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DISTRICT OF COLUMBIA COURT OF APPEALS
No. 16-CO-689 09/14/2017
JACOB HERRING, APPELLANT,
V.
UNITED STATES, APPELLEE.
Appeal from the Superior Court
of the District of Columbia
(CF3-12811-09)
(Hon. Ann O‘Regan Keary, Trial Judge)
(Argued April 4, 2017 Decided September 14, 2017)
Mikel-Meredith Weidman, Public Defender Service, with whom Samia Fam
and Jaclyn Frankfurt, Public Defender Service, were on the brief, for appellant.
David P. Saybolt, Assistant United States Attorney, with whom Channing D.
Phillips, United States Attorney, and Elizabeth Trosman, Suzanne Grealy Curt,
and Bernard J. Delia, Assistant United States Attorneys, were on the brief, for
appellee.
Before GLICKMAN and FISHER, Associate Judges, and REID, Senior Judge.
FISHER, Associate Judge: After otherwise affirming appellant Jacob
Herring‘s convictions on direct appeal, we remanded with instructions to merge his
two convictions for possession of a firearm during a crime of violence (―PFCV‖).
On remand, the trial court amended the judgment and commitment order by
2
removing the consecutive PFCV count, but it retained a total sentence consistent
with vacating the concurrent count. Upon discovering the mistake, the court
reinstated the consecutive count, confirming that it had not intended to reduce
appellant‘s total sentence. The principal issue before us now is whether the
Double Jeopardy Clause precluded the court from correcting its error. We
conclude that there is no double jeopardy bar and affirm.
I. Factual Background
After a jury trial, Mr. Herring was convicted of several offenses related to a
shooting, including two counts of PFCV—Counts Three and Four of the
indictment. On January 18, 2011, after carefully explaining her reasons for
choosing this punishment, Judge Keary sentenced Mr. Herring to imprisonment for
―a total of 174 months, or 14 and a half years.‖ She first imposed concurrent terms
of sixty-six months for two counts of assault with a dangerous weapon
(―ADW‖)—one count for each victim—then sentences of sixty months‘
incarceration on each of the PFCV counts. One PFCV sentence would be served
concurrently with the sentences for ADW, but the other PFCV sentence would run
consecutively. The court also imposed a consecutive sentence of forty-eight
months for obstruction of justice.
3
The judgment and commitment order accurately recorded Judge Keary‘s oral
pronouncement, committing Mr. Herring ―to the custody of the Attorney General
to be incarcerated for a total term of 174 months.‖ It reflected sentences of
―60 month(s) incarceration, concurrent,‖ on Count Three and ―60 month(s)
incarceration, consecutive,‖ on Count Four. The various concurrent and
consecutive periods of incarceration totaled 174 months. Ryshawn Jackson,
appellant Herring‘s codefendant, was sentenced to 198 months in prison.
Both defendants appealed their convictions to this court. In an unpublished
memorandum opinion and judgment issued in November 2013, we found no merit
to their substantive complaints, but agreed that the PFCV convictions merged.
Jackson & Herring v. United States, Nos. 11-CF-105 & 11-CF-507, Mem. Op. &
J. at 2 (D.C. Nov. 25, 2013). Thus, we remanded the case with instructions ―to
vacate one of the PFCV convictions for each appellant.‖ Id. at 3.
Judge Keary issued an amended judgment and commitment order for
Mr. Herring in January 2014. This order removed Count Four—the PFCV
sentence which had been designated consecutive in the January 2011 J&C—from
the list of Mr. Herring‘s convictions. However, with respect to several counts,
4
including Count Three—the PFCV sentence that survived, it neglected to specify
whether the sentences were consecutive or concurrent. The January 2014 J&C still
committed Mr. Herring ―to the custody of the Attorney General to be incarcerated
for a total term of 174 months.‖
Because District law presumes that sentences run consecutively unless the
court expressly indicates otherwise, see D.C. Code § 23-112 (2012 Repl.),
Mr. Herring filed a motion asking the court to reinsert ―concurrent‖ as it had
appeared on the January 2011 J&C order. The government did not oppose
Mr. Herring‘s motion, and the court obliged. In April 2014 the court issued
another amended judgment and commitment order which specified a sentence of
―60 month(s) incarceration, concurrent‖ on Count Three. Like every other
judgment and commitment order issued in this case, it indicated that Mr. Herring
was ―to be incarcerated for a total term of 174 months.‖ It appears that neither
Mr. Herring nor the government brought to the court‘s attention the inconsistency
on the face of the order: when aggregated, the terms of incarceration for the
various counts now totaled only 114 months.
On March 16, 2016—nearly two years after the court‘s most recent
amendment of the judgment and commitment order—Judge Keary‘s law clerk sent
5
a letter notifying Mr. Herring‘s counsel of ―certain clerical errors in Mr. Herring‘s
April 22, 2014 amended Judgment and Commitment Order.‖ The letter stated that
Judge Keary wished to correct four errors.1 Among them,
[t]he amended Judgment and Commitment Order vacated
the wrong [PFCV] count (count 4 was vacated, instead of
count 3[).] Consistent with Judge Keary‘s original
sentencing intent, the PFCV sentence was to run
consecutive to the Assault with a Dangerous Weapon
(―ADW‖) count. Thus, Judge Keary proposes to correct
this error in the amended Judgment and Commitment
Order by vacating the Count 3 sentence and reinstating
Count 4, the consecutive sentence. This does not change
the defendant‘s original sentence in any way.
