United States v. Hamid

461 A.2d 1043, 1983 D.C. App. LEXIS 397

• Court: District of Columbia Court of Appeals
• Decided: June 2, 1983
• Docket: 81-1294
• Status: Published

Opinions

NEBEKER, Associate Judge:

The government appeals a reduction of sentence entered after a finding of Sixth Amendment ineffectiveness of counsel in filing the motion two days before the expiration of the time specified in Rule 35. We hold that the trial court’s action was based on an erroneous premise and is otherwise unsupported. We reverse.

Abdul Hamid, also known as Hilván Jude Finch was charged and convicted of multiple offenses stemming from his involvement in the March 1977 “Hanafi” takeover of the B’nai B’rith Headquarters. His sentence of 36 to 108 years was affirmed by this court in Khaalis v. United States, 408 A.2d 313 (D.C.1979), cert. denied, 444 U.S. 1092, 100 S.Ct. 1059, 62 L.Ed.2d 781 (1980). A motion for reduction of sentence under Super.Ct.Crim.R. 35¹ was filed 118 days after the trial court received the mandate affirming his conviction. The trial court granted this motion over six months later. In United States v. Nunzio, 430 A.2d 1372 (D.C.1981), we reinstated Hamid’s original sentence after holding that the 120-day time limit embodied in Rule 35 was jurisdictional, and, therefore, the trial court was without authority to grant Hamid’s motion for reduction of sentence once that time period had expired. Hamid, through new court-appointed counsel, then filed a motion to vacate sentence under D.C.Code § 23-110 (1981) asserting that his previous counsel had rendered constitutionally ineffective assistance by filing his Rule 35 motion too late for the trial court to rule within the 120-day limit, and that this ineffectiveness denied him his opportunity to have his Rule 35 motion considered and thus deprived him of due process of law. The trial court granted this motion, concluding that the filing of the Rule 35 motion on the 118th day was “per se” ineffective assistance of counsel. The trial court then reduced Ham-id’s sentence to time served.

We hold that the Sixth Amendment right to the effective assistance of counsel does not apply to the post-conviction process in seeking a reduction of sentence. Having no constitutional right to counsel, Hamid could not be deprived of effective assistance of counsel in the filing of his Rule 35 motion. Additionally, Hamid was not deprived of due process of law.

The right to request a reduction in sentence is not a right of sufficient substance to trigger the Sixth Amendment. Burrell v. United States, 332 A.2d 344 (D.C.), cert. denied, 423 U.S. 826, 96 S.Ct. 42, 46 L.Ed.2d 43 (1975). See Ross v. Moffitt, 417 U.S. 600, 94 S.Ct. 2437, 41 L.Ed.2d 34 (1974) (a criminal defendant does not have a constitutional right to counsel to pursue discretionary state appeals or applications for Supreme Court review). Rather, a Rule 35 reduction motion is simply a plea for leniency addressed to the trial court’s discretion. Walden v. United States, 366 A.2d 1075, 1077 (D.C.1976); Burrell v. United States, supra, 332 A.2d at 346. Having no constitutional right to counsel for these purposes, the inquiry and determination as to his effectiveness was an irrelevancy and thus was an improper predicate for any relief. Wainwright v. Torna, 455 U.S. 586, 102 S.Ct. 1300, 1301, 71 L.Ed.2d 475 (1982).²

Our concurring brother says due process requires counsel and, once required, his performance should be measured by Sixth Amendment standards of effectiveness. The cases he cites involve a criminal trial, appeal of right, revocation of liberty or child custody, and prisoner challenge to a conviction or confinement. None carry their persuasiveness or logic into the post-trial or pos1>appeal process respecting the reduction of sentence by grace. The dictum in Burrell v. United States, supra, to which our brother clings seems particularly sapped of vigor given Ross v. Moffitt, supra and Wainwright v. Torna, supra.

Appellant had no right to counsel in the proceedings aimed at reduction of sentence. The inquiry by the trial court and its holding respecting the adequacy of counsel’s performance in those proceedings was legally irrelevant.

Reversed and remanded with instruction to reinstate the sentence.

1 . Super.Ct.Crim.R. 35 provides in pertinent part:

(b) REDUCTION OF SENTENCE. The Court may reduce a sentence within 120 days after the sentence is imposed, or within 120 days after receipt by the Court of a mandate issued upon affirmance of the judgment or dismissal of the appeal, or within 120 days after entry of any order or judgment of the Supreme Court denying review of, or having the effect of upholding, a judgment of conviction.

2 . Given the jurisdictional phrasing of Fed.R. Crim.P. 35 since its original adoption and the not surprisingly flat statement of the Supreme Court in 1979 in United States v. Addonizio, 442 U.S. 178, 189, 99 S.Ct. 2235, 2242, 60 L.Ed.2d 805, that the time period “may not be extended” it is bootless for the concurrence to take on our Nunzio decision as containing inaccurate dicta. This court in Nunzio followed Addonizio and did not violate our rule of precedent announced in M.A.P. v. Ryan, 285 A.2d 310 (D.C.1971).