Ventetoulo v. Attorney General RI

• Court: Court of Appeals for the First Circuit
• Decided: October 6, 1993
• Docket: 93-1002
• Status: Published

Opinion

USCA1 Opinion

UNITED STATES COURT OF APPEALS
                                FOR THE FIRST CIRCUIT
                                 ____________________

        No. 93-1002

                                     FRED DeWITT,

                                Petitioner, Appellee,

                                          v.

                         DONALD VENTETOULO, ACTING DIRECTOR,
                       ADULT CORRECTIONAL INSTITUTION, ET AL.,

                               Respondents, Appellees,

                                 ___________________

                          ATTORNEY GENERAL OF RHODE ISLAND,

                                      Appellant.

                                 ____________________

APPEAL FROM THE UNITED STATES DISTRICT COURT

                           FOR THE DISTRICT OF RHODE ISLAND

                     [Hon. Francis J. Boyle, U.S. District Judge]
                                             ___________________

                                 ____________________

                                        Before

                         Selya, Cyr and Boudin, Circuit Judges
                                                ______________

                                 ____________________

            Annie Goldberg,  Assistant Attorney  General, Appellate  Division,
            ______________
        with  whom Jeffrey  B.  Pine,  Attorney  General,  was  on  brief  for
                   _________________
        appellant.
            David A.  Schechter with whom Margaret-Mary  Hovarth was on  brief
            ___________________           ______________________
        for appellee. 

                                 ____________________

                                   October 6,  1993
                                 ____________________

BOUDIN,  Circuit Judge.   The  district court  granted a
                          _____________

            writ of habeas  corpus, which it stayed pending  this appeal,

            ordering  the  release from  state  imprisonment  of Fred  E.

            DeWitt.   The  basis for  the writ  was the  district court's

            decision that  Rhode Island  had acted unconstitutionally  in

            increasing DeWitt's  sentence and reimprisoned him  after his

            release on  parole.    We agree  with  the  district  court's

            decision and affirm.

                                          I.

                 The constitutional  issue in this case  arises under the

            Due  Process Clause  of the  Fourteenth  Amendment.   In some

            areas,  such as  search  and seizure,  due  process has  been

            reduced to detailed  and nearly mechanical  rules.  In  other

            areas, the  precepts are  very general, and  everything turns

            upon the circumstances.   The  issue here is  of this  latter

            type,  and so  we  begin  with  a  complete  account  of  the

            procedural history of this case.

                 On March 17,  1978, after  a trial by  jury, DeWitt  was

            convicted in Rhode Island  Superior Court of robbery, assault

            with intent to murder,  and arson.  These menacing  labels do

            not  convey  the  full  measure  of  DeWitt's  evil  conduct.

            According to  testimony given  by  the victim,  a woman  then

            about  67, DeWitt broke into her home while carrying a knife,

            struck her  with his hand and  with a hammer,  engaged in one

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brutal  act  after another,  and  then bound  and  gagged the

            victim and set fire to her apartment.  

                 The  superior court  imposed on  DeWitt a  life sentence

            which meant  under Rhode Island law that  parole was possible

            but not  for a minimum of 10 years.  DeWitt began serving his

            sentence in 1978 and  in 1980 his conviction was  affirmed by

            the  Rhode Island Supreme Court.   State v.  DeWitt, 423 A.2d
                                               _____     ______

            828 (R.I. 1980).  Then, in the following year, DeWitt came to

            the aid  of  a prison  guard who  was being  assaulted by  an

            inmate,  and  DeWitt later  testified  for the  state  in the

            prosecution of  the inmate.   There is  some suggestion  that

            DeWitt, not surprisingly,  may have suffered at  the hands of

            other inmates on account of his rescue efforts.

