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01/24/90 CARLOS M. RAMOS v. UNITED STATES

COURT OF APPEALS OF THE DISTRICT OF COLUMBIA


January 24, 1990

CARLOS M. RAMOS, A/K/A CARLOS M. CASTRO, APPELLANT
v.
UNITED STATES, APPELLEE

Appeal from the Superior Court of the District of Columbia; Hon. Robert M. Scott, Trial Judge.

Before Belson and Terry, Associate Judges, and Mack, Senior Judge.*

The opinion of the court was delivered by: Terry

TERRY, Associate Judge: Appellant Ramos, while serving a prison sentence, was called to testify at a post-trial hearing on behalf of his former co-defendant, Frank Smith. Ramos refused to testify, despite being advised by the trial court that he had no valid Fifth Amendment claim of possible self-incrimination. When he persisted in his refusal, the court held him in civil contempt, ordered that he be returned to prison, and further ordered that his ongoing sentence be held in abeyance until he purged himself of the contempt. Ramos contends that this procedure was impermissible under Superior Court Criminal Rule 35. We disagree and affirm.

I

After a jury trial Ramos and Smith were convicted of first-degree burglary while armed *fn1 and armed robbery. *fn2 Ramos was sentenced to consecutive prison terms of seven to twenty-one years for the burglary and two to six years for the robbery. His convictions were affirmed by this court in an unpublished memorandum opinion. *fn3 Thereafter his co-defendant, Smith, filed a motion to vacate his sentence under D.C. Code 23-110 (1989), alleging that Ramos, if called, would testify that Smith was not present at the scene of the crime and would therefore exculpate him.

The trial court held a hearing on Smith's motion. At that hearing Ramos refused to give any testimony beyond his name and age, asserting that under the Fifth Amendment he had the right to avoid incriminating himself. The court informed Ramos that he could not invoke his Fifth Amendment privilege against self-incrimination because he had already been convicted of the offense with which he was charged and that conviction had been upheld on appeal. The court then told Ramos that if he continued to refuse to testify, he would be held in civil contempt, and that any time he served on the contempt citation would not count toward the sentence he had previously received and was currently serving. Ramos persisted nevertheless in his refusal to answer the questions put by the court and counsel; accordingly, the court found him in contempt. In a subsequent written order, the court directed that Ramos "be incarcerated for contempt until such time as he shall answer the said questions propounded by counsel for Smith and such other questions as may be relevant and material to Smith's claim [of alibi]," and that the time spent in custody on the contempt adjudication not be credited toward the sentence he was then serving, i.e., that his sentence be "held in abeyance during the time he (Ramos) remains incarcerated for contempt pursuant to this Order . . . ."

Ramos now contends that it was unlawful under Superior Court Criminal Rule 35 for the trial court to interrupt his sentence in this manner. He reasons that the intervening incarceration for contempt was a "modification" of his original sentence within the meaning of Rule 35, and that because more than 120 days had passed between this court's affirmance of his convictions and the date he was held in contempt, the trial court lacked jurisdiction so to "modify" his sentence.

II

The issue presented here is one of first impression in the courts of the District of Columbia: whether a trial court, consistently with Rule 35, may interrupt an ongoing sentence in order to lend coercive force to a contempt adjudication. The question has arisen in the federal courts, however, under the corresponding federal rule and otherwise, and arguments such as that made here by i Ramos have been uniformly rejected. *fn4 The District of Columbia Circuit has held that "it is lawful for a civil contempt sentence to interrupt a criminal sentence previously imposed" and has expressly rejected the contention "that interruption of the criminal sentence violates Fed. R. Crim. P. 35. . . ." In re United States Senate Permanent Subcommittee on Investigations, 211 U.S. App. D.C. 2, 9 & n.32, 655 F.2d 1232, 1239 & n.32, cert. denied, 454 U.S. 1084, 70 L. Ed. 2d 619, 102 S. Ct. 641 (1981), citing United States v. Liddy, 166 U.S. App. D.C. 289, 510 F.2d 669 (1974) (en banc), cert. denied, 420 U.S. 980, 43 L. Ed. 2d 661, 95 S. Ct. 1408 (1975). The rationale for this holding is that any other construction of Rule 35 would immunize a person currently serving a sentence from a court's contempt powers, leaving the courts unable to coerce already-incarcerated contemnors into giving testimony which is lawfully required. As the Liddy court recognized, if interruption of a sentence is not permitted, then a court's contempt power is nugatory; without the coercive force of incarceration, there would be no incentive whatsoever for a contemnor to comply with the court's order. United States v. Liddy, supra, 166 U.S. App. D.C. at 295, 510 F.2d at 675.

