Criminal Law Blog

No Double Jeopardy violation when trial court fixed “clerical error” two years after issuing sentencing order

Herring v. United States (decided Sept. 14, 2017)

Players: Associate Judges Glickman and Fisher, Senior Judge Reid. Opinion by Fisher. Trial Judge: Ann O’Regan Keary. PDS for Mr. Herring.

Facts: After a jury trial, Mr. Herring was convicted of several offenses related to a shooting, including two counts of possession of a firearm during a crime of violence (PFCV). These counts represented counts three and four. Judge Keary sentenced Mr. Herring to “a total of 174 months” with sixty months on each of the PFCV counts. Judge Keary ordered count three to be concurrent while count four would be consecutive. On his direct appeal, the Court of Appeals affirmed Mr. Herring’s convictions but remanded with instructions to merge the two PFCV convictions. Upon remand, Judge Keary issued an amended commitment order which removed count four (the PFCV count designated as consecutive), but otherwise neglected to state whether the remaining convictions would be consecutive or concurrent. The order stated the total term of incarceration would be 174 months.

Mr. Herring then filed an unopposed motion requesting that the court re-instate the word “concurrent,” as it had originally. In April, 2014, the court obliged and issued an amended order which specified a sentence of “60 months incarceration” but kept the total term of 174 months. At the time, neither Mr. Herring nor the government brought to the court’s attention that the aggregate term would only be 114 months if the count was to be concurrent, but that she had left the total term as 174 months.

Nearly two years later, Judge Keary sent a letter to Mr. Herring that due to “certain clerical errors,” the order vacated the wrong PFCV count, that the consecutive count should have remained, but concluding “[t]his does not change the defendant’s original sentence in any way.”

Mr. Herring objected, arguing that the double jeopardy clause prohibited reinstatement of the consecutive counts because he had already begun serving his sentence and that the change was substantive and not clerical. Mr. Herring also requested a hearing before a different judge so that Judge Keary could be called as a witness.

Judge Keary held a hearing where she ruled she had “in too hasty a review” failed to notice that the clerk had retained the concurrent PFCV count instead of the consecutive count. She concluded that reinstatement of the correct count was within the court’s inherent power pursuant to Rule 36. The judge also concluded there was “no reason” to reconstruct her memory by testifying before a different judge because her on-the-record pronouncements consistently revealed her intent for a total sentence of 174 months.

Issue:  Whether the court reinstating the term “consecutive” two years after issuing the sentencing order violated the Double Jeopardy Clause of the Fifth Amendment?

Holding: No. The Court concluded that Mr. Herring was not constitutionally entitled to a removal of the term consecutive for the remaining PFCV count. First, the Court concluded that, even though a person typically attains a legitimate expectation of finality in a prison sentence when he begins serving it, Mr. Herring he did not have a legitimate expectation here. Without addressing the two-year delay, the Court believed Mr. Herring could not have had a reasonable expectation of finality because Judge Keary’s sentencing order was “ambiguous on its face.” The Court said that the total term of 174 months could not be disregarded, but rather “supplied concrete information about the court’s sentencing intent.” Also, the Court stated “no reasonable defendant would disregard the incongruity between the total term and the sentences listed on the face of the judgment and commitment order,” warning future defendants that “the proper response to a seemingly ambiguous court order is not to read it as one wishes.” The Court distinguishes Mr. Herring’s case from cases such as United States v. Robinson, 388 A.3d 469 (D.C. 1978), Smith v. United States, 687 A.2d 581 (D.C. 1996), and Borum v. United States, 409 F.2d 433 (D.C. Cir. 1967), because in each of those cases the inconsistency occurred when comparing one order to a different order. But here, the Court stated, because the same order contained the inconsistency Mr. Herring is “not automatically entitled to the less severe construction of the unclear judgment and commitment order.”

Second, the Court rejected Mr. Herring’s argument that because he had already served one PFCV sentence by the time Judge Keary years later amended the judgment that he had been “unconstitutionally subjected . . . to multiple punishments for the same offense.” The Court wrote that “‘in the multiple punishments context, th[e] [Double Jeopardy Clause] interest is limited to ensuring that the total punishment did not exceed that authorized by the legislature.’” (quoting Jones v. Thomas, 491 U.S. 376, 381 (1989)). Per the Court, Mr. Herring had no legitimate expectation that his sentence for PFCV would be served concurrently with his sentences for ADW, rather than consecutive to those sentences”

Third, the Court concluded that the error in the sentencing order was a clerical error, subject to correction under Rule 36, and not a substantive one. Rule 36 allows a court to correct clerical errors “at any time.” Mr. Herring argued that there was no evidence that there was even an error in the first place when Judge Keary removed the consecutive PFCV while leaving the concurrent count. The Court, by relying on Judge Keary having always left the total term of 174 months, disagreed. The Court wrote that in reaching the conclusion that it was a clerical error, Judge Keary was permitted to rely on the “entire record,” as opposed to only the face of the sentencing order.

And fourth, the Court ruled that Judge Keary did not need to testify. The Court agreed that it would have been error for Judge Keary to rely on her memory in ruling against Mr. Herring, but determined that is not what she did. Instead, the Court ruled she had “considered only materials in the record” The Court dismissed Judge Keary writing that the mistake occurred because in her “too hasty [] review [she] failed to notice” the consecutive PFCV was the count that had been removed. The Court felt that was not an example of her relying on her memory, but “a natural inference from the materials in the record.”

Of note:
 The Court's opinion holds that if there is an ambiguity in a sentencing order—as opposed to inconsistencies between different orders—a defendant cannot assume that automatically the less severe construction controls. BM

Read the full opinion here.