Rowley v. Welch

• Decision Date: 22 July 1940
• Docket Number: No. 7572.,7572.
• Citation: 114 F.2d 499,72 App. DC 351
• Parties: ROWLEY v. WELCH.
• Court: U.S. Court of Appeals — District of Columbia Circuit

72 App. DC 351, 114 F.2d 499 (1940)

ROWLEY v. WELCH.

No. 7572.

United States Court of Appeals for the District of Columbia.

Decided July 22, 1940.

Josiah Lyman and Kathryn M. Schwarz, both of Washington, D. C., for appellant.

Edward M. Curran, U. S. Atty., and Arthur B. Caldwell, Asst. U. S. Atty., both of Washington, D. C., for appellee.

Before STEPHENS, MILLER, and RUTLEDGE, Associate Justices.

RUTLEDGE, Associate Justice.

The question, briefly stated, is whether the District Court has power to amend sentences for crime inadvertently pronounced to run concurrently so as to make them consecutive, when the amendment is made before the prisoner is removed from the courthouse on the occasion when sentence is pronounced. The appeal is from an order discharging a writ of habeas corpus and remanding appellant to appellee's custody to serve out the remainder of the second sentence. We find no error in the court's action.

Appellant was indicted in two separate indictments on two different charges of procuring miscarriage (abortion).¹ He pleaded guilty on May 3, 1938, to both charges. The surety on his bail bond then surrendered him into the court's custody, and the trial justice, now deceased, sentenced him first to serve "one year to eighteen months on each of the two indictments, said two sentences to run at the same time and concurrently with each other, these sentences to be served in an institution of a penitentiary type, to be designated by the Attorney General of the United States." The Attorney General designated the District of Columbia Reformatory at Lorton, Va., as the place of confinement. Immediately upon pronouncement of sentence the deputy marshal took appellant to the elevator leading from a small vestibule of the courtroom to the floor below, where there were cell rooms for the temporary detention of prisoners. He was not taken to the cell room, but remained in the elevator for a short time, conceded to be not more than half an hour, when he was returned to the courtroom and the court addressed him as follows: "I made a mistake in the Rowley case. I intended to say consecutively. Change that sentence to consecutively."

Thereupon appellant was taken again to the elevator, then to the cell room below, and thence on the same day to the District jail. Thereafter he was transferred from the jail to the Lorton Reformatory, where, on July 18, 1939 (with allowance of time for good behavior), he completed the period of time equal to the concurrent sentences described in the judge's first oral utterance, having taken no further action in the case. On September 1, 1939, he filed below his petition for a writ of habeas corpus directed to appellee as respondent. The petition set forth the facts stated above and claimed that appellant's detention after the expiration of the first sentence was illegal. The Government's return and answer, admitting the facts stated in the petition, maintained that they are insufficient in law to justify granting the relief sought. After hearing before another justice than the one who pronounced and amended the sentences, the court made findings of fact substantially as we have set them forth and conclusions of law, dismissed the petition, discharged the writ and remanded appellant to appellee's custody to serve out the remainder of the second of the consecutive sentences.

The court found, as matter of fact, that at the time of pronouncing sentence originally the trial justice intended to make the sentences run consecutively and that his statement that they were to run concurrently was a slip of the tongue and not an expression of his real intention. There is evidence of record, both in the court's language correcting the original pronouncement and in the promptness with which the correction was made, which sustains this finding, and we find none to contradict it apart from the mere fact that the sentences originally were spoken to run "at the same time and concurrently with each other." We cannot say, as matter of law, that the form of language employed could not have been used inadvertently, and therefore that the evidence could not support the finding. It therefore was not arbitrary, and we must regard the original sentences as stated inadvertently to run concurrently, not intentionally so. Consequently we are not required to decide whether a court having once pronounced sentence in accordance with its true intent and purpose can change it later in such manner as to increase the penalty,² whether before or after service of the sentence begins. The question is whether such a change can be made, if done promptly, in order to correct a sentence inadvertently pronounced and make it speak the true intention of the court.

