Gooding v. United States

FERREN, Associate Judge,

dissenting:

Appellant pleaded guilty to one count of kidnapping, a lesser-included offense of kidnapping while armed, in exchange for the government’s dropping three other counts of kidnapping while armed, two counts of threatening to injure a person, and one count of obstruction of justice. I conclude that the records of the hearings on the plea and on the pre-sentence motion to withdraw the plea support both (1) the trial court’s finding that appellant voluntarily and knowingly entered the plea, McCarthy v. United States, 394 U.S. 459, 466, 89 S.Ct. 1166, 1170, 22 L.Ed.2d 418 (1969), and (2) the trial court’s discretionary ruling that, to be “fair and just” under the circumstances, Kercheval v. United States, 274 U.S. 220, 224, 47 S.Ct. 582, 583, 71 L.Ed. 1009 (1927), the court need not permit withdrawal of the plea.

My colleagues conclude, to the contrary, that the plea was not voluntary and knowing. If that were true, of course, withdrawal of the plea should be granted automatically, McCarthy, 394 U.S. at 471-72, 89 S.Ct. at 1173-74; the majority would have no reason to proceed to a second ground for reversal. Nonetheless, for some reason, my colleagues alternatively premise reversal on the failure of the trial court to honor appellant’s timely motion to withdraw based primarily on a claim of legal innocence. The majority’s premise, however, is incorrect; appellant never effectively asserted his legal innocence. Thus, the majority’s fallback argument also fails.

I.

In his Super.Ct.Crim.R. 32(e) motion to withdraw the plea, appellant, through new counsel, advanced three arguments. First, he asserted the plea had been involuntary because of the pressures of personal circumstances concerning his family, as well as intolerable conditions of confinement at the District of Columbia jail. Next, appellant claimed his plea had been unknowing, and thus not truly voluntary, because previous counsel had provided ineffective assistance in two respects: (a) counsel allegedly had failed to provide information appellant had requested about the backup time he would have to serve, after parole revocation, if convicted on the instant charges, and (b) counsel allegedly had failed to advise fully about available defenses, including consent of the victim, lack of specific intent, and coercion by the co-defendant, Kenneth Bass.

At the hearing on the Rule 32(e) motion, appellant suggested a fourth basis for withdrawal of the plea. He testified that *1336his plea had been involuntary because it had been induced by fear of reprisals against himself and his family if he went to trial and defended by testifying against his co-defendant, Bass. He did not, however, assert his legal innocence.

After the hearing, appellant’s attorney submitted proposed findings of fact addressed to each of the four asserted grounds for withdrawal. He conceded both ineffectiveness of counsel claims — including the claim that appellant had not been effectively counseled on the coercion defense.1 He also essentially conceded the assertion of involuntariness based on appellant’s personal circumstances at the time of the plea.2 Counsel therefore conceded all three arguments stated in the written motion to withdraw. Counsel’s proposed findings dealt only with the fourth issue, presented for the first time at the hearing: involuntariness of the plea attributable to fear of co-defendant Bass.

Counsel also submitted proposed conclusions of law. Curiously, instead of citing cases to support the only argument remaining after the hearing — involuntariness based on fear — counsel supplied conclusions of law addressed to withdrawal of the plea on still another, not previously asserted ground: a claim of legal innocence. Counsel acknowledged, however, that a defendant does not have an absolute right to withdraw a guilty plea before sentencing, even when asserting legal innocence.3

The trial court denied the motion to withdraw. After disposing of the alleged ineffectiveness of counsel claims, supra note 1, the court perceived only one remaining issue and rejected appellant’s claim of an involuntary plea based on his asserted fear of Bass.

We therefore have three principal issues to resolve: (1) whether the trial court erred in finding appellant voluntarily and knowingly pleaded guilty — an inquiry that focuses both on the adequacy of the plea hearing, Super.Ct.Crim.R. 11, and on the evidence adduced at the plea withdrawal hearing, Super.Ct.Crim.R. 32(e); (2) whether the trial court should have recognized and ruled upon appellant’s claim of legal innocence asserted for the first time, after the plea withdrawal hearing, in appellant’s proposed conclusions of law; and (3) if so, whether the record supports a claim of legal innocence that might justify withdrawal of the plea.

