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02/23/93 NAPOLEON BENNETT v. UNITED STATES

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). ...


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