# Hill v. United States (368 U.S. 424)/Dissent Black

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* Case Syllabus
* Opinion of the Court
* Dissenting Opinion Black
United States Supreme Court
368 U.S. 424
Hill v. United States (368 U.S. 424)
Argued: Dec. 5, 1961. --- Decided: Jan 22, 1962
Mr. Justice BLACK, with whom THE CHIEF JUSTICE, Mr. Justice DOUGLAS and Mr. Justice BRENNAN concur, dissenting.
The petitioner James Hill brought this proceeding to vacate two sentences under which he is imprisoned in a federal penitentiary, alleging that the sentences are illegal because the trial judge who imposed them had not given him the opportunity required by Rule 32(a) of the Federal Rules of Criminal Procedure 'to make a statement in his own behalf and to present any information in mitigation of punishment.' Conceding that the sentences thus challenged were imposed without according petitioner his right to speak, the Court nonetheless denies relief under Rule 35's provision for the correction of 'illegal' sentences on the ground that the sentences though imposed in flat violation of Rule 32(a), were not 'illegal' within the special meaning which the majority now ascribes to that word for the purposes of Rule 35. The basic explanation offered for this drastic contraction of the ordinary meaning of the word 'illegal' is this single statement in the Court's opinion:
'The punishment meted out was not in excess of that prescribed by the relevant statutes, multiple terms were not imposed for the same offense, nor were the terms of the sentence itself legally or constitutionally invalid in any other respect.'
That statement to me amounts to something less than an entirely satisfactory justification for such a begrudging interpretation of Rule 35.
The Court's holding certainly finds no support in the language of Rule 35. That Rule, although painstakingly drawn by lawyers and approved both by Judges and by the Congress, simply provides for the correction of an 'illegal sentence' without regard to the reasons why that sentence is illegal and contains not a single word to support the Court's conclusion that only a sentence illegal by reason of the punishment it imposes is 'illegal' within the meaning of the Rule. I would have thought that a sentence imposed in an illegal manner-whether the amount or form of the punishment method out constitutes an additional violation of law or not-would be recognized as an 'illegal sentence' under any normal reading of the English language. And precisely this sort of common-sense understanding of the language of Rule 35 has prevailed generally among the lower federal courts that deal with questions of the proper interpretation and application of these Rules as an everyday matter. Those courts have expressed their belief that, even where the punishment imposed upon a defendant is entirely within the limits prescribed for the crime of which he was convicted, a sentence imposed in a prohibited manner-as, for example, a sentence imposed upon an absent defendant in violation of the command of Rule 43 that a defendant be present at sentencing-is an 'illegal sentence' subject to correction under Rule 35.
The Court's contrary decision today, however, was perhaps foreshadowed last Term by the narrow scope given to Rule 32(a) when the issue of the meaning of that Rule came before us for the first time in Green v. United States. That case, like this one, involved an attempt to vacate a sentence as 'illegal' under Rule 35 on the ground that the trial judge had failed to accord the defendant his right to make a statement before sentencing. The record there showed merely that the trial judge, in the presence of both the defendant and his counsel, had asked generally, 'Did you want to say something?' and that, in response to this question, the attorney rather than the defendant had spoken. Recognizing that the right accorded by Rule 32(a) is a personal right which must be extended to the defendant himself, the Court nonetheless denied relief, largely upon the view expressed by four members of the Court that: 'A record, certainly this record, unlike a play, is unaccompanied with stage directions which may tell the significant cast of the eye or the nod of the head. It may well be that the defendant himself was recognized and sufficiently apprised of his right to speak and chose to exercise this right through his counsel.' This conclusion was reached in spite of the fact that the Government's brief before this Court expressly conceded that Green had not been personally afforded an opportunity to speak.
But even in Green, not one member of the Court went so far as even to intimate-unless such an intimation was implicit in the concurring opinion of Mr. Justice STEWART-that a sentence undeniably imposed in disregard of the legal right of a defendant to speak for himself would not be an 'illegal sentence.' Four members of the Court-THE CHIEF JUSTICE, Mr. Justice DOUGLAS, Mr. Justice BRENNAN and I-expressly stated the view that such a sentence could be corrected under Rule 35's provision for the correction of 'illegal' sentences. And four other members of the Court, in an opinion written by Mr. Justice FRANKFURTER, emphasized the importance of the right of the defendant to speak for himself, saying: 'The most persuasive counsel may not be able to speak for a defendant as the defendant might, with halting eloquence, speak for himself.' Although it is true that these latter four members of the Court joined in refusing to set aside the sentence in that case, their stated ground was: 'The defendant has failed to meet his burden of showing that he was not accorded the personal right which Rule 32(a) guarantees, and we therefore find that his sentence was not illegal.' In the light of all these statements, it is not surprising that the Courts of Appeals for both the First and the Fifth Circuits have regarded the combined opinions in Green as requiring the correction of sentences as illegal when the defendant is able 'to meet his burden of showing that he was not accorded the personal right which Rule 32(a) guarantees.'
I think that a due observance of the requirements of Rule 32(a), resting as they do upon the anciently recognized right of a defendant to speak to the court before sentence is imposed, is important to the proper administration of justice in the federal courts. And it seems to me that the Court is mistaken in thinking that the importance of that right is not reflected in this very case, for I cannot agree with the Court's conclusion that 'there is no claim that the defendant would have had anything at all to say if he had been formally invited to speak.' According to the petitioner's brief, the denial of his right to speak was particularly injurious to him here because he had several previous convictions which presumably were known to the sentencing judge. In this connection, he says: 'Petitioner has been and is presently seeking collateral relief from those judgments and, indeed, has already had one set aside. This mitigating evidence, if known to the sentencing court, might have a profound impact upon the sentence imposed.'
More importantly, however, whether the right to speak before sentence would have been of value to petitioner in this particular case or not, the right is one recognized by a rule which has the force of law and a sentence imposed in violation of law is plainly 'illegal.' If the Court is unhappy with the wording of Rule 35-a wording adopted by the Court itself and submitted to Congress for approval as required by law-whatever change is necessary to bring the Rule into conformity with the Court's present preferences should be incorporated into the explicit language of the Rule and submitted to Congress for its approval. I would reverse this case and remand it to allow the District Court to resentence petitioner after granting him his right to speak under Rule 32(a).

