NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT _____________

No. 20-1903 _____________

PEOPLE OF THE VIRGIN ISLANDS

v.

GARY SIMMONDS, Appellant _____________

Appeal from the District Court of the Virgin Islands Appellate Division District Court No. 1-08-cr-00029-001 District Judges: The Honorable Curtis V. Gomez The Honorable Wilma A. Lewis _____________

Submitted Pursuant to Third Circuit L.A.R. 34.1(a) on December 7, 2020

Before: SMITH, Chief Judge, CHAGARES and MATEY, Circuit Judges

(Filed: December 11, 2020) _______________

OPINION ________________

SMITH, Chief Judge.

* This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not constitute binding precedent.

1 Gary Simmonds appeals the order of the Appellate Division of the District

Court of the Virgin Islands remanding his case to the Superior Court of the Virgin

Islands with instruction to impose a conviction and sentence for simple assault and

battery. Because we lack jurisdiction over the Appellate Division’s non-final

order, we will dismiss the appeal in part. To the extent we have jurisdiction to

review the discrete issue of the Appellate Division’s exercise of subject matter

jurisdiction, we will affirm.

I.

In May 2005, Tracia Walter-Simmonds reported to police that Simmonds,

her husband, had hit her. Virgin Islands prosecutors charged Simmonds with

aggravated assault and battery under V.I. Code Ann. tit. 14 § 298(5), which

provides, inter alia, that an assault and battery1 qualifies as “aggravated” if the

defendant is male and the victim is female. After a bench trial, the Superior Court

convicted Simmonds, imposed a six-month suspended sentence and one year of

supervised probation, and ordered him to complete one hundred hours of

community service and enroll in an anger management course.

At that time, decisions of the Superior Court were appealed to the Appellate

Division of the District Court. See 48 U.S.C. § 1613a(a), (b). On appeal,

1 Under Virgin Islands law, “[w]hoever uses any unlawful violence upon the person of another with intent to injure him, whatever be the means or the degree of violence used, commits an assault and battery.” V.I. Code Ann. tit. 14 § 292. 2 Simmonds argued, among other things, that his conviction was unconstitutional

because the aggravating factor discriminated against him on the basis of gender in

violation of the Fourteenth Amendment to the United States Constitution. In April

2020, the Appellate Division concluded that the aggravated offense was

unconstitutional. It vacated Simmonds’s conviction and sentence and remanded

his case to the Superior Court with instructions to enter a new conviction and

sentence for the lesser included offense of simple assault and battery.

After the Appellate Division denied his request for rehearing, Simmonds

filed this appeal. He challenges only the portion of the judgment directing a

remand, contending that the Appellate Division lacked authority to direct that he be

convicted of the lesser included offense.

II.

We cannot reach the merits of Simmonds’s appeal unless we have

jurisdiction to do so. Under 48 U.S.C. § 1613a(c), we “have jurisdiction of appeals

from all final decisions of the district court on appeal from the courts established

by local law.” The decision before us does not qualify as an appealable final

decision.

“[W]ith regard to the question of finality, we have treated appeals from the

Appellate Division of the District Court of the Virgin Islands no differently than

appeals taken from any other federal district court.” Ortiz v. Dodge,

,

3 548 (3d Cir. 1997). We therefore consider whether the order “ends the litigation

on the merits and leaves nothing for the court to do but execute the judgment.”

at 547 (quoting Catlin v. United States,

(1945)). Where, as here,

the Appellate Division vacates a criminal sentence and remands the matter for

further proceedings, the matter is ongoing and there is no “final decision” for our

jurisdictional purposes.2 Gov’t of the V.I. v. Rivera,

(3d Cir.

2003). Accordingly, we lack appellate jurisdiction to review this non-final order.

III.

Simmonds contends that “a criminal court lacks jurisdiction to enter a

conviction of a lesser included offense violating an unconstitutional statute.”

Simmonds Br. 16. To the extent Simmonds is suggesting that the Appellate

Division was acting without subject matter jurisdiction, we have jurisdiction to

consider this limited question. See Gov’t of the V.I. v. Hodge,

, 320

(3d Cir. 2004) (observing that we retain jurisdiction to review the limited question

2 Neither party suggests, nor do we discern, any basis for invoking appellate jurisdiction pursuant to the collateral order doctrine. See Gov’t of the V.I. v. Rivera,

, 150 n.16 (3d Cir. 2003). Moreover, although intervening legislative changes impacting the structure of the Virgin Islands court system mean that the parties will not return to our Court for review of Simmonds’s future sentence, see Defoe v. Phillip,

, 737–39, 737 n.1 (3d Cir. 2012); 48 U.S.C. § 1613a(d), this procedural posture does not impact our conclusion that finality is absent. Cf. Rivera,

(the government’s inability, by statute, to pursue a future appeal after imposition of a new sentence is a matter for the legislature and does not impact the conclusion that a final, appealable decision is absent). 4 of the Appellate Division’s determination of its own subject matter jurisdiction).

We exercise plenary review over this issue. Id. at 323.

Simmonds contends that, upon concluding that the aggravator was

unconstitutional, the Appellate Division lost subject matter jurisdiction to take any

action other than dismissing his case. Contrary to his claim, a “court of appellate

jurisdiction . . . may remand [a case] and direct the entry of such appropriate

judgment, decree, or order . . . as may be just under the circumstance.”

. The Appellate Division has “appellate jurisdiction over the courts of the

Virgin Islands.” 48 U.S.C. § 1613a(a). The Appellate Division therefore was

within its authority—and had subject matter jurisdiction—to remand the case with

direction to impose a conviction and sentence on a lesser included offense. Indeed,

in past cases where a conviction of aggravated assault and battery is vacated on

grounds that the aggravating factor is unconstitutional, the Appellate Division has

directed a remand for application of the lesser included offense of assault and

battery.3 See Humienny v. Gov’t of the V.I.,

(D.V.I. 2015);

see also V.I. R. Crim. P. 31(c)(1).

Simmonds relies upon Moravian School Advisory Board v. Rawlins,

, 287–88 (3d Cir. 1995), a civil case in which we held that, where the District

3 As previously noted, we lack jurisdiction to opine on the correctness of the remand decision. We limit our analysis solely to the Appellate Division’s conclusion that it retained subject matter jurisdiction to remand. 5 Court lacked subject matter jurisdiction, it was required to dismiss the matter rather

than transfer it to the territorial courts. But, as we have already concluded, the

Appellate Division did not lack subject matter jurisdiction in Simmonds’s case.

Moravian is inapposite.

III.

For the foregoing reasons, we will dismiss the appeal for lack of appellate

jurisdiction, except for the limited issue of reviewing the Appellate Division’s

exercise of subject matter jurisdiction. To that extent only, we will affirm.

6