Williams v. United States

• Decision Date: 06 December 1983
• Docket Number: No. 81-928.,No. 81-929.,81-928.,81-929.
• Citation: 470 A.2d 302
• Parties: Scotty WILLIAMS, Appellant, v. UNITED STATES, Appellee.
• Court: D.C. Court of Appeals

470 A.2d 302

Scotty WILLIAMS, Appellant, v. UNITED STATES, Appellee.

No. 81-928.

No. 81-929.

District of Columbia Court of Appeals.

Argued January 26, 1983.

Decided December 6, 1983.

Rehearing En Banc Granted and Opinion Vacated April 2, 1984.

COPYRIGHT MATERIAL OMITTED

[At] Sebastian K.D. Graber, Alexandria, Va., appointed by this court, for appellant.

Katherine Winfree, Asst. U.S. Atty., with whom Stanley S. Harris, U.S. Atty., John A. Terry, Asst. U.S. Atty., at time brief was filed, and John R. Fisher, Asst. U.S. Atty., Washington, D.C., at time brief was filed, were on brief, for appellee.

Before MACK and FERREN, Associate Judges, and PAIR, Associate Judge, Retired.

FERREN, Associate Judge:

Appellant pleaded guilty on February 5, 1980 to charges of rape and first degree burglary, D.C.Code §§ 22-2801, -1801 (1973), respectively.¹ The trial court ordered a study under the Federal Youth Corrections Act, 18 U.S.C. § 5010(e) (1976), and continued the case for sentencing. On July 7, the trial court imposed consecutive sentences totaling fifteen to forty-five years. In early September 1980, appellant contacted the Public Defender Service (PDS) and requested that a PDS lawyer file a motion to reduce sentence. Super.Ct. Crim.R. 35.² PDS agreed to represent him and filed the motion on November 3, 1980, 119 days after the trial court had imposed sentence.

On May 14, 1981, this court issued its opinion in United States v. Nunzio, 430 A.2d 1372 (D.C.1981), holding that the 120-day limit specified in Rule 35 (note 2 supra) was not a filing deadline but a jurisdictional limit on the trial court's power to rule. On July 2, 1981, the trial court denied appellant's Rule 35 motion, citing Nunzio for the proposition that the court "lack[ed] jurisdiction to modify the sentence because more than 120 days [had] elapsed since imposition of sentence on July 7, 1980."

Appellant contends that: (1) his PDS attorney rendered ineffective assistance of counsel by filing the Rule 35 motion on the 119th day after sentencing; (2) he was denied his due process right to have the trial court consider the Rule 35 motion; and (3) he was deprived of equal protection of the laws by virtue of his indigency. In reversing, we address only the first two arguments.

I. Ineffective Assistance of Counsel

In United States v. Hamid, 461 A.2d 1043 (D.C.1983), this court reversed a trial court holding that retained counsel rendered "per se ineffective" assistance by filing a Rule 35 motion on the 118th day after sentencing. We held that the trial court's inquiry into counsel's alleged ineffectiveness was "legally irrelevant," id., at 1045, in light of the Supreme Court's decision in Wainwright v. Torna, 455 U.S. 586, 102 S.Ct. 1300, 71 L.Ed.2d 475 (1982) (per curiam).

In Torna, a criminal defense lawyer had filed his client's petition for certiorari in the Florida Supreme Court one day late, and the client alleged ineffective assistance of counsel. The United States Supreme Court held that, because there was no constitutional right to counsel in pursuing state discretionary appeals, Ross v. Moffitt, 417 U.S. 600, 94 S.Ct. 2437, 41 L.Ed.2d 341 (1974), there could be no constitutionally deficient assistance of counsel. Torna, supra, 455 U.S. at 587-88, 102 S.Ct. at 1301-02. By analogy, this court held in Hamid, supra, that because there was no statutory or constitutional right to counsel for a Rule 35 motion, 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),³ there could be no constitutionally ineffective assistance. Appellant's Sixth Amendment claim is identical to the claim rejected in Hamid and accordingly must fail here.

II. Due Process

Appellant's Fifth Amendment due process argument proceeds as follows: There is a due process right to have the trial court consider a Rule 35 motion, and appellant was deprived of that right either (a) because his government-supplied lawyer filed the motion late, or (b) because the trial court erred in applying Nunzio retroactively to appellant's pre-Nunzio motion.

A.

As a threshold matter, we agree that:

Appellant had a due process right to have the trial court consider his Rule 35 motion. See Connecticut Board of Pardons v. Dumschat, 452 U.S. 458, 467 [101 S.Ct. 2460, 2465, 69 L.Ed.2d 158] (1981) (state system of discretionary parole "conferred no rights on [prisoners] beyond the right to seek commutation"). Moreover, in giving appellant the right to seek a reduction of sentence, the state gave more than a right to file a piece of paper; it granted an opportunity to present the motion "`at a meaningful time and in a meaningful manner.'" Logan v. Zimmerman Brush Co., 455 U.S. 422 [102 S.Ct. 1148, 71 L.Ed.2d 265] (1982) (quoting Armstrong v. Manzo, 380 U.S. 545 [85 S.Ct. 1187, 14 L.Ed.2d 62] (1965)).