All the federal courts which have addressed this issue have agreed that it is permissible and proper for a court to interrupt an ongoing sentence in order to confine a person for contempt. See In re United States Senate, supra, 211 U.S. App. D.C. at 9 & nn.31-33, 655 F.2d at 1239 & nn. 31-33 (citing cases); United States v. Liddy, supra, 166 U.S. App. D.C. at 295, 510 F.2d at 675; United States v. Dien, 598 F.2d 743, 744-745 & n.2 (2d Cir. 1979); In re Garmon, 572 F.2d 1373, 1374-1376 (9th Cir. 1978) (noting that all circuits have agreed that sentences may be interrupted to impose civil contempt sanctions, and "that there exists no common law rule against the interruption of a prison sentence as a result of the imposition of a contempt penalty"); Bruno v. Greenlee, 569 F.2d 775, 776 (3d Cir. 1978) ("district court Judge has the power to interrupt a criminal sentence in an order of criminal contempt"); In re Grand Jury Investigation, 542 F.2d 166, 168-169 (3d Cir. 1976), cert. denied, 429 U.S. 1047, 97 S. Ct. 755, 50 L. Ed. 2d 762 (1977); Martin v. United States, 517 F.2d 906 (8th Cir.), cert. denied, 423 U.S. 856, 46 L. Ed. 2d 81, 96 S. Ct. 105 (1975); Williamson v. Saxbe, 513 F.2d 1309, 1310-1311 (6th Cir. 1975) ("To hold that has a right to jail-time credit under the facts of this case would interfere seriously with the power of District Courts to punish civil contempt by incarceration when the person who is guilty of contempt is under sentence for some other offense"); Anglin v. Johnston, 504 F.2d 1165 (7th Cir. 1974), cert. denied, 420 U.S. 962, 43 L. Ed. 2d 440, 95 S. Ct. 1353 (1975); cf. United States v. Wilson, 421 U.S. 309, 321, 44 L. Ed. 2d 186, 95 S. Ct. 1802 n.2 (1975) ("despite the fact that respondents were already incarcerated for substantive criminal offenses, it appears to be clear that service of their sentences could have been interrupted to compel them to serve an intervening sentence for contempt" (Rehnquist and Blackmun, JJ., Concurring) (citations omitted)).

There is no dispute that the time limitations set forth in Super. Ct. Crim. R. 35 are jurisdictional. See United States v. Nunzio, 430 A.2d 1372, 1374 (D.C. 1981); McDaniels v. United States, 385 A.2d 180, 182 (D.C. 1978). On its face, however, Rule 35 with its jurisdictional limits has no relevance to this case. Rule 35 authorizes a trial court to reduce a sentence, correct an illegal sentence, or correct a sentence imposed in an illegal manner--but it says nothing about whether a sentence already being served may be interrupted by a period of incarceration for civil contempt. Such incarceration is neither a "correction of sentence" nor a "reduction of sentence" within the meaning of Rule 35; to the contrary, the sentence originally imposed on Ramos has not been altered in any respect, but merely interrupted. Ramos cites no authority for the proposition that Rule 35 prohibits the procedure followed in this case, nor have we found any; moreover, there is nothing in the language of the rule itself that supports his contention.

In order to ensure that trial courts may be able to use their contempt powers against persons already incarcerated, we affirm the trial court's judgment. If courts are deprived of the power to impose the sanction of incarceration upon a finding of contempt, then holding a person such as Ramos in civil contempt becomes an empty gesture. "Courts have a right to demand," even of a person already under sentence, "full and unstinting compliance with their commands." D.D. v. M.T., 550 A.2d 37, 44 (D.C. 1988). Nothing in Rule 35 qualifies or limits that right. *fn5

Affirmed.


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