Jacob Herring v. United States

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DISTRICT OF COLUMBIA COURT OF APPEALS

No. 16-CO-689 09/14/2017

JACOB HERRING, APPELLANT,

V.

UNITED STATES, APPELLEE.

Appeal from the Superior Court

of the District of Columbia

(CF3-12811-09)

(Hon. Ann O‘Regan Keary, Trial Judge)

(Argued April 4, 2017 Decided September 14, 2017)

Mikel-Meredith Weidman, Public Defender Service, with whom Samia Fam

and Jaclyn Frankfurt, Public Defender Service, were on the brief, for appellant.

David P. Saybolt, Assistant United States Attorney, with whom Channing D.

Phillips, United States Attorney, and Elizabeth Trosman, Suzanne Grealy Curt,

and Bernard J. Delia, Assistant United States Attorneys, were on the brief, for

appellee.

Before GLICKMAN and FISHER, Associate Judges, and REID, Senior Judge.

FISHER, Associate Judge: After otherwise affirming appellant Jacob

Herring‘s convictions on direct appeal, we remanded with instructions to merge his

two convictions for possession of a firearm during a crime of violence (―PFCV‖).

On remand, the trial court amended the judgment and commitment order by

2

removing the consecutive PFCV count, but it retained a total sentence consistent

with vacating the concurrent count. Upon discovering the mistake, the court

reinstated the consecutive count, confirming that it had not intended to reduce

appellant‘s total sentence. The principal issue before us now is whether the

Double Jeopardy Clause precluded the court from correcting its error. We

conclude that there is no double jeopardy bar and affirm.

I. Factual Background

After a jury trial, Mr. Herring was convicted of several offenses related to a

shooting, including two counts of PFCV—Counts Three and Four of the

indictment. On January 18, 2011, after carefully explaining her reasons for

choosing this punishment, Judge Keary sentenced Mr. Herring to imprisonment for

―a total of 174 months, or 14 and a half years.‖ She first imposed concurrent terms

of sixty-six months for two counts of assault with a dangerous weapon

(―ADW‖)—one count for each victim—then sentences of sixty months‘

incarceration on each of the PFCV counts. One PFCV sentence would be served

concurrently with the sentences for ADW, but the other PFCV sentence would run

consecutively. The court also imposed a consecutive sentence of forty-eight

months for obstruction of justice.

3

The judgment and commitment order accurately recorded Judge Keary‘s oral

pronouncement, committing Mr. Herring ―to the custody of the Attorney General

to be incarcerated for a total term of 174 months.‖ It reflected sentences of

―60 month(s) incarceration, concurrent,‖ on Count Three and ―60 month(s)

incarceration, consecutive,‖ on Count Four. The various concurrent and

consecutive periods of incarceration totaled 174 months. Ryshawn Jackson,

appellant Herring‘s codefendant, was sentenced to 198 months in prison.

Both defendants appealed their convictions to this court. In an unpublished

memorandum opinion and judgment issued in November 2013, we found no merit

to their substantive complaints, but agreed that the PFCV convictions merged.

Jackson & Herring v. United States, Nos. 11-CF-105 & 11-CF-507, Mem. Op. &

J. at 2 (D.C. Nov. 25, 2013). Thus, we remanded the case with instructions ―to

vacate one of the PFCV convictions for each appellant.‖ Id. at 3.

Judge Keary issued an amended judgment and commitment order for

Mr. Herring in January 2014. This order removed Count Four—the PFCV

sentence which had been designated consecutive in the January 2011 J&C—from

the list of Mr. Herring‘s convictions. However, with respect to several counts,

4

including Count Three—the PFCV sentence that survived, it neglected to specify

whether the sentences were consecutive or concurrent. The January 2014 J&C still

committed Mr. Herring ―to the custody of the Attorney General to be incarcerated

for a total term of 174 months.‖

Because District law presumes that sentences run consecutively unless the

court expressly indicates otherwise, see D.C. Code § 23-112 (2012 Repl.),

Mr. Herring filed a motion asking the court to reinsert ―concurrent‖ as it had

appeared on the January 2011 J&C order. The government did not oppose

Mr. Herring‘s motion, and the court obliged. In April 2014 the court issued

another amended judgment and commitment order which specified a sentence of

―60 month(s) incarceration, concurrent‖ on Count Three. Like every other

judgment and commitment order issued in this case, it indicated that Mr. Herring

was ―to be incarcerated for a total term of 174 months.‖ It appears that neither

Mr. Herring nor the government brought to the court‘s attention the inconsistency

on the face of the order: when aggregated, the terms of incarceration for the

various counts now totaled only 114 months.

On March 16, 2016—nearly two years after the court‘s most recent

amendment of the judgment and commitment order—Judge Keary‘s law clerk sent

5

a letter notifying Mr. Herring‘s counsel of ―certain clerical errors in Mr. Herring‘s

April 22, 2014 amended Judgment and Commitment Order.‖ The letter stated that

Judge Keary wished to correct four errors.1 Among them,

[t]he amended Judgment and Commitment Order vacated

the wrong [PFCV] count (count 4 was vacated, instead of

count 3[).] Consistent with Judge Keary‘s original

sentencing intent, the PFCV sentence was to run

consecutive to the Assault with a Dangerous Weapon

(―ADW‖) count. Thus, Judge Keary proposes to correct

this error in the amended Judgment and Commitment

Order by vacating the Count 3 sentence and reinstating

Count 4, the consecutive sentence. This does not change

the defendant‘s original sentence in any way.

