*1 process due and I would look dural22 less restrictive alterna-
more feasible and STATES, Petitioner, UNITED crime. combating pretrial tives for [De- use and en- suggested counsel has fense NUNZIO, Nicholas S. Honorable Associ con- stringent pretrial release forcement Superior Judge, ate Court of the Dis ditions, for violation and prosecution Columbia, Respondent. trict of noncompli- of release in cases revocation ance; expedited proceedings persons No. 81-84. while on likely to commit crime
deemed Appeals. Court of of Columbia bail; pa- and extensive of “release penalties for offenses pers” which enhance Argued April by persons pretrial release. committed May Decided also American Bar Association Stan- Rehearing Rehearing En Banc Release, supra Relating to Pretrial dards Denied June a de- 10-5.9 which characterize Standard community if he danger fendant as a “(b)(ii)(A) a criminal ... committed release, (B) .. . violated
offense since designed protect
conditions of release
community and no additional conditions of protect safety sufficient to
release are community ....”] Judge Bow-
I would affirm the order of government’s application denying
ers pretrial detention and reverse the order pretrial deten- Judge granting Norman
tion.23 reasoning involving 22. I 23. I the issue closure of concur Ferren do reach procedural the extent deficiencies trial. that he finds in the scheme of the statute. *2 6, 1977,
September respondent sentenced years a term of from 36 to 108 Hamid to prison. We affirmed convictions. Khaalis v. United 1092, A.2d 313 Birney, Atty., William J. Asst. U. S. L.Ed.2d On D.C., Washington, F. C. with whom Charles 25, 1980, June filed a motion for Hamid Ruff, Terry, Atty., U. and John A. John S. Super.Ct.Cr.R. under reduction of sentence Fisher, Knight, R. L. Asst. U. and Paul S. 35(a). 2, 1981, January respondent va On D.C., Attys., Washington, peti- were on the sentence, original suspended cated Hamid’s tion for a writ mandamus. placed execution of and him on Nunzio, Hon. Nicholas S. Associate years. January five probation for On Judge, Superior Court of the District of 1981,respondent vacated the order of Janu Columbia, D.C., se, Washington, pro was on ary 2 and resentenced Hamid to ten concur response petition. Gary to the W. Kohl- (for one-year rent terms each of the ten man, Service, Washington, Public Defender convicted), counts of which he had been D.C., argued respondent. J. Was- Silas with credit for time served. Consistent serstrom, Service, Public Defender Wash- therewith, Hamid was released from custo D.C., ington, also entered appearance dy- respondent. The government petitioned this court Stow, D.C., Washington, ap- Charles F. directing for a writ of mandamus court, pointed by the appearance entered an January to vacate his order of for defendant Hamid adopted and the re- ground on the that he no authori- had sponse respondent. submitted on behalf of 35(a), ty to act under Rule and to reinstate Waxman, Nathan Lewin and Seth P. original sentence. We conclude that D.C., Washington, amicus curi- proper did act without au- ae brief on behalf of The Jewish Communi- thority, government’s peti- and ty Washington. Council of Greater tion for a writ of mandamus.1 35(a) provides pertinent part: KELLY, HARRIS, MACK, Before may The court a sentence within reduce Judges. Associate days imposed, or after sentence days receipt within 120 after the court HARRIS, Judge: Associate of a mandate issued affirmance of Hamid, Abdul also known as Hilván Jude appeal, judgment or dismissal of the Finch, conspiracy was convicted of to com- entry or within 120 armed, kidnapping mit while D.C. Code judgment order or 22-105a, dangerous assault with § of, having review the effect of denying id, 22-502, weapon, eight counts of § upholding, judgment of conviction. armed, id, 22-2101, kidnapping while §§ The clear time limitation contained charges in- -3202. The stemmed from his Super.Ct.Cr.R. 45(b), rule is reinforced volvement with eleven other defendants provides that “the court buildings the takeover of three on March taking any extend the time for action under 1977, during persons which more than 130 killed, except ... to the extent and hostage, person were held one ] Rule[ injured. seriously and several were On under the conditions stated in [it].” 