                 In recognition  of these efforts, the  superior court on

            June 25, 1981, held a hearing and entered an order suspending

            all but 15 years of DeWitt's life sentence and providing that

            he would be placed on probation for 20 years from the time of

            his future release, whenever  that occurred.1  This shortened

            the minimum period before  DeWitt could seek parole,  but six

            years   remained  before  DeWitt's   parole  application  was

            granted.   In  the meantime,  in mid-1983,  the Rhode  Island

            Supreme Court decided State v. O'Rourke, 463 A.2d 1328  (R.I.
                                  _____    ________

____________________

                 1This revised sentence was imposed  under Rule 35 of the
            Rhode Island Rules of  Criminal Procedure which permitted the
            court  to correct illegal sentences at any time and to reduce
            sentences  within 120 days of either conviction or receipt of
            mandate affirming the conviction.  

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                                         -3-

1983), holding that the superior court  could not "suspend" a

            sentence once a defendant had begun to serve it.2

                 Between  1983 and  1987,  the state  apparently made  no

            effort to have the superior court undo its partial suspension

            of DeWitt's life sentence.  Instead DeWitt continued to serve

            his  sentence,  pursued  education and  training  courses  in

            prison, and applied  several times for  parole.  Finally,  in

            January  1987, DeWitt  was granted  parole and  released from

            prison.  We are told by the state that this occurred about 16

            months before the  earliest date on  which DeWitt would  have

            been eligible  for  parole if  held  under a  life  sentence.

            Thus,  despite  O'Rourke  the prison  and  parole authorities
                            ________

            continued to  treat DeWitt  as  if the  order suspending  his

            sentence in part was still in force.

                 During the eight months following his release in January

            1987, DeWitt obtained work, beginning a painting business and

            then  a siding business.   He  resumed his  relationship with

            family  members and  his  girlfriend.    He  also  rented  an

            apartment  but  moved  out   after  a  disagreement,   DeWitt

            believing that the landlord was billing the entire building's

            utilities to DeWitt's  meter.  It was  this latter occurrence

____________________

                 2The  court ruled that a state statute, R.I. Gen. Laws  
            12-19-10, forbad  such suspensions and had  not been modified
            in this regard by Rule 35.   O'Rourke, 463 A.2d at 1331.   It
                                         ________
            appears that  the superior court  judge in DeWitt's  case was
            not alone in  assuming, prior to O'Rourke, that  a suspension
                                             ________
            power did exist under Rule 35. 

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that  began  the  chain of  events  leading  to this  appeal.

            According   to  DeWitt,   he  later   returned  to   his  old

            neighborhood  to visit a friend, was invited in by his former

            landlord,  and was  then  attacked by  the allegedly  drunken

            landlord  and  his wife  with knives.    In the  turmoil, the

            landlord and his wife were injured.

                 The landlord's  version clearly differed, for  the state

            began  criminal  proceedings  against  DeWitt  based  on  the

            incident.   The state also  took steps to  re-imprison DeWitt

            based  on his  1978  conviction,  but  it  did  not  use  the

            customary  method  of  seeking   to  revoke  his  parole  for

            violation of the good behavior  conditions.  Instead, after a

            hearing on September 21, 1987, the superior court vacated its

            earlier June 1981  order that had suspended  in part DeWitt's

            original life sentence; the  court's ruling was that O'Rourke
                                                                 ________

            showed that the original  suspension order had been improper.

            DeWitt  is currently being  held in  prison pursuant  to that

            reimposed life sentence.

                 The rest of  the procedural story  can be briefly  told.

            At  some point after September 1987 DeWitt was tried on state

            charges growing out of the  knife incident with his landlord,

            and  DeWitt  was acquitted  by the  jury.   In  January 1988,

            DeWitt made  a new motion  under Rule  35 to  alter his  life

            sentence.  The superior court denied the motion  as untimely.

            An appeal followed, challenging  both the reimposition of the

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life sentence and the denial of the new Rule 35  motion.  The

            Rhode Island  Supreme  Court rejected  the  first  challenge,

            including DeWitt's express claim that the reimposed  sentence

            violated the Due Process  Clause.  State v. DeWitt,  557 A.2d
                                               _____    ______

            845 (R.I.  1989).  The court ruled that the Rule 35 claim was

            timely, but, on remand, the superior court denied the Rule 35

            motion on the merits and no appeal was taken.