The letter cited Criminal Rule 36 as authority for correcting this inadvertent error.

Mr. Herring objected to this change, contending that double jeopardy

principles prohibited reinstatement of Count Four because he had already begun

serving his sentence on Count Three. He also argued that, in any event, Rule 36

did not authorize the court to make this change, which he asserted was substantive,

not clerical. Finally, citing Downey v. United States, 91 F.2d 223 (D.C. Cir. 1937),

1

The court had apparently made similar mistakes when merging the PFCV

convictions of Mr. Herring‘s codefendant. After some debate, Mr. Jackson

acquiesced to the court‘s proposed amendments.

6

Mr. Herring maintained that he was entitled to a hearing before a different judge at

which Judge Keary could be called as a fact witness.

Judge Keary held a hearing on the issues, during which she explained:

I in too hasty a review of the [J&C order], . . . failed to

notice that the clerk had retained the concurrent PFCV

count, Count Three, and had removed the Count Four

PFCV sentence, which was imposed consecutively, thus

altering the original sentence and reducing it by five

years. Of course, the aggregate total sentence shown on

the J&C was still listed as the same, 174 months.

She concluded that ―[r]einstatement of the correct count, the consecutive count,

Count Four, falls within the Court‘s inherent power to correct its record under

Rule 36‖ and that ―corrections [were] needed . . . to resolve the patent

inconsistency on the face of the J&C . . . and . . . to maintain the Court‘s original

sentencing intent back at the time of the sentencing in 2011.‖

Judge Keary also commented that there was ―no reason for the Court to

reconstruct its memory‖ in an on-the-record hearing before a different judge

because her January 18, 2011, oral pronouncement unambiguously revealed her

intent to sentence Mr. Herring to 174 months of incarceration. She explained that

7

her ―continuing intent at the time of the 2014 judgment and commitment order was

not to reduce his sentence, but that he serve the consecutive PFCV sentence that

I had originally imposed and that‘s reflected as well by the lack of change in the

total amount of . . . prison time, the 174 months, which has remained the same

throughout the period of time despite multiple amendments to the judgment and

commitment order.‖

Furthermore, Judge Keary did not view the alteration to the judgment and

commitment order as presenting a double jeopardy issue:

The defendant was tried and convicted by the jury of

these offenses that the Court sentenced him to. I am not

by my action today exposing him to a new risk of

punishment for the same offense, I‘m merely correcting

the error made by my oversight in the amendment of the

judgment and commitment order after the Court of

appeals found that those two counts merged. The court‘s

error, which I acknowledge, does not entitle Mr. Herring

to a windfall of a five year reduction of his sentence.

She held that Mr. Herring ―has had no legitimate expectation of finality‖ in the

April 2014 J&C order, which ―was ambiguous on its face.‖ ―Given the fact that

the judgment and commitment order continued to list 174 months, it‘s difficult to

see how he can assert that he legitimately thought his sentence was 60 months less

8

than that.‖ Judge Keary also noted that the usual practice of courts—and hers—is

to preserve the ―consecutive sentence structure‖ originally imposed. She would

not have reduced Mr. Herring‘s sentence by five years without giving notice to the

parties and without explaining the reduction.

On July 7, 2016, the court issued a new amended judgment and commitment

order which reinstated Count Four—the consecutive PFCV sentence—and

committed Mr. Herring to a total term of incarceration of 174 months. As had

been the case in January 2011, the concurrent and consecutive sentences on the

various counts totaled 174 months.

II. Analysis

The Double Jeopardy Clause of the Fifth Amendment, which provides that

no person shall be ―subject for the same offence to be twice put in jeopardy of life

or limb,‖ is one of the bedrock protections in the Bill of Rights. ―But neither the

Double Jeopardy Clause nor any other constitutional provision exists to provide

unjustified windfalls.‖ Jones v. Thomas, 491 U.S. 376, 387 (1989). In this case

we must decide whether appellant is constitutionally entitled to the relief he

requests or is instead seeking an unjustified windfall.

9

A. The Sentencing Court Did Not Violate the Double Jeopardy Clause

When It Amended the April 2014 J&C Order

i. Appellant Did Not Have a Legitimate Expectation of Finality

Mr. Herring contends that Judge Keary increased his punishment in violation

of the Double Jeopardy Clause when she amended the April 2014 J&C order to

reinstate the PFCV conviction for which he had been given a consecutive sentence.

To determine whether an increased sentence is forbidden by the Double Jeopardy

Clause, we ask whether the defendant had a legitimate expectation of finality in the

length of his previous sentence. (Calvin) Smith v. United States, 687 A.2d 581,

583 (D.C. 1996). This is an objective inquiry. (Derron) Smith v. United States,

984 A.2d 196, 199 n.3 (D.C. 2009).

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

sentence when he begins serving it. See (Calvin) Smith, 687 A.2d at 583.