II.

A guilty plea waives several constitutional rights. McCarthy, 394 U.S. at 466, 89 S.Ct. at 1170. Thus, to accord due process, the trial court must be sure that the defendant has entered the plea “voluntarily after proper advice and with full understanding of the consequences.” Machibroda v. United States, 368 U.S. 487, 493, 82 S.Ct. 510, 513, 7 L.Ed.2d 473 (1962) (quoting Kercheval, 274 U.S. at 223, 47 S.Ct. at 583). Put another way, because the plea represents “an intentional relinquishment or abandonment of a known right or privilege,” Johnson v. Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019, 1023, 82 L.Ed. 1461 (1938), *1337the plea must be “equally voluntary and knowing.” McCarthy, 394 U.S. at 466, 89 S.Ct. at 1171.

These two, fundamental criteria — “voluntary” and “knowing” — are interrelated. A plea cannot be “truly voluntary,” id., unless the defendant not only (1) is free of coercion or other unfair inducement but also (2) knows all the elements of the crime charged, admits complicity when confronted with facts sufficient to establish guilt, and understands the potential consequences of entering the plea, see id. at 466-67, 89 S.Ct. at 1170-71. In short, in accepting a guilty plea, the trial court must be sure, at the Rule 11 hearing, that the defendant not only confirms a free-will decision based on competent advice and known consequences, Machibroda, 368 U.S. at 493, 82 S.Ct. at 513, but does so with an understanding that the admitted conduct actually embraces all the elements of the charged offense. McCarthy, 394 U.S. at 467, 89 S.Ct. at 1171.4

A.

Everyone agrees that, at the plea hearing, the trial court followed all Rule 11 procedures except for the two principal inquiries: whether “the plea is voluntary and not the result of force or threats,” Super. Ct.Crim.R. 11(d), and whether “there is a factual basis for the plea,” id. Rule 11(f), sufficient to confirm a knowing waiver.5

As to the first, in response to the court’s questions about whether the plea was “voluntary,” Rule 11(d), appellant testified that no one had said or done anything that caused him to believe he had to plead guilty, that no one had made promises not stated in open court, that he understood the rest of the charges would be dropped, that he was satisfied with the services of his attorney, and that no one had promised him how the court would sentence him. The court then asked: “Are you under the influence of any drug, alcohol, or medication, or anything else for that matter that would prevent you from being able to think clearly or otherwise make an intelligent decision on your behalf?” (Emphasis added). Appellant answered: “No sir.” Ostensibly, therefore, appellant’s plea was voluntary.

Then came the following colloquy, government proffer, and follow-up exchange:

The Court: Are you pleading guilty to this count of unarmed kidnapping because you committed the crime?
Appellant: In that respect, yes, sir.
The Court: There’s not going to be any hedging here.
Appellant: In a respect.
Defense Counsel: Yes.
The Court: All right. I’ll hear the government’s proffer.
*1338The Prosecutor: Your Honor, the government’s evidence at trial would show that on April 5th and April 6th of 1982, the complainant in this case, Mr. Lawrence McIntyre, was held against his will and abducted against his will by the defendant and others. The kidnapping began at 12th and New York Avenue, Northwest, here in the District of Columbia, where the complainant was abducted at point of gun. He was handcuffed there, he was — there was someone who stood guard over him for a period of time. He was then moved against his will up to Baltimore, Maryland, and Springfield, Virginia. All against his will during the course of which he was also assaulted with a gun.
The Court: What I need to know now is did you or did you not participate as a knowing associate in the undertaking in the kidnapping as I have described it to you of Mr. Lawrence McIntyre? Appellant: Yes, Your Honor, I participated knowingly, however, I would like it to be noted unwillingly. It was knowingly-
The Court: You did it voluntarily but you had reservations, is that what you’re saying?
Appellant: Yes, sir.

