UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
No. 93-1002
FRED DeWITT,
Petitioner, Appellee,
v.
DONALD VENTETOULO, ACTING DIRECTOR,
ADULT CORRECTIONAL INSTITUTION, ET AL.,
Respondents, Appellees,
ATTORNEY GENERAL OF RHODE ISLAND,
Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
[Hon. Francis J. Boyle, U.S. District Judge]
Before
Selya, Cyr and Boudin, Circuit Judges
Annie Goldberg, Assistant Attorney General, Appellate Division,
with whom Jeffrey B. Pine, Attorney General, was on brief for
appellant.
David A. Schechter with whom Margaret-Mary Hovarth was on brief
for appellee.
October 6, 1993
BOUDIN, Circuit Judge. The district court granted a
writ of habeas corpus, which it stayed pending this appeal,
ordering the release from state imprisonment of Fred E.
DeWitt. The basis for the writ was the district court's
decision that Rhode Island had acted unconstitutionally in
increasing DeWitt's sentence and reimprisoned him after his
release on parole. We agree with the district court's
decision and affirm.
I.
The constitutional issue in this case arises under the
Due Process Clause of the Fourteenth Amendment. In some
areas, such as search and seizure, due process has been
reduced to detailed and nearly mechanical rules. In other
areas, the precepts are very general, and everything turns
upon the circumstances. The issue here is of this latter
type, and so we begin with a complete account of the
procedural history of this case.
On March 17, 1978, after a trial by jury, DeWitt was
convicted in Rhode Island Superior Court of robbery, assault
with intent to murder, and arson. These menacing labels do
not convey the full measure of DeWitt's evil conduct.
According to testimony given by the victim, a woman then
about 67, DeWitt broke into her home while carrying a knife,
struck her with his hand and with a hammer, engaged in one
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brutal act after another, and then bound and gagged the
victim and set fire to her apartment.
The superior court imposed on DeWitt a life sentence
which meant under Rhode Island law that parole was possible
but not for a minimum of 10 years. DeWitt began serving his
sentence in 1978 and in 1980 his conviction was affirmed by
the Rhode Island Supreme Court. State v. DeWitt, 423 A.2d
828 (R.I. 1980). Then, in the following year, DeWitt came to
the aid of a prison guard who was being assaulted by an
inmate, and DeWitt later testified for the state in the
prosecution of the inmate. There is some suggestion that
DeWitt, not surprisingly, may have suffered at the hands of
other inmates on account of his rescue efforts.
In recognition of these efforts, the superior court on
June 25, 1981, held a hearing and entered an order suspending
all but 15 years of DeWitt's life sentence and providing that
he would be placed on probation for 20 years from the time of
his future release, whenever that occurred.1 This shortened
the minimum period before DeWitt could seek parole, but six
years remained before DeWitt's parole application was
granted. In the meantime, in mid-1983, the Rhode Island
Supreme Court decided State v. O'Rourke, 463 A.2d 1328 (R.I.
1This revised sentence was imposed under Rule 35 of the
Rhode Island Rules of Criminal Procedure which permitted the
court to correct illegal sentences at any time and to reduce
sentences within 120 days of either conviction or receipt of
mandate affirming the conviction.
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1983), holding that the superior court could not "suspend" a
sentence once a defendant had begun to serve it.2
Between 1983 and 1987, the state apparently made no
effort to have the superior court undo its partial suspension
of DeWitt's life sentence. Instead DeWitt continued to serve
his sentence, pursued education and training courses in
prison, and applied several times for parole. Finally, in
January 1987, DeWitt was granted parole and released from
prison. We are told by the state that this occurred about 16
months before the earliest date on which DeWitt would have
been eligible for parole if held under a life sentence.
Thus, despite O'Rourke the prison and parole authorities
continued to treat DeWitt as if the order suspending his
sentence in part was still in force.
During the eight months following his release in January
1987, DeWitt obtained work, beginning a painting business and
then a siding business. He resumed his relationship with
family members and his girlfriend. He also rented an
apartment but moved out after a disagreement, DeWitt
believing that the landlord was billing the entire building's
utilities to DeWitt's meter. It was this latter occurrence
2The court ruled that a state statute, R.I. Gen. Laws
12-19-10, forbad such suspensions and had not been modified
in this regard by Rule 35. O'Rourke, 463 A.2d at 1331. It
appears that the superior court judge in DeWitt's case was
not alone in assuming, prior to O'Rourke, that a suspension
power did exist under Rule 35.
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that began the chain of events leading to this appeal.
According to DeWitt, he later returned to his old
neighborhood to visit a friend, was invited in by his former
landlord, and was then attacked by the allegedly drunken
landlord and his wife with knives. In the turmoil, the
landlord and his wife were injured.
