United States v. Clemons, 22344

• Court: United States Courts of Appeals. United States Court of Appeals (District of Columbia)
• Citation: 440 F.2d 205,142 US App. DC 177
• Docket Number: No. 22344,22345.,22344
• Parties: UNITED STATES of America v. Emanuel CLEMONS, Appellant. UNITED STATES of America v. Archie BLYTHER, Jr., Appellant.
• Decision Date: 20 November 1970

142 US App. DC 177, 440 F.2d 205 (1970)

UNITED STATES of America v. Emanuel CLEMONS, Appellant.

UNITED STATES of America v. Archie BLYTHER, Jr., Appellant.

Nos. 22344, 22345.

United States Court of Appeals, District of Columbia Circuit.

Argued September 18, 1969.

Decided November 20, 1970.

Petition for Rehearing Denied January 8, 1971.

Mr. Gerald B. Greenwald, Washington, D. C. (appointed by this court), for appellant in No. 22,344.

Mr. Peter N. Lalos, Washington, D. C. (appointed by this court), for appellant in No. 22,345.

Mr. Robert C. Crimmins, Asst. U. S. Atty., of the bar of the Court of Appeals of New York, pro hac vice, by special leave of the court, with whom Mr. David G. Bress, U. S. Atty. at the time the brief was filed, was on the brief, for appellee. Messrs. Thomas A. Flannery, U. S. Atty. and John A. Terry, Asst. U. S. Atty., also entered appearances for appellee.

Before BAZELON, Chief Judge, and WRIGHT, McGOWAN, TAMM, LEVENTHAL, ROBINSON, MacKINNON and ROBB, Circuit Judges,^* sitting en banc.

Petition for Rehearing in No. 22,345 Denied January 8, 1971.

SPOTTSWOOD W. ROBINSON, III, Circuit Judge:

This case is a sequel to our recent Marshall decision¹ wherein we reasserted a procedural standard to be observed in connection with recidivist sentences under D.C. Code § 22-3204. Each appellant was indicted on a charge of carrying an unlicensed pistol in violation of Section 3204 and, at a joint trial, each was convicted of that offense by a jury. Thereafter, the trial judge imposed prison sentences of three to ten years on appellant Clemons and two to six years on appellant Blyther. On these consolidated appeals, we confront attacks by both appellants on their convictions, and by Clemons on his sentence as well.² We affirm the convictions but remand for a resentencing of Clemons.

The only problem requiring extended discussion is posed by the series of events culminating in Clemons' sentence.³ After the jury returned its verdicts, the Government served on Clemons' trial counsel,⁴ and filed with the court, an information asserting that he had been convicted of robbery in 1958.⁵ That conviction, the information continued, laid the foundation for a greater sentence — to confinement for as long as ten years — than Clemons' pistol-carrying conviction would otherwise have authorized. Indubitably the Government's legal theory was correct if its factual premise was accurate. Penalties for violations of Section 3204 may always extend to a $1,000 fine or one year's imprisonment or both, but may range upward to imprisonment for ten years for violators previously convicted in the District of Columbia of the same offense or of a felony either in the District or elsewhere.⁶

At Clemons' sentencing session, however, there was neither proof of nor inquiry as to the alleged robbery conviction. Indeed, no reference whatever was made to the Government's information or to the averments it contained. So it was, as in Marshall, that we decided to consider en banc the validity of the procedure leading up to Clemons' ten-year sentence.

Marshall reaffirms our earlier Jackson holding⁷ that proof of the prior conviction in the presence of the accused is prerequisite to imposition of any Section 3204 sentence in excess of a year. Clemons' situation, however, diverges somewhat from Marshall's. The Government, we reiterate, charged Clemons' conviction of robbery in 1958; his application to this court for release pending appeal, we see, concedes a 1957 robbery conviction. Nowhere along the line has there been any suggestion that there was any infirmity in the conviction — assuming Clemons and the Government refer to the same one — that might serve to eliminate it as the predicate for an enhanced sentence. Under these circumstances, then, one may wonder as to whether the absence of actual proof of the robbery conviction was harmless error, warranting the conclusion that Clemons' sentence should be left as it is.

