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04/23/93 JAMES E. NORMAN v. UNITED STATES

April 23, 1993

JAMES E. NORMAN, APPELLANT
v.
UNITED STATES, APPELLEE



Appeal from the Superior Court of the District of Columbia; (Hon. Harold L. Cushenberry, Jr., Motions Judge)

Before Steadman, Schwelb, and Sullivan, Associate Judges.

The opinion of the court was delivered by: Sullivan

SULLIVAN, Associate Judge: Appellant, James E. Norman, appeals from an order of the motions Judge denying his motion to vacate, set aside, or correct his enhanced sentence. Appellant's principal contention is that his enhanced sentence was imposed in an illegal manner *fn1 because part of the trial Judge's inquiry pursuant to D.C. Code § 23-111 (b) (1989) *fn2 occurred prior to his conviction and not after his conviction, as required by that statute. Thus, he argues that this case should be remanded for resentencing. We affirm.

I.

APPELLANT'S CONVICTIONS AND SENTENCING

On September 4, 1987, appellant was convicted by a jury of carrying a pistol without a license ("CPWOL") (D.C. Code § 22-3204 (1989)); possession of an unregistered firearm (D.C. Code § 6-2311 (1989)); possession of unregistered ammunition (D.C. Code § 6-2361 (1989)); and attempted theft in the second degree (D.C. Code § 22-3811 (1989)). On October 22, 1987, the trial Judge imposed an enhanced sentence of three to nine years *fn3 on the CPWOL conviction. The basis for the enhanced sentence was appellant's prior conviction for armed robbery which had been disclosed in a government information filed pursuant to § 23-111 (a)(1). *fn4 This court affirmed appellant's convictions in an unpublished memorandum opinion and judgment, Norman v. United States, No. 87-1216 (D.C. March 31, 1989). In his direct appeal, appellant did not challenge his sentence or any prior conviction.

II.

POST-APPEAL PROCEEDINGS BEFORE THE MOTIONS JUDGE

On April 3, 1989, three days after this court affirmed his convictions, appellant filed in Superior Court a hand-written pro se motion to vacate, set aside, or correct his sentence, citing D.C. Code § 23-110. Appellant claimed that the trial Judge failed to strictly comply with the requirements of § 23-111 (b) by not asking him, after his conviction, whether he affirmed or denied any prior convictions. He also claimed that there was an error in the § 23-111 (a) information filed against him. *fn5 Thereafter, appellant, with the assistance of counsel, filed a supplemental memorandum in open court and requested that his motion be construed as a motion to correct a sentence imposed in an illegal manner, pursuant to Super. Ct. Crim. R. 35 (a). *fn6 The motions Judge, *fn7 relying on the holding in United States v. Frady, 456 U.S. 152, 167-68, 71 L. Ed. 2d 816, 102 S. Ct. 1584 (1982), ruled that because appellant had failed to raise an available challenge to his sentence on direct appeal, he could not, thereafter, collaterally attack the sentence, unless he made a showing of both cause for his failure to raise the issue on direct appeal and prejudice as a result of that failure. Finding that appellant had established neither cause nor prejudice, the motions Judge orally denied appellant's motion and subsequently issued a written order. This appeal followed.

III.

THE PROPRIETY OF THE RULING BY THE MOTIONS JUDGE

We affirm the judgment of the motions Judge on grounds different from those on which the motions Judge relied. See Craig v. United States, 551 A.2d 440 & n.4 (D.C. 1988). Appellant's pro se motion should have been construed by the motions Judge as a Rule 35 (a) motion. See Byrd v. United States, 500 A.2d 1376, 1378-79 n.5 (D.C. 1985), adopted en banc, Byrd v. United States, 510 A.2d 1035 (D.C. 1986) ("Since we look to the substance of appellant's pro se request for collateral relief rather than its form, we will consider appellant's entitlement to relief under Super. Ct. Crim. R. 35 (a)."). See Robinson v. United States, 454 A.2d 810, 813 (D.C. 1982).

Pursuant to the plain language of Rule 35 (a), a motion challenging a sentence imposed in an illegal manner may be made after an unsuccessful appeal. *fn8 The Rule 35 (a) motion must be filed within the jurisdictional time limitation. Robinson, supra, 454 A.2d at 813; see also United States v. Ramsey, 210 U.S. App. D.C. 285, 288, 655 F.2d 398, 401 (1981). *fn9 In Robinson, we distinguished between motions brought pursuant to D.C. Code § 23-110 and Rule 35 (a) motions as follows:

Although the general provisions of the statute authorizing collateral challenges to a sentence, D.C. Code 1981, ยง 23-110, could be construed to permit a motion for relief of any kind to be brought at any time, we conclude that Rule 35 imposes a rational complementing limitation on the court's jurisdiction to grant remedies for the different kinds of sentencing error . . . . Where a court of competent jurisdiction imposes a sentence within the limits authorized by the relevant statute, but commits a procedural error in doing so, it is not an abuse of discretion nor unreasonable -- when balancing concepts of fairness and finality -- ...


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