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02/23/93 NAPOLEON BENNETT v. UNITED STATES

DISTRICT OF COLUMBIA COURT OF APPEALS


February 23, 1993

NAPOLEON BENNETT, APPELLANT
v.
UNITED STATES, APPELLEE

Appeal from the Superior Court of the District of Columbia; (Hon. Sylvia Bacon, Trial Judge)

Before Rogers, Chief Judge, and Ferren and Schwelb, Associate Judges.

The opinion of the court was delivered by: Rogers

ROGERS, Chief Judge: Appellant Napoleon Bennett appeals from the denial of his motion for a correction of sentence pursuant to Super. Ct. Crim. R. 35 (a) on the grounds that he was sentenced twice for felony murder, his burglary conviction merged with the felony murder conviction, and he was denied the right to allocute at his resentencing. We remand the case to the trial court for correction of the amended commitment order of October 23, 1991, to reflect the expressed intent of the trial Judge, but otherwise affirm.

I.

Appellant was convicted by a jury of felony murder while armed, D.C. Code §§ 22-2401, -3202 (1989 Repl.), premeditated murder while armed, id. §§ 22-2401, -3202, first degree burglary while armed, id. §§ 22-1801 (a), -3202, armed robbery, id. §§ 22-2901, -3202, and attempted armed robbery, id. §§ 22-2902, -3202. He was sentenced, on June 11, 1980, to the following terms of imprisonment:

COUNT I: Felony murder while armed 20 years to life

COUNT J: Premeditated murder while armed 20 years to life

COUNT K: First Degree Burglary while armed 10-30 years

COUNTS L,M,N: Armed Robbery 10-30 years each

COUNT O: Attempted Armed Robbery 10-30 years

All of the terms were concurrent except for the burglary count, which was to run consecutively. Appellant's convictions were affirmed on direct appeal. Bennett v. United States, Nos. 80-728, 857 (D.C. July 12, 1982). *fn1

On September 18, 1991, appellant filed a motion for correction of sentence under Super. Ct. Crim. R. 35 (a) on the ground that his burglary conviction merged with his felony murder conviction. The trial Judge denied the motion because appellant's "conviction of felony murder (Count I) count was not predicated on the commission of burglary (Count K). Count I of the indictment charges with killing [the decedent] . . . 'in perpetrating and attempting to perpetrate the crime of robbery.'" The Judge stated that "at most, although it will not affect the total time to be served, is entitled to an order vacating his felony murder conviction under the 'collateral effects' doctrine. Harling v. United States, 460 A.2d 571, 573-574 [D.C. 1983]." The Judge thereafter denied appellant's motion to vacate the burglary sentence or to merge it with the felony murder count, and by order of October 23, 1991, vacated appellant's conviction and sentence for felony murder. In an amended judgment and commitment order, dated October 23, 1991, however, the Judge resentenced appellant on the felony murder (Count I), and did not resentence him on the premeditated murder (Count J). The amended commitment order nonetheless expressly stated: "Amended Judgment and Commitment reflects order of 10/23/91 vacating felony murder conviction/sentence. (Count J)." The Judge also signed an order releasing appellant from custody "as to Count J only. still serving sentence on remaining charges."

II.

In regard to appellant's double jeopardy claim, based on being sentenced twice for felony murder, it is apparent from the record that the trial Judge did not sentence appellant twice for felony murder, but instead made a clerical error in transposing Count I and Count J in the amended commitment order of October 23, 1991. The order of October 23, 1991 expressly states that the Judge intended to vacate the felony murder conviction (Count I), not the premeditated murder conviction (Count J). The notation on the amended commitment order also indicates that the Judge intended to vacate only the felony murder conviction.

Accordingly, we remand the case to the trial court to correct the clerical errors on the amended commitment order of October 23, 1991, so that the order reflects the expressed intent of the trial Judge to vacate the felony murder count only. See Newton v. United States, 613 A.2d 332, 334 (D.C. 1992); Rich v. United States, 357 A.2d 421, 423 (D.C. 1976); Super. Ct. Crim. R. 36.

Appellant's contention that his burglary, premeditated murder and robbery convictions merge because they were "one continuous criminal act," is meritless. *fn2 The Fifth Amendment guarantee against double jeopardy precludes multiple punishments for one offense. North Carolina v. Pearce, 395 U.S. 711, 717, 23 L. Ed. 2d 656, 89 S. Ct. 2072 (1969). However, in order to determine whether or not two offenses merge into one offense, and thereby trigger double jeopardy protection, the court must determine "whether each provision requires proof of an additional fact which the other does not." Blockburger v. United States, 284 U.S. 299, 304, 52 S. Ct. 180, 76 L.Ed. 306 (1932). See Ball v. United States, 470 U.S. 856, 861, 84 L. Ed. 2d 740, 105 S. Ct. 1668 (1985); Whalen v. United States, 445 U.S. 684, 692, 63 L. Ed. 2d 715, 100 S. Ct. 1432 (1980); Robinson v. United States, 501 A.2d 1273, 1275 (D.C. 1985). Under this doctrine, appellant's three convictions -- burglary, premeditated murder, and robbery -- require separate and distinct elements of proof, which appellant concedes. To overcome this obstacle, appellant contends that under a factual analysis the crimes were committed in one continuous flow and, as a result, they merge. He relies on Arnold v. United States, 467 A.2d 136 (D.c. 1983), where the court held that "in considering whether two statutory offenses are the 'same' it is appropriate to consider the facts of the case rather than limit our analysis to 'abstract consideration of the statutes involved.'" Id. at 139 (citations omitted); see also Whalen, supra, 445 U.S. at 691 ("multiple punishments cannot be imposed for two offenses arising out of the same criminal transaction unless each offense 'requires proof of a[n additional] fact which the other does not.'") (quoting Blockburger, supra, 284 U.S. at 304); Kirk v. United States, 510 A.2d 499, 502 (D.C. 1986).

