Jordan v. United States

1

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DISTRICT OF COLUMBIA COURT OF APPEALS

No. 16-CO-827

EILEY S. JORDAN, APPELLANT,

v.

UNITED STATES, APPELLEE.

Appeal from the Superior Court of the
District of Columbia
(FEL-12121-93)

(Hon. Harold L. Cushenberry, Jr., Motions Judge)

(Argued February 28, 2019 Decided August 27, 2020)

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
41.
 2

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 Fifth Amendment of the United States Constitution. On March 23, 2020, we

issued an order vacating the trial court’s order and remanding for it to reinstate the

June 25, 1999, sentencing order. This opinion explains why.

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.
 3

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 the two counts of first-degree felony

murder while armed, the trial court initially sentenced appellant to thirty years’ to

life imprisonment, each with a mandatory-minimum sentence of thirty years, to run

concurrently.2 On appeal, this court affirmed appellant’s convictions, along with

those of his co-defendants Tyrone Walker and Donnell Reed, and remanded for the

1
In addition to the two felony murder charges, appellant was convicted of
conspiracy to commit murder, first-degree burglary while armed, assault with intent
to kill while armed (“AWIKWA”), and two counts of possession of a firearm during
the commission of a crime of violence (“PFCV”). See D.C. Code §§ 22-2401, -3202
(1993) (first-degree felony murder while armed), recodified at D.C. Code §§ 22-
2101, -4502 (2012 Repl. & 2020 Supp.); D.C. Code §§ 22-2401, -3202 (1993)
(conspiracy to commit murder), recodified at D.C. Code §§ 22-2101, -1805a (2012
Repl. & 2020 Supp.); D.C. Code §§ 22-1801(a), -3202 (1993) (first-degree burglary
while armed), recodified at D.C. Code §§ 22-801, -4502 (2012 Repl. & 2020 Supp.);
D.C. Code §§ 22-501, -3202 (1993) (AWIKWA), recodified at D.C. Code §§ 22-
401, -4502 (2012 Repl. & 2020 Supp.); and D.C. Code § 22-3204(b) (1993) (PFCV),
recodified at D.C. Code § 22-4504(b) (2012 Repl. & 2020 Supp.). Appellant was
charged with two counts of first-degree felony murder because Ms. Coates’ death
occurred while he committed two other felony offenses: first-degree burglary while
armed and AWIKWA.
2
Appellant was sentenced as follows for his remaining counts: twenty to
sixty months for conspiracy; fifteen years’ to life for armed burglary; fifteen years’
to life for AWIKWA; and five to fifteen years for PFCV. The first-degree felony
murder sentences and the armed burglary sentence were to run concurrently with
each other, but consecutively to the other counts.
 4

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).

Id.

On June 24, 1999, appellant filed a motion under Super. Ct. Crim. R. 35(a) to

correct his sentence, advancing the ex post facto claim. Appellant argued that the

First Degree Murder Amendment Act of 1992, D.C. Law 9-153, 39 D.C. Reg. 3868

(Sept. 26, 1992), which increased the mandatory minimum for first-degree murder

from twenty to thirty years, did not take effect until September 26, 1992, fourteen

weeks after the charged offense. At a hearing on June 25, 1999, the trial court

granted appellant’s motion and resentenced him to twenty years’ to life on the first-

degree felony murder charges, nunc pro tunc to his original 1995 sentencing date,
 5

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

3
Appellant’s sentences for his PFCV and conspiracy convictions remained
unchanged.
4
The government was unable to ascertain the position it took at the June 25,
1999, resentencing.
 6

Emergency Act until it had been raised in the unrelated case of Mackall v. United

States, No. 14-CO-1121, Order & J. (D.C. Oct. 30, 2015).

