EILEY S. JORDAN, APPELLANT, v. UNITED STATES, APPELLEE.
No. 16-CO-827
DISTRICT OF COLUMBIA COURT OF APPEALS
August 27, 2020
Appeal from the Superior Court of the District of Columbia (FEL-12121-93) (Hon. Harold L. Cushenberry, Jr., Motions Judge) (Argued February 28, 2019)
Notice: This opinion is subject to formal revision before publication in the Atlantic and Maryland Reporters. Users are requested to notify the Clerk of the Court of any formal errors so that corrections may be made before the bound volumes go to press.
Fleming Terrell, Public Defender Service, with whom Samia Fam and Mikel-Meredith Weidman, Public Defender Service, were on the brief, for appellant.
James A. Ewing, Assistant United States Attorney, with whom Jessie K. Liu, United States Attorney at the time the brief was filed, and Elizabeth Trosman, Vivian E. Kim, and Candice C. Wong, Assistant United States Attorneys, were on the brief, for appellee.
Before BLACKBURNE-RIGSBY, Chief Judge, EASTERLY, Associate Judge, and WASHINGTON, Senior Judge.
Opinion for the court by Chief Judge BLACKBURNE-RIGSBY.
Opinion by Associate Judge EASTERLY, concurring in the judgment, at page
BLACKBURNE-RIGSBY, Chief Judge: On June 25, 1999, the trial court sentenced appellant Eiley S. Jordan to twenty years’ to life imprisonment for first-degree felony murder related to a June 10, 1992, shooting death. Sixteen years later, the government moved to increase appellant‘s sentence to thirty years’ to life imprisonment, arguing that the trial court‘s 1999 sentencing was in error because the effective law at the time of the charged offense had raised the statutory minimum penalty for first-degree murder from twenty to thirty years. The trial court granted the government‘s motion in April 2016, rejecting appellant‘s challenges to the sentence increase under the Double Jeopardy Clause and the Due Process Clause of the
We now hold, for the first time, that a belated correction of a defendant‘s sentence, even an illegal one, may violate the Due Process Clause. Such a violation, however, only occurs in extreme circumstances, such as those present here, and we use this opportunity to clarify those circumstances. Therefore, we conclude that the trial court‘s decision to increase appellant‘s sentence – seventeen years after his sentence had been finalized – violated his rights under the Due Process Clause and must be reversed.
I. Factual Background
In July 1995, a jury convicted appellant of two counts of first-degree felony murder while armed, along with other related crimes, arising from the June 10, 1992, shooting death of Araminta Coates.1 For
merger of several convictions. See Jordan v. United States, 722 A.2d 1257, 1262 (D.C. 1998). On remand, we instructed:
In the process [of merging the convictions], the judge should consider, perhaps on separate motion filed under Super. Ct. Crim. R. 35(a), the claim adverted to by [co-appellant] Walker in his pro se motion alleging ineffective assistance of counsel . . . that his mandatory 30-year minimum prison sentence for first-degree murder ran afoul of the prohibition against ex post facto punishment (a claim, we note, that is also available to appellant Jordan).
On June 24, 1999, appellant filed a motion under
and merged several other convictions.3 The government did not file a written opposition to appellant‘s motion, seek reconsideration of the revised sentence, or appeal.4 As a result, the trial court imposed an aggregate amended sentence of twenty-six years and eight months’ to life imprisonment, meaning appellant would become eligible for parole on February 11, 2020.
Sixteen years later, on July 14, 2015, the government filed a Rule 35(a) motion to correct appellant‘s sentence, arguing that the originally imposed thirty-year mandatory-minimum sentence was correct and that the trial court‘s 1999 resentencing was in error. The government argued that the First Degree Murder Emergency Act of 1992 – which became effective for ninety days on April 24, 1992, and raised the statutory minimum penalty for first-degree murder from twenty to thirty years – was applicable at the time of the June 10 charged offense. See First Degree Murder Emergency Act of 1992, D.C. Council, Act 9-200 (April 24, 1992) (the “Emergency Act“) (temporarily raising the statutory minimum penalty until the permanent act took effect). Apparently, the government had been unaware of the
Emergency Act
In Mackall, defendant Gilbert Mackall claimed a violation of the Equal Protection Clause because the trial court sentenced him to thirty years’ to life imprisonment for a murder committed on May 21, 1992, also within the effective period of the Emergency Act, while appellant and co-defendant Walker only received a sentence of twenty years’ to life.5 Id. In its motion for summary affirmance before this court in Mackall, the government recognized this discrepancy in sentencing, acknowledged the Emergency Act‘s April 24, 1992, effective date, and noted error in appellant‘s 1999 resentencing. See Gov‘t‘s Mot. Summ. Affirmance, Mackall v. United States, No. 14-CO-1121 (filed May 20, 2015) (“Mackall Gov‘t Brief“). It was only after the government moved for summary affirmance in Mackall in this court that the government also moved to have the trial
court increase appellant‘s sentence pursuant to the Emergency Act. Appellant opposed the government‘s motion in the trial court, claiming that an increase in his sentence would violate both the Double Jeopardy Clause and the Due Process Clause of the
The trial court held a hearing and granted the government‘s Rule 35(a) motion by written order on April 15, 2016 – then almost seventeen years after appellant‘s 1999 resentencing.7 The trial court concluded that appellant‘s downward resentencing in 1999 was illegal because the Emergency Act, which raised the mandatory-minimum sentence for first-degree murder to thirty years’ to life imprisonment, became effective on April 24, 1992, and therefore was in effect at the time of the charged offense on June 10, 1992. The trial court was unpersuaded by appellant‘s arguments that increasing his sentence would violate his rights under the Double Jeopardy Clause and the Due Process Clause. Although it considered the
“much more persuasive legal argument under the Due Process Clause,” the trial court was unconvinced that the “extremely long” seventeen-year delay in resentencing violated the Constitution because appellant‘s circumstances did not present the most “egregious type[] of case[]” that would amount to a due process violation. However, because it found that granting the government‘s motion would “substantially increase[]” appellant‘s sentence, the trial court ran his sentences concurrently in order to “mitigate[]” prejudice, resulting in what it calculated as an overall increase
On August 2, 2016, the trial court issued a second amended Judgment and Commitment Order, effectuating its April 15 order. This appeal followed.