The landlord's version clearly differed, for the state
began criminal proceedings against DeWitt based on the
incident. The state also took steps to re-imprison DeWitt
based on his 1978 conviction, but it did not use the
customary method of seeking to revoke his parole for
violation of the good behavior conditions. Instead, after a
hearing on September 21, 1987, the superior court vacated its
earlier June 1981 order that had suspended in part DeWitt's
original life sentence; the court's ruling was that O'Rourke
showed that the original suspension order had been improper.
DeWitt is currently being held in prison pursuant to that
reimposed life sentence.
The rest of the procedural story can be briefly told.
At some point after September 1987 DeWitt was tried on state
charges growing out of the knife incident with his landlord,
and DeWitt was acquitted by the jury. In January 1988,
DeWitt made a new motion under Rule 35 to alter his life
sentence. The superior court denied the motion as untimely.
An appeal followed, challenging both the reimposition of the
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life sentence and the denial of the new Rule 35 motion. The
Rhode Island Supreme Court rejected the first challenge,
including DeWitt's express claim that the reimposed sentence
violated the Due Process Clause. State v. DeWitt, 557 A.2d
845 (R.I. 1989). The court ruled that the Rule 35 claim was
timely, but, on remand, the superior court denied the Rule 35
motion on the merits and no appeal was taken.
On December 11, 1990, DeWitt filed his habeas petition
in the district court. The district court conducted an
evidentiary hearing, adducing many of the facts set forth
above. On October 20, 1992, the district court issued a
memorandum and order granting the habeas petition. The
district court's judgment, which it stayed pending this
appeal, was entered on December 10, 1992.
Judge Boyle's decision granting DeWitt's habeas petition
relied directly upon the Due Process Clause as construed by
this court in Breest v. Helgemoe, 579 F.2d 95 (1st Cir.),
cert. denied, 439 U.S. 933 (1978). There, this court stated
that "the power of a sentencing court to correct [upward]
even a statutorily invalid sentence must be subject to some
temporal limit" and that in some circumstances such a
correction "might be fundamentally unfair, and thus violative
of due process . . . ." Id. at 101. After a careful
analysis of the present facts, Judge Boyle concluded that
fundamental unfairness did exist here, especially given the
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state's failure to take any steps to reimpose the life
sentence in the four years after O'Rourke and prior to
DeWitt's release. The state then brought this appeal.
II.
There is no surer recipe for confusion than to answer
two different questions at the same time. Thus, in assessing
DeWitt's due process claim, we put to one side for the moment
the fact that DeWitt may have violated the good behavior
conditions attached to his parole. Instead, we ask whether--
assuming arguendo that no parole violation occurred--the
superior court was nevertheless entitled six years after the
event to correct its earlier mistaken grant of Rule 35 relief
and to reimpose the original life sentence.
The Constitution contains no general rule that prohibits
a court from increasing an earlier sentence where the court
finds that it was erroneous and that a higher sentence was
required by law. On the contrary, this has occurred, and
been upheld against constitutional or other challenges, in a
number of cases including Breest itself.3 And in principle,
3See, e.g., United States v. DiFrancesco, 449 U.S. 117,
133-34 (1980); United States v. Rico, 902 F.2d 1065, 1068-69
(2d Cir.), cert. denied, 111 S. Ct. 352 (1990); United States
v. Cook, 890 F.2d 672, 675 (4th Cir. 1989); Littlefield v.
Caton, 856 F.2d 344, 348-49 (1st Cir. 1988); United States v.
Ortega, 859 F.2d 327, 334 (5th Cir. 1988), cert. denied, 489
U.S. 1027 (1989); United States v. Villano, 816 F.2d 1448,
1451 (10th Cir. 1987); Lerner v. Gill, 751 F.2d 450, 458 (1st
Cir.), cert. denied, 472 U.S. 1010 (1985); United States v.
Lundien, 769 F.2d 981, 986-87 (4th Cir. 1985), cert. denied,
474 U.S. 1064 (1986); Burns v. United States, 552 F.2d 828,
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there is no difference between such cases and a case like
this one in which a sentence is reduced and later, finding
the reduction to be unlawful, the court reinstates the
original sentence.
But in law what is true for the usual case is often not
true in the extreme case. Even the state conceded at oral
argument that due process must impose some outer limit on the
power to revise sentences upward after the fact. We are
concerned here not with the substantive grounds of a state's
decision to reduce or increase a sentence, but rather with
the inherently procedural issue of whether and when a state
can reopen a matter after a final unappealed decision, after
a substantial lapse in time during which the state had actual
knowledge of the error, and after a significant change in
circumstances. In short, the question we face is one of
process.
