235 F.2d 519 (D.C. Cir. 1956), 12972, Couch v. United States

Docket Nº:12972, 12973.
Citation:235 F.2d 519
Party Name:Ronald COUCH, Appellant, v. UNITED STATES of America. Appellee.
Case Date:June 07, 1956
Court:United States Courts of Appeals, Court of Appeals for the District of Columbia Circuit

Page 519

235 F.2d 519 (D.C. Cir. 1956)

Ronald COUCH, Appellant,

v.

UNITED STATES of America. Appellee.

Nos. 12972, 12973.

United States Court of Appeals, District of Columbia Circuit.

June 7, 1956

Submitted March 23, 1956.

Page 520

Messrs. C. William Tayler and Thomas A. Wadden, Jr., Washington, D.C., submitted for appellant.

Messrs. Leo A. Rover, U.S. Atty., at the time record was filed, Lewis Carroll Arthur J. McLaughlin and John W. Kern, III, Asst. U.S Attys., submitted for appellee.

Before EDGERTON, Chief Judge, and PRETTYMAN, WILBUR K. MILLER, BAZELON, FAHY, WASHINGTON, DANAHER and BASTIAN, Circuit Judges.

PER CURIAM.

Appellant was convicted of robbery on one indictment and pleaded guilty to robbery on another indictment. He was sentenced under the former for four to twelve years imprisonment and under the latter for two to six years, the sentences to run consecutively. There was no appeal, but after the time therefor had expired appellant moved in the District Court, under 62 Stat. 967 (1948), as amended, 28 U.S.C. § 2255 (1952), 1 to set aside the judgment in each case and release him or award new trials. The motion was denied, followed by these appeals. After hearing by a division of this court the appeals were reheard by the court en banc without further oral argument, which was waived by counsel for the parties.

No attack is now made upon the conviction or plea of guilty, but only upon the sentence, and this on the ground that the District Court in sentencing appellant did not comply with Rule 32(a), Fed.R.Crim.P. 2 More precisely it is said the court did not afford him an opportunity to make a statement in his own behalf and personally to present any information in mitigation of punishment. The facts pertinent to this contention are as follows: Appellant's counsel was present when the sentence was imposed. During the proceedings the court reached

Page 521

the cases of appellant and his co-defendants. The judge said: 'The court will hear counsel for the defendant Couch.' His counsel thereupon made a brief statement on behalf of Couch. Co-defendants of Couch were sentenced, and then the judge said, 'perhaps there is a better chance of rehabilitating Couch,' recommended that he be committed to a reformatory rather than sent to a prison, and imposed the sentences already described.

This court holds that the better practice in sentencing a convicted person is to afford him a personal opportunity to make a statement in his own behalf, which might include information in mitigation of punishment. 3 Such a statement would be in addition to any made by counsel on behalf of the defendant, if counsel is minded to make a statement. The sentencing judge can make this personal opportunity clear by addressing an inquiry directly to the defendant, after hearing counsel if the latter desires to be heard. In our supervisory capacity we now establish this procedure for this jurisdiction, but we apply it prospectively only, that is, to sentences imposed after a certified copy of our judgment in these cases is issued to the District Court, which is to be done forthwith. Durham v. United States, 94 U.S.App.D.C. 228, 240, 214 F.2d 862, 874, 45 A.L.R.2d 1430. The procedure now established is not to apply retroactively to sentences heretofore imposed. Appropriate order will issue to carry out the foregoing, and the order of the District Court in these cases will be

Affirmed.

BURGER, Circuit Judge, who took office after the hearing and consideration of these cases, took no part in their decision.

FAHY, Circuit Judge.

Chief Judge EDGERTON and Circuit Judges BAZELON, WASHINGTON and I participate in the adoption by the court of the prospectively operative procedure above set forth. We wish also to make plain our own view that where the procedure now prescribed is not followed error occurs that requires resentencing in accordance with Rule 32(a), certainly when the matter is brought before us on direct appeal, and in some circumstances, at least as to trials and convictions occurring after the rendition of today's opinion, when the question arises under section 2255, 62 Stat. 967 (1948), as amended, 28 U.S.C.§ 2255 (1952). See Berra v. United States, 351 U.S. 131, 76 S.Ct. 685, note 4 (dissenting opinion). We need not express a view as to the availability of section 2255 in the present cases, since a majority of the court does not decide that the rule now laid down is to be applied retroactively.

