U.S. v. Ford, s. 79-2039

• Decision Date: 04 August 1980
• Docket Number: Nos. 79-2039,79-2280,s. 79-2039
• Citation: 627 F.2d 807
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Andrew FORD, Sr., Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 807

627 F.2d 807

UNITED STATES of America, Plaintiff-Appellee, v. Andrew FORD, Sr., Defendant-Appellant.

Nos. 79-2039, 79-2280.

United States Court of Appeals, Seventh Circuit.

Argued June 2, 1980.

Decided Aug. 4, 1980.

Steven P. Kennedy, Munster, Ind., for defendant-appellant.

Richard A. Hanning, Asst. U. S. Atty., Hammond, Ind., for plaintiff-appellee.

Before FAIRCHILD, Chief Judge, and SWYGERT and CUDAHY, Circuit Judges.

SWYGERT, Circuit Judge.

The defendant-appellant, Andrew Ford, Sr., appeals from a modified judgment of conviction which reduced his three concurrent sentences of imprisonment from nine to four years. ¹ These sentences were imposed upon his conviction by a plea of guilty to three counts of arson in violation of District of Columbia Code § 22-401 under which the maximum penalty is ten years imprisonment and the minimum penalty is one year imprisonment. Ford does not contest his guilty plea. He challenges only the length of the sentence. Upon finding that we have, and that the district court had, jurisdiction, we affirm.

I

On May 24, 1978, Ford was indicted in the Superior Court of the District of Columbia. The twenty-one count indictment charged him with burglary, arson, and destruction of property in violation of the District of Columbia Code. After Ford failed to appear for his arraignment, a bench warrant for his arrest was issued by the Superior Court.

On February 1, 1979, Ford was arrested in Hammond, Indiana by Special Agents of the Federal Bureau of Investigation. The case was transferred to the Northern District of Indiana pursuant to Fed.R.Crim.P. 20. ² On March 29, according to the Rule 20 agreement, Ford plead guilty to three arson counts in return for the dismissal of the remaining eighteen counts.

On May 10, Ford was sentenced to three concurrent adult sentences of nine years imprisonment "subject to revision." During the sentencing proceedings, the court announced that it would review Ford's sentence within 120 days. To facilitate the review, it ordered complete physical, neurological, and psychiatric examinations of Ford. The court also directed Ford's attorney to investigate whether Ford could be given a Young Adult Offender (Y.C.A.) sentence pursuant to 18 U.S.C. § 4216 in light of the fact that he was then twenty-five years old.

On August 9, on the court's own motion, the judgment of conviction was modified and Ford's sentence reduced from nine to four years. At the resentencing proceedings, the court was informed that the Y.C.A. provision was not applicable where, as here, the crimes charged violated only the District of Columbia Code. See P.L. 85-752 § 6, 72 Stat. 847 (1958), amended, P.L. 86-70 § 17, 73 Stat. 144 (1959); P.L. 86-624 § 13, 74 Stat. 413 (1960); see also P.L. 94-233 § 3, 90 Stat. 219, 230 (1976) (18 U.S.C. § 4216); United States v. McDonald 481 F.2d 513, 515-18 (D.C.Cir.1973) (upholding applicability provision). Upon the court's request, the probation officer assigned to Ford's case, Joseph Johnson, stated that the Parole Commission's guidelines for a Y.C.A. sentence were sixty to seventy-six months, of which Ford would serve approximately three years in prison. The court stated that by imposing a four-year adult sentence it intended that Ford be incarcerated approximately as long as he would have been under a Y.C.A. sentence. It is from his second sentence that Ford appeals.

II

Before considering the merits of Ford's appeal, we address two jurisdictional problems: (1) whether Ford's failure to file a timely notice of appeal deprives this court of jurisdiction; and (2) whether the transfer of this case from the Superior Court of the District of Columbia was authorized. The former issue is raised by the Government; the latter we raise sua sponte.

A.

Regarding the timeliness of Ford's notice of appeal, the facts may be summarized as follows: Final judgment was entered on August 9, 1979, the date upon which Ford was sentenced for the second time. ³ Afterward, Ford was taken to the Metropolitan Correctional Center in Chicago, Illinois. While incarcerated Ford prepared a pro se notice of appeal dated August 16. He alleges that it was tendered to prison authorities on that date. Although it need not have been, see Fed.R.App.P. 3(c), the notice of appeal was "notarized" by a parole officer acting pursuant to 18 U.S.C. § 4004, but not until August 20. It was not received and filed by the district court until August 29. The ten-day period for timely filing of the notice of appeal expired on August 20. See Fed.R.App.P. 4(b), 26(a). Thus, Ford's notice of appeal was untimely.

