Counsel Was Ineffective in Failing to Consult with Client About Legal Options After Government Breach of Plea Agreement, But No Prejudice

Ralph L. Clark v. United States (decided April 21, 2016)

Players: Chief Judge Washington, Judge Thompson, and Senior Judge Ferren. Opinion by Judge Ferren. William T. Morrison for Mr. Clark. Trial judge: Ann O. Keary.

Facts: This was an appeal from the denial of a § 23-110 motion based on ineffective assistance of counsel. Mr. Clark’s conviction was previously affirmed on direct appeal. See Clark v. United States, 51 A.3d 1266 (D.C. 2012). Clark pleaded guilty to an armed robbery, and his plea agreement provided that the government agreed not to allocate for a sentence greater than 10 years. Nonetheless, in its sentencing memo, the government recommended 20 years of incarceration. The trial judge caught the error at the sentencing hearing, but went forward with the sentencing, deeming it sufficient for the government to file an amended sentencing memorandum. Defense counsel agreed to this. During allocution, however, the prosecutor argued that a ten-year sentence would be “very generous.” The trial court sentenced Mr. Clark to ten years in prison.

On appeal, Mr. Clark argued that the government had compounded its breach of the plea agreement by arguing that that a ten-year sentence would be “very generous,” and sought remand for resentencing before a different judge. The Court of Appeals found the government’s breach to be “grave and inexcusable,” but because trial counsel did not object to the allocution or to the trial judge’s decision to keep the case for sentencing instead of referring it to another judge, the Court reviewed for plain error and affirmed Mr. Clark’s conviction.

Mr. Clark then filed a §23-110 motion alleging that his plea attorney had provided ineffective assistance by deciding to continue with sentencing without consulting with Clark about the government’s breach of the plea agreement and the available remedies, including assignment to a different judge for sentencing or plea withdrawal. The sentencing judge denied the § 23-110 motion without a hearing.

Issue: Did plea counsel provide constitutionally ineffective assistance warranting reversal by failing to inform Clark about the government’s breach of the plea agreement and failing to explain his legal options in response to that breach?

Holding: No. Counsel was constitutionally deficient in failing to consult with Mr. Clark about his legal options after the government’s breach of the plea agreement, but there was no “reasonable probability that, but for counsel’s failure to advise about plea withdrawal, Clark would have sought to withdraw his plea.”

Of Note:

• No Shepard bar. The Court noted that Clark filed his § 23-110 motion after the Court of Appeals had announced its decision in his direct appeal (Clark I), but before the Court issued its mandate. It did not recognize any procedural default pursuant to Shepard v. United States, 533 A.2d 1278 (D.C. 1987) (generally requiring ineffective assistance claims to be raised during the pendency of the direct appeal), however, because “[n]either the government nor the court raised a timeliness issue when the motion was filed, nor does the government do so in this appeal.” The opinion does observe that Clark could have “ask[ed] for a stay of the mandate in Clark I so that, if the § 23-110 motion were denied, the appeal from that denial could be consolidated with the direct appeal.”

• The decision about how to respond to the government’s breach of the plea agreement was “for a counseled client, not the lawyer, to make, no matter how improvident a plea withdrawal would be.” MW

Read full opinion here.