The letter cited Criminal Rule 36 as authority for correcting this inadvertent error.
Mr. Herring objected to this change, contending that double jeopardy
principles prohibited reinstatement of Count Four because he had already begun
serving his sentence on Count Three. He also argued that, in any event, Rule 36
did not authorize the court to make this change, which he asserted was substantive,
not clerical. Finally, citing Downey v. United States, 91 F.2d 223 (D.C. Cir. 1937),
1
The court had apparently made similar mistakes when merging the PFCV
convictions of Mr. Herring‘s codefendant. After some debate, Mr. Jackson
acquiesced to the court‘s proposed amendments.
6
Mr. Herring maintained that he was entitled to a hearing before a different judge at
which Judge Keary could be called as a fact witness.
Judge Keary held a hearing on the issues, during which she explained:
I in too hasty a review of the [J&C order], . . . failed to
notice that the clerk had retained the concurrent PFCV
count, Count Three, and had removed the Count Four
PFCV sentence, which was imposed consecutively, thus
altering the original sentence and reducing it by five
years. Of course, the aggregate total sentence shown on
the J&C was still listed as the same, 174 months.
She concluded that ―[r]einstatement of the correct count, the consecutive count,
Count Four, falls within the Court‘s inherent power to correct its record under
Rule 36‖ and that ―corrections [were] needed . . . to resolve the patent
inconsistency on the face of the J&C . . . and . . . to maintain the Court‘s original
sentencing intent back at the time of the sentencing in 2011.‖
Judge Keary also commented that there was ―no reason for the Court to
reconstruct its memory‖ in an on-the-record hearing before a different judge
because her January 18, 2011, oral pronouncement unambiguously revealed her
intent to sentence Mr. Herring to 174 months of incarceration. She explained that
7
her ―continuing intent at the time of the 2014 judgment and commitment order was
not to reduce his sentence, but that he serve the consecutive PFCV sentence that
I had originally imposed and that‘s reflected as well by the lack of change in the
total amount of . . . prison time, the 174 months, which has remained the same
throughout the period of time despite multiple amendments to the judgment and
commitment order.‖
Furthermore, Judge Keary did not view the alteration to the judgment and
commitment order as presenting a double jeopardy issue:
The defendant was tried and convicted by the jury of
these offenses that the Court sentenced him to. I am not
by my action today exposing him to a new risk of
punishment for the same offense, I‘m merely correcting
the error made by my oversight in the amendment of the
judgment and commitment order after the Court of
appeals found that those two counts merged. The court‘s
error, which I acknowledge, does not entitle Mr. Herring
to a windfall of a five year reduction of his sentence.
She held that Mr. Herring ―has had no legitimate expectation of finality‖ in the
April 2014 J&C order, which ―was ambiguous on its face.‖ ―Given the fact that
the judgment and commitment order continued to list 174 months, it‘s difficult to
see how he can assert that he legitimately thought his sentence was 60 months less
8
than that.‖ Judge Keary also noted that the usual practice of courts—and hers—is
to preserve the ―consecutive sentence structure‖ originally imposed. She would
not have reduced Mr. Herring‘s sentence by five years without giving notice to the
parties and without explaining the reduction.
On July 7, 2016, the court issued a new amended judgment and commitment
order which reinstated Count Four—the consecutive PFCV sentence—and
committed Mr. Herring to a total term of incarceration of 174 months. As had
been the case in January 2011, the concurrent and consecutive sentences on the
various counts totaled 174 months.
II. Analysis
The Double Jeopardy Clause of the Fifth Amendment, which provides that
no person shall be ―subject for the same offence to be twice put in jeopardy of life
or limb,‖ is one of the bedrock protections in the Bill of Rights. ―But neither the
Double Jeopardy Clause nor any other constitutional provision exists to provide
unjustified windfalls.‖ Jones v. Thomas, 491 U.S. 376, 387 (1989). In this case
we must decide whether appellant is constitutionally entitled to the relief he
requests or is instead seeking an unjustified windfall.
9
A. The Sentencing Court Did Not Violate the Double Jeopardy Clause
When It Amended the April 2014 J&C Order
i. Appellant Did Not Have a Legitimate Expectation of Finality
Mr. Herring contends that Judge Keary increased his punishment in violation
of the Double Jeopardy Clause when she amended the April 2014 J&C order to
reinstate the PFCV conviction for which he had been given a consecutive sentence.
To determine whether an increased sentence is forbidden by the Double Jeopardy
Clause, we ask whether the defendant had a legitimate expectation of finality in the
length of his previous sentence. (Calvin) Smith v. United States, 687 A.2d 581,
583 (D.C. 1996). This is an objective inquiry. (Derron) Smith v. United States,
984 A.2d 196, 199 n.3 (D.C. 2009).
Typically, a defendant attains a legitimate expectation of finality in a prison
sentence when he begins serving it. See (Calvin) Smith, 687 A.2d at 583.