120-day light disposition government’s exception 1. In of our 2. The sole to the time limita- mandamus, provision the court for a writ of we dismiss its tion of Rule 35 is its Hamid, 81-79, pro- appeal, No. revocation of reduce a sentence States, D.C. from the trial court’s orders. bation. See McDaniels App., 181-82 385 A.2d McDaniels United (1980); for reduction of sen Hamid’s motion Nonetheless, it is tence was filed.3 see D.C.App., 385 A.2d 120-day time limitation obvious that “[t]he Franklin v. United D.C.App., its terms does apply ... Moreover, (1972).5 obliged we are It sets a of motions. of Rule to heed 35 ex *3 power time limit on the of the court to act.” in pressed Supreme Court Pollack, (D.C.Cir., No. 80- States v. United Addonizio.6 We path followed in 24, 1374, 1980, 4) (emphasis slip op. Dec. at States, supra, Brown v. United as have original). in In this case the trial court did most courts which have addressed issue 2, January until not act on Hamid’s motion Pollack, since Addonizio.7 1981, power more than six months after its Gonzalez-Perez, supra; United States 629 expired. to reduce the sentence had 1081, 1980) (5th Cir. F.2d 1083 [without Supreme recently stated that citing relying on Addonizio but Fed.R. jurisdictional is period the time Hetrick, 45(b)]; Crim.P. United may enlarged. not be 1007, 1980) [relying Cir. 627 F.2d 1011 Addonizio, 178, 189, 2235, 99 S.Ct. on Addonizio both and on Fed.R.Crim.P. 2242, In a unani- 45(b)]; People v. 610 P.2d opinion, mous stated: the Court relying on Addon (without 1980) (Colo.App. imposed, a sentence has been [O]nce izio); 400, 403-404, Kan. State judge’s to it is also authority modify (1980) (same). P.2d circumscribed. Federal Rule Crim. Proc. 35 now authorizes District Courts to re conclude that Consequently, we
duce a sentence within 120
after it is
authority
trial court was without
imposed or after
it has been affirmed on
however,
jur
appeal.
period,
The time
is
for reduction of
defendant Hamid’s motion
isdictional and
not be extended.
[Id.
120-day
time
had
sentence once the
(footnotes omitted).]
expired.8 We note that
granted
motion in this case
the defendant’s
that view.4
long
We
have adhered to
States, D.C.App.,
Brown v. United
upon
prison
based
favorable
records
largely
A.2d
counterpart
and is to be
3. The
was filed on the 118th
of the
identical to its federal
motion
120-day
making
virtually
given
period,
light
interpretation
it
im-
relevant
possible
construed in
States,
upon
supra,
for it to have been ruled
the latter. McDaniels v.
n.2;
States,
days.
care within 120
A.2d at 181
Walden v. United
Camp
supra
at 1077 n.1. See
note
366 A.2d
As
in
v. United
we observed
McDaniels
States,
D.C.App.,
A.2d
bell v. United
States, supra note
some federal circuits have
liberally
interpreted
allow a court to
Rule 35
upon
time
act
the motion within a reasonable
fol
chosen neither to
Third Circuit has
beyond
120-day period
if the motion to
acknowledge Addonizio. See Unit
low nor to
period.
filed
time
reduce was
within the
Johnson,
(3d
ed States v.
634 F.2d
95 n.1
A.2d at 182 n.3.
Virgin Islands v.
Government of
Gereau,
1979).
(3d
442 n.2
Walden
interpreta
We are not constrained to follow its
we affirmed the trial court’s
event,
opinion
part
tion in
since an
denial of a motion for reduction of sentence
casting
circuit
as
our own
views Addonizio
imposed.
years
over two
after the sentence was
interpretation
validity
es
doubt on the
question
court could have
whether the trial
poused
See United States
the Third Circuit.
us;
granted the motion was not before
accord
Pollack,
slip op.
supra,
at 6-7.
authorizing
ingly,
we do not view Walden as
within which the trial court
extension of time
dissenting
which our
col-
8. The difficulties
Additionally,
in McDaniels we
act.
while
interpretation
league
of Rule
finds in a strict
adopted
some
had
a more
noted that
circuits
obvious,
35(a)
consistent with the
but are
rule,
interpretation
we have never
liberal
sentencing judge’s
logical premise
con-
that a
beyond
plain meaning
stretched the rule
of incarceration is
trol over a defendant’s time
jurisdiction.
this
Any
limited in duration.
modification
to be
amendment,
35(a)
achieved
should be
6. While the
Court’s
35(a)
by disregarding
language.
