Mooney v. U.S., 04-CO-725.

• Citation: 938 A.2d 710
• Decision Date: 20 December 2007
• Docket Number: No. 04-CO-725.,04-CO-725.
• Parties: Gerald D. MOONEY, Appellant, v. UNITED STATES, Appellee.
• Court: Court of Appeals of Columbia District

938 A.2d 710

Gerald D. MOONEY, Appellant, v. UNITED STATES, Appellee.

No. 04-CO-725.

District of Columbia Court of Appeals.

Argued December 1, 2005.

Decided December 20, 2007.

Robert S. Becker, Washington, DC, appointed by the court, for appellant.

Thomas P. Martin, Assistant United States Attorney, with whom Kenneth L. Wainstein, United States Attorney at the time the brief was filed, John R. Fisher, Assistant United States Attorney at the time the brief was filed, and Thomas J. Tourish, Jr., Zulima Espinel, and Kami Chavis Simmons, Assistant United States Attorneys, were on the brief, for appellee.

Before RUIZ and REID, Associate Judges, and KERN, Senior Judge.

RUIZ, Associate Judge:

Appellant contends that he had a right to be present and allocute when he was resentenced pursuant to a remand from this court to correct an illegal sentence. We hold that if, at a resentencing to correct an illegal sentence, the trial judge has discretion as to the convictions to be vacated or the sentence to be imposed, the defendant has a due process right to be present and allocute. This is so regardless of whether the resentencing is pursuant to a remand order of this court or a motion filed under Rule 35 of the Superior Court Rules of Criminal Procedure. Because the trial court in this case did not, as a matter of law, have discretion to resentence appellant other than as it did, appellant's absence from the resentencing hearing was not a violation of due process. Therefore, we affirm.

I. Background

Appellant was convicted in 1991 of first-degree felony murder, two counts of armed robbery, and possession of a firearm during a crime of violence. The evidence at trial established that while appellant committed an armed robbery of one person, one of his two companions shot and killed a second person after attempting to rob her at gunpoint, and his other cohort robbed and assaulted yet a third victim with another gun. Appellant was sentenced to three concurrent terms of five to fifteen years, one for each of the two armed robbery convictions and one for possession of a firearm during a crime of violence or dangerous offense. Those sentences were to run consecutively to a twenty-year to life term for felony murder. On direct appeal, this court affirmed appellant's convictions in an unpublished opinion. See Mooney v. United States, No. 92-CF-32 (D.C. Oct. 6, 1993).

On February 13, 2001, appellant filed a pro se "Motion to Correct or Modify Sentence Pursuant to Title 23 D.C.Code Section 110 (1981)," in which he argued that his consecutive sentences for felony murder and armed robbery violated the Double Jeopardy Clause of the Fifth Amendment. The trial court treated this motion as a motion to correct an illegal sentence pursuant to Superior Court Criminal Rule 35(a), and concluded that the sentence did not violate the Fifth Amendment.

On appeal, the government initially agreed in its brief that one of appellant's convictions for armed robbery should be vacated since it merged with the felony murder conviction. It then filed a motion to remand with instructions to vacate both convictions for armed robbery "to resentence appellant on the remaining convictions in order to effectuate the trial court's original sentencing scheme."

We did not immediately respond to the government's motion to remand. Instead, we appointed counsel for appellant and directed that the parties file supplemental briefing on the issue of merger of the two armed robbery convictions and the felony murder conviction. On September 29, 2003, we issued a Memorandum Opinion and Judgment remanding the case for resentencing. Mooney v. United States, No. 01-CO-87, 832 A.2d 753 (D.C. Sept.29, 2003).

Prior to the resentencing hearing, appellant's counsel filed an unopposed motion to return appellant to the District of Columbia¹ for resentencing, claiming that because the case had been remanded, appellant was "before the Court for resentencing as though he had not previously been sentenced in this case; therefore, pursuant to D.C.Crim. R. 32,² his presence is required for a sentencing hearing." The motion also requested a status hearing to "establish the procedure for resentencing" and noted that counsel had "discussed this motion with Asst. U.S. Attorney Robert Okun, who does not oppose it." Subsequently, on February 3, 2004, the trial court issued an order for appellant to be returned for a status hearing on April 1, 2004.

Despite the trial court's order, appellant was not brought to the courthouse for the status hearing. Discussing the nature of the resentencing hearing that was to take place, appellant's counsel asserted that it was "essentially a re-sentencing de novo," and that therefore appellant should be present. The government argued that it was not a new resentencing, but "merely a correction of sentence," and, therefore, pursuant to Superior Court Criminal Rule 43(c)³, the defendant did not have a right to be present or to allocute. The court ordered both parties to submit written arguments in support of their respective positions.