However, some circumstances undermine a defendant‘s sentencing expectations
even when he has started serving time. For one, if the government is statutorily
authorized to appeal a sentence, a defendant cannot expect ―finality in the original
sentence.‖ See United States v. DiFrancesco, 449 U.S. 117, 139 (1980). Likewise,
10
a defendant who has succeeded in having a conviction set aside on grounds other
than insufficiency of the evidence may be retried and sentenced to a more severe
penalty on that count. See Burks v. United States, 437 U.S. 1, 18 (1978); North
Carolina v. Pearce, 395 U.S. 711, 720 (1969), overruled on other grounds by
Alabama v. Smith, 490 U.S. 794 (1989); see also, e.g., Johnson v. United States,
628 A.2d 1009, 1015 (D.C. 1993). Furthermore, where a defendant succeeds in
getting convictions merged, this court has consistently permitted resentencing on
remaining counts so that the sentencing court may effectuate its original sentencing
plan. See, e.g., Heath v. United States, 26 A.3d 266, 285 (D.C. 2011) (―[W]e
remand the case for the trial court to vacate one of [the merged convictions] and
determine whether resentencing on the remaining counts is necessary to effectuate
its original sentencing plan.‖); Thorne v. United States, 471 A.2d 247, 249 (D.C.
1983) (―[W]e regard remand for resentencing as the appropriate remedy, since it
will allow the trial court to impose sentence knowing that only one of the . . .
convictions is available for sentencing purposes.‖). This is true even when it is
necessary to increase sentences on individual counts in order to maintain the
original sentencing plan.2
2
Other jurisdictions have suggested that a ―defendant‘s legitimate
expectation of finality in [a] sentence . . . may be influenced by many factors such
as the completion of the sentence, the passage of time, the pendency of an appeal
or review of the sentencing determination, or the defendant‘s misconduct in
(continued…)
11
Mr. Herring argues that he had a legitimate expectation of finality once the
court vacated the consecutive sentence on Count Four in favor of the concurrent
sentence on Count Three.3 According to him, this expectation was legitimate
because the sentencing court had the legal authority to vacate Count Four, the
government had no right to appeal the court‘s selection of which duplicative PFCV
count to vacate, the court‘s April 2014 J&C order stood unchanged for two years
before the court notified Mr. Herring of plans to alter it, and there was ―no reason
to believe that Count Four could be reinstated.‖ For its part, the government
maintains that Mr. Herring had no legitimate expectation of finality in the facially
inconsistent April 2014 J&C order.
(…continued)
obtaining the sentence.‖ State v. Hardesty, 915 P.2d 1080, 1085 (Wash. 1996); see
also, e.g., People v. Williams, 925 N.E.2d 878, 887–91 (N.Y. 2010) (barring court
from modifying sentence to include statutorily required period of post-release
supervision where resentencing proceedings occurred after defendants had
completed terms of incarceration and had been released from prison).
3
This first occurred in January 2014, but appellant apparently did not
consider that order to be final because he asked the court to amend it. Indeed, he
feared that the sentence on Count Three would be treated as consecutive because
the court had not designated it as concurrent. We therefore understand appellant to
be relying upon the order issued in April 2014.
12
Proper analysis must start with an understanding of the sentencing court‘s
task at the time Mr. Herring‘s case was remanded from this court. Our November
2013 memorandum opinion and judgment directed ―the trial court to vacate one of
the PFCV convictions‖—but we did not say which. Thus, the court had only two
options available: (1) to vacate Count Three, thus maintaining the court‘s original
sentencing plan, which imposed a total term of 174 months‘ incarceration; or (2) to
vacate Count Four, thereby reducing Mr. Herring‘s total sentence to 114 months.
At that point, Mr. Herring could expect to serve either the sentence on Count Three
or the sentence on Count Four, but not both.
The April 2014 J&C order did not clearly reveal Judge Keary‘s choice
between the two available options. The court simply could not have retained the
PFCV conviction carrying a concurrent sentence and at the same time ―committed
[Mr. Herring] to the custody of the Attorney General to be incarcerated for a total
term of 174 months,‖ as the April order provided. We agree with Judge Keary that
the order is ambiguous on its face.
We reject Mr. Herring‘s argument that the portion of the J&C specifying the
―total term‖ should be disregarded in considering the legitimacy of his post-remand
expectations. First, the ―total term‖ provision—which remained unchanged since
13
the first judgment and commitment order was issued—supplied concrete
information about the court‘s sentencing intent. This court and the Supreme Court
have recognized that when a defendant is found guilty on a multicount
indictment—as Mr. Herring was—trial courts often develop an overarching
sentencing plan, then select sentences on each individual count to achieve that
goal. When a conviction is set aside or vacated, the sentencing court often
reconsiders the allocation of punishment across counts, not its previous
determination of an appropriate aggregate punishment.4 See Dean v. United States,
137 S. Ct. 1170, 1176 (2017) (discussing ―sentencing package‖ doctrine); Kitt v.
United States, 904 A.2d 348, 358 (D.C. 2006) (―presum[ing]‖ that, where two
counts merged, trial court would vacate the concurrent count upon remand ―so as
to preserve the consecutive sentence structure it initially elected to impose‖).5
4
Mr. Herring suggests that Judge Keary‘s mention of her ―usual‖ reliance
on this sentencing practice might constitute impermissible adherence to a uniform
policy. See Houston v. United States, 592 A.2d 1066, 1067 (D.C. 1991) (deeming
it ―improper for the court to refuse to decide [a discretionary] question as a matter
of discretion, but instead purport to be bound by a hard and fast rule‖). Judge
Keary‘s statements in no way displayed a refusal to exercise discretion in
Mr. Herring‘s individual case. She merely acknowledged a sentencing practice—
widely accepted by this court and courts around the country—and explained why
the existence of the practice might undermine Mr. Herring‘s hope that she had
intended to reduce his sentence without saying so.