This sequence was intended to establish the “factual basis for the plea,” Rule 11(f), in order to assure the court that appellant realized his conduct “actually [fell] within the charge.” McCarthy, 394 U.S. at 467, 89 S.Ct. at 1171 (footnote omitted). Appellant was not consciously proposing an Alford plea while claiming innocence.6 Thus, the trial court had to be sure that appellant clearly acknowledged he had participated in the crime — the elements of which the court had explained, supra note 5 — since “hedging” on that question might cast doubt on whether the plea was knowing and thus truly voluntary. See McCarthy, 394 U.S. at 466-67, 89 S.Ct. at 1170-71.

After the government’s proffer summarizing the events of the crime and appellant’s role in it, appellant acknowledged that he had participated “knowingly” but “unwillingly.” Appellant then accepted the court’s reformulation of his answer in an effort to clarify: he had participated “voluntarily” but with “reservations.” The government’s proffer and appellant’s responses unquestionably confirm “a factual basis for the plea.” Rule 11(f). Appellant argues, however, that his use of the words “unwillingly” and “reservations” should have caused the court to pin down more precisely what he meant, with a view to eliciting “potential coercive forces” which may have suggested that, although the plea had a factual basis, the plea was nonetheless involuntary. I disagree.

Without additional clarification, appellant’s responses could have meant that he either participated in the crime reluctantly, out of moral qualms, or felt pressed to do so, out of some undisclosed fear. But these responses were not sufficiently “hedging,” in light of the government’s proffer and appellant’s own earlier testimony, to suggest doubt about whether the plea itself was voluntary and knowing. As the government correctly points out in its brief: “The ‘hedging,’ if any, which appellant expressed during the plea proceeding ... was not related to whether he was voluntarily entering his plea,” for which he understood the elements of the crime and the factual basis, “but was directed at his characterization of his participation in the kidnapping_” This distinction is telling. In unequivocally acknowledging his participation in the crime, however reluctantly he may have participated, appellant said enough to satisfy the court — and reasonably so — that there was a factual basis for the plea. This acknowledgment was sufficient, when coupled with appellant’s earlier testimony that he was not pleading guilty under compulsion, to sustain the court’s *1339finding of a voluntary and knowing plea (in contrast with any reservations appellant may have expressed about participating in the crime months earlier).

In short, at the Rule 11 hearing, appellant was informed of the elements of the crime (including specific intent), acknowledged he had the benefit of satisfactory legal counsel, and admitted participation in the criminal event proffered by the government. I do not believe the trial court had an additional obligation to assure that appellant expressly waived a coercion defense simply because he acknowledged reservations about his participation in the crime. The trial court could properly understand the government’s proffer and appellant’s responses, despite their ambiguity as to why he committed the offense, to mean that he knew he had participated in a clearly explained crime, and that he believed it would be prudent to plead guilty, for whatever reduction of charges and benefit at sentencing that plea could provide, irrespective of any possible defense. So much for the Rule 11 hearing.7

B.

Even if I am wrong in concluding that the trial court probed deeply enough at the plea hearing, the later hearing on appellant’s motion to withdraw the plea, Super. Ct.Crim.R. 32(e), makes clear that appellant’s “hedging” at the earlier hearing did not imply an involuntary or unknowing plea. At this second hearing, appellant asserted that his plea had been involuntary because he had feared reprisals by co-defendant Bass if he had gone to trial and testified — not because he had a solid defense which no reasonable person would have waived by entering a plea. This distinction is important, for, as appellant’s own testimony at the hearing established, competent counsel, supra note 1, had informed appellant that a coercion defense was problematic at best.8 Thus, appellant knew it was prudent to plead guilty for whatever advantages that could bring rather than to present a weak defense at trial with the additional risk of incurring Bass’ wrath.

The trial court, as the majority notes, did accept that appellant had feared Bass, and the court, out of an abundance of caution, even took measures to protect appellant. But the court denied the motion to withdraw because it concluded that appellant’s *1340fear had been too “speculative” to render the plea itself involuntary instead of merely prudent. At most, according to the court, the fear of Bass presented a difficult choice leading appellant, who had been competently counseled about the weak prospects for a coercion defense, supra notes 1 and 8, to plead guilty as the “lesser of two evils.”