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

5
Mackall filed several pro se motions with the trial court, arguing that his
thirty-year sentence was too high because the offense occurred prior to the effective
date of the First Degree Murder Amendment Act. As early as July 29, 2004, the trial
court rejected Mackall’s claims by relying on the Emergency Act’s effective date of
April 24, 1992. In August 2014, Mackall specifically argued that the trial court had
sentenced him and appellant differently, a claim that ultimately reached this court.
See generally Mackall, No. 14-CO-1121, Order & J. While neither party clarifies
how Mackall became aware of appellant’s sentence, the government notes they were
incarcerated together for a time following their convictions.
 7

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 U.S. Constitution.6

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

6
For the same reasons, the government moved to correct the sentence of co-
defendant Walker, who joined in appellant’s opposition before the trial court.
Walker, however, is not a party to this appeal. Co-defendant Reed died on or about
March 14, 1999, and the trial court dismissed Reed’s case on suggestion of death on
April 28, 1999.
7
The government moved to increase appellant’s sentence on July 14, 2015,
almost sixteen years after the June 25, 1999, resentencing. The trial court granted
the government’s motion almost one year later on April 15, 2016, almost seventeen
years after appellant’s 1999 resentencing.
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“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 of three years and four months before appellant would be eligible

for parole consideration. Ultimately, appellant would become eligible for parole on

December 31, 2023 (compared to his prior parole eligibility date of February 11,

2020).8

On August 2, 2016, the trial court issued a second amended Judgment and

Commitment Order, effectuating its April 15 order. This appeal followed.

8
The government calculated appellant’s new parole date as a result of its
2015 motion to be December 31, 2023, amounting to a sentence increase of over
three years and ten months (six months longer than originally anticipated).
Apparently as a result of the increased sentence, appellant lost 200 days of statutory
good time credit because such credit cannot be applied to a thirty-year mandatory-
minimum sentence.
 9

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
 10

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, Rule 35(a) permits the trial court to

“correct an illegal sentence at any time,” and we have long held that the trial court

is authorized to bring an illegal sentence into conformity with the law. See (Derron)

Smith v. United States, 984 A.2d 196, 199 (D.C. 2009); Phenis v. United States, 909

A.2d 138, 162 (D.C. 2006); (Calvin) Smith v. United States, 687 A.2d 581, 583 (D.C.

1996); Prince v. United States, 432 A.2d 720, 721-22 (D.C. 1981) (per curiam).

Indeed, this court has stated that “an illegal sentence is a nullity,” which the trial

court may correct. Christopher, 415 A.2d at 804; see also Bozza v. United States,

330 U.S. 160, 167 (1947) (holding that correction of an illegal sentence “only set[s]

aside what [the sentencing court] had no authority to do, and substitute[s] directions

required by the law to be done upon the conviction of the offender” (internal

quotation marks and citation omitted)). At first glance, this case may appear to be a

straightforward application of these principles, in that the trial court reduced a

defendant’s sentence and later, in finding the reduction to be unlawful, sought to
 11

reinstate the original sentence. However, what may be true as a general matter may

be limited by constitutional imperatives in the exceptional case.

B. The Due Process Clause Protects a Defendant’s Expectation of
Finality in His or Her Sentence

The Fifth Amendment to the U.S. Constitution guarantees that the government

shall not “deprive[]” any person “of life, liberty, or property, without due process of

law.” U.S. Const. amend. V. The Due Process Clause ensures more than fair

process in the deprivation of liberty, however, for it also contains a substantive

component that “provides heightened protection against government interference

with certain fundamental rights and liberty interests.” Washington v. Glucksberg,

521 U.S. 702, 719-20 (1997); see also In re W.M., 851 A.2d 431, 447 (D.C. 2004)

(citing Glucksberg). Thus, substantive due process protects “those fundamental

rights and liberties which are, objectively, deeply rooted in this Nation’s history and

tradition and implicit in the concept of ordered liberty, such that neither liberty nor

justice would exist if they were sacrificed.” Glucksberg, 521 U.S. at 720-21 (internal

quotation marks and citations omitted). However, the Supreme Court has

emphasized that we must “exercise the utmost care” in extending constitutional

protection to an asserted substantive due process right, id. at 720, and has only

sparingly found rights and liberties to be “fundamental” and thus protected by due
 12

