Frank Kennedy v. Curtis Reid, Superintendent, District of Columbia Jail , 249 F.2d 492 ( 1957 )

DANAHER, Circuit Judge.

The District Court denied a petition for a writ of habeas corpus. On May 25, 1954, petitioner pleaded guilty to a count of housebreaking in each of three cases, Nos. 438-54, 439-54, and 440-54, a count of larceny in each indictment being thereafter dismissed. On June 18, 1954, Judge Curran imposed a sentence of imprisonment of from one to three years in No. 438-54. He imposed a sentence of imprisonment of one to three years in No. 439-54, the term of which was to run consecutively to the sentence in No. 438-54. Likewise, he imposed a sentence of one to three years in No. 440-54 to run consecutively to the sentence imposed in 439-54. The official transcript of the proceedings at the time of sentence discloses that the sentences were pronounced to run consecutively. The judge’s notes on the probation report reflect one to three years in each case, sentences to run consecutively. The clerk’s original notes on the face of the Criminal Court jacket read one to three years consecutively. The docket entries of the Court stated that on June 18, 1954, the petitioner was sentenced to a term of imprisonment of from one to three years in each case, sentences to run consecutively in Criminal Cases Nos. 489-54 and 440-54. The commitment papers, however, erroneously used the word “concurrently,” in the last mentioned cases. Petitioner was released after completion of the sentence imposed on the first indictment, but because of the clerk’s error in the preparation of the commitment, failed to serve the sentence pronounced upon each of the other indictments. When the mistake was discovered, the District Court, apparently in the absence of the petitioner, entered orders for correction of the judgment and commitment and issued a bench warrant leading to the arrest of the petitioner. Assigned counsel challenged the court’s action, asserting the court lacked jurisdiction to correct the error. Relief having been denied, this appeal followed.

Had nothing else occurred we would have a different problem, but at the habeas corpus hearing the facts were fully developed. The petitioner offered as exhibits his “commitment papers” showing, as the judge observed, “The original says ‘concurrent.’ There is no question about that.” On cross examination the Government caused petitioner to read into the record a portion of the official reporter’s transcript of the proceedings at the time of the original sentence, viz.:

“The Deputy Clerk: Case of Lonnie Cameron and Frank Kennedy.

******

“The Court: Kennedy, do you want to say anything before the Court imposes sentence?

“Mr. McGean: Your Honor, may I say something?

“The Court: Yes.

******

“The Court: Do you like the pen ?

“The Defendant Kennedy: No, sir.

“The Court: What?

“The Defendant Kennedy: No, sir.

“The Court: Well, you have been down there on what? Three different occasions?

“The Defendant Kennedy: Two.

“The Court: Two? You may serve one to three years on each case, the sentence to run consecutively.

“Mr. Caputy: We move to dismiss the remaining counts.

“The Court: Very well.”

The judge was asked to take judicial notice of docket entries and other material appearing in the court’s records.

“The Court: I will also take judicial notice of my own notes that were made on the probation report which said one to three years in each case, consecutively; the clerk’s original notes on the back of the jacket said one to three years consecutively; and the docket entry on the front of the jacket said one to three years, consecutively; and the commitment was written by a typographical error which said concurrently.”

Petitioner’s former counsel at the time of sentence also testified that petitioner “got the stiffer” of the sentences imposed upon the two defendants, apparently because of petitioner’s prior record.

“The Court: You heard the sentence imposed by court, did you not ?

“The Witness: I was in the court on the date the sentence was imposed.

“The Court: What was it?

“The Witness: I am not exact as to the words used by Your Honor, but I do recall that Mr. Kennedy, my client, got the stiffer of two sentences.

“The Court: So it would have to be consecutive to get the stiffer.

“The Witness: I know it was one to three.

“The Court: And the co-defendant got two to six. So if he got the stiffer sentence the one to three would have to run consecutively.

“The Witness: That is my impression.”

