No Double Jeopardy violation when trial court fixed “clerical error” two years after issuing sentencing order

Herring v. United States (decided Sept. 14, 2017)

Players: Associate Judges Glickman and Fisher, Senior Judge Reid. Opinion by Fisher. Trial Judge: Ann O’Regan Keary. PDS for Mr. Herring.

Facts: After a jury trial, Mr. Herring was convicted of several offenses related to a shooting, including two counts of possession of a firearm during a crime of violence (PFCV). These counts represented counts three and four. Judge Keary sentenced Mr. Herring to “a total of 174 months” with sixty months on each of the PFCV counts. Judge Keary ordered count three to be concurrent while count four would be consecutive. On his direct appeal, the Court of Appeals affirmed Mr. Herring’s convictions but remanded with instructions to merge the two PFCV convictions. Upon remand, Judge Keary issued an amended commitment order which removed count four (the PFCV count designated as consecutive), but otherwise neglected to state whether the remaining convictions would be consecutive or concurrent. The order stated the total term of incarceration would be 174 months.

Mr. Herring then filed an unopposed motion requesting that the court re-instate the word “concurrent,” as it had originally. In April, 2014, the court obliged and issued an amended order which specified a sentence of “60 months incarceration” but kept the total term of 174 months. At the time, neither Mr. Herring nor the government brought to the court’s attention that the aggregate term would only be 114 months if the count was to be concurrent, but that she had left the total term as 174 months.

Nearly two years later, Judge Keary sent a letter to Mr. Herring that due to “certain clerical errors,” the order vacated the wrong PFCV count, that the consecutive count should have remained, but concluding “[t]his does not change the defendant’s original sentence in any way.”

Mr. Herring objected, arguing that the double jeopardy clause prohibited reinstatement of the consecutive counts because he had already begun serving his sentence and that the change was substantive and not clerical. Mr. Herring also requested a hearing before a different judge so that Judge Keary could be called as a witness.

Judge Keary held a hearing where she ruled she had “in too hasty a review” failed to notice that the clerk had retained the concurrent PFCV count instead of the consecutive count. She concluded that reinstatement of the correct count was within the court’s inherent power pursuant to Rule 36. The judge also concluded there was “no reason” to reconstruct her memory by testifying before a different judge because her on-the-record pronouncements consistently revealed her intent for a total sentence of 174 months.

Issue:  Whether the court reinstating the term “consecutive” two years after issuing the sentencing order violated the Double Jeopardy Clause of the Fifth Amendment?

Holding: No. The Court concluded that Mr. Herring was not constitutionally entitled to a removal of the term consecutive for the remaining PFCV count. First, the Court concluded that, even though a person typically attains a legitimate expectation of finality in a prison sentence when he begins serving it, Mr. Herring he did not have a legitimate expectation here. Without addressing the two-year delay, the Court believed Mr. Herring could not have had a reasonable expectation of finality because Judge Keary’s sentencing order was “ambiguous on its face.” The Court said that the total term of 174 months could not be disregarded, but rather “supplied concrete information about the court’s sentencing intent.” Also, the Court stated “no reasonable defendant would disregard the incongruity between the total term and the sentences listed on the face of the judgment and commitment order,” warning future defendants that “the proper response to a seemingly ambiguous court order is not to read it as one wishes.” The Court distinguishes Mr. Herring’s case from cases such as United States v. Robinson, 388 A.3d 469 (D.C. 1978), Smith v. United States, 687 A.2d 581 (D.C. 1996), and Borum v. United States, 409 F.2d 433 (D.C. Cir. 1967), because in each of those cases the inconsistency occurred when comparing one order to a different order. But here, the Court stated, because the same order contained the inconsistency Mr. Herring is “not automatically entitled to the less severe construction of the unclear judgment and commitment order.”

