*1 Further, States, drugs. trial counsel succeeded in ulative.” v. Brooks United 683 A.2d (D.C.1995). 1369, 1371 admitting other evidence that corroborated theory Brown’s that this was not a forcible found, As the trial court Brown’s carjacking. performance total Given the theory, it, support specula for was counsel, therefore, say cannot gave tive. Carter of personal no basis trial judge concluding erred in that there was knowledge key portion for the of her affida no ineffective assistance counsel. Thus, vit. there was no reason to believe that, if fully developed, facts were Brown
IV. would be Accordingly, entitled relief. post-conviction discovery Finally, denial of Brown contends the trial was not error. court committed error in motion to vacate his permitting conviction without Based on foregoing, are convictions discovery holding evidentiary hearing. an affirmed. Brown contends that he was entitled to such So ordered. Brady, prosecution
relief because the violated 1,3by upra withholding note information s complaining that the witness had an interest testifying prosecution. for the
A may permit post- trial judge discovery.
conviction United Gibson v. (D.C.1989)
States, 473, A.2d (citing Nelson,
Harris v.
394 U.S.
89 S.Ct.
1082,
(1969)).
duty
equitable under the circumstances and the
law, and directed reason and conscience of (James) to a result.” Johnson (D.C. States, 354,
v. United 1979) Green, (quoting Langnes v. 282 U.S.
531,
(1931)).
243,
51 S.Ct.
It is deny for a trial
post-conviction discovery request where the broad,
prisoner’s “overly claims are spec- Brady suppression 3. The Court in "the held Brown asserts that three weeks prosecution trial, of evidence favorable to an ac- Edmonds’ car involved hit and run request upon process cused violates due where accident, drugs and that were found in the car. guilt the evidence is material either to or to implication theory of Brown’s is that the punishment, irrespective good faith or bad government pursue charges against chose not to prosecution." faith of the 373 U.S. at S.Ct. key Edmonds because he was the witness in this 1194. Evidence accused that an can use to im- however, prove theory, trial. order to this peach witness falls within Bra- required post-conviction Brown claims that he dy Giglio rule. v. United 405 U.S. discovery. (1972). 92 S.Ct. L.Ed.2d *3 Rochon,
Mark J. with P. whom William DC, brief, Barry, Washington, onwas for appellant. Machen,
Ronald Assistant United States Holder, Attorney, Jr., with H. whom Eric Attorney United States at the time the brief filed, Fisher, and John R. C. Thomas Black, Carwile, and P. Kevin Assistant Unit- brief, Attorneys, ed States were appellee. WAGNER, Judge,
Before Chief FARRELL, KING, Judge, Associate Judge.* Senior KING, Judge: Senior Gregory appeals the trial court’s denial of his guilty motion withdraw his armed, degree to second murder while (1981), § violation D.C.Code 22-2403 which was filed sentencing. ap- before On peal, Bennett claims the trial court abused its denying discretion the motion to withdraw where Bennett’s medical con- plea precluded dition at the time of the entering knowing voluntary a consistently manner and where he had as- charges against serted his innocence * Judge King Judge Judge was an Associate Senior on November argument. changed the time of His status proceeding trial court then conducted Concluding him. that the trial did not resulting acceptance in the abuse discretion in the motion to withdraw, affirm. Septem- that on proffered 8, 1993, a.m., 4:30 approximately
ber group people which included three PLEA GUILTY PROCEEDING Gleason, victim, went an murder Sean Washington apartment building in Southeast Bennett entered his on Febru- purpose crack purchasing for the cocaine. ary Judge before Harold L. Cushen- Fairwell, the They spoke Tony occupant berry, Jr. been The ease had scheduled for building, apartment of an in the who told before,1 however, trial the trial did them he take them to someone he would begin unavailability because of the of a de- they provide knew who them with could what fense witness. The trial court did consider *4 Meanwhile, buy. ac- seeking were to three motions, pre-trial during the of which course Fairwell, of quaintances of one whom was possibility guilty plea was discussed.2 Bennett, buy- prospective to rob the decided However, by the trial judge when asked what they after ers returned with Fairwell from respect he had decided with to the making their purchase. said, agreement, Bennett cried and “I don’t companions, Bennett his two Lewis and said, know nothing about that case.” He also Walker, Ricky and Curtis confronted trying plead guilty “I’m not to to nothing.”3 buyers apartment building. three outside the day, government Later that counsel stated group One three in Bennett’s was that the good offer was until a.m. 10:00 operable handgun armed with a loaded and morning, the