However, some circumstances undermine a defendant‘s sentencing expectations

even when he has started serving time. For one, if the government is statutorily

authorized to appeal a sentence, a defendant cannot expect ―finality in the original

sentence.‖ See United States v. DiFrancesco, 449 U.S. 117, 139 (1980). Likewise,

10

a defendant who has succeeded in having a conviction set aside on grounds other

than insufficiency of the evidence may be retried and sentenced to a more severe

penalty on that count. See Burks v. United States, 437 U.S. 1, 18 (1978); North

Carolina v. Pearce, 395 U.S. 711, 720 (1969), overruled on other grounds by

Alabama v. Smith, 490 U.S. 794 (1989); see also, e.g., Johnson v. United States,

628 A.2d 1009, 1015 (D.C. 1993). Furthermore, where a defendant succeeds in

getting convictions merged, this court has consistently permitted resentencing on

remaining counts so that the sentencing court may effectuate its original sentencing

plan. See, e.g., Heath v. United States, 26 A.3d 266, 285 (D.C. 2011) (―[W]e

remand the case for the trial court to vacate one of [the merged convictions] and

determine whether resentencing on the remaining counts is necessary to effectuate

its original sentencing plan.‖); Thorne v. United States, 471 A.2d 247, 249 (D.C.

1983) (―[W]e regard remand for resentencing as the appropriate remedy, since it

will allow the trial court to impose sentence knowing that only one of the . . .

convictions is available for sentencing purposes.‖). This is true even when it is

necessary to increase sentences on individual counts in order to maintain the

original sentencing plan.2

2

Other jurisdictions have suggested that a ―defendant‘s legitimate

expectation of finality in [a] sentence . . . may be influenced by many factors such

as the completion of the sentence, the passage of time, the pendency of an appeal

or review of the sentencing determination, or the defendant‘s misconduct in

(continued…)

11

Mr. Herring argues that he had a legitimate expectation of finality once the

court vacated the consecutive sentence on Count Four in favor of the concurrent

sentence on Count Three.3 According to him, this expectation was legitimate

because the sentencing court had the legal authority to vacate Count Four, the

government had no right to appeal the court‘s selection of which duplicative PFCV

count to vacate, the court‘s April 2014 J&C order stood unchanged for two years

before the court notified Mr. Herring of plans to alter it, and there was ―no reason

to believe that Count Four could be reinstated.‖ For its part, the government

maintains that Mr. Herring had no legitimate expectation of finality in the facially

inconsistent April 2014 J&C order.

(…continued)

obtaining the sentence.‖ State v. Hardesty, 915 P.2d 1080, 1085 (Wash. 1996); see

also, e.g., People v. Williams, 925 N.E.2d 878, 887–91 (N.Y. 2010) (barring court

from modifying sentence to include statutorily required period of post-release

supervision where resentencing proceedings occurred after defendants had

completed terms of incarceration and had been released from prison).

3

This first occurred in January 2014, but appellant apparently did not

consider that order to be final because he asked the court to amend it. Indeed, he

feared that the sentence on Count Three would be treated as consecutive because

the court had not designated it as concurrent. We therefore understand appellant to

be relying upon the order issued in April 2014.

12

Proper analysis must start with an understanding of the sentencing court‘s

task at the time Mr. Herring‘s case was remanded from this court. Our November

2013 memorandum opinion and judgment directed ―the trial court to vacate one of

the PFCV convictions‖—but we did not say which. Thus, the court had only two

options available: (1) to vacate Count Three, thus maintaining the court‘s original

sentencing plan, which imposed a total term of 174 months‘ incarceration; or (2) to

vacate Count Four, thereby reducing Mr. Herring‘s total sentence to 114 months.

At that point, Mr. Herring could expect to serve either the sentence on Count Three

or the sentence on Count Four, but not both.

The April 2014 J&C order did not clearly reveal Judge Keary‘s choice

between the two available options. The court simply could not have retained the

PFCV conviction carrying a concurrent sentence and at the same time ―committed

[Mr. Herring] to the custody of the Attorney General to be incarcerated for a total

term of 174 months,‖ as the April order provided. We agree with Judge Keary that

the order is ambiguous on its face.

We reject Mr. Herring‘s argument that the portion of the J&C specifying the

―total term‖ should be disregarded in considering the legitimacy of his post-remand

expectations. First, the ―total term‖ provision—which remained unchanged since

13

the first judgment and commitment order was issued—supplied concrete

information about the court‘s sentencing intent. This court and the Supreme Court

have recognized that when a defendant is found guilty on a multicount

indictment—as Mr. Herring was—trial courts often develop an overarching

sentencing plan, then select sentences on each individual count to achieve that

goal. When a conviction is set aside or vacated, the sentencing court often

reconsiders the allocation of punishment across counts, not its previous

determination of an appropriate aggregate punishment.4 See Dean v. United States,

137 S. Ct. 1170, 1176 (2017) (discussing ―sentencing package‖ doctrine); Kitt v.

United States, 904 A.2d 348, 358 (D.C. 2006) (―presum[ing]‖ that, where two

counts merged, trial court would vacate the concurrent count upon remand ―so as

to preserve the consecutive sentence structure it initially elected to impose‖).5

4

Mr. Herring suggests that Judge Keary‘s mention of her ―usual‖ reliance

on this sentencing practice might constitute impermissible adherence to a uniform

policy. See Houston v. United States, 592 A.2d 1066, 1067 (D.C. 1991) (deeming

it ―improper for the court to refuse to decide [a discretionary] question as a matter

of discretion, but instead purport to be bound by a hard and fast rule‖). Judge

Keary‘s statements in no way displayed a refusal to exercise discretion in

Mr. Herring‘s individual case. She merely acknowledged a sentencing practice—

widely accepted by this court and courts around the country—and explained why

the existence of the practice might undermine Mr. Herring‘s hope that she had

intended to reduce his sentence without saying so.

