Newton v. United States

PRYOR, Senior Judge:

After a trial by jury, appellant was convicted in October 1985 of distribution of PCP and marijuana in violation of provisions of D.C.Code § 33-541(a)(l) (1988 Repl.). Prior to sentencing, appellant wrote to the presiding judge expressing dissatisfaction with his counsel. 1 The judge appointed a different attorney for appellant, directed him to file a motion in this regard prior to sentencing, and ordered the government to file a response. On the day of sentencing, appellant had failed as yet to file the motion; therefore, there was no need for the government to respond as the court had ordered, 2 and appellant’s pro se motion was dismissed as prematurely filed. Appellant was sentenced to not less *333 than twenty, nor more than sixty months of incarceration for distribution of PCP. He was given a ninety day concurrent sentence for the marijuana offense.

After sentencing, appellant filed a motion, pursuant to D.C.Code § 23-110 (1989), to vacate his convictions and for a new trial, alleging ineffective assistance of counsel. If the court cannot dispose of appellant’s motion solely on the record, D.C.Code § 23-110(c) provides that the court must cause notice to be served on the government and grant a prompt hearing. 3 Absent action by the court in compliance with the statute, the government was not obliged to file a response, and accordingly, did not do so. Appellant, nevertheless, filed a Motion to Treat the § 23-110 Motion as Conceded, and the trial court, erroneously believing that it had served notice upon the United States Attorney’s Office pursuant to the statute, 4 concluded that the government, in its silence, was conceding the motion. The court then mistakenly granted appellant’s motion, ordered a new trial, and released appellant pending the new trial. A few days later, asserting that the court had not requested a response as required by statute before acting on the post-sentencing motion, the government filed a Motion to Reconsider and to Vacate the order granting a new trial.

Thereafter, the court, without a hearing, granted the government’s motion to vacate the May 19th order, and ordered a hearing on the merits of the § 23-110 motion. (Order of January 19,1988.) Appellant’s counsel filed motions to stay further execution of the sentence and further proceedings pending appeal to this court. At a subsequent hearing, the trial court denied the motions to stay and began a hearing on the merits of the claim of ineffective assistance of counsel. Appellant was not returned to custody and was not present at the hearing. His counsel declined to participate, contending the court was without jurisdiction to conduct the hearing because (1) the court’s May 19th order granting a new trial was a final order subject only to appellate review, and (2) appellant was not “in custody” within the meaning of the statute. The judge heard evidence from the government on the merits of the ineffective assistance charge and denied appellant’s § 23-110 motion. 5

This appeal arises from the court’s order granting the government’s Motion to Reconsider and Vacate the initial order granting relief. We affirm.

We sketch the procedural history of this case in some detail because the circumstances leading to this appeal are unusual and hopefully rare. The trial judge, in this instance, was addressing a collateral attack to appellant’s convictions, an area which is becoming increasingly familiar to trial and appellate judges. In considering appellant’s motion, the judge was, of course, governed by our statute, D.C.Code § 23-110, which provides in pertinent part:

§ 23-110. Remedies on motion attacking sentence.

(a) A prisoner in custody under sentence of the Superior Court claiming the right to be released upon the ground that (1) the sentence was imposed in violation of the Constitution of the United States or the laws of the District of Columbia, (2) the court was without jurisdiction to impose the sentence, (3) the sentence was in excess of the maximum authorized by law, (4) the sentence is otherwise subject to collateral attack, may move the court to vacate, set aside, or correct the sentence.

(b) A motion for such relief may be made at any time.

*334 (c) Unless the motion and files and records of the case conclusively show that the prisoner is entitled to no relief, the court shall cause notice thereof to be served upon the prosecuting authority, grant a prompt hearing thereon, determine the issues, and make findings of fact and conclusions of law with respect thereto_

(d) A court may entertain and determine the motion without requiring the production of the prisoner at the hearing.

jH sjc * * * *

In the trial court and in this court, appellant argues that the issuance of the unopposed order vacating appellant’s convictions and granting a new trial, rendered the trial judge without authority or jurisdiction to take further action. Relying on language in the statute, appellant also urges that once he was released, he was no longer “a person in custody under sentence.” It has never seriously been argued in this case that the order granting collateral relief was anything more than a response to what the court thought at the time to be an unopposed motion ripe for resolution without further notice as required by D.C.Code § 23-110(c). Thus, we believe the critical question we address is whether, under the circumstances, the trial judge could vacate a procedurally incorrect order entered by mistake or inadvertence.