5
Judge Keary cited Kitt when explaining her decision to amend the April
judgment and commitment order.
14
Second, no reasonable defendant would disregard the incongruity between
the total term and the sentences listed on the face of the judgment and commitment
order. Cf. Gray v. United States, 585 A.2d 164, 166 (D.C. 1991) (―The sentence
from the bench was . . . at least ambiguous, for any reasonable person would have
concluded that the judge did not mean to say what he said.‖); Rich v. United States,
357 A.2d 421, 423 (D.C. 1976) (―The sentence pronounced in open court must be
construed as a whole to determine the court‘s intention.‖). This is to say nothing of
the relative improbability that a sentencing court which had carefully considered
and structured its sentence would suddenly reduce a defendant‘s sentence by five
years, without explaining why, without a motion to reduce sentence having been
filed, and without changing the total term specified on the judgment and
commitment order. Contrary to Mr. Herring‘s contention, given the circumstances,
it would not be ―reasonable and legitimate for any person to look at the amended
2014 J&C, note that Count Four had been removed from under the heading
‗Sentence of the Court,‘ and conclude that the trial court had selected Count Four
as the PFCV count to vacate but failed to update the math at the bottom of the
page.‖ As we have cautioned in the civil context, ―the proper response to a
seemingly ambiguous court order is not to read it as one wishes.‖ Loewinger v.
Stokes, 977 A.2d 901, 907 (D.C. 2009).
15
Mr. Herring relies primarily on United States v. Robinson, 388 A.2d 469
(D.C. 1978); (Calvin) Smith v. United States, 687 A.2d 581; and Borum v. United
States, 409 F.2d 433 (D.C. Cir. 1967), to argue that he had an expectation of
finality in the April 2014 J&C order. None of those cases dictates a result here.
In Robinson the trial court signed and dated an order granting the
defendant‘s motion for reduction of sentence, but ―[t]he order apparently remained
in the court‘s chambers and was never entered on the court jacket, criminal docket
book, or communicated to the parties.‖ 388 A.2d at 470. A week later, the court
signed and dated another order, this time declining to reduce the sentence. Id. The
defendant contended that the later ―order constituted an illegal and unconstitutional
increase in sentence in view of the fact that the [earlier] order‖ granted the sentence
reduction. Id. We agreed that the trial court could not revisit its earlier decision
granting the motion. Id. at 471–72. ―Central to that decision,‖ we later
emphasized, ―was a finding that the modification of the sentence . . . was an
entirely valid and intentional act of the trial judge and not one made unlawfully or
inadvertently.‖ Lindsay v. United States, 520 A.2d 1059, 1062 (D.C. 1987); see
also Robinson, 388 A.2d at 471 (noting that a different judge considering a
D.C. Code § 23-110 motion had found that the sentencing judge intended to reduce
the sentence and had not issued the order inadvertently). Robinson has no bearing
16
on a court‘s ability to correct a sentence which is ambiguous on its face, as is the
situation here.
(Calvin) Smith similarly involved a trial court‘s attempt to revisit an
unambiguous decision it had intentionally made. In that case, the trial court
granted a defendant‘s motion to reduce his sentence, believing that the government
did not oppose it. 687 A.2d at 582. Upon learning that the prosecutor had
previously alerted chambers of his plans to file an opposition, the court vacated its
order reducing the sentence. Id. The court later denied the defendant‘s motion,
―allowing the original sentence to stand unaltered.‖ Id. We held that the
―dispositive consideration‖ was whether the defendant had ―a legitimate
expectation of finality in the sentence‖ once the court granted his motion to reduce
it. Id. at 583. Although the court had made a mistake of fact, ―there [had been] no
irregularity in the signing of the order that can be understood to have undermined
[the defendant‘s] expectation of finality in the sentence,‖ and we held that the
original sentence could not be reinstated. Id. at 586.
Borum is no more helpful to Mr. Herring. In that case, the sentencing judge
neglected to state whether the sentences he imposed were to run concurrently with
or consecutively to other sentences previously imposed. 409 F.2d at 439. Five
17
days later, the judge recalled the defendant to ―clarify‖ that the sentences ―should
run consecutively to those [the defendant] was already serving.‖ Id. at 440.
Applying a presumption that ―absent a specification of consecutiveness, multiple
sentences operate concurrently,‖ the court of appeals held that the trial court had
unlawfully increased the sentence. Id. at 440. Because the sentences were
―operative immediately,‖ id., the presumption had clarified any ambiguity in the
oral pronouncement before the sentencing judge had attempted to explain his
sentences.6 In this case, by contrast, no presumption interceded to give
Mr. Herring a legitimate expectation of finality in the April sentencing order; it
remained ambiguous on its face until the sentencing court amended it.
