Free Motion for Miscellaneous Relief - District Court of Arizona - Arizona

1 JON M. SANDS Federal Public Defender 2 District of Arizona 850 W. Adams, Suite 201 3 Phoenix, Arizona 85007 Telephone: (602) 382-2753 4 DONNA LEE ELM, #012127 5 Asst. Federal Public Defender Attorney for Defendant 6 [email protected] 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 vs. Keith Sill, Defendant. The Defendant, Keith Sill, hereby seeks to correct the disposition (sentence) handed down by the Court at his sentencing/disposition hearing on April 13, 2006. He seeks correction of only the above-captioned case's sentence. MOTION TO EXTEND TIME FOR FILING To the extent that this motion is not timely under Federal Rules of Criminal Procedure 35, Mr. Sill asks the Court to extend his time to request this correction. His counsel was out on medical leave with pneumonia for two weeks starting the next business day after he was sentenced. Mr. Sill had asked his lawyer (leaving a voice mail message) timely to correct his sentence, but his attorney was not present to receive that message or react to it in time. Counsel has now "caught up" with her cases and visited with Mr. Sill to discuss the issue he wants presented. Hence, to the extent that this motion may be untimely, Mr. Sill asks the Court to extend the time for filing it. IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA United States of America, Plaintiff, No. CR-02-455-PHX-MHM MOTION TO CORRECT SENTENCE and MOTION TO EXTEND TIME TO FILE THIS MOTION

Case 2:02-cr-00455-MHM

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MOTION TO CORRECT SENTENCE The Defense is aware that it had asked for a sentence of twelve months

3 in this cause, i.e., CR 02-455-PHX-MHM, but that there was more than twelve 4 months available to this Court . The Defense erred by neglecting to ask the Court to 5 sentence Mr. Sill to twelve months and one day. The addition of the one day allows 6 him to earn release credits up to fifteen percent of his incarceration time, or for one 7 to two months.1 He cannot earn such credits on his sentence in CR05-21-PHX8 MHM(SRB), given that twelve months is the maximum sentence he can receive. 9 What Mr. Sills asks the Court to do, then, is to correct his sentence in only the one 10 case, CR02-455-PHX-MHM, to reflect that he be sentenced to twelve months and one 11 day, instead of just twelve months. 12 Counsel has consulted with the assigned prosecutor, Stephen Laramore, 13 who does not object to this modification of sentence. Moreover, the Defense 14 contacted the probation officer, Sharon Warner, and she too does not object to it. 15 The Court is authorized to correct sentences resulting from a "technical 16 error" pursuant to Federal Rules of Criminal Procedure 35(a). The Defense submits 17 that Rule 35 is the most appropriate vehicle for correcting the sentence to add one day 18 to it. Neglecting to add the one day (to allow him to earn modest release credits) 19 would be a technical error in the sentence. Rule 35 motions are, however, governed 20 by time limits of one week following the sentencing. Id. Hence if this Court were to 21 correct the sentence pursuant to Rule 35, it would additionally have to grant Mr. Sill's 22 Motion to Extend Time to File this motion. 23 ... 24 Note that this allowance does not mean that it will necessarily happen. As this Court recognizes by now, compliance is not Mr. Sill's forté. Nonetheless, 26 allowing him the chance to reduce his sentence a little is well-taken, since it would 27 offer him an incentive to comply and be productive while incarcerated. 25 28 2
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The Court is also authorized to correct the sentence for an "error arising

2 from oversight or omission," in accordance with Federal Rules of Criminal Procedure 3 36. Under that provision, the Court may, "at any time," correct an error resulting 4 from oversight or omission. Neglecting to add one day to his sentence in this case 5 was an oversight or omission, one that the Court would likely have granted if 6 presented with that request at the time of his sentencing. Note that the rule does not 7 make any requirements as to where that error arises from; hence, it does not matter 8 how the error came about, only that it ultimately be corrected. The Defense submits 9 that Rule 36, too, is an appropriate vehicle for correcting the sentence to add one day 10 to it. 11 Mr Sill therefore asks the Court to enter an Order correcting his sentence 12 only in CR02-455-PHX-MHM to result in the addition of one day imprisonment. For 13 the Court's convenience, two proposed draft Orders are attached, one for a ruling 14 under Rule 35 and a different one for a ruling under Rule 36. 15 16 17 18 19 20 21 Copy of the forgoing was 22 transmitted by ECF on this 10th day of May, 2006 to: 23 CLERK'S OFFICE 24 Sandra Day O'Connor Courthouse 401 W. Washington, Suite 160 25 Phoenix, Arizona 85003 26 27 28 3 Respectfully submitted: May 10, 2006.. JON M. SANDS Federal Public Defender s/Donna Lee Elm DONNA LEE ELM Asst. Federal Public Defender

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1 STEPHEN LARAMORE Assistant U.S. Attorney 2 United States Attorney's Office Two Renaissance Square 3 40 N. Central Avenue, Suite 1200 Phoenix, Arizona 85004-4408 4 5 Copy of the foregoing was faxed on this 10th day of May, 2006 to: 6 SHARON WERNER 7 United States Probation Officer Sandra Day O'Connor Courthouse 8 401 W. Washington, Suite 160 Phoenix, Arizona 85003 9 10 Copy of the foregoing was mailed on this 10th day of May, 2006 to: 11 KEITH SILL 12 Defendant 13 14 s/Donna Lee Elm DONNA LEE ELM 15 16 17 18 19 20 21 22 23 24 25 26 27 28 4

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