DeWitt v. Ventetoulo

• Decision Date: 11 June 1993
• Docket Number: No. 93-1002,93-1002
• Citation: 6 F.3d 32
• Parties: Fred DeWITT, Petitioner, Appellee, v. Donald VENTETOULO, Acting Director, Adult Correctional Institution, et al., Respondents, Appellees. Attorney General of Rhode Island, Appellant. . Heard
• Court: U.S. Court of Appeals — First Circuit

Page 32

6 F.3d 32

Fred DeWITT, Petitioner, Appellee, v. Donald VENTETOULO, Acting Director, Adult Correctional

Institution, et al., Respondents, Appellees.

Attorney General of Rhode Island, Appellant.

No. 93-1002.

United States Court of Appeals, First Circuit.

Heard June 11, 1993.

Decided Oct. 6, 1993.

Annie Goldberg, Asst. Atty. Gen., Appellate Div. with whom Jeffrey B. Pine, Atty. Gen., was on brief for appellant.

David A. Schechter with whom Margaret-Mary Hovarth was on brief, for appellee.

Before SELYA, CYR and BOUDIN, Circuit Judges.

BOUDIN, Circuit Judge.

The district court granted a writ of habeas corpus, which it stayed pending this appeal, ordering the release from state imprisonment of Fred E. DeWitt, 803 F.Supp. 580. The basis for the writ was the district court's decision that Rhode Island had acted unconstitutionally in increasing DeWitt's sentence and reimprisoning him after his release on parole. We agree with the district court's decision and affirm.

I.

The constitutional issue in this case arises under the Due Process Clause of the Fourteenth Amendment. In some areas, such as search and seizure, due process has been reduced to detailed and nearly mechanical rules. In other areas, the precepts are very general, and everything turns upon the circumstances. The issue here is of this latter type, and so we begin with a complete account of the procedural history of this case.

On March 17, 1978, after a trial by jury, DeWitt was convicted in Rhode Island Superior Court of robbery, assault with intent to murder, and arson. These menacing labels do not convey the full measure of DeWitt's evil conduct. According to testimony given by the victim, a woman then about 67, DeWitt broke into her home while carrying a knife, struck her with his hand and with a hammer, engaged in one brutal act after another, and then bound and gagged the victim and set fire to her apartment.

The superior court imposed on DeWitt a life sentence which meant under Rhode Island law that parole was possible but not for a minimum of 10 years. DeWitt began serving his sentence in 1978 and in 1980 his conviction was affirmed by the Rhode Island Supreme Court. State v. DeWitt, 423 A.2d 828 (R.I.1980). Then, in the following year, DeWitt came to the aid of a prison guard who was being assaulted by an inmate, and DeWitt later testified for the state in the prosecution of the inmate. There is some suggestion that DeWitt, not surprisingly, may have suffered at the hands of other inmates on account of his rescue efforts.

In recognition of these efforts, the superior court on June 25, 1981, held a hearing and entered an order suspending all but 15 years of DeWitt's life sentence and providing that he would be placed on probation for 20 years from the time of his future release, whenever that occurred. ¹ This shortened the minimum period before DeWitt could seek parole, but six years remained before DeWitt's parole application was granted. In the meantime, in mid-1983, the Rhode Island Supreme Court decided State v. O'Rourke, 463 A.2d 1328 (R.I.1983), holding that the superior court could not "suspend" a sentence once a defendant had begun to serve it. ²

Between 1983 and 1987, the state apparently made no effort to have the superior court undo its partial suspension of DeWitt's life sentence. Instead DeWitt continued to serve his sentence, pursued education and training courses in prison, and applied several times for parole. Finally, in January 1987, DeWitt was granted parole and released from prison. We are told by the state that this occurred about 16 months before the earliest date on which DeWitt would have been eligible for parole if held under a life sentence. Thus, despite O'Rourke the prison and parole authorities continued to treat DeWitt as if the order suspending his sentence in part was still in force.

During the eight months following his release in January 1987, DeWitt obtained work, beginning a painting business and then a siding business. He resumed his relationship with family members and his girlfriend. He also rented an apartment but moved out after a disagreement, DeWitt believing that the landlord was billing the entire building's utilities to DeWitt's meter. It was this latter occurrence that began the chain of events leading to this appeal. According to DeWitt, he later returned to his old neighborhood to visit a friend, was invited in by his former landlord, and was then attacked by the allegedly drunken landlord and his wife with knives. In the turmoil, the landlord and his wife were injured.

