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
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