Wé start with a premise, bottomed on necessity, that courts generally take care to avoid inadvertent or mistaken orders. Nonetheless, some instances will arise. In this case, once the trial court realized that, pursuant to § 23-110(c), it was the court’s obligation to serve notice on the government, the court sought to correct its erroneous order — an action which appellant now challenges. In our review of the trial court’s corrective action, the government urges us to follow the model of some federal courts, which deem a collateral attack upon a criminal conviction an independent civil action. See Heflin v. United States, 358 U.S. 415 , 418 n. 7, 79 S.Ct. 451 , 453 n. 7, 3 L.Ed.2d 407 (1959); United States v. Somers, 552 F.2d 108 , 113 n. 9 (3d Cir.1977); Ferrara v. United States, 547 F.2d 861, 862 (5th Cir.1977). In taking this approach, Fed.R.Civ.P. 60 has been invoked to address a problem of this nature. The government argues that the District of Columbia’s identical rule, Super.Ct.Civ.R. 60, may be applied to cases such as this which would allow the trial judge to reconsider a final order. This rule (Super.Ct.Civ.R. 60(a) & (b)) provides in pertinent part:

Clerical mistakes in judgments, orders ... and errors therein arising from oversight or omission may be corrected by the court at any time of its own initiative or on the motion of any party.... On motion ... the Court may relieve a party from a final judgment, order, or proceeding [for] ... mistake, inadvertence, surprise, or excusable neglect....

However, we do not take this occasion to adopt this approach. Rather, we reiterate and rely upon the rationale that a trial court has “inherent power to correct its record so as to reflect the truth and insure that justice be served.” Rich v. United States, 357 A.2d 421, 423 (D.C.1976). 6

In Lindsay v. United States, 520 A.2d 1059 (D.C.1987), we affirmed the trial court’s action reinstating a conviction and reimposing sentence after both had been set aside based on a procedural flaw involving an erroneous probation report. 7 520 *335 A.2d at 1063 . We found no implication of Constitutional double jeopardy concerns and rejected the “ ‘doctrine that a prisoner, whose guilt is established by a regular verdict, is to escape punishment altogether because the Court committed an error’ ” or that “ ‘a wrong move by the judge means immunity for the prisoner.’ ” Id. at 1064 (quoting Bozza v. United States, 330 U.S. 160, 166-67 , 67 S.Ct. 645, 649 , 91 L.Ed. 818 (1947)). The Supreme Court also favors giving trial courts the opportunity to correct their own errors, and points out that courts, by so doing, prevents unnecessary burdens on courts of appeals. 8 See United States v. Ibarra, — U.S.-,-, 112 S.Ct. 4, 6 , 116 L.Ed.2d 1 (1991).

In the instant case, the trial court set aside a procedural flaw involving an order entered inadvertently and on the mistaken assumption that appellant’s motion had been conceded by the government. We think it serves no meaningful purpose to hold that the trial court was powerless to vacate such a pro forma order. Were we to deny the court the power to correct purely administrative or procedural mistakes, appellant would be the recipient of an undeserved windfall. See Christian v. State, 309 Md. 114 , 522 A.2d 945, 949 (1987).

The order, however, in this case was twofold. It not only set aside appellant’s convictions, but also directed a new trial. These rulings are interwoven. Except for outright dismissal of the charges, vacated convictions are generally accompanied by the grant of a new trial. Courts have not been uniform as to the finality of an order granting a new trial. 9 In English v. State, 592 S.W.2d 949 (Tex.Crim.App.) (en banc), cert. denied, 449 U.S. 891 , 101 S.Ct. 254 , 66 L.Ed.2d 120 (1980), the court held that the action of a motions judge when he mistakenly signed an order granting the appellant a new trial, thinking it was a motion to amend a motion for a new trial, was “akin to a clerical error” that could also be corrected. Id. at 955-56. See also Moore, supra, 749 S.W.2d at 58; Ex parte Drewery, 677 S.W.2d 533, 536 (Tex.Crim.App.1984) (en banc); Matthews v. State, 40 Tex. Crim. 316 , 50 S.W. 368 (App.1899). In the instant case, we find the trial court’s vacating of appellant’s conviction and granting of a new trial, based on the mistaken belief that it could be treated as conceded, so interrelated as to be regarded as a unitary error which warrants correction in the interest of justice. 10

Accordingly, we hold that the trial judge did not err in vacating its initial order and *336 this, of course, includes rescinding the grant of a new trial.