More on point is David v. United States, 579 A.2d 1172 (D.C. 1990). We
found no double jeopardy problem where a trial court amended a sentence that had
originally stated ―life imprisonment,‖ with a mandatory minimum sentence of five
years, to read ―15 years to life,‖ with a five-year mandatory minimum. Id. at 1173-
74. The defendant argued that the court had ―effectively imposed the mandatory
6
It is noteworthy that Borum would be decided differently today. Shortly
after that decision was issued, Congress enacted D.C. Code § 23-112 (1970),
which reversed this presumption. Bemoaning that the judge‘s sentencing order had
been ―reversed on appeal because the judge had failed to use the magic word
‗consecutively,‘‖ the House Committee Report explained that ―Section 23-112
[wa]s designed to prevent the reoccurrence of the undesirable result in the Borum
case.‖ H.R. Rep. No. 91-907, at 113 (1970).
18
minimum as the discretionary minimum‖ and illegally increased his sentence when
it clarified that it meant to impose a discretionary minimum of fifteen years. Id. at
1175. But we concluded that the court‘s oral pronouncement was ambiguous as to
the minimum sentence imposed. Id. at 1174–75. We explained that, ―[a]lthough
the trial court‘s unspoken intentions are not a consideration in determining what
sentence was imposed when the spoken words are not ambiguous, we will
consider, in ambiguous situations, the trial court‘s intent as further evidence of the
length of the sentence.‖ Id. at 1176 (citation omitted). After considering extrinsic
evidence—including the trial court‘s explanation of why it had altered the initial
order—we were ―able to resolve the ambiguity and thus to determine the length of
the minimum sentence.‖ Id. at 1177.
David teaches that a sentencing court may resolve ambiguity in a prior
sentencing order by referring to the ―entire record,‖ including ―the trial court‘s
intent.‖ Id. at 1176; see also id. (noting that ―the trial court‘s explanation in its
order denying appellant‘s motion to conform the sentence‖ constituted part of the
sentencing record). And it held that the court had sentenced the defendant ―only
once‖; the process of resolving the ambiguity did not implicate his double jeopardy
rights. Id. at 1177.
19
Mr. Herring did not have a legitimate expectation of finality in the
concurrent sentence of sixty months for PFCV listed on the April 2014 J&C order
because it was incompatible with the statement in the same order that the total
sentence was 174 months. One provision or the other was obviously wrong. With
such ambiguity apparent on the face of the sentencing order, he could have only a
faint hope, not a legitimate expectation, that the court had changed its mind about
him and his offenses and elected the more lenient of the two available options for
merging the PFCV convictions. And he is not automatically entitled to the less
severe construction of the unclear judgment and commitment order. See David,
579 A.2d at 1176 (resolving ambiguity in sentence based on the sentencing court‘s
intentions as revealed by the entire record); cf. Bozza v. United States, 330 U.S.
160, 166–67 (1947) (―The Constitution does not require that sentencing should be
a game in which a wrong move by the judge means immunity for the prisoner.‖).
ii. The Sentencing Court Did Not Subject Mr. Herring
to Multiple Punishments
Mr. Herring also asserts that reinstatement of Count Four unconstitutionally
subjected him to multiple punishments for the same offense because he had already
served one PFCV sentence when Judge Keary amended the judgment and
20
commitment order in July 2016. The government contends that this argument is
both legally and factually unsound.
Appellant relies primarily on Ex parte Lange, 85 U.S. (18 Wall.) 163 (1873),
and In re Bradley, 318 U.S. 50 (1943). The basic facts were the same in each case.
A statute provided for alternative punishments of either imprisonment or a fine, but
the trial judge (impermissibly) imposed both sanctions. The defendant paid the
fine and began serving the term of imprisonment. Upon discovering the error, the
trial court sought to vacate the original sentence and to impose only the term of
incarceration. See Lange, 85 U.S. at 164; Bradley, 318 U.S. at 51–52. In both
cases, the Supreme Court determined that the defendant‘s payment had constituted
full performance of one statutorily authorized punishment and ―the power of the
court to punish further was gone.‖ Lange, 85 U.S. at 175–76; see also Bradley,
318 U.S. at 52.
Mr. Herring fails to recognize that the Supreme Court has limited the import
of Lange and Bradley and clarified what interest the bar on multiple punishments is
intended to protect. See United States v. DiFrancesco, 449 U.S. 117, 139 (1980)
(―The holding in Lange . . . [is] not susceptible of general application.‖). In Jones
v. Thomas, 491 U.S. 376 (1989), a defendant was convicted of both attempted
21
robbery and first-degree felony murder based on a single incident. Id. at 378. The
trial court sentenced him to consecutive terms of fifteen years for the attempted
robbery and life imprisonment for the felony murder, specifying that the sentence
for attempted robbery was to run first. Id. Later, however, the state supreme court
concluded that it was improper to impose sentences for both felony murder and the
underlying felony. Id. To correct the defendant‘s sentence, the state court vacated
his attempted robbery conviction and its accompanying fifteen-year sentence. Id.
at 379. Before the Supreme Court of the United States, the defendant argued that
since he had already fully served the fifteen-year sentence at the time the state
court vacated it, he was entitled to immediate release, otherwise he would be
impermissibly subjected to a second punishment. Id. at 382.
