Walden v. United States, No. 10405.

• Docket Nº: No. 10405.
• Citation: 366 A.2d 1075
• Case Date: December 01, 1976
• Court: Court of Appeals of Columbia District

Page 1075

366 A.2d 1075 Darryl W. WALDEN, Appellant,
v.
UNITED STATES, Appellee. No. 10405. District of Columbia Court of Appeals. Submitted September 8, 1976. Decided December 1, 1976.

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Ronald G. Nathan, Washington, D.C., was on the brief for appellant.

Earl J. Silbert, U. S. Atty. and John A. Terry, William D. Pease, Peter A. Chapin, David M. Bullock, and Larry C. Willey, Asst. U. S. Attys., Washington, D.C., were on the brief for appellee.

Before YEAGLEY, HARRIS and MACK, Associate Judges.

HARRIS, Associate Judge:

Appellant charged with armed robbery, robbery, assault with a dangerous weapon, and carrying a pistol without a license [D. C.Code 1973, §§ 22-2901, -3202; 22-2901; 22-502; and 22-3204], pleaded guilty to armed robbery in satisfaction of the entire indictment. He was sentenced to five-to-fifteen years' imprisonment. He appeals the denial of a motion to reduce his sentence. We affirm.

Due to an administrative error (the details of which are not reflected by the record), appellant's motion was not reached for consideration until over two years after imposition of sentence. See Super.Ct. Cr.R. 35(a). The trial court scheduled a hearing at which appellant testified as to his own alleged rehabilitation, and a friend and various family members testified that they could give him the necessary support in returning to the community, continuing his education, earning a livelihood, and avoiding future criminal conduct. The trial judge noted that such testimony had to be weighed in light of the fact that it all came from the prisoner or witnesses friendly to him, and indicated that had the hearing been held within the 120-day period provided by Rule 35(a), he would have denied the motion. However, he observed that because of the long delay, information on appellant's actual record in prison was available. Accordingly, the court stated that it was willing to consider such information before ruling upon the motion. Counsel for both the government and the appellant accepted that suggestion, and the judge continued the hearing until after he had time to examine records from the Bureau of Prisons.

At a second hearing, the judge announced that he had examined the records only to determine whether there was evidence of such rehabilitation as might induce him to reduce a sentence which had not been excessive in light of the circumstances at the time of its imposition or under the evidence revealed at the original hearing. He found that the prison records failed to show rehabilitation, and the motion was denied.

Our precedents demonstrate the fact that it is not our role to review sentences which are within statutory limits. Banks v. United States, D.C.App., 307 A.2d 767 (1973); Foster v. United States, D.C. App., 290 A.2d 176, 179 (1972). See Fludd v. United States, D.C.App., 336 A.2d 539, 541 (1975). We have shown similar deference to the trial court's discretion in the exercise of its sentencing power in the context of a post-trial motion to reduce a sentence. Banks v. United States, supra. It would be nonsensical to have a broader scope of review of a ruling on a motion to reduce a sentence than of the original imposition of sentence.

The case law under Fed.R.Crim. P. 35 [the language of which is tracked by Super.Ct.Cr.R. 35(a)] supports the principle of broad deference to a ruling by the

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trial court on a motion to reduce sentence.¹ A motion for reduction in sentence is basically "a plea for leniency". Poole v. United States, 102 U.S.App.D.C. 71, 76, 250 F. 2d 396, 401 (1957). See Jones v. United States, 117 U.S.App.D.C. 169, 173 n. 18, 327 F.2d 867, 871 n. 18 (1963); United States v. Slutsky, 514 F.2d 1222, 1226 (2d Cir. 1975); United States v. Ellenbogen, 390 F.2d 537, 543 (2d Cir), cert. denied, 393 U.S. 918, 89 S.Ct. 241, 21 L.Ed.2d 206 (1968). Such a motion is addressed to the trial court's sound discretion. E.g., United States v. Slutsky, supra, at 1226; Lee v. United States, 501 F.2d 494, 501 (8th Cir. 1974); United States v. Bethany, 489 F.2d 91 (5th Cir. 1974); Green v. United States, 157 U.S.App.D.C. 40, 481 F.2d 1140 (1973); United States v. Stumpf, 476 F.2d 945 (4th Cir. 1973); United States v. Kohlberg, 472 F.2d 1189 (9th Cir. 1973); united States v. Brown, 428 F.2d 1191, 1193 (7th Cir.), cert. denied, 400 U.S. 941, 91 S.Ct. 238, 27 L.Ed.2d 245 (1970). See United States v. Donohoe, 458 F.2d 237 (10th Cir. 1972). Although the verbal formulations vary, the scope of appellate review of decisions on sentence reduction motions is very limited. It has been described as "quite narrow" [United States v. Slutsky, supra, at 1226], or as limited to cases of "abuse of discretion" [United States v. Donohoe, supra, at 239], or "clear abuse of discretion" [United States v. Stumpf, supra, at 946], or "arbitrary or capricious action amounting to a...