Super.Ct.Cr.R.
its clear
rather than
of Fed.R.Crim.P.
rule,
specified
apparently strong
120-day period
and the
indications of
35(a),
Super.Ct.Cr.R.
Hamid’s rehabilitation. Once sentence has
filed
such
In hold-
imposed,
been
considerations
motion for
of sentence.
properly
ing
Judge
are more
ad
Nunzio was without authori-
generally
as these
authorities,
act,
adopts
position
parole
ty
dressed
rather
by the
I
sentencing judge.
unsupportable by precedent.
than
would hold
by the
Addonizio, supra, 442
at
188-
that a trial
has a reasonable
2242;
Brown v. United
within which to act
632;
States,
411 A.2d at
supra,
Walden
reduction of
Nunzio,
D.C.App., 366 A.2d
under the circumstances of
case,
Burrell
D.C.
acted within a reasonable time
344, 346,
therefore,
App.,
and,
extraordinary
A.2d
that the
rem-
*4
42,
826,
(1975);
edy
granted.
U.S.
connection,
note that not
we
all avenues for
35(a)
counterpart
our
and its federal
Rule
possible
period
modification of Hamid’s
(Fed.R.Crim.P.
identical,
35(a)) are
inter-
by
incarceration
foreclosed
our
that, therefore, our rule
is to
construed
pretation of Rule 35. Under D.C. Code
light
interpretation given
of the
24-201c, the
may
Board
Parole
§
latter
the federal
courts. See McDaniels
apply
to
early
court for the
States,
v. United
385 A.2d
D.C.App.,
prisoner upon
release of a
its determination
so,
(1978). Having
majori
181 n.2
done
“that there is a reasonable probability that
ty proceeds
ignore
to
every
the fact
that
a prisoner
live
liberty
will
and remain at
of Appeals
Circuit Court
States
to
violating
law,
without
his im-
and that
address the issue has
a trial
held that
court
mediate
incompatible
release is not
with the
has a reasonable time
the 120th day
society.”
may
welfare of
apply
The Board
within which to decide a
filed Rule
to the trial court for reduction
a mini-
35 motion.
e.
mum
regard
sentence without
to
120-
Johnson,
(3rd
1980);
1964).1
circuit
ñores the advice of Justice
espoused by
The view
Black in his
summary
dissent to the Court’s
affirmance
eminently
courts is
sound and well founded
in Berman
reason.
1895, 1899,
L.Ed.2d 1012
explicitly
Rule 35 does not
Admittedly,
(1964):
respect
language
recite
to a defendant
The Criminal Rules were framed with
for reduction of sentence.
purpose
ensuring
jus-
the declared
that
speaks
which a
It
rather to the time within
tice not be thwarted
those with too
sug
act. district court
imagination
little
see
procedural
gests
its literal
themselves,
rules are not ends
but sim-
45(b)
pro
rule is
Rule
reinforced
ply
means to an end:
achievement of
enlarge
vides that
justice for all.
on motion under
for action
rules,
35. I
specified
including
certain
The soundness of the circuit courts’ inter-
history.
the time limitation is of
is evident from
pretation
will concede that
law,
jurisdictional,
I re
a trial court
to as
but
Under
old common
ten referred
to act
a sentence re-
mind the
the reference
lost
“rising”
with the
of a hold
duction motion
always been made
context
e.,
term,
i.
court,
running
of the court
juris
ing that a
court does not have
district
made
end
unless the
before the
modify
a sentence when the Rule
diction
*5
place.
the term
took
in which
days
have
35
is filed
120
Benz,
v.
See United States
51
U.S.
e. United
States United
elapsed.
(1931);
United
Court,
L.Ed.
States
Mendoza,
supra;
United States
States
Cir.), 95 S.Ct.