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

9
In County of Sacramento v. Lewis, the Supreme Court articulated the
standard for whether executive action amounts to a substantive due process
violation: a court must determine first “whether the behavior of the governmental
officer is so egregious, so outrageous, that it may fairly be said to shock the
contemporary conscience,” and, if so, it must then proceed to determine whether the
Glucksberg features are satisfied. 523 U.S. 833, 847 n.8 (1998). As discussed
below, the decision to increase a defendant’s sentence is a judicial, rather than
executive, action and we therefore do not utilize the Lewis shocks-the-conscience
standard. See In re W.M., 851 A.2d at 449 n.22 (noting that the Lewis framework is
appropriate for addressing challenges to executive action). Instead, we proceed
directly to the Glucksberg analysis.
 13

undergirding the Double Jeopardy Clause of the Fifth Amendment, the Supreme

Court acknowledged that “it would seem to be equally difficult to maintain, after

what we have said of the inflexible rules of the common law against a person being

twice punished for the same offense [under the Double Jeopardy Clause], that such

second punishment” would not also violate the Due Process Clause. Ex parte Lange,

85 U.S. 163, 170 (1873). Thus, the historical inability of a sentencing court to

increase a sentence outside of its term, i.e., after a substantial delay as contemplated

here, identifies a deeply rooted tradition of finality in criminal sentencing that

presupposes a defendant’s expectation of finality in that sentence. 10

10
As the concurrence notes, it may be that the Double Jeopardy Clause also
imposes some limit on a court’s ability to correct an illegal sentence. This court,
however, has never found a violation of double jeopardy where a court corrects a
sentence that, when imposed, was outside its statutory authority. See, e.g., (Derron)
Smith, 984 A.2d at 199 (“[O]ne cannot have an expectation of finality [protected by
the Double Jeopardy Clause] where the court never had jurisdiction to render the
sentence.”). Similarly, appellant urges us to adopt the holding of the Supreme
Judicial Court of Massachusetts in Commonwealth v. Selavka, 14 N.E.3d 933, 943
(Mass. 2014) (concluding that a “substantial delay [in a sentence correction] may
render even an illegal sentence final for the purposes of double jeopardy analysis”),
but we hesitate to do so because that court has “never indicated . . . that an illegal
sentence may never become final for the purposes of double jeopardy,” id. at 944,
and our court has said that an illegal sentence “create[s] no vested rights protected
by the double jeopardy clause.” Lindsay, 520 A.2d at 1063 (D.C. 1987).

In light of the facts of this case and this court’s precedent, we decline to adopt
the analysis in the concurring opinion and, as such, cannot conclude in this case that
such a limit exists under the Double Jeopardy Clause.
 14

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

11
In a series of case dealing with due process challenges, the Supreme Court
has recognized “fairness in the criminal justice system as a fundamental right of each
individual.” Rotunda & Nowak, 4 Treatise on Const. L. § 18.41 (May 2020 ed.).
 15

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
 16

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
 17

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 when that

right has matured. However, courts have provided sufficient guideposts for us to

effectively identify those bounds. See infra Sections II.C, II.E.
 18

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
 19

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
 20

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. In September

1987, the state began criminal proceedings against DeWitt in another matter and

sought to re-imprison him. Id. Rather than revoke his parole for violating good

behavior conditions, the trial court revoked its 1981 order partially suspending

DeWitt’s life sentence, finding the original suspension to be improper under

O’Rourke. 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.

