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Herring v. United States

Court of Appeals of Columbia District

September 14, 2017

Jacob Herring, Appellant,
v.
United States, Appellee.

          Argued April 4, 2017

         Appeal from the Superior Court of the District of Columbia (CF3-12811-09)(Hon. Ann O'Regan Keary, Trial Judge)

          Mikel-Meredith Weidman, Public Defender Service, with whom Samia Fam and Jaclyn Frankfurt, Public Defender Service, were on the brief, for appellant.

          David P. Saybolt, Assistant United States Attorney, with whom Channing D. Phillips, United States Attorney, and Elizabeth Trosman, Suzanne Grealy Curt, and Bernard J. Delia, Assistant United States Attorneys, were on the brief, for appellee.

          Before Glickman and Fisher, Associate Judges, and Reid, Senior Judge.

          Fisher, Associate Judge.

         After otherwise affirming appellant Jacob Herring's convictions on direct appeal, we remanded with instructions to merge his two convictions for possession of a firearm during a crime of violence ("PFCV"). On remand, the trial court amended the judgment and commitment order by removing the consecutive PFCV count, but it retained a total sentence consistent with vacating the concurrent count. Upon discovering the mistake, the court reinstated the consecutive count, confirming that it had not intended to reduce appellant's total sentence. The principal issue before us now is whether the Double Jeopardy Clause precluded the court from correcting its error. We conclude that there is no double jeopardy bar and affirm.

         I. Factual Background

         After a jury trial, Mr. Herring was convicted of several offenses related to a shooting, including two counts of PFCV-Counts Three and Four of the indictment. On January 18, 2011, after carefully explaining her reasons for choosing this punishment, Judge Keary sentenced Mr. Herring to imprisonment for "a total of 174 months, or 14 and a half years." She first imposed concurrent terms of sixty-six months for two counts of assault with a dangerous weapon ("ADW")-one count for each victim-then sentences of sixty months' incarceration on each of the PFCV counts. One PFCV sentence would be served concurrently with the sentences for ADW, but the other PFCV sentence would run consecutively. The court also imposed a consecutive sentence of forty-eight months for obstruction of justice.

         The judgment and commitment order accurately recorded Judge Keary's oral pronouncement, committing Mr. Herring "to the custody of the Attorney General to be incarcerated for a total term of 174 months." It reflected sentences of "60 month(s) incarceration, concurrent, " on Count Three and "60 month(s) incarceration, consecutive, " on Count Four. The various concurrent and consecutive periods of incarceration totaled 174 months. Ryshawn Jackson, appellant Herring's codefendant, was sentenced to 198 months in prison.

         Both defendants appealed their convictions to this court. In an unpublished memorandum opinion and judgment issued in November 2013, we found no merit to their substantive complaints, but agreed that the PFCV convictions merged. Jackson & Herring v. United States, Nos. 11-CF-105 & 11-CF-507, Mem. Op. & J. at 2 (D.C. Nov. 25, 2013). Thus, we remanded the case with instructions "to vacate one of the PFCV convictions for each appellant." Id. at 3.

         Judge Keary issued an amended judgment and commitment order for Mr. Herring in January 2014. This order removed Count Four-the PFCV sentence which had been designated consecutive in the January 2011 J&C-from the list of Mr. Herring's convictions. However, with respect to several counts, including Count Three-the PFCV sentence that survived, it neglected to specify whether the sentences were consecutive or concurrent. The January 2014 J&C still committed Mr. Herring "to the custody of the Attorney General to be incarcerated for a total term of 174 months."

         Because District law presumes that sentences run consecutively unless the court expressly indicates otherwise, see D.C. Code § 23-112 (2012 Repl.), Mr. Herring filed a motion asking the court to reinsert "concurrent" as it had appeared on the January 2011 J&C order. The government did not oppose Mr. Herring's motion, and the court obliged. In April 2014 the court issued another amended judgment and commitment order which specified a sentence of "60 month(s) incarceration, concurrent" on Count Three. Like every other judgment and commitment order issued in this case, it indicated that Mr. Herring was "to be incarcerated for a total term of 174 months." It appears that neither Mr. Herring nor the government brought to the court's attention the inconsistency on the face of the order: when aggregated, the terms of incarceration for the various counts now totaled only 114 months.

