Appeal from the Superior Court of the District of Columbia; (Hon. Nan Huhn, Trial Judge)
Before Rogers, Chief Judge, Wagner, Associate Judge, and Pryor, Senior Judge. Opinion for the court by Senior Judge Pryor. Concurring opinion by Chief Judge Rogers.
The opinion of the court was delivered by: Pryor
PRYOR, Senior Judge : After a trial by jury, appellant was convicted in October 1985 of distribution of PCP and marijuana in violation of provisions of D.C. Code § 33-541(a)(1) (1988 Repl.). Prior to sentencing, appellant wrote to the presiding Judge expressing dissatisfaction with his counsel. *fn1 The Judge appointed a different attorney for appellant, directed him to file a motion in this regard prior to sentencing, and ordered the government to file a response. On the day of sentencing, appellant had failed as yet to file the motion; therefore, there was no need for the government to respond as the court had ordered, *fn2 and appellant's pro se motion was dismissed as prematurely filed. Appellant was sentenced to not less than twenty, nor more than sixty months of incarceration for distribution of PCP. He was given a ninety day concurrent sentence for the marijuana offense.
After sentencing, appellant filed a motion, pursuant to D.C. Code § 23-110 (1989), to vacate his convictions and for a new trial, alleging ineffective assistance of counsel. If the court cannot dispose of appellant's motion solely on the record, D.C. Code § 23-110(c) provides that the court must cause notice to be served on the government and grant a prompt hearing. *fn3 Absent action by the court in compliance with the statute, the government was not obliged to file a response, and accordingly, did not do so. Appellant, nevertheless, filed a Motion to Treat the § 23-110 Motion as Conceded, and the trial court, erroneously believing that it had served notice upon the United States Attorney's Office pursuant to the statute, *fn4 concluded that the government, in its silence, was conceding the motion. The court then mistakenly granted appellant's motion, ordered a new trial, and released appellant pending the new trial. A few days later, asserting that the court had not requested a response as required by statute before acting on the post-sentencing motion, the government filed a Motion to Reconsider and to Vacate the order granting a new trial.
Thereafter, the court, without a hearing, granted the government's motion to vacate the May 19th order, and ordered a hearing on the merits of the § 23-110 motion. (Order of January 19, 1988.) Appellant's counsel filed motions to stay further execution of the sentence and further proceedings pending appeal to this court. At a subsequent hearing, the trial court denied the motions to stay and began a hearing on the merits of the claim of ineffective assistance of counsel. Appellant was not returned to custody and was not present at the hearing. His counsel declined to participate, contending the court was without jurisdiction to conduct the hearing because (1) the court's May 19th order granting a new trial was a final order subject only to appellate review, and (2) appellant was not "in custody" within the meaning of the statute. The Judge heard evidence from the government on the merits of the ineffective assistance charge and denied appellant's § 23-110 motion. *fn5
This appeal arises from the court's order granting the government's Motion to Reconsider and Vacate the initial order granting relief. We affirm.
We sketch the procedural history of this case in some detail because the circumstances leading to this appeal are unusual and hopefully rare. The trial Judge, in this instance, was addressing a collateral attack to appellant's convictions, an area which is becoming increasingly familiar to trial and appellate Judges. In considering appellant's motion, the Judge was, of course, governed by our statute, D.C. Code § 23-110, which provides in pertinent part:
§ 23-110. Remedies on motion attacking sentence.
(a) A prisoner in custody under sentence of the Superior Court claiming the right to be released upon the ground that (1) the sentence was imposed in violation of the Constitution of the United States or the laws of the District of Columbia, (2) the court was without jurisdiction to impose the sentence, (3) the sentence was in excess of the maximum authorized by law, (4) the sentence is otherwise subject to collateral attack, may move the court to vacate, set aside, or correct the sentence.
(b) A motion for such relief may be made at any time.
(c) Unless the motion and files and records of the case conclusively show that the prisoner is entitled to no relief, the court shall cause notice thereof to be served upon the prosecuting authority, grant a prompt hearing thereon, determine the issues, and make findings of fact and Conclusions of law with respect thereto. . . .
(d) A court may entertain and determine the motion without requiring the production of the prisoner at the hearing.
In the trial court and in this court, appellant argues that the issuance of the unopposed order vacating appellant's convictions and granting a new trial, rendered the trial Judge without authority or jurisdiction to take further action. Relying on language in the statute, appellant also urges that once he was released, he was no longer "a person in custody under sentence." It has never seroiusly been argued in this case that the order granting collateral relief was anything more than a response to what the court thought at the time to be an unopposed motion ripe for resolution without further notice as required by D.C. Code § 23-110 (c). Thus, we believe the critical question we address is whether, under the circumstances, the trial Judge could vacate a procedurally incorrect order entered by mistake or inadvertence.
We start with a premise, bottomed on necessity, that courts generally take care to avoid inadvertent or mistaken orders. Nonetheless, some instances will arise. In this case, once the trial court realized that, pursuant to § 23-110 (c), it was the court's obligation to serve notice on the government, the court sought to correct its erroneous order -- an action which appellant now challenges. In our review of the trial court's corrective action, the government urges us to follow the model of some federal courts, which deem a collateral attack upon a criminal conviction an independent civil action. See Heflin v. United States, 358 U.S. 415, 418 n.7,79 S.Ct. 451, 453 n.7, 3 L.Ed.2d 407 (1959); United States v. Somers, 552 F.2d 108, 113 n.9 (3d Cir. 1977); Ferrara v. United States, 547 F.2d 861, 862 (5th Cir. 1977). In taking this approach, Fed. R. Civ. P. 60 has been invoked to address a problem of this nature. The government argues ...