District of Columbia
Court of Appeals
No. 14-CO-1393
APR 21 2016
RALPH L. CLARK, JR.,
Appellant,
v. CF3-7495-10
UNITED STATES,
Appellee.
On Appeal from the Superior Court of the District of Columbia
Criminal Division
BEFORE: WASHINGTON, Chief Judge; THOMPSON, Associate Judge, and
FERREN, Senior Judge.
JUDGMENT
This case was submitted to the court on the transcript of record and the
briefs filed, and without presentation of oral argument. On consideration whereof, and
for the reasons set forth in the opinion filed this date, it is now hereby
ORDERED and ADJUDGED that the judgment of the trial court is
affirmed.
For the Court:
Dated: April 21, 2016.
Opinion by Senior Judge John M. Ferren.
Notice: This opinion is subject to formal revision before publication in the
Atlantic and Maryland Reporters. Users are requested to notify the Clerk of the
Court of any formal errors so that corrections may be made before the bound
volumes go to press.
DISTRICT OF COLUMBIA COURT OF APPEALS
4/21/16
No. 14-CO-1393
RALPH L. CLARK, JR., APPELLANT,
v.
UNITED STATES, APPELLEE.
Appeal from the Superior
Court of the District of Columbia
(CF3-7495-10)
(Hon. Ann O. Keary, Trial Judge)
(Submitted February 2, 2016 Decided April 21, 2016)
William T. Morrison was on the brief for appellant.
Vincent H. Cohen, Jr., Acting United States Attorney at the time the brief
was filed, and Elizabeth Trosman, and Candice C. Wong, Assistant United States
Attorneys, were on the brief for appellee.
Before WASHINGTON, Chief Judge, THOMPSON, Associate Judge, and
FERREN, Senior Judge.
FERREN, Senior Judge: This is the second time this case has come before
this court, a collateral attack on the conviction we affirmed in Clark I.1 Alleging
1
Clark v. United States, 51 A.3d 1266 (D.C. 2012) (Clark I).
2
ineffective assistance of counsel, appellant asks us to reverse the trial court‟s
denial, without a hearing, of his motion to vacate his conviction and sentence
pursuant to D.C. Code § 23-110 (c). After reviewing the record, we agree that
appellant‟s representation was constitutionally deficient, but we conclude that he
suffered no prejudice as a result. Accordingly, we must affirm.
I. Facts and Proceedings
Appellant Ralph L. Clark was convicted of committing an armed robbery at
Starbucks in the Howard University book store. He accepted the government‟s
plea offer, which provided in relevant part that “[a]lthough the [g]overnment
reserves the right to allocute at [Clark‟s] sentence in this case, it agrees not to
allocute for a sentence greater than 10 years incarceration.”2 In its Memorandum
in Aid of Sentencing, however, the government — in three places —
recommended that Clark receive twenty years of incarceration.3
2
Id. at 1267.
3
Id.
3
“At the sentencing, the trial judge, having reviewed the plea agreement,
mentioned the error in the government‟s memorandum. The prosecutor
immediately acknowledged the error, explaining that she had forgotten the “cap”
and agreeing that the twenty-year recommendation was „off the table.‟”4 Defense
counsel responded that she “didn‟t have a chance to talk to Mr. Clark about this.”5
She added that, because the government had filed a document vigorously arguing
for a sentence that violates the plea agreement, the government should file another
one with a retraction indicating that “they‟re vigorously arguing for the sentence
that they agreed that they would.”6 The trial judge agreed with counsel but did not
delay the sentencing. She advised counsel, after reviewing the plea agreement, that
she had “immediately noticed the error” upon reading the government‟s sentencing
memorandum; that “everyone‟s ready for sentencing today”; and that it would be
“sufficient with the confession of error” if the prosecutor were to file “an amended
document and we vacate the other one.”7 Defense counsel concurred, “[a]s long as
the error is corrected.”8
4
Id. at 1268.
5
Id.
6
Id.
7
Clark, 51 A.3d at 1268 (internal quotation marks omitted).
(continued . . .)
4
During allocution, after reviewing Clark‟s “violent criminal history,” the
prosecutor concluded by saying that “a ten-year sentence is very generous in this
case.”9 Defense counsel asked for leniency but did not object to the prosecutor‟s
allocution. After permitting Clark to speak, the judge sentenced him to prison for
ten years, a sentence, we later observed, that “was consistent with the prosecutor‟s
obligations under the plea agreement.”10
II. Direct Appeal (Clark I)
On direct appeal (Clark I), Clark‟s new counsel argued that the prosecutor
had violated the plea agreement not only by recommending a twenty-year sentence
after promising to cap the allocution at ten years, but also by compounding the
violation by arguing that a ten year sentence would be “very generous.”11 Counsel
_________________________________
(. . . continued)
8
Id. The corrected memorandum was filed the day after sentencing. See id.