I perceive no basis for second-guessing the trial court’s ruling here; there was no abuse of discretion. See Patterson v. United States, 479 A.2d 335, 340 (D.C.1984). Appellant at no time proffered threats from Bass that could be said to have presented a tangible concern. But, even more important, the revelation that, in counsel’s opinion, a coercion defense probably would have failed makes clear that appellant’s “hedging” at the Rule 11 hearing related only to his own, lay perceptions about criminal responsibility, not to the vol-untariness and intelligence of his judgment in pleading guilty in view of a weak defense and his fear of Bass. Put another way, the only reason appellant’s alleged fear of Bass could have enough credibility to suggest an involuntary, unintelligent plea would be if the record showed that appellant believed he had a defense worthy of taking his chances at trial but that he had been too afraid to risk a trial. The record establishes, to the contrary, that appellant knew he had little chance with a coercion defense. Thus, appellant is reduced, in effect, to asking to withdraw his plea simply because he now wants a trial, not because genuine fear, rather than good judgment, induced the plea. Accordingly, even if the trial court should have more vigorously pursued appellant’s “hedging” at the Rule 11 hearing, the hearing on the motion to withdraw supported the court’s ruling. Appellant pleaded guilty because he participated in the kidnapping and did not have a realistic defense, not primarily because he feared Bass.

The question, then, is not whether appellant’s plea was voluntary and knowing — it was — but whether the majority can properly base this court’s ruling, instead, on a timely assertion of legal innocence.

III.

As noted earlier, appellant made no reference to legal innocence, based on a coercion defense, until his counsel filed proposed conclusions of law after the hearing on the motion to withdraw. Although counsel cited only four grounds for withdrawal at the hearing and in his proposed findings of fact — two based on ineffectiveness of counsel and two premised on involuntariness — he abruptly shifted ground when he came to the proposed conclusions of law.

Counsel stressed that under Kercheval’s “fair and just” standard, 274 U.S. at 224, 47 S.Ct. at 583, applicable to pre-sentence withdrawal motions, a defendant’s assertion of innocence weighs heavily in favor of permitting withdrawal of the plea.9 This is especially true, counsel noted, when the defendant has moved to withdraw soon after the plea was entered.10 Counsel acknowledged, however, that if the defendant’s factual contentions, taken as true, do not make out a legal defense, the assertion of innocence is ineffectual.11 Counsel then summarized his position: “Here, the defendant has asserted his legal innocence, there appear to exist legal defenses to the charges against him, and his failure to assert those defenses rather than enter the plea he now seeks to withdraw was the direct result of his fear that any successful defense would have required him to place the blame upon co-defendant Kenneth *1341Bass, a man who he feared would retaliate with acts of violence against the Defendant and his family.” Counsel also pointed out that the defendant had “promptly informed counsel, the court, and the probation officer assigned to his presentence investigation that the defendant wished to withdraw his plea before sentencing.”

Before assessing what counsel was attempting to argue, I believe it is important to note that a claim of innocence, as a basis for withdrawing a plea, is theoretically separate from a claim of involuntariness. See Kercheval, 274 U.S. at 223-24, 47 S.Ct. at 583; United States v. Barker, 168 U.S. App.D.C. 312, 325, 514 F.2d 208, 221, cert. denied, 421 U.S. 1013, 95 S.Ct. 2420, 44 L.Ed.2d 682 (1975). One is entitled to withdraw a plea, based on a showing it was involuntary, without claiming innocence, see Byrd v. United States, 377 A.2d 400, 404-05 (D.C.1977); and one may be granted the right to withdraw, based on a timely assertion of innocence, even though volun-tariness of the plea is not questioned, see Barker, 168 U.S.App.D.C. at 320, 325, 514 F.2d at 216, 221; Gearhart v. United States, 106 U.S.App.D.C. 270, 272, 272 F.2d 499, 501 (1959). Thus, if a defendant wishes to cite both grounds, that should be made clear. The trial court should not be expected to evaluate a basis for withdrawal which the defendant does not expressly proffer. See Jordan v. United States, 350 A.2d 735, 737 (D.C.1976); Everett v. United States, 119 U.S.App.D.C. 60, 63-64, 336 F.2d 979, 982-93 (1964).12

