APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF THE VIRGIN ISLANDS DIVISION OF ST. THOMAS (D.C. Crim. No. 76-00163)
Before Seitz, Chief Judge, and Weis and Garth, Circuit Judges.
This appeal requires us to construe a statute of the Virgin Islands*fn1 which proscribes the fraudulent use of credit cards. The proper interpretation of the statute was not one of the issues raised or briefed on appeal. However, at our request counsel discussed this issue with us at oral argument. Just as we are satisfied that the contentions raised by the appellant Graves in his brief on appeal have no merit, we are equally satisfied that his sentence which was imposed for violations of 14 V.I.C. § 3004 was not authorized and must be vacated.
Gary Graves was arrested on June 22, 1976. A six-count information was filed against him. Four of the six counts were dismissed on the government's motion after Graves had pled guilty to Counts III and IV. Counts III and IV charged violations of 14 V.I.C. § 3004 in that Graves, on June 22, 1976, had fraudulently used a Mastercharge Card issued to one "Muffy Kamara" to obtain services from The New Windward Hotel and Hertz Rent-A-Car.
Graves was sentenced to jail on July 30, 1976, for a term of one year under Count III and for a term of one year under Count IV. However, the judgment provided that he was to serve only six months with respect to Count III and only two months with respect to Count IV, both sentences to be served consecutively, with the balance of each sentence to be suspended. In addition, Graves was placed on unsupervised probation for one year. In effect, therefore, Graves was required to serve eight months of the combined 24-month sentence, with 16 months suspended, and thereafter was to serve 12 months on unsupervised probation.*fn2
The problems presented on this appeal were compounded in large part by Graves' initial self-representation and by a sparse and incomplete record. As best we can glean from the sentencing transcript and from Graves' numerous applications and letters to the district court, it appears that prior to Graves' sentencing on the credit card charges brought in the Virgin Islands, he had been charged in the Eastern District of New York with an apparently unrelated crime of mail theft. According to a letter written by Graves to the district court judge in the Virgin Islands, the mail theft charge had resulted in a federal detainer having been lodged against Graves at some time prior to his Virgin Islands sentencing. Graves asserted in that letter that on August 30, 1976 he was transferred to the Eastern District of New York where on January 7, 1977 he was sentenced to two years imprisonment on the mail theft charge. That sentence was imposed to run consecutively to the Virgin Islands sentence with which we are here concerned.
It is impossible to tell from the record where Graves was incarcerated at the time each of his two Rule 35 motions*fn3 was filed. In fact, Graves' present whereabouts are not even known to his appointed counsel let alone to the United States Attorney for the Virgin Islands. To this extent, therefore, we are not clear as to what time Graves has served on each of his two sentences. Hence, we cannot with any accuracy determine the effect of the district court's ruling on Graves' Virgin Islands incarceration or on his probationary term. Suffice it to say that on September 12, 1977 the district court judge in the Virgin Islands denied Graves' motion to correct his Virgin Islands sentence, expressing the view that there was no illegality in the sentence. Graves appealed from the September 12, 1977 order denying his motion. Thereafter, counsel was appointed to assist him in prosecuting his appeal.*fn4
Graves' counsel claimed in his brief on appeal that Graves had been:
"denied his Sixth Amendment Rights and, thus, due process of law and . . . error was committed by accepting defendant's guilty plea and depriving defendant of a hearing on motion to correct his sentence.
I) By discounting defendant's understanding of the plea bargain.
II) By accepting defendant's guilty plea in light of the varying representations ...