9
Id. (emphasis omitted).
10
Id. at 1269.
11
Id.
5
on appeal therefore asked this court to vacate Clark‟s sentence and arrange for
resentencing before a different judge. Counsel also argued that if the new sentence
were to exceed ten years, Clark should be permitted to withdraw his plea.12
This court agreed that the government‟s breach of the plea agreement in the
sentencing memorandum “was both grave and inexcusable,” indeed that this
“blatant breach” had “potentially devastating consequences” for two reasons: the
prosecutor initially requested twice the level of incarceration — “ten more years”
— than the plea agreement allowed, and the prosecutor argued at sentencing that
even the ten years called for by the agreement was “very generous.”13 This
allocution, we said, “was anything but an emphatic retreat from the impropriety”; it
was an “implied dissatisfaction with that agreement.”14 We acknowledged no
reason to question the judge‟s assurance that she would be guided by the plea
agreement, not by the government‟s noncompliance; but, we stressed: “the judge
had read what she had read and had heard what she had heard, and the combination
of what the prosecutor wrote and what the prosecutor said could hardly have left
12
Clark, 51 A.3d at 1269.
13
Id. at 1269-70.
14
Id. at 1270.
6
the judge in doubt that the level of the prosecutor‟s commitment to the plea
agreement was quite modest.”15
All this said, we noted that when the judge decided to go ahead with
sentencing, defense counsel replied, “Okay.”16 Furthermore, counsel did not object
to the judge‟s decision to keep the case for sentencing, rather than referring it to
another judge; nor did counsel object to the prosecutor‟s allocution.17 This left us,
we said, no alternative to reviewing the record for “plain error affecting substantial
rights,” a review focused exclusively on the actions of the trial judge.18 This meant
that, to prevail, “Clark would have to demonstrate that the judge committed plain
error by failing to recuse herself sua sponte, so that the case could be reassigned to
another judge who would not be apprised of the recommendation made by the
government in its initial sentencing memorandum.” 19
15
Id.
16
Id. at 1271.
17
Id.
18
Id. at 1272.
19
Id.
7
We concluded that, on direct appeal, Clark had satisfied none of the four
requirements to establish plain error by the trial judge, as prescribed by the
Supreme Court in Olano.20 Our opinion ended as follows:
In reaching the foregoing conclusion, we do not
minimize the gravity of the government‟s initial breach,
or the alarming potential of that breach for causing the
defendant to serve ten years of unwarranted additional
imprisonment, in contravention of the plea agreement.
We also emphasize that when such a serious violation of
a plea agreement has occurred, it is our obligation to
scrutinize the record with appropriate care in order to
assure that even where, as here, the breach has been
formally corrected, it will not have continuing
consequences that may be contrary to the interests of
justice.21
Having conducted the requisite scrutiny, this court affirmed Clark‟s conviction.
III. § 23-110 Collateral Attack (Clark II)
20
United States v. Olano, 507 U.S. 725, 732-36 (1993) (claims of
unpreserved error should be reviewed for (1) “an error,” (2) that is “plain,” (3) that
affects “substantial rights,” and (4) “seriously affect[s] the fairness, integrity or
public reputation of judicial proceedings.”).
21
Clark I, 51 A.3d at 1272-73.
8
Two months after this court issued its decision, but before the mandate
issued, counsel in Clark I filed a motion with the sentencing judge pursuant to D.C.
Code § 23-110 (a)(1), asking the judge to vacate Clark‟s convictions and sentence.
Counsel alleged, fundamentally, that Clark‟s plea attorney had provided
constitutionally ineffective assistance of counsel by electing, as a “tactical
decision,” to continue with sentencing without adequately informing Clark of the
government‟s breach of the plea agreement. More particularly, to quote the
motion, Clark‟s plea attorney had
fail[ed] to consult with him during sentencing about the
government‟s violation of the plea agreement or to
explain to him what legal options were available to
remedy the breach and the risks that each entailed,
including the assignment of his case to a different judge
for a new sentencing.
These were counseling deficiencies, said the motion, that prejudiced Clark by
“realistically eliminating any possibility that he would receive a sentence of less
than ten years as his plea counsel had allocuted for at sentencing.”
In support of the motion, counsel proffered an affidavit by Clark, who
averred that plea counsel had “stated on the record that she had not had an
opportunity to discuss this [plea breach] with me.” And, “without conferring with
me about my legal options, she agreed that[] . . . the judge could proceed to
9
sentence me.” Clark added: “[S]he failed to explain to me that even if I did not
wish to withdraw my plea, I was still entitled to have my case assigned to a
different judge who would sentence me without having any personal knowledge of
the government‟s recommendation of a 20-year sentence. She also failed to
discuss the advantages or disadvantages to me of being sentenced by a different
judge. . . .” In sum, Clark and his counsel contended that plea counsel had usurped
from Clark his right, as the defendant, to decide, among available “options,” which
one to pursue.