Second, the Court rejected Mr. Herring’s argument that because he had already served one PFCV sentence by the time Judge Keary years later amended the judgment that he had been “unconstitutionally subjected . . . to multiple punishments for the same offense.” The Court wrote that “‘in the multiple punishments context, th[e] [Double Jeopardy Clause] interest is limited to ensuring that the total punishment did not exceed that authorized by the legislature.’” (quoting Jones v. Thomas, 491 U.S. 376, 381 (1989)). Per the Court, Mr. Herring had no legitimate expectation that his sentence for PFCV would be served concurrently with his sentences for ADW, rather than consecutive to those sentences”

Third, the Court concluded that the error in the sentencing order was a clerical error, subject to correction under Rule 36, and not a substantive one. Rule 36 allows a court to correct clerical errors “at any time.” Mr. Herring argued that there was no evidence that there was even an error in the first place when Judge Keary removed the consecutive PFCV while leaving the concurrent count. The Court, by relying on Judge Keary having always left the total term of 174 months, disagreed. The Court wrote that in reaching the conclusion that it was a clerical error, Judge Keary was permitted to rely on the “entire record,” as opposed to only the face of the sentencing order.

And fourth, the Court ruled that Judge Keary did not need to testify. The Court agreed that it would have been error for Judge Keary to rely on her memory in ruling against Mr. Herring, but determined that is not what she did. Instead, the Court ruled she had “considered only materials in the record” The Court dismissed Judge Keary writing that the mistake occurred because in her “too hasty [] review [she] failed to notice” the consecutive PFCV was the count that had been removed. The Court felt that was not an example of her relying on her memory, but “a natural inference from the materials in the record.”

Of note:  The Court's opinion holds that if there is an ambiguity in a sentencing order—as opposed to inconsistencies between different orders—a defendant cannot assume that automatically the less severe construction controls. BM

Read the full opinion here.

Seeing co-conspirators receive better plea deals is not a valid reason to withdraw a guilty plea

Long v. United States (decided Sept. 14, 2017)

Players: Chief Judge Blackburne-Rigsby, Associate Judges Fisher and Easterly. Opinion by Judge Blackburne-Rigsby. Charles E. Wagner for Mr. Long. Trial Judge: Anita Josey-Herring.

Facts: Mr. Long plead guilty to one count of conspiracy to defraud the District of Columbia and Office of Campaign Finance (OCF) in violation of D.C. Code § 22-1805(a)(1). The plea letter informed him that the charge carried a maximum sentence of five years imprisonment, a fine of $10,000, and a maximum of three years of supervised release. The agreement stated that Mr. Long “conspired with others, Jeffrey Thompson and Eugenia Harris, to defraud the District and OCF ‘by funding and concealing and by attempting to fund and conceal contributions to MAYORAL CAMPAIGN A for purposes of electing MAYORAL CANDIDATE A in excess of those permitted,’ ‘thereby obstruct[ing] and imped[ing] the due administration of the campaign finance laws.” Mr. Long signed a Statement of Offense, which explained the conspiracy in “great[] detail,” and, during the Rule 11 colloquy, acknowledged that the government’s proffer as to the facts of the crime was “correct.” Also, during the Rule 11 colloquy, Mr. Long said he understood that the maximum prison sentence he was facing was five years, his plea was in exchange for his cooperation in related cases, and that he was waiving certain constitutional rights. He also said he was “satisfied” with the performance of his counsel. The court then accepted his plea.

Nearly eighteen months later, but before sentencing, Mr. Long sought to withdraw his guilty plea, arguing that he was factually innocent of the conspiracy, that the Rule 11 inquiry was defective, and that he should be allowed to withdraw in the interest of justice because he received ineffective assistance of counsel due to co-conspirators receiving better plea deals. The trial court denied his request, ruling that while Mr. Long asserted his innocence generally he did not dispute any of the underlying facts, he was properly advised of the maximum prison term he faced, and the mere fact co-conspirators received better deals did not render his attorney ineffective as “every circumstance is obviously different.”

Issue 1: Did the trial court err in refusing to permit Mr. Long to withdraw his guilty plea when his request was made prior to sentencing?

Holding: No. The Court stated that whether to permit the withdrawal of a guilty plea is left to the discretion of the trial court and a defendant may withdraw a plea prior to sentencing by showing either a fatal defect in the Rule 11 proceeding or by showing that justice demands withdrawal under the circumstances of the case. The Court determined Mr. Long failed to make either showing.

