Eugene W. Thompson, Petitioner, Appellant, v. United States of America, Appellee, 495 F.2d 1304 (1st Cir. 1974)

Petitioner was convicted of distributing and conspiring to distribute narcotics, in violation of 21 U.S.C. 841(a) (1), 846 (1970). This court affirmed the conviction, United States v. Thompson, 481 F.2d 650 (1st Cir. 1973) (per curiam), and petitioner commenced serving this sentence.

While the appeal was pending, the trial court received a letter from the Bureau of Prisons noting that the court in sentencing petitioner had omitted inclusion of a 'special parole term.' The relevant statute requires the imposition of such a term in addition to any prison sentence. See 21 U.S.C. 841(b) (1) (A) (1970). In response to the letter, and in the petitioner's absence, the court amended the judgment so as to include a special parole term of three years, the statutory minimum, as well as the original ten year prison term.

Petitioner subsequently filed a pro se motion to correct sentence pursuant to Fed. R. Crim. P. 35, contending that the court's addition of the three year special parole term to his original sentence without a corresponding three year reduction in his prison term constituted an increase in sentence in violation of the double jeopardy clause of the fifth amendment.¹  The trial court dismissed the motion, relying upon United States v. Thomas, 356 F. Supp. 173 (E.D.N.Y. 1972), aff'd in open court, 474 F.2d 1336 (2d Cir. 1973).²  Since the trial court's decision, identical holdings have been reached by the Fifth and Tenth Circuits. Garcia v. United States, 492 F.2d 395 (10th Cir. 1974); Caille v. United States, 487 F.2d 614 (5th Cir. 1973) (per curiam).

In this appeal, petitioner contends that the trial court, as well as the Garcia, Caille and Thomas courts, erred on the double jeopardy claim. Petitioner also raises an issue on appeal that he did not raise before the trial court: namely, whether he was denied the right of being present when the second sentence was entered.

With respect to the double jeopardy claim, the leading Supreme Court case is Bozza v. United States, 330 U.S. 160, 67 S. Ct. 645, 91 L. Ed. 818 (1947). There, the defendant was convicted under a statute which required as a minimum sentence both a $100 fine and imprisonment. The trial court initially imposed only a prison term. However, five hours after sentence was announced, the court realized its error and added a $100 fine. The Supreme Court rejected defendant's contention that the late addition of the fine constituted double jeopardy stating:

'The Constitution does not require that sentencing should be a game in which a wrong move by the judge means immunity for the prisoner. See King v. United States, 69 App.D.C. 10, (15), 98 F.2d 291, 296. In this case the court 'only set aside what it had no authority to do, and substitute(d) directions required by the law to be done upon conviction of the offender.' In re Bonner, (151 U.S. 242, 260, (14 S. Ct. 323, 38 L. Ed. 149) (1894)). It did not twice put petitioner in jeopardy for the same offense. The sentence, as corrected, imposes a valid punishment for an offense instead of an invalid punishment for that offense.'

330 U.S. at 166-167. The full import of Bozza is that a trial court not only can alter a statutorily-invalid sentence in a way which might increase its severity, but must do so when the statute so provides. See Pollard v. United States, 352 U.S. 354, 361, 77 S. Ct. 481, 1 L. Ed. 2d 393 (1957); United States v. Bishop, 487 F.2d 631, 633 (1st Cir. 1973).

Bozza controls the instant case. Because the trial court's initial sentence omitting the special parole term was invalid, the new sentence including such term was not merely permitted but required. Consequently, as the Garcia, Caille and Thomas courts have already concluded, there was no violation of the double jeopardy clause.³ 

In this appeal petitioner also contends that he was denied the right to be present when the trial court added the three year special parole term to his sentence. See United States v. Behrens, 375 U.S. 162, 84 S. Ct. 295, 11 L. Ed. 2d 224 (1963); Fed. R. Crim. P. 32(a), 43. The first question we must resolve is whether we can properly consider the issue at this time, in view of the fact that petitioner failed to raise it before the trial court.⁴ 

Ordinarily, this court will not consider issues not raised before the court below. However 'in exceptional circumstances, especially in criminal cases, appellate courts, in the public interest, may, of their own motion, notice errors to which no exception has been taken, if the errors are obvious, or if they otherwise seriously affect the fairness, integrity or public reputation of judicial proceedings.' Silber v. United States, 370 U.S. 717, 718, 82 S. Ct. 1287, 1288, 8 L. Ed. 2d 798 (1962) (per curiam), quoting United States v. Atkinson, 297 U.S. 157, 160, 56 S. Ct. 391, 80 L. Ed. 555 (1936). Here, the alleged failure of petitioner to be present at his own sentencing is an error which, although perhaps not obvious, affects seriously the fairness, integrity and public reputation of judicial proceedings. See Note, Procedural Due Process at Judicial Sentencing For Felony, 81 Harv. L. Rev. 821, 830-32 (1968). In addition, the fact that petitioner is incarcerated and acting pro se supports a decision on the merits at this time. See United States v. Sawaya, 486 F.2d 890, 892 (1st Cir. 1973). Therefore, we will consider this issue on appeal. See Bartone v. United States, 375 U.S. 52, 84 S. Ct. 21, 11 L. Ed. 2d 11 (1963).

A defendant has the right under Rules 32(a) and 43 not to be sentenced for a felony in absentia. United States v. Behrens, supra; United States v. Leavitt, 478 F.2d 1101, 1103 (1st Cir. 1973).⁵  In Caille, supra, the Fifth Circuit applied this rule to a situation virtually identical to the instant case. It held that although there had been no violation of the double jeopardy clause in a resentencing which added the special parole term required by statute, the petitioner had the right to be present at such resentencing. 487 F.2d at 616. See also Cook v. United States, 171 F.2d 567, 569 (1st Cir. 1948) (dictum), cert. denied, 336 U.S. 926, 69 S. Ct. 647, 93 L. Ed. 1088 (1949).

One aspect of Caille is arguably distinguishable from the instant case. Here we have an express statement from the trial court that it was well aware of the special parole term requirement when it originally sentenced petitioner. See note 2, supra. Thus, unlike the Caille court, we have no reason to think that a shorter prison term would have been awarded if only the trial court had known of the special parole term requirement. Nevertheless, the Supreme Court has emphasized another aspect to a defendant's right to be present at sentencing, namely the 'elementary' right of a defendant to be afforded an opportunity to make a statement to the judge in his own behalf. United States v. Behrens, supra 375 U.S. at 167-168 (Harlan, J., concurring); Fed. R. Crim. P. 32(a). This right was not satisfied by petitioner's presence at the first, invalid sentencing. 'Even if he has spoken earlier, a defendant has no assurance that when the time comes for final sentence the district judge will remember the defendant's words in his absence and give them due weight. Moreover, only at the final sentencing can the defendant respond to a definitive decision of the judge.' United States v. Behrens, supra 375 U.S. at 168. (Harlan, J., concurring).

Here, the only statutorily-valid sentencing of petitioner occurred on the occasion when he was not present.⁶  Therefore, on the authority of Behrens and Caille, we must vacate the second sentence and remand the case for a third sentencing before the original judge at which petitioner, and his counsel if he so desires, are present. See Van Hook v. United States, 365 U.S. 609, 81 S. Ct., 823, 5 L. Ed. 2d 821 (1961) (per curiam); United States v. Leavitt, supra at 1103.

The sentence appealed from is hereby vacated and the case is remanded for further proceedings not inconsistent with this opinion.