12
DeWitt filed a writ of habeas corpus in federal court, which the district
court granted and the First Circuit affirmed. DeWitt, 6 F.3d at 32.
 21

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.
 22

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 within the “very rare
 23

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

13
The government here makes little effort to challenge the First Circuit’s
legal analysis, arguing only that DeWitt “suggests that the due process right is only
implicated once a defendant has been released on parole and then re[-]incarcerated.”
For the reasons discussed throughout, see infra Section III, we reject this
characterization of the First Circuit’s decision. The government also attempts to
distinguish DeWitt on its facts, which we find unpersuasive as well. See id.
14
In Noble, this court held that a congressional enactment – providing that
defendants lose accrued “street time” when their parole is revoked – was not repealed
by a 1987 D.C. statute, and that it therefore applied retroactively to defendants in the
custody of the D.C. Department of Corrections. See 693 A.2d at 1085, 1089-90,
1094. In Davis, we re-affirmed the Noble decision when prisoners, whose street
time was revoked, challenged the revocation, in part, as a violation of due process.
See 772 A.2d at 208-09, 218-20.
 24

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

15
When highlighting this potential due process violation in Noble, we cited
approvingly to Johnson v. Williford, 682 F.2d 868, 871-73 (9th Cir. 1982), in which
the Ninth Circuit concluded, in part, that due process precluded the government from
revoking the parole of a defendant released on parole, when he had been convicted
under a statute that prohibited the possibility of parole. See Noble, 693 A.2d at 1105.
 25

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 Due Process Clause imposes an outer temporal limit on the power

of a court to revise upward a final sentence, even an illegal sentence.16 We focus on

the fundamental fairness interest that is protected by the Due Process Clause, which

is violated when a defendant’s sentence is increased so long after it has become final

that there is no reasonable justification for the increase, even though the increase

may be motivated by a legitimate governmental objective. The existence of such a

due process right turns on whether a defendant’s expectation in the finality of a

sentence has crystalized.

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

16
The language of Rule 35(a) is permissive, authorizing the trial court to
correct an illegal sentence at its discretion. See Super. Ct. Crim. R. 35(a) (“The court
may correct an illegal sentence . . . .”) (emphasis added); cf. Neverdon v. District of
Columbia, 468 A.2d 974, 975 (D.C. 1983) (noting trial court’s discretion in
entertaining motion under Rule 35). Where, as here, a Rule 35(a) motion seeks to
increase a sentence, and where that upward revision frustrates a defendant’s
substantive due process right to finality in sentencing, such motion must be denied.
 26

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
 27

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 Due Process Clause may, in extreme

circumstances, impose a temporal limit on the power of a court to increase a

sentence, even an illegal one. Whether a defendant’s expectation of finality in a

sentence has crystalized, and is therefore protected by due process, is dependent

upon balancing several non-exclusive factors, specifically:

(1) The amount of time that has elapsed between the imposition of the final,
incorrect sentence and the attempted imposition of the increased
sentence;

(2) The reasonableness of the defendant’s expectations of finality,
including the exhaustion of any direct appeal and the defendant’s
contribution to the mistake;

(3) 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

(4) 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 Due Process Clause.
 28

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 Due Process Clause.17

17
Because we find a due process violation, we decline to address the merits
of appellant’s arguments that increasing his sentence violated the Double Jeopardy
Clause (see also supra note 9), violated the Eighth Amendment, or constituted error
under Rule 35.
 29

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
 30

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, would seek to increase a sentence that it appeared to concede

was final. As he had exhausted the judicial process, appellant’s 1999 sentence was,

by all appearances, final.

