235 A.3d 808
D.C.2020Background
- In 1995 Jordan was convicted of two counts of first-degree felony murder and related offenses; he was originally sentenced to concurrent 30-years-to-life mandatory-minimum terms. On appeal this court affirmed and remanded for merger issues and suggested an ex post facto challenge might be available.
- In 1999 Jordan filed a Super. Ct. Crim. R. 35(a) motion arguing the First Degree Murder Amendment (effective Sept. 26, 1992) could not be applied to his June 10, 1992 offense; the trial court granted relief and resentenced him nunc pro tunc to 20-years-to-life. The government did not oppose, appeal, or seek reconsideration.
- In 2015 the government moved under Rule 35(a) to increase Jordan’s sentence to 30-years-to-life, asserting the First Degree Murder Emergency Act (effective April 24, 1992 for 90 days) applied at the time of the offense; the government says it only discovered the Emergency Act issue through another defendant’s litigation.
- The trial court granted the government’s 2015 motion in April 2016 (about 17 years after the 1999 resentencing), increasing Jordan’s mandatory minimum and delaying his parole eligibility by several years; Jordan appealed.
- The D.C. Court of Appeals held that, in extreme circumstances, the Due Process Clause protects a defendant’s expectation of finality in a sentence (even an illegal sentence) and adopted a multi-factor test (from DeWitt) to decide when a belated upward revision violates substantive due process; applying the test, the court found Jordan’s 17-year upward revision violated due process and reversed.
Issues
| Issue | Plaintiff's Argument (Jordan) | Defendant's Argument (Government) | Held |
|---|---|---|---|
| 1) Whether a very belated upward correction of an illegal sentence can violate substantive due process | A 17-year delay, government inaction, and substantial prejudice crystallized his expectation of finality; increasing his sentence thus denies fundamental fairness | There is no general constitutional bar to correcting illegal sentences at any time; Rule 35(a) permits correction and the Emergency Act made the original 30-year minimum lawful | Court: Substantive due process can bar very delayed upward corrections in extreme cases; Jordan’s case met that standard and the increase violated due process |
| 2) What standard governs whether finality has "crystallized" | Adopt DeWitt factors: (1) time elapsed; (2) defendant’s contribution and reasonableness of expectations including finality of appeals; (3) government diligence/culpability; (4) prejudice from change | Agrees with general correction power but disputes that factors here warrant finding due process violation | Court: Adopted and applied DeWitt factors; no single factor dispositive—must balance all; applied them and found violation |
| 3) Whether Double Jeopardy bars the increase | (Also argued) government’s long delay and waiver by failing to oppose 1999 resentencing created an objectively reasonable expectation of finality that double jeopardy protects | Illegal sentence is a nullity and can be corrected at any time; double jeopardy does not prevent correction of an illegal sentence | Court: Declined to decide double jeopardy issue on merits, resolving case on Due Process grounds; concurring judge would have decided for Jordan on double jeopardy grounds based on government waiver and forfeiture doctrines |
| 4) Remedy | Reinstate the 1999 sentencing order (20-to-life) | Uphold trial court’s 2016 increase to 30-to-life because original 30-year minimum was legally required at offense time | Court: Reversed the 2016 order and remanded to reinstate the 1999 sentence (20-years-to-life) |
Key Cases Cited
- DiFrancesco v. United States, 449 U.S. 117 (1980) (historical limits on increasing sentences after a term of court and discussion of finality)
- Ex parte Lange, 85 U.S. (18 Wall.) 163 (1873) (early recognition that excessive post-term punishment implicates finality and fairness)
- Washington v. Glucksberg, 521 U.S. 702 (1997) (framework for identifying fundamental rights under substantive due process)
- DeWitt v. Ventetoulo, 6 F.3d 32 (1st Cir. 1993) (formulation of multi-factor test for when later upward sentence revisions violate due process)
- Lundien v. United States, 769 F.2d 981 (4th Cir. 1985) (recognition that undue enhancement after service may deny due process when expectations have crystallized)
- Bozza v. United States, 330 U.S. 160 (1947) (illegal sentence may be treated as voidable and courts may correct illegal sentences)
- Betterman v. Montana, 136 S. Ct. 1609 (2016) (recognition that defendants retain diminished but present liberty interests after conviction)
- Greenlaw v. United States, 554 U.S. 237 (2008) (forfeiture/cross-appeal principle: government’s failure to appeal can create finality)