5

Judge Keary cited Kitt when explaining her decision to amend the April

judgment and commitment order.

14

Second, no reasonable defendant would disregard the incongruity between

the total term and the sentences listed on the face of the judgment and commitment

order. Cf. Gray v. United States, 585 A.2d 164, 166 (D.C. 1991) (―The sentence

from the bench was . . . at least ambiguous, for any reasonable person would have

concluded that the judge did not mean to say what he said.‖); Rich v. United States,

357 A.2d 421, 423 (D.C. 1976) (―The sentence pronounced in open court must be

construed as a whole to determine the court‘s intention.‖). This is to say nothing of

the relative improbability that a sentencing court which had carefully considered

and structured its sentence would suddenly reduce a defendant‘s sentence by five

years, without explaining why, without a motion to reduce sentence having been

filed, and without changing the total term specified on the judgment and

commitment order. Contrary to Mr. Herring‘s contention, given the circumstances,

it would not be ―reasonable and legitimate for any person to look at the amended

2014 J&C, note that Count Four had been removed from under the heading

‗Sentence of the Court,‘ and conclude that the trial court had selected Count Four

as the PFCV count to vacate but failed to update the math at the bottom of the

page.‖ As we have cautioned in the civil context, ―the proper response to a

seemingly ambiguous court order is not to read it as one wishes.‖ Loewinger v.

Stokes, 977 A.2d 901, 907 (D.C. 2009).

15

Mr. Herring relies primarily on United States v. Robinson, 388 A.2d 469

(D.C. 1978); (Calvin) Smith v. United States, 687 A.2d 581; and Borum v. United

States, 409 F.2d 433 (D.C. Cir. 1967), to argue that he had an expectation of

finality in the April 2014 J&C order. None of those cases dictates a result here.

In Robinson the trial court signed and dated an order granting the

defendant‘s motion for reduction of sentence, but ―[t]he order apparently remained

in the court‘s chambers and was never entered on the court jacket, criminal docket

book, or communicated to the parties.‖ 388 A.2d at 470. A week later, the court

signed and dated another order, this time declining to reduce the sentence. Id. The

defendant contended that the later ―order constituted an illegal and unconstitutional

increase in sentence in view of the fact that the [earlier] order‖ granted the sentence

reduction. Id. We agreed that the trial court could not revisit its earlier decision

granting the motion. Id. at 471–72. ―Central to that decision,‖ we later

emphasized, ―was a finding that the modification of the sentence . . . was an

entirely valid and intentional act of the trial judge and not one made unlawfully or

inadvertently.‖ Lindsay v. United States, 520 A.2d 1059, 1062 (D.C. 1987); see

also Robinson, 388 A.2d at 471 (noting that a different judge considering a

D.C. Code § 23-110 motion had found that the sentencing judge intended to reduce

the sentence and had not issued the order inadvertently). Robinson has no bearing

16

on a court‘s ability to correct a sentence which is ambiguous on its face, as is the

situation here.

(Calvin) Smith similarly involved a trial court‘s attempt to revisit an

unambiguous decision it had intentionally made. In that case, the trial court

granted a defendant‘s motion to reduce his sentence, believing that the government

did not oppose it. 687 A.2d at 582. Upon learning that the prosecutor had

previously alerted chambers of his plans to file an opposition, the court vacated its

order reducing the sentence. Id. The court later denied the defendant‘s motion,

―allowing the original sentence to stand unaltered.‖ Id. We held that the

―dispositive consideration‖ was whether the defendant had ―a legitimate

expectation of finality in the sentence‖ once the court granted his motion to reduce

it. Id. at 583. Although the court had made a mistake of fact, ―there [had been] no

irregularity in the signing of the order that can be understood to have undermined

[the defendant‘s] expectation of finality in the sentence,‖ and we held that the

original sentence could not be reinstated. Id. at 586.

Borum is no more helpful to Mr. Herring. In that case, the sentencing judge

neglected to state whether the sentences he imposed were to run concurrently with

or consecutively to other sentences previously imposed. 409 F.2d at 439. Five

17

days later, the judge recalled the defendant to ―clarify‖ that the sentences ―should

run consecutively to those [the defendant] was already serving.‖ Id. at 440.

Applying a presumption that ―absent a specification of consecutiveness, multiple

sentences operate concurrently,‖ the court of appeals held that the trial court had

unlawfully increased the sentence. Id. at 440. Because the sentences were

―operative immediately,‖ id., the presumption had clarified any ambiguity in the

oral pronouncement before the sentencing judge had attempted to explain his

sentences.6 In this case, by contrast, no presumption interceded to give

Mr. Herring a legitimate expectation of finality in the April sentencing order; it

remained ambiguous on its face until the sentencing court amended it.