                 On December  11, 1990, DeWitt filed  his habeas petition

            in  the district  court.   The  district  court conducted  an

            evidentiary  hearing, adducing  many of  the facts  set forth

            above.   On  October 20,  1992, the  district court  issued a

            memorandum  and  order granting  the  habeas  petition.   The

            district  court's  judgment,  which it  stayed  pending  this

            appeal, was entered on December 10, 1992.

                 Judge Boyle's decision granting DeWitt's habeas petition

            relied  directly upon the Due  Process Clause as construed by

            this court in  Breest v.  Helgemoe, 579 F.2d  95 (1st  Cir.),
                           ______     ________

            cert.  denied, 439 U.S. 933 (1978).  There, this court stated
            _____________

            that "the power  of a  sentencing court  to correct  [upward]

            even a statutorily  invalid sentence must be subject  to some

            temporal  limit"  and  that  in  some  circumstances  such  a

            correction "might be fundamentally unfair, and thus violative

            of due  process  . .  . ."   Id.  at  101.   After a  careful
                                         ___

            analysis  of the  present facts,  Judge Boyle  concluded that

            fundamental unfairness did  exist here, especially  given the

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state's  failure  to  take any  steps  to  reimpose the  life

            sentence  in  the four  years  after  O'Rourke  and prior  to
                                                  ________

            DeWitt's release.  The state then brought this appeal.

                                         II.

                 There is  no surer recipe  for confusion than  to answer

            two different questions at the same time.  Thus, in assessing

            DeWitt's due process claim, we put to one side for the moment

            the fact  that  DeWitt may  have violated  the good  behavior

            conditions attached to his parole.  Instead, we ask whether--

            assuming  arguendo that  no  parole  violation  occurred--the
                      ________

            superior court was nevertheless  entitled six years after the

            event to correct its earlier mistaken grant of Rule 35 relief

            and to reimpose the original life sentence.

                 The Constitution contains no general rule that prohibits

            a  court from increasing an earlier  sentence where the court

            finds  that it was erroneous  and that a  higher sentence was

            required by law.   On  the contrary, this  has occurred,  and

            been upheld against constitutional  or other challenges, in a

            number of cases including Breest itself.3   And in principle,
                                      ______

____________________

                 3See, e.g., United States  v. DiFrancesco, 449 U.S. 117,
                  _________  _____________     ___________
            133-34 (1980); United  States v. Rico, 902 F.2d 1065, 1068-69
                           ______________    ____
            (2d Cir.), cert. denied, 111 S. Ct. 352 (1990); United States
                       ____________                         _____________
            v.  Cook, 890 F.2d 672,  675 (4th Cir.  1989); Littlefield v.
                ____                                       ___________
            Caton, 856 F.2d 344, 348-49 (1st Cir. 1988); United States v.
            _____                                        _____________
            Ortega,  859 F.2d 327, 334 (5th Cir. 1988), cert. denied, 489
            ______                                      ____________
            U.S. 1027  (1989); United States  v. Villano, 816  F.2d 1448,
                               _____________     _______
            1451 (10th Cir. 1987); Lerner v. Gill, 751 F.2d 450, 458 (1st
                                   ______    ____
            Cir.),  cert. denied, 472 U.S. 1010  (1985); United States v.
                    ____________                         _____________
            Lundien,  769 F.2d 981, 986-87 (4th Cir. 1985), cert. denied,
            _______                                         ____________
            474 U.S. 1064 (1986);  Burns v. United States, 552  F.2d 828,
                                   _____    _____________

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there is no  difference between  such cases and  a case  like

            this  one in which a  sentence is reduced  and later, finding

            the  reduction  to  be  unlawful, the  court  reinstates  the

            original sentence.