Rule 32(a), note 2 supra, has the force of law. See 47 Stat. 904 (1933), as amended, 18 U.S.C. § 3772; Order of Feb. 8, 1946, Adopting Rules 32-39, 18 U.S.C.A., xix (1951); Sibbach v. Wilson & Co., 312 U.S. 1, 61 S.Ct. 422, 85 L.Ed. 479; John R. Alley & Co. v. Federal Nat. Bank, 10 Cir., 124 F.2d 995, 998; C.J. Wieland & Son Dairy Products Co. v. Wickard, D.C.E.D.Wis., 4 F.R.D. 250, 252; and see Bank of U.S. v. White, 8 Pet. 262, 33 U.S. 262, 8 L.Ed. 938. We think the Rule means, as it says, that before imposing sentence the court shall afford the defendant an opportunity to make a statement in his own behalf and to present information in mitigation of punishment. He may respond through counsel if he desires, or he may remain silent. But the opportunity afforded must be personal, and it is not when, as here, the judge asks only counsel if counsel has anything to say. This court recognizes

Page 522

that the latter procedure should be changed. We think that where the procedure prescribed by the Rule is not followed the error is not to be ignored as harmless. Kotteakos v. United States, 328 U.S. 750, 764, 765, 66 S.Ct. 1239, 90 L.Ed. 1557.

An opportunity afforded to counsel ordinarily is an opportunity afforded to his client. It is essential to maintain this relationship of counsel to court and to client in order to preserve counsel's vital role in the administration of justice. But there are exceptions, and the one under consideration has long been established. 4 A prisoner at the bar is placed apart so as to be able to speak for himself at the moment immediately preceding sentence, when he is faced with deprivation of liberty or with a fine, or both, and is about to be adjudged a criminal. He may then speak personally to the judge before the judge imposes sentence. In ancient times this procedure became known as allocution or allocutus, clearly embodied in modern times in Rule 32(a). Only recently this court itself so construed the Rule. Gadsden v. United States, 96 U.S.App.D.C. 162, 223 F.2d 627, 632; but cf. Hudson v. United States, 97 U.S.App.D.C. 153, 229 F.2d 36. We said in Gadsden that the Rule 'imposes upon the sentencing court the affirmative duty to ask the accused whether he desires to make a statement.' In footnote 21 immediately following, the court analyzed other decisions of federal courts and found none to be inconsistent with this interpretation of the Rule. The Gadsden opinion reinforced its holding by reference to the form of judgment set forth in the Appendix to the Federal Rules of Criminal Procedure. This form recites that the court before sentencing has asked the defendant whether he has anything to say why judgment should not be pronounced. The court found additional support in the views of commentators, citing in footnote 23, for example, the following from 12 Cyclopedia of Federal Procedure § 50.16 (3d ed. 1952): "Under the Rule, the trial judge is required to afford the defendant an opportunity to make a statement, and the judge should ask the defendant whether he desires to make one." 5 Only because four of the eight judges taking part in the present decision now seem to draw back from holding invalid a sentence imposed in non-conformity with the Rule do we enlarge upon the discussion set forth in Gadsden.

The practice of asking the defendant whether he has anything to say before sentence is imposed had its genesis in English law at a time when a person accused of a felony was not permitted to have counsel to defend him. See State v. Hoyt, 47 Conn. 518, 545; Sarah v. State, 28 Ga. 576; Orfield, Criminal Procedure From Arrest To Appeal 539 (1947); 5 Holdsworth's History of English Law 192 (1938). This barrier to legal representation was not generally abolished in England until 1837, though the right to be defended by counsel had been extended to defendants in high treason cases in 1695. See 9 Holdsworth's History of English Law 235 (1938). Thus originally in English law the right to speak before sentence was imposed was of necessity extended to the defendant personally since he had no counsel. See 4 Blackston's Commentaries 375, and App. at p. iii (1854). And Chitty makes it clear that the inquiry invited information in mitigation of punishment as well as grounds in law advanced to bar the imposition of sentence. He wrote that the allocution was indispensably necessary,...

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