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.

If the Government Breaks the Plea Agreement, You Can Withdraw or Get Resentenced with a New Judge

Paul Mickens v. United States (decided March 10, 2016)

The Players: Chief Judge Washington, Associate Judge Thompson, Senior Judge Ferren. Opinion by Judge Ferren. Mindy A. Daniels for Mr. Mickens. Trial Judge: William M. Jackson.

Facts: Police officers watched Mickens appear to sell crack cocaine outside of an apartment building in Southeast, D.C. When officers tried to arrest Mickens, he fled into the apartment building, took off most of his clothes, and ran until he unlawfully barged into another apartment two blocks away. Officers caught Mickens there and brought him back to the first apartment building to retrieve his clothes. Officers found crack inside of his jacket. He faced a litany of charges – assaulting a police officer, burglary, four counts of distribution of PCP, two counts of distribution of crack, and possession with intent to distribute cocaine.

Mickens entered into a plea agreement with the government in which he would plead guilty to all charges with the burglary reduced to unlawful entry. The government agreed to waive all enhancements, other than the offenses committed during release enhancement, and allocute within the DC Voluntary Sentencing Guidelines.  At sentencing, the government asked for the PWID charge to run consecutively to the other drug charges because the PWID was not part of the same “event” as the other charges. Mickens contended that the government’s allocution violated the plea agreement as he argued that the Guidelines states that all of his non-violent drug charges arose from a “single event” which requires concurrent sentences. Mickens asked for time to decide whether to reconsider the plea and also for the sentencing to be reassigned to another judge. Judge Jackson denied the request and imposed concurrent sentences on the non-violent drug offenses.

Issue: Did the government violate the plea agreement by asking for consecutive sentences?

Holding: Yes. The Court has “stressed that the government must strictly comply with its plea agreement, and that any ambiguity should be construed against the government.” In this case, the distribution and PWID charges were all part of a “single event” because the those charges “assuredly flowed from the ‘same nucleus of facts.’” Thus, the government did not fulfill its promise to allocute within the Guidelines.

The Court rejected the government’s argument that Mickens should receive no remedy since the sentencing judge sentenced concurrently. “If the government violated its plea agreement, appellant’s sentence cannot stand.” The Court remanded the case so that a different judge could resentence, because the government’s illegal allocution had already tainted Judge Jackson. Alternatively, Mickens could withdraw his plea. JW

Read full opinion here.