II. Legal Framework
We conclude that, in certain circumstances, a defendant‘s expectation of finality in a sentence has crystalized such that a later, upward revision to that sentence violates the fundamental right of fairness embodied in the Due Process Clause. Our analysis of substantive due process reveals that this right is deeply rooted in our history and tradition, such that courts have amply identified this fundamental right and provided guideposts that enable us to carefully describe it.
A. The General Rule: No Expectation of Finality in Illegal Sentences
We acknowledge that the Constitution contains no general prohibition against increasing a sentence when a court finds that it is illegal and that a higher sentence is required by law. We have upheld such sentence increases in the face of constitutional and other challenges. See, e.g., Davis v. Moore, 772 A.2d 204, 219-21 (D.C. 2001) (en banc) (affirming loss of good time credit, and therefore increase in sentence, in face of ex post facto and due process challenges); Gray v. United States, 585 A.2d 164, 166 (D.C. 1991) (affirming trial court‘s increase to sentence
because originally-imposed sentence “was obviously illegal“); Lindsay v. United States, 520 A.2d 1059, 1063 (D.C. 1987) (affirming increase in sentence, concluding that an illegal sentence “created no vested rights protected by the double jeopardy clause“); Christopher v. United States, 415 A.2d 803, 804-05 (D.C. 1980) (per curiam) (concluding that resentencing did not violate double jeopardy because original sentence was illegal). Moreover,
reinstate the original sentence. However, what may be true as a general matter may be limited by constitutional imperatives in the exceptional case.
The
process. See In re W.M., 851 A.2d at 499. The Court‘s “established method of substantive due process analysis has two primary features“: a determination of whether the right is “deeply rooted in this Nation‘s history and tradition,” and “a ‘careful description’ of the asserted fundamental liberty interest.” Glucksberg, 521 U.S. at 720 (internal quotation marks and citations omitted).9 We conclude that the right to finality in judgment as articulated herein satisfies these features.
A right to finality in judgment is deeply rooted in our history. In United States v. DiFrancesco, the Supreme Court observed that, at English common law, a trial court was permitted to increase a sentence, but only “so long as it took place during the same term of court.” 449 U.S. 117, 133-34 (1980); see also Francis v. United States, 715 A.2d 894, 898 (D.C. 1998) (“At common law, the sentencing court had plenary authority to increase a sentence at any point during the judicial term within which it had been imposed.“). In explaining the principles of common law
undergirding the Double Jeopardy Clause of the
We are careful to identify the fundamental liberty interest here to the constitutional guarantee of fairness and to describe the interest as a right to finality in sentencing. The “touchstone” of the substantive due process guarantee is the “protection of the individual against arbitrary action of government . . . in the exercise of power without any reasonable justification in the service of a legitimate government objective.” Lewis, 523 U.S. at 845-46 (citations and internal quotation marks omitted). Thus, “due process . . . stem[s] from our American ideal of fairness.” Bolling v. Sharpe, 347 U.S. 497, 499 (1954). Among “the rights not enumerated in the Bill of Rights that the Supreme Court has found to be fundamental, and hence entitled to strict judicial scrutiny under substantive due process principles,” is the “right to fairness in the criminal process.” In re W.M., 851 A.2d at 449 n.23 (citing 2 Ronald D. Rotunda & John E. Nowak, Treatise on Const. L. § 15.7 (3d ed. 1999)).11 In Betterman v. Montana, the Court acknowledged that after a conviction, “a defendant‘s due process right to liberty, while diminished, is still present.” 136 S. Ct. 1609, 1617 (2016). And the Court has acknowledged that a defendant “retains an interest in a sentencing proceeding that is fundamentally fair.” Id.; see also North Carolina v. Pearce, 395 U.S. 711, 724 (1969) (imposing “a penalty upon the defendant for having successfully pursued a statutory right of
appeal or collateral remedy would be . . . a violation of due process of law“). Our recognition of a defendant‘s right to finality in the post-sentencing phase aligns with his or her fundamental guarantee of fairness in the criminal justice system.