Although counsel, in his post-hearing proposed conclusions of law, referred to caselaw justifying withdrawal of a guilty plea based on an assertion of legal innocence, he did not — even then — clearly cite appellant’s innocence, based on apparent defenses, as an independent ground justifying withdrawal of the plea. Bather, counsel used the apparent availability of defenses only to buttress appellant’s basic argument that the plea had been involuntary. More specifically, counsel’s statement that “there appear to exist legal defenses” was intended to show that appellant’s fear must have been considerable — and thus his plea of guilty must have been involuntary— since he appeared to have a valid basis for believing he might prevail at trial.13

Accordingly, although a claim of innocence is commonly asserted as an independent ground justifying withdrawal of a guilty plea, even when the plea was voluntary, counsel for appellant never expressly asked the trial court to accord appellant’s claimed innocence that independent status. Counsel did not request the court, in the alternative, to grant the motion to withdraw, based on a timely assertion of legal innocence, if the court rejected the princi*1342pal claim that the guilty plea had been involuntary.14

Because appellant (as I read the record) premised his motion to withdraw solely on involuntariness of the plea, I believe the majority cannot properly invoke another ground for withdrawal which appellant, himself, did not clearly assert before the trial court. See Jordan, 350 A.2d at 737.15

IV.

An assertion of innocence is virtually a prerequisite to withdrawal of a voluntary plea under the majority’s own analysis. Everett, 119 U.S.App.D.C. at 63 n. 10, 336 F.2d at 982 n. 10 (failure to assert innocence, although not dispositive, “certainly militates against withdrawal” of guilty plea). But, even if the record should be read to suggest that appellant, alternatively, had asked to withdraw his plea based on an assertion of legal innocence, that contention would have to fail. As noted earlier, he did not give testimony that could convince any court a coercion defense, supporting a finding of innocence, was realistically available.16 Because of the majori*1343ty’s view to the contrary, I believe it is important to show more completely why the claim of innocence argument fails.

During appellant’s testimony at the hearing on the motion to withdraw, his counsel elicited the following responses:

Q. During the course of these transactions with Mr. Bass and the complainants, were you acting independently or were you following somebody’s instructions?
A. Following somebody’s instructions.
sis sit * * * *
Q. Whose instructions were you following?
A. Kenneth Bass.
* * * * * *
Q. Did you have a belief concerning what would happen to you if you didn’t follow Mr. Bass’ instructions?
A. Yes, sir.
* * Sit 5ft * *
Q. What was that belief?
A. That I would possibly be harmed or maybe even killed.

On cross-examination, the prosecutor clarified as follows:

A. What I would like to say is that as far as my guilt or innocence would — in my opinion would be dependent upon the person that is interpreting it. I’m not saying that I wasn’t present during these events, I’m merely saying that any participation that I’m alleged to have had concerning this was not willing or voluntary. I’m not saying it didn’t occur.
******
Q. But are you saying whatever participation you had was the product of your being scared?
A. Mostly, yes, sir.
Q. And the fear is the fear you had of Mr. Bass?
A. And some influence he might have had over some other people.
******
Q. And yet it’s your testimony today that Mr. Bass never threatened you?
A. Not during the course of those events, no, sir.
Q. And it’s your testimony that Mr. Bass never threatened your family?
A. Not to my knowledge.

(Emphasis added.)

The District of Columbia Criminal Jury Instruction 5.04 (3d ed. 1978) provides, in part, that “[c]oercion which will excuse the commission of a criminal act must be immediate and of such a nature as to induce in the defendant’s mind the well-grounded apprehension of death or serious bodily injury if the act is not done.” This court, citing this instruction, has interpreted it to require “a well-grounded apprehension of immediate death or serious bodily injury.” Stewart v. United States, 370 A.2d 1374, 1377 (D.C.1977) (emphasis added). As appellant’s own testimony indicates, his fears, while perhaps genuine, were speculative; they were not based on “immediate” coercion from Bass while the crime took place.

Furthermore, appellant testified he had told his counsel that he had taken one of the captives to the bus station and afforded him an opportunity to escape; that the captive had declined to do so; and that appellant, therefore, had returned the captive to Bass’ apartment. This testimony revealed that appellant, himself, had a chance to escape, evidence further tending to undermine a coercion defense. Cf. Stewart, 370 A.2d at 1377 (prisoner claiming escape from custody attributable to coercion “must establish that he [or she] imme*1344diately returned to custody once the threat of harm was no longer imminent”).