next it when would with- be government proffered and the that some drawn. to show that evidence tended Bennett morning, The next after trial court gun, to had while other evidence tended that the trial would determined have to be Bennett, gun.4 that show had the Walker continued unavailability due to the Curtis, permitted and Fairwell to Walker witness, defense hospitalized, who was Ben- building proceed apartment into told and attorney” nett’s (“plea counsel or “plea coun- any money the other three to hand over or sel”) that he drugs they stated client victims “believe[d] [his had. After the denied prepared accept having money drugs, was] to The offer.” or Gleason shot date, 1. On that the trial that told addressed the issue 3. At Bennett’s counsel the court point, raised a received from having letter Bennett on Janu- that he believed his client was trouble said, in which Bennett in relevant ary understanding part: be that he could found I am not aiding comfortable with I do abetting evidence [my and without that he attorney]. working best feel he is I interest. trigger. my himself had pulled working against feel like he is me and not for that had noted counsel explained concept working me. It seems like he's for the prose- aiding abetting and and that Bennett "under- cution. I would like to have him dismissed do stands that’s the If he didn’t theory. says from this case so that another could anything then, fine, to abet [he] aid and anybody, take his place. ought to is a trial. uncom- [He] have obviously judge, to the trial Ben- response questions guilt, acknowledging fortable so he with nett indicated that he was then satisfied with shouldn't.” to withdraw the letter, wished and attorney, go to to trial. ready regardless 4. Government counsel remarked counsel contin- a Initially, requested gun, its of which individual had the evidence something uance “because of that was dis- acting jointly in would show all three were to obligation closed that —I think I have an me aware one and were attempted robbery Following Mr. to make this a Bennett request.’’ wielding handgun. Govern- of them would be proceedings, short break in the Bennett’s counsel showing was also stated that this ment counsel stated that the “re-extended” its degree sufficient second support date, offer but ”[t]o this point Bennett himself murder while armed whether jury time, [Bennett] have resolve the prefers trigger as an acted aider only pulled matter.” Bennett then some- attempted say abettor. thing judge, who informed talking without shouldn’t first speak his attorney. ground head. He fell to the all the never.” Bennett then said he admitted his scene; others fled the guilt.6 Gleason died as a
result of the bullet wound. and Cur- Walker subsequently
tis HEARING ON apprehended, were MOTION TO pleaded incident, guilty to arising offenses out of the WITHDRAW GUILTY agreed testify against PLEA Bennett. 7, 1995, Bennett, On March through his Following government’s proffer attorney, filed a motion to withdraw the judge’s recitation of the elements of July and on June 30 and degree second murder while armed and the Judge Cushenberry conducted a government’s proof, burden of the motion. Bennett testified that he did not Bennett, government’s asked “Is the state- Gleason, shoot present that he was not oath, ment correct?” replied, Under murder, scene of the that he was unfamiliar “Yes, asked, sir.” The then “Mr. Ben- occurred, with the area where the murder nett, you how plead do wish to charge all, that he did not know Lewis Curtis at of murder degree in the second while armed? Ricky that he didn’t know Walker but had you Are guilty?” or not Still under addition, “seen him before.” In he related oath, answered, guilty.” “I’m plea attorney’s that he had asked his investi- Bennett’s answers questions to the asked *5 gator pictures to show him place by judge the trial to determine whether Ben- where the murder occurred because he was nett consequences understood the of his specific unfamiliar with that location.7 However, were responsive.5 brief but when history Bennett also testified to a of fre- judge the trial asked Bennett if he had had quent epileptic seizures since 1987. After enough time to think about his decision to seizure, suffering claimed, a Bennett he said, plead guilty, “No, Bennett sir.” When memory would lose his for “about five or six pressed stated, point, on the Bennett “I ha- days hours.” He stated that in following ven’t enough really had time to think about “[rjeal groggy seizure he feels and kind of this, bargain.” prose- Because the really out of it. You can’t remember a lot cution had indicated that the offer would you and then be like worried and confused be withdrawn if no was entered that things.”8 about a lot of He testified that his day, the judge reminded Bennett that medication also affected his mental function- he had to make the decision at that