Therefore, while a defendant‘s due process right to liberty may further diminish post-sentencing, that right is not eliminated and retains some protections under the constitutional due process right to fairness. See United States v. Lundien, 769 F.2d 981, 986 (4th Cir. 1985). As the Fourth Circuit stated in Lundien:
Although the parameters of due process to be accorded at sentencing are not
firmly fixed, it is beyond doubt that a sentence enhanced, whether before or after commencement of service, because of the vindictiveness or other plainly improper motive of the trial court would be fundamentally unfair and would deny the defendant due process. More important to the instant case, due process may also be denied when a sentence is enhanced after the defendant has served so much of his sentence that his expectations as to its finality have crystallized and it would be fundamentally unfair to defeat them.
Id. at 986-87 (internal citations omitted). While the court in Lundien was unwilling to find a constitutional violation where a trial court corrected a defendant‘s sentence after five days, id. at 987, federal appellate courts have recognized the existence of a temporal limit on a court‘s ability to alter a sentence once imposed and final – even to correct a legal defect. See Davis v. Sec‘y of Corr., 266 F. App‘x 722, 724 (10th Cir. 2008) (acknowledging that due process may place “some temporal limit on the
power to correct an illegal sentence,” but declining to find a due process violation because the trial court resentenced the defendant eight days after the original sentence); United States v. Davis, 329 F.3d 1250, 1255 (11th Cir. 2003) (“A defendant‘s due process rights may be violated when a sentence is enhanced after the defendant has served so much of his sentence that his expectations as to finality have crystallized and it would be fundamentally unfair to defeat them.” (internal quotation marks and citation omitted)); Baker v. Barbo, 177 F.3d 149, 158 (3d Cir. 1999) (noting that the “power of the sentencing court to correct an invalid sentence must be subject to some temporal limit” (internal quotation marks omitted)); United States v. Mayes, No. 97-6430, 162 F.3d 1162 (table), 1998 WL 552673, at *4-6 (6th Cir. 1998) (finding due process violation when defendant‘s sentence was increased five years after initial sentencing); DeWitt v. Ventetoulo, 6 F.3d 32, 35 (1st Cir. 1993) (“‘[T]he power of a sentencing court to correct upward even a statutorily invalid sentence must be subject to some temporal limit’ and . . . in some circumstances such a correction ‘might be fundamentally unfair, and thus violative of due process.‘“) (citation and brackets omitted)); see also State v. Stern, 846 A.2d 64, 72 (N.H. 2004) (“Due process thus imposes an outer limit upon the court‘s ability to correct a sentence after pronouncing it.“); State v. Calmes, 632 N.W.2d 641, 645 (Minn. 2001) (“[W]e recognize a due process limitation on a court‘s ability to modify a sentence.“); Austin v. State, 663 A.2d 62, 64 (Me. 1995) (“[W]e conclude
that, in extreme circumstances, the reinstatement of a discharged sentence, even if discharged illegally, might be fundamentally unfair, and thus violative of due process.” (citation and quotation marks omitted)). While it is true that the majority of these courts did not find, under the facts of the particular cases before them, that the upward-revised sentence demonstrated a due process violation, they all recognized that due process protects a defendant‘s expectation of finality in a sentence in some circumstances.
Following its decision in Lundien, the First Circuit held in DeWitt that a “later upward revision of a sentence” may be “so unfair that it must be deemed inconsistent with the fundamental notions of fairness embodied in the Due Process Clause.” 6 F.3d at 35. The right to finality does not extend to every defendant whose sentence was increased, and it is only the “extreme case,” falling beyond a certain temporal limit and under certain circumstances, when the right to finality arises. Id. The parameters of the due process right accorded at sentencing are “not firmly fixed,” Lundien, 769 F.2d at 987, and we appreciate the difficulty in determining
The substantive due process violation articulated here does not merely arise out of an administrative or ministerial sentencing error. See Wells v. United States, 802 A.2d 352, 354-55 (D.C. 2002) (finding that appellant‘s re-incarceration following erroneous release from confinement through administrative error did not qualify as “extreme circumstances” justifying a finding of a due process violation). On this basis, we distinguish Hawkins v. Freeman, 195 F.3d 732 (4th Cir. 1999) (en banc), in which the Fourth Circuit refused to find a substantive due process violation when the defendant was mistakenly granted parole and re-incarcerated twenty months later. In Hawkins, the Fourth Circuit found that the “administrative error that occasioned the challenged decision here is one too frequently made in penal systems administration” to meet the threshold “shocks-the-conscience” standard of Lewis. Id. at 744. This court has recognized that a defendant‘s “expectations and reliance interests in sentence mistake cases are ordinarily trumped by the strong public interest in crime prevention and punishing criminals.” Wells, 802 A.2d at 354 (quoting Davis, 772 A.2d at 220). Thus, our jurisprudence accepts the underlying rationale of Hawkins, that an administrative or ministerial mistake alone is insufficient to justify a finding of a due process violation, but it also acknowledges that this general rule may be overcome in certain circumstances. Id. at 355. While we do not reject entirely the notion that a substantive due process right may arise under such circumstances, we need not reach that issue here. See Davis, 772 A.2d
at 219 (“An expectation of early release from prison (or from service of a sentence) that is induced . . . by the mistaken representations of officials does not without more given rise to a liberty interested entitled to protection under the Due Process Clause.“).
We conclude that the right to finality in sentencing is deeply rooted in our history, such that the Due Process Clause protects a defendant‘s expectation of finality in his or her sentence, even an illegal one, in certain circumstances. Therefore, a later, upward revision to a defendant‘s sentence may constitute a substantive due process violation.
