Lewis v. United States

FERREN, Associate Judge,

concurring:

I concur in Judge KELLY’s opinion for the court but would add the following emphasis. At the sentencing, appellant informed the court that the prosecutor’s allo-cution revealed information suggesting mis-identification by the complaining witness. Instead of seeking to withdraw his Alford plea solely on that ground, however, he stated his complaint as a charge against his lawyer: coercing a plea by “lying” to him, apparently by withholding the information revealed in the prosecutor’s allocution. If true, that charge obviously would be a stronger basis for withdrawal of the plea than mere reference to the facts in the prosecutor’s allocution.

Under the circumstances, therefore, counsel inevitably was to be a witness at a hearing, most likely in his own defense and thus in favor of the prosecution — a role inconsistent with his continuing as counsel for appellant. See ante at 842 n.4.

Were we not to reverse, I assume that appellant eventually would file a motion attacking sentence under D.C.Code 1981, § 23-110, and, accordingly, that eventually he would get a hearing — with new counsel — on the charge made here. Id., § 23-110(e). That would be a greater imposition on court resources, as well as on appellant, than assignment of new counsel now on the plea-withdrawal issue.