Appellant's principal contention is that this cannot be done because, according to his view, he had begun to serve the sentences before the correction was made and therefore, since it increased the penalty, the amendment placed him twice in jeopardy for the same (the second) offense. It is conceded that if appellant had begun to serve the sentences as originally pronounced, it was beyond the court's power to make the amendment.³ Appellant asserts that the elevator was a "place of detention" within the meaning of Section 709a, Title 18, United States Code, 18 U. S.C.A. § 709a.⁴ Therefore he says that when he was led out of the courtroom through the vestibule, placed in the elevator and detained there, for however short an interval, the service of the sentences had begun. He urges also that the original sentences began to run immediately and irrevocably at the moment the words imposing them fell from the judge's lips.

It is conceded that pronouncement of sentence constitutes a judgment of the court⁵ and that, as in civil cases, the court retains jurisdiction of the cause, during the remainder of the term at least,⁶ to make corrections in its judgment in proper cases.⁷ But it is said that this power ends with the beginning of service of a valid sentence,⁸ even within the same term, to the extent that the Fifth Amendment prohibits change which will increase the penalty,⁹ though jurisdiction may continue during the term to make other changes or corrections. The first question therefore is whether appellant had entered upon the service of the sentence prior to the time when the amendment was made.

So far as Section 709a may have bearing on the question, it is clear that the elevator was not a "place of detention" within the meaning of the section. It provides that the sentence "shall commence to run from the date on which such person is received at the penitentiary, reformatory, or jail for service of said sentence: Provided, That if any such person shall be committed to a jail or other place of detention to await transportation to the place at which his sentence is to be served, the sentence of such person shall commence to run from the date on which he is received at such jail or other place of detention." (Italics supplied) The section was intended primarily to regulate the calculation of the time during which the prisoner should be detained. Whether or not its purpose was also in part to affect the power of the court to correct errors in its sentence or, if so, it is valid for such a purpose, it is clear that the section cannot aid appellant in the circumstances of this case because he has not shown that he is within its terms. Obviously the elevator was not a "penitentiary, reformatory, or jail for service of said sentence." Nor was it a "place of detention to await transportation" within the meaning of the proviso. It was a "place" or vehicle of transportation from the courtroom to a "place of detention." Congress was not splitting seconds, minutes or hours when it provided that the sentence should commence to run "from the date on which he is received at such jail or other place of detention." Nor was it making a jail out of the courtroom and its means of entrance and exit. What Congress had in mind, by adding the proviso, was to prevent what in practical effect would amount to an extension of the time of imprisonment by the prisoner's detention through no fault of his own in a place of temporary confinement while awaiting transportation to that specified for serving the sentence. It recognized that in some instances time would be required to make arrangements for the transportation of the prisoner to and his reception at the institution designated for serving the sentence, and that in such cases he should not be compelled to undergo confinement for a period longer than that specified in the sentence, as would be the case if it did not begin to run prior to his reception at the designated institution. In providing, therefore, for the sentence to commence to run from the date of reception at "a jail or other place of detention" while awaiting transportation, "other place of detention" must be taken to mean some place analogous to or which performs the ordinary function of a jail as at least a place of temporary incarceration. Congress did not provide that the sentence should commence to run when the defendant is surrendered by his bail into the custody of the court or when the sentence is pronounced, or when he is led from the courtroom in an officer's custody, or when he enters the patrol wagon or walks down the street in custody toward the jail. It is not necessary for us to determine definitively what constitutes a "place of detention" within the statutory purpose. It is sufficient to hold, as we do, that the elevator was not such a place.¹⁰ Accordingly, when appellant entered it and while he remained in it, he had not begun to serve his sentence within the meaning of Section 709a.

The question remains whether, apart from the statute and for purposes of attachment of jeopardy, there is merit in appellant's contention that the original sentences began to run at the very moment of utterance so that any change increasing the penalty was precluded. Ap...