While the court “should not attempt to decide the merits of the proffered defense, thus determining the guilt or innocence of the defendant” who seeks to withdraw a guilty plea before sentencing, Gearhart, 106 U.S.App.D.C. at 273, 272 F.2d at 502, it is also true, as appellant’s counsel acknowledged in his proposed conclusions of law for the trial court, that “[i]f the movant’s factual contentions, when accepted as true, make out no legally cognizable defense to the charges, he [or she] has not effectively denied ... culpability, and [the] withdrawal motion need not be granted.” Barker, 168 U.S.App.D.C. at 324, 514 F.2d at 220; accord Taylor v. United States, 366 A.2d 444 (D.C.1976); Jordan, 350 A.2d at 737-38.

Here, appellant’s own testimony precludes any serious contention that he had a coercion defense tantamount to a claim of innocence of a crime in which he admittedly participated. Thus, even if appellant had squarely presented the trial court with a claim of innocence as an independent ground for withdrawal of the plea, the court as a matter of law could not properly have premised a discretionary ruling in his favor on that ground. See Johnson v. United States, 398 A.2d 354, 365 (D.C.1979). Nor can this court.

Respectfully, therefore, I dissent.

.According to the proposed findings: "trial counsel appears to have been diligent and thorough both in her preparation and in her advice to the Defendant throughout these proceedings. Accordingly, counsel for Defendant on this motion has chosen to submit on the Defendant’s claims of ineffective assistance of counsel."

In denying appellant’s motion to withdraw the plea, the trial court confirmed counsel’s observation. Specifically, the court found that previous “counsel pursued coercion and duress defenses," among others, and "at all times acted within the standards expected of a member of her profession.”

. Counsel simply noted, without protest, that “this Court had made a preliminary determination that, even if unrebutted by the government, the personal circumstances in the defendant’s life, which have been asserted in some detail in his motion, did not render the plea either involuntarily or unintelligently made.”

. Austin v. United States, 356 A.2d 648, 649 (D.C.1976) (per curiam) (no absolute right to withdraw guilty plea before sentencing, even when defendant asserts legal innocence); Everett v. United States, 119 U.S.App.D.C. 60, 64, 336 F.2d 979, 983 (1964) (no absolute right to withdraw guilty plea before sentencing).

. Before McCarthy v. United States, 394 U.S. 459, 89 S.Ct. 1166, 22 L.Ed.2d 418 (1969), the Court had established “a three-pronged test: The plea of guilty must be made voluntarily, it must be made after proper advice, and it must be made with full understanding of the consequences.” Henderson v. Morgan, 426 U.S. 637, 653, 96 S.Ct. 2253, 2261, 49 L.Ed.2d 108 (1976) (Rehnquist, J., dissenting) (citing Machibroda v. United States, 368 U.S. 487, 493, 82 S.Ct. 510, 513, 7 L.Ed.2d 473 (1962) and Kercheval v. United States, 274 U.S. 220, 223, 47 S.Ct. 582, 583, 71 L.Ed. 1009 (1927)). McCarthy, in effect, added a fourth requirement; it "extended the definition of voluntariness to include an ‘understanding of the essential elements of the crime charged,”’ Henderson, 426 U.S. at 652-53, 96 S.Ct. at 2261 (Rehnquist, J., dissenting) (citation omitted), so that the defendant would know for sure what the substance of the plea meant.

. In conducting the Super.Ct.Crim.R. 11 inquiry, the trial court explained that appellant had a right to trial by jury, that the government had the burden of proof beyond a reasonable doubt, that appellant had the right to counsel throughout the trial, that counsel could cross-examine government witnesses, that appellant could present a defense with the court’s help in subpoenaing witnesses, that appellant could testify in his own behalf, that the jury would be instructed on the presumption of innocence, and that, if convicted, appellant had a right of appeal. The court then explained that if appellant pleaded guilty he would waive the right to trial and appeal except for the right to appeal an illegal sentence. Appellant confirmed that he understood. The court then explained the elements of the crimes charged and confirmed that appellant was aware he could be sentenced to life imprisonment as a result of the plea.

