Aga v. United States

• Citation: 312 F.2d 637
• Decision Date: 01 February 1963
• Docket Number: No. 17145.,17145.
• Parties: James Richard AGA, Appellant, v. UNITED STATES of America, Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (8th Circuit)

312 F.2d 637 (1963)

James Richard AGA, Appellant, v. UNITED STATES of America, Appellee.

No. 17145.

United States Court of Appeals Eighth Circuit.

February 1, 1963.

James Richard Aga, pro se.

Miles W. Lord, U. S. Atty., and Patrick J. Foley, Asst. U. S. Atty., Minneapolis, Minn., filed typewritten brief, for appellee.

Before VOGEL, BLACKMUN and RIDGE, Circuit Judges.

RIDGE, Circuit Judge.

This is an appeal from an order of the District Court denying appellant's Rule 35 motion (18 U.S.C.A.) to correct commencement of the term of a sentence imposed for "escape" (§ 751, T. 18 U.S. C.A.) as recorded in the written judgment, signed by his sentencing Judge and under which appellant was first committed to the custody of the Attorney General of the United States for service thereof.

The pertinent facts are these: Appellant and two companions were jointly indicted in the first count of a four-count indictment for conspiracy (18 U.S.C.A. § 371) to effect their escape from the Federal Correctional Institution at Sandstone, Minnesota. Each of them was separately charged in another count of that indictment with the substantive offense of escape (18 U.S.C.A. § 751). When first arraigned thereon, after advising with counsel, they each entered pleas of "guilty" to the substantive offense and "not guilty" as to the conspiracy charge. Sentence on the guilty pleas was deferred pending trial for the latter-mentioned offense.

On May 2, 1960, appellant (as did his co-defendants) filed a separate motion in the District Court "to change his plea of guilty" for escape "to not guilty." Such motions were granted. A trial date on the indictment as a whole was then set for May 24, 1960. On that date appellant, in the presence of individually-appointed counsel, duly entered a plea of guilty to the two charges made against him, ante. His co-defendants did likewise. Thereupon, sentence was first pronounced on one of appellant's co-defendants and then on appellant, as follows:

"* * * It is adjudged that the defendant (Aga) has been convicted upon his plea of guilty of the offense of conspiracy to violate Title 18 Section 751, United States Code * * * and that he did escape from the custody of the Attorney General or his authorized representative, from the Federal Correctional Institution at Sandstone, Minnesota, at which he is and was confined by virtue of process issued under the laws of the United States * * * as set forth in Count 3 of the indictment * * * and the Court having asked the defendant whether he has anything to say * * * it is adjudged that the defendant is hereby committed to the custody of the Attorney General * * * for imprisonment for a period of three years on Count 3. It is further adjudged that imposition of sentence in Count 1 be suspended and the defendant is placed on probation for the period of three years from the termination of sentence on Count 3."

The record judgment of sentence and commitment as entered and signed by the District Court on the same date (May 24, 1960) was in form as provided by Form #25, "Appendix of Forms" (F.R. Cr.P. 18 U.S.C.A.). In that "Judgment" and "Commitment" it was recited, among other things, that appellant was thereby "committed to the custody of the Attorney General * * * for a period of three (3) years on count three" of the indictment charging the substantive offense "to be served consecutively, and not concurrently, with the term, or terms, of imprisonment being served at the time the offense herein was committed"; and, that probation be granted on count one (1) thereof, "for the period of three (3) years from termination of sentence on count three."¹

On the next day, May 25, 1960, appellant and his co-defendants were returned to court, in the presence of their respective counsel, when their sentencing Judge said to them:

"Each of you defendants is before me so that I may make absolutely clear at what time I intended the sentences which I imposed for escape to begin to run. It was my intention, and I so now state, that I meant to indicate clearly that the three years imprisonment imposed on each of you for escape should naturally follow and be consecutive with and not concurrent with the sentences each of you was serving when you escaped.

"Are there any questions, gentlemen? I am speaking to the defendants now.

"Defendant Aga: No, sir.

"The Court: And you?