The Supreme Court rejected this argument, concluding that the remedy
chosen by the state court did not constitute multiple punishment; after the court‘s
amendment of his sentence, the defendant stood convicted of felony murder alone
and was serving only the sentence for that crime. Id. at 382. Furthermore, the
Court refused to assign any significance to the fact that the sentencing court had
specified that the fifteen-year sentence was to run before the life sentence began.
See id. at 386. It reasoned that ―[t]here [wa]s no indication that the order of the
22
sentences was of the slightest importance to the sentencing judge, and there [wa]s
no reason constitutional adjudication should turn on such fortuities.‖ Id.
The Court also clarified that Lange and Bradley did not stand for ―the
proposition that the Double Jeopardy Clause requires immediate release for the
prisoner who has satisfied the shorter of two consecutive sentences that could not
both lawfully be imposed,‖ calling this ―an overly broad reading of those
precedents.‖ Id. at 382. Instead, the Court explained, ―in the multiple punishments
context, th[e] [Double Jeopardy Clause] interest is ‗limited to ensuring that the
total punishment did not exceed that authorized by the legislature.‘‖ Id. at 381
(quoting United States v. Halper, 490 U.S. 435, 450 (1989)). The double jeopardy
problem in both Lange and Bradley was that by imposing both a fine and a term of
imprisonment when only one or the other was permitted, the trial courts had
exceeded the punishment authorized by the legislature. Id. at 383–84. It would not
have been possible to remedy the error by crediting a fine against time in prison.
Id. at 384.
Mr. Herring‘s argument depends on a notion we have already rejected—that
he had a legitimate expectation that his sentence for PFCV would now be served
concurrently with his sentences for ADW rather than consecutive to those
23
sentences.7 But, as we have already explained, Judge Keary did not impose an
additional or different sentence when she clarified how his one remaining PFCV
sentence was to be served. Nor did she ―exceed, by the device of multiple
punishments, the limits prescribed by the legislative branch of government, in
which lies the substantive power to define crimes and prescribe punishments.‖ Id.
at 381. Consecutive sentences for ADW, PFCV, and obstruction of justice are
authorized by the legislature, as is one sixty-month sentence for PFCV. In sum,
the Double Jeopardy Clause did not preclude the court from reinstating the
consecutive sentence for PFCV.
B. The Judgment and Commitment Order Contained
a Clerical Error Subject to Correction Under Rule 36
7
Appellant‘s contention also depends on a particular ordering of his
sentences. He claims to have completed his PFCV sentence because (1) Count
Three was to be ―served‖ concurrently with his ADW sentences, and (2) Judge
Keary intended that those ADW sentences be served during his first sixty-six
months in prison. But although Judge Keary thoroughly explained her reasons for
imposing an aggregate sentence of 174 months, ―[t]here is no indication that the
order of the sentences was of the slightest importance to [her], and there is no
reason constitutional adjudication should turn on such fortuities.‖ Jones v.
Thomas, 491 U.S. at 386.
24
Criminal Rule 36 provides, in pertinent part, that, ―[a]fter giving any notice
it considers appropriate, the court may at any time correct a clerical error in a
judgment, order, or other part of the record not including the transcript, or correct
an error in the record arising from oversight or omission.‖ Super. Ct. Crim. R. 36.
Neither party disputes that Rule 36 permits a trial court to correct obvious,
uncontroversial errors where the nature of the error and the correction needed are
readily discernible.8 But Mr. Herring asserts that Criminal Rule 36 did not
authorize the sentencing court to modify the April 2014 J&C order ―because the
record failed to establish that the 2014 vacatur was the product of a ‗clerical
error.‘‖ He also suggests that the sentencing judge relied impermissibly on her
own recollections to determine that there was an error and to decide how to correct
it.
i. There Was a Clerical Error on the Face of the
April 2014 Judgment and Commitment Order9
8
See, e.g., Wills v. United States, 147 A.3d 761, 777 n.15 (D.C. 2016)
(labelling of conviction in various docket entries and judgment and commitment
order); Hooker v. United States, 70 A.3d 1197, 1207 (D.C. 2013) (erroneous
offense dates in judgment); Bean v. United States, 409 A.2d 1064, 1067 n.8 (D.C.
1979) (erroneous notation that appellant had entered a guilty plea when there had
in fact been a jury trial).
9
We discuss the April 2014 J&C order because Mr. Herring claims that
order properly recorded his post-remand PFCV sentence and because he contests
the sentencing court‘s amendment of that order. The April 2014 J&C order
(continued…)
25
Black‘s Law Dictionary defines ―clerical error‖ as ―[a]n error resulting from
a minor mistake or inadvertence, especially in writing or copying something on the
record, and not from judicial reasoning or determination.‖ Black’s Law Dictionary
659 (10th ed. 2014). ―The basic distinction between clerical mistakes and [other]
mistakes . . . is that the former consist of blunders in execution whereas the latter
consist of instances where the court changes its mind, either because it made a
legal or factual mistake in making its original determination or because on second
thought it has decided to exercise its discretion in a manner different from the way
it was exercised in the original determination.‖ 46 Am. Jur. 2d Judgments § 142
(2017).