United States v. Hamilton, 465 A.2d 843, 844 (D.C.1983) (per curiam) (Ferren, J., dissenting).

The trial court need not provide a defendant with counsel, Hamid, supra, 461 A.2d at 1044, or in every case afford a hearing, since the court typically will have heard evidence in mitigation at the original sentencing and thus the risk of an uninformed ruling will be slight. Id. at 1046 (Ferren, J., dissenting in part and concurring in the judgment only). A defendant, however, will not receive an opportunity to present the motion in a "meaningful manner," Logan v. Zimmerman Brush Co., 455 U.S. 422, 437, 102 S.Ct. 1148, 1158-59, 71 L.Ed.2d 265 (1982), unless that defendant at least can receive a ruling on a timely filed motion. The trial court's discretion to decide is not discretion to ignore; the court must affirmatively exercise the discretion the law affords. See Dorszynski v. United States, 418 U.S. 424, 94 S.Ct. 3042, 41 L.Ed.2d 855 (1974) (even though sentencing under Federal Youth Corrections Act is discretionary, and the trial court need not explain its decision, the failure to exercise discretion with explicit finding as to whether eligible youth would benefit from FYCA treatment is reversible error); Brooks v. United States, 458 A.2d 66 (D.C.1983) (where trial court was unable to rule during probation period on motion for early discharge and set aside under Federal Youth Corrections Act, the "spirit of the Youth Act" required remand so that trial court would have an affirmative opportunity to exercise discretion.)⁴

B.

Thus, we turn to appellant's argument that his counsel's late filing violated due process by depriving him of his right to a ruling on a timely filed Rule 35 motion. In Torna, supra, petitioner argued that the Florida Supreme Court had deprived him of due process by declining to review his certiorari petition, filed late by retained counsel. The Supreme Court dismissed the claim on state action grounds:

Respondent was not denied due process of law by the fact that counsel deprived him of his right to petition the Florida Supreme Court for review. Such deprivation — if even implicating a due process interest — was caused by his counsel, and not by the State. Certainly, the actions of the Florida Supreme Court in dismissing an application for review that was not filed timely did not deprive respondent of due process of law.

455 U.S. at 588 n. 4, 102 S.Ct. at 1301 n. 4. Appellant argues that his claim is distinguishable because he was represented by a government-supplied PDS lawyer instead of by retained counsel. Thus, according to appellant, the deprivation caused by counsel's late filing was state action, and his claim, accordingly, survives Torna.

We reject this analysis. In Lugar v. Edmondson Oil Co., Inc., 457 U.S. 922, 102 S.Ct. 2744, 73 L.Ed.2d 482 (1982), the Supreme Court held that "conduct satisfying the state action requirement of the Fourteenth Amendment satisfies the statutory requirement of action under color of state law [42 U.S.C. § 1983]." Id. 102 S.Ct. at 2753 n. 18. In Polk County v. Dodson, 454 U.S. 312, 102 S.Ct. 445, 70 L.Ed.2d 509 (1981) the Court held that a public defender does not act "under color of state law," 42 U.S.C. § 1983, in representing a criminal defendant. If conduct satisfying the state action requirement necessarily satisfies the under-color-of-state-law requirement, Lugar, supra, and if the conduct involved here (representing an indigent defendant) does not satisfy the under-color-of-state-law requirement, Polk County, supra, then it follows logically that the conduct involved here cannot satisfy the state action requirement.

C.

Appellant argues, alternatively, that, given standard Superior Court practice, his Rule 35 motion was timely filed, and thus the trial court's retroactive application of Nunzio, supra, violated his due process right to a ruling.

As a rule, due process neither requires nor forbids giving retroactive effect to the decisions of an appellate court. Linkletter v. Walker, 381 U.S. 618, 628-29, 85 S.Ct. 1731, 1737-38, 14 L.Ed.2d 601 (1965); Great Northern Ry. Co. v. Sunburst Oil & Refining Co., 287 U.S. 358, 364-65, 53 S.Ct. 145, 148-49, 77 L.Ed. 360 (1932). The Supreme Court, however, has recognized a due process limitation on a state court's ability to apply retroactively a case overturning precedent that defined the procedure a party followed in asserting his or her rights. In Brinkerhoff-Faris Co. v. Hill, 281 U.S. 673, 50 S.Ct. 451, 74 L.Ed. 1107 (1930), a taxpayer sued to enjoin collection of a tax that allegedly violated the Equal Protection clause. State precedent had allowed similar suits. The Supreme Court of Missouri held that the taxpayer should have sought relief from the State Tax Commission and, having failed to do so, was barred by lathes from proceeding in court. Six years earlier, the same court had held that the Tax Commission lacked the power to grant the relief sought; and, by the time the overruling decision came down, the time for proceeding to the Tax Commission had passed. The United States Supreme Court reversed, holding that the state had to...