Little v. United States

• Decision Date: 25 November 1981
• Docket Number: No. 79-441.,79-441.
• Citation: 438 A.2d 1264
• Parties: Robert L. LITTLE, a/k/a Morrell Watson, Appellant, v. UNITED STATES, Appellee.
• Court: D.C. Court of Appeals

438 A.2d 1264

Robert L. LITTLE, a/k/a Morrell Watson, Appellant, v. UNITED STATES, Appellee.

No. 79-441.

District of Columbia Court of Appeals.

Submitted June 18, 1980.

Decided November 25, 1981.

Paul D. Waring, appointed by this court, was on the brief for appellant. Dennis M. O'Keefe, Washington, D.C., appointed by this court, also entered an appearance for appellant.

Charles P.C. Ruff, U.S. Atty., and John A. Terry, Michael W. Farrell and Harold Daman, Asst. U.S. Attys., Washington, D.C. were on the brief for appellee.

Before NEWMAN, Chief Judge, MACK, Associate Judge, and PAIR, Associate Judge, Retired.

MACK, Associate Judge:

In this appeal we review the trial court's denial, without a hearing, of appellant's pro se petition for reconsideration of an earlier court order rejecting a motion under D.C. Code 1973, § 23-110 for vacation of sentence and resentencing. Finding that the trial court erred in failing to conduct a hearing to determine the merits of appellant's allegations, we reverse and remand.

Following trial and conviction, appellant was sentenced on November 9, 1977 to a period of incarceration of 5 to 15 years for one count of assault with intent to kill while armed (D.C.Code 1973, §§ 22-501, -3202) and to a concurrent one-year sentence for one count of carrying a pistol without a license (D.C.Code 1973, § 22-3204).

During sentencing the trial court advised appellant that he had a right to appeal and that if he desired the clerk would prepare and file a notice of appeal. No notice of direct appeal was filed. However, on December 22, 1977 defense counsel filed a motion for modification and reduction of sentence pursuant to Super.Ct.Cr.R. 35. On January 23, 1978 the motion was denied.

In October 1978 pursuant to D.C. Code 1973, § 23-110(a)(4)¹ appellant filed a pro se motion for vacation of sentence and resentencing² claiming that trial counsel failed to file a notice of appeal of the conviction despite appellant's request that he do so. The trial judge denied the motion without a hearing in December 1978. No appeal was taken.

On February 1, 1979 appellant filed a second pro se motion seeking to vacate the court's previous order denying appellant's motion for vacation of sentence. On March 19, 1979 the trial judge denied the motion without a hearing ruling that the motion lacked merit and failed to proffer sufficient factual circumstances upon which relief could be granted.

Appellant's notice of appeal from the March 19th order was received by the Office of the Clerk, Superior Court, on April 10, 1979.³ In an accompanying letter dated March 30, 1979 appellant explained that due to a mix-up in mail delivery at Lorton Reformatory he did not receive notice of the order until March 27, 1979.⁴ In connection with this appeal, counsel was appointed one month later.⁵

Before considering the merits of the appeal, we must address the government's contention that this court is without jurisdiction to hear the appeal. In deciding this issue, we assume that D.C.App.R. 4 II(b)(1) (requiring filing of a notice of appeal in a criminal case "within ten days after entry of the judgment or order from which the appeal is taken . . .") is applicable.⁶

The motion in the instant case was denied on March 19, 1979 outside the presence of appellant who was proceeding pro se. Since the court jacket does not include a docket entry indicating when the order was in fact mailed to appellant, Williams v. United States, D.C.App., 412 A.2d 17, 20 (1980), the government concedes that the ten-day period commenced to run on the date on which appellant received the order — March 27, 1979.

The government contends that since the notice of appeal was received by the court on April 10, 1979 (14 days after appellant received notice), this court is without jurisdiction to consider the appeal. It is argued that Butler v. United States, D.C.App., 388 A.2d 883 (1978), a collateral appeal filed two days beyond the ten-day time limit, established the "outer limit" of Fallen v. United States, 378 U.S. 139, 84 S.Ct. 1689, 12 L.Ed.2d 760 (1964).

In Fallen, a criminal case, the notice of appeal was received by the court of appeals four days beyond the time limit set out in the court rules. In reversing the lower court, the Supreme Court noted that court rules are not "a rigid code to have an inflexible meaning irrespective of the circumstances." Id. at 142, 84 S.Ct. at 1691. Since circumstances beyond Fallen's control prevented timely filing, the Supreme Court held that the court of appeals had jurisdiction to consider the appeal.

Like Butler and Fallen, appellant was incarcerated and without assistance of counsel at the time the March 19th order was received. Like Fallen, the date at the top of appellant's letter accompanying his notice of appeal (March 30, 1979) was within the ten-day limitation. The envelope in which the notice and letter were sent might have provided a postmark indicating the date on which it was mailed. However, it is not part of the record and is, presumably, lost.