time. ing. phenobarbital you your “The have lose Bennett responded, only “The thing I want speech, you lapse you it have like a and have say, say it’s day hard to if it’s—in one forgetting a lot.” not, let me go know if I want to to trial or only because day I had one consistently decide this. Bennett said that he had told So it’s say go hard to tell —to if I can lawyer to trial he plead guilty. did not want to judge not because —.” The again “[Ejvery always time he came to see me I indicated that the offer taking would be told him I’m not in this case.” withdrawn, stating, today “It’s either lawyer or it’s He testified that he told his the same 5. When asked trying whether he was nett’s sister later told him that she was under the influence of alcohol or narcotic tell Bennett not to he if didn’t do it plead drugs, however, "No, Bennett sir,” responded, trying and that she was also to tell the although taking he was then dilantin and pheno- her brother didn’t understand what barbital to treat his Neither epilepsy. saying. judge nor Bennett’s were aware at taking time that Bennett was phenobarbital, investigator 7. The and his visited plea attorney a narcotic. jail evening guilty. before he pled 6. At that an observer in the courtroom point, proceedings calling out, interrupted 8. Bennett also testified that when he wakes up “Greg.” judge commented, "Ma'am, The trial having goes right out, after blacked he back to proceeding session,” we’re in and the continued. bed and until the next when he is still sleeps day, Bennett's father testified at the "groggy just .... I in the bed the whole stay day. the woman who out was spoke For that week I be in the bed.” sister. Bennett’s The father testified that Ben- son be- that his testified father February Bennett’s evening Monday, thing the years he nine when was having seizures gan him if he wanted when counsel asked pro- had become the seizures morning. and that old plead guilty, again the next got older. as Bennett gressively when worse going he be to trial He believed would a sei- Bennett has that when February testified Monday, on father he went to court shake,” zure, blacks out and goes he “into again Tuesday morning. He also said up “druggy,” “not himself’ “dizzy,” expressed dissatisfaction with is he had seizure. Bennett’s following the to a week lawyer through several letters to the court intelligence son’s suggested that his lawyer working felt the was not father because he injury to his by repeated only been affected in his best interest and wanted occurred dur- resulting from falls which plead guilty get so he could the case over head speculated further The father with. seizures. were also problems mental that his son’s really” re- Bennett claimed he did “not prison. received of over-medication result guilty. testified that pleading member He cross-examination, father tes- On days guilty, pleading before readily apparent to him tified that it was “really he suffered a bad” seizure recently suffered when his son had to others get together himself until four or and did seizure, Following a a seizure. five later. He stated that when or “look his head down” would stand “with lawyer plea,” he [him] “asked about Also, you’ll call him and “[s]ometimes sick.” saying didn’t know what he was addition, away.” right he don’t answer okay” realizing he was “said without what say related that “[s]ometimes the father really agreeing He to. said “didn’t say father yes he should no.” The when questions” understand the asked that his son had that it was clear testified him, though yeah, even he “said I understand recently suffered a seizure on plea.” signed He also testified that he *6 pled guilty.10 jury trial waiver form he be- because jury.”9 lieved it was “for a he father also testified that when Bennett’s following two or saw his son day Bennett asserted later on the that that later, initially real- days three his son “didn’t entered, attorney he was called his ly pleaded guilty.” The father know he had somebody” investigator and told “an or at his why he that when he asked his son claimed attorney’s that he office wanted to withdraw what pled guilty his son said that did his He also claimed he asked his sister lawyer him to his told do. attorney request to contact his that his Abbei, withdrawn, a having Bennett Dr. Khurrolah witness called be since was respon- attorney. government, testified that he was reaching trouble his Bennett did the monitoring phenobarbital and again speak attorney sible for with his until 2, 1995, lawyer Bennett took to control his seizures. March when the visited him dilantin Lorton, began treating Bennett facility Virginia, Because Dr. Abbei prison fol- was transferred to Lorton attorney Bennett he wanted to take when Bennett told plea,11the doctor was un- lowing “plea his back” because he was innocent. Greg can tell he’s "When have seizure cross-examination, was asked you 