That’s Not What Conflict Means

James Earl Blackmon v. United States (decided September 29, 2016).

Players: Associate Judges Fisher and Blackburne-Rigsby, and Senior Judge Ruiz.  Opinion by Judge Ruiz.  Matthew B. Kaplan for Mr. Blackmon.  Trial judge: Jennifer M. Anderson.

Facts:  After Mr. Blackmon’s first trial for multiple counts of sexual abuse, assault, kidnapping, and burglary, he was convicted of all charges and sentenced to 34 years of incarceration.  Based on a violation of Mr. Blackmon’s Sixth Amendment confrontation right, the Court of Appeals remanded his case for a new trial.

Before his second trial, Mr. Blackmon was offered, and rejected, a plea to all the charges in exchange of a government recommendation of no more than 25 years of incarceration.  Mr. Blackmon’s attorney (a PDS lawyer) counseled Mr. Blackmon, incorrectly, that if he went to trial he could not be sentenced to more than he had been after his first trial.  On the first day of trial, having realized his mistake, Mr. Blackmon’s counsel informed Mr. Blackmon and the Court of the error. 

The trial court then appointed a different lawyer for the sole purpose of advising Mr. Blackmon about his “options at this juncture.”  Mr. Blackmon indicated that he wanted to take the 25-year offer, but at this point the government stated that it would only offer a plea to 34 years.  Mr. Blackmon’s trial counsel argued that the government should be required to extend its original plea offer, but the trial court disagreed, and Mr. Blackmon rejected the 34-year plea.  However, the government agreed to cap its allocution to 34-years, placing Mr. Blackmon in the position he was when he initially rejected the 25-year offer.  The trial court agreed to be bound by the upper limit of 34-years.

Mr. Blackmon was then represented at trial by his original PDS attorney, and was convicted of all charges except the burglary charge.  Twice during trial Mr. Blackmon’s counsel requested a mistrial—first arguing that Mr. Blackmon had lost confidence and wanted a new attorney, and then that Mr. Blackmon disagreed with the counsel’s defense strategy concerning the government’s DNA evidence.  Twice the trial court denied the requests, finding that Mr. Blackmon simply wanted to get back the 25-year plea, which was no longer available. 

Issue:  Did the trial court err in not appointing Mr. Blackmon new trial counsel because his trial counsel had a continuing conflict of interest after giving incorrect legal advice about the initial plea offer?

Holding:  No.  Mr. Blackmon’s trial counsel did not have a conflict of interest once the matter of the plea offer, for which he was appointed new counsel, was resolved.  “A breakdown in communication—even a hostile relationship—between counsel and client is not the same . . . as a conflict of interest that leads counsel to act with less than complete zeal and loyalty to his client.”  Because there was no divergence in interests between Mr. Blackmon and his attorney, he was not entitled to appointment of new trial counsel.  CP

Read full opinion here.

Trial Judge Can Reconsider a Ruling Allowing Defendant To Withdraw a Guilty Plea

Michael T. Marshall v. United States (decided August 25, 2016)

Players:  Associate Judges Fisher and Blackburne-Rigsby, Senior Judge Nebeker.  Opinion by Judge Nebeker.  PDS for Mr. Marshall.  Trial Judge:  Rhonda Reid Winston.

Facts:  Before sentencing, Mr. Marshall moved to withdraw his guilty plea to second-degree murder on the ground that he was actually innocent.  Over the government's objection, the trial judge granted the motion to withdraw.  The government moved to reconsider that ruling, proffering that it had discovered recordings of jailhouse calls, made before the motion to withdraw, in which Mr. Marshall purportedly discussed the death of a principal witness against him.  After conducting an evidentiary hearing, the trial judge reconsidered her ruling and reinstated Mr. Marshall's guilty plea.

Issue:  Does the trial judge have the authority to reconsider an order granting a withdrawal of a guilty plea and reinstating the guilty plea?

Holding:  Yes.  Adopting the reasoning in United States v. Jerry, 487 F2d. 600 (3d Cir. 1973), the DCCA held that a trial judge has the inherent power to reconsider its interlocutory rulings while it exercises plenary jurisdiction over a case.  The DCCA also held that it "was consonant with justice" to reconsider its ruling in this case, given the trial judge's failure to fully analyze the relevant factors prior to her initial ruling, as well as the jailhouse calls, which called into question the defendant's motive for seeking to withdraw his plea.  DG

Read full opinion here.

Rabbi Sets Up Hidden Camera in Ritualistic Bath and Receives Consecutive Sentences for 52 Counts of Voyeurism.

Bernard Freundel v. United States (decided September 15, 2016).

