Seeing co-conspirators receive better plea deals is not a valid reason to withdraw a guilty plea

Long v. United States (decided Sept. 14, 2017)

Players: Chief Judge Blackburne-Rigsby, Associate Judges Fisher and Easterly. Opinion by Judge Blackburne-Rigsby. Charles E. Wagner for Mr. Long. Trial Judge: Anita Josey-Herring.

Facts: Mr. Long plead guilty to one count of conspiracy to defraud the District of Columbia and Office of Campaign Finance (OCF) in violation of D.C. Code § 22-1805(a)(1). The plea letter informed him that the charge carried a maximum sentence of five years imprisonment, a fine of $10,000, and a maximum of three years of supervised release. The agreement stated that Mr. Long “conspired with others, Jeffrey Thompson and Eugenia Harris, to defraud the District and OCF ‘by funding and concealing and by attempting to fund and conceal contributions to MAYORAL CAMPAIGN A for purposes of electing MAYORAL CANDIDATE A in excess of those permitted,’ ‘thereby obstruct[ing] and imped[ing] the due administration of the campaign finance laws.” Mr. Long signed a Statement of Offense, which explained the conspiracy in “great[] detail,” and, during the Rule 11 colloquy, acknowledged that the government’s proffer as to the facts of the crime was “correct.” Also, during the Rule 11 colloquy, Mr. Long said he understood that the maximum prison sentence he was facing was five years, his plea was in exchange for his cooperation in related cases, and that he was waiving certain constitutional rights. He also said he was “satisfied” with the performance of his counsel. The court then accepted his plea.

Nearly eighteen months later, but before sentencing, Mr. Long sought to withdraw his guilty plea, arguing that he was factually innocent of the conspiracy, that the Rule 11 inquiry was defective, and that he should be allowed to withdraw in the interest of justice because he received ineffective assistance of counsel due to co-conspirators receiving better plea deals. The trial court denied his request, ruling that while Mr. Long asserted his innocence generally he did not dispute any of the underlying facts, he was properly advised of the maximum prison term he faced, and the mere fact co-conspirators received better deals did not render his attorney ineffective as “every circumstance is obviously different.”

Issue 1: Did the trial court err in refusing to permit Mr. Long to withdraw his guilty plea when his request was made prior to sentencing?

Holding: No. The Court stated that whether to permit the withdrawal of a guilty plea is left to the discretion of the trial court and a defendant may withdraw a plea prior to sentencing by showing either a fatal defect in the Rule 11 proceeding or by showing that justice demands withdrawal under the circumstances of the case. The Court determined Mr. Long failed to make either showing.

First, Mr. Long contended there was a defect in the Rule 11 proceeding because he was only subject to a maximum of six months imprisonment for conspiracy, and not five years as was stated in the plea agreement, and because the trial court failed to confirm whether the factual proffer was sufficient. The Court disagreed with both contentions. The Court explained that because Mr. Long pled guilty to conspiring to defraud the District of Columbia, and not conspiring to commit a specific offense, he was subjected to the default five-year maximum prison term of conspiracy contemplated by the statute. See D.C. Code §22-1805a(a)(1). The Court also found there was a sufficient factual basis for the plea because the proffer alleged that Mr. Long worked with Harris and Thompson to defraud the District and OCF by concealing campaign contributions and he understood the intent was to conceal the payments, and that he knowingly worked with Harris and Thompson to convince “Mayoral Candidate C to drop out of the race and endorse Mayoral Candidate A ‘in exchange for a thing of value.’”

Second, Mr. Long contended it was fair and just to set aside his guilty plea because he asserted his actual innocence and because his counsel was ineffective. Again, the Court disagreed with both contentions. Mr. Long asserted his innocence by contending he did not personally contribute money to the campaign, but the Court agreed with the trial court’s reasoning that Mr. Long did not have to personally contribute money to be guilty of conspiracy and Mr. Long did not dispute any of the facts in the proffer that did establish conspiracy. Also, the Court added that “even assuming [Mr. Long ] made out a true assertion of innocence, the trial court was free to discredit [his] assertion of innocence in light of ‘the proffer made by the government, [his] sworn adoption of the facts contained in that proffer, and [his] own sworn admissions made at the time the plea was entered.”Also, the Court found no abuse of discretion in the trial court’s ruling that the nearly eighteen-month delay before Mr. Long sought to withdraw his plea—even though it did occur prior to sentencing—weighed against allowing him to withdraw it. Lastly, the Court saw no merit in Mr. Long's contention that his counsel was ineffective because other conspirators received better plea deals. The Court explained that “even assuming that they did” receive better plea deals, “everybody had different circumstances and the government was free to take into account the various considerations they did in making an appropriate offer.” The Court noted it is “not appropriate to compare the plea deals of [Mr. Long's] co-conspirators with his own, especially given the fact that their cases were held in federal District Court.”