The government, in reply, submitted a declaration by plea counsel, who
noted that she had requested a seven-year sentence, the “bottom of the sentencing
guidelines”; had advised Clark that “a ten-year sentence would not be unexpected”;
had decided to “wait to see the Court‟s reaction to the breach of the plea
agreement” before deciding on a „course of action”‟; had seen how “very upset”
the judge was about the government‟s breach; had thus made a “tactical decision”
not to ask for the judge‟s recusal, because the judge “was upset with the
government‟s actions” and had said that the “sentencing memorandum would not
affect” the judge‟s decision; that there was a “significant risk that another judge,
not as familiar with Mr. Clark and the progress he had recently made, might
sentence Mr. Clark to more than ten years‟ imprisonment”; and that counsel‟s
10
“professional opinion,” based on the judge‟s actions in this case and others, had led
counsel to believe that the risk of Clark‟s receiving a sentence longer than ten
years before a different judge was greater than the chance of his receiving a lesser
sentence from the present judge.
Plea counsel‟s declaration did not dispute Clark‟s affidavit. She had no
recollection as to whether she had spoken to her client before the sentencing
proceeding began, although she was “confident” that she had advised Clark of the
plea breach “at least during” that proceeding. She then had advised Clark that “we
should proceed with sentencing” because of the judge‟s displeasure with the
government and the judge‟s indication that she would not be influenced by the
breach. Nowhere in counsel‟s declaration did she say she had told Clark that
sentencing before another judge might be an option or that, alternatively, he could
attempt to withdraw his plea.
The sentencing judge, applying Strickland criteria,22 denied Clark‟s motion.
The judge accepted plea counsel‟s reasoning, and justified counsel‟s judgment as a
legitimate “tactical decision,” not a deficiency in performance. Nor was Clark
22
See Strickland v. Washington, 466 U.S. 668 (1984).
11
prejudiced by counsel‟s actions, concluded the judge, because this court had ruled
in Clark I that “the government‟s breach did not affect [Clark‟s] substantial rights,”
thereby equating the absence of Strickland “prejudice” with a ruling of “no plain
error.”
IV. Appeal of Clark II: Procedural Matters
In this second appeal (Clark II), Clark argues that, in denying his motion
alleging ineffective assistance of counsel, the sentencing judge abused her
discretion by refusing to hold a hearing, which Clark contends the judge was
required to conduct under D.C. Code § 23-110 (c) and related case law. This
appeal, more specifically, is premised on plea counsel‟s alleged failure, upon
becoming fully informed about the breach, to ask the judge for time, before
sentencing, (1) to thoroughly inform Clark about the government‟s actions in
breach of the plea agreement, and (2) to “explain to Clark his legal options,”
including a request to withdraw of his guilty plea.23
23
See Santobello v. New York, 404 U.S. 257, 262 (1971); White v. United
States, 425 A.2d 616, 618 (D.C. 1980).
12
Having lost on direct appeal in Clark I, based on our plain error review of
the trial judge‟s actions, the same appellate counsel now asks us to review Clark‟s
sentence again, this time on collateral attack, focused on the actions of plea
counsel, not the trial judge, in response to the prosecutor‟s undisputed violations of
the plea agreement. Acknowledging that Clark I forecloses a second challenge to
the court‟s failure to reassign the case for resentencing by a different judge, Clark
limits his contention to counsel‟s failure to advise him of the possibility of seeking
withdrawal of his guilty plea.
A. Shepard Issue
Before we address the merits, there is a procedural matter we should
acknowledge. In our Shepard decision, we held:
[I]f an appellant does not raise a claim of ineffective
assistance of counsel during the pendency of the direct
appeal, when at that time appellant demonstrably knew or
should have known of the grounds for alleging counsel‟s
ineffectiveness, that procedural default will be a barrier
to this court‟s consideration of appellant‟s claim.[24]
24
Shepard v. United States, 533 A.2d 1278, 1280 (D.C. 1987).
13
We added that “an appellant may surmount the barrier created by the procedural
default” by showing both “cause” for the failure to bring a timely collateral
challenge and “prejudice” to his claim as a result of that failure.25
In this case, Clark filed his § 23-110 motion after we had announced our
decision in Clark I but before we issued the mandate. Neither the government nor
the court raised a timeliness issue when the motion was filed, nor does the
government do so in this appeal. More specifically, the government does not
challenge Clark‟s failure to ask 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.26 Accordingly, we do not recognize a Shepard barrier here.
B. Standard of Review
We turn now to the criteria governing our review. Under Strickland, in
order to obtain a new trial by establishing constitutionally ineffective assistance of
25
Id. at 1281.
26
See id, at 1280.