9.On Bennett leaning leaning can’t stand occurring and he of was up about his what impression —he’s Gregory straight and he act like he tired. And morning pleading court on his Tuesday prior was acted like he was tired like he coming ready guilty. really to his He recalled his attorney asking again were him out that when fall day you talking attor- area and with the cell those questions.” testified that his law- about "a He ney paper.” [anything]” to him but "[didn’t] really say yer govern- sign been asked him Abbei testified that he had 11. Dr. paper. initially argued treating months,” this detailed recollection several then said ment that Bennett "for recollection of his been under his observation for events, as well as Bennett's Bennett had He night “long before, time, Bennett’s ... over a or so.” visit belied year period lawyer’s functioning however, that he cross-examination, was im- on that his mental conceded contention begun to after Bennett treat Bennett had only paired. testify personal knowledge evening able to from with on the Bennett Monday, February whether Bennett had a seizure on prior pro- the court 5,1995, days prior guilty plea. ceeding, attorney to the In when the met with addition, Dr. Abbei that he had never related Bennett at District of Jail Columbia following hour, during observed Bennett either or an again more than the next morn- ing, guilty.14 seizure and conceded that he therefore pled before Bennett When testify experience to personal could not from asked it that un- whether “seemed” the effect had on Bennett’s seizures him. Dr. the substance of those derstood conversa- state, however, Abbei that did Bennett suf- tions able to and was communicate with him seizures, grand fered from mal which concerning responded, are definitely.” “the kind of can toup worst seizure” and last “Most Plea counsel also testified half an Dr. it nothing hour. Abbei also testified that that was there unusual or different takes about half an recover hour to from the about his with conversations grand prior effects of a mal compared previous seizure. to the as with conversations. Dr. Abbei informed court that Ben- examination, spring nett’s medical records agreed from On cross counsel that experienced indicated Bennett had that sophisticated Bennett was “not the most However, during period. seizures at Lorton that client in the world.” counsel indi- addition, general from medical records that cated that Bennett did not have period complained comprehending; showed Bennett had communicating difficulties May rather, want to was didn’t take it counsel’s belief that “he was prescribed phenobarbital because it was stubborn.” making sleepy, him that he had failed to take Plea counsel also testified that he prescribed medication for several subject aware that Bennett was to seizures complaint, after reported and that he dilantin; taking and that Bennett was howev having May Finally, a seizure on er, he unaware was also testified, Dr. Abbei on his based review drug. taking phenobarbital or narcotic records, the medical that Bennett had normal Moreover, plea counsel testified that he had levels phenobarbital of dilantin and in his not believed the dilantin would affect Ben system February pled ability proceed nett’s understand the guilty. typical He also observed side ing, since concern that time had drowsiness, phenobarbital effects of include been prison pro failure of staff to *7 alertness, lack speech, and slurred but Further, vide Bennett with his medication. that these effects should subside within a plea he counsel testified that believed Ben beginning drug.12 week of to take the and, apparently, nett’s medication seizure witness, government plea problems
Another the at- bad been resolved in the fall torney,13 that testified he had discussed the 1994.15 to Lorton, transferred all,” which occurred after Bennett "never discussed at really plea got Bennett’s on 1995. because “the first I from that indication him plea to he wanted consider the was [on February plea 12. Dr. testified Abbei that a at the physician 6].” District of Columbia Jail dilantin and prescribed great On that counsel "came into a deal of day for Bennett as as October phenobarbital early case,” new about based dis- information the 1994. did The records not reflect whether or not government cussions with the about the antici- that date was the first Bennett time had been witness. Coun- pated testimony drugs. those prescribed "a sel called this revelation.” He information mind, least, testified that “in at the took my plea 13. The withdrew effective March plea attorney light” govern- new that ”[t]he on a whole filing 21, 1995, after Bennett’s motion to with- ment’s case looked a whole lot better.” draw his at time which Bennett's plea, reveals, So as the record the far nature specific began representing in this him. attorney appeal was never of the "new information” disclosed.
