Appeal from the Superior Court of the District of Columbia; Hon. Luke C. Moore, Motions Judge
Before Belson and Schwelb, Associate Judges, and Reilly, Senior Judge.
The opinion of the court was delivered by: Reilly
REILLY, Senior Judge: Laverne Williams, a former nurse at D.C. General Hospital, who having previously pleaded guilty to two counts of an indictment charging illegal possession of a controlled substance, had been given a suspended sentence and placed on probation, subsequently filed a motion for reduction of sentence, appeals from an order denying such motion.
She argues that (1) in determining the original sentence and refusing to reduce it, the court improperly gave weight to a government representation at the sentencing hearing that she was guilty of offenses for which she was never tried, and (2) the court abused its discretion because it did not consider the damaging impact upon her prospects of professional employment if she were not accorded the relief requested. Appellant also seeks remand to determine if the court's Disposition of the matter was influenced by a letter of the prosecutor containing an assertedly false statement. We affirm.
Prior to her arrest, appellant, a licensed practical nurse, had been employed at D.C. General Hospital for six years, and was working in the emergency room of the hospital. Located in this facility is, a locked cabinet where prescription drugs are stored. Keys to this cabinet are provided to the nursing staff. Because of the narcotics laws, regulations provided that when a nurse removes a controlled substance like demerol from the cabinet, she must initial and fill out a sheet stating the name of the physician who ordered it and the name of the patient to whom it is, or about to be, administered.
During 1983, a routine audit of the hospital drug records revealed that in the months of June and July of that year, an unusually large amount of demerol had been removed from the emergency room inventory. An examination of the individual withdrawal logs then disclosed that on a number of documents signed by Nurse Williams she had entered the names of non-existent patients and the names of doctors who had never given such authorization. This investigation resulted in her arrest and eventually an indictment charging (1) five counts of furnishing false or fraudulent material information (felonies), D.C. Code § 33-543(a)(4) (1988 Repl.), (2) five counts of theft, D.C. Code § § 22-3811, -3812(b) (1989 Repl.), and (3) five counts of unlawful possession of a controlled substance, D.C. Code § 33-541(c) (1988 Repl.). After extended plea bargaining, appellant was allowed to enter an Alford plea to two of the possession counts, in return for which the government agreed not to prosecute her on the other charges. *fn1
On July 23, 1985, the court accepted the plea, and sentenced her to a term of imprisonment for one year on each count to run consecutively. Then over the objection of the government, the court suspended the sentences and placed her on three years' probation.
Some three months later, appellant filed a motion for reduction of sentence under Super. Ct. Crim. R. 35, asking the court to vacate its original sentence and impose a one-year probation term as defined in D.C. Code § 33-541(e)(2) (1988 Repl.). Had the court granted relief under that subsection, it would have made appellant as a first offender, eligible to apply for an order expunging her conviction from the record, restored her to the status she enjoyed before arrest and conviction, and enabled her to answer in the negative without fear of prosecution for perjury or false statement any inquiry as to whether or not she had been convicted of a drug offense. Appellant was particularly anxious to obtain such relief as she had just been fired from a nursing job at Walter Reed Hospital because she had concealed in her application form the fact of her conviction, as well as the circumstances which led to the termination of her services at D.C. General Hospital. The court, however, in a memorandum opinion dated January 15, 1988, denied her motion.
Although the government failed to raise any issue of timeliness when it opposed the motion to reduce sentence at the hearing before Judge Moore, it now urges us to dismiss the appeal summarily as the motion was not filed until November 25, 1985, some four days after the 120-day limitation period specified in Super. Ct. Crim. R. 35 had expired. There is no doubt that the 120-day limitation is jurisdictional. Hence, by the time the motion was filed, the trial court no longer had authority to reduce sentence. See Robinson v. United States, 454 A.2d 810, 813 n.6 (D.C. 1982).
Notwithstanding, appellant's counsel argues that in the interest of judicial economy, we should consider the appeal on the merits, pointing out that if we dismissed the case on jurisdictional grounds, she could simply file another motion pursuant to Rule 35(b), which provides that a motion to reduce sentence may be filed "not later than 120 days after receipt by the court of a mandate issued upon affirmance of the judgment or dismissal of the appeal." It appears that counsel has misconstrued the word "appeal" in the context of the rule, for we have held in dealing with a similar post-trial motion, that the rule is referring to a direct appeal from a conviction or sentence. See Brown v. United States, 411 A.2d 631, 632 (D.C. 1980).
In oral argument, however, appellant's counsel, citing United States v. Hamid, 531 A.2d 628, 632 (D.C. 1987), where an untimely decision reducing sentence was affirmed under the grant of a writ of error coram nobis, argues that under common law such writ may be "allowed without limitation of time." United States v. Morgan, 346 U.S. 502, 507, 98 L. Ed. 248, 74 S. Ct. 247 (1954). While Hamid is not plainly applicable here, we have decided in order to lay the case before us to rest, to pass upon appellant's objections to the challenged order of the motions court and now proceed to do so.
It is, of course, fundamental that appellate review of sentencing is extremely limited. Ordinarily, a sentence which does not exceed the statutory limits or is not imposed for the conviction of an offense which has merged with another conviction must ordinarily be permitted to stand, e.g., In re L.J., 546 A.2d 429, 434 (D.C. 1988). Thus, any appellant urging an appellate court to ...