"Defendant Jefferson: No, sir.

"Defendant Lundquist: No.

"The Court: Any from counsel?

"Mr. Edwards: No questions, Your Honor.

"The Court: Very well."

It is appellant's contention here that the aforestated facts establish his "judgment of commitment" as signed by his sentencing Court is "invalid" in that the commencement of the term of his sentence as therein stated is different from that as orally pronounced on May 24, 1960, and that his sentencing Court committed error in not sustaining his Rule 35 motion "to correct the sentence imposed on May 25, 1960" to make the same "to run concurrently as the original sentence was pronounced on May 24, 1960" with the sentence he was then serving, i. e. the sentence from which he escaped.

Appellant's sentencing Court, by memorandum opinion (unpublished)² denied appellant's Rule 35 motion, on the ground that the only "lawful sentence" imposed on appellant was that set forth in its written "judgment as entered on May 24, 1960." In that memorandum Judge Donovan stated: "Petitioner's return to Court (on May 25, 1960) was for the sole purpose of having the Court clarify the sentence imposed the previous day. The transcript quoted above makes this obvious."

The whole gist of appellant's contention as here made may best be exemplified by what is said in Payne v. Madigan, 274 F. 2d 702, 704 (9 Cir., 1960):

"Rule 32(b), Federal Rules of Criminal Procedure, 18 U.S.C.A., which became effective on March 21, 1946, provides that a judgment of conviction shall set forth the plea, the verdict or findings, and the adjudication and sentence. The sentence which is set forth in such judgment, however, must have been imposed in the presence of the defendant. Rule 43, Federal Rules of Criminal Procedure. It follows that if the sentence as set forth in the judgment departs in a matter of substance from the oral pronouncement of the sentence, it is void, though subject to correction under Rule 35, Federal Rules of Criminal Procedure.

"The order of serving consecutive sentences is a matter of substance. Sentences in criminal cases should reveal with fair certainty the intent of the court and exclude any misapprehension by those who must execute them. In keeping with this principle, it has been held necessary for the court to indicate the sequence of sentences when consecutive sentences are imposed. United States v. Daugherty, 269 U.S. 360, 46 S.Ct. 156, 70 L.Ed. 309."

To further pinpoint appellant's contention it should be noted that the District Court, at the time of oral pronouncement of sentence in the case at bar on May 24, 1960, did not make any statement of its "intention" as to the time of commencement or the sequence of service of the sentence imposed on appellant in relation to the sentence he was then serving. However, it is manifest in the pronouncement then made that it was the intention of that Court that appellant be "committed to the custody of the Attorney General * * * for imprisonment for a period of three years" for the substantive offense of "escape" and on the same date of its oral pronouncement of sentence it first gave expression of its "intention" regarding the service of that sentence in the written judgment and commitment signed by it. It is only because his sentencing Court, through oversight and inadvertence, failed to make known its "intention" to appellant and his co-defendants when they were first before it for sentencing and because it had them brought back into open court the next day and emphatically, in their presence, orally made its intention clear, that appellant asserts a premise for his instant Rule 35 motion.

In any consideration of appellant's contention, we think it should be called to mind that the common law practice of oral pronouncement of sentence and recordation thereof by the clerk in his minutes has been changed by the Federal Rules of Criminal Procedure, 18 U.S.C.A. Miller v. Sanford, 161 F.2d 291 (5 Cir., 1947). Further, that the "determination of guilt" in federal criminal procedure now is that the "judgment of conviction" and sentence as provided in Rule 32(b) thereof, "must be signed by the judge" before it becomes legally effective. (Cf.) Lott v. United States, 367 U.S. 421, 426, 81 S.Ct. 1563, 6 L.Ed.2d 940 (1960). Hence, after the oral pronouncement of a sentence it is still up to Court to render a "judgment of conviction" which must "set forth the plea, the verdict or findings, and the adjudication and sentence" and must be "signed by the judge and entered by the clerk" before commitment for a federal offense can take place. Rule 32(b), F.R.Cr.P. 18 U.S.C.A.

...