After considering the parties' written submissions, the trial court ruled that because it chose to vacate appellant's two armed robbery convictions, and preserve the felony murder with the mandatory minimum sentence of twenty years to life, effectively reducing the overall sentence by five years, appellant did not have a right to be present. The trial court supported this conclusion by reference to our opinion in Wells v. United States, 469 A.2d 1248 (D.C.1983) (per curiam), in which we held that a defendant's presence was not required when the trial court vacated a conviction for arson underlying a conviction for felony murder pursuant to the defendant's Rule 35 motion to correct an illegal sentence.⁴ The trial court observed that if it vacated the two underlying armed robbery convictions, appellant would be in the same position as the defendant in Wells. "Moreover," the trial court reasoned, "the defendant will actually receive a sentence less than what was envisioned by the Court by its making the armed robbery sentences (one or both) consecutive to the felony murder sentence. . . ." Because the court concluded that a "defendant need not be present at a reduction of sentence," see Super. Ct.Crim. R. 43, supra n. 4, the trial court ordered, without appellant being present at a hearing, that the two armed robbery convictions be vacated and subsequently amended appellant's judgment and commitment order to eliminate the sentences previously imposed for those convictions, which, as noted, reduced appellant's overall sentence by five years. This is the order appealed to us.

II. Due Process Right to be Present at Resentencing and Rules 35 and 43

"[A] defendant is constitutionally `guaranteed the right to be present at any stage of the criminal proceeding that is critical to its outcome if his [or her] presence would contribute to the fairness of the procedure.'" Kimes v. United States, 569 A.2d 104, 108 (D.C.1989) (quoting Kentucky v. Stincer, 482 U.S. 730, 745, 107 S.Ct. 2658, 96 L.Ed.2d 631 (1987)), quoted in Frye v. United States, 926 A.2d 1085, 1102 (D.C.2005). This includes the right to be present upon the imposition of sentence — "a fundamental [right] which implicates the due process clause." Warrick, 551 A.2d at 1334 (citing United States v. Gagnon, 470 U.S. 522, 526, 105 S.Ct. 1482, 84 L.Ed.2d 486 (1985) (per curiam)), quoted in Frye, 926 A.2d at 1102; see United States v. Behrens, 375 U.S. 162, 166, 84 S.Ct. 295, 11 L.Ed.2d 224 (1963) (holding that it is error to impose a final sentence in absence of the defendant and his counsel); Kerns, 551 A.2d at 1337 ("Vacation of his illegal sentence placed appellant in the same position as if he had never been sentenced. Thus, his resentencing is a de novo proceeding at which he must be afforded the opportunity to allocute."); Super. Ct.Crim. R. 43(a) ("The defendant shall be present . . . at every stage of the trial including . . . the imposition of a sentence, except as otherwise provided by this Rule."), quoted in Frye, 926 A.2d at 1102. Additionally, Superior Court Rule of Criminal Procedure 32(c)(1) provides that at the time of sentencing, the defendant shall have the right to allocute, that is, to present any information in mitigation of punishment, and to make a statement on his or her "own behalf." Super. Ct. Crim R. 32(c)(1). However, Superior Court Rule of Criminal Procedure 43 provides that a defendant is not required to be present "[w]hen the proceeding involves a reduction or correction of sentence under Rule 35." Super. Ct. Crim R. 43(c)(4). Rule 35 states that the court "may correct an illegal sentence at any time and may correct a sentence imposed in an illegal manner within the time provided herein. . . ." Super. Ct.Crim. R. 35(a).

Some of our cases have excused a defendant's absence from a resentencing hearing relying primarily on the exception contained in Rule 43(c)(4) when the defendant is to be resentenced "for reduction or correction of sentence under Rule 35." For example, in Wells, a case on which the trial court relied and which appellee cites on appeal, the defendant filed a Rule 35 motion to vacate his sentence, and, specifically, to set aside his arson conviction, which he argued merged with his conviction for felony murder. See 469 A.2d at 1249. The trial court agreed with Wells's argument, and, after a hearing at which defense counsel, but not Wells himself, was present, the trial court issued a corrected order vacating the sentence for arson, and reimposing the original sentences on the other counts (three counts of felony murder and two counts of assault with intent to kill), effectively reducing the sentence overall by three years. See id. On appeal, this court rejected the argument that the defendant had a right to be present at the resentencing, relying solely on the fact that defendant had captioned his motion to vacate the...