. North Carolina v. Alford, 400 U.S. 25, 37-38 & n. 10, 91 S.Ct. 160, 167-168 & n. 10, 27 L.Ed.2d 162 (1970) (trial court may accept guilty plea when government demonstrates strong factual basis for plea and defendant clearly expresses desire to enter plea, in his or her interest, despite professing innocence).

. The cases the majority primarily relies upon are inapposite, for in each the defendant made ostensibly contradictory statements about whether he voluntarily and knowingly waived the plea, and the trial court erroneously failed to clarify what the defendant meant. Mack v. United States, 635 F.2d 20, 23, 24 (1st Cir.1980) (defendant said ‘"I am being pressured into making the plea. I am not doing it of my own free will.’ ” Later in the hearing, he confirmed the plea was "entirely free and voluntary1'); Canady v. United States, 554 F.2d 203, 204 (5th Cir.1977) (court had accepted plea to charge of possessing counterfeit money with intent to defraud, a specific intent crime, without clarifying defendant's statement that, “as far as having any mischievous intentions, that I do not admit”); United States v. Kincaid, 362 F.2d 939, 940-41 (4th Cir.1966) (at plea hearing, defendant said he had turned himself in because he ‘“needed medical treatment or something’" after which court accepted plea without probing defendant's "mental processes," explaining "the elements of the crime," or informing defendant about "the effect of a guilty plea”).

In contrast, appellant was informed of all the elements of the crime, including specific intent; and, after hearing the government’s proffer, he admitted his knowing though reluctant participation in the kidnapping. He never hinted at the Rule 11 hearing, contrary to his express testimony, that he had felt pressure to plead guilty. He hedged only to the extent of saying he had participated "unwillingly,” i.e., with "reservations” — at most a disguised implication that he may have had an affirmative defense, coercion, which for some unexplained reason he did not take seriously enough to warrant a trial instead of a plea.

. At the Rule 32(e) hearing, previous counsel testified that a coercion defense would have been weak, even if appellant had been willing to testify, since, among other things, he would have had to prove he had no reasonable opportunity to escape. The facts belied such a claim, however, because appellant — alone—had taken one of the captives to the bus station, but, instead of assuring both of their escapes, he had returned with the captive to Bass’ apartment. Infra Part IV.

. Jordan v. United States, 350 A.2d 735, 737 (D.C.1976) (“claim of legal innocence” is " ‘compelling consideration’ ”); United States v. Barker, 168 U.S.App.D.C. 312, 324, 514 F.2d 208, 220, cert. denied, 421 U.S. 1013, 95 S.Ct. 2420, 44 L.Ed.2d 682 (1975) (assertion of "legal innocence is an important factor”).

. Barker, 168 U.S.App.D.C. at 326, 514 F.2d at 222.

. Jordan, 350 A.2d at 737-38; Barker, 168 U.S. App.D.C. at 324, 514 F.2d at 220.

. It is possible, of course, that the same evidence can contribute to claims of involuntariness and innocence. For example, the failure to learn of an available defense because of incompetent counsel can have a bearing both on whether the plea was truly voluntary and knowing and on whether the defendant has a basis for subsequently claiming legal innocence. But such double use of the evidence does not suggest that the two legal grounds for withdrawal lose their conceptually distinct identities. Thus, it is important for a defendant to make clear to the trial court exactly what ground or grounds are being advanced on the basis of such evidence.

. Initially, in his motion to withdraw the plea, appellant claimed that counsel had been ineffective in failing to inform him about the availability of "legal defenses," and thus that his plea could not have been voluntary and intelligent. At the hearing on the motion, however, this assertion was exposed as false. See supra note 8. As a result, in his post-hearing proposed findings and conclusions, appellant shifted his ground. He acknowledged that counsel had been effective. He then used previous counsel’s testimony that appellant had known all about his defenses, including the coercion defense, as evidence to support his contention that he had elected out of fear — and thus not voluntarily— the "lesser of two evils”: to plead guilty, despite available defenses, rather than risk reprisals from co-defendant Bass. The problem with this strategy, however, was that it ignored how weak appellant’s defenses were, as the hearing made clear. Fear of Bass was offset by a weak defense. Supra Part II.B.

