United States v. Joseph C. Frady , 607 F.2d 383 ( 1979 )

Opinion for the Court filed by FAHY, Senior Circuit Judge.

Dissenting opinion filed by WILKEY, Circuit Judge.

FAHY, Senior Circuit Judge:

The question presented is whether a certain change in a prison sentence after it had begun to be served placed appellant twice in jeopardy for the same offense. We hold that it did and, therefore, that the change must be set aside as inconsistent with the Double Jeopardy Clause of the Fifth Amendment.¹

History of the Case

The case first came before the courts in 1963. On November 7 of that year appellant Frady and a co-defendant, not a party to the present proceedings, were convicted of first degree murder (count one of the indictment) and of robbery (count three). On December 6, 1963, appellant was sentenced by the District Court on count one “to the punishment of death by electrocution”.² Also on December 6,1963, appellant was sentenced on count three to five to fifteen years.³ The docket indicates that after the sentencing on December 6, appellant was remanded to the District of Columbia Jail. Several days later, on December 13, the District Court entered an order stating that “if an appeal from the judgments of conviction ... be taken . the . . . sentence of death heretofore imposed shall be stayed . . . .” Notice of appeal was filed that day.

There followed in due course an appeal to this court and our decision of Frady v. United States,⁴ affirming appellant’s convictions for first degree murder and robbery. This court held, however, that appellant’s death sentence had been erroneously imposed; it was set aside “with directions that . . . appellant be resentenced to life imprisonment on the verdict[ ] of guilty of first degree murder.” 121 U.S.App.D.C. at 79, 348 F.2d at 85. As to the robbery, the sentence which had been imposed, as well as the conviction, were affirmed. 121 U.S.App.D.C. at 79 n.1, 348 F.2d at 85 n.1.

On remand the District Court, on June 18, 1965, pursuant to the mandate of this court, set aside the sentence of death and sentenced appellant to imprisonment for “his natural life” on count one, and added, but not pursuant to our mandate, “[t]he sentence of Five (5) Years to Fifteen (15) Years on count three, imposed on December 6, 1963, to run consecutively to the Life sentence on count one”. The appellant was remanded again to the District of Columbia Jail.

Insofar as is relevant to this appeal the matter then lay dormant until June 19, 1978, when appellant filed pro se in the District Court a motion pursuant to Fed.R. Crim.P. 35 to vacate an illegal sentence.⁵ The motion was denied the same day. Appellant’s request for leave to file a notice of appeal, lodged in the District Court July 7, 1978, was denied as untimely. On August 22, 1978, appellant petitioned this court for leave to appeal on the ground that the consecutive robbery sentence was invalid as arising out of a single transaction. This court construed this petition as one to appeal in forma pauperis and denied it November 8, 1978, finding no merit in the ground stated, citing United States v. Butler, 149 U.S.App.D.C. 300, 462 F.2d 1195 (1972). Twelve days later appellant moved this court to reconsider its denial. In this motion appellant disclaimed a desire to appeal in forma pauperis and alleged that his robbery sentence was illegal. He set forth that previously the robbery sentence had run concurrently and was illegally made to run consecutively after remand. This constituted, he stated, an illegal pyramiding of sentences.

Thereafter appellant paid the docket fee and this court allowed his appeal. In allowing the appeal we held that, in the circumstances of the case, the time within which a notice of appeal was required to be filed was governed by Fed.R.App.P. 4(a), rather than Rule 4(b), and that since the notice had been filed within the time limits set by Rule 4(a), it was timely.

During the course of the above proceedings the United States and the appellant, who, though still acting pro se, obviously has had legal assistance from some source, have been given and have fully utilized opportunities to brief their respective positions. In view of this, and the over-all situation we have described, we have invoked our Rule 11(e) and now decide the case under its procedural provisions, without oral argument.

The Merits

The position of the United States is that the alteration of the robbery sentence constituted no increase in appellant’s sentence, and, therefore, North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969), is not applicable. We agree Pearce is not applicable, but for quite a different reason. In contending that the “sentence” was not increased, the United States considers appellant’s “sentence” as a combination of the two separate sentences. Thus considered it is pointed out that the life sentence and the consecutive robbery sentence constitute a “sentence” of less severity than the original sentences which included the death sentence. This is true, of course, but the sentences were not imposed as one sentence. The punishment for each offense was separate; moreover, appellant does not contend that he was twice placed in jeopardy for the offense of first degree murder. His position is that after the remand the alteration of the robbery sentence from concurrent⁶ with the death sentence to consecutive to the substituted life sentence, placed him twice in jeopardy for the robbery offense. In Pearce the situation was quite different. The Supreme Court stated the question before it as follows:

When at the behest of the defendant a criminal conviction has been set aside and a new trial ordered, to what extend does the Constitution limit the imposition of a harsher sentence after conviction upon retrial? That is the question presented by these two cases.

395 U.S. at 713, 89 S.Ct. at 2074.

In the case before us now there was no setting aside of a conviction at the behest of appellant, followed by retrial, reconviction, and resentence carrying a heavier punishment than that imposed before the appeal. In Pearce, where the above events had occurred, they gave rise to the question whether the harsher punishment was traceable to the fact that the accused had exercised his right of appeal. This was the problem dealt with in Pearce. Having no comparable situation before us in this case we consider the question raised by the factual situation which is before us: there was no single combined sentence imposed in this case either originally or after the remand, covering in one sentence the penalties for murder and robbery. In each instance the sentence for the murder and that for the robbery were imposed for each crime alone. The sentence of death for the murder was decreased by this court’s decision to life imprisonment. No question is before us by reason of this change in the punishment for the murder. The sentence for the robbery originally entered was altered on the remand by making it consecutive to the sentence for the murder.⁷ This does raise the question whether the alteration increased or made more severe the previously imposed sentence for the robbery, thereby placing appellant twice in jeopardy for that offense. We now turn to consider that question.