Players: Judges Glickman, Blackburne-Rigsby, and McLeese. Opinion by Judge McLeese. Jeffrey Harris for Mr. Freundel. Trial Judge: Geoffrey Alprin

Facts: Rabbi Freundel placed a clock radio with a hidden video recorder in a mikvah—“a ritual bath primarily used by Orthodox Jewish women for spiritual purification.” Between 2009 and 2014, Mr. Freundel surreptitiously recorded over 100 women in some state of undress. As a result, he pled guilty to 52 counts of voyeurism, in violation of D.C. Code § 23-3531 (b)-(c)—a misdemeanor punishable by up to 1 year in prison, with each count premised on his recording of a different woman. At sentencing, Judge Alprin sentenced Mr. Freundel to consecutive sentences of 45 days’ incarceration for each count—totaling close to 6 ½ years in prison.

Issue: Did the court’s imposition of consecutive sentences violate the Double Jeopardy Clause?

Holding: No. The Court of Appeals noted that as a general matter, “the Double Jeopardy Clause does not prohibit separate and cumulative punishment for criminal acts perpetrated against different victims,” and that in analogous circumstances, it has approved of “separate punishment where a single act affected multiple victims.” “Moreover, if the legislature so intends, multiple punishments for violating a single criminal statute may be imposed based on a single act.”

Here, the Court found that separate punishment for each victim was permitted because the goal of the voyeurism statute was to “protect the privacy of individual victims.” The Court reasoned that if it held otherwise, “once a defendant unlawfully recorded one victim, all future voyeuristic recording . . . would not be separately punishable.” As such, “there would be no incentive for the defendant not to do it again (and again and again),” which does not “comport with reason and with sound public policy” and was “surely not a result which the legislature intended.”

Of Note: Mr. Freundel made a number of arguments that the Court walked through and rejected. One of the more interesting arguments was that “the title of the omnibus act establishing the voyeurism statute, which describes the statute as making it unlawful to record ‘individuals (plural),’” suggested that “the legislature intended to punish the conduct of recording rather than to separately protect the privacy of each individual recorded.” The Court refused to subscribe to this argument, reminding that the “Supreme Court has stated that the title is of use in interpreting a statute only if it sheds light on some ambiguous word or phrase in the statute itself,” and here, the plain text of the statute uses “the singular rather than the plural.” DH

Read full opinion here.

Trial court’s incorrect statements to a defendant about timing of his parole eligibility entitled him to at least an evidentiary hearing on his §23-110 motion.

Jayvon R. White v. United States (decided September 1, 2016).
 

Players: Associate Judges Thompson and Beckwith, Senior Judge Reid. Opinion by Senior Judge Reid. Matthew Dowd for Mr. White. Judge on 23-110 motion: Jennifer M. Anderson

Facts: The following is what the Court of Appeals characterized as the “rather unique and exceptional” circumstances of this case. Back on September 4, 2001, before Judge Retchin, Mr. White pled guilty to second-degree murder while armed and possession of a firearm during a crime of violence. At the time, Judge Retchin told Mr. White that (a) the penalty for second-degree murder was “20 years to life with a mandatory sentence of at least five to fifteen years,” (b) the mandatory sentence for PFCV was five to fifteen years; and (c) she could sentence him to consecutive sentences “meaning that [she] could sentence [him] to as much as 25 years to life.” She also told him that “the mandatory part of the sentence is exempted from parole, meaning that [Mr. White] would be required to serve a minimum of five years,” and that if the court made the sentences consecutive, “it would be a minimum of 10 years before [he] could even [be] eligible for parole.” Mr. White said he understood.

On December 7, 2001, with new counsel, Mr. White filed a motion to withdraw his guilty plea. On February 8, 2002, the court held a hearing and Mr. White testified  that his belief was that if he was found guilty of first-degree murder his sentence would be life without parole but that if he accepted the plea agreement “he would see the parole board after five years” and “probably do about fifteen years.” On February 13, 2002, the court denied the motion, and on June 28, 2002, Judge Retchin sentenced Mr. White to 20 years to life on the second-degree murder offense and five to 15 years on the PFCV offense, and made the sentences consecutive. Judge Retchin indicated that he was to be committed to prison for “25 years” and that a “mandatory minimum term of 10 years applies.” On March 12, 2004, Judge Retchin amended the commitment order by “deleting ’25 years’ but leaving ‘mandatory minimum term of 10 years applies.’” Mr. White filed an appeal, which the Court of Appeals denied on December 30, 2004. See White v. United States, 863 A.2d 839 (D.C. 2004). 

