United States v. Nunzio

430 A.2d 1372, 1981 D.C. App. LEXIS 286

• Court: District of Columbia Court of Appeals
• Decided: May 14, 1981
• Docket: 81-84
• Status: Published

Opinions

HARRIS, Associate Judge:

Abdul Hamid, also known as Hilván Jude Finch, was convicted of conspiracy to commit kidnapping while armed, D.C. Code 1973, § 22-105a, assault with a dangerous weapon, id, § 22-502, and eight counts of kidnapping while armed, id, §§ 22-2101, -3202. The charges stemmed from his involvement with eleven other defendants in the takeover of three buildings on March 9, 1977, during which more than 130 persons were held hostage, one person was killed, and several were seriously injured. On September 6, 1977, respondent sentenced Hamid to a term of from 36 to 108 years in prison. We affirmed the convictions. Khaalis v. United States, D.C.App., 408 A.2d 313 (1979), cert. denied, 444 U.S. 1092, 100 S.Ct. 1059, 62 L.Ed.2d 781 (1980). On June 25, 1980, Hamid filed a motion for reduction of sentence under Super.Ct.Cr.R. 35(a). On January 2, 1981, respondent vacated Hamid’s original sentence, suspended execution of sentence, and placed him on probation for five years. On January 8, 1981, respondent vacated the order of January 2 and resentenced Hamid to ten concurrent one-year terms (for each of the ten counts of which he had been convicted), with credit for time served. Consistent therewith, Hamid was released from custody-

The government has petitioned this court for a writ of mandamus directing the trial judge to vacate his order of January 8, 1981, on the ground that he had no authority to act under Rule 35(a), and to reinstate the original sentence. We conclude that the trial judge did act without proper authority, and grant the government’s petition for a writ of mandamus.¹

Rule 35(a) provides in pertinent part:

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.

The clear time limitation contained in the rule is reinforced by Super.Ct.Cr.R. 45(b), which provides that “the court may not extend the time for taking any action under Rule[ ] ... 35, except to the extent and under the conditions stated in [it].” ²

Hamid’s motion for reduction of sentence was timely filed.³ Nonetheless, it is obvious that “[t]he 120-day time limitation of Rule 35 ... by its terms does not apply to the timely filing of motions. It sets a time limit on the power of the court to act.” United States v. Pollack, (D.C.Cir., No. 80-1374, Dec. 24, 1980, slip op. at 4) (emphasis in original). In this case the trial court did not act on Hamid’s motion until January 2, 1981, more than six months after its power to reduce the sentence had expired.

The Supreme Court recently stated that the time period of Rule 35 is jurisdictional and may not be enlarged. United States v. Addonizio, 442 U.S. 178, 189, 99 S.Ct. 2235, 2242, 60 L.Ed.2d 805 (1979). In a unanimous opinion, the Court stated:

[O]nce a sentence has been imposed, the trial judge’s authority to modify it is also circumscribed. Federal Rule Crim. Proc. 35 now authorizes District Courts to reduce a sentence within 120 days after it is imposed or after it has been affirmed on appeal. The time period, however, is jurisdictional and may not be extended. [Id. (footnotes omitted).]

We long have adhered to that view.⁴ Brown v. United States, D.C.App., 411 A.2d 631, 633 (1980); McDaniels v. United States, D.C.App., 385 A.2d 180, 182 (1978); see Franklin v. United States, D.C.App., 293 A.2d 278 (1972).⁵ Moreover, we are obliged to heed the interpretation of Rule 35 expressed by the Supreme Court in Addonizio.⁶ We followed that path in Brown v. United States, supra, as have most courts which have addressed the issue since Addonizio.⁷ United States v. Pollack, supra; United States v. Gonzalez-Perez, 629 F.2d 1081, 1083 (5th Cir. 1980) [without relying on Addonizio but citing Fed.R.Crim.P. 45(b)]; United States v. Hetrick, 627 F.2d 1007, 1011 (9th Cir. 1980) [relying both on Addonizio and on Fed.R.Crim.P. 45(b)]; People v. Nix, 610 P.2d 1088, 1091 (Colo.App. 1980) (without relying on Addonizio); State v. Moses, 227 Kan. 400, 403-404, 607 P.2d 477, 481 (1980) (same).