Mr. Herring insists that on this record ―it is impossible to conclude‖ that
there was ―an error at all, much less a ‗clerical error‘ as opposed to a ‗judicial
error.‘‖ His abstract distinction between judicial errors and clerical errors is too
illusory to provide a sufficient test. In a broad sense every mistake on a judgment
(…continued)
replicates one of the clerical errors on the face of the January 2014 J&C order.
But, as we noted above, Mr. Herring apparently did not regard the January order—
which did not indicate whether the PFCV sentence was to run consecutively or
concurrently—as final because he asked the court to amend it. See supra note 3.
26
and commitment order was made by the judge who signed it. In any event, we
disagree that it is ―impossible‖ to determine on this record that there was clerical
error. Indeed, looking only to the face of the April 2014 J&C order, that is the
only reasonable conclusion one could draw.
The internal inconsistency on the face of the order could not have been the
result of a reasoned determination: no sentencing court could have intentionally
retained the concurrent PFCV count instead of the consecutive one if it also
planned to have Mr. Herring incarcerated for a total of 174 months. Either there
was a mistake in listing the sentences count-by-count or an error in recording the
total term of incarceration. Both are clerical in nature. Nothing in the record even
remotely suggests that the sentencing court had intentionally removed one PFCV
count from the order but later changed its mind about which count to vacate.
ii. The Court’s Reliance on the Entire Record
Mr. Herring takes a very narrow view of what evidence the court could
consider in selecting one possible correction (removing the concurrent PFCV count
and reinstating the consecutive one) over the other (changing the total term of
incarceration to 114 months). He asserts that there is ―no contemporaneous record
27
of the trial court‘s intentions [when merging the PFCV convictions] . . . other than
the 2014 J&C alone.‖ He therefore claims that ―the post-remand J&C in this case
is the totality of the trial court‘s sentence‖ and that Rule 36 permits correction only
if we can look ―to the four corners of that document to conclude that the
elimination of Count Four was . . . error.‖
We have not felt bound by such a restrictive notion of relevance in our
decisions applying Rule 36. Errors of the type mentioned in footnote 8, above,
could not have been identified by looking within the four corners of the document
in question, but only by comparing it to other parts of the record. Similarly, in
Bennett v. United States, 620 A.2d 1342 (D.C. 1993), we looked outside the
judgment and commitment order to determine that there had been a clerical error
and how to fix it. The defendant had been convicted of both felony murder while
armed (Count I) and premeditated murder while armed (Count J). After the
convictions had been affirmed on direct appeal, the trial court issued an order
vacating appellant‘s felony murder conviction and sentence. Id. at 1343–44. The
court‘s amended J&C order nevertheless retained the felony murder conviction and
sentence and failed to mention the premeditated murder count. We determined that
the trial court had not unlawfully resentenced the appellant for felony murder, but
rather had ―made a clerical error in transposing Count I and Count J.‖ Id. at 1344.
28
That error was subject to correction under Rule 36, id., even though the court‘s true
intentions could be understood only by reference to other portions of the record.
In Rich v. United States, 357 A.2d 421, a judge orally imposed ―concurrent
sentences, for an indeterminate time under the Youth Corrections Act, [18 U.S.C.
§] 5010(A) [sic], to such time as they determine you would be eligible for parole.‖
Id. at 422. The judge then issued a judgment and commitment order ―which
provided for ‗commitment under 5010(A) of Federal Youth Corrections Act.‘‖ Id.
Later that day—seemingly after recognizing that § 5010 (a) authorized probation,
not incarceration—the judge amended the judgment to read ‗―commitment under
5010(B) of Federal Youth Corrections Act.‘‖ Id. This court rebuffed a claim that
―the original, unamended orders of judgment and commitment correctly reflected
the oral pronouncement of the sentencing judge that appellant would be given
probation under 18 U.S.C. § 5010(a).‖ Id. at 423. ―The sentence pronounced in
open court must be construed as a whole to determine the court‘s intention.‖ Id.
Furthermore, ―the record clearly reveal[ed] the intention of the sentencing judge to
incarcerate, despite the court‘s bare mistaken reference to 5010(a).‖ Id. We
determined that the sentencing court did not err in amending the original judgment
and commitment order under Criminal Rule 36.
29
The lesson of these cases is that a court may consult the record as a whole to
determine whether there has been clerical error. It may even hold additional
proceedings where the existing record is insufficient. Cf. Kennedy v. Reid, 249
F.2d 492, 496–97 (D.C. Cir. 1957) (explaining the process for applying federal
Rule 36 to correct clerical mistakes concerning more than ―purely perfunctory
aspects‖ of an order or judgment).