More on point is David v. United States, 579 A.2d 1172 (D.C. 1990). We

found no double jeopardy problem where a trial court amended a sentence that had

originally stated ―life imprisonment,‖ with a mandatory minimum sentence of five

years, to read ―15 years to life,‖ with a five-year mandatory minimum. Id. at 1173-

74. The defendant argued that the court had ―effectively imposed the mandatory

6

It is noteworthy that Borum would be decided differently today. Shortly

after that decision was issued, Congress enacted D.C. Code § 23-112 (1970),

which reversed this presumption. Bemoaning that the judge‘s sentencing order had

been ―reversed on appeal because the judge had failed to use the magic word

‗consecutively,‘‖ the House Committee Report explained that ―Section 23-112

[wa]s designed to prevent the reoccurrence of the undesirable result in the Borum

case.‖ H.R. Rep. No. 91-907, at 113 (1970).

18

minimum as the discretionary minimum‖ and illegally increased his sentence when

it clarified that it meant to impose a discretionary minimum of fifteen years. Id. at

1175. But we concluded that the court‘s oral pronouncement was ambiguous as to

the minimum sentence imposed. Id. at 1174–75. We explained that, ―[a]lthough

the trial court‘s unspoken intentions are not a consideration in determining what

sentence was imposed when the spoken words are not ambiguous, we will

consider, in ambiguous situations, the trial court‘s intent as further evidence of the

length of the sentence.‖ Id. at 1176 (citation omitted). After considering extrinsic

evidence—including the trial court‘s explanation of why it had altered the initial

order—we were ―able to resolve the ambiguity and thus to determine the length of

the minimum sentence.‖ Id. at 1177.

David teaches that a sentencing court may resolve ambiguity in a prior

sentencing order by referring to the ―entire record,‖ including ―the trial court‘s

intent.‖ Id. at 1176; see also id. (noting that ―the trial court‘s explanation in its

order denying appellant‘s motion to conform the sentence‖ constituted part of the

sentencing record). And it held that the court had sentenced the defendant ―only

once‖; the process of resolving the ambiguity did not implicate his double jeopardy

rights. Id. at 1177.

19

Mr. Herring did not have a legitimate expectation of finality in the

concurrent sentence of sixty months for PFCV listed on the April 2014 J&C order

because it was incompatible with the statement in the same order that the total

sentence was 174 months. One provision or the other was obviously wrong. With

such ambiguity apparent on the face of the sentencing order, he could have only a

faint hope, not a legitimate expectation, that the court had changed its mind about

him and his offenses and elected the more lenient of the two available options for

merging the PFCV convictions. And he is not automatically entitled to the less

severe construction of the unclear judgment and commitment order. See David,

579 A.2d at 1176 (resolving ambiguity in sentence based on the sentencing court‘s

intentions as revealed by the entire record); cf. Bozza v. United States, 330 U.S.

160, 166–67 (1947) (―The Constitution does not require that sentencing should be

a game in which a wrong move by the judge means immunity for the prisoner.‖).

ii. The Sentencing Court Did Not Subject Mr. Herring

to Multiple Punishments

Mr. Herring also asserts that reinstatement of Count Four unconstitutionally

subjected him to multiple punishments for the same offense because he had already

served one PFCV sentence when Judge Keary amended the judgment and

20

commitment order in July 2016. The government contends that this argument is

both legally and factually unsound.

Appellant relies primarily on Ex parte Lange, 85 U.S. (18 Wall.) 163 (1873),

and In re Bradley, 318 U.S. 50 (1943). The basic facts were the same in each case.

A statute provided for alternative punishments of either imprisonment or a fine, but

the trial judge (impermissibly) imposed both sanctions. The defendant paid the

fine and began serving the term of imprisonment. Upon discovering the error, the

trial court sought to vacate the original sentence and to impose only the term of

incarceration. See Lange, 85 U.S. at 164; Bradley, 318 U.S. at 51–52. In both

cases, the Supreme Court determined that the defendant‘s payment had constituted

full performance of one statutorily authorized punishment and ―the power of the

court to punish further was gone.‖ Lange, 85 U.S. at 175–76; see also Bradley,

318 U.S. at 52.

Mr. Herring fails to recognize that the Supreme Court has limited the import

of Lange and Bradley and clarified what interest the bar on multiple punishments is

intended to protect. See United States v. DiFrancesco, 449 U.S. 117, 139 (1980)

(―The holding in Lange . . . [is] not susceptible of general application.‖). In Jones

v. Thomas, 491 U.S. 376 (1989), a defendant was convicted of both attempted

21

robbery and first-degree felony murder based on a single incident. Id. at 378. The

trial court sentenced him to consecutive terms of fifteen years for the attempted

robbery and life imprisonment for the felony murder, specifying that the sentence

for attempted robbery was to run first. Id. Later, however, the state supreme court

concluded that it was improper to impose sentences for both felony murder and the

underlying felony. Id. To correct the defendant‘s sentence, the state court vacated

his attempted robbery conviction and its accompanying fifteen-year sentence. Id.

at 379. Before the Supreme Court of the United States, the defendant argued that

since he had already fully served the fifteen-year sentence at the time the state

court vacated it, he was entitled to immediate release, otherwise he would be

impermissibly subjected to a second punishment. Id. at 382.

