United States v. Hamid, 81-1294.

• Decision Date: 02 June 1983
• Docket Number: No. 81-1294.,81-1294.
• Citation: 461 A.2d 1043
• Parties: UNITED STATES, Appellant, v. Abdul HAMID a/k/a Hilvan Jude Finch, Appellee.
• Court: D.C. Court of Appeals

461 A.2d 1043

UNITED STATES, Appellant, v. Abdul HAMID a/k/a Hilvan Jude Finch, Appellee.

No. 81-1294.

District of Columbia Court of Appeals.

Argued October 5, 1982.

Decided June 2, 1983.

William J. Birney, Asst. U.S. Atty., Washington, D.C. with whom Stanley S. Harris, U.S. Atty., John A. Terry, Asst. U.S. Atty., Washington, D.C., at the time the brief was filed, and Michael W. Farrell, and Paul L. Knight, Asst. U.S. Attys., Washington, D.C., were on brief, for appellant.

Timothy D. Junkin, with whom Greta C. Van Susteren, Washington, D.C., was on brief, for appellee.

Before NEBEKER, FERREN and PRYOR, Associate Judges.

NEBEKER, Associate Judge:

The government appeals a reduction of sentence entered after a finding of Sixth Amendment ineffectiveness of counsel in filing the motion two days before the expiration of the time specified in Rule 35. We hold that the trial court's action was based on an erroneous premise and is otherwise unsupported. We reverse.

Abdul Hamid, also known as Hilvan Jude Finch was charged and convicted of multiple offenses stemming from his involvement in the March 1977 "Hanafi" takeover of the B'nai B'rith Headquarters. His sentence of 36 to 108 years was affirmed by this court in Khaalis v. United States, 408 A.2d 313 (D.C.1979), cert. denied, 444 U.S. 1092, 100 S.Ct. 1059, 62 L.Ed.2d 781 (1980). A motion for reduction of sentence under Super.Ct.Crim.R. 35¹ was filed 118 days after the trial court received the mandate affirming his conviction. The trial court granted this motion over six months later. In United States v. Nunzio, 430 A.2d 1372 (D.C.1981), we reinstated Hamid's original sentence after holding that the 120-day time limit embodied in Rule 35 was jurisdictional, and, therefore, the trial court was without authority to grant Hamid's motion for reduction of sentence once that time period had expired. Hamid, through new court-appointed counsel, then filed a motion to vacate sentence under D.C.Code § 23-110 (1981) asserting that his previous counsel had rendered constitutionally ineffective assistance by filing his Rule 35 motion too late for the trial court to rule within the 120-day limit, and that this ineffectiveness denied him his opportunity to have his Rule 35 motion considered and thus deprived him of due process of law. The trial court granted this motion, concluding that the filing of the Rule 35 motion on the 118th day was "per se" ineffective assistance of counsel. The trial court then reduced Hamid's sentence to time served.

We hold that the Sixth Amendment right to the effective assistance of counsel does not apply to the post-conviction process in seeking a reduction of sentence. Having no constitutional right to counsel, Hamid could not be deprived of effective assistance of counsel in the filing of his Rule 35 motion. Additionally, Hamid was not deprived of due process of law.

The right to request a reduction in sentence is not a right of sufficient substance to trigger the Sixth Amendment. Burrell v. United States, 332 A.2d 344 (D.C.), cert. denied, 423 U.S. 826, 96 S.Ct. 42, 46 L.Ed.2d 43 (1975). See Ross v. Moffitt, 417 U.S. 600, 94 S.Ct. 2437, 41 L.Ed.2d 34 (1974) (a criminal defendant does not have a constitutional right to counsel to pursue discretionary state appeals or applications for Supreme Court review). Rather, a Rule 35 reduction motion is simply a plea for leniency addressed to the trial court's discretion. Walden v. United States, 366 A.2d 1075, 1077 (D.C.1976); Burrell v. United States, supra, 332 A.2d at 346. Having no constitutional right to counsel for these purposes, the inquiry and determination as to his effectiveness was an irrelevancy and thus was an improper predicate for any relief. Wainwright v. Torna, 455 U.S. 586, 102 S.Ct. 1300, 1301, 71 L.Ed.2d 475 (1982).²

Our concurring brother says due process requires counsel and, once required, his performance should be measured by Sixth Amendment standards of effectiveness. The cases he cites involve a criminal trial, appeal of right, revocation of liberty or child custody, and prisoner challenge to a conviction or confinement. None carry their persuasiveness or logic into the post-trial or post-appeal process respecting the reduction of sentence by grace. The dictum in Burrell v. United States, supra, to which our brother clings seems particularly sapped of vigor given Ross v. Moffitt, supra and Wainwright v. Torna, supra.

Appellant had no right to counsel in the proceedings aimed at reduction of sentence. The inquiry by the trial court and its holding respecting the adequacy of counsel's performance in those proceedings was legally irrelevant.

Reversed and remanded with instruction to reinstate the sentence.

FERREN, Associate Judge, dissenting in part and concurring in the judgment only.

