1995 Decisions

Opinions of the United

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Precedential or Non-Precedential: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.

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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 MonsantoSwan'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 MonsantoSwan'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.