14
counsel, the defendant must demonstrate, first, that “counsel‟s performance was
deficient. This requires showing that counsel made errors so serious that counsel
was not functioning as the „counsel‟ guaranteed the defendant by the Sixth
Amendment. Second, the defendant must show that the deficient performance
prejudiced the defense.”27 To demonstrate prejudice, an appellant must show “a
reasonable probability that, but for counsel‟s unprofessional errors, the result of the
proceeding would have been different.”28
“In evaluating counsel‟s performance, the reviewing court must indulge a
strong presumption that counsel‟s conduct fell within a wide range of reasonable
professional assistance.”29 Tactical decisions at trial “generally do not result in a
finding of ineffective assistance of counsel[;] thus, [a]ppellant bears the burden of
overcoming the presumption of counsel‟s competence.”30 The appellant, however,
is entitled to an ample opportunity to challenge that competence. The statute under
which we review for ineffectiveness, D.C. Code § 23-110, “creates a presumption
27
Strickland, 466 U.S. at 687.
28
Id. at 694. In Harrington v. Richter, 562 U.S. 86, 112 (2011), the
Supreme Court characterized Strickland prejudice as a “substantial likelihood of a
different result.”
29
Chatmon v. United States, 801 A.2d 92, 107 (D.C. 2002) (internal
quotation marks omitted).
30
Id.
15
that a hearing should be held, especially where the allegations of ineffectiveness
relate to facts outside the trial record.31 The statute emphasizes that “[u]nless the
motion and files and records of the case conclusively show that the prisoner is
entitled to no relief, the [trial] court shall cause notice thereof to be served upon
the prosecuting authority, grant a prompt hearing thereon, determine the issues,
and make findings of fact and conclusions of law with respect thereto.”32
Although the decision whether to hold a hearing is committed to the trial
court‟s sound discretion, we have said that “the scope of that discretion is . . . quite
narrow. Any question regarding the appropriateness of a hearing should be
resolved in favor of holding a hearing. We will affirm the trial court‟s denial of a
§ 23-110 motion without a hearing” — as occurred in this case — “only if the
claims (1) are palpably incredible; (2) are vague and conclusory; or (3) even if true,
do not entitle the movant to relief.”33 Accordingly, we must remand this case for a
31
Long v. United States, 910 A.2d 298, 308 (D.C. 2006) (internal quotation
marks omitted).
32
Id. (quoting D.C. Code § 23-110 (c) (emphasis added).
33
Id. (internal quotation marks omitted).
16
hearing unless we are “satisfied that under no circumstances could [Clark]
establish facts warranting relief.”34
In addressing this matter, we follow our time-honored standard of review.
“A claim of ineffective assistance of counsel presents mixed questions of law and
fact. We defer to any relevant findings of fact if they are supported by the
evidence but owe no deference on the ultimate question of law.”35
V. Appeal of Clark II: The Merits
In this collateral attack on Clark‟s sentence, counsel essentially argues that,
if the sentencing judge was not required sua sponte to protect Clark‟s right to
remedy a violation of his plea agreement, then assuredly his trial counsel should be
held constitutionally accountable for withholding relevant considerations from
Clark.
34
Id.
35
Chatmon v. United States, 801 A.2d 92, 102 (D.C. 2002) (citations
omitted).
17
A. Alleged Constitutional Deficiency of Counsel
According to the Supreme Court in Florida v. Nixon, “[a] guilty plea . . . is
an event of signal significance in a criminal proceeding.”36
[C]ertain decisions regarding the exercise or waiver of
basic trial rights are of such moment that they cannot be
made for the defendant by a surrogate. A defendant . . .
has the ultimate authority to determine whether to plead
guilty, waive a jury, testify in his or her own behalf, or
take an appeal. . . . Concerning those decisions, an
attorney must both consult with the defendant and obtain
consent to the recommended course of action.[37]
As to guilty pleas in particular, the Supreme Court in Santobello, as well as
this court in White, has noted that two remedies are commonly available to a
defendant when the government breaches a plea agreement: withdrawal of the plea
or, at a minimum, sentencing by a judge unaware of the breach. 38 It follows from
this case law that, before sentencing, the defendant must be advised of the breach
36
Florida v. Nixon, 543 U.S. 175, 187 (2004).
37
Id.
38
See Santobello, 404 U.S. 257 at 262; see White, 425 A.2d 616 at 618.
18
and of all available options, including advice from counsel as to whether the
defendant may wish to withdraw the plea if the trial court were to grant that option.
Otherwise, the defendant will have no informed basis for making a decision crucial
to his liberty interest.
In this case, however, by plea counsel‟s own admission,39 Clark never
received word of the breach until the sentencing proceeding was underway, and
thus he had no opportunity to consider the possibility of sentencing by a different
judge (the issue resolved in Clark I) or of withdrawing his plea (the issue now
before us). Clark instead was the recipient of his counsel‟s “tactical decision”40 to
proceed to sentencing before Judge Keary, who was aware of the breach and the
government‟s lingering, negative views of Clark, in conflict with its concessions
under the plea agreement.
