U.S. v. Villano, 85-2535

• Decision Date: 05 August 1986
• Docket Number: No. 85-2535,85-2535
• Citation: 797 F.2d 1547
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Paul C. VILLANO, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1547

797 F.2d 1547

UNITED STATES of America, Plaintiff-Appellee, v. Paul C. VILLANO, Defendant-Appellant.

No. 85-2535.

United States Court of Appeals, Tenth Circuit.

Aug. 5, 1986.

Rehearing and Rehearing En Banc Granted Oct. 14, 1986.

^*

Baldock, Circuit Judge, dissented and filed opinion.

Arthur M. Schwartz, Denver, Colo., for defendant-appellant.

Robert N. Miller, U.S. Atty., Denver, Colo., and A. Mary Sterling, U.S. Dept. of Justice, Kansas City, Mo., for plaintiff-appellee.

Before HOLLOWAY, Chief Judge, LOGAN and BALDOCK, Circuit Judges.

LOGAN, Circuit Judge.

Defendant, Paul C. Villano, appeals the district court's denial of his motion to correct an alleged clerical mistake in his order of judgment and commitment, which the court issued when Villano pleaded guilty to three federal crimes. This appeal asks what the court's sentence was in the circumstances of this case.

On December 6, 1982, Villano and two codefendants were sentenced by the same federal district judge. All had pleaded guilty to three counts: (1) conspiracy to make extortionate extensions of credit, (2) receipt of a firearm by a felon, and (3) false declaration on an income tax return. According to the court reporter's transcription of the sentencing, Villano received a fine and a prison term on the first count, another fine and prison term on the second count to run consecutively to the term on the first count, and a fine and prison term on the third count to run "consecutively with the sentence on count one." R. II, 28 (emphasis added). The judgment and commitment order, signed the same day, ordered Villano to serve "five years as to Ct. I, three years as to Ct. II, and two years as to Ct. III, to run consecutively." R. I, 19. The district judge's final judgment sheet and the district court docket sheet, containing entries on that same day, are consistent with the judgment and commitment order. R. I, 18; Tab 14 at 3.

In March 1983 Villano moved to reduce his sentence pursuant to Fed.R.Crim.P. 35; the motion was denied. In May 1983 he petitioned to set aside the sentence pursuant to 28 U.S.C. Sec. 2255; that petition was denied in March 1984. This court affirmed this denial. Villano did not bring the alleged clerical error in the commitment order to the court's attention before September 13, 1985, when he filed the instant Rule 36 motion to correct it. The same district judge who imposed the sentence also denied this motion, stating in his order:

"The written judgment and sentence is the only order of commitment. It is executed by the court and it controls. Moreover it was the court's intent that defendant Villano receive the same sentence as his codefendants and that all three receive an effective term of ten years. The statement of the court appearing in the transcript must be either an error by the reporter or the court mispoke [sic] itself."

R. I, Tab 9 at 1.

The trial court was wrong in its statement that the written controls the oral. A long-established rule in federal courts is that an unambiguous oral pronouncement controls when there is a conflict between it and a written order of commitment. United States v. Pagan, 785 F.2d 378, 380 (2d Cir.1986); United States v. Moyles, 724 F.2d 29, 30-31 (2d Cir.1983); Schurmann v. United States, 658 F.2d 389, 391 (5th Cir.1981); Scott v. United States, 434 F.2d 11, 20 (5th Cir.1970); Payne v. Madigan, 274 F.2d 702, 705 (9th Cir.1960), aff'd by an equally divided court, 366 U.S. 761, 81 S.Ct. 1670, 6 L.Ed.2d 853 (1961); United States v. Bussey, 543 F.Supp. 981, 984 (E.D.Va.1982). Our circuit has acknowledged this rule. See United States v. Mason, 440 F.2d 1293, 1299-1300 (10th Cir.), cert. denied sub nom. Edwards v. United States, 404 U.S. 883, 92 S.Ct. 219, 30 L.Ed.2d 165 (1971); Baca v. United States, 383 F.2d 154, 157 (10th Cir.1967), cert. denied, 390 U.S. 929, 88 S.Ct. 868, 19 L.Ed.2d 994 (1968); Watkins v. Merry, 106 F.2d 360, 361 (10th Cir.1939); see also Byrd v. United States, 345 F.2d 481 (10th Cir.1965). "But, where the orally pronounced sentence is ambiguous, the judgment and commitment may and should be used to clarify the actual intention of the sentencing judge." Baca, 383 F.2d at 157 (emphasis added). ¹

The rule favoring the oral pronouncement when there is a conflict apparently had its origin long before the promulgation of Fed.R.Crim.P. 32(b)(1), which requires a written judgment setting forth the sentence in every case. See Baca, 383 F.2d at 157; Walden v. Hudspeth, 115 F.2d 558, 559 (10th Cir.1940); Watkins, 106 F.2d at 361. Before Rule 32, "the 'judgment' in a criminal case was the sentence pronounced from the bench and not the clerk's entry of judgment or the commitment order.... If the commitment order departed from the terms of the judgment behind it, the order was void." Baca, 383 F.2d at 157 (citing Hill v. United States ex rel. Wampler, 298 U.S. 460, 465, 56 S.Ct. 760, 762-63, 80 L.Ed. 1283 (1936)). The rationale behind the rule evidently focuses on the necessity for the defendant's presence at sentencing, now covered by the requirement in Fed.R.Crim.P. 43 that the defendant be present at sentencing unless his punishment is to be reduced under Fed.R.Crim.P. 35. See Rakes v. United States, 309 F.2d 686, 687 (4th Cir.1962), cert. denied, 373 U.S. 939, 83 S.Ct. 1543, 10 L.Ed.2d 694 (1963).