In Byrd v. United States, 598 A.2d 386, 390 (D.C. 1991), the en banc court stated, with regard to Arnold, supra, 467 A.2d 136, and its progeny, that:

these cases erred in concluding that since the facts as actually presented by the government to prove one charge were necessarily used by the government to prove the second charge, the two charges constituted the "same offense." Rather, the focus should have been on the statutory elements of the two distinct charges; viz., whether each statutory provision required proof of an element that the other did not.

Hence, the factual analysis in Arnold, is no longer good law. See Monroe v. United States, 600 A.2d 98, 99 (D.C. 1991).

Alternatively, appellant contends that there is a "continuous crime" exception to the Blockburger rule but he cites no authority for it. We decline to adopt such an exception. As the government points out in its brief, the Blockburger test is designed "to allow multiple convictions for separate offenses arising out of a single course of conduct unless the legislature intended the offenses to merge." See Blockburger, supra, 284 U.S. at 304, 52 S. Ct. 180, 76 L.Ed. 306; Byrd, supra, 598 A.2d at 389. The appropriate inquiry is legislative intent. Clearly, the three offenses at issue -- burglary, premeditated murder, and robbery -- all require different elements of proof, and, therefore, they do not merge.

Appellant's reliance on a series of cases holding that unauthorized use of a motor vehicle merges with grand larceny is misplaced because "unauthorized use require no proof beyond that required for conviction of grand larceny." Arnold, supra, 467 A.2d at 139. Appellant has conceded that the three crimes require different elements of proof. Appellant's analogy to the special rule where a crime cannot be committed without necessarily committing another crime is inappropriate in the instant case. In Robinson v. United States, 388 A.2d 1210, 1211 (D.C. 1978), the court held that the type of detention necessarily required for rape did not give rise to a separate charge of kidnapping, and developed a separate test to determine whether the detention went beyond that required for rape, namely, whether " seizure . . . in a given case was of the type incidental to every rape or whether the confinement and restraint were significant enough of themselves to warrant an independent prosecution for kidnapping." See also Whalen, 445 U.S. at 695, 100 S. Ct. 1432, 63 L. Ed. 2d 715, Unlike the cited cases, where holding someone against his or her will (kidnapping) is required in order to perpetrate a rape, commission of one of the three crimes at issue in the instant case is not required in order to perpetrate the other crimes. Therefore, this special area of the law offers no guidance in examining whether these three offenses merge.

Accordingly, we hold that the trial Judge did not err in concluding that the three crimes -- burglary, premeditated murder, and robbery -- do not merge because they each require proof of different elements, there is no "continuing crime" exception to the Blockburger rule, and any one of these crimes can be committed without perpetrating the other two. Cf. Abdulshakur v. District of Columbia, 589 A.2d 1258, 1266 (D.C. 1991).

III

Finally, appellant's contention that he had a due process right to be present at his resentencing, is meritless. Appellant moved for the correction of his sentence and resentencing under Super. Ct. Crim. R. 35, which "is limited by its terms to the correction or reduction of sentence and no opportunity for allocution is required in this situation." Wells v. United States, 469 A.2d 1248, 1250 (D.C. 1983); Super. Ct. Crim. R. 43 (c). *fn3 Appellant's contention rests on the fact that the motions Judge vacated his felony murder sentence and then resentenced him on that count, as opposed to reducing his sentence. However, no such resentencing occurred, in accordance with the expressed intent of the trial Judge. See Part II, (supra) . Because the trial Judge vacated the felony murder count, the amended commitment order of October 23, 1991, was a correction of sentence and, therefore, appellant had no right to be present. Wells, supra, 469 A.2d at 1250 (citing United States v. Connolly, 618 F.2d 553, 556 (9th Cir. 1980); United States v. McClintic, 606 F.2d 827, 828-29 (8th Cir. 1979); United States v. McCray 468 F.2d 446, 450 (10th Cir. 1972); FED. R. CRIM. P. 43 (c)). The government suggests in its brief, moreover, that appellant can show no prejudice by not being present when the trial Judge issued the amended commitment order since his sentence remained unchanged whether the trial Judge vacated the felony murder or the premeditated count; his consecutive sentence for burglary was not affected in any way by the amended commitment order.

Accordingly, we affirm the order denying appellant's motion under Rule 35 to vacate or merge his burglary conviction with other counts of the indictment, but we remand the case to the trial court to correct the amended commitment order of October 23, 1991, to reflect the trial Judge's expressed intent to vacate the felony murder conviction and sentence (Count I) and to leave the conviction and sentence for premeditated murder (Count J) as originally imposed.


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