Fundamental to Clark‟s claim of ineffective assistance of counsel, therefore,
is the contention that his plea counsel was constitutionally deficient in failing to
advise him of the government‟s breach and of all his possible remedies, in time for
39
See supra Part III.
40
See supra Part III.
19
Clark to make a considered decision and for counsel to present his position to the
court before sentencing. As an abstract proposition, that contention is sound. A
lawyer is an agent; the client is the principal. When it comes to electing among
options before sentencing that will determine the client‟s prison time, a lawyer
cannot ethically or lawfully interdict that choice by acting as the client‟s principal
and justifying that preemptive role as a legitimate tactical decision.41
We have no doubt that plea counsel acted conscientiously in what she
considered Clark‟s best interest, but evidence of good faith cannot supplant
counsel‟s obligation to consult with the client before acting for him on a plea
bargain decision. We also have no reason to doubt that, if counsel had asked the
judge for time before sentencing to consult with Clark about the options available
after the government‟s breach of a plea agreement, that request would have been
granted.
41
See American Bar Association, Standards for Criminal Justice (3d. 1993),
“Control and Direction of Case,” 4-5.2.; id. at 4-8.1; Nixon, 543 U.S. at 187; Jones
v. Barnes, 463 U.S. 745, 751 (1983) (“[T]he accused has the ultimate authority to
make certain fundamental decisions regarding the case, as to whether to plead
guilty, waive a jury, testify in his or her own behalf, or take an appeal. . . .”).
20
The government, however, embraces the sentencing judge‟s contrary
conclusion that plea counsel‟s decision to continue with sentencing under all the
circumstances was a sound “tactical” choice of a sort that traditionally is left to a
defendant‟s lawyer. The government, for example, equates plea counsel‟s decision
with the common, tactical decision not to call a particular witness. We, however,
cannot agree that a mere tactical decision is involved here. The government‟s
characterization of Clark‟s complaint against plea counsel as “peripheral” and
“immaterial”, when compared to the “reasonableness” of counsel‟s tactical
decision to go forward — without first asking for time to consult with her client
about the plea breach — is just plain wrong.42 That decision is for a counseled
client, not the lawyer, to make, no matter how improvident a plea withdrawal
would be.43
In his § 23-110 motion, Clark alleged at least five times that counsel had
been obliged — and failed — to explain “what legal options were available,” and
“the risks that each entailed, including assignment of his case to a different
judge. . . .” (Emphasis added). Moreover, in plea counsel‟s declaration filed by the
government, there is clear recognition that Clark was seeking relief from counsel‟s
42
See supra note 41.
43
See supra note 41.
21
failure, prior to sentencing, to “explore Mr. Clark‟s options” and “consult” with
him about them (emphasis added). Because withdrawal of the plea, in addition to
resentencing before a different judge, was a traditional option, and further because
counsel was obliged to counsel-in-full, even if advising that one or more options
would be ill advised, we are satisfied that Clark‟s motion sufficiently alleged a
constitutional deficiency.
The government maintains, to the contrary, that Clark has waived his
argument that “counsel was deficient for failing to advise him about whether to
withdraw his plea altogether.”44 It is true, as the government points out, that in
Clark‟s § 23-110 motion he emphasized, explicitly, only one option: “assignment
of his case to a different judge for a new sentencing,” the same option addressed in
Clark I. Indeed, Clark did so at least seven times. (He adverted to plea withdrawal
44
Clark appears to concede, at least for purposes of this appeal (to which we
confine the point) that counsel‟s decision as to sentencing — whether by Judge
Keary or a substitute judge — fell within counsel‟s prerogative of making tactical
decisions. “Mr. Clark does not dispute that, had [counsel] consulted with her client
about the full panoply of his legal options, including whether or not he desired to
withdraw his guilty plea because of the government‟s breach, she would have
retained the authority over the tactical decision as to whether to proceed before
Judge Keary or to seek the appointment of a different judge.” This contention is at
odds with Clark‟s contention that, as a fully advised client, he would be entitled to
make all final decisions with respect to the breached plea agreement, without a
“tactical” override by his lawyer. See supra note 42.
22
once, not in the text as part of his argument but in a footnote collecting examples
of a counsel‟s ethical duty to consult.)45
From Clark‟s motion limited in emphasis to only one option (transfer to a
different judge), we can understand why the government argues waiver of the
deficiency issue based on plea withdrawal. But the issue immediately before us is
not, directly, whether the allegations in Clark‟s motion are insufficient, as a matter
of law, to raise the deficiency issue as to plea withdrawal. In resolving that issue,
we must inquire first whether Clark is entitled to a § 23-110 hearing on his motion
or has forfeited that opportunity by failing to specify the withdrawal option.