Consequently, we conclude that the trial court was without authority to grant defendant Hamid’s motion for reduction of sentence once the 120-day time period had expired.⁸ We note that the trial court granted the defendant’s motion in this case based largely upon favorable prison records and the apparently strong indications of Hamid’s rehabilitation. Once sentence has been imposed, however, considerations such as these generally are more properly addressed by the parole authorities, rather than by the sentencing judge. United States v. Addonizio, supra, 442 U.S. at 188-89, 99 S.Ct. at 2242; Brown v. United States, supra, 411 A.2d at 632; Walden v. United States, D.C.App., 366 A.2d 1075, 1077 (1976); Burrell v. United States, D.C.App., 332 A.2d 344, 346, cert. denied, 423 U.S. 826, 96 S.Ct. 42, 46 L.Ed.2d 43 (1975); United States v. Pollack, supra, slip op. at 6.

We question neither the trial judge’s conscientiousness nor his good faith. In that connection, we note that not all avenues for the possible modification of Hamid’s period of incarceration are foreclosed by our interpretation of Rule 35. Under D.C. Code 1973, § 24-201c, the Board of Parole may apply to the sentencing court for the early release of a prisoner upon its determination “that there is a reasonable probability that a prisoner will live and remain at liberty without violating the law, and that his immediate release is not incompatible with the welfare of society.” The Board may apply to the trial court for reduction of a minimum sentence without regard to the 120-day time constraints of Rule 35; the trial court then may act on such an application at any time prior to the expiration of the minimum sentence.⁹

In light of the foregoing, we grant the government’s petition for a writ of mandamus directing respondent (1) to vacate his order of January 8, 1981, which purported to reduce Hamid’s sentence, and (2) to reinstate the original sentence.

So Ordered.

1 . In light of our disposition of the government’s petition for a writ of mandamus, we dismiss its appeal, United States v. Hamid, No. 81-79, from the trial court’s orders.

2 . The sole exception to the 120-day time limitation of Rule 35 is its provision that the court may reduce a sentence upon revocation of probation. See McDaniels v. United States, D.C. App., 385 A.2d 180, 181-82 (1978).

3 . The motion was filed on the 118th day of the relevant 120-day period, making it virtually impossible for it to have been ruled upon with care within 120 days.

4 . As we observed in McDaniels v. United States, supra note 2, some federal circuits have interpreted Rule 35 liberally to allow a court to act upon the motion within a reasonable time beyond the 120-day period if the motion to reduce was filed within the time period. 385 A.2d at 182 n.3.

5 . In Walden v. United States, D.C.App., 366 A.2d 1075 (1976), we affirmed the trial court’s denial of a motion for reduction of sentence over two years after the sentence was imposed. The question whether the trial court could have granted the motion was not before us; accordingly, we do not view Walden as authorizing an extension of time within which the trial court may act. Additionally, while in McDaniels we noted that some circuits had adopted a more liberal interpretation of the rule, we have never stretched the rule beyond its plain meaning in this jurisdiction.

6 . While the Supreme Court’s interpretation is of Fed.R.Crim.P. 35, Super.Ct.Cr.R. 35(a) is identical to its federal counterpart and is to be construed in light of the interpretation given to the latter. McDaniels v. United States, supra, 385 A.2d at 181 n.2; Walden v. United States, supra note 5, 366 A.2d at 1077 n.1. See Campbell v. United States, D.C.App., 295 A.2d 498, 501 (1972).

7 . The Third Circuit has chosen neither to follow nor to acknowledge Addonizio. See United States v. Johnson, 634 F.2d 94, 95 n.1 (3d Cir. 1980); Government of Virgin Islands v. Gereau, 603 F.2d 438, 442 n.2 (3d Cir. 1979). We are not constrained to follow its interpretation in any event, in part since an opinion in our own circuit views Addonizio as casting doubt on the validity of the interpretation espoused by the Third Circuit. See United States v. Pollack, supra, slip op. at 6-7.

8 . The difficulties which our dissenting colleague finds in a strict interpretation of Rule 35(a) are obvious, but are consistent with the logical premise that a sentencing judge’s control over a defendant’s time of incarceration is to be limited in duration. Any modification of Rule 35(a) should be achieved by amendment, rather than by disregarding its clear language.

9 . Section 24-201c is subject to certain restrictions not applicable to Hamid. See D.C. Code 1973, § 24-203(b).