In Oyler v. Boles,⁸ the Supreme Court examined two superficially similar situations. In separate instances, after an information alleging past felony convictions had been filed, each petitioner, in open court accompanied by his counsel, admitted that he was the party who had been so convicted, without objection to the convictions. The Court held that these admissions rendered unnecessary any further inquiry.⁹ And in one of our own cases, Kendrick v. United States,¹⁰ after the accused had been convicted under Section 3204, the Government failed to adduce proof of two prior felony convictions charged by information as the basis for an increased sentence. It was held that this omission was set for naught by the accused's acknowledgment, on his cross-examination at the trial, of the same two convictions.¹¹

We think, however, that the case before us ushers in difficulties which were not encountered in Oyler or Kendrick. The concession in Clemons' bail application — speaking to a 1957, not a 1958, conviction — otherwise lacks precision in its reference, and we can only assume, without knowing to a certainty, that it pertains to the robbery conviction specified in the Government's information. If, on the other hand, we do not make the assumption, we face the question whether Clemon's recidivist sentence can be rested upon a prior conviction not charged by the Government in its information.¹² Moreover, the bail application containing the concession was prepared and signed, not by Clemons personally, but by his counsel. While counsel properly included this item of information for consideration in connection with the application, the question arises as to whether, absent proof of his client's authorization, counsel's action could also operate as "a waiver of or a substitute for actual proof of a fact which so drastically increases the maximum imprisonment."¹³

Even more importantly, identity of the accused as the previously-convicted party is by no means the only question open to debate in proceedings to increase punishment under recidivist provisions. Not only the existence of the prior conviction but also its character,¹⁴ its continuing efficacy¹⁵ and its constitutional validity¹⁶ are among the inquiries appropriate. There is indication, too, that any defect which exposes the prior conviction to collateral attack may be asserted defensively in the recidivist proceeding.¹⁷ We do not now so decide, but we do point out that we have no way of knowing whether any such infirmity could have been urged successfully had the Government proved a robbery conviction before sentence was pronounced. In sum, counsel's concession of a past conviction for bail purposes is not tantamount to a concession of its serviceability for purposes of a recidivist sentence.¹⁸

We are mindful, too, that to accept the mention in the bail application of a robbery conviction as a substitute for proof of the conviction at sentencing would deprive Clemons of a valuable opportunity we identified in Marshall. "When the proof is introduced in the presence of the defendant," we said, "meaningful opportunity is afforded, which might otherwise be unavailable, to enable the accused in the exercise of his right of allocution to advance any reasons he might have why the court should not enlarge the sentence because of his past record."¹⁹ And, very significantly for the instant case, we added that "even when the fact of conviction is not disputable he may adduce whatever he deems appropriate for the judge to consider in connection with it."²⁰

These difficulties persuade us, in deciding this case, to revert to fundamentals. Our context is a proceeding²¹ enabling the sentencing judge to elevate a misdemeanor to felony status,²² and to inflict additional punishment if the accused has suffered either of two types of prior conviction.²³ We have no doubt that the proceeding is criminal in character,²⁴ and as much as any other that paves the way to prison. We have no doubt, either, that the accused recidivist, similarly to an accused first offender, must be sheltered by suitable safeguards against an improper sentence.

The statute under which Clemons was committed for a maximum of ten years is completely silent on the procedural events that must forerun an enhanced sentence. But Congress, in plain language, set the conditions precedent to any gun-carrying sentence of imprisonment more than a year in duration. In a decidedly criminal proceeding wherein punishment may be multiplied — here by a factor of ten — nothing so vital as the existence of the conditions authorizing a stepped-up sentence should be left to surmise. And perhaps the procedural standard least dispensible to any just ascertainment of the essential substantive elements of a sentence for illegal pistol-toting is proof adequate to support affirmative judicial determinations on that score.²⁵ We recognize, of course, that the accused's admissions may sometimes rise to a level of certainty so high as to obviate the need for particular items of formal proof by the Government. We conclude, however, that the bare reference in Clemons' bail motion to an otherwise unelucidated past robbery conviction cannot remedy the total absence of proof here.

We affirm the judgments appealed from to the extent that they convict appellants of the offense of carrying an unlicensed pistol. We vacate Clemons' sentence and remand his case for a resentencing. The sentence that may permissibly be imposed upon Clemons must not exceed one year unless the Government introduces evidence, with Clemons and his counsel present, which satisfies the sentencing judge that prior to his Section 3204 offense Clemons had been convicted of a similar violation or a felony.²⁶

MacKINNON, Circuit Judge (concurring in part and dissenting in part):

I concur in the affirmance of the convictions in Nos. 22344 and 22345 but dissent from the vacation of the sentence in No. 22344 and the remand of the case for resentencing for essentially the same...