In Breest, we said that notions of fundamental fairness
do place some temporal limit on later increases in sentence,
579 F.2d at 101, and the Fourth Circuit, in Lundien, has
endorsed this view. 769 F.2d at 987. See also Villano, 816
F.2d at 1458 (Logan, J. concurring). It is quite true that
the cases following Breest generally found, as did Breest
itself, that the particular upward revision in question did
not violate due process. A convicted defendant does not
831 (8th Cir. 1977).
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automatically acquire a vested interest in a mistakenly low
sentence. Only in the extreme case can a court properly say
that the later upward revision of a sentence, made to correct
an earlier mistake, is so unfair that it must be deemed
inconsistent with fundamental notions of fairness embodied in
the Due Process Clause. Accord Lundien, 769 F.2d at 987.
In our view, there is no single touchstone for making
this judgment, nor any multi-part formula. Rather, drawing
on considerations mentioned by cases like Breest and
suggested by common sense, we think that attention must be
given--our list is not exclusive--to the lapse of time
between the mistake and the attempted increase in sentence,
to whether or not the defendant contributed to the mistake
and the reasonableness of his intervening expectations, to
the prejudice worked by a later change, and to the diligence
exercised by the state in seeking the change. To be sure,
doctrine should evolve toward yardsticks and formulas, making
law more predictable and reducing the need for ad hoc
decisions by judges. But that is the end point of the
journey, and we are at the beginning.
We start with the central and singular fact that the
state, which was represented at the hearing in which DeWitt's
sentence was suspended in 1983, took no appeal from that
decision, even though an appeal is the ordinary and expected
way in which errors are to be corrected. The state had a
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second chance also to correct the error in 1983 after the
Rhode Island Supreme Court held in O'Rourke that the
suspension power could not be used after a prisoner had begun
to serve his sentence; once again, the state made no effort
(so far as the record reveals) to apply to the trial court to
undo the suspension of DeWitt's sentence error. The process
that DeWitt received, therefore, begins with a remarkable
double default by the state. It is not a matter of the state
being estopped: rather, in deciding what is fundamentally
unfair we cannot ignore the fact that with due diligence the
state could have challenged the suspension long before
DeWitt's release. Following the state's double
default, circumstances changed substantially. In contrast to
cases like Breest, DeWitt not only continued for a number of
years in prison reasonably believing that his sentence had
been reduced, but he was actually released. He remained free
from January 1987 to September 1987 and laid down new roots
in society, acquiring a job and reestablishing family ties.
Only at this point, did the superior court correct its
original mistake and re-imprison him. The lengthy delay and
change of circumstances are not decisive but they contribute
to the judgment whether due process was afforded by the
belated reopening.
Finally, due process requires a weighing not only of the
defendant's interest in finality, but of the state's interest
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in correcting error. Yet there is no sign that Rhode Island
has undertaken any wide-scale program to identify and
resentence those whose earlier sentences were suspended in
violation of O'Rourke. Rather, DeWitt appears to have been
singled out primarily to relieve the state of the trouble of
conducting a parole revocation hearing. The impression is
hard to avoid that the resentencing here primarily serves
only to skirt the minimal due process obligations that attach
to parole revocations, that the state could conduct such a
proceeding at minimal cost, and that the state's own self-
proclaimed interest in vindicating O'Rourke is limited to
this case.
As we have said, there are numerous cases allowing a
sentence to be increased after it was initially imposed in
error. In virtually all that we have discovered, there has
been some distinguishing circumstance that separates that
case from DeWitt's, for example, because (as is often true)
the defendant was still in prison, or the interval between
the original sentence and its correction was brief, or
because the defendant almost certainly knew or should have
known that an error had been made.4 Conversely, we are
4Compare Lerner, 751 F.2d at 458 (mistake corrected
after three years but while defendant still in prison); Cook,
890 F.2d at 674 (mistake corrected after three weeks while
defendant awaiting a report date for community confinement);
and Rico, 902 F.2d at 1068-69 (mistake--of which defendant
must have known--discovered three days after defendant
erroneously sentenced to time served and released).
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completely satisfied, as Breest and Lundien said in dicta,
that due process must in principle impose an outer limit on
the ability to correct a sentence after the event.
Thus we face here the familiar due process problem of
deciding how much is too much. In concluding that Dewitt's
case crosses the line, we have taken into account a range of
considerations: the multi-year period between the suspension
and the reimposition of sentence, the reasonableness of
DeWitt's reliance, his release from prison and formation of
new roots, the unusual tardiness of the state in failing to
correct the error from 1983 onward, and the existence of an
alternative parole revocation remedy. These elements cannot
be calibrated precisely, nor can they be taken in isolation.