C. Identifying Guideposts: The DeWitt Factors
The First Circuit in DeWitt v. Ventetoulo defined the contours of a due process right to finality in sentencing, an analysis we find particularly helpful in formulating our standard. In 1978, a Rhode Island trial court sentenced Fred DeWitt to life imprisonment with the possibility of parole after ten years. DeWitt, 6 F.3d at 33. In 1981, the trial court suspended all but fifteen years of his life sentence in recognition of his assistance in another prosecution. Id. Two years later, the Rhode Island Supreme Court held in State v. O‘Rourke, 463 A.2d 1328 (R.I. 1983), that state law unambiguously deprived a trial court of the authority to suspend a defendant‘s
sentence once he or she had begun serving it (notwithstanding the fact that, previously, sentencing judges had incorrectly assumed such authority existed). DeWitt, 6 F.3d at 33 & n.2. Despite the high court‘s clarification that such suspensions were not permitted, the state made no effort to undo the partial suspension of DeWitt‘s sentence. Id. at 33. Meanwhile, DeWitt continued serving his partially-suspended sentence, pursued education and training courses in prison, and was granted parole and released in January 1987 – sixteen months before he would have been eligible for parole under his original life sentence. Id. He then obtained work and resumed relationships with family and friends. Id.
The First Circuit concluded that the trial court‘s correction was so unfair as to violate the Due Process Clause.12 Id. at 36. The court held that “due process must impose some outer limit on the power to revise sentences upward after the fact.” Id.
at 34. Noting that a “convicted defendant does not automatically acquire a vested interest in a mistakenly low sentence,” the court recognized that, in an “extreme case,” a “later upward revision of a sentence, made to correct an earlier mistake,” can be “so unfair that it must be deemed inconsistent with fundamental notions of fairness embodied in the Due Process Clause.” Id. at 35. Acknowledging that there is “no single touchstone . . . nor any multi-part formula,” the First Circuit drew attention to the following non-exclusive factors as probative in determining whether there was a due process violation: (1) “the lapse of time between the mistake and the attempted increase in sentence,” (2) “whether or not the defendant contributed to the mistake and the reasonableness of his intervening expectations,” (3) “the prejudice worked by a later change,” and (4) “the diligence exercised by the state in seeking the change.” Id.
Analyzing these factors, the First Circuit determined that DeWitt‘s case “cross[ed] the line” on the state‘s ability to correct a sentence. Id. at 36. First, the court found that the “process that DeWitt received . . . beg[an] with a remarkable double default by the state” in the six years between his partially-sentence suspension and increased resentence. Id. at 35. In those six years, the state missed at least two opportunities to correct appellant‘s sentence: once when DeWitt‘s sentence was partially suspended, and then at any time after the O‘Rourke decision.
The court highlighted the “central and singular” fact that the state, which was represented at the hearing in which DeWitt‘s sentence was partially suspended, did not seek judicial correction of the trial court‘s decision through reconsideration or review by a higher court (for instance, through a writ of mandamus). Id. & n.4. Second, the court determined that the “lengthy delay and change of circumstances” contributed to whether due process was afforded: after the court suspended his sentence, DeWitt spent years in prison reasonably believing his sentence was reduced, was actually released, and laid down new roots in society. Id. Finally, in weighing the reasonableness of DeWitt‘s expectation of finality, the court also reviewed the state‘s interest in correcting error. Id. Because there was no sign of a wide-scale program to identify and resentence other defendants whose sentences were suspended in violation of O‘Rourke, it appeared that the state singled DeWitt out to avoid conducting a parole revocation hearing, thus skirting the minimal due process obligations applicable to such a hearing. Id. at 35-36. Together, “the combined weight of the elements” - the government‘s original failure to seek review of the original sentence suspension; its “double default” when it remained silent after such suspensions were declared unlawful; the total six-year lapse before it took action and the resulting change in DeWitt‘s circumstances; and its limited interest in correcting the sentencing errors - brought DeWitt‘s case
exception to the general rule that courts can . . . revise sentences upward to correct errors.” Id. at 36.13
D. This Court‘s Precedent
Though our decisions have twice acknowledged the due process right articulated in DeWitt, this court has not yet explicitly recognized it. See U.S. Parole Comm‘n v. Noble, 693 A.2d 1084, 1105 (D.C. 1997), op. adopted, 711 A.2d 85, 85-86 (D.C. 1998) (en banc); Davis, 772 A.2d at 220.14 In both cases, we acknowledged that, under the facts presented in those cases, due process might prohibit the District from “re[-]incarcerate[ing] former prisoners whose sentences have been deemed
satisfied.” Noble, 693 A.2d at 1105; see also Davis, 772 A.2d at 220 (citing Noble).15 And, in Davis, this court generally held open “the possibility that, under ‘extreme’ circumstances, a belated correction of a sentence might be ‘so unfair that it must be deemed inconsistent with fundamental notions of fairness embodied in the Due Process Clause.‘” 772 A.2d at 220 (quoting DeWitt, 6 F.3d at 35). We concluded that a belated sentence correction that frustrates a defendant‘s expectations concerning release from confinement, while regrettable, did not, without more, constitute a due process violation because such expectations are “ordinarily trumped by the strong public interest in crime prevention, public safety, and punishing criminals.” Id. at 219 (citations omitted). We clarified that “[o]nly the most egregious case, involving for example governmental culpability and unusual prejudice to the affected prisoner, would support a substantive due process claim.” Id. at 220. Hence, our decision in Davis left open for another day the question of whether, and under what circumstances, such a substantive due process violation might arise.