                 But in  law what is true for the usual case is often not

            true in the  extreme case.  Even  the state conceded at  oral

            argument that due process must impose some outer limit on the

            power  to revise  sentences upward  after the  fact.   We are

            concerned here  not with the substantive grounds of a state's

            decision to reduce  or increase a  sentence, but rather  with

            the inherently procedural  issue of whether and when  a state

            can reopen a matter after  a final unappealed decision, after

            a substantial lapse in time during which the state had actual

            knowledge of  the error,  and after  a significant  change in

            circumstances.   In  short, the  question we  face is  one of

            process.
            _______

                 In Breest, we said  that notions of fundamental fairness
                    ______

            do place  some temporal limit on later increases in sentence,

            579  F.2d at  101, and  the Fourth  Circuit, in  Lundien, has
                                                             _______

            endorsed this  view.  769 F.2d at 987.  See also Villano, 816
                                                    ________ _______

            F.2d at 1458 (Logan,  J. concurring).  It is  quite true that

            the  cases following  Breest generally  found, as  did Breest
                                  ______                           ______

            itself, that  the particular upward revision  in question did

            not  violate due  process.   A  convicted defendant  does not

____________________

            831 (8th Cir. 1977).

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automatically acquire  a vested interest in  a mistakenly low

            sentence.   Only in the extreme case can a court properly say

            that the later upward revision of a sentence, made to correct

            an  earlier  mistake, is  so unfair  that  it must  be deemed

            inconsistent with fundamental notions of fairness embodied in

            the Due Process Clause.  Accord Lundien, 769 F.2d at 987.  
                                     ______ _______

                 In our view,  there is no  single touchstone for  making

            this judgment,  nor any multi-part formula.   Rather, drawing

            on   considerations  mentioned  by   cases  like  Breest  and
                                                              ______

            suggested by common  sense, we think  that attention must  be

            given--our  list  is  not  exclusive--to the  lapse  of  time

            between the  mistake and the attempted  increase in sentence,

            to whether or  not the defendant  contributed to the  mistake

            and the  reasonableness of  his intervening  expectations, to

            the  prejudice worked by a later change, and to the diligence

            exercised by the  state in seeking the  change.  To  be sure,

            doctrine should evolve toward yardsticks and formulas, making
                                   ______

            law  more predictable  and  reducing  the  need  for  ad  hoc
                                                                  _______

            decisions  by  judges.   But that  is  the end  point  of the

            journey, and we are at the beginning.

                 We start  with the  central and  singular fact  that the

            state, which was represented at the hearing in which DeWitt's

            sentence  was suspended  in 1983,  took no  appeal from  that

            decision, even though an appeal is the ordinary  and expected

            way in which  errors are to  be corrected.   The state had  a

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second chance also  to correct  the error in  1983 after  the

            Rhode  Island  Supreme  Court   held  in  O'Rourke  that  the
                                                      ________

            suspension power could not be used after a prisoner had begun

            to serve his sentence;  once again, the state made  no effort

            (so far as the record reveals) to apply to the trial court to

            undo the suspension of DeWitt's sentence error.   The process

            that  DeWitt received,  therefore, begins  with a  remarkable

            double default by the state.  It is not a matter of the state

            being estopped:   rather,  in deciding what  is fundamentally

            unfair  we cannot ignore the fact that with due diligence the

            state  could  have  challenged  the  suspension  long  before

            DeWitt's release.             Following  the  state's  double

            default, circumstances changed substantially.  In contrast to

            cases  like Breest, DeWitt not only continued for a number of
                        ______

            years in  prison reasonably  believing that his  sentence had

            been reduced, but he was actually released.  He remained free

            from January 1987 to  September 1987 and laid down  new roots

            in society,  acquiring a job and  reestablishing family ties.

            Only  at  this  point, did  the  superior  court correct  its

            original  mistake and re-imprison him.  The lengthy delay and

            change of circumstances are  not decisive but they contribute

            to  the  judgment whether  due  process was  afforded  by the

            belated reopening.

