. Such a basis for leniency in sentencing has long been recognized in the judicial system. Moreover, this Court considered that, well after the initial confrontation took place at school, Brown rushed to Foot Locker after observing that Halliday and his friends had gone there. The parties participating in the previous incident had separated, and a period of time sufficient for them to cool down had passed. Rather than calming during this hiatus, Brown was all too eager to provoke renewed hostilities once the opportunity arose. "td 8rd at *T} itenteetetiemenennionming selene eaten emma atest tmatnmmltcin lineman cameron encima niarirmniria i nomena raed nriein tei memeriniennrin eeennninnienmenemmnemamennetle People v. Kareem Jamal Brown Case No. ST-05-CR-385 Memorandum Opinion, July 18, 2012 Perhaps the most significant factor in the Court’s sentencing decision was the fact that, in doing so, Brown first armed himself with the knife that eventually proved to be the implement of Halliday’s death. Brown aggressively engaged Halliday both before and at the time of the stabbing, inflaming the participants. He also threatened other persons present at the time of the stabbing. Had Brown not chosen to escalate the conflict, and had he not injected a deadly weapon into the already highly charged quarrel, Halliday would likely not have been killed. Consequently, Brown was ultimately more responsible for Halliday’s death than Jacobs, regardless of which testimony one credits on the issue of who actually stabbed the deceased. As the People accurately indicated, Brown was the “principal agitator” in this sad series of events and bore the greater responsibility for Halliday’s death. Against this background, Brown is not entitled to a reduction of his sentence to the same as that imposed on Jacobs. Defendant having failed to demonstrate that correction or reduction of his sentence is warranted, his Motion will be denied. An Order consistent with this Memorandum Opinion shall issue. Dated: July 18, 2012. a =a HON. MICHAEE-€-BUNSTON ATTEST: Venetia H. Velazquez, Esq. JUDGE OF THE SUPERIOR COURT Clerk of the Court / / 7 OF THE VIRGIN ISLANDS Court Clerk Supervisor 499 so