E. The Constitutional Right to Finality in Sentencing
We now take the determinative step of recognizing the right that we had only alluded to in Noble and Davis, and which has been expressly adopted by other federal appellate and state high courts. See supra Section II.B. We hold that, in certain circumstances, the
Whether a defendant‘s expectation of finality has crystalized, and thereby matured into a due process right, is not merely determined by the specific number of years that have elapsed. Rather, whether a defendant is entitled to such protection
is determined by balancing case-specific factors. This court has indicated that two such factors may give rise to the right: (1) government culpability, and (2) unusual prejudice, including a substantial delay in moving for the sentence increase and harm beyond frustrated expectations. See Davis, 772 A.2d at 219-20; see also United States v. Campbell, 985 F. Supp. 158, 160 (D.D.C. 1997) (“One of the most frequently considered factors [by courts] is whether the defendant had served so much of his original sentence that his expectations of finality have crystallized.“), aff‘d sub nom. United States v. Harrison, No. 97-3180, 172 F.3d 921 (table), 1998 WL 704512 (D.C. Cir. 1998). We now explicitly adopt the factors highlighted in DeWitt, which in part mirror those identified above, namely: the amount of time between that has elapsed illegally-imposed sentence and the attempted sentence increase, the defendant‘s contribution to the mistake and reasonable expectations of finality, prejudice, and government diligence. 6 F.3d at 35. Moreover, we hold that an analysis under these factors must also take into account the finality of the sentence itself, i.e., the completion of any direct appeal, as well as judicial actions that may change or clarify the legal framework surrounding the sentence. See DeWitt, 6 F.3d at 34-35; Campbell, 985 F. Supp. at 160 (noting defendant‘s “expectation of finality cannot be said to have crystalized” because he “was aware from the very moment of sentencing” that the government intended to challenge it on appeal). And we reiterate that, in utilizing this framework, it will be the rare or extreme case in which
a defendant‘s expectation of finality has crystalized, such that it attains constitutional protection as to a mistaken, even an illegal, sentence.
In sum, we acknowledge that the
- The amount of time that has elapsed between the imposition of the final, incorrect sentence and the attempted imposition of the increased sentence;
- The reasonableness of the defendant‘s expectations of finality, including the exhaustion of any direct appeal and the defendant‘s contribution to the mistake;
- Whether the government was diligent in seeking the upward increase, taking into account the
government‘s culpability in the mistaken sentence and its contribution to the delay; and - Prejudice resulting from the change, which may include the length of time already served.
No one factor is dispositive, and all must be analyzed and balanced to determine whether a defendant‘s expectation of finality in his or her sentence has crystalized, such that it is protected by the
III. Discussion
We find this case to present the “extreme circumstances” in which appellant‘s expectation of finality in his sentence had crystalized such that his substantive due process right was violated when the trial court increased his sentence seventeen years after it was finalized. See Davis, 772 A.2d at 220. Appellant argues that it was fundamentally unfair to deprive him of his expectation of finality in his sentence; he asserts that the “extraordinary passage of time,” along with the government‘s “repeated failures” to challenge his illegal sentence, are the kind of extreme circumstances that this court should recognize as resulting in a substantive due process violation. We agree. Because of the unique circumstances of this case, particularly the substantial length of time that had elapsed, the reasonableness of appellant‘s expectation of finality, the government‘s failure to act despite its knowledge of the error, and the prejudice to appellant caused by the length of the government‘s delay, we conclude that appellant‘s expectation of finality in his sentence had crystalized, such that increasing his sentence violated his rights under the
First, the amount of time that elapsed between appellant‘s 1999 resentencing and the government‘s 2015 motion to increase his sentence here is extraordinary, distinguishing it from almost every other case in which courts stopped short of finding a due process violation. Sixteen years had elapsed when the government moved to increase appellant‘s sentence, and seventeen years had elapsed by the time the court issued its 2016 order - much longer than the six years found to crystallize the appellant‘s expectation of finality in DeWitt. This temporal gap distinguishes this case from other examples that the government cites in asserting that this case does not represent the extreme circumstances giving rise to a substantive due process violation. See, e.g., Baker, 177 F.3d at 158 (two years); Campbell, 985 F. Supp. at 159 (eighteen months).
