Gilliam v. United States, 14900.

• Decision Date: 18 June 1959
• Docket Number: No. 14900.,14900.
• Citation: 106 US App. DC 103,269 F.2d 770
• Parties: James S. GILLIAM, Appellant v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — District of Columbia Circuit

106 US App. DC 103, 269 F.2d 770 (1959)

James S. GILLIAM, Appellant v. UNITED STATES of America, Appellee.

No. 14900.

United States Court of Appeals District of Columbia Circuit.

Argued May 12, 1959.

Decided June 18, 1959.

Mr. Carl R. Burns, Washington, D. C. (appointed by this court), for appellant.

Mr. Paul J. Spielberg, Asst. U. S. Atty., of the bar of the Court of Appeals of New York, pro hac vice, by special leave of court, with whom Messrs. Oliver Gasch, U. S. Atty., and Carl W. Belcher, Asst. U. S. Atty., were on the brief, for appellee. Messrs. Harry T. Alexander and Edgar T. Bellinger, Asst. U. S. Attys., also entered appearances for appellee.

Before WILBUR K. MILLER, DANAHER and BASTIAN, Circuit Judges.

BASTIAN, Circuit Judge.

This is an appeal from a final order of the District Court denying appellant's motion to vacate the court's order of March 18, 1958, hereinafter referred to.

On June 18, 1957, while serving a sentence imposed in Criminal Case No. 223-57 in the District Court, appellant was found guilty in the case before us. When he was brought before the court for sentence on August 29, 1957, the following, among other things, took place:

"The Court: You may serve three to ten years consecutive to Criminal 223-57. You want to say something else?

"Defendant Gilliam: Yes, the other is four to fifteen years; could I get that to run with that?

"The Court: No. Anything else?

"Mr. Leak (defense counsel): I have nothing to say, Your Honor."

However, when the formal order of judgment and commitment was presented to and signed by the judge on August 29, 1957, that order provided simply that appellant be committed to the custody of the Attorney General, or his authorized representative, for imprisonment for a period of three years to ten years. Nothing was said in the order about the sentence being consecutive to that being served by appellant.

On March 18, 1958, presumably acting under the authority of Fed.R.Crim.P. 36, 18 U.S.C.A.,¹ the court ordered the judgment and commitment to be corrected to read as follows:

"It Is Further Ordered that the fourth paragraph of the above mentioned judgment and commitment August 29, 1957 be, and the same is hereby corrected by striking that portion thereof which reads as follows:

"`Three (3) years to Ten (10) years\'

and in its place and stead the following is hereby substituted:

"`Three (3) years to Ten (10) years, to take effect at the expiration of sentence imposed in Criminal Case No. 223-57.\'"

Appellant was not present on March 18, 1958.

Thereafter, and on October 3, 1958, appellant filed a motion with the District Court praying that the order of March 18 be vacated, alleging that the court on that date erroneously "changed" the effective date of his sentence. This motion was denied without hearing by the sentencing judge. In its memorandum and order of November 3, 1958, denying appellant's application to proceed on appeal without prepayment of costs, the court held:

"Because my own handwritten notes; the docket entry on the court jacket; and the court reporter\'s transcript reveal that I imposed a consecutive sentence, the motion of October 3, 1958 was denied. Defendant now has made application to proceed on appeal from the order denying his motion without prepayment of costs.

"Because of the same reasons for denying the motion, I must conclude that the appeal is not taken in good faith and is frivolous. The application to proceed on appeal without prepayment of costs is therefore denied."

On December 9, 1958, this court granted appellant leave to proceed on appeal without prepayment of costs.

Appellant alleges that the denial of his motion to correct and vacate the order of March 18, 1958, should be reversed because (1) appellant was not present when his sentence was corrected; (2) correction was made by the same judge who had imposed the original sentence; (3) no evidence was produced as to the original sentence; and (4) there were no findings of fact, conclusions of law, decree, or statement of the evidence, accompanying the March 18 order.

Nowhere does appellant allege that the facts as to the imposition of the sentence were other than appear from the November 3, 1958 memorandum and order reflecting the evidence to be gleaned from the judge's notes, the actual docket entry by the clerk, and the official reporter's transcript relating to the sentence actually imposed in the appellant's presence. The judgment form, as corrected, comports fully with the evidence to be found in the described materials. Although Rule 36 provides for the correction of clerical errors after such notice, if any, as the court may order, and none was here ordered, we believe that as a general rule a defendant should be accorded the right to be present when an order of commitment is to be corrected. In the usual case, at least, we think that should be true even though the error be one merely arising in the preparation by a clerk of the commitment form. Thus a defendant, if present, would have the opportunity to object to the proposed correction and to show cause to the contrary, if any there be. Thereupon, the sentencing court may rule that a defendant is to be afforded no relief if properly the files and records of the case conclusively demonstrate that such should be the result.

Such was the procedure followed in United States v. Quinn, 7 Cir., 1950, 182 F.2d 252. There a similar situation existed. The judgment of commitment in that case showed the sentence to be three years but failed to state that the sentence was to follow and be consecutive to the sentence which the defendant was then serving in another case, although it was so provided at the sentencing in open court. The defendant later appeared in court, represented by counsel, and on motion of the Government the court corrected the...