         On March 16, 2016-nearly two years after the court's most recent amendment of the judgment and commitment order-Judge Keary's law clerk sent a letter notifying Mr. Herring's counsel of "certain clerical errors in Mr. Herring's April 22, 2014 amended Judgment and Commitment Order." The letter stated that Judge Keary wished to correct four errors.[1] Among them,

[t]he amended Judgment and Commitment Order vacated the wrong [PFCV] count (count 4 was vacated, instead of count 3[).] Consistent with Judge Keary's original sentencing intent, the PFCV sentence was to run consecutive to the Assault with a Dangerous Weapon ("ADW") count. Thus, Judge Keary proposes to correct this error in the amended Judgment and Commitment Order by vacating the Count 3 sentence and reinstating Count 4, the consecutive sentence. This does not change the defendant's original sentence in any way.

         The letter cited Criminal Rule 36 as authority for correcting this inadvertent error.

         Mr. Herring objected to this change, contending that double jeopardy principles prohibited reinstatement of Count Four because he had already begun serving his sentence on Count Three. He also argued that, in any event, Rule 36 did not authorize the court to make this change, which he asserted was substantive, not clerical. Finally, citing Downey v. United States, 91 F.2d 223');">91 F.2d 223 (D.C. Cir. 1937), Mr. Herring maintained that he was entitled to a hearing before a different judge at which Judge Keary could be called as a fact witness.

         Judge Keary held a hearing on the issues, during which she explained:

I in too hasty a review of the [J&C order], . . . failed to notice that the clerk had retained the concurrent PFCV count, Count Three, and had removed the Count Four PFCV sentence, which was imposed consecutively, thus altering the original sentence and reducing it by five years. Of course, the aggregate total sentence shown on the J&C was still listed as the same, 174 months.

         She concluded that "[r]einstatement of the correct count, the consecutive count, Count Four, falls within the Court's inherent power to correct its record under Rule 36" and that "corrections [were] needed . . . to resolve the patent inconsistency on the face of the J&C . . . and . . . to maintain the Court's original sentencing intent back at the time of the sentencing in 2011."

         Judge Keary also commented that there was "no reason for the Court to reconstruct its memory" in an on-the-record hearing before a different judge because her January 18, 2011, oral pronouncement unambiguously revealed her intent to sentence Mr. Herring to 174 months of incarceration. She explained that her "continuing intent at the time of the 2014 judgment and commitment order was not to reduce his sentence, but that he serve the consecutive PFCV sentence that I had originally imposed and that's reflected as well by the lack of change in the total amount of . . . prison time, the 174 months, which has remained the same throughout the period of time despite multiple amendments to the judgment and commitment order."

         Furthermore, Judge Keary did not view the alteration to the judgment and commitment order as presenting a double jeopardy issue:

The defendant was tried and convicted by the jury of these offenses that the Court sentenced him to. I am not by my action today exposing him to a new risk of punishment for the same offense, I'm merely correcting the error made by my oversight in the amendment of the judgment and commitment order after the Court of appeals found that those two counts merged. The court's error, which I acknowledge, does not entitle Mr. Herring to a windfall of a five year reduction of his sentence.

         She held that Mr. Herring "has had no legitimate expectation of finality" in the April 2014 J&C order, which "was ambiguous on its face." "Given the fact that the judgment and commitment order continued to list 174 months, it's difficult to see how he can assert that he legitimately thought his sentence was 60 months less than that." Judge Keary also noted that the usual practice of courts-and hers-is to preserve the "consecutive sentence structure" originally imposed. She would not have reduced Mr. Herring's sentence by five years without giving notice to the parties and without explaining the reduction.

         On July 7, 2016, the court issued a new amended judgment and commitment order which reinstated Count Four-the consecutive PFCV sentence-and committed Mr. Herring to a total term of incarceration of 174 months. As had been the case in January 2011, the ...


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