Second, appellant‘s expectation that his 1999 sentence was final and would remain unchanged was reasonable. The reasonableness of a defendant‘s expectation that a sentence is final can be evaluated based on whether the defendant exhausted any direct appeal, knew or should have known of the original sentencing error, contributed to the mistaken sentence, or was aware of any subsequent change in the legal framework surrounding such mistake. See, e.g., DeWitt, 6 F.3d at 36. Appellant moved to correct his sentence in 1999, following our instruction that he
may have an ex post facto claim. The trial court granted his motion on that claim, revising his sentence downward from thirty years’ to life to twenty years’ to life, and the government made no effort to contest, seek reconsideration, or appeal that decision. Here, it cannot be said that appellant was on notice that his reduced sentence was the result of any error or that the government, after failing to contest the 1999 resentencing,
Furthermore, appellant‘s contribution to the mistake was nominal, at best. There is no evidence that appellant knew of the Emergency Act, ignored controlling law when he filed his 1999 motion, or knew or should have known of any error in the trial court‘s resentencing. While the existence of the Emergency Act that the trial court in 2016 found to be the controlling law in effect at the time of the charged offense was discoverable by appellant in 1999, it was equally discoverable by the government. That the government did not raise the Emergency Act (and seemingly remained ignorant of it until Mackall) negates any suggestion that appellant contributed to the mistake. Rather, appellant acted upon this court‘s suggestion in advancing an ex post facto claim. Under these facts, we conclude that appellant‘s expectation in the finality of his 1999 resentencing was reasonable.
Third, the government cannot be said to have exercised diligence in seeking the change here. The government missed numerous opportunities over sixteen years to correct appellant‘s sentence, and it admits as much in its brief. In fact, the government was not even aware of any issue until it was raised in Mackall v. United States, an unrelated case. The government‘s conduct here is akin to a triple default, further diminishing the government‘s diligence and increasing its culpability as compared to the “double default” highlighted in DeWitt. 6 F.3d at 35. Here, the government (1) did not oppose appellant‘s request to revise his sentence downward in 1999; (2) took no action after it was put on notice of the Emergency Act, i.e., by at least July 2004, when the trial court cited it in denying Mackall‘s challenges (see supra note 5); and (3) waited almost a year after receiving notice of the illegal sentence in appellant‘s case - when Mackall expressly cited to appellant‘s 1999 resentencing in his August 2014 equal protection argument to the trial court, noting differential sentencing under the Emergency Act - before moving to increase appellant‘s sentence. The government provided no reason for its eleven-year delay (after the Emergency Act issue was first raised by Mackall in 2004) in seeking a correction in appellant‘s sentence, further compounding its negligence. Moreover, there is no indication that the government‘s action to increase appellant‘s sentence is a result of any wide-scale effort to find and correct other illegal sentences (if any)
resulting from the Emergency Act, thus demonstrating minimal (if any) government interest in correcting illegally low sentences. Such conduct undermines any argument that the government was diligent in efforts to increase appellant‘s sentence
The government urges us to find that this is not the extreme case that warrants finding a due process violation because appellant‘s twenty-year to life resentencing in 1999 “was induced, not by governmental misconduct, but rather by appellant‘s erroneous motion.” The government‘s argument, however, misconstrues the relevant balancing. All sentencing errors arise out of some mistake. Our analysis here only considers the government‘s diligence in seeking a sentence increase, whoever may have induced the underlying error. Thus, we analyze the government‘s actions taken in response to appellant‘s “erroneous” 1999 motion when analyzing
whether appellant‘s due process rights have been violated. Cf. Vermont v. Brillon, 556 U.S. 81, 89 (2009) (noting that, in determining whether a state violated a defendant‘s right to speedy trial under the
Fourth, appellant has suffered prejudice. For almost sixteen years, appellant anticipated that he would have the opportunity to be considered for release from prison in February 2020. In anticipation of that release, appellant took GED, parenting, and other courses; planned for his employment and living arrangements; and invested emotionally in the prospect of reconnecting with family. Despite this
crystalized expectation of finality, the government filed a motion to increase appellant‘s sentence by ten years, which the trial court granted. This is strikingly different from other cases in which appellants were aware that their sentences were not final. See, e.g., United States v. Watkins, 147 F.3d 1294, 1298 (11th Cir. 1998) (finding that appellant could not have an expectation of finality, in part because he challenged his conviction and sentence); Campbell, 985 F. Supp. at 160 (noting that defendant “was aware from the very moment of sentencing” that the government intended to challenge the sentence on appeal); Calmes, 632 N.W.2d at 648 (“At the time conditional release was removed from his sentence, Calmes was on notice that a statute required that he serve a conditional release term.“). Indeed, the government admitted that its action would prejudice appellant by increasing his sentence by ten years. We are mindful that the trial court attempted to “mitigate[]” the prejudice arising from its grant of the government‘s
The fact that the sentence was increased by less than it could have been does not, in and of itself, eliminate that prejudice. See Breest v. Helgemoe, 579 F.2d 95, 101 (1st Cir. 1978) (acknowledging that a due process right to finality might arise when an illegal sentence is
To be clear, we do not hold, as the government believes, that an appellant is entitled to a particular release date or to parole eligibility on a date certain, as there is “no constitutional or inherent right of a convicted person to be conditionally released before the expiration of a valid sentence.” Greenholtz v. Inmates of Neb. Penal & Corr. Complex, 442 U.S. 1, 7 (1979). However, the government‘s sixteen-year delay in moving to increase appellant‘s sentence, which pushed back his parole eligibility date by almost four years, prejudiced appellant in a manner that went “beyond frustrated expectations.” Davis, 772 A.2d at 217 (citation omitted). The government‘s delay in seeking to correct an illegally-imposed sentence surpassed the temporal limits of the
id. at 220 (explaining that, under “extreme” circumstances, an offender‘s reliance on sentencing mistakes may trump “the strong public interest in crime prevention . . . and punishing criminals” (citation omitted)); DeWitt, 6 F.3d at 36 (“[D]ue process must in principle impose an outer limit on the ability to correct a sentence after the event.“).