The Supreme Court rejected this argument, concluding that the remedy

chosen by the state court did not constitute multiple punishment; after the court‘s

amendment of his sentence, the defendant stood convicted of felony murder alone

and was serving only the sentence for that crime. Id. at 382. Furthermore, the

Court refused to assign any significance to the fact that the sentencing court had

specified that the fifteen-year sentence was to run before the life sentence began.

See id. at 386. It reasoned that ―[t]here [wa]s no indication that the order of the

22

sentences was of the slightest importance to the sentencing judge, and there [wa]s

no reason constitutional adjudication should turn on such fortuities.‖ Id.

The Court also clarified that Lange and Bradley did not stand for ―the

proposition that the Double Jeopardy Clause requires immediate release for the

prisoner who has satisfied the shorter of two consecutive sentences that could not

both lawfully be imposed,‖ calling this ―an overly broad reading of those

precedents.‖ Id. at 382. Instead, the Court explained, ―in the multiple punishments

context, th[e] [Double Jeopardy Clause] interest is ‗limited to ensuring that the

total punishment did not exceed that authorized by the legislature.‘‖ Id. at 381

(quoting United States v. Halper, 490 U.S. 435, 450 (1989)). The double jeopardy

problem in both Lange and Bradley was that by imposing both a fine and a term of

imprisonment when only one or the other was permitted, the trial courts had

exceeded the punishment authorized by the legislature. Id. at 383–84. It would not

have been possible to remedy the error by crediting a fine against time in prison.

Id. at 384.

Mr. Herring‘s argument depends on a notion we have already rejected—that

he had a legitimate expectation that his sentence for PFCV would now be served

concurrently with his sentences for ADW rather than consecutive to those

23

sentences.7 But, as we have already explained, Judge Keary did not impose an

additional or different sentence when she clarified how his one remaining PFCV

sentence was to be served. Nor did she ―exceed, by the device of multiple

punishments, the limits prescribed by the legislative branch of government, in

which lies the substantive power to define crimes and prescribe punishments.‖ Id.

at 381. Consecutive sentences for ADW, PFCV, and obstruction of justice are

authorized by the legislature, as is one sixty-month sentence for PFCV. In sum,

the Double Jeopardy Clause did not preclude the court from reinstating the

consecutive sentence for PFCV.

B. The Judgment and Commitment Order Contained

a Clerical Error Subject to Correction Under Rule 36

7

Appellant‘s contention also depends on a particular ordering of his

sentences. He claims to have completed his PFCV sentence because (1) Count

Three was to be ―served‖ concurrently with his ADW sentences, and (2) Judge

Keary intended that those ADW sentences be served during his first sixty-six

months in prison. But although Judge Keary thoroughly explained her reasons for

imposing an aggregate sentence of 174 months, ―[t]here is no indication that the

order of the sentences was of the slightest importance to [her], and there is no

reason constitutional adjudication should turn on such fortuities.‖ Jones v.

Thomas, 491 U.S. at 386.

24

Criminal Rule 36 provides, in pertinent part, that, ―[a]fter giving any notice

it considers appropriate, the court may at any time correct a clerical error in a

judgment, order, or other part of the record not including the transcript, or correct

an error in the record arising from oversight or omission.‖ Super. Ct. Crim. R. 36.

Neither party disputes that Rule 36 permits a trial court to correct obvious,

uncontroversial errors where the nature of the error and the correction needed are

readily discernible.8 But Mr. Herring asserts that Criminal Rule 36 did not

authorize the sentencing court to modify the April 2014 J&C order ―because the

record failed to establish that the 2014 vacatur was the product of a ‗clerical

error.‘‖ He also suggests that the sentencing judge relied impermissibly on her

own recollections to determine that there was an error and to decide how to correct

it.

i. There Was a Clerical Error on the Face of the

April 2014 Judgment and Commitment Order9

8

See, e.g., Wills v. United States, 147 A.3d 761, 777 n.15 (D.C. 2016)

(labelling of conviction in various docket entries and judgment and commitment

order); Hooker v. United States, 70 A.3d 1197, 1207 (D.C. 2013) (erroneous

offense dates in judgment); Bean v. United States, 409 A.2d 1064, 1067 n.8 (D.C.

1979) (erroneous notation that appellant had entered a guilty plea when there had

in fact been a jury trial).

9

We discuss the April 2014 J&C order because Mr. Herring claims that

order properly recorded his post-remand PFCV sentence and because he contests

the sentencing court‘s amendment of that order. The April 2014 J&C order

(continued…)

25

Black‘s Law Dictionary defines ―clerical error‖ as ―[a]n error resulting from

a minor mistake or inadvertence, especially in writing or copying something on the

record, and not from judicial reasoning or determination.‖ Black’s Law Dictionary

659 (10th ed. 2014). ―The basic distinction between clerical mistakes and [other]

mistakes . . . is that the former consist of blunders in execution whereas the latter

consist of instances where the court changes its mind, either because it made a

legal or factual mistake in making its original determination or because on second

thought it has decided to exercise its discretion in a manner different from the way

it was exercised in the original determination.‖ 46 Am. Jur. 2d Judgments § 142

(2017).

