United States v. Nunzio

• Decision Date: 14 May 1981
• Docket Number: No. 81-84.,81-84.
• Citation: 430 A.2d 1372
• Parties: UNITED STATES, Petitioner, v. Honorable Nicholas S. NUNZIO, Associate Judge, Superior Court of the District of Columbia, Respondent.
• Court: D.C. Court of Appeals

430 A.2d 1372

UNITED STATES, Petitioner, v. Honorable Nicholas S. NUNZIO, Associate Judge, Superior Court of the District of Columbia, Respondent.

No. 81-84.

District of Columbia Court of Appeals.

Argued April 2, 1981.

Decided May 14, 1981.

Rehearing and Rehearing En Banc Denied June 30, 1981.

William J. Birney, Asst. U. S. Atty., Washington, D.C., with whom Charles F. C. Ruff, U. S. Atty., and John A. Terry, John R. Fisher, and Paul L. Knight, Asst. U. S. Attys., Washington, D.C., were on the petition for a writ of mandamus.

Hon. Nicholas S. Nunzio, Associate Judge, Superior Court of the District of Columbia, Washington, D.C., pro se, was on the response to the petition. W. Gary Kohlman, Public Defender Service, Washington, D.C., argued for respondent. Silas J. Wasserstrom, Public Defender Service, Washington, D.C., also entered an appearance for respondent.

Charles F. Stow, Washington, D.C., appointed by the court, entered an appearance for defendant Hamid and adopted the response submitted on behalf of respondent.

Nathan Lewin and Seth P. Waxman, Washington, D.C., were on the amicus curiae brief on behalf of The Jewish Community Council of Greater Washington.

Before KELLY, HARRIS, and MACK, Associate Judges.

HARRIS, Associate Judge:

Abdul Hamid, also known as Hilvan Jude Finch, was convicted of conspiracy to commit kidnapping while armed, D.C. Code 1973, § 22-105a, assault with a dangerous weapon, id., § 22-502, and eight counts of kidnapping while armed, id., §§ 22-2101, — 3202. The charges stemmed from his involvement with eleven other defendants in the takeover of three buildings on March 9, 1977, during which more than 130 persons were held hostage, one person was killed, and several were seriously injured. On September 6, 1977, respondent sentenced Hamid to a term of from 36 to 108 years in prison. We affirmed the convictions. Khaalis v. United States, D.C.App., 408 A.2d 313 (1979), cert. denied, 444 U.S. 1092, 100 S.Ct. 1059, 62 L.Ed.2d 781 (1980). On June 25, 1980, Hamid filed a motion for reduction of sentence under Super.Ct.Cr.R. 35(a). On January 2, 1981, respondent vacated Hamid's original sentence, suspended execution of sentence, and placed him on probation for five years. On January 8, 1981, respondent vacated the order of January 2 and resentenced Hamid to ten concurrent one-year terms (for each of the ten counts of which he had been convicted), with credit for time served. Consistent therewith, Hamid was released from custody.

The government has petitioned this court for a writ of mandamus directing the trial judge to vacate his order of January 8, 1981, on the ground that he had no authority to act under Rule 35(a), and to reinstate the original sentence. We conclude that the trial judge did act without proper authority, and grant the government's petition for a writ of mandamus.¹

Rule 35(a) provides in pertinent part: The court may reduce a sentence within 120 days after the sentence is imposed, or within 120 days after receipt by the court of a mandate issued upon affirmance of the judgment or dismissal of the appeal, or within 120 days after entry of any order or judgment of the Supreme Court denying review of, or having the effect of upholding, a judgment of conviction.

The clear time limitation contained in the rule is reinforced by Super.Ct.Cr.R. 45(b), which provides that "the court may not extend the time for taking any action under Rule[] . . . 35, except to the extent and under the conditions stated in [it]."²

Hamid's motion for reduction of sentence was timely filed.³ Nonetheless, it is obvious that "[t]he 120-day time limitation of Rule 35 . . . by its terms does not apply to the timely filing of motions. It sets a time limit on the power of the court to act." United States v. Pollack, (D.C.Cir., No. 80-1374, Dec. 24, 1980, slip op. at 4) (emphasis in original). In this case the trial court did not act on Hamid's motion until January 2, 1981, more than six months after its power to reduce the sentence had expired.

The Supreme Court recently stated that the time period of Rule 35 is jurisdictional and may not be enlarged. United States v. Addonizio, 442 U.S. 178, 189, 99 S.Ct. 2235, 2242, 60 L.Ed.2d 805 (1979). In a unanimous opinion, the Court stated:

[O]nce a sentence has been imposed, the trial judge's authority to modify it is also circumscribed. Federal Rule Crim. Proc. 35 now authorizes District Courts to reduce a sentence within 120 days after it is imposed or after it has been affirmed on appeal. The time period, however, is jurisdictional and may not be extended. [Id. (footnotes omitted).]