The Government asserts that because a timely notice of appeal is "mandatory" and "jurisdictional," see Temple v. United States, 386 U.S. 961, 87 S.Ct. 1024, 18 L.Ed.2d 110 (1967); Berman v. United States, 378 U.S. 530, 84 S.Ct. 1895, 12 L.Ed.2d 1012 (1964); United States v. Robinson, 361 U.S. 220, 80 S.Ct. 282, 4 L.Ed.2d 259 (1960); United States v. Tallman, 437 F.2d 1103 (7th Cir. 1971), this appeal must be dismissed. Ford relies primarily upon Fallen v. United States, 378 U.S. 139, 84 S.Ct. 1689, 12 L.Ed.2d 760 (1964).

The Government's position imputes to the appellate rules a draconian rigidity which the Supreme Court eschewed in Fallen. 378 U.S. at 142, 84 S.Ct. at 1691. As Professor Moore notes, a timely notice of appeal is not "jurisdictional" in the sense of subject matter jurisdiction. 9 Moore's Federal Practice P 204.02(2). Of course, the appellate rules must be complied with, but the extent to which there has been substantial compliance, and to which that will suffice, are primarily matters of sound judicial discretion. See, e. g., United States v. Solly, 545 F.2d 874 (3d Cir. 1976) (notice of appeal deemed "filed" on date received by district court); United States v. Grimes, 426 F.2d 706 (5th Cir. 1970) (notice of appeal notarized during the ten-day period but received afterward); Kiger v. United States, 417 F.2d 1194 (7th Cir. 1969), cert. denied, 397 U.S. 1066, 90 S.Ct. 1506, 25 L.Ed.2d 688 (1970) (timely petition in forma pauperis considered notice of appeal); United States v. Conversano, 412 F.2d 1143 (3d Cir.), cert. denied, 396 U.S. 905, 90 S.Ct. 219, 24 L.Ed.2d 181 (1969) (appearance bond executed within the ten-day period considered timely notice of appeal); see generally 9 Moore's Federal Practice P 204.19.

A letter written by an indigent prisoner within the time for appeal informing the trial court of a desire to appeal may be regarded as sufficient to constitute the taking of an appeal . . . .

United States v. Duncan, 310 F.2d 367, 368 (7th Cir. 1962), cert. denied, 373 U.S. 938, 83 S.Ct. 1542, 10 L.Ed.2d 693 (1963) (citations omitted). In Duncan a letter dated February 19, purporting to be a notice of appeal from an order entered on February 12, was not received by the district court until February 26. Nevertheless, it was held to be jurisdictionally sufficient.

In Fallen the defendant-appellant was sentenced on January 15. Immediately after sentencing he discussed an appeal with his attorney. The attorney refused to represent the defendant further, advising him to obtain new counsel promptly. In a letter dated January 23, the defendant wrote to the district court clerk regarding an appeal. The letter, bearing no postmark, arrived on January 29, beyond the expiration of the ten-day period for filing a notice of appeal under Rule 37(a)(2) of the Federal Rules of Criminal Procedure, now Rule 4(b) of the Federal Rules of Appellate Procedure. See Advisory Committee Notes, Fed.R.App.P. 4(b). If, as the defendant claimed, the letter had been mailed on January 23, it should have arrived within the ten-day period. The court found no basis in the record for doubting either the veracity of the date the defendant put on the letter or that the letter had been mailed on the twenty-third. Under these circumstances, the court believed that the defendant had done all he could to file within the ten-day period and that the subsequent delay was not attributable to him. Additionally, it held that the court of appeals had jurisdiction because Criminal Rule 37(a)(2) was not to be applied without regard for the appellant's circumstances. 378 U.S. at 142-44, 84 S.Ct. at 1691-92.

The Government contends that this case is materially different from Fallen. Relying upon Ching v. United States, 338 F.2d 333 (10th Cir. 1964), cert. denied, 379 U.S. 1005, 85 S.Ct. 732 (1965), it argues that although Ford's pro se notice of appeal is dated August 16, the notarization stamp dated August 20 is determinative of the date upon which Ford tendered the notice to prison authorities for mailing. The Government claims that if the notice was tendered on the twentieth, then Ford, unlike the defendant in Fallen, did not do all that he could to file within the ten-day period. We do not agree with the Government's assertion that the date of the notarization stamp is determinative of the date of tender. Ching does not conflict with this view. It held that because the ten-day period for filing a notice of appeal commenced upon the appellant's receipt of the order at issue on appeal, his notice of appeal was filed in time. Therefore, the date of the notarization stamp was irrelevant. We hold that the date of the notarization stamp is only some evidence of the date of tender. Otherwise, an incarcerated, pro se appellant would be at the mercy of prison officials in his efforts to file a timely notice of appeal. Cf. United States v. Solly, supra. Except for the notarization stamp, there is no basis in the record upon which to doubt the veracity of the date Ford put on the notice of appeal and, therefore, we assume that the notice was tendered on the sixteenth. If so, Ford cannot be blamed for the failure of the notice to arrive in Hammond, Indiana, less than an hour's drive from Chicago, on or before the twentieth, and under Fallen we have jurisdiction.

Moreover, regardless of the date of...