The landlord's version clearly differed, for the state began criminal proceedings against DeWitt based on the incident. The state also took steps to re-imprison DeWitt based on his 1978 conviction, but it did not use the customary method of seeking to revoke his parole for violation of the good behavior conditions. Instead, after a hearing on September 21, 1987, the superior court vacated its earlier June 1981 order that had suspended in part DeWitt's original life sentence; the court's ruling was that O'Rourke showed that the original suspension order had been improper. DeWitt is currently being held in prison pursuant to that reimposed life sentence.

The rest of the procedural story can be briefly told. At some point after September 1987 DeWitt was tried on state charges growing out of the knife incident with his landlord, and DeWitt was acquitted by the jury. In January 1988, DeWitt made a new motion under Rule 35 to alter his life sentence. The superior court denied the motion as untimely. An appeal followed, challenging both the reimposition of the life sentence and the denial of the new Rule 35 motion. The Rhode Island Supreme Court rejected the first challenge, including DeWitt's express claim that the reimposed sentence violated the Due Process Clause. State v. DeWitt, 557 A.2d 845 (R.I.1989). The court ruled that the Rule 35 claim was timely, but, on remand, the superior court denied the Rule 35 motion on the merits and no appeal was taken.

On December 11, 1990, DeWitt filed his habeas petition in the district court. The district court conducted an evidentiary hearing, adducing many of the facts set forth above. On October 20, 1992, the district court issued a memorandum and order granting the habeas petition. The district court's judgment, which it stayed pending this appeal, was entered on December 10, 1992.

Judge Boyle's decision granting DeWitt's habeas petition relied directly upon the Due Process Clause as construed by this court in Breest v. Helgemoe, 579 F.2d 95 (1st Cir.), cert. denied, 439 U.S. 933, 99 S.Ct. 327, 58 L.Ed.2d 329 (1978). There, this court stated that "the power of a sentencing court to correct [upward] even a statutorily invalid sentence must be subject to some temporal limit" and that in some circumstances such a correction "might be fundamentally unfair, and thus violative of due process...." Id. at 101. After a careful analysis of the present facts, Judge Boyle concluded that fundamental unfairness did exist here, especially given the state's failure to take any steps to reimpose the life sentence in the four years after O'Rourke and prior to DeWitt's release. The state then brought this appeal.

II.

There is no surer recipe for confusion than to answer two different questions at the same time. Thus, in assessing DeWitt's due process claim, we put to one side for the moment the fact that DeWitt may have violated the good behavior conditions attached to his parole. Instead, we ask whether--assuming arguendo that no parole violation occurred--the superior court was nevertheless entitled six years after the event to correct its earlier mistaken grant of Rule 35 relief and to reimpose the original life sentence.

The Constitution contains no general rule that prohibits a court from increasing an earlier sentence where the court finds that it was erroneous and that a higher sentence was required by law. On the contrary, this has occurred, and been upheld against constitutional or other challenges, in a number of cases including Breest itself. ³ And in principle, there is no difference between such cases and a case like this one in which a sentence is reduced and later, finding the reduction to be unlawful, the court reinstates the original sentence.

But in law what is true for the usual case is often not true in the extreme case. Even the state conceded at oral argument that due process must impose some outer limit on the power to revise sentences upward after the fact. We are concerned here not with the substantive grounds of a state's decision to reduce or increase a sentence, but rather with the inherently procedural issue of whether and when a state can reopen a matter after a final unappealed decision, after a substantial lapse in time during which the state had actual knowledge of the error, and after a significant change in circumstances. In short, the question we face is one of process.

In Breest, we said that notions of fundamental fairness do place some temporal limit on later increases in sentence, 579 F.2d at 101, and the Fourth Circuit, in Lundien, has endorsed this view. 769 F.2d at 987; see alsoVillano, 816 F.2d at 1458 (Logan, J. concurring). It is quite true that the cases following Breest generally found, as did Breest itself, that the particular upward revision in question did not violate due process. A convicted defendant does not automatically acquire a vested interest in a mistakenly low sentence. Only in the extreme case can a court properly say that the later upward revision of a sentence, made to correct an earlier mistake, is so unfair that it must be deemed inconsistent with fundamental notions of fairness embodied in the Due Process Clause. AccordLundien, 769 F.2d at 987.

In our view, there is no single touchstone for making this judgment, nor any multi-part formula. Rather, drawing on considerations mentioned by cases like Breest and...