We are not persuaded by the government‘s argument that this is not the type of “extreme” case contemplated by Davis and DeWitt because, as the government contends, those cases stand for the proposition that a substantive due process violation only arises when a defendant is re-incarcerated. We are comfortable finding a due process violation even though appellant‘s sentence was increased while he was incarcerated because such a due process right does not mature only when an individual is released from prison, i.e., it is not linked only to a defendant‘s liberty interest upon release from incarceration. Instead, the question is whether so much time has elapsed that a defendant‘s expectation of finality in his or her sentence (regardless of current incarceration status) has crystalized and that the fundamental right to fairness guaranteed by the
sentence that his expectations as to its finality have crystallized and it would be fundamentally unfair to defeat them.“).
While this court has only expressly considered the potential substantive due process violation in the re-incarceration of former prisoners “whose sentences had been deemed satisfied and who had readjusted to society,” Davis, 772 A.2d at 220, that example was merely inspired by the facts of that particular case and did not constitute the universe of the due process right related to finality of sentencing articulated herein. Rather, as articulated by the First Circuit in Breest:
When a prisoner first commences to serve his sentence, especially if it involves a long prison term as here, the prospect of release on parole or otherwise may seem but a dimly perceived, largely unreal hope. As the months and years pass, however, the date of that prospect must assume a real and psychologically critical importance. The prisoner may be aided in enduring his confinement and coping with the prison regime by the knowledge that with good
behavior release on parole or release outright will be achieved on a date certain. After a substantial period of time, therefore, it might be fundamentally unfair, and thus violative of due process for a court to alter even an illegal sentence in a way which frustrates a prisoner‘s expectations by postponing his parole eligibility or release date far beyond that originally set.
579 F.2d at 101; see also Baker, 177 F.3d at 158 (“We realize that prisoners place enormous weight upon their hopes for parole or release.“). The First Circuit in
DeWitt identified the fact that a defendant may “continue[] for a number of years in prison reasonably believing that his sentence had been reduced” as indicative of a changed circumstance that supports finding a finding of a due process violation. 6 F.3d at 35.
The government also attempts to distinguish DeWitt by arguing that - as evidenced by the First Circuit‘s analysis - “release followed by re-incarceration is by far the most significant factor in determining whether correction of a sentencing mistake gives rise to a due process claim.” We find no support for this claim. In DeWitt, the First Circuit identified at least three facts that demonstrated a change in circumstances underlying the due process claim: “[(1)] DeWitt not only continued for a number of years in prison reasonably believing that his sentence had been reduced, [(2)] but he was actually released. He remained free from January 1987 to September 1987 and [(3)] laid down new roots in society, acquiring a job and reestablishing family ties” before being re-incarcerated. Id. at 35. Ultimately, the First Circuit‘s analysis of the “change of circumstances” (the combination of those three facts) was one factor in the due process analysis and, in and of itself, was “not decisive.” Id. Instead, the outcome was a “result of the combined weight of the elements.” Id. at 36. Therefore, we reject the government‘s claim that this due process right is only violated when a defendant is re-incarcerated, or that such a fact
is dispositive. While it may be true that a defendant‘s expectation of finality is even more crystalized and therefore protected upon release, such that re-incarceration gives rise to a due process violation, that is not the only “extreme circumstance” warranting relief. Rather, we must analyze the fact-specific circumstances of each case to determine whether a substantially delayed sentence increase violates an appellant‘s due process right such that it limits a court‘s ability to alter a sentence after it is final and imposed.
Lastly, we are unpersuaded by the government‘s juxtaposition of DeWitt and Hawkins to argue that “courts are split on whether the defendants’ due process rights are violated” when they are improperly released and re-incarcerated. In Hawkins, the Fourth Circuit rooted its due process analysis in the fact that an administrative error caused the defendant to be mistakenly granted parole. See Hawkins, 195 F.3d at 747 (“[T]he precise right asserted is that of a prisoner to remain free on erroneously granted parole so long as he did not contribute to or know of the error and has for an appreciable time remained on good behavior to the point that his expectations for continued freedom from incarceration have ‘crystallized.‘“). Such facts are not before us, but we fail to see how only re-incarceration as a result of an administrative mistake would implicate a defendant‘s substantive due process right to finality in sentencing. The due process right articulated herein arises from a defendant‘s
expectation of finality in a sentence becoming crystalized, regardless of re-incarceration.
To reiterate, in balancing the four factors outlined above, we have no difficulty concluding that this case is one of those “extreme circumstances” that crosses the
IV. Conclusion
Accordingly, as stated in our March 23, 2020, order, we reverse the trial court‘s 2016 order increasing appellant‘s sentence, and we remand for the trial court to enter an amended Judgment and Commitment Order that reflects the sentence imposed in 1999.
So ordered.