First, Mr. Long contended there was a defect in the Rule 11 proceeding because he was only subject to a maximum of six months imprisonment for conspiracy, and not five years as was stated in the plea agreement, and because the trial court failed to confirm whether the factual proffer was sufficient. The Court disagreed with both contentions. The Court explained that because Mr. Long pled guilty to conspiring to defraud the District of Columbia, and not conspiring to commit a specific offense, he was subjected to the default five-year maximum prison term of conspiracy contemplated by the statute. See D.C. Code §22-1805a(a)(1). The Court also found there was a sufficient factual basis for the plea because the proffer alleged that Mr. Long worked with Harris and Thompson to defraud the District and OCF by concealing campaign contributions and he understood the intent was to conceal the payments, and that he knowingly worked with Harris and Thompson to convince “Mayoral Candidate C to drop out of the race and endorse Mayoral Candidate A ‘in exchange for a thing of value.’”

Second, Mr. Long contended it was fair and just to set aside his guilty plea because he asserted his actual innocence and because his counsel was ineffective. Again, the Court disagreed with both contentions. Mr. Long asserted his innocence by contending he did not personally contribute money to the campaign, but the Court agreed with the trial court’s reasoning that Mr. Long did not have to personally contribute money to be guilty of conspiracy and Mr. Long did not dispute any of the facts in the proffer that did establish conspiracy. Also, the Court added that “even assuming [Mr. Long ] made out a true assertion of innocence, the trial court was free to discredit [his] assertion of innocence in light of ‘the proffer made by the government, [his] sworn adoption of the facts contained in that proffer, and [his] own sworn admissions made at the time the plea was entered.”Also, the Court found no abuse of discretion in the trial court’s ruling that the nearly eighteen-month delay before Mr. Long sought to withdraw his plea—even though it did occur prior to sentencing—weighed against allowing him to withdraw it. Lastly, the Court saw no merit in Mr. Long's contention that his counsel was ineffective because other conspirators received better plea deals. The Court explained that “even assuming that they did” receive better plea deals, “everybody had different circumstances and the government was free to take into account the various considerations they did in making an appropriate offer.” The Court noted it is “not appropriate to compare the plea deals of [Mr. Long's] co-conspirators with his own, especially given the fact that their cases were held in federal District Court.”

Of note:  The Court’s opinion reinforces the uphill battle to withdraw a guilty plea, even when the request occurs prior to sentencing. The Court agreed that there was no abuse of discretion in a trial court weighing a delay of eighteen months, despite it still being prior to sentencing, against allowing a person to withdraw a guilty plea. Similarly, the Court wrote that even if a person asserts innocence, a trial court is within its discretion to discredit it. It thus remains critical that when seeking to withdraw a plea, more than a general claim of innocence is likely needed, but an assertion of innocence that, at minimum, would negate the elements at issue (or a key provision of any proffer that was agreed to during the Rule 11 colloquy). BM

Read the full opinion here.

Concussion Protocol: (Head) Injury + Manifest Risk of Grave, Long-Term (Head) Injury + Diagnostic Testing to Evaluate the Danger and Need for Treatment = Significant Bodily Injury

Cheeks v. UnitedStates (decided September 7, 2017)

Players: Glickman and Fisher, Associate Judges, Reid, Senior Judge. Opinion for the Court by Judge Glickman. Majority opinion by Judge Fisher (joined by Judge Reid). Dissenting opinion by Judge Glickman. PDS for appellant. Trial Judge Yvonne Williams.

Facts: Appellant was prosecuted for assault with significant bodily injury (ASBI) and other offenses in connection with the stabbing and beating of the complainant. The complainant testified that he was walking home one evening, when a man got out of a truck, accused the him of stealing a cell phone, and stabbed him with a knife. The complainant fled around the corner, where he encountered appellant and an unknown second man, who, rather than helping, punched the complainant in the face and head. The first, knife-wielding man caught up and stabbed the complainant from behind. The complainant eventually fell, whereupon appellant and the unknown second man kicked and stomped him.