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.
 31

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)
 32

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.18

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

18
In a footnote in its brief, the government claims that it has not singled out
appellant and his co-defendant. It notes that it “conducted an analysis of all
homicides committed in D.C. between April 24, 1992, and September 26, 1992” and
identified eight felony-murder convictions and one potential sentencing error during
that time frame. The government, however, does not state that its efforts to increase
appellant’s sentence arose out of systematic efforts to identify and correct sentencing
errors. Rather, it appears to concede that its actions arose only because Mackall
raised the issue in his own case. See Mackall Gov’t Brief at p. 16 n.17 (“The
government anticipates moving in the trial court pursuant to Rule 35 to correct the
Jordan/Walker defendants’ mandatory-minimum murder sentences from 20 to 30
years.”). Moreover, the government does not identify any action taken in the five
years since filing its Rule 35 motion here to correct other sentencing errors in other
cases, even though it acknowledges that at least one such error may exist.
 33

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 Sixth Amendment, the state’s “[d]eliberate

delay to hamper the defense weighs heavily against the prosecution,” while “[m]ore

neutral reasons such as negligence or overcrowded courts weigh less heavily but

nevertheless should be considered since the ultimate responsibility for such

circumstances must rest with the government rather than with the defendant”

(cleaned up)). Appellant’s 1999 motion was a product of this court’s mention of an

ex post facto claim on appeal. See Jordan, 722 A.2d at 1262. The government did

not oppose that motion, did not seek reconsideration or appeal of the trial court’s

decision granting it, and remained silent for sixteen more years. These facts support,

rather than weigh against, the lack of diligence by the government – and, in fact,

weigh in favor of the reasonableness of appellant’s expectation of finality in his 1999

sentence.

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
 34

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 Rule 35 motion and the ensuing

“substantial[]” ten-year increase to appellant’s sentence by concurrently running

appellant’s sentences for each offense, resulting in an overall increase of three years

and four months. Still, despite the trial court’s attempt to lessen the increase,

appellant would remain imprisoned without any possibility of parole for more than

three additional years.
 35

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 corrected so as to “postpone[] parole eligibility or release

date far beyond that originally set”); cf. Glover v. United States, 531 U.S. 198, 202-

04 (2001) (stating that “any amount of actual jail time has Sixth Amendment

significance” and rejecting argument that increase of prison term by “anywhere

between 6 and 21 months” was not significant enough to constitute prejudice in an

ineffective-assistance-of-counsel claim).

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 Due Process Clause’s fundamental notions of fairness. See
 36

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 Due Process Clause would be violated by

increasing that sentence. See Lundien, 769 F.2d at 987 (“[D]ue process may . . . be

denied when a sentence is enhanced after the defendant has served so much of his
 37

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
 38

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. 6 F.3d 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
 39

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 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
 40

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

outer limit on the ability for a trial court to correct an illegal sentence. While no one

factor is dispositive, we find the government’s sixteen-year delay in challenging

appellant’s sentence, despite numerous opportunities to do so, to be significant in

determining that this is the “rare” and “exceptional” case where appellant’s

substantive due process rights were violated.

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.
 41

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 Double Jeopardy Clause of the Fifth Amendment.

The Double Jeopardy Clause has long been understood to protect against both

successive prosecutions and successive sentences. See Ex parte Lange, 85 U.S. (18

Wall.) 163, 170 (1873). Whether a sentence increase violates the Double Jeopardy

Clause “turns on whether a defendant has a legitimate expectation of finality in the

sentence.” Smith (Calvin) v. United States, 687 A.2d 581, 583 (D.C. 1996).

“Typically, a defendant attains a legitimate expectation of finality in a prison

sentence when he begins serving it.” Herring v. United States, 169 A.3d 354, 359

(D.C. 2017) (citing Smith (Calvin), 687 A.2d at 583). Whether a defendant has a

legitimate expectation of finality is an objective inquiry. Id.

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
 42

parole eligibility date when the trial court granted the government’s Super. Ct. Crim.

R. 35(a) motion and increased his sentence to thirty years to life.

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, Rule 35(a) authorizes

the trial court “to correct an illegal sentence at any time.” In Mr. Jordan’s case, the

court granted the government’s Rule 35(a) motion because his twenty-year-to-life

sentence was incorrectly low; under the statutory scheme operative at the time of the

offense, a thirty-year-to-life sentence was required.

