August 5, 2010
RAMY M. ELHALABY, APPELLANT,
UNITED STATES, APPELLEE.
Appeal from the Superior Court of the District of Columbia (F-5104-03) (Hon. Rafael Diaz, Trial Judge).
The opinion of the court was delivered by: Kramer, Associate Judge
Argued February 23, 2010
Before KRAMER and THOMPSON, Associate Judges, and TERRY, Senior Judge.
Ramy Elhalaby appeals from the denial of his Motion to Reduce Sentence and argues that this court should vacate his sentence and remand for re-sentencing because he was denied the right to allocute on his own behalf at his probation revocation hearing. We review for plain error because Elhalaby did not object at the hearing. We do not find plain error, and we affirm.
I. Factual Summary
On April 9, 2004, Elhalaby pled guilty to one count of attempted distribution of cocaine under D.C. Code § 48-904.01 (a)(1). Judge Rafael Diaz sentenced him to twenty years of incarceration, execution of sentence suspended, and five years of probation. Elhalaby was again brought before Judge Diaz on July 6, 2006, in a show cause hearing for a probation violation, and sentenced to ten years of incarceration. During the show cause hearing, Judge Diaz heard from the prosecutor, defense counsel, and Elhalaby's probation officer, but he did not invite Elhalaby to speak on his behalf in mitigation of his sentence.
Elhalaby filed a timely Motion to Reduce Sentence pursuant to Superior Court Rule of Criminal Procedure 35, arguing for leniency on several grounds and requesting a hearing. He urged the trial court to consider the fact that he was not allowed to speak on his own behalf as a factor weighing in favor of granting him a hearing and reducing his sentence. He did not, however, explicitly assert his right to allocute pursuant to Superior Court Rule 32(c)(1),*fn1 or request a vacation of his sentence and re-sentencing. The trial court denied the motion and this appeal followed.
II. Legal Analysis
We review the denial of a motion for the reduction of sentence for an abuse of discretion.*fn2 "Generally, sentences within statutory limits are unreviewable aside from constitutional considerations."*fn3 Since Elhalaby's ten-year sentence is not unconstitutional, or otherwise illegal, he concedes that the trial court did not abuse its discretion in denying his motion for a reduction in sentence.
Instead, Elhalaby contends that the trial court erred by failing to invite him to allocute on his own behalf at his probation revocation hearing. He urges us to vacate his sentence and remand for re-sentencing.*fn4 We review the allocution claim for plain error*fn5 because defense counsel failed to object at the probation revocation hearing.*fn6 Under the plain error standard, we will vacate Elhalaby's sentence only if he establishes error that is plain, that affects a substantial right, and that "seriously affect[s] the fairness, integrity or public reputation of judicial proceedings."*fn7 We conclude that if there was error here, which we do not decide, it certainly was not plain. Thus, we affirm.
"A court of appeals cannot correct an error pursuant to [plain error review] unless the error is clear under current law,"*fn8 i.e., "the issue is whether the error was plain at the time of trial."*fn9 While we recognize an exception "where the law at the time of trial was settled and clearly contrary to the law at the time of appeal,"*fn10 that is not the case here. A synopsis of the District's law on the right to allocute, as well as federal law on the subject, provides the necessary context. Super. Ct. Crim. R. 32 (c)(1) strictly requires courts to provide a criminal defendant the right to allocute at his original sentencing.*fn11 None of the District's criminal rules, however, require trial courts to provide a criminal defendant the right to allocute upon revocation of probation. Super. Ct. Crim. R. 32.1, which governs probation revocation proceedings, provides only that the probationer shall be given an opportunity to appear and to present witnesses as well as question adverse witnesses. Moreover, Super. Ct. Crim. R. 43 (c)(4) provides that a defendant does not need to be present or allocute "when the proceeding involves a reduction or correction of sentence under Rule 35."
Elhalaby contends that Rule 32 (c)(1), rather than Rule 32.1, should have applied at his probation revocation hearing because the judge did not reimpose his original sentence, but rather "fashion[ed]" a new, more lenient sentence.*fn12 We disagree. In Mulky v. United States, we held that the trial court has the option of imposing a different sentence upon revocation of probation, in addition to the standard option of reimposing the original sentence.*fn13 Critically, however, we concluded that the new sentence imposed would be authorized by Super. Ct. Crim. R. 35, the rule governing the correction or reduction of sentence.*fn14 Thus, Mulky made clear that the imposition of a reduced sentence upon revocation of probation was governed by Rule 35 and its attendant requirements, as opposed to Rule 32. As we explained above, Rule 43 (c)(4) explicitly states that a defendant does not have a right to allocute when a sentence is altered pursuant to Rule 35.
Moreover, Applewhite v. United States, supra note 5, makes clear that a defendant in our jurisdiction does not have a due process right to be present or to allocute where a previously imposed sentence takes effect upon revocation of probation: "We  hold, like the majority of the federal courts in comparable cases, that a defendant need not be given an opportunity to allocute again when a sentencing court revokes probation and orders that a previously imposed sentence take effect."*fn15 The law thus indicates that the trial court's failure to invite Elhalaby to allocute at his probation revocation hearing does not constitute plain error.*fn16
While Elhalaby has failed to establish that the trial court made an error that was plain, i.e., clear or obvious, we find it significant that the federal caselaw underlying Applewhite, which the government also relies on to assert that there is no right of allocution upon revocation of probation, has since been undermined by a change in federal statutory law.*fn17
All of the federal circuit cases cited in Applewhite for the proposition that a criminal defendant never has a right to allocute upon revocation of probation were premised upon Fed. R. Crim. P. 32.1 (b)(E), the federal rule of criminal procedure upon which Super. Ct. Crim. R. 32 (c)(1) is modeled. Notably, Fed. R. Crim. P. 32.1 (b)(2)(E) was amended in 2005, to state explicitly that a defendant's right of allocution does attach upon revocation of probation. The amended Rule 32.1 (b)(2)(E) now reads:
Unless waived by the person, the court must hold the revocation hearing within a reasonable time in the district having jurisdiction. The person is entitled to . . . an opportunity to make a statement and present any information in mitigation.*fn18
Thus, the rationale underlying federal circuit case law holding that there is no right of allocution upon revocation of probation, and supporting the main thrust of the government's argument, no longer exists.*fn19
While the government's argument is weakened by the shift in federal law, we must affirm because the trial court's error was not plain at the time of Elhalaby's hearing.*fn20
Although the government does not necessarily convince us that there should never be a right to allocute at a probation revocation hearing, especially in light of the amended Fed. R. Crim. P. 32.1, it does establish that the trial court's error was not plain because the law on the right to allocute upon revocation of probation was not clear at the time of Elhalaby's hearing and remains unsettled today.*fn21
We observe, however, that the federal circuit courts that found no right to allocute at probation revocation hearings under the earlier version of Fed. R. Crim. P. 32.1 nevertheless admonished federal district courts to invite criminal defendants to speak in mitigation of their sentence. For example, in Core, the Seventh Circuit stated:
[W]e believe the better practice would be for the trial court to personally address the defendant and permit him to speak regardless of whether it is at the time of original sentencing, at a hearing on a motion to reduce sentence previously imposed, or, as in this case, at a revocation proceeding. We urge this procedure upon the various district courts of this Circuit.*fn22
In Coffey, the Sixth Circuit agreed, concluding "like the Seventh Circuit, we believe it is sound practice for a district court to permit a defendant to speak regardless of the timing of the sentencing."*fn23 Therefore, though we find no plain error in this case, we recommend that the trial judges in our jurisdiction follow the federal example.