14. The testified on cross examina- attorney plea government's time, tion that the he had communicated 15.At that Bennett had seizure in court offer to Bennett in October or and the testified that he November subse- plea regarding it was but with a doctor when that he and proposed, quently spoke prison
1fi3 marked that had conducted evidentia- Plea testified that he was he counsel also ry hearing Bennett to “in fairness to Mr. family’s that aware of Bennett’s concerns family had raised concerns about significance Bennett who did understand they perceived understanding family’s what to be his and of his plea proceeding proceedings.” and awareness of the Other belief innocent.16 stated that he was Counsel family’s bearing factors on his decision to conduct the he that did not raise concerns the court’s lack of hearing extensive included comprehension about lack of Bennett’s did, that awareness at the time of the Ben- he court because believed Bennett fact, taking psychotropic significance prescribed nett was understand the judge’s medication19 own lack of proceeding.17 independent specifically of “recollection what Finally, testified first plea counsel that the happened and how Mr. Bennett sounded” following contact Bennett he had with plea hearing. at guilty plea was on March —over although The trial court found that Ben- three after the he visited weeks —when attorney’s nett had concerns about his regarding sentencing.18 raised Bennett at Lorton guilty plea, time, performance prior to the At that Bennett “announced before we completely “indicated he was satisfied with even hello to each other that he wanted said lawyer ... the letter” withdrew when to withdraw the .” concerns on the court addressed his Febru- 6,1995. ary THE TRIAL COURT’S RULING
ON THE MOTION The trial Bennett’s father’s judge credited July experienced At that when Bennett the conclusion seizures, 19,1995, Cushenberry, it two to full Judge ruling from the took a recover However, bench, the motion. The re- mental alertness.22 denied getting however, fact he testified he had no time; that Bennett was not his medication calling him. He also stated memory prison. it was difficult” for inmates make "very calls. 16. testified to Plea counsel also conversations phone Bennett’s hear- family ing regarding understand ability candid, will be I stated, 19. The “I had proceedings. sur- He testified that "wasn’t taking known medication psychotropic sister tried out when Bennett’s prised” speak time of would have had I probably during proceeding. testified, He also based im- further of him with what respect inquiry on his sheets, time that he had had a telephone him at the time that I have had on pact may sister conversation with Bennett’s on February was aware the time took plea.” regard- guilty, after pled hearing, however, that Bennett experi- ing her concerns. grand seizures. enced mal regard, In that counsel testified that Ben- Judge did recall that “at some Cushenberry nett: interject sister ... wanted [Bennett’s] point demeanor took on different when it was herself and I cut her off.” *8 he I was animated back in ...[H]e and quite jail.... enough the cell block in the There was judge listened to the reason, For this give ... I, rational and take between he and issuing ruling. hearing his the before of plea tape and a difficult not a he was in It's position. hearing the motion to with- stated, at on He the choice to have to very somebody put pleasant reviewing draw, that concern in the his primary in to have to make. was But he position hearing the was whether Bennett’s of tape plea stubborn, about his rational, bitter position, slurring, stumbling, or contained any testimony but was never in mind there any question my indicate mental sense of that would confusion doing that he was that he he knew what and Judge at As reflected impairment. infra making was the one the decision. everything that was was satisfied Cushenberry score. normal that testified that be- 18. Plea counsel also he didn’t messages lieve he had received from Bennett any after a “hard” hearing fact, testified that the father and March when he between plea or four or it took “three questioning seizure sometimes days visited at Lorton. Bennett Upon come it. to out of sometimes a week” for Bennett court, testified he had from the that attorney about the duration father not asked to see was not his records reviewed receptionist’s This severe seizures. the effect of less possible calls from Bennett dur- whether there were any during plea not credit or that of he made