The history of the presence privilege was traced in United States v. Gregorio, 497 F.2d 1253 (4th Cir.), cert. denied, 419 U.S. 1024, 95 S.Ct. 501, 42 L.Ed.2d 298 (1974). There a defendant challenged his conviction on the ground that he had been excluded from a jury instruction conference. Id. at 1256-57. In rejecting his assertions based on the Due Process Clause and Rule 43, the court first recognized the rule as a "restatement" of the common law privilege of presence, see Fed.R.Crim.P. 43 advisory committee notes, and then explored the development of that common law. Gregorio, 497 F.2d at 1257-59. The earliest reason for requiring the defendant's presence at trial was the English tradition denying counsel to felons. Id. at 1257. Without counsel, a defendant had to be present to make his defense. Id. After this tradition went by the wayside in the nineteenth century, two other reasons for requiring the defendant's presence evolved. Id. at 1258. First, the reliability of the trial should be protected by giving defendants a chance to help with their defense. Id. at 1258-59. This reason would include the defendants' right of allocution, i.e., right to speak in their own behalf, at sentencing. See Fed.R.Crim.P. 32(a)(1); Hill v. United States, 368 U.S. 424, 428-29, 82 S.Ct. 468, 471-72, 7 L.Ed.2d 417 (1962); Green v. United States, 365 U.S. 301, 304-05, 81 S.Ct. 653, 655-56, 5 L.Ed.2d 670 (1961); Byrd, 345 F.2d at 483-84. Second, defendants should be given an opportunity to observe and understand the trial to "prevent the loss of confidence in courts as instruments of justice which secret trials would engender." Gregorio, 497 F.2d at 1258. The Gregorio court characterized its analysis of the reasons for Rule 43 as equally applicable to the defendant's due process claim. Id. at 1259.

We have recognized as a general matter the importance of the defendant's presence at sentencing, James v. United States, 348 F.2d 430, 432 (10th Cir.1965), and resentencing when punishment is increased, see Mayfield v. United States, 504 F.2d 888, 889 (10th Cir.1974) (addition of special parole term); United States v. McCray, 468 F.2d 446, 450-51 (10th Cir.1972) (removal of time credit). But the defendant's presence is not constitutionally required unless it bears "a relation, reasonably substantial, to the fulness of his opportunity to defend against the charge." Snyder v. Massachusetts, 291 U.S. 97, 105-06, 54 S.Ct. 330, 332, 78 L.Ed. 674 (1934) (presence not required at jury's view of crime scene); see also Peterson v. United States, 411 F.2d 1074, 1080 (8th Cir.) (presence not required at pretrial conference), cert. denied, 396 U.S. 920, 90 S.Ct. 247, 24 L.Ed.2d 199 (1969). The Fourteenth Amendment does not assure the privilege of presence "when presence would be useless, or the benefit but a shadow." Snyder, 291 U.S. at 106-07, 54 S.Ct. at 332. Along the same lines, harmless error analysis has been employed to excuse failure to comply with the literal language of Rule 43. See Pagan, 785 F.2d at 380-81 United States v. Walls, 577 F.2d 690, 698 (9th Cir.), cert. denied, 439 U.S. 893, 99 S.Ct. 251, 58 L.Ed.2d 239 (1978); Peterson, 411 F.2d at 1080-81.

The precise question in the instant case is whether we may look beyond the literal meaning of the judge's oral pronouncement to discern what sentence the judge actually intended to impose. There is nothing ambiguous about the words spoken by the district court, assuming they were accurately recorded by the court reporter. The oral sentence clearly ordered Villano to serve his sentence on count three consecutively to the sentence on count one; the written sentence clearly made the sentence on count three consecutive to the sentence on count two. There is a direct conflict.

Courts faced with such a conflict have responded in two ways. Some have tried to evade the rule that the oral controls the written by straining to find an ambiguity rather than a conflict. ² See, e.g., Pagan, 785 F.2d at 380. These cases reflect the courts' frustration at the possibility of having to disregard clear evidence of the sentencing court's actual intent. Other courts, once finding a conflict, have, perhaps with equal frustration, mechanistically applied the rule that the oral controls the written without considering whether application of the rule is necessary in each case. See United States v. Munoz-Dela Rosa, 495 F.2d 253 (9th Cir.1974); Bussey, 543 F.Supp. 981, 984 (E.D.Va.1982). For example, having found a conflict, the Bussey court stated:

"[T]he Court concludes there is little leeway as to the course it must take in this matter. Although the...