Mr. Herring insists that on this record ―it is impossible to conclude‖ that

there was ―an error at all, much less a ‗clerical error‘ as opposed to a ‗judicial

error.‘‖ His abstract distinction between judicial errors and clerical errors is too

illusory to provide a sufficient test. In a broad sense every mistake on a judgment

(…continued)

replicates one of the clerical errors on the face of the January 2014 J&C order.

But, as we noted above, Mr. Herring apparently did not regard the January order—

which did not indicate whether the PFCV sentence was to run consecutively or

concurrently—as final because he asked the court to amend it. See supra note 3.

26

and commitment order was made by the judge who signed it. In any event, we

disagree that it is ―impossible‖ to determine on this record that there was clerical

error. Indeed, looking only to the face of the April 2014 J&C order, that is the

only reasonable conclusion one could draw.

The internal inconsistency on the face of the order could not have been the

result of a reasoned determination: no sentencing court could have intentionally

retained the concurrent PFCV count instead of the consecutive one if it also

planned to have Mr. Herring incarcerated for a total of 174 months. Either there

was a mistake in listing the sentences count-by-count or an error in recording the

total term of incarceration. Both are clerical in nature. Nothing in the record even

remotely suggests that the sentencing court had intentionally removed one PFCV

count from the order but later changed its mind about which count to vacate.

ii. The Court’s Reliance on the Entire Record

Mr. Herring takes a very narrow view of what evidence the court could

consider in selecting one possible correction (removing the concurrent PFCV count

and reinstating the consecutive one) over the other (changing the total term of

incarceration to 114 months). He asserts that there is ―no contemporaneous record

27

of the trial court‘s intentions [when merging the PFCV convictions] . . . other than

the 2014 J&C alone.‖ He therefore claims that ―the post-remand J&C in this case

is the totality of the trial court‘s sentence‖ and that Rule 36 permits correction only

if we can look ―to the four corners of that document to conclude that the

elimination of Count Four was . . . error.‖

We have not felt bound by such a restrictive notion of relevance in our

decisions applying Rule 36. Errors of the type mentioned in footnote 8, above,

could not have been identified by looking within the four corners of the document

in question, but only by comparing it to other parts of the record. Similarly, in

Bennett v. United States, 620 A.2d 1342 (D.C. 1993), we looked outside the

judgment and commitment order to determine that there had been a clerical error

and how to fix it. The defendant had been convicted of both felony murder while

armed (Count I) and premeditated murder while armed (Count J). After the

convictions had been affirmed on direct appeal, the trial court issued an order

vacating appellant‘s felony murder conviction and sentence. Id. at 1343–44. The

court‘s amended J&C order nevertheless retained the felony murder conviction and

sentence and failed to mention the premeditated murder count. We determined that

the trial court had not unlawfully resentenced the appellant for felony murder, but

rather had ―made a clerical error in transposing Count I and Count J.‖ Id. at 1344.

28

That error was subject to correction under Rule 36, id., even though the court‘s true

intentions could be understood only by reference to other portions of the record.

In Rich v. United States, 357 A.2d 421, a judge orally imposed ―concurrent

sentences, for an indeterminate time under the Youth Corrections Act, [18 U.S.C.

§] 5010(A) [sic], to such time as they determine you would be eligible for parole.‖

Id. at 422. The judge then issued a judgment and commitment order ―which

provided for ‗commitment under 5010(A) of Federal Youth Corrections Act.‘‖ Id.

Later that day—seemingly after recognizing that § 5010 (a) authorized probation,

not incarceration—the judge amended the judgment to read ‗―commitment under

5010(B) of Federal Youth Corrections Act.‘‖ Id. This court rebuffed a claim that

―the original, unamended orders of judgment and commitment correctly reflected

the oral pronouncement of the sentencing judge that appellant would be given

probation under 18 U.S.C. § 5010(a).‖ Id. at 423. ―The sentence pronounced in

open court must be construed as a whole to determine the court‘s intention.‖ Id.

Furthermore, ―the record clearly reveal[ed] the intention of the sentencing judge to

incarcerate, despite the court‘s bare mistaken reference to 5010(a).‖ Id. We

determined that the sentencing court did not err in amending the original judgment

and commitment order under Criminal Rule 36.

29

The lesson of these cases is that a court may consult the record as a whole to

determine whether there has been clerical error. It may even hold additional

proceedings where the existing record is insufficient. Cf. Kennedy v. Reid, 249

F.2d 492, 496–97 (D.C. Cir. 1957) (explaining the process for applying federal

Rule 36 to correct clerical mistakes concerning more than ―purely perfunctory

aspects‖ of an order or judgment).