under did Bennett’s merits oath his father that Bennett a sei- had suffered proceedings. He of course did acknowl- Sunday zure before the because of edge appropriately, although he didn’t any seizure in the absence of record of that lot, terms, speak spoke he funda- soft records.23 himself, age, information his mental about education, understanding his of the his full The trial court counsel’s tes- credited penalties be timony would] offense sub- [he that communicat- “he had no trouble to, jected mandatory including mini- ing night with on the before the [Bennett]” morning and on the of the expressed He with mum. satisfaction his fairly counsel “had with time, detailed discussions acknowledged his night Mr. Bennett about on the his case guilt, saying my I when I guilt admit plea,” “appeared before the and that Bennett pressed respect liability him with to his respond ques- appropriately to to [counsel’s] aiding theory. an abetting under night on the tions” before the [H]aving tape] ... ... listened [to respect to With Bennett’s demeanor and although Mr. speak Bennett did soft hearing, conduct stated tones, nothing there’s that I heard that he: suggests voice that to me when he not does attribute reluctance to [Bennett’s] responded to questioning the Court’s he any ... plead reaction to adverse did not understand the choice he was mak- taking the medication he or to was spoke softly, .... He he did slur mental decreased alertness attributable to speech, or drowsy did not sound disori- Rather, a recent seizure. attrib- any way. resigned ented in He did seem crying [the] utes 6th as did mak[ing] very difficult decision.... as his well initial comments to the court mind, my time to had wanted to have more con- To discussions he with sider the offer ... the normal me indeed demonstrate he had an anxiety experienced person by any who significance awareness deci long had committed himself and members making, was re sion he at least in this family loving, supportive of his to a differ- spect. He had twice about before talked strategy ent trial faced with [who] needing wanting more time or time. more extraordinarily an decision different More time ... to think the decision about right jury waive his acknowl- go guilty. to trial plead whether personal edge responsibility. criminal suggests That to me not someone who The trial court completely did not credit Bennett’s testi- unaware of choices he [was] mony the withdrawal that he did making but someone [was] [rather who] plea proceedings: not understand the difficulty was aware of the the choices contrary making assertions want[ed] His to the at this [was] [who] flatly time are solemn choice].[24] refuted state- make [a significant, however, is not because and his father where does not discrepancy the trial court did not the claim that claim he that seizure to medical reported person- accept however, record, suffered a seizure two before nel in On this can- days prison. finding was entered. court’s See note Bennett did say infra. a seizure two not suffer before are 23. The trial noted that “there numer- unsupported. ous other entries in chart where de- defendant’s struggled fendant incidents to also stated, such 24. The trial “I promptly reported ap- *9 medical of wheth- the issue in this case propriate personnel." points myself personally anything might for the first filed I did have influ- out, time in the brief in this er or not right in to to a there was no enced Mr. Bennett waive his trial.” entry appeal, regarding medical chart a seizure suffered in The trial noted that "the reason’’ he only Judge courtroom of is noted offer to be with- which told Bennett was about Alprin, jacket file because the had in Bennett's court drawn was entry attorney Sep- argues, 22, 1994. the offer would be if it Therefore, tember stated that withdrawn occurring a.m., absence of an of a seizure 10:00 on were not accepted by Tuesday, 5, 1995, does not refute the February
165 immediately counsel almost importance tempt The trial court addressed the to contact plea process, emphasizing weight following to tell counsel to withdraw contends, given a under together, to be defendant’s admissions Taken person pleads guilty oath. “Whenever a and of the trial these factors warrant reversal judge goes through lengthy inquiry and court’s of the motion to withdraw denial they’re put they their under oath and admit guilty plea. prom- responsibility,
criminal
those solemn
open
significant
ises made in
court are
and
32(e),
may
Rule
a defendant
Under
likely
they’re not
to be withdrawn.”
