Appeal from the Superior Court of the District of Columbia (F-2718-91) (Hon. A. Franklin Burgess, Jr., Trial Judge).
The opinion of the court was delivered by: Ruiz, Associate Judge
Before RUIZ and REID, Associate Judges, and KERN, Senior Judge.
Appellant contends that he had a right to be present and allocute when he was resentenced pursuant to a remand from this court to correct an illegal sentence. We hold that if, at a resentencing to correct an illegal sentence, the trial judge has discretion as to the convictions to be vacated or the sentence to be imposed, the defendant has a due process right to be present and allocute. This is so regardless of whether the resentencing is pursuant to a remand order of this court or a motion filed under Rule 35 of the Superior Court Rules of Criminal Procedure. Because the trial court in this case did not, as a matter of law, have discretion to resentence appellant other than as it did, appellant's absence from the resentencing hearing was not a violation of due process. Therefore, we affirm.
Appellant was convicted in 1991 of first-degree felony murder, two counts of armed robbery, and possession of a firearm during a crime of violence. The evidence at trial established that while appellant committed an armed robbery of one person, one of his two companions shot and killed a second person after attempting to rob her at gunpoint, and his other cohort robbed and assaulted yet a third victim with another gun. Appellant was sentenced to three concurrent terms of five to fifteen years, one for each of the two armed robbery convictions and one for possession of a firearm during a crime of violence or dangerous offense. Those sentences were to run consecutively to a twenty-year to life term for felony murder. On direct appeal, this court affirmed appellant's convictions in an unpublished opinion. See Mooney v. United States, No. 92-CF-32 (D.C. Oct. 6, 1993).
On February 13, 2001, appellant filed a pro se "Motion to Correct or Modify Sentence Pursuant to Title 23 D.C. Code Section 110 (1981)," in which he argued that his consecutive sentences for felony murder and armed robbery violated the Double Jeopardy Clause of the Fifth Amendment. The trial court treated this motion as a motion to correct an illegal sentence pursuant to Superior Court Criminal Rule 35 (a), and concluded that the sentence did not violate the Fifth Amendment.
On appeal, the government initially agreed in its brief that one of appellant's convictions for armed robbery should be vacated since it merged with the felony murder conviction. It then filed a motion to remand with instructions to vacate both convictions for armed robbery "to resentence appellant on the remaining convictions in order to effectuate the trial court's original sentencing scheme."
We did not immediately respond to the government's motion to remand. Instead, we appointed counsel for appellant and directed that the parties file supplemental briefing on the issue of merger of the two armed robbery convictions and the felony murder conviction. On September 29, 2003, we issued a Memorandum Opinion and Judgment remanding the case for resentencing. Mooney v. United States, No. 01-CO-87 (D.C. Sept. 29, 2003).
Prior to the resentencing hearing, appellant's counsel filed an unopposed motion to return appellant to the District of Columbia*fn1 for resentencing, claiming that because the case had been remanded, appellant was "before the Court for resentencing as though he had not previously been sentenced in this case; therefore, pursuant to D.C. Crim. R. 32,*fn2 his presence is required for a sentencing hearing." The motion also requested a status hearing to "establish the procedure for resentencing" and noted that counsel had "discussed this motion with Asst. U.S. Attorney Robert Okun, who does not oppose it." Subsequently, on February 3, 2004, the trial court issued an order for appellant to be returned for a status hearing on April 1, 2004.
Despite the trial court's order, appellant was not brought to the courthouse for the status hearing. Discussing the nature of the resentencing hearing that was to take place, appellant's counsel asserted that it was "essentially a re-sentencing de novo," and that therefore appellant should be present. The government argued that it was not a new resentencing, but "merely a correction of sentence," and, therefore, pursuant to Superior Court Criminal Rule 43 (c)*fn3 , the defendant did not have a right to be present or to allocute.
The court ordered both parties to submit written arguments in support of their respective positions.
After considering the parties' written submissions, the trial court ruled that because it chose to vacate appellant's two armed robbery convictions, and preserve the felony murder with the mandatory minimum sentence of twenty years to life, effectively reducing the overall sentence by five years, appellant did not have a right to be present. The trial court supported this conclusion by reference to our opinion in Wells v. United States, 469 A.2d 1248 (D.C. 1983) (per curiam), in which we held that a defendant's presence was not required when the trial court vacated a conviction for arson underlying a conviction for felony murder pursuant to the defendant's Rule 35 motion to correct an illegal sentence.*fn4 The trial court observed that if it vacated the two underlying armed robbery convictions, appellant would be in the same position as the defendant in Wells. "Moreover," the trial court reasoned, "the defendant will actually receive a sentence less than what was envisioned by the Court by its making the armed robbery sentences (one or both) consecutive to the felony murder sentence . . . ." Because the court concluded that a "defendant need not be present at a reduction of sentence," see Super. Ct. Crim. R. 43, supra n.4, the trial court ordered, without ...