On June 1, 2009, Mr. White sent a letter to Judge Retchin seeking assistance with his parole eligibility, and the judge’s administrative assistant responded that the “[c]ourt does not intercede in parole determinations.” On September 13, 2010, Mr. White filed a pro se motion “seeking clarification of exactly when he is eligible for parole consideration.” He attached one document that indicated his initial parole hearing would be April 1, 2013, and another document that indicated it would be March 8, 2025 but also that his “[n]ext parole hearing date” would be “’06-00-2010.’” He also included a letter he received from the Bureau of Prisons that indicated his “parole hearing should not have been June, 2010, but 6-9 months prior to your parole eligibility which is March 8, 2025. The ten-year DC Mandatory Minimum Term, is the least amount the Judge could sentence you to and would come [in]to play if you[] earned Educational Good Time, which you cannot. Your minimum term is 25 years and therefore [you are] eligible for parole March 2025.” On September 20, 2010, Judge Retchin denied the motion and stated the Parole Commission has the responsibility to determine when he would be released on parole and that “the mandatory minimum sentence does not equate to a parole eligibility date.”

On June 5, 2012, Mr. White filed a pro se motion to vacate, set aside, or correct sentence and judgment because 1) he had pled guilty under the impression he would be eligible for parole in ten years when in actuality it would be 25 years; 2) the court gave him “erroneous advi[c]e” when Judge Retchin told him “[I]f I make [the] sentence consecutive, it would be a minimum of 10 years before you’re even eligible for parole; and 3) the government has “denied [him] the fruits of his plea deal” since he has been incarcerated for more than ten years. Over a year later, on October 9, 2013, Judge Anderson denied the motion without a hearing, finding that Mr. White’s claims were procedurally barred for not having been raised during the pendency of his direct appeal, and, even if not barred, he would not be entitled to relief. Judge Anderson declined to conduct an evidentiary hearing because 1) Judge Retchin had denied the same claim in his initial motion to withdraw his guilty plea, which was affirmed on appeal; 2) the claim about Judge Retchin misinforming him about his parole eligibility was “palpably incredible based on the existing record;” and 3) he had no basis to object to his plea agreement since there was “no misinformation.”

Issue 1:  Are Mr. White’s claims procedurally barred because he should have raised during his direct appeal the issue that he did not realize it would be 25 years before he was even eligible for parole?

Holding: No. “Where a defendant has failed to raise an available challenge to his conviction on direct appeal, he may not raise that issue on collateral attack unless he shows both cause for his failure to do so and prejudice as a result of his failure.” Relief under §23-110 is only appropriate for “serious defects” that were either not correctible on direct appeal or were prevented by exceptional circumstances from being raised on direct appeal. As noted above, however, the Court deemed this a case of “exceptional” circumstances.

While a defendant need not be informed of parole eligibility before entering a guilty plea, a trial court’s “misinformation” about eligibility may be deemed so prejudicial as to require “a new opportunity for the defendant to decide whether or not to enter a guilty plea.” The Court then concluded that Judge Retchin “may have made misleading and confusing or ambiguous statements regarding the timing of Mr. White’s parole eligibility” and that “from around 2006 to the time [he noted this appeal,] [he] sought clarification from the trial court and the Bureau of Prisons about the date of his parole eligibility.” The Court noted that on September 4, 2001, Judge Retchin told Mr. White that it would be ten years before he was eligible for parole if the sentences were consecutive; on June 28, 2002, she told him that a “mandatory minimum term of 10 years applies;” and that on March 12, 2004, she amended the commitment order by deleting “25 years” but leaving “mandatory minimum term of 10 years applies.” And in September 20, 2010, in response to his requests for clarification, Judge Retchin told him it was up to the Parole Commission to determine when he would be released but that the “mandatory minimum sentence does not equate to a parole eligibility date.” 

The Court thus concluded that “individuals who possessed education beyond Mr. White’s GED level might well be misled into believing that they would be eligible for a parole hearing in 2010, or they may have become quite confused about the reason for the different and even conflicting parole eligibility dates stated by the court and the Bureau of Prisons. In short, we are unable to conclude that the claims Mr. White made in his 2012 §23-110 motion were ‘available’ to him before our resolution [of his direct appeal]. Rather, we hold that because Mr. White did not know and should not have known (during the pendency of his direct appeal) of the claims presented on appeal, he need not demonstrate cause and prejudice[,] and as a result his claims are not procedurally barred.

Issue 2: Did the trial court abuse its discretion by denying Mr. White’s June 5, 2012 23-110 motion without a hearing?

Holding: Yes. The Court began with a reminder that “there is a strong presumption in favor of a hearing,” and that while whether to have a hearing is within the trial court’s discretion, “the extent of that discretion is quite narrow.” Also, where the issue to be decided turns on “witness credibility,” the issue often “may be resolved only by recourse to a full evidentiary hearing.” In this case, because Judge Anderson was not the trial judge for the original plea proceedings and had no first-hand knowledge, “the lack of a hearing becomes especially significant.” The Court stated that while Judge Retchin had denied his initial claim to withdraw his guilty plea, that decision was due to Mr. White’s argument he received misleading advice from his trial counsel. On the other hand, his claim now included new arguments about the impact of information he received from both Judge Retchin and the Bureau of Prison. Thus, the Court ruled Mr. White at least deserved a full hearing. 