45
In addition to language referring to options in the plural, appellant Clark,
in the affidavit in support of his motion (quoted above in Part III.), expressly
complained about counsel‟s failure to explain reassignment to a different judge
“even if I did not wish to withdraw my plea” — language the government cites to
suggest that Clark actually had no interest in a plea withdrawal. Perhaps not, but,
without a hearing, who can be sure? His words may have indicated no more than
his understanding that plea withdrawal was among the options about which he
required advice to compare potential consequences; the words are not necessarily
an implicit admission that he no longer had interest in plea withdrawal as a
potentially available option.
23
Clark has a right to a hearing, in the words of § 23-110 (c), “[u]nless the
motion and files and records of the case conclusively show that the prisoner is
entitled to no relief.”46 Because of the multiple references to “options,” as well as
to a “different judge,” there appears to be a disconnect within the motion that
requires resolution, with some language embracing all available remedies, and
other language appearing to limit the remedy sought. For purposes of resolving
this ambiguity, the statute, § 23-110 (c), requires the reviewing judge to consider
not only the motion itself but also the “files and records” of the case.47 In doing so,
the judge would have noted in Clark‟s handwritten, pro se letter to the trial judge,
headed “Notice of Appeal,” a request to “vacate any and all decisions which
directly relate[] to this flawed plea agreement” — language that arguably embraces
vacation of the plea itself. Furthermore, although Clark characterized his letter as
a “Notice of Appeal,” he presumably was aware that, in the plea agreement (as this
court noted in Clark I),48 he had waived the right of appeal, suggesting that his
letter could just as easily have been construed as a § 23-110 motion directed at
46
D.C. Code § 23-110 (c) (2012 Repl.) (emphasis added).
47
Id.
48
Clark I, 51 A.3d at 1269.
24
undoing his agreement with the government.49 Under these circumstances, we
would not be comfortable concluding as a matter of law, without a hearing, that
Clark limited his § 23-110 motion to the judicial transfer option.
The government, however, would have us reject any need for a hearing on
the scope of the deficiency issue in Clark‟s motion. It argues that plea counsel did
“not defy prevailing professional norms by failing to raise for discussion a
palpably incredible prospect that would have manifestly increased, not decreased,”
Clark‟s chances for “a sentence of greater than 10 years‟ imprisonment.” With that
statement, the government improperly diminishes counsel‟s professional
obligation. Clark contends that his motion claims the unquestionable right to
advice from his lawyer about all available options, including plea withdrawal, not
just those that his lawyer deems prudent. The government, however, appears to
believe that plea counsel‟s professional obligation will be satisfied if that advice is
limited to options that would only permit the client to make a decision reflecting
sound, not dubious, judgment. Thus, by allowing counsel to narrow the universe
49
The government argues that, because Clark chose to treat his letter to
Judge Keary as a notice of appeal, rather than a § 23-110 motion, he cannot have it
serve double duty as, potentially, a motion justifying a challenge to his counsel.
We do not agree that a convicted defendant, acting pro se at the time, cannot rely
on this motion as evidence of his intent as to plea withdrawal.
25
of options based solely on counsel‟s own judgment, the government would leave to
Clark‟s lawyer a slice of the decision that Clark, the client, is ultimately entitled to
make. It may well be that after full disclosure to the client of all options required
of effective counsel, one option (including, perhaps, a plea withdrawal) might be
so irrational, if exercised, that the claim to relief would be “palpably incredible”
and, despite full disclosure, would not “entitle [Clark] to relief”50 — thereby
justifying denial of a § 23-110 hearing.51 But that possibility is not part of the
deficiency analysis; it would go to an alleged failure to show the required
prejudice.
B. Alleged Prejudice from Counsel’s Deficiency
We turn, therefore, to prejudice. In denying Clark‟s § 23-110 motion, Judge
Keary concluded, and the government agrees, that the prejudice analysis was
resolved by our decision in Clark I, where we found no plain error — no error
50
Long v. United States, 910 A.2d 298, 308 (D.C. 2002) (quoting two of
three situations which this court has said will justify denial of a § 23-110 (c)
motion without a hearing.); see supra Part IV.B.
51
Given the mix of specificity and generalization in Clark‟s motion, we
cannot uphold its dismissal as “vague or conclusory,” the third situation we have
said that will justify denial of a § 23-110 (c) motion without a hearing. See id.
The government does not suggest otherwise.
26
affecting Clark‟s “substantial rights” — in the trial judge‟s failure sua sponte to
transfer the case to a different judge for sentencing.52 This conclusion, we are told,
has preclusive effect here: absent the loss of substantial rights, there can be no
Strickland prejudice — no “reasonable probability that, but for counsel‟s
unprofessional errors, the result of the proceeding would have been different.”53
This preclusion argument, however, is overstated when based on Clark I, because
Clark I concerned the alleged loss of substantial rights only from failure to reassign
the case for sentencing. We did not consider in Clark I (because the issue was not
presented on direct appeal) whether counsel‟s alleged deficiency in failing to
advise about the possibility of a plea withdrawal prejudiced Clark. That issue is
now before us.