                 Finally, due process requires a weighing not only of the

            defendant's interest in finality, but of the state's interest

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in correcting error.  Yet there is no sign  that Rhode Island

            has  undertaken  any  wide-scale  program  to   identify  and

            resentence those  whose earlier sentences  were suspended  in

            violation of  O'Rourke.  Rather, DeWitt appears  to have been
                          ________

            singled  out primarily to relieve the state of the trouble of

            conducting a  parole revocation  hearing.  The  impression is

            hard  to avoid  that the  resentencing here  primarily serves

            only to skirt the minimal due process obligations that attach

            to parole  revocations, that the  state could conduct  such a

            proceeding at minimal  cost, and that  the state's own  self-

            proclaimed interest  in vindicating  O'Rourke  is limited  to
                                                 ________

            this case.

                 As  we have  said, there are  numerous cases  allowing a

            sentence to  be increased after  it was initially  imposed in

            error.  In virtually  all that we have discovered,  there has

            been  some  distinguishing circumstance  that  separates that

            case from DeWitt's, for example,  because (as is often  true)

            the defendant  was still in  prison, or the  interval between

            the  original  sentence  and  its correction  was  brief,  or

            because the  defendant almost  certainly knew or  should have

            known  that  an error  had been  made.4   Conversely,  we are

____________________

                 4Compare  Lerner,  751 F.2d  at  458 (mistake  corrected
                  _______  ______
            after three years but while defendant still in prison); Cook,
                                                                    ____
            890 F.2d  at 674 (mistake  corrected after three  weeks while
            defendant awaiting a report date for  community confinement);
            and Rico,  902 F.2d  at 1068-69 (mistake--of  which defendant
                ____
            must  have  known--discovered  three  days   after  defendant
            erroneously sentenced to time served and released).

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completely satisfied,  as Breest  and Lundien said  in dicta,
                                      ______      _______

            that due process must  in principle impose an outer  limit on

            the ability to correct a sentence after the event.  

                 Thus we face  here the familiar  due process problem  of

            deciding how much is  too much.  In concluding  that Dewitt's

            case crosses the line, we have taken  into account a range of

            considerations:  the multi-year period between the suspension

            and  the  reimposition  of  sentence, the  reasonableness  of

            DeWitt's reliance,  his release from prison  and formation of

            new roots, the unusual  tardiness of the state in  failing to

            correct the error from  1983 onward, and the existence  of an

            alternative parole  revocation remedy.  These elements cannot

            be calibrated precisely, nor can they be taken in  isolation.

            The outcome here is the result  of the combined weight of the

            elements.  

                 We reach our conclusion with diffidence  because federal

            judges have no monopoly on wisdom in deciding what is unfair,

            and even  harsh decisions by state  authorities usually raise

            no constitutional issue.  But we are confident that this case

            is  very unusual  and that  our  decision imposes  no serious

            constraint on  state authorities who, unlike  federal judges,

            have the direct  responsibility for  the law-enforcement  and

            prosecutorial  tasks at hand.  In  sum, this case is the very

            rare exception  to the general  rule that  courts can,  after

            sentence, revise sentences upward to correct errors.

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III.

                 We  turn now to Rhode Island's counter arguments and, in

            particular,  to  the  issue  we  earlier  reserved concerning

            DeWitt's  supposed parole  violation.   The state  has fought

            earnestly for its  position that the district  court erred in

            granting the writ, but in our view the arguments on which the

            state lays most stress are not very compelling.

                 The state argues broadly that the original suspension of

            DeWitt's life  sentence was a  matter of discretion,  and the

            decision  to parole  him before  the end  of his  new 15-year

            sentence was likewise discretionary.  From these premises the

            state  concludes  that  DeWitt  cannot have  an  interest  in

            remaining at large that is protectable under the Due  Process

            Clause.   But it  is one thing  to say that  DeWitt could not

            have compelled  the suspension of  sentence or  the grant  of

            parole;  it is quite another  to ignore the  reality that the

            discretion  was exercised in his  favor and the  state is now

            trying to withdraw what it has bestowed.

