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August 6, 1998



Before Terry and Steadman, Associate Judge, and Belson, Senior Judge.

The opinion of the court was delivered by: Steadman, Associate Judge:

In this appeal, we are required to address a trial court's power to modify a sentence in the course of a sentencing procedure that extended over a five-week period. The upward modification came about when the trial court discovered that appellant would likely receive presentence credit for time spent in a halfway house, thus frustrating the court's intent, expressed at the initial sentencing hearing, to have appellant actually serve two years' imprisonment. We hold that, under the facts of the present case, the trial court did not exceed its authority in sentencing appellant nor abridge her double jeopardy rights. *fn1


After pleading guilty to murder in the second degree for the drowning of her three-year-old son, appellant Michelle Francis was sentenced on February 9, 1996, to a term of ten to thirty years, of which the entirety was suspended save for twenty-four months. The trial court, and apparently all parties as well, thought the twenty-four months would be spent in prison or a prison-like medical [715 A2d Page 896]

facility. The prison term was to be followed by five years' probation. On defense counsel's motion, the trial court stayed execution of the sentence so that Francis could remain in the halfway house and would not be required to report to the custody of the executive branch until the question was settled as to the availability of space at what defense counsel termed the federal "correctional system treatment facility commonly referred to colloquially as CTF." *fn2 The court and defense counsel considered such a placement very important for the mental health treatment of Francis's bipolar disorder. *fn2 The court proceeded to set a "control date" of February 20, 1996 to monitor the situation as of that date. *fn2

At a brief proceeding on February 20, continued to February 23, the trial court sua sponte raised the issue that in its sentencing decision it had failed to take account of the Department of Corrections' policy regarding presentence credit, and that depending on how the Department decided to consider Francis's presentence commitment to a halfway house, she might be eligible for immediate release on probation. This would defeat the court's stated intent for Francis to serve a sentence of two years' imprisonment. Given this new concern, the court continued the matter to March 14 to give the parties an opportunity to develop their positions.

At the next proceeding on March 14, the trial court heard argument from both the government and defense counsel. After satisfying itself that Francis would likely receive credit for her presentence time spent at the halfway house, the trial court said that, in order to "effectuate the Court's true intent," it had decided "at this point to impose a sentence" of ten to thirty years, followed by five years probation, with all of the incarceration suspended except for forty-five months. Thus, with the presentence credits, Francis would serve two years' time in prison before beginning probation.

Francis protested to the trial court, as she does to us, that the trial court acted beyond its authority. In response, the trial court recalled that "during the initial sentencing proceeding the Court clearing [sic] and unmistakably contemplated that she [Francis] would serve an additional two years beyond the time she has spent in the halfway house." Citing several of our cases, *fn3 the court concluded that its action was not inappropriate where done to "effect the Court's true intent." Given the overall posture of this particular case, we agree with the trial court's assessment and therefore affirm.

In doing so, we initially take special note of certain salient features of this case. The proceeding on February 9 did bear much of the general formality of an oral pronouncement of sentence, *fn4 and the unambiguous intention of the trial court and the apparent expectation of all concerned at that time was the imposition of a split sentence of two years' prison confinement and five years' probation. These facts are readily discernible from even a cursory inspection of the hearing transcripts. At the outset of the February 9 proceeding, the trial court inquired into whether "there [is] any factual historical matter that requires correction before [715 A2d Page 897]

counsel proceeds with allocution and sentencing proceedings." The court then asked a series of questions which revealed its desire to arrive at a sentence that properly balanced Francis's need for mental health treatment and the government's interest in punishment and deterrence. The court inquired of Francis's defense counsel into his client's prospects for mental health recovery if forced to serve a split sentence of incarceration and probation:

If [t]he Court were inclined to impose a strict sentence[,] is federal designation a reasonable option to ensure that your client receives the appropriate lithium treatment, and mental health treatment if she were required to serve some time in a prison as part of a split sentence[?]

The court added,

Well, actually, this Court has pondered even a further question, and that is not simply warehousing, but if [t]he Court were to impose a split sentence where your client had to spend a year or two years or three years in prison, would she decompensate, would she then end up in St. Elizabeth's Hospital, and completely defeat the recovery or performance she has had over the last year and a half[?] I have wrestled with that question also.

Similarly, as a preface to its actual imposition of sentence the court remarked,

This is certainly not an easy case to impose a sentence in, and [t]he Court has pondered . . . [t]he appropriate approach to sentencing in this case, and while [t]he Court is sympathetic towards Ms. Francis and her circumstances[,] in sentencing in all cases [t]he Court must not only look at the defendant, but look at the victim of the case, and the rights and expectations of individuals in the community.

All participants at the February 9 hearing acknowledged that some period of incarceration, in some form, would be imposed. Francis's counsel himself argued for a period of confinement in a halfway house before allowing his client onto probation:

I think as [t]he Court knows from our letter, we are not suggesting or recommending to [t]he Court that [t]he Court place Ms. Francis on straight probation. That is not the sentence we are asking for. Indeed, the sentence we are asking for is a sentence that is a sentence, a split sentence, ...

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