Appeal from the Superior Court of the District of Columbia; (Hon. Robert I. Richter, Trial Judge)
Before Rogers, Chief Judge, and King, Associate Judge, and Belson, Senior Judge. Concurring and Dissenting opinion by Associate Judge King.
The opinion of the court was delivered by: Per Curiam
PER CURIAM: In April, 1988, appellant was indicted for one count of carrying a dangerous weapon - rifle (Count D) and one count of carrying a dangerous weapon - knife (Count E) in violation of D.C. Code § 22-3204 (1989 Repl.). Ne was convicted by a jury and sentenced to consecutive sentences of 30-90 months for carrying the rifle and 10-30 months for carrying the knife, for an aggregate term of 40-120 months. On appeal the court affirmed the conviction but concluded that the two offenses merged for sentencing purposes, and remanded the case to the trial Judge to vacate one of the counts and to resentence appellant on the other. Bean v. United States, 576 A.2d 187, 190 (D.C. 1990).
On remand, the trial Judge vacated the conviction under Count E, charging carrying a dangerous weapon - knife. However, the Judge proceeded to merge the charge in Count E with Count D, charging carrying a dangerous weapon - rifle, and to redesignate Count D as charging carrying a dangerous weapon - rifle and knife. The Judge then imposed a 40-120 month sentence for redesignated Count D.
The Fifth Amendment to the Constitution provides in pertinent part that:
No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury . . . .
1 D.C. Code 484. Appellant contends, therefore, that the trial Judge had no authority to combine the two counts of the indictment into a single count charging carrying a dangerous weapon - rifle and knife. He further contends that the sentence imposed on the new Count D amounted to an increased sentence which could not be imposed without a statement of justification. We agree that the trial Judge was without authority to amend the indictment by redesignating the offense charged in Count D of the indictment; accordingly, we reverse and remand the case to the trial Judge with instructions to vacate the judgment and commitment on the redesignated Count D, and to resentence appellant on Count D under the indictment charging carrying a dangerous weapon - rifle.
When the court remanded the case to the trial Judge following appellant's direct appeal from his convictions, it instructed the Judge "to vacate one of the two convictions and resentence on the other, leaving to the trial court the choice of which conviction to vacate." Bean, supra, 576 A.2d at 187. As instructed, the trial Judge vacated the conviction on one of the two counts, Count E, charging carrying a dangerous weapon - knife. Thereafter, the Judge rewrote the charge in the remaining count, Count D, as a count charging carrying a dangerous weapon - rifle and knife, and entered a Judgment and Commitment Order reflecting that appellant was convicted of "Ct. D Carrying a Dangerous Weapon - Rifle and Knife."
The redesignation of Count D by the trial Judge exceeded the Judge's authority and was not conferred upon him by the remand in which the court instructed him to "vacate one of the two convictions and resentence on the other." Id. (emphasis supplied). Although the Judge could properly consider at the time of sentencing appellant on the remaining count, Count D charging carrying a dangerous weapon - pistol, that appellant also had been convicted of carrying a knife, see Wasman v. United States, 468 U.S. 559, 562, 82 L. Ed. 2d 424 , 104 S. Ct. 3217 (1984); accord Williams v. New York, 337 U.S. 241, 247, 93 L. Ed. 1337 , 69 S. Ct. 1079 (1949), this is not the same as allowing the Judge to rewrite a count of the indictment returned by the grand jury. The law on merger of offenses may produce a situation in which a redesignation of a count of the indictment would more accurately reflect the basis for the Judge's sentence, but the separation of powers underlying the Constitution cannot be ignored. The government in its brief on appeal does not suggest otherwise. *fn1
Accordingly, the judgment of conviction of Count D as redesignated by the trial Judge is reversed and the case is remanded to the trial Judge with direction that he impose a sentence for Count D as Count D was designated in the indictment returned by the grand jury.
Appellant's second contention, that the sentence imposed on remand amounted to an increased sentence, after a successful appeal, which is allowable only if there is a good reason for the increase and the explanation for the increase "affirmatively appear(s)" on the record, citing North Carolina v. Pearce, 395 U.S. 711, 724-25, 23 L. Ed. 2d 656 , 89 S. Ct. 2072 (1969), is unpersuasive. When the court remanded the case to the trial Judge, the court directed the trial Judge to vacate one conviction and to resentence appellant on the other, citing Thorne v. United States, 471 A.2d 247, 249 (D.C. 1983). Bean, supra, 576 A.2d at 187.
In Thorne, the defendant had been convicted of two counts of first degree burglary, D.C. Code § 22-1801 (a) (1981), of the same premises at the same time. One burglary was committed with intent to destroy property, and the other with intent to assault. The defendant also had been convicted of one count of destroying property and one count of assault. He was sentenced to two 5-15 year consecutive sentences for the burglary counts, and to concurrent one-year sentences on the remaining counts. On appeal this court held that one of the burglary convictions had to be vacated, but, adopting the government's view, remanded the case to the trial Judge to sentence anew in order to allow the trial Judge to effectuate the original sentencing plan. Thorne, supra, 471 A.2d at 249. The court thereby recognized that when the trial Judge originally imposed sentence he may have chosen to spread the aggregate sentence over all of the counts. See Malloy v. United States, 483 A.2d 678 (D.C. 1984). Noting that the trial Judge had not originally imposed the maximum allowable sentence on the burglary counts, the ...