Of Note:

• While trial courts do not have to explain parole eligibility to a defendant entering a guilty plea, when a court does it is important to make sure the court has it correct and your client is not under a false impression of either when he will be eligible for parole or when the first parole hearing will take place. BM

Read full opinion here.

Data from ankle monitor and treatment for a concussion were sufficient to establish robbery and assault with significant bodily injury.

Stephon Brown v. United States (decided September 1, 2016).

Players: Associate Judges Thompson and Beckwith, Senior Judge King. Opinion by Thompson. Sicilia Englert for Mr. Brown.  Trial judge: Todd E. Edelman

Facts: On December 15, 2014, while he was attempting to make a food delivery for a restaurant, two men attacked Gregory Dowell by repeatedly punching and kicking him in the head and body. They then took his phone, wallet, and vest, and one man rode away on Mr. Dowell’s bicycle. After Mr. Dowell reported the incident, police ran a check to determine if anyone’s GPS monitoring device was in the area at the time of the incident. Through that check, police learned that Stephon Brown had been in the area. Police then went to his house, where they located Mr. Dowell’s bicycle. 

Due to the attack, Mr. Dowell experienced headaches but declined to go to the hospital despite being urged to go by both the paramedics who responded to the scene and a friend, who was a nurse. Mr. Dowell did not want to go because he did not have insurance. But five days later, when he was still experiencing pain, he went and was diagnosed with a concussion and underwent a CAT scan. 

The jury convicted Mr. Brown of robbery and assault with significant bodily injury. 

Issue 1:  Was the evidence sufficient to establish Mr. Brown committed the robbery?

Holding: Yes. Mr. Brown admitted there was evidence to place him in the area of the robbery close to the time it occurred and he admitted that the stolen bicycle was found at his house only a few hours after the robbery, but claimed he found an abandoned bike and rode it home. The court ruled there was sufficient evidence to connect him to the robbery. Mr. Dowell testified that two men walked past him around 8:50 pm on North Capitol Street, SE, between T Street and Seaton Place. The two men then returned, attacked him, and fled north on North Capitol before making a right turn. 

Mr. Brown’s main contention was that the GPS data was inconsistent with the complainant’s testimony. The court disagreed. One, the complainant testified he did not see anyone else in the area at the time. Two, though the tracking data showed that he moved farther south down North Capitol than the complainant had said, “the [complainant’s] testimony did not eliminate the possibility that the attackers did precisely that while [the complainant] was distracted” trying to make the food delivery. And three, testimony established that the GPS monitoring data generally are accurate within a fifty-foot radius of each point plotted on a map, allowing the jury to conclude that Mr. Brown was even closer to the location of the assault than the plotted points indicated. Those facts, plus the bike being found at his house shortly after the robbery, established sufficient evidence to support the jury’s verdict for robbery. 

Issue 2: Was the evidence sufficient to establish that Dowell suffered significant bodily injury?

Holding: Yes. To prove significant bodily injury there must be an injury “that requires hospitalization or immediate medical attention.” The complainant sustained “a lot of rapid blows” to the head, and suffered a laceration on his forehead and ears, and multiple bright red areas on his scalp, neck, and ears. He testified that afterwards, he felt “loopy” and “dazed,” that his head hurt, and that the pain lasted for several days. He finally went to the hospital after several days, even though he did not have insurance, because a friend offered to pay for his medical expenses. At the hospital, he described his pain as “unacceptable” and a “constant headache.” He was diagnosed with a concussion. The treating doctor testified that it is “important for people with concussions to seek medical treatment” and that doctors “want anyone who has a head injury to come in and be evaluated[.]” Also, the doctor testified she ordered a CAT scan, which is the typical test for anyone complaining of a head injury. The doctor admitted, however, that some people who do not follow the recommended course of treatment for a concussion “may do okay on their own.”

Referring to this case as “perhaps a closer one than we have seen in some previous cases,” the Court nonetheless concluded the evidence was sufficient to establish significant bodily injury. The Court cited the number of blows to the head, the amount of pain in the moment, the amount of lingering pain, and the recommendations that Mr. Dowell seek medical treatment immediately. Further, when he did go to the hospital, he did not receive a “mere diagnosis,” but underwent treatment, including a CAT scan and was prescribed limitations on his activities to avoid worsening his symptoms. Lastly, the Court noted that the doctor testifying someone might have “do[ne] okay” on his own” does not undermine the seriousness of the injury when it is one that otherwise would typically require “immediate medical attention” by a professional with “true medical expertise.” BM

Read full opinion here.