In view of the facts before us and in consideration of the admonition of Super. Ct.Cr.R. 2 that the rules "shall be construed to secure simplicity in procedure, fairness in administration and the elimination of unjustifiable expense and delay," we hold that this court has jurisdiction to consider the appeal.⁷

Turning to the merits, we note that the trial judge, without conducting a hearing, denied the motion to vacate his previous order on the bases that the motion lacked merit and failed to proffer sufficient factual circumstances upon which relief could be granted.

Appellant's motion alleged that he informed the court at sentencing and in the presence of trial counsel that he intended to appeal. (Appellant concedes that the sentencing transcript does not reflect this colloquy.) He further alleged that following his incarceration he left several messages with counsel's office requesting counsel to contact him concerning his right to appeal. However, counsel did not return the calls. A letter from appellant prompted a visit by counsel on December 9, 1977. During the visit counsel informed appellant that 1) no notice of appeal had been filed and that 2) despite appellant's objections counsel would file a motion for modification and reduction of sentence.

Appellant's allegations are neither vague, conclusory or wholly incredible.⁸ Gibson v. United States, D.C.App., 388 A.2d 1214 (1978). The allegations, if true, merit relief in the form of vacation of sentence and resentencing, thereby restoring appellant's right to a direct appeal. Hines v. United States, D.C.App., 237 A.2d 827, 829 (1968). Thus, we remand with instructions to conduct a hearing to determine the truth of the allegations.

So ordered.

PAIR, Associate Judge, Retired, dissenting:

The crucial issue in this case — the one my colleagues have declined to address — is not the timeliness of the appeal from the March 19, 1979 order, but rather the appealability of that order in the first place. It is settled now that this court's jurisdiction is limited to review of final orders and judgments. Butler v. United States, D.C.App., 388 A.2d 883, 885 (1978); Brown v. United States, D.C.App., 379 A.2d 708, 709 (1977); D.C. Code 1973, § 11-721(a). Since it is almost too clear for discussion that no appealable order has been brought here for review,¹ I would dismiss the appeal for want of jurisdiction.²

Perhaps it would be helpful, in putting the issue in perspective, to set forth a chronology of the case:

                11/ 9/77 Appellant sentenced
                12/22/77 Motion for reduction of
                          sentence filed by appellant's
                          attorney
                 1/23/78 Motion denied
                10/ 2/78 Pro se motion for vacation of
                          sentence and resentencing
                          filed. Motion stressed that
                          attorney failed to file timely
                          notice of appeal
                12/ 5/78 Motion denied without a
                          hearing, but no appeal
                 2/ 1/79 Pro se motion to vacate order
                          denying motion for vacation
                          of sentence and resentencing,
                          and to grant a hearing.
                 3/19/79 Motion denied.
                 4/10/79 Pro se notice of appeal filed.
                 5/14/79 Appellate counsel appointed.
                10/23/79 Counsel filed motion to vacate
                          sentence.
                10/25/79 Motion denied. No appeal.
                 2/19/80 Appellant's counsel filed briefs
                          on appeal, but did not appeal
                          10/25/79 denial of motion to
                          vacate.
                

The foregoing facts of record are fairly stated in the majority opinion with one very important exception, i.e., the characterization of the February 1, 1979 motion as one for reconsideration of the December 5, 1978 order denying appellant's motion to vacate his sentence. The relief sought by the February 1, 1979 motion³ was not reconsideration, but vacation of the December 5, 1978 order.

No doubt the reason for this unusual procedure was that although D.C.Code 1973, § 23-110(f) conferred upon appellant a right to appeal, he failed to exercise that right. See Brown v. United States, D.C. App., 379 A.2d 708 (1977).

My colleagues reason that by the simple expedient of treating the February 1, 1979 motion as one for reconsideration, they can restore to appellant the right of appeal which he lost. The fallacy of this reasoning is as crystal clear from this record as it was from the record in In re Alexander, D.C. App., 428 A.2d 812 (1981), and the record in United States v. Jones, D.C.App., 423 A.2d 193 (1980). We have held that neither this court nor the trial court may enlarge the time for filing notice of appeal in a criminal case, absent excusable neglect or other compelling circumstances. See Jackson v. United States, D.C.Mun.App., 119 A.2d 721, 722 (1956). As we said in Hargett v. United States, D.C.App., 380 A.2d 1005, 1008-09 (1977), cert. denied, 439 U.S. 932, 99 S.Ct. 324, 58 L.Ed.2d 327 (1978): "[O]ur rules have been fashioned to provide every opportunity for appeal, but they also dictate that there be an end to...