If Clark had received counsel about plea withdrawal, was there a
“reasonable probability that . . . the result of the proceeding would have been
different”54 — “a substantial likelihood of a different result”?55 Judge Keary did
52
See Clark I, 51 A.3d at 1272.
53
United States v. Dominguez Benitez, 542 U.S. 74, 82 (2004).
54
Strickland, 466 U.S. at 694.
55
Harrington, 562 U.S. at 112.
27
not address that question because she understood Clark‟s § 23-110 motion to seek
only one form of relief — a transfer for resentencing — and concluded that
Strickland prejudice, as the government argued in response to Clark‟s motion, was
“equivalent to” the “third prong of the plain error test.”56 As a result, Judge Keary
ruled that Clark‟s claimed prejudice was foreclosed by this court‟s decision in
Clark I finding no loss of “substantial rights” and thus no plain error from the
failure to reassign sentencing.
On appeal, the government agrees with Judge Keary but insists in its brief
that, even if Clark I does not foreclose a prejudice inquiry here (because only a
sentencing transfer, not a plea withdrawal, was involved), the judge‟s “purported
failure to discuss alternatives” to going ahead with sentencing “had no material
effect on [Clark‟s] rights or the outcome.” The likelihood of Clark‟s withdrawing
his plea, even if offered the opportunity to do so, was “palpably incredible,”57 says
the government in its brief, if only because a trial would have confronted Clark
with a “10-year mandatory minimum [sentence] on the first count (which his plea
cut by half).” By way of comparison, the sentence he received pursuant to his
56
See supra note 20.
57
Long, 910 A.2d 298 at 308.
28
plea, fully in conformity with the plea agreement, was only three more years of
incarceration than his counsel had asked for.
The Supreme Court‟s decision in Dominguez Benitez58 affords the
government a compelling argument. When accepting the defendant‟s guilty plea,
the district court judge had given most of the warnings required by Federal
Criminal Rule 11, but “the judge failed to mention that [the defendant] could not
withdraw his plea if the court did not accept the Government‟s recommendation.”59
Without objection, the judge sentenced the defendant to a term that exceeded the
limit in the plea agreement. In rejecting the defendant‟s request to withdraw his
plea, the Supreme Court found no plain error. The Court held that “a defendant
who seeks reversal of his conviction after a guilty plea, on the ground that the
district court committed plain error under Rule 11, must show a reasonable
probability that, but for the error, he would not have entered the plea,”60 the same
standard applicable to ineffectiveness claims in Strickland. To get there the Court
58
See supra note 51.
59
Id. at 78.
60
Id. at 76.
29
first quoted Kotteakos,61 observing that, “[t]o affect „substantial rights,‟ . . . an
error must have a „substantial and injurious effect or influence in determining
the . . . verdict.‟”62 The Court then cited its more recent decision in Bagley,63
which held that when the burden is on the defendant to show prejudice (instead of
on the government to demonstrate harmlessness), the Court “invoke[s] a standard”
somewhat different from, but “with similarities to,” Kotteakos, namely the
Strickland standard.64 In Bagley, the Court applied Strickland‟s prejudice analysis
to Brady65 claims; in Dominguez Benitez, the Court extended that analysis to plea
withdrawals.
Clark‟s case ostensibly differs from Dominguez Benitez in one significant
respect. Clark‟s claim concerns a deficiently counseled defendant; Dominguez
Benitez did not. Indeed, plea counsel‟s alleged deficiency in advising Clark was
halfway toward constitutional error, whereas the trial judge‟s Rule 11 error in
61
Kotteakos v. United States, 328 U.S. 750 (1946).
62
Dominguez Benitez, 542 U.S. at 81.
63
United States v. Bagley, 473 U.S. 667 (1985).
64
Dominguez Benitez, 542 U.S. at 81.
65
Brady v. Maryland, 373 U.S. 83 (1963).
30
Dominguez Benitez did not implicate the Constitution.66 Ultimately, however, this
distinction makes no difference. By importing Strickland’s constitutional standard
for prejudice into plain error review of attempted plea withdrawals based on trial
court error, the Supreme Court did no more than equate plain error review with the
standard already applicable when requesting plea withdrawals generated by
constitutionally ineffective assistance of counsel. In Dominguez Benitez, therefore,
prejudice was determined by whether there was a “reasonable probability” that, but
for the trial court‟s Rule 11 error, the defendant would not have entered his guilty
plea.67 Similarly, in this case, prejudice will be determined by whether there was a
“reasonable probability” that, “but for counsel‟s professional errors,” Clark would
have sought to withdraw his plea. Thus comes our specific question: is there a
reasonable probability that, if counsel had fully informed Clark of all possible
options after the breach, would Clark have asked Judge Keary to permit
withdrawal of his guilty plea.
