O'DELL v. United States

221 A.2d 443, 1966 D.C. App. LEXIS 197

• Court: District of Columbia Court of Appeals
• Decided: July 14, 1966
• Docket: 3908
• Status: Published

Opinions

HOOD, Chief Judge.

Appellant, together with four other defendants, was charged with assault.¹ A jury found appellant guilty but acquitted the others. The only claim of error relates to the legality of the procedure at time of sentencing. The record shows that immediately after the return of the verdict, the following occurred:

“THE COURT: With respect to the defendant O’Dell — which one is O’Dell? The others may step back and the two in custody will be released.

“MR. GARBER: Your Honor, I would like to ask if you would refer this matter for pre-sentence investigation?

“THE COURT: Do you want to say anything?

“MR. O'DELL: No, sir.

“THE COURT: Three hundred and sixty days.”

It is appellant’s contention' that the trial court effectively denied him the right to have his counsel speak on his behalf prior to imposition of sentence. We agree.

It should be noted we are not here dealing with the right of allocution.² Appellant was afforded that right — the right to personally make a statement to the court prior to sentencing — but he declined to exercise it. He preferred that his counsel speak for him, but his counsel was not given that opportunity. Instead of replying to counsel’s request for pre-sentence investigation, the court asked appellant if he wished to say anything and when appellant replied in the negative, sentence was immediately imposed.

“The right to effective assistance of counsel at the sentencing stage of the proceeding is guaranteed by the Constitution.” Gadsden v. United States, 96 U.S.App.D.C. 162, 165, 223 F.2d 627, 630 (1955). Mere presence of counsel is not enough. At sentencing there is “a real need for counsel. * * * Then is the opportunity afforded for presentation to the Court of facts in extenuation of the offense, or in explanation of the defendant’s conduct; to correct any errors or mistakes in reports of the defendants’ past record; and, in short, to appeal to the equity of the Court in its administration and enforcement of penal laws.” Martin v. United States, 182 F.2d 225, 227 (5th Cir. 1950), cert. denied 340 U.S. 892, 71 S.Ct. 200, 95 L.Ed. 647, 20 A. L.R.2d 1236, quoted in Gadsden, supra.

Although on allocution the defendant may “with halting eloquence, speak for himself,” Green v. United States, 365 U.S. 301, 304, 81 S.Ct. 653, 5 L.Ed.2d 670 (1961), nevertheless his counsel “is often better able than defendant himself to bring before the court statements concerning defendant, his prior record, his family, his environment, and facts germane to the mitigation of his punishment.” Opinion of Judges Miller and Bastian in Couch v. United States, 98 U.S.App.D.C. 292, 298, 235 F.2d 519, 525 (1956).

It will not do to say that counsel should have sought to speak for defendant after sentence had been imposed, for it is obvious that the burden on counsel after imposition of sentence is much heavier than that before imposition.

The judgment of conviction is affirmed, the sentence is vacated, and the case is remanded for resentencing after affording counsel an opportunity to speak in mitigation of punishment.

1 . The assault was unprovoked, was of a vicious character and caused serious injury to the complaining witness.

2 . See Green v. United States, 365 U.S. 301, 81 S.Ct. 652, 5 L.Ed.2d 670 (1961).