We agree with appellant that the original sentence of 5 to 15 years for robbery was concurrent with the sentence of death for the murder. As this court held in Borum v. United States, 133 U.S.App.D.C. 147, 154, 409 F.2d 433, 440 (1967), cert. denied, 395 U.S. 916, 89 S.Ct. 1765, 23 L.Ed.2d 230 (1969), “[Ajbsent a specification of consecutiveness, multiple sentences operate concurrently,” citing a number of supporting decisions.⁸ To the same effect see Schultz v. United States, 384 F.2d 374 (5th Cir. 1967). In our case of Tatum v. United States, 114 U.S.App.D.C. 49, 50, 310 F.2d 854, 855 (1962), we had stated the matter as follows:

If appellant’s first sentence was lawful a second sentence could not lawfully be imposed which increased it or made it more severe, once he had commenced serving confinement under it.

Moreover,

The law is well settled . . . that a sentence in all respects legal cannot be increased after service has begun. “[T]he Constitution was designed as much to prevent the criminal from being twice punished for the same offense as from being twice tried for it.”

Borum v. United States, supra, 133 U.S.App.D.C. at 154, 409 F.2d at 440 (footnotes omitted), quoting Ex parte Lange, 85 U.S. (18 Wall.) 163, 173, 21 L.Ed. 872 (1873).

The original sentence for robbery was legal in all respects, and its service had begun before it was changed from concurrent to consecutive. Thus, when appellant was sentenced to death on December 6, 1963, on count one and to imprisonment on count three he was remanded to the District of Columbia Jail and on the same day was committed to the custody of the Attorney General or his authorized representative to begin serving the five to fifteen year robbery sentence. This imprisonment constituted service under that sentence:

If any . . . person shall be committed to a jail or other place of detention to await transportation to the place at which his sentence is to be served, his sentence shall commence to run from the date on which he is received at such jail or other place of detention.

18 U.S.C. § 3568 (1976).

Had the sentence of death been carried out, of course it would have been a matter of indifference whether the robbery sentence were concurrent or consecutive; but when the death sentence was replaced by the life sentence after appellant had begun to serve the robbery sentence, the change in the latter to consecutive to the life sentence had the effect, if allowed to stand of impermissibly extending the time appellant would be required to be imprisoned due to the robbery conviction.

Appellant will be eligible for parole under the life sentence after serving [20] years (D.C.Code Title 22, § 2404); during this period of [20] years he would complete a concurrent robbery sentence of five to fifteen years, but were that sentence to remain as consecutive to the life sentence he would be required to remain in prison, additionally, for at least the minimum period necessary to be served under the robbery sentence before being eligible for parole. This alteration in the robbery sentence thus increased its severity and would have the effect, as has been pointed out, of increasing the time appellant would be liable to be imprisoned for the robbery.⁹ The alteration accordingly is in violation of the Double Jeopardy Clause. The robbery sentence of five to fifteen years must run concurrently with the life sentence to which it is related, rather than consecutively thereto. The case is remanded to the District Court for entry of an appropriate order to that effect.

It is so ordered.

1 . “[N]or shall any person be subject for the same offence to be twice put in jeopardy of life or limb . . .” U.S.Const. amend. V.

2 . The judgment went on to order that appellant be “taken to the District of Columbia Jail . and ... on the 7th day of February A.D. 1964” electrocuted.

3 . Specifically, the District Court on December 6, 1963, signed a “judgment and commitment” which stated, as to count three, “IT IS ADJUDGED that the defendant is hereby committed to the custody of the Attorney General or his authorized representative for imprisonment for a period of FIVE (5) YEARS TO FIFTEEN (15) YEARS.” This “judgment and commitment” was filed December 10, 1963.

4 . 121 U.S.App.D.C. 78, 348 F.2d 84 (en banc), cert. denied, 382 U.S. 909, 86 S.Ct. 247, 15 L.Ed.2d 160 (1965).

5 . “The court may correct an illegal sentence at any time . . .” Fed.R.Crim.P. 35.

6 . See text accompanying note 8, infra.

7 . That it would have been anomalous for the District Court to make the robbery sentence consecutive to the death sentence does not obviate the fact that as imposed in 1963 the robbery sentence was concurrent. Indeed, since it was not consecutive to any sentence its effect would have been the same as if concurrent even were the term “concurrent” not used to describe it.

8 . By Act of Congress of July 29, 1970 (Pub.L. No. 91-358, § 210(a), Title II, 84 Stat. 610), enacted subsequent to the occurrences relevant to the present case, the law in this jurisdiction has been changed. Our statute, codified as D.C.Code Title 23, § 112, now covers the matter as follows:

A sentence imposed on a person for conviction of an offense shall, unless the court imposing such sentence expressly provides otherwise, run consecutively to any other sentence imposed on such person for conviction of an offense, whether or not the offense (1) arises out of another transaction, or (2) arises out of the same transaction and requires proof of a fact which the other does not.

9 . Should appellant continue serving the life sentence until his death, consecutiveness of the robbery sentence would never become operative, but the added severity of the sentence sought to be imposed has given rise to a case or controversy appropriate for judicial disposition at this time, for it is the imposition of the increase or severity of the sentence which has subjected him to being twice put in jeopardy for the robbery offense.