When the three abandoned their attack, the complainant called the police and was taken to the hospital. The treating physician testified that upon arrival, the complainant required stitches, staples, and antibiotics for his four stab wounds, as well as pain relievers and diagnostic tests for internal injuries, including CAT scans that revealed a nasal fracture but no brain injury. The complainant was discharged four hours after arrival and had no follow-up treatment.

The government prosecuted appellant for armed ASBI under the theory that he aided and abetted the stabbing but also asked for an instruction on unarmed ASBI, in case it had not proved that appellant was aware of the stabber’s knife. Appellant argued that without the stab wounds, the complainant’s injuries were not serious enough to be “significant.” The government argued that the CAT scan made the non-puncture injuries “significant.” The court agreed and instructed on unarmed ASBI.

The court initially instructed the jury on the mens rea required to aid and abet armed ASBI but failed to instruct on the mens rea for aiding and abetting unarmed ASBI. During deliberations, the jury sent a note asking the court to “clarify instructions on the specifics of aiding and abetting, specifically for the [unarmed] assault w[ith] significant injury.” Appellant asked the court to instruct consistent with its armed ASBI instruction, that for the unarmed version, “regardless of whether the defendant [is charged] as an aider or abettor, the government must prove beyond a reasonable doubt that [he] personally acted with the intent or knowledge.” The court refused, stating that it was “in the instruction already” and instead instructed the jury that “Instruction 3.2 aiding and abetting applies to every offense with which the defendants are charged.” Unbeknownst to the parties, at the top of the jury’s note, someone had crossed out a question: “Does the aiding & abetting apply to [unarmed] assault w/ significant injury?”

The next day, after further deliberation, the jury found appellant not guilty of armed ASBI but guilty of unarmed ASBI.

Issue 1 (Opinion by Judge Glickman): Was there was sufficient evidence to instruct the jury on unarmed ASBI?

Holding 1: Yes. “[A]lthough a ‘significant bodily injury’ is one calling for professional medical treatment to prevent long-term physical damage or avert severe pain, it also may be an injury that poses a manifest risk of such harm and requires diagnostic testing to evaluate the danger and need for treatment – even if testing reveals that treatment is unnecessary.” Slip Op. at 13-14. The complainant’s treating physician described extensive bodily injuries that required a CAT scan to diagnose brain damage, broken bones, and internal injury. As in Blair v. United States, 114 A.3d 960 (D.C. 2015), this testimony supported a finding that the injuries required diagnostic testing to evaluate the need for treatment.

Issue 2 (Opinion by Judge Fisher): Did the trial court err in responding to the jury note asking it to “[c]larify instructions on the specifics of aiding & abetting[,] specifically for the [unarmed] assault w[ith] significant injury”?

Holding 2: No. The jury could have been seeking clarification on whether the theory of aiding and abetting applied to both armed and unarmed ASBI or, specifically, whether the mens rea for aiding and abetting applied to both offenses. By instructing that “Instruction 3.2 aiding & abetting applies to every offense with which the defendants are charged,” the court effectively addressed both issues. A reasonable jury would have applied the sentence about mens rea from Instruction 3.2 to unarmed ASBI, consistent with the defense’s proposal. The jury also received other, correct instruction on the mens rea required for unarmed ASBI.

Of Note: This opinion recognizes an exception to the rule that “significant bodily injury” excludes injuries for which treatment and diagnosis are ultimately unnecessary, in that “the victim would not suffer additional harm by failing to receive them,” Quintanilla v. United States, 62 A.3d 1261, 1265 (D.C. 2013), where an injury poses manifest risk of grave, long-term injury and, as such, requires diagnosis to rule out the need for treatment. Going forward, whether an injury posed manifest risk of grave, long-term injury may depend on the type of injury involved. Notably, this case involved significant head trauma, and in deciding it, the court relies on two others (Blair and Quintanilla) that specifically addressed significant head trauma.

Judge Glickman dissents from the court's opinion as to Issue 2.

WC

Read the full opinion here.