66
In Dominguez Benitez, Justice Souter observed: “[I]n this case . . . [it is]
worth repeating[] that the violation claimed was of Rule 11, not of due process.”
542 U.S. at 83.
67
Id. at 82.
31
Assuredly no one, including an attorney, can properly speak for a defendant
in Clark‟s liberty-deprived situation without consulting him, and thus no one can
be absolutely sure about how Clark would have addressed the situation with all the
facts at hand. Indeed, Justice Souter acknowledged in Dominguez Benitez that a
defendant may make “foolish” choices in going to trial, rather than accepting a
plea bargain, even “absent the error” at issue.68 We cannot tell for sure how Judge
Keary would have reacted to a request for a plea withdrawal if she had believed
that issue was before her,69 but any effort to resolve what her likely decision would
have been would be pointless, for that decision could not stand in the way of
determining the “reasonable probability” of Clark‟s anterior decision whether to
ask for withdrawal.
68
Id. at 85.
69
See Bennett v. United States, 726 A.2d 156, 165-66 (D.C. 1999)
(explaining the criteria for pre-sentencing plea withdrawal under the “fair and just”
standard; “[T]he factors a trial court must consider when evaluating a motion to
withdraw a guilty plea include: (1) whether the defendant has asserted his or her
legal innocence; (2) the length of the delay between entry of the guilty plea and the
desire to withdraw it; and (3) whether the accused has had the full benefit of
competent counsel at all relevant times. [N]one of these factors is controlling and
the trial court must consider them cumulatively in the context of the individual
case. Moreover, the circumstances of the individual case may reveal other factors
which will affect the calculation . . . under the fair and just standard.) (internal
quotation marks and citations omitted).
32
In discussing plea counsel‟s alleged deficiency, we have noticed the
possibility from Clark‟s pro se Notice of Appeal that Clark may have been seeking
a plea withdrawal — a matter involving allegedly deficient counsel not raised on
direct appeal in Clark I. And of course we have concluded that, absent a hearing,
we cannot say as a matter of law that Clark had not sufficiently alleged that
deficiency in his § 23-110 motion. At most, however, the evidence suggests a
possibility, not probability, that Clark — if properly counseled — would have
asked to withdraw his plea. We agree with the government that if Clark, before
sentencing, had been counseled about the plusses and minuses of asking to
withdraw his plea, he presumably would have faced a formidable argument by his
lawyer that withdrawal would be irrational, because a trial might well have led to a
ten-year mandatory minimum sentence on the first count (which his plea cut in
half), compared to the sentence he would receive pursuant to the plea agreement
(only three more years of incarceration than his counsel had asked for). Although
plea counsel‟s declaration in response to Clark‟s § 23-110 motion did not address
plea withdrawal, it is difficult to imagine that counsel, advising rationally, would
have supported withdrawal; in fact, counsel‟s moving quickly to retain sentencing
before Judge Keary is evidence that counsel did not favor deep-sixing Clark‟s plea.
33
All things considered, we conclude that Clark has proffered no reasonable
probability that, but for counsel‟s failure to advise about plea withdrawal, Clark
would have sought to withdraw his plea. Admittedly, we are concluding as a
matter of law, on the record here without a hearing, that Clark presumably would
have followed what his lawyer presumably would have advised: stick with the
guilty plea. On the face of it, reliance on these double presumptions might seem
harsh. But, despite the fact that a defendant is entitled to make foolish judgments
about pleading guilty and going to trial, we are not obliged under § 23-110 to
honor the irrational over the rational. And we can safely say, on this record, that it
is irresistibly clear that no reasonable counsel would have advised Clark to
withdraw his plea.70 Nor does Clark proffer a reasonable argument as to why — in
lieu of sentencing by Judge Keary, as his counsel advised — he would have
wanted to walk away from his plea into the uncertainties of a trial, without an
agreement capping an eventual sentence.71
70
We exclude the possibility of a deceased key witness for the prosecution,
for in that case the likelihood of the judge‟s allowing a plea withdrawal would
most likely be nil.
71
In Clark I, Clark argued that he should be entitled to withdraw his plea if
— when sentenced by a different judge — “his new sentence exceeds ten years.”
51 A.3d at 1268. Although the thrust of that appeal, as we have indicated above in
Part II., was Clark‟s effort to achieve sentencing before a different judge, not
withdrawal of his plea, this is some evidence that Clark recognized that a plea
(continued . . .)
34
Having concluded that Clark has not shown Strickland prejudice from
counsel‟s alleged deficiency, we must say that any need for a hearing on the
deficiency allegations is now moot.
*****
For the foregoing reasons, the judgment of the trial court is
Affirmed.
_________________________________
(. . . continued)
withdrawal, without the guarantees built into his plea bargain, would be too
hazardous.