Following the habeas corpus hearing the District Judge made findings of fact as follows:

“5. That on June 18, 1954, petitioner appeared before this Court for sentencing. This Court in Criminal No. 438-54, sentenced him to a term of imprisonment of from one to three years. In Criminal Case No. 439-54, this Court sentenced him to a term of imprisonment of from one to three years, said term to run consecutively to the sentence imposed in Criminal Case No. 438-54; and in Criminal Case No. 440-54, this Court sentenced him to a term of imprisonment of from one to three years, to run consecutively to the sentence imposed in Criminal Case No. 439-54.

“6. That the Court Reporter’s official transcript of the proceedings disclose that the petitioner was sentenced to consecutive terms of imprisonment.

“7. That the entries made on the face of the criminal court jacket, which reflect the notes taken by the court clerk at the time the sentence was imposed, set forth that the petitioner was sentenced in each case as heretofore set forth.

“8. That the docket entries of this court state that on June 18, 1954, the petitioner was sentenced to a term of imprisonment of from one to three years in each case, sentences to run consecutively in Criminal Case Nos. 439-54 and 440-54.

* -* * * * *

“10. That the petitioner’s former counsel who had appeared on the day of sentence, testified that his recollection was that his client, the petitioner, received a sentence in excess of that of his co-defendant, who had received a sentence of two to six years.

“11. That a clerical error was made by a clerk in the office of the Clerk of the Court when transposing the Judge’s sentence set forth in the transcript and the docket entries to the commitment papers, in that the aforesaid clerk inadvertently used the word ‘concurrently’ in criminal case Nos. 439 — 54 and 440-54, instead of the word ‘consecutively’."

The pronouncement of sentence constitutes the judgment of the court.¹ 2The authority for the execution of the court’s sentence is that judgment. “The commitment is mere evidence of such authority and if the commitment is not in accord with the judgment, the latter may be resorted to on habeas corpus for the purpose of determining whether the detention of the petitioner is lawful.” ² Thus, the Supreme Court has held that “a warrant of commitment departing in matter of substance from the judgment back of it is void.” ³ Mr. Justice Cardozo has pointed out⁴ that a mittimus spends its force when the prisoner shall have been delivered; indeed even if it be lost or destroyed, detention may be justified by the underlying judgment. Thus, the courts in habeas corpus proceedings explore the foundations for the mittimus and “pronounce them false or true.” ⁵

Here, the District Court explicitly went back to its own judgment. Overwhelmingly established on the record were the sentences of one to three years on each indictment to run consecutively. There was no lack of “materials” ⁶ to establish the exact fact. Surely the court is not required “to blind its eyes to clear evidence of its own intention,” ⁷ as we have recognized in applying the Daugherty case standard.⁸ We see here no room for doubt, either as to the intention of the sentencing judge, or as to the fact of his judgment.

Of course, the court at a succeeding term has power to sentence where a void sentence had been previously imposed. “To hold otherwise would allow the guilty to escape punishment through a legal accident.” ⁹ We are not dealing with an excessive sentence,¹⁰ nor an illegal sentence,¹¹ nor a later increase in a lawful sentence, service of which had been commenced or completed.¹² There is no question of the time of sentence as distinguished from the actual entry of the written evidence of the judgment of sentence¹³ Rather, the District Judge undertook in his December 20, 1956, orders merely to correct the court’s record of what had been the validly and timely pronounced sentence. The prisoner, as the court’s findings disclose, had been sentenced to serve three consecutive sentences of one to three years on each indictment, or in courtroom jargon three to nine, hence the “stiffer” of the two sentences pronounced. Petitioner’s co-defendant received “two to six,” as the quoted colloquy, supra, disclosed. There was no “increase” involved nor was the actual sentence changed. The plain fact is that, through error, the petitioner served only the sentence imposed on the first indictment.

Rule 36¹⁴ provides:

“Clerical mistakes in judgments, orders or other parts of the record * * * arising from oversight or omission may be corrected by the court at any time and after such notice, if any, as the court orders.” (Emphasis added.)