EASTERLY, Associate Judge, concurring in the judgment: I agree we must reverse the trial court‘s 2016 order increasing Mr. Jordan‘s sentence from twenty years to life to thirty years to life. I would endorse the recognition of a new substantive due process right to fairness in sentencing if I thought such recognition were necessary. But, based on the facts of this case, Mr. Jordan is entitled to relief under the
The
Here, Mr. Jordan had not just begun to serve his twenty-year-to-life sentence; he had completed sixteen years of that sentence and was approaching his official
parole eligibility date when the trial court granted the government‘s
The government argues that this belated sentence increase did not upset any reasonable expectation of finality Mr. Jordan had in his twenty-year-to-life sentence because that sentence was illegal. As a general matter it is true that, even if a defendant has begun serving a sentence of imprisonment, he cannot develop an expectation of finality in that sentence if it is illegal. Bozza v. United States, 330 U.S. 160, 166 (1947). Relatedly, as the government argues,
But unlike other cases where we have held that the illegality of a sentence defeats a double jeopardy challenge to its correction, this is not a case where a defendant was given an illegally low sentence at the outset, the error came to the trial court‘s attention, and the sentence was corrected and increased. See, e.g., Phenis v. United States, 909 A.2d 138, 162-63 (D.C. 2006). The twist in this case is that the illegally low sentence the government sought to correct in 2015 via a Rule
35(a) motion was itself the product of a prior
It is well established that “arguments not raised in the trial court are ordinarily waived on appeal,” Blackson v. United States, 979 A.2d 1, 10 n.9 (D.C. 2009), and that this principle of waiver “applies to the government no less than to the defendant.” Rose v. United States, 629 A.2d 526, 535 (D.C. 1993) (explaining that the principle should be adhered to “even where the waived point might have arguably led to” a ruling in the government‘s favor, id. at 536). It is also well established that
when the government has a right to challenge a sentencing decision on appeal but fails to exercise that right, a defendant acquires an expectation of finality in that sentence. See United States v. DiFrancesco, 449 U.S. 117, 136 (1980) (explaining that where the government has a right to appeal, a defendant “has no expectation of finality in his sentence until the appeal is concluded or the time to appeal has expired“); see also State v. Schall, 449 N.W.2d 225, 228 (Neb. 1989) (same); People v. Williams, 925 N.E.2d 878, 888 (N.Y. 2010) (same); State v. Christian, - N.E.3d -, No. 2017-1691, 2020 WL 1146797, at *4 (Ohio Mar. 10, 2020) (same). These principles of forfeiture that give rise to an objective expectation of finality extend even to the government‘s failure to exercise its right to appeal an illegally low sentence. See Greenlaw v. United States, 554 U.S. 237, 252 (2008). In Greenlaw, the Supreme Court reversed a sentence increase by an appellate court where the government had failed to cross-appeal, rejecting the argument that the appellate court should be permitted to fix the illegally low sentence because the trial court would be permitted to fix it on remand. Id. at 253-54, 254 n.8. The Court explained that the trial court would be “confine[d] . . . [by the] default and forfeiture doctrines” and that it would be “hard to imagine a case in which a district court, after a court of appeals vacated a criminal sentence, could properly increase the sentence based on an error the appeals court left uncorrected because of the cross-appeal rule.” Id. at 254 n.8.
Applying these principles to this case, the question of what sentence could be legally imposed on Mr. Jordan had been actually and finally litigated without opposition from the government in the 1999
Our precedent is not an obstacle to such a double jeopardy analysis. First, although our court has previously made broad pronouncements that an “illegal sentence is a nullity,” Christopher v. United States, 415 A.2d 803, 804 (D.C. 1980), it has never done so in facts akin to those in this case. Moreover, our prior decisions repeating this statement could not have meant it literally. As the Supreme Court explained in Ex parte Lange, all illegal sentences are not null and void. Only a judgment issued when a court lacks jurisdiction over “the party and of the offence” [sic] is void in the sense that “the officer who held the prisoner under it would be
liable, or the prisoner at perfect liberty to assert his freedom by force.” 85 U.S. (18 Wall.) at 174. Other judgments, “though erroneous, [are] not absolutely void“; they are merely voidable. Id.; see also id. at 175 (acknowledging that “[a] judgment may be erroneous and not void“). Where, as here, a trial court has jurisdiction to preside over both the defendant and the case, any illegal sentence of imprisonment the court issues is not, literally, “a nullity.” Rather, it has the force and effect of holding the defendant in prison for its duration unless and until it is fixed by a court.1 And, as
Greenlaw indicates, it can even be left in place by a court if the government forfeits the opportunity to correct it. See 554 U.S. at 252-53.
Second, prior decisions of this court rejecting a double jeopardy claim because the sentence that was increased was illegal do not foreclose a double jeopardy analysis in this case. Decisions cited by the government like Phenis, 909 A.2d 138, and Christopher, 415 A.2d 803, are distinguishable. They all involve a single effort to correct an illegal sentence. Thus, they support the proposition that the
But the question in Mr. Jordan‘s case is whether, consistent with the
that was the product of a reduction pursuant to
Sentencing should not be “a game in which a wrong move by the judge means immunity for the prisoner.” Bozza, 330 U.S. at 166-67. But
Notes
Id. at 199 (emphasis added) (citations omitted).If the judge were correct that under Rule 35(b) the court lacked jurisdiction to reduce the sentence on February 13, double jeopardy would not bar resentencing because Smith would have had no legitimate expectation of finality in the February 13 sentence. While one can still have an expectation of finality in a sentence predicated upon an erroneous interpretation of the law, one cannot have an expectation of finality where the court never had jurisdiction to render the sentence.