Appeal from the Superior Court of the District of Columbia (FEL2824-99) (Hon. Russell F. Canan, Trial Judge).
The opinion of the court was delivered by: Newman, Senior Judge
Before WASHINGTON, Chief Judge, BLACKBURNE-RIGSBY, Associate Judge, and NEWMAN, Senior Judge.
Smith challenges his resentencing for manslaughter while armed as violative of the double jeopardy clause. Because we find the court increased Smith's sentence in which he had an expectation of finality, we remand with instructions to the court to reinstate the earlier sentence. In so doing, we recognize that the jurisprudential basis of our previous rulings construing Superior Court Rule of Criminal Procedure 35 (b) as "jurisdictional" has been "substantially undermined" by subsequent cases of the Supreme Court, and we choose to hold as a matter of District of Columbia law that Rule 35 (b) is a "claim-processing" rule, not a "jurisdictional" rule.
Smith pled guilty in September of 2000 to one count of manslaughter while armed; on February 2, 2001, he was sentenced to a term of no less than eight years and no more than twenty-four years, with credit for time served. He filed a motion to reduce his sentence pursuant to Superior Court Rule of Criminal Procedure 35 on June 4, 2001, barely within the 120-day time limit imposed by that rule. Super. Ct. Crim. R. 35 (b). On May 7, 2004, Judge Canan reduced Smith's sentence by suspending all but eight years, in recognition of his assistance in criminal investigations.*fn1 That term of eight years was set to expire on April 27, 2007, with a five-year period of probation to follow.
On February 13, 2007, Smith appeared before Judge Canan and requested that he be released from his term of incarceration out of concern for his safety at the halfway house where he was then serving his sentence. The court reduced Smith's sentence to not less than seven years to not more than twenty-four years, with execution of the sentence suspended with respect to all but the seven years, and with credit for time served. The United States did not object on the grounds that Smith's motion to reduce his sentence exceeded the 120-day time limit imposed by Super. Ct. Crim. R. 35 (b).
On February 15, 2007, Judge Canan called the parties back into court and informed them that because the 120-day time limit in Rule 35 (b) had lapsed, the court "lacked jurisdiction" to reduce the defendant's sentence on February 13. The court stated, in relevant part:
Well I was aware then, quite frankly, that the Court didn't have jurisdiction, that the 120 days under Rule 35 had long since lapsed, and there was just no authority to do it, but in application, I was just very concerned about his safety. . . . It wasn't a legal sentence. It wasn't a legal act that I did. . . . I'm going to have to vacate that [February 13] order, because I had no legal, it was an illegal act.
Because the court believed it lacked jurisdiction to render the February 13 sentence, over Smith's objection, it reimposed, the previous sentence of eight to twenty-four years with execution suspended with respect to all but eight years. Smith was returned to incarceration, albeit in a different facility, and served until April 27, 2007, when he began serving probation.
Smith contends, and the United States agrees, that his double jeopardy rights were violated by the proceedings in the trial court on February 15, 2007, because the court increased Smith's February 13, 2007, sentence, in which Smith had a legitimate expectation of finality, after he began serving it.
The double jeopardy clause provides that no person shall "be subject for the same offense to be twice put in jeopardy of life or limb. . . ." U.S. CONST. amend. V, cl. 2. This court has applied that clause to cases like the present one, holding, "once a defendant begins serving a sentence, the sentence may not lawfully be increased." (Calvin) Smith v. United States, 687 A.2d 581, 583 (D.C. 1996). However, this rule is not absolute. The court may correct an illegal sentence at any time to bring it into conformity with the law. Id. (citing Super. Ct. Crim. R. 35 (a)). The "dispositive consideration" is whether the defendant had an "expectation of finality" in the previous sentence. Id.
The question is whether Smith had an expectation of finality in the February 13 sentence. Judge Canan's stated reason for rescinding the sentence reduction was that he did not have authority, under Super Ct. R. Crim. P. 35 (b), to reduce the sentence in the first instance, because Smith's motion was made more than 120 days after the date of sentencing.*fn2
Judge Canan stated that "the Court didn't have jurisdiction . . . there was just no authority to do it . . . it was an illegal act." If the judge were correct that under Rule 35 (b) the court lacked jurisdiction to reduce the sentence on February 13, double jeopardy would not bar resentencing because Smith would have had no legitimate expectation of finality in the February 13 sentence. While one can still have an expectation of finality in a sentence predicated upon an erroneous interpretation of the law, Boykins v. United States, 856 A.2d 606, 609 (D.C. 2004), one cannot have an expectation of finality where the court never had jurisdiction to render the sentence. Lindsay v. United States, 520 A.2d 1059, 1063 (D.C. 1987) (holding an illegal sentence creates "no vested rights protected by the double jeopardy clause").*fn3
The question ultimately is whether Rule 35 (b)'s 120-day time limit on motions to reduce a sentence is "jurisdictional" or whether it is a "claim-processing" rule. If the rule is "jurisdictional," its restrictions limit the cases properly before the court, regardless of whether the parties invoke it. "Claim-processing" rules, by contrast, are rules that "assure relief to a party properly raising them, but do not compel the same result if the party forfeits them." Eberhart v. United States, 546 U.S. 12, 19 (2005). Here, the United States concedes that it did not raise an objection to the February 13 sentence on the grounds that it violated Rule 35 (b)'s time limit. Thus, if Rule 35 (b) is a ...