The power to correct the record is not to be doubted, quite apart from the Rule,¹⁵ as this court has previously observed¹⁶ It follows that here the District Court clearly possessed the authority to cause appropriate correction to be made, for sentencing is not a game.¹⁷

While the Rule indicates that the court may act after such notice as it deems appropriate, we believe that except as to purely perfunctory aspects, the better practice should command the presence of the prisoner in circumstances such as are shown here. We have said as much before.¹⁸ There may well be situations where factually there are lacking items of evidence essential to the ascertainment of the foundations for the imprisonment. Surely in so important a matter as restraint of a man’s liberty, he should be permitted to attend, to be heard and to show cause, if proper cause there be, why further imprisonment is not to follow. Thus the correcting orders of December 20, 1956, should not have been entered in the absence of the petitioner.¹⁹

It does not follow that reversal is required in the light of the facts. “The District Court has power in a habeas corpus proceeding to ‘dispose of the matter as law and justice require.’ 28 U.S. C. § 2243.” ²⁰ Fed.R.Crim.P. 2 provides that “These rules are intended to provide for the just determination of every criminal proceeding. They shall be construed to secure simplicity in procedure, fairness in administration and elimination of unjustifiable expense and delay.”²¹ We see no point in reversing only to require that the Government take fresh steps to correct the record²² when that record has already been fully made in the presence of the petitioner and of his counsel although in the habeas corpus proceedings. Rather, in the circumstances here, it would seem that the irregularity is to be governed by Fed.R.Crim.P. 52(a) for no substantial rights of the prisoner have been affected.²³ Giving effect to Rule 2, we are satisfied that a just determination has been achieved, and we are bound to affirm the order.

Affirmed.

1 . Pollard v. United States, 1957, 352 U.S. 354, 360, note 4, 77 S.Ct. 481, 1 L.Ed.2d 393; Walden v. Hudspeth, 10 Cir., 1940, 115 F.2d 558; Watkins v. Merry, 10 Cir., 1939, 106 F.2d 360, 361.

2 . Watkins v. Merry, supra note 1, at page 361.

3 . Hill v. United States ex rel. Wampler, 1936, 298 U.S. 460, 465, 56 S.Ct. 760, 762, 80 L.Ed. 1283.

4 . Id., 298 U.S. at pages 466-467, 56 S.Ct. at page 763.

5 . Id., 298 U.S. at page 467, 56 S.Ct. at page 763.

6 . Downey v. United States, 1937, 67 App.D.C. 192, 199, 91 F.2d 223, 230.

7 . Watson v. United States, 1948, 84 U.S.App.D.C. 86, 87, 174 F.2d 253, 254.

8 . Holloway v. United States, 1951, 98 U.S.App.D.C. 332, 334, 191 F.2d 504, 506; c£. Neely v. United States, 4 Cir., 1924, 2 F.2d 849, 853, cited with approval in United States v. Daugherty, 1926, 269 U.S. 360, 363, 46 S.Ct. 156, 70 L.Ed. 309. “The elimination of every possible doubt cannot be demanded.” Id., 269 U.S. at page 363, 46 S.Ct. at page 157. As a practical fact, identical sentences on each of three indictments here involved, following convictions upon pleas of guilty, could have been served in any order without changing the result. Even so, trial courts should be meticulously precise in criminal sentences.

9 . Pollard v. United States, 1957, supra note 1, 352 U.S. at page 361, 77 S.Ct. at page 485; cf. Fed.Rules Crim.Proc. rule 35, 18 U.S.C.A.

10 . Duggins v. United States, 6 Cir., 1957, 240 F.2d 479, 481.

11 . Id., at pages 483 — 484.

12 . Cf. King v. United States, 1938, 69 App.D.C. 10, 15, 98 F.2d 291, 296.