We long have adhered to that view.⁴ Brown v. United States, D.C.App., 411 A.2d 631, 633 (1980); McDaniels v. United States, D.C.App., 385 A.2d 180, 182 (1978); see Franklin v. United States, D.C.App., 293 A.2d 278 (1972).⁵ Moreover, we are obliged to heed the interpretation of Rule 35 expressed by the Supreme Court in Addonizio.⁶ We followed that path in Brown v. United States, supra, as have most courts which have addressed the issue since Addonizio.⁷ United States v. Pollack, supra; United States v. Gonzalez-Perez, 629 F.2d 1081, 1083 (5th Cir. 1980) [without relying on Addonizio but citing Fed.R. Crim.P. 45(b)]; United States v. Hetrick, 627 F.2d 1007, 1011 (9th Cir. 1980) [relying both on Addonizio and on Fed.R.Crim.P. 45(b)]; People v. Nix, 610 P.2d 1088, 1091 (Colo.App. 1980) (without relying on Addonizio); State v. Moses, 227 Kan. 400, 403-404, 607 P.2d 477, 481 (1980) (same).

Consequently, we conclude that the trial court was without authority to grant defendant Hamid's motion for reduction of sentence once the 120-day time period had expired.⁸ We note that the trial court granted the defendant's motion in this case based largely upon favorable prison records and the apparently strong indications of Hamid's rehabilitation. Once sentence has been imposed, however, considerations such as these generally are more properly addressed by the parole authorities, rather than by the sentencing judge. United States v. Addonizio, supra, 442 U.S. at 188-89, 99 S.Ct. at 2242; Brown v. United States, supra, 411 A.2d at 632; Walden v. United States, D.C.App., 366 A.2d 1075, 1077 (1976); Burrell v. United States, D.C. App., 332 A.2d 344, 346, cert. denied, 423 U.S. 826, 96 S.Ct. 42, 46 L.Ed.2d 43 (1975); United States v. Pollack, supra, slip op. at 6.

We question neither the trial judge's conscientiousness nor his good faith. In that connection, we note that not all avenues for the possible modification of Hamid's period of incarceration are foreclosed by our interpretation of Rule 35. Under D.C. Code 1973, § 24-201c, the Board of Parole may apply to the sentencing court for the early release of a prisoner upon its determination "that there is a reasonable probability that a prisoner will live and remain at liberty without violating the law, and that his immediate release is not incompatible with the welfare of society." The Board may apply to the trial court for reduction of a minimum sentence without regard to the 120 day time constraints of Rule 35; the trial court then may act on such an application at any time prior to the expiration of the minimum sentence.⁹

In light of the foregoing, we grant the government's petition for a writ of mandamus directing respondent (1) to vacate his order of January 8, 1981, which purported to reduce Hamid's sentence, and (2) to reinstate the original sentence.

So Ordered.

MACK, Associate Judge, dissenting.

The government's petition raises the basic question of whether a trial judge may rule, beyond the 120-day period specified in Super.Ct.Cr.R. 35(a), upon a timely filed motion for reduction of sentence. In holding that Judge Nunzio was without authority to act, the majority adopts a position unsupportable by precedent. I would hold that a trial judge has a reasonable time within which to act upon a timely filed motion for reduction of sentence, that Judge Nunzio, under the circumstances of this case, acted within a reasonable time and, therefore, that the extraordinary remedy of mandamus should not be granted.

I.

The majority correctly acknowledges that our Rule 35(a) and its federal counterpart (Fed.R.Crim.P. 35(a)) are identical, and that, therefore, our rule is to be construed in light of the interpretation given to the latter by the federal courts. See McDaniels v. United States, D.C.App., 385 A.2d 180, 181 n. 2 (1978). Having done so, the majority proceeds to ignore the fact that every United States Circuit Court of Appeals to address the issue has held that a trial court has a reasonable time beyond the 120th day within which to decide a timely filed Rule 35 motion. See, e. g., United States v. Johnson, 634 F.2d 94 (3rd Cir. 1980); Government of the Virgin Islands v. Gereau, 603 F.2d 438 (3rd Cir. 1979); United States v. Williams, 573 F.2d 527 (8th Cir. 1978); United States v. Mendoza, 565 F.2d 1285 (5th Cir. 1978), modified, 581 F.2d 89 (5th Cir. 1978) (en banc); United States v. Stollings, 516 F.2d 1287 (4th Cir. 1975); United States v. Janiec, 505 F.2d 983 (3rd Cir. 1974), cert. denied, 420 U.S. 948, 95 S.Ct. 1332, 43 L.Ed.2d 427 (1975); United States v. Polizzi, 500 F.2d 856 (9th Cir. 1974), cert. denied, 419 U.S. 1120, 95 S.Ct. 802, 42 L.Ed.2d 820 (1975); Leyvas v. United States, 371 F.2d 714 (9th Cir. 1967); Dodge v. Bennett, 335 F.2d 657 (1st Cir. 1964).¹ The view espoused by the circuit courts is eminently sound and well founded in reason.

Admittedly, Rule 35 does not explicitly recite language with respect to a defendant filing a petition for reduction of sentence. It speaks rather to the time within which a district court may act. The majority suggests that its literal interpretation of the rule is reinforced by Rule 45(b) which provides that the trial court may not enlarge the period for action on a motion under certain specified rules, including Rule 35. I will concede that the time limitation is often...