Of note:  The Court’s opinion reinforces the uphill battle to withdraw a guilty plea, even when the request occurs prior to sentencing. The Court agreed that there was no abuse of discretion in a trial court weighing a delay of eighteen months, despite it still being prior to sentencing, against allowing a person to withdraw a guilty plea. Similarly, the Court wrote that even if a person asserts innocence, a trial court is within its discretion to discredit it. It thus remains critical that when seeking to withdraw a plea, more than a general claim of innocence is likely needed, but an assertion of innocence that, at minimum, would negate the elements at issue (or a key provision of any proffer that was agreed to during the Rule 11 colloquy). BM

Read the 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.

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.

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.

Judge Can't Wear Two Different Hats -- A Judge Ruling on a Motion To Withdraw a Guilty Plea Cannot Resolve a Factual Dispute Based on His Own Recollection of What Happened at the Plea Hearing

Jose Zalmeron v. United States (decided October 29, 2015)

Players: Associate Judges Thompson and Beckwith, Senior Judge Belson. Opinion by Judge Beckwith. PDS for Mr. Zalmeron. Trial judge: Lee Satterfield.

Facts: Mr. Zalmeron pleaded guilty before Judge Satterfield back in 1994 in a drug case. Twenty years later, he moved to withdraw his plea on the ground that he had not been advised that his conviction could cause him to be deported. Transcripts from the 1994 plea were unavailable. Without hearing from the government, Judge Satterfield denied the motion to withdraw, stating "[u]pon review of the chambers file the Court recalls" that it did advise Mr. Zalmeron of the potential immigration consequences of his plea. Mr. Zalmeron than moved for disclosure of the chambers file, both because he asserted a right to review the evidence on which the ruling was based and to allow for appellate review of the ruling. The government then chimed in, suggesting that disclosure of the chambers file was unnecessary because the court's ruling was based on the judge's own "recollection," which “exists separate and apart from the documents in the chambers file."  Judge Satterfield agreed with the government and denied the request to disclose the chambers file.  Mr. Zalmeron then moved to vacate the order and for an evidentiary hearing before an independent judicial officer, asserting that Judge Satterfield could not serve as both witness and factfinder.  And, because Judge Satterfield was now Chief Judge of the Superior Court, Mr. Zalmeron argued that all of the Superior Court judges were subject to recusal, and the hearing should be in front of a DCCA judge sitting by designation.  Judge Satterfield did not do any of that, and Mr. Zalmeron appealed.

Issue 1:  Is Mr. Zalmeron entitled to a reversal or a remand on his claim that he should be allowed to withdraw his plea?

Holding 1:  After some concessions by the government, he is entitled to a remand, but not an outright reversal.  The government did not argue that Judge Satterfield's claimed "recollection" was sufficient to support the denial of the motion to withdraw in the face of a statutory presumption that the required immigration warnings were not given.  A remand rather than a reversal was warranted, however, because the government did not waive its right to present additional evidence that Mr. Zalmeron received the required warnings.  The sequence of events in the Superior Court did not clearly put the government on notice that the failure to adduce additional evidence at that time would amount to a waiver.

If the government seeks to rely on Judge Satterfield's recollection, however, then binding precedent dictates that the hearing must be in front of a different judge because Judge Satterfield cannot be both witness and factfinder.  Apparently agreeing with Mr. Zalmeron that all the Superior Court judges would be recused given the powers the Chief Judge has over their assignments and working conditions, the DCCA would leave it up to the Superior Court to determine whether a new judge should be drawn from either the DCCA or the federal district court.

Issue 2;  Did the twenty year delay in Mr. Zalmeron seeking to withdraw his plea warrant denial of his motion?

Holding 2:  No, but any unexcused delay is a factor that the court can take into account in ruling on the motion.  The text of the statute authorizing withdrawal of guilty pleas in these circumstances, D.C. Code section 16-713, does not contain a time limitation, and it would be improper for the court to read such a limitation into the text.  Any period of unexplained delay, however, may be taken into account when the factfinder considers the credibility of Mr. Zalmeron's claim. DG

Read full opinion here.