So ordered.

. Appellant's pro se letter claiming ineffective assistance of counsel was written subsequent to trial but prior to sentencing; thus it is properly treated as filed pursuant to Super.Ct.Crim.R. 33 rather than D.C.Code § 23-110 which "only authorizes a motion ‘to vacate, set aside, or correct [a] sentence.’" Johnson v. United States, 585 A.2d 766 , 769 and 769 n. 3 (D.C.1991) (emphasis added).

. Service of the motion upon opposing counsel is provided for by rule, and absent a response, the court may treat the motion as conceded. (Super.Ct.Crim.R. 47-I(a-c)).

. The statute provides in pertinent part that ”[u]nless the motion and files and records of the case conclusively show that the prisoner is entitled to no relief, the court shall cause notice thereof to be served upon the prosecuting authority.” D.C.Code § 23-110(c).

. D.C.Code § 23-110(c). The court at a later hearing acknowledged as much.

.The government presented testimony from the arresting officers and appellant's trial counsel refuting appellant’s claim. At the conclusion of the hearing the court found no basis for the allegation of ineffective assistance of counsel and denied appellant’s motion for a new trial.

. We cannot agree with our concurring colleague that Rich involved a strictly clerical error and thus, is not analogous to this case. In Rich , the trial court apparently believed that a sentence under 18 U.S.C. § 5010 (a) was an incar-cerative sentence. Based on that mistake, the trial court orally pronounced a 5010(a) sentence and entered a written judgment and commitment order to that effect. 357 A.2d at 423 . Although the trial court’s intention to incarcerate the defendant in Rich was discernible from the record, it was not strictly a clerical error. Thus, this court recognized the inherent power of the court to correct the mistake in the interests of justice. Id. It is that rationale we employ here in reaching our decision.

. This court has also allowed a trial judge to correct an illegal sentence after final judgment of a conviction and sentence. In Byrd v. United States, 487 A.2d 616 (D.C.1985), we held that a court’s sua sponte vacating the original sentence which proved to be illegal and resentencing the defendant to a longer incarceration was valid. *335 487 A.2d at 617 . See also Gray v. United States, 585 A.2d 164 (D.C.1991); Stewart v. United States, 439 A.2d 461 (D.C.1981); Christopher v. United States, 415 A.2d 803 (D.C.1980).

Although there was no illegality in the instant case, these decisions lend support to the principle that the court may correct its own mistakes.

. This is a presumed benefit which we also favor.

. Some states have held once a new trial is granted, absent a clerical error, it is a final order that cannot be rescinded. See Moore v. State, 749 S.W.2d 54, 58 (Tex.Crim.App.1988). Others have held that a trial court may reconsider its order granting or denying a new trial, under certain circumstances. See United States v. Miller, 869 F.2d 1418, 1421 (10th Cir.1989) (motion to reconsider allowed if timely filed); United States v. Doherty, 675 F.Supp. 726, 729 (D.Mass.1987), cert. denied, 492 U.S. 918 , 109 S.Ct. 3243 , 106 L.Ed.2d 590 (1989) (motion to reconsider denial of new trial allowed for intervening change in law when filed prior to final judgment); United States v. Spiegel, 604 F.2d 961, 971 (5th Cir.1979), cert. denied, 446 U.S. 935 , 100 S.Ct. 2151 , 64 L.Ed.2d 787 (1980) (trial court had jurisdiction and discretion to reconsider grant of new trial where motion to reconsider was filed within statutory period even where movant’s brief was late). Courts in Maryland allow reconsideration of an order granting or denying a new trial even where the first order was the result of a determination on the merits. The trial court must reconsider, however, within the term of court or if it is a collateral order issued prior to entry of final judgment. See Christian, supra, 522 A.2d at 949 ; Williamson v. State, 25 Md.App. 338 , 333 A.2d 653 (1975).

.In this case, the motion to reconsider which resulted in the vacation of the prior order was filed only two days after the original order. We agree with our concurring colleague that there is no impediment to correction of the earlier order on these facts. We need not decide whether the trial court can correct similar errors upon motions filed after the expiration of the time on noting an appeal because those facts are not before us.