On the facts of this case, appellee Hamid had a right to appointment of counsel as a matter of due process under the Fifth Amendment. Thus, we must reach the merits of his ineffective assistance claim. However, because counsel pursued the Rule 35 motion in accordance with the law of this jurisdiction at the time — treating the 120-day limit as a filing deadline, not as a jurisdictional limit on the trial court's authority to act — he cannot be held constitutionally ineffective. Accordingly, I too, would reverse.

I.

I agree with my colleagues that, given Wainwright v. Torna, 455 U.S. 586, 102 S.Ct. 1300, 71 L.Ed.2d 475 (1982), appellee had no Sixth Amendment right to assistance of counsel for a Rule 35 motion. That does not end the matter, however, for the Supreme Court repeatedly has held that Fifth Amendment due process requires the appointment of counsel for indigents in a variety of situations beyond the ambit of the Sixth Amendment.

For example, the Court perceived a blanket due process right to counsel in juvenile proceedings when the juvenile is exposed to the possibility of confinement, In re Gault, 387 U.S. 1, 87 S.Ct. 1428, 18 L.Ed.2d 52'7 (1967), and also announced a categorical due process right to counsel for state criminal appeals given as of right. Douglas v. California, 372 U.S. 353, 83 S.Ct. 814, 9 L.Ed.2d 811 (1963). Moreover, the Supreme Court has recognized several categories of proceedings where the facts control — where due process may or may not require the appointment of counsel, depending on "the peculiarities of particular cases." Gagnon v. Scarpelli, 411 U.S. 778, 789, 93 S.Ct. 1756, 1763, 36 L.Ed.2d 656 (1973) (right to counsel in probation revocation hearings to be evaluated on a case-by-case basis); Lassiter v. Department of Social Services, 452 U.S. 18, 101 S.Ct. 2153, 68 L.Ed.2d 640 (1981) (right to counsel for indigent parents in custody termination proceedings). In such proceedings, the trial court is to determine whether "fundamental fairness — the touchstone of due process" — requires the appointment of counsel. Gagnon, supra, 411 U.S. at 790, 93 S.Ct. at 1763.

Other jurisdictions have recognized that due process may require the appointment of counsel in post-conviction proceedings. For example, in Dillon v. United States, 307 F.2d 445, 446-47 (9th Cir.1962), the court held that the Fifth Amendment requires appointment of counsel in a 28 U.S.C. § 2255 proceeding "when the circumstances of a defendant or the difficulties involved in presenting a particular matter are such that a fair and meaningful hearing cannot be had without the aid of counsel." Accord LaClair v. United States, 374 F.2d 486, 489 (7th Cir.1967) ("We hold that the law in this circuit is that appointment of counsel for indigents in habeas corpus and section 2255 proceedings rests in the sound discretion of district courts unless denial would result in fundamental unfairness impinging on due process rights"); see McKeever v. Israel, 689 F.2d 1315 (7th Cir.1982) (in failing to appoint counsel for indigent prisoner under federal in forma pauperis statute, trial court abused discretion, creating fundamental unfairness impinging on due process rights); Maclin v. Freake, 650 F.2d 885 (7th Cir.1981) (per curiam) (same); Juelich v. United States, 342 F.2d 29, 32 (5th Cir.1965) (due process may require appointment of counsel in order to ensure "fair and meaningful hearing," quoting Dillon, supra); Commonwealth v. Conceicao, 388 Mass. 255, 446 N.E.2d 383, 387-88 (1983) ("determination whether a refusal to appoint counsel [for new trial motion] deprives an indigent defendant of meaningful access . . . or results in fundamental unfairness . . . will be resolved on a case-by-case basis").

Apropos of such legal precedent, this court explicitly recognized in Burrell v. United States, 332 A.2d 344 (D.C.), cert. denied, 423 U.S. 826, 96 S.Ct. 42, 46 L.Ed.2d 43 (1975), that although there is, in general, no statutory or constitutional right to counsel for a motion to reduce sentence, an indigent does have such a right in "situations raising the kind of an issue supported by specific factual allegations, wherein fundamental fairness requires the appointment of counsel if standards of due process are to be met." 332 A.2d at 347.¹

In evaluating whether due process required the trial court to appoint counsel for appellee, we must consider: (1) appellee's interests at stake, (2) the government's interest, and (3) the risk of error in the absence of counsel. Mathews v. Eldridge, 424 U.S. 319, 335, 96 S.Ct. 893, 903, 47 L.Ed.2d 18 (1976) (quoted in Lassiter, supra, 452 U.S. at 27, 101 S.Ct. at 2159).

The criminal defendant's interest is in presenting the trial court with information enabling the court to render a just ruling on the motion to reduce sentence. Ordinarily, this interest is slight, because the trial court will have heard evidence in mitigation at the sentencing stage, and the Rule 35 motion is simply a plea that the trial court reconsider that evidence.

The government's interest is in saving the cost of counsel. Lassiter, supra, 452 U.S. at 28, 101 S.Ct. at 2160. Ordinarily, this interest...