In this case the record provided significant circumstantial evidence of Judge
Keary‘s intent when merging the PFCV counts. Contrary to Mr. Herring‘s
argument, Judge Keary appropriately considered her carefully crafted 2011
sentencing plan. At the 2011 hearing, she stated her intent to follow the District‘s
Sentencing Guidelines. Judge Keary observed that there were ―three consecutive
counts‖ because of ―the different victims‖ and because the obstruction of justice
count was based on a separate event. Cf. District of Columbia Voluntary
Sentencing Guidelines Manual § 6.1 (May 2010) (―[O]ne crime of violence per
victim per event needs to be sentenced consecutively to the others.‖). Although the
2011 hearing was not contemporaneous with the 2014 merger, it was relevant to
discerning Judge Keary‘s intent at the later time as nothing in the record showed
that she wanted to depart from the original sentencing plan when the court merged
Mr. Herring‘s PFCV counts on remand. We see no reason to ask Judge Keary ―to
30
blind [her] eyes to clear evidence of [her] own intention.‖ Gray v. United States,
585 A.2d 164, 166 (D.C. 1991) (quoting Kennedy, 249 F.2d at 495).
Moreover, Judge Keary did not act impermissibly in considering other
record evidence—including, for example, that there had not been a pending request
to reduce Mr. Herring‘s sentence. And nothing on the record explained why, if
Judge Keary had intended to reduce Mr. Herring‘s sentence in April 2014, she
would have changed her mind in July 2016. Judge Keary could permissibly
consider this evidence in deciding how to fix the clerical error on the face of the
judgment and commitment order.
iii. Judge Keary Did Not Need to Testify
Mr. Herring nevertheless asserts that ―the trial court violated the due process
principles set out in the binding case of Downey v. United States[, 91 F.2d 223,]
when it relied on its own memories, which were never introduced into the record as
evidence, in making the factual finding that the vacatur of Count Four qualified as
a ‗clerical error.‘‖ Judge Keary opined that Downey did not apply because she had
considered only materials in the record and was not reconstructing her own
memory.
31
In Downey, a trial court had sentenced a defendant to four years on each of
three separate indictments for robbery. Id. at 226. But ―the record of the sentences
as entered by the clerk was ambiguous as to whether the sentences were to run
concurrently or consecutively.‖ Id. After four years, the defendant sought release
from prison, contending that he had been sentenced to concurrent four-year terms
and that, to the extent the record of his sentence was ambiguous, uncertainty had to
be ―resolved in favor of liberty.‖ Id. It appears that no transcript of the sentencing
hearing was available.
The government opposed the defendant‘s release, contending that ―the
sentences, as orally uttered by the justice when he imposed them, were
consecutive, not concurrent, sentences, and that therefore the recorded entries
thereof were in clerical error.‖ Id. at 228. Following a hearing, the judge who had
imposed the sentences ordered the record corrected. Id. The judge explained that
―[t]he order correcting the records to show three consecutive terms of four years
has been made in view of my clear and positive recollection that such were the
sentences pronounced by me.‖ Id. n.4. The judge quoted from letters sent to him
by the defendant and others which described the terms of imprisonment as
32
consecutive, but those letters were not introduced in compliance with the rules of
evidence. Id.
The court of appeals concluded that the sentencing order could be altered
―upon a showing of disparity between the record and the truth, and hence upon a
showing of the truth itself.‖ Id. at 230. However, the sentencing judge could not
merely rely on his own recollections or letters not admitted into evidence to
reconstruct what had been stated at the oral pronouncement. ―There [wa]s no
foundation here for reviewing the correctness of the trial justice‘s determination of
the question of fact as to what sentences he uttered four years before the hearing on
the motion.‖ Id. at 231.
But the court ―d[id] not feel bound to go so far as to rule . . . that a record
may not be corrected upon parol evidence or that there cannot be correction after
the term.‖ Id. at 233. Instead, it explained that ―there should be ‗materials in
existence for altering the form of the judgment.‘‖ Id. at 232 (quoting United States
v. Patterson, 29 F. 775, 779 (D.N.J. 1887)). Furthermore, ―where recourse to the
memory of the justice who imposed the sentence is necessary to prove the fact, he
should be heard as a witness, but not as judge and witness both.‖ Id. at 233. The
33
court contrasted the case with situations where the record already contained
sufficient evidence of the true sentence. See id.
This is not a case like Downey where the ―memory of the justice who
imposed the sentence is necessary to prove the fact.‖ Id. As we explained above,
there are ample materials in the record from which to discern Judge Keary‘s intent
at the time she signed the April 2014 J&C order. Cf., e.g., Kennedy, 249 F.2d at
495 (noting that ―[t]here was no lack of ‗materials‘ to establish‖ the sentencing
judge‘s intent (quoting Downey, 91 F.2d at 230)).10 While one of Judge Keary‘s
comments at the July 2016 hearing (―I in too hasty a review of the [J&C order], . . .
failed to notice‖) might be construed as a recollection, it was also a natural
inference from the materials in the record. Under these circumstances, due process
did not require Judge Keary to testify before another judge.
III. Conclusion
10
Mr. Herring relies on Zalmeron v. United States, 125 A.3d 341 (D.C.
2015), to argue that a Downey hearing is required. In Zalmeron, we ―agree[d] that
if the government seeks to present evidence, whether by affidavit or through the
judge‘s own testimony, of the trial judge‘s recollection, Downey requires this to
take place before a different judge.‖ Id. at 348. But we made explicit that
reassignment to another judge would not be required if there was no need to rely
on the trial judge‘s recollection. See id. at 349.
34
There was no double jeopardy bar to reinstating the consecutive sentence for
PFCV, and Criminal Rule 36 provided authority to correct the clerical error. The
judgment of the Superior Court is hereby
Affirmed.