## Notes

* ↑ Petitioner's attack upon his sentences was originally brought as a motion under 28 U.S.C. § 2255, 28 U.S.C.A. § 2255. Since I agree with the Court that a motion under § 2255 must, where appropriate, also be considered as a motion under Rule 35, and because I think petitioner is plainly entitled to relief under that Rule, I find it unnecessary to consider the question discussed by the Court as to whether petitioner is also entitled to relief under § 2255.
* ↑ This does not of course mean that Rule 35 permits attack upon a sentence based upon mere trial errors. Rule 35 applies to any 'illegal sentence,' not to any illegal conviction, and thus by its terms the Rule protects only those rights which a defendant retains even if the judgment of guilt against him is proper. See Cook v. United States, 1 Cir., 171 F.2d 567, 570-571.
* ↑ Rule 43 provides: 'The defendant shall be present at the arraignment, at every stage of the trial including the impaneling of the jury and the return of the verdict, and at the imposition of sentence, except as otherwise provided by these rules. * * *'
* ↑ See Cook v. United States, 171 F.2d 567; Crowe v. United States, 6 Cir., 200 F.2d 526. Cf. Williamson v. United States, 5 Cir., 265 F.2d 236, 239. Similarly, it has also been held that Rule 35's corrective force extends to a sentence illegal by reason of the fact that the defendant upon whom it was imposed was insane at the time of sentencing. Byrd v. Prescor, 8 Cir., 163 F.2d 775. See also Duggins v. United States, 6 Cir., 240 F.2d 479, 483-484.
* ↑ 365 U.S. 301, 81 S.Ct. 653, 5 L.Ed.2d 670.
* ↑ Id., 365 U.S. at 304-305, 81 S.Ct. at 655.
* ↑ But cf. Mr. Justice Stewart's concurring opinion in Heflin v. United States, 358 U.S. 415, 420, 79 S.Ct. 451, in which the four other members of the present majority concurred.
* ↑ 365 U.S., at 304, 81 S.Ct. at 655.
* ↑ Id., at 305, 81 S.Ct., at 655.
* ↑ Domenica v. United States, 292 F.2d 483; Jenkins v. United States, 293 F.2d 96.
* ↑ Rule 32(c) provides for a presentence investigation and report to the trial judge for use in imposing sentence which 'shall contain any prior criminal record of the defendant * * *.' Since this is not the sort of information which normally finds its way into the record at the trial itself, a defendant's only chance to explain or rebut such evidence will often be by exercise of his right under 32(a).
This work is in the public domain in the United States because it is a work of the United States federal government (see 17 U.S.C. 105).
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