Annot., 32
Stollings, supra;
generally
See
United States
means of
assurance
strains to substantiate
whether the court’s need of time to re-
position by interpreting
consider and act
his motion will be
Addonizio,
case of United States v.
week,
weeks,
weeks,
for one
two
four
as
months,
two
delay
if
flows from the making
proposition
clear the
the 120-
*6
incapacity, the absence or the preoccupa-
day period may not be extended. Addonizio
judge,
tion of
consequences
the
its
should
dealt with
jurisdic-
the narrow issue of the
not be
prisoner.
visited
the
scope
(1948),2
tional
of 28 U.S.C.A.
§
By cutting off,
specifically:
post-sentencing change
does a
day,
on the 120th
the trial
act,
policies
court’s
in the
authority
majority
to
the
of the United States Parole
now
compels
prolongs
prisoner’s
a defendant
to
a
Commission which
a
play
guessing
ac-
game
imprisonment
as to when his
tual
beyond
period
motion should be filed
the
in-
so that the trial
by
court will be able
sentencing judge,3 support
to render
tended
the
a
a decision within
period.
the time
collateral
(by
Of
attack
means of habeas cor-
course,
determining
in
the
pus petition)
date
which
original
on the
sentence?
In
motion,
he should file his
the
answering
question
negative,4
defendant
this
interpreted
anticipate,
Section 2255 has been
to allow
of his sentence. The
did not
collateral attacks
entered
subsequent change
on convictions and sentences
that a
in Parole
by
a court without
or in the
practices placing greater empha-
Commission
a
presence of constitutional error. Claims under
gravity
sis on the
mining
of the offense when deter-
§
have also been allowed where errors of
prisoner
granted
whether a
should be
law constitute a fundamental defect which in-
herently
parole
by
would
to hinder
utilized
Addonizio’s
complete miscarriage
results in a
early parole.
chances of
justice and where errors of fact are of the most
proceed-
fundamental character such that the
4. The Court found that the claimed error—that
ing
irregular
itself is rendered
and invalid. See
assumptions
was incorrect in his
Addonizio, supra.
United States v.
parole proceed
about the future course of
ings
not meet
of the established stan
—did
years’ impris-
3. In
Addonizio to ten
dards of collateral attack enumerated in note
onment,
judge expressed
expecta-
supra, and did not render the initial sentence
exemplary
tion that
institutional behavior
illegal.
would lead to Addonizio’srelease when he be-
eligible
parole
serving
came
one-third
Court,
dictum,
ing
rule
the circuits’ rationale.
general
stated
The court noted
the
in
the
Gee,
timely
in
that
the Rule motion was
jurisdic
the time
Brown,
whereas
filed
motion was
extended, citing the
tional
not
untimely.
Robinson, 361 U.S.
case of United
(1960).5
precariousness
majority’s posi-
The
Court, however,
not,
majori
was
as the
highlighted by
attempt
tion is
its
to con-
clarifying
proce
post-Addonizio
examples
implies,
strue four
cases as
ty
simplifying
adherence
dictum.
Addonizio
farrago,
merely
stat
dural
but rather
(D.C.Cir.
v. Pollack
No. 80-
United States
general
embraced
ing
proposition
24, 1980), despite
hypothesis
Dec.
its
pre-6
post-7
Addoni
circuit courts both
spectres
prevail-
that Addonizio cast
on the
zio.
view,
ing
Columbia Circuit
represent
change
Addonizio
does
specifically
to decide whether or
declined
conclusion is borne out
precedent. This
in allowing
to follow
the circuits
subsequent
the fact
all
federal cases
120th
courts a
reasonable
addressing
jur
issue of the trial court’s
mo-
day
decide
rulings beyond
to allow
isdiction continue
remaining
tions.
on the
four cases
Reliance
petitions
the 120th
when
Rule 35
cites,
Gonza-
filed. See United States
lez-Perez,
Johnson, supra;
Government of the
Hetrick, supra; People v.