In this case the record provided significant circumstantial evidence of Judge

Keary‘s intent when merging the PFCV counts. Contrary to Mr. Herring‘s

argument, Judge Keary appropriately considered her carefully crafted 2011

sentencing plan. At the 2011 hearing, she stated her intent to follow the District‘s

Sentencing Guidelines. Judge Keary observed that there were ―three consecutive

counts‖ because of ―the different victims‖ and because the obstruction of justice

count was based on a separate event. Cf. District of Columbia Voluntary

Sentencing Guidelines Manual § 6.1 (May 2010) (―[O]ne crime of violence per

victim per event needs to be sentenced consecutively to the others.‖). Although the

2011 hearing was not contemporaneous with the 2014 merger, it was relevant to

discerning Judge Keary‘s intent at the later time as nothing in the record showed

that she wanted to depart from the original sentencing plan when the court merged

Mr. Herring‘s PFCV counts on remand. We see no reason to ask Judge Keary ―to

30

blind [her] eyes to clear evidence of [her] own intention.‖ Gray v. United States,

585 A.2d 164, 166 (D.C. 1991) (quoting Kennedy, 249 F.2d at 495).

Moreover, Judge Keary did not act impermissibly in considering other

record evidence—including, for example, that there had not been a pending request

to reduce Mr. Herring‘s sentence. And nothing on the record explained why, if

Judge Keary had intended to reduce Mr. Herring‘s sentence in April 2014, she

would have changed her mind in July 2016. Judge Keary could permissibly

consider this evidence in deciding how to fix the clerical error on the face of the

judgment and commitment order.

iii. Judge Keary Did Not Need to Testify

Mr. Herring nevertheless asserts that ―the trial court violated the due process

principles set out in the binding case of Downey v. United States[, 91 F.2d 223,]

when it relied on its own memories, which were never introduced into the record as

evidence, in making the factual finding that the vacatur of Count Four qualified as

a ‗clerical error.‘‖ Judge Keary opined that Downey did not apply because she had

considered only materials in the record and was not reconstructing her own

memory.

31

In Downey, a trial court had sentenced a defendant to four years on each of

three separate indictments for robbery. Id. at 226. But ―the record of the sentences

as entered by the clerk was ambiguous as to whether the sentences were to run

concurrently or consecutively.‖ Id. After four years, the defendant sought release

from prison, contending that he had been sentenced to concurrent four-year terms

and that, to the extent the record of his sentence was ambiguous, uncertainty had to

be ―resolved in favor of liberty.‖ Id. It appears that no transcript of the sentencing

hearing was available.

The government opposed the defendant‘s release, contending that ―the

sentences, as orally uttered by the justice when he imposed them, were

consecutive, not concurrent, sentences, and that therefore the recorded entries

thereof were in clerical error.‖ Id. at 228. Following a hearing, the judge who had

imposed the sentences ordered the record corrected. Id. The judge explained that

―[t]he order correcting the records to show three consecutive terms of four years

has been made in view of my clear and positive recollection that such were the

sentences pronounced by me.‖ Id. n.4. The judge quoted from letters sent to him

by the defendant and others which described the terms of imprisonment as

32

consecutive, but those letters were not introduced in compliance with the rules of

evidence. Id.

The court of appeals concluded that the sentencing order could be altered

―upon a showing of disparity between the record and the truth, and hence upon a

showing of the truth itself.‖ Id. at 230. However, the sentencing judge could not

merely rely on his own recollections or letters not admitted into evidence to

reconstruct what had been stated at the oral pronouncement. ―There [wa]s no

foundation here for reviewing the correctness of the trial justice‘s determination of

the question of fact as to what sentences he uttered four years before the hearing on

the motion.‖ Id. at 231.

But the court ―d[id] not feel bound to go so far as to rule . . . that a record

may not be corrected upon parol evidence or that there cannot be correction after

the term.‖ Id. at 233. Instead, it explained that ―there should be ‗materials in

existence for altering the form of the judgment.‘‖ Id. at 232 (quoting United States

v. Patterson, 29 F. 775, 779 (D.N.J. 1887)). Furthermore, ―where recourse to the

memory of the justice who imposed the sentence is necessary to prove the fact, he

should be heard as a witness, but not as judge and witness both.‖ Id. at 233. The

33

court contrasted the case with situations where the record already contained

sufficient evidence of the true sentence. See id.

This is not a case like Downey where the ―memory of the justice who

imposed the sentence is necessary to prove the fact.‖ Id. As we explained above,

there are ample materials in the record from which to discern Judge Keary‘s intent

at the time she signed the April 2014 J&C order. Cf., e.g., Kennedy, 249 F.2d at

495 (noting that ―[t]here was no lack of ‗materials‘ to establish‖ the sentencing

judge‘s intent (quoting Downey, 91 F.2d at 230)).10 While one of Judge Keary‘s

comments at the July 2016 hearing (―I in too hasty a review of the [J&C order], . . .

failed to notice‖) might be construed as a recollection, it was also a natural

inference from the materials in the record. Under these circumstances, due process

did not require Judge Keary to testify before another judge.

III. Conclusion

10

Mr. Herring relies on Zalmeron v. United States, 125 A.3d 341 (D.C.

2015), to argue that a Downey hearing is required. In Zalmeron, we ―agree[d] that

if the government seeks to present evidence, whether by affidavit or through the

judge‘s own testimony, of the trial judge‘s recollection, Downey requires this to

take place before a different judge.‖ Id. at 348. But we made explicit that

reassignment to another judge would not be required if there was no need to rely

on the trial judge‘s recollection. See id. at 349.

34

There was no double jeopardy bar to reinstating the consecutive sentence for

PFCV, and Criminal Rule 36 provided authority to correct the clerical error. The

judgment of the Superior Court is hereby

Affirmed.