13 . Lemke v. United States, 1953, 346 U.S. 325, 326, 74 S.Ct. 1, 98 L.Ed. 3; Richards v. United States, 1951, 89 U.S.App.D.C. 354, 355-356, 192 F.2d 602, 604; cf. United States v. Hark, 1944, 320 U.S. 531, 534, 64 S.Ct. 359, 88 L.Ed. 290; Spriggs v. United States, 9 Cir., 1955, 225 F.2d 865, 868. As to the time factor, see Fed.R.Crim.P. 45(c)

14 . Fed.R.Crim.P.

15 . Downey v. United States, supra note 6; United States v. Quinn, 7 Cir., 1950, 182 F.2d 252; Bledsoe v. Johnston, 9 Cir., 1946, 154 F.2d 458, certiorari denied 1945, 328 U.S. 872, 66 S.Ct. 1367, 90 L.Ed. 1642; Foster v. Zerbst, 10 Cir., 1937, 92 F.2d 950; Peck v. United States, 7 Cir., 1933, 65 F.2d 59, certiorari denied 1933, 290 U.S. 701, 54 S.Ct. 229, 78 L.Ed. 603; Biddle v. Shirley, 8 Cir., 1926, 16 F.2d 566; Watkins v. Merry, supra note 2.

16 . Rowley v. Welch, 1940, 72 App.D.C. 351, 114 F.2d 499; Downey v. United States, supra note 6; and see Buie v. King, 8 Cir., 1943, 137 F.2d 495; Wilson v. Bell, 6 Cir., 1943, 137 F.2d 716; and Annotation in 126 A.L.R. 956, 967, 990 and 993.

17 . Cf. Bozza v. United States, 1947, 330 U.S. 160, 166, 67 S.Ct. 645, 91 L.Ed. 818.

18 . Downey v. United States, supra note 6, 67 App.D.C. at page 196, 91 F.2d at page 227; Montgomery v. United States, 8 Cir., 1943, 134 F.2d 1, 2. Cf. In re Bradley, 1943, 318 U.S. 50, 63 S.Ct. 470, 87 L.Ed. 500, where the Court disregarded the Government’s suggestion that the defendant must be present when an amended sentence is passed, according to the dissent by Mr. Justice Stone at page 53 of 318 U.S., at page 471 of 63 S.Ct. Cf. Fed.R.Crim.P. 43, and Pollard v. United States, supra note 9; Lewis v. United States, 1892, 146 U.S. 370, 372, 13 S.Ct. 136, 36 L.Ed. 1011.

19 . Downey v. United States, supra note 6; Montgomery v. United States, supra note 18; cf. Biddle v. Shirley, supra note 15.

20 . Dowd v. United States ex rel. Cook, 1951, 340 U.S. 206, 210, 71 S.Ct. 262, 264, 95 L.Ed. 215; cf. Hill v. United States ex rel. Wampler, supra note 3, 298 U.S. at pages 463, 465, 56 S.Ct. at pages 761, 762; Miller v. Aderhold, 1933, 288 U.S. 206, 210, 53 S.Ct. 325, 77 L.Ed. 702.

21 . “I regard Rule 2 as the most important rule of the whole set. It sets forth that these Rules are intended to provide for a just determination of every criminal proceeding. * * * The rule in a sense corresponds with the last sentence of Rule 1 of the Federal Rules of Civil Procedure [28 U.S.C.A.], which provides that they shall be construed to secure a just, speedy and inexpensive determination of every civil action. Our Rule 2 spells out the intent in somewhat greater detail because of the greater necessity of overcoming some ancient notions of criminal proceedings as a game.” Chairman Arthur T. Vanderbilt, February 15, 1946, speaking at New York University School of Law Institute Proceedings, Vol. VI, 120. Cf. United States v. Debrow, 1953, 346 U.S. 374, 376, 74 S.Ct. 113, 98 L.Ed. 92.

22 . Cf. In re Bonner, 1894, 151 U.S. 242, 260, 262, 14 S.Ct. 323, 38 L.Ed. 149; Biddle v. Shirley, supra note 15.

23 . Cf. Lemke v. United States, supra note 13.