                 Rhode Island is not  required to give away  its property

            but if it gave away its state house as a gift, it is unlikely

            it  could get it back without paying just compensation to the

            new owner.   More closely on point, the state  is not obliged

            by the Constitution to parole  its prisoners, but having done

            so, it is obliged to afford them due process--what process is

            due is another matter--when it revokes paroles.  Morrissey v.
                                                             _________

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Brewer, 408  U.S. 471, 481  (1972).  The case  relied upon by
            ______

            the state for its  discretion argument, Greenhotz v. Nebraska
                                                    _________    ________

            Penal Inmates, 442 U.S. 1 (1979), involved the very different
            _____________

            question whether the state is obliged to provide due  process

            in deciding whether to grant parole.
                        _______

                 The state's main arguments in this case are narrower and

            center upon DeWitt's  fight with his former landlord.  DeWitt

            was  warned, the state points  out, that his  parole could be

            revoked  if he  got  himself  into  trouble.    That  he  was

            acquitted by a jury  of causing the trouble, says  the state,

            means nothing; the burden of proof in that trial was beyond a

            reasonable  doubt, while  in  parole  revocation,  state  law

            requires only  evidence that  would "reasonably  satisfy" the

            decision-maker  that   a  violation  occurred.     Walker  v.
                                                               ______

            Langlois, 243  A.2d  733,  737  (R.I. 1968).    Quoting  from
            ________

            DeWitt's own testimony about the incident, the state suggests

            that  DeWitt's version of  the struggle with  the landlord is

            contradictory and improbable.

                 These arguments remind one  of a boxer leading  with his

            chin.   No one doubts that the state could at the outset have

            conducted a  proceeding to revoke DeWitt's  parole.  DeWitt's

            story  that  he  was  attacked  without  provocation  by  the

            landlord  and his wife, both  armed with knives,  is one that
                      ___

            any  parole  board  lawyer  might  enjoy  testing  on  cross-

            examination.   The Constitution has  not been read to require

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                                         -14-

proof  beyond  a  reasonable  doubt in  a  parole  revocation

            proceeding.   E.g., Whitehead v. U.S.  Parole Commission, 755
                          ____  _________    _______________________

            F.2d 1536,  1537 (11th Cir. 1985).   If the state  found that

            DeWitthad misbehaved,it could havesurely cancelledhis parole.

                 But  this is  not  what happened.    There has  been  no

            official determination  of wrongdoing  by DeWitt, and  he has

            not been returned to prison to serve a 15-year sentence.  The

            state can hardly expect that this court will determine, based

            on the state's selection  of transcript excerpts, that DeWitt

            was at fault.  It may well be that under Rhode Island law the

            state  can still  revoke DeWitt's  parole  on account  of the

            knifing  incident.   We  have  no  competence to  revoke  the

            parole, and  no occasion to consider any  federal claims that

            DeWitt might make  against such  a remedy.5   But as  matters

            now stand,  DeWitt  is  being  held pursuant  to  a  judgment

            sentencing  him to life  imprisonment, a  judgment unlawfully

            reimposed on DeWitt in violation of the Constitution.

                 In  the  concluding  section  of its  brief,  the  state

            asserts  in one sentence that DeWitt's claim in this court is

            foreclosed by  his  failure to  appeal  to the  Rhode  Island

____________________

                 5Possibly DeWitt would argue  that due process precluded
            revoking his parole for  misconduct after the jury acquittal.
            However,  like most  circuits, we  have sustained the  use of
            "acquitted  conduct"   to   increase  sentences   under   the
            Sentencing Guidelines,  based on  the same distinction  as to
            burden of proof  urged by Rhode  Island in this case.   E.g.,
                                                                    ____
            United States  v.  Mocciola, 891  F.2d  13, 16-17  (1st  Cir.
            _____________      ________
            1989).  

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                                         -15-

Supreme Court after the  superior court on remand  denied his

            new Rule  35 motion.  When that motion was denied, DeWitt had

            already presented to  the Rhode Island Supreme  Court the due

            process  claim on  which we  pass today,  and that  court had

            already rejected that claim  on the merits.  DeWitt  had thus

            fully  exhausted  his state  remedies  to  vindicate his  due

            process  claim,  and  the  state's  exhaustion  objection  is

            meritless.

                 Affirmed.
                 ________

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