Mooney v. United States

RUIZ, Associate Judge:

Appellant contends that he had a right to be present and allocute when he was resentenced pursuant to a remand from this court to correct an illegal sentence. We hold that if, at a resentencing to correct an illegal sentence, the trial judge has discretion as to the convictions to be vacated or the sentence to be imposed, the defendant has a due process right to be present and allocute. This is so regardless of whether the resentencing is pursuant to a remand order of this court or a motion filed under Rule 35 of the Superior Court Rules of Criminal Procedure. Because…