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
 43

35(a) motion was itself the product of a prior Rule 35(a) motion that Mr. Jordan filed

in 1999. Mr. Jordan was initially, correctly, sentenced to thirty years to life, but

because, at this court’s suggestion, ante at 3-4, he mistakenly thought that sentence

had been imposed in violation of the ex post facto clause, he filed a Rule 35(a)

motion. At that point the government had the opportunity to argue that Mr. Jordan

was not entitled to a sentence reduction. The government did not file an opposition.

And although there is no record of the hearing because the transcript has been

destroyed, it is undisputed that after the trial court ruled that Mr. Jordan had been

given an illegally long sentence, granted his Rule 35(a) motion, and reduced his

sentence to what the court understood his legal sentence to be, twenty years to life,

the government did nothing. It did not move for reconsideration or appeal the

resentencing order to this court; instead, the government allowed the corrected

sentence to become Mr. Jordan’s final sentence.

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
 44

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.
 45

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 Rule 35(a) proceeding. It was thus

objectively reasonable for Mr. Jordan to expect that the “corrected” twenty-year-to-

life sentence he received as a result of that proceeding was his legal, final sentence.

In other words, the court’s express endorsement of this albeit illegal “correction” in

1999, coupled with the government’s waiver, induced and legitimized Mr. Jordan’s

expectation of finality. This expectation was then reinforced by sixteen years of

inaction by the government. Thus, in 2015 when the government sought to relitigate

the legality of Mr. Jordan’s sentence, he was entitled under the Double Jeopardy

Clause to protection from any increase of his 1999 sentence.

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
 46

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

1
This court in Smith (Derron) v. United States, 984 A.2d 196 (D.C. 2009),
acknowledged both that there is a distinction between illegal and voidable and illegal
and void sentences and that a defendant can have an expectation of finality in an
illegal and voidable sentence. See id. at 199. In Smith (Derron), the trial court had
granted a defendant’s untimely Rule 35 motion for a sentence reduction and then,
based on a misperception that it had lacked jurisdiction to act on the untimely
motion, had reversed itself and reinstated the defendant’s longer sentence. Id. at
198. This court upheld Mr. Smith’s double jeopardy claim. Id. at 201. We explained
that the trial court’s understanding that it lacked jurisdiction to grant the defendant’s
Rule 35 motion was incorrect, since Rule 35 is a claim-processing rule, not a
jurisdictional one. Id. We elaborated:

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.

Id. at 199 (emphasis added) (citations omitted).
 47

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 Double

Jeopardy Clause “will not forbid the court to retrace its steps to ‘set aside what it had

no authority to do.’” Smith (Calvin), 687 A.2d at 586 (quoting Bozza, 330 U.S. at

167).

But the question in Mr. Jordan’s case is whether, consistent with the Double

Jeopardy Clause, a trial court, having already retraced its steps to correct what it

believed to be an illegal sentence on an earlier Rule 35(a) motion—and that decision

having become final—may years later go back again to correct a legal error in the

previously “corrected” sentence and increase a defendant’s term of incarceration as

a result. Neither this court nor any other court to my knowledge has ever said the

Double Jeopardy Clause permits that. Cf. id. (rejecting the government’s argument

that the defendant could not have a legitimate expectation of finality in a sentence
 48

that was the product of a reduction pursuant to Rule 35(b) based on a mistake of fact,

and explaining that under the government’s logic “a defendant could never have an

expectation of finality in a sentence”).

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 Rule 35(a) proceedings

likewise should not be a game. The Double Jeopardy Clause provides the requisite

safeguard. It protects a defendant’s reasonable expectation of finality in his

sentence. A defendant has such a reasonable expectation of finality where, as here,

the question of the legality of his sentence is put before the trial court in a Rule 35(a)

motion, the court rules that a lower sentence is the legal sentence, the government

does not challenge that ruling, and a defendant goes on to serve that sentence to near

completion.