Gereau, supra;
Islands
(Colo.App.1980);
lant
filed motion for reduction three
have
sua
sponte, beyond
120-day period,
after his conviction was affirmed
and in State
appellate
supra,
court. His sentence was reduced and
the Kansas
government
appeal.
authority
did not
the 155th
On
ruled that the trial court did not have
day, appellant
asking
filed a motion
to the defendant an extension of the
time;
reducing
appeal
court to reconsider its initial order
or
motion for reduction modi-
—no
sentence and to reduce his sentence further.
fication was made nor was
jurisdic-
The district court held that it lacked
modification ordered.
untimely
tion because the motion was
filed.
by Judge
patience displayed
Nunzio
11. This
day,
appellant
On the 300th
asked the dis-
government
just
toward
another indica
previ-
trict court to reconsider its denial of his
tion of the even-handedness with which he
ous
district did so
to reconsider. The
approach
proceedings.
tried to
At least
reconsider and further reduced the sentence.
failure of
one district court has considered the
government appealed
order and the
government
opposition
to a Rule
file its
reversing
Ninth Circuit in
the order held that
grounds
granting
35 motion as
the motion.
appellant’s
the 300th
motion filed on
*8
Sockel,
F.Supp.
See United
368
97
untimely
and failed to vest
(W.D.Mo.1973).
appeals al-
the district court. The court of
cognizant
though specifically
of Addonizio not-
Only
“[ajlthough
ed
35 states that a court
circuit courts have held that a
three
prescribed
time in
reduce a sentence
acted
a reasonable
within
trial
day period,
ruling
of
120
the rule has been construed to
on
filed motions
reduction
cases,
delays
only
must be
sentence.
In all three
far
mean that
motion
delay
in the instant
rule within a
exceeded the six-month
within that
court
—the
Pollack, supra (de-
day period
case. See United States v.
lay
reasonable time after the 120
U.S.,
omitted).
months);
elapsed.”
(citation
In re
at 1011 n.4
of ten and a half
Id.
Nix,
(4th
1978) (delay
majority’s
People
a half
of four and
reliance on
v.
su-
F.2d
Cir.
years);
pra,
supra,
similarly
United States v. United States
and State
is
v.
Court,
years).
supra (delay
misplaced.
People
of three
In
the Colorado
act,
depicts
rather
the care and concern it exer-
court been authorized to
cised
insure that this difficult and sensi-
order still must fall because it con
court’s
disposed
only
tive case was
of
factors, viz
inappropriate
sidered
defend
utmost
consideration was undertaken.
subsequent
conduct
as
ant’s
circumstances,
these
I
cannot conclude
prison
evidenced
favorable
records and
gross
committed a
abuse of
trial court
remarkable
rehabilitation.
efforts
ordering
of
discretion in
defend-
application
appropriate
An
standard
ant’s sentence.
review,
appellate
sup
does not
of
motion
port
aspect
majori
this conclusion. A
for reduc
One
of this case which the
ty does
is the
not address
seriousness
tion of sentence is addressed
the sound
government
e.,
requested by
relief
court and will
be
discretion
trial
—i.
writ of
A writ of mandamus
mandamus.
appeal
imposition
an
disturbed
absent
of
remedy
only
should
extraordinary
an
illegal
presence
gross
sentence or the
of a
compel
most
issued in the clearest and
See,
g.,
abuse of discretion.
e.
See,
ling
g.,
e.
cases.
Cartier
Secre
Nerren,
supra. re fact Nunzio give does
viewed defendant’s behavior finding to a abuse of
rise of an discretion. Sand, 541
See United States v. F.2d 1370
(9th Cir.), (1976) (suggest
ing reviewing that in motion to reduce sen
tence, trial court examine defendant’s Ochs, conduct);
post-trial F.Supp. (S.D.N.Y. 1980) (com STATES, Appellant, UNITED prison is a deportment mendable factor not disregarded by to be a trial court in con JACKSON, Appellee. Jacqueline J. sidering a for reduction sen Indeed, tence). court has sustained No. 80-587. reduce trial refusals to sentence based Appeals. Court of District of Columbia prison part on the records of the defend e. ants. Walden Argued April Moreover, supra. hearing,13 neither a while May Decided presence hearing,14 the defendant’s at a ordering reports by experts outside mandated, the fact that the court here represent provisions
made such does not discretion, estimation, my
abuse of but *9 Super.Ct.Cr.R. e. Government of the Islands Gereau, supra.