The outcome here is the result of the combined weight of the
elements.
We reach our conclusion with diffidence because federal
judges have no monopoly on wisdom in deciding what is unfair,
and even harsh decisions by state authorities usually raise
no constitutional issue. But we are confident that this case
is very unusual and that our decision imposes no serious
constraint on state authorities who, unlike federal judges,
have the direct responsibility for the law-enforcement and
prosecutorial tasks at hand. In sum, this case is the very
rare exception to the general rule that courts can, after
sentence, revise sentences upward to correct errors.
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III.
We turn now to Rhode Island's counter arguments and, in
particular, to the issue we earlier reserved concerning
DeWitt's supposed parole violation. The state has fought
earnestly for its position that the district court erred in
granting the writ, but in our view the arguments on which the
state lays most stress are not very compelling.
The state argues broadly that the original suspension of
DeWitt's life sentence was a matter of discretion, and the
decision to parole him before the end of his new 15-year
sentence was likewise discretionary. From these premises the
state concludes that DeWitt cannot have an interest in
remaining at large that is protectable under the Due Process
Clause. But it is one thing to say that DeWitt could not
have compelled the suspension of sentence or the grant of
parole; it is quite another to ignore the reality that the
discretion was exercised in his favor and the state is now
trying to withdraw what it has bestowed.
Rhode Island is not required to give away its property
but if it gave away its state house as a gift, it is unlikely
it could get it back without paying just compensation to the
new owner. More closely on point, the state is not obliged
by the Constitution to parole its prisoners, but having done
so, it is obliged to afford them due process--what process is
due is another matter--when it revokes paroles. Morrissey v.
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Brewer, 408 U.S. 471, 481 (1972). The case relied upon by
the state for its discretion argument, Greenhotz v. Nebraska
Penal Inmates, 442 U.S. 1 (1979), involved the very different
question whether the state is obliged to provide due process
in deciding whether to grant parole.
The state's main arguments in this case are narrower and
center upon DeWitt's fight with his former landlord. DeWitt
was warned, the state points out, that his parole could be
revoked if he got himself into trouble. That he was
acquitted by a jury of causing the trouble, says the state,
means nothing; the burden of proof in that trial was beyond a
reasonable doubt, while in parole revocation, state law
requires only evidence that would "reasonably satisfy" the
decision-maker that a violation occurred. Walker v.
Langlois, 243 A.2d 733, 737 (R.I. 1968). Quoting from
DeWitt's own testimony about the incident, the state suggests
that DeWitt's version of the struggle with the landlord is
contradictory and improbable.
These arguments remind one of a boxer leading with his
chin. No one doubts that the state could at the outset have
conducted a proceeding to revoke DeWitt's parole. DeWitt's
story that he was attacked without provocation by the
landlord and his wife, both armed with knives, is one that
any parole board lawyer might enjoy testing on cross-
examination. The Constitution has not been read to require
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proof beyond a reasonable doubt in a parole revocation
proceeding. E.g., Whitehead v. U.S. Parole Commission, 755
F.2d 1536, 1537 (11th Cir. 1985). If the state found that
DeWitthad misbehaved,it could havesurely cancelledhis parole.
But this is not what happened. There has been no
official determination of wrongdoing by DeWitt, and he has
not been returned to prison to serve a 15-year sentence. The
state can hardly expect that this court will determine, based
on the state's selection of transcript excerpts, that DeWitt
was at fault. It may well be that under Rhode Island law the
state can still revoke DeWitt's parole on account of the
knifing incident. We have no competence to revoke the
parole, and no occasion to consider any federal claims that
DeWitt might make against such a remedy.5 But as matters
now stand, DeWitt is being held pursuant to a judgment
sentencing him to life imprisonment, a judgment unlawfully
reimposed on DeWitt in violation of the Constitution.
In the concluding section of its brief, the state
asserts in one sentence that DeWitt's claim in this court is
foreclosed by his failure to appeal to the Rhode Island
5Possibly DeWitt would argue that due process precluded
revoking his parole for misconduct after the jury acquittal.
However, like most circuits, we have sustained the use of
"acquitted conduct" to increase sentences under the
Sentencing Guidelines, based on the same distinction as to
burden of proof urged by Rhode Island in this case. E.g.,
United States v. Mocciola, 891 F.2d 13, 16-17 (1st Cir.
1989).
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Supreme Court after the superior court on remand denied his
new Rule 35 motion. When that motion was denied, DeWitt had
already presented to the Rhode Island Supreme Court the due
process claim on which we pass today, and that court had
already rejected that claim on the merits. DeWitt had thus
fully exhausted his state remedies to vindicate his due
process claim, and the state's exhaustion objection is
meritless.
Affirmed.
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