. Counsel may have focused exclusively on involuntariness for sound tactical reasons. Proof of involuntariness, premised on a violation of Rule 11, would make withdrawal of the plea automatic. McCarthy, 394 U.S. at 471-72, 89 S.Ct. at 1173-74, without regard to whether the defendant claimed innocence. In contrast, a motion to withdraw based on an assertion of innocence would require a proffer of facts that establish a defense, see Jordan, 350 A.2d at 737-38, as well as an evaluation of additional factors such as competency of counsel who advised the plea, length of delay between the plea and the effort to withdraw, and prejudice to the government. Barker, 168 U.S.App.D.C. at 325-26, 514 F.2d at 221-22. Appellant’s claim of innocence is premised exclusively on a defense of coercion. Appellant’s and his previous counsel’s testimony at the plea withdrawal hearing, however, effectively precluded a coercion defense. Supra Part II.B.; infra Part IV. Counsel therefore may have concluded that the more he highlighted a claim of innocence based on an extremely weak, if not bogus, coercion defense, the more likely the trial court would be to doubt the intensity of appellant’s fear that allegedly compelled a plea of guilty. Counsel could effectively present his client’s fear, through appellant’s own testimony, that caused him to forego “legal defenses” (as counsel put it) if the validity of those defenses was not too closely scrutinized. He might not as effectively show that fear if it became clear that the only possible defense, coercion, would not have worked in any event.

. I must acknowledge, in fairness to appellant, that his counsel at least hinted that legal innocence was a fifth ground for withdrawal of the plea, although he did not expressly say so. The question, then, is whether the trial court was obligated to take the hint. In an opinion I find troublesome, this court has said yes — and no. In Taylor v. United States, 366 A.2d 444 (D.C.1976) (per curiam), on the date originally set for sentencing, appellant moved to withdraw his guilty plea because, as he told the court, “‘the defense witnesses in my case can testify for me.’" Id. at 446. The trial court conducted no further inquiry and took the motion under advisement. The court eventually denied the motion on the ground the plea had been voluntary. We noted that one ground for pre-sentence withdrawal of a plea is “a claim of legal innocence" and that “the trial court articulated only one concern, namely, voluntariness, and no formal hearing was held.” Id. at 447. We cautioned that, for presentence requests for withdrawal, "full inquiry should be made beyond the confines of the Rule 11 hearing.” Id. We affirmed, however, because the judge had given the motion meticulous attention, the defendant had been given an opportunity to speak personally, the proffered evidence of guilt was overwhelming, there was no hint of coercion, ignorance, or incapacity, and the reasons given for a change of heart did not amount to a claim of legal innocence. Id. I think this decision was wrong; the trial court should have afforded appellant an opportunity to develop his point further so that the court could have learned whether appellant had witnesses who could have provided an articulable, facially valid defense. The present case, however, is different. Appellant had a comprehensive Rule 32(e) hearing at which he never expressly asserted legal innocence. And he did so only obliquely, after the hearing, through proposed conclusions of law that dealt directly with only the coercion defense as evidence of a fear-induced plea, not as evidence of legal innocence providing a separate ground for withdrawal of the plea. Whereas I would fault the trial court in Taylor for not pursuing the appellant’s hinted claim of innocence at a hearing, I cannot fault the trial court in the instant case for failing, after a full hearing, to divine a claim of innocence as an independent ground for withdrawal of appellant’s plea.

. I agree with the majority that appellant took immediate steps to withdraw his plea, that the government’s proffer and appellant’s plea-hear*1343ing testimony were not inconsistent with a coercion defense, and that the government has not specifically shown how it would be prejudiced from withdrawal of appellant’s guilty plea. But these factors become relatively insignificant when legal innocence is not effectively asserted. Had appellant clearly asserted legal innocence as an alternative ground for withdrawal of the plea, I am sure the government would have addressed the question of prejudice. But given the way appellant presented the motion, the government had no reason to believe that prejudice from withdrawal of the plea would be relevant.