successfully
guilty plea
move to withdraw a
separate
establishing either
,As
judge acknowledged,
he was
may
independent grounds. He
show that
required
apply
just”
stan-
“fair and
proceeding
there was a fatal
in the
defect
States,
Gooding
dard enunciated
v. United
taken,
(D.C.1987).
guilty plea
Super.
which the
see
applying
LEGAL DISCUSSION
(D.C.1995) (citations
187, 191
omit
Barker,
ted);
U.S.App.
United States v.
Bennett contends that
323,
208,
(presentence
D.C.
514 F.2d
abused his discretion in
his motion
guilty plea
motion to withdraw
is addressed
light
withdraw his
of Ben-
discretion of trial court and reversal
sound
nett’s consistent
assertion
innocence of the
“uncommon”),
denied, 421
appeal
is
cert.
charges against
light
him and in
of his medi-
U.S.
95 S.Ct.
Under the fair and
emphasizes the fact
continually
“he
the
a
factors
trial court must consider when
innocence,”
legal
maintained his
both before
evaluating a motion to
a guilty plea
withdraw
and after the
hearing, “as
by
evidenced
(1)
include:
“whether the defendant has as
repeated
assertions that he was not on
(2)
innocence;”
serted his or her legal
“the
shooting
scene of the
death with which he
length
delay
of the
between
of the
had been charged.” Bennett maintains that
guilty plea
it;”
and the desire to withdraw
his testimony at
hearing
(3)
“whether the accused has had the full provides
cognizable
a
legal defense under the
competent
benefit of
counsel at all
just standard,
relevant
fair and
particularly
light
in
(cita
Springs, supra,
times.”
vidual case.’ but not Id. More “ over, dispositive, weighed by factor to be ‘circumstances of the individual whether, deciding in may case in reveal other the exercise factors which will af discretion, a motion to guilty fect the withdraw a calculation ... under the fair and ” plea, (citation omitted). under the fair and standard.’ standard should Id. “[Wjhen granted.” Therefore, be Id. at analyzing factor, 5. must [first] consider whether should court abused its strength consider the considerable government’s and, discretion in proffer denying Bennett’s if there been has a motion to innocence, valid withdraw his light assertion of the reason the Bennett’s claim that he was present claimed at put defense was not forward at the scene, (citation together omitted). any time of with the absence plea.” Id. explanation for not factor, asserting analyzing “[W]hen this defense at the [second] plea hearing. Id. at court should consider govern whether the prejudiced ment would be by a withdrawal of concluded, In Springs we “It enough is not measured as of the time the defen simply ... to claim one is innocent or that (citation sought dant it.” withdraw Id. one did not commit the offense. ‘A bald omitted). assertion of innocence ... any without grounds support will give thereof a Legal Assertion of Innocence defendant the right absolute to withdraw his ” argues that the trial court’s find- plea.’ (citing Id. at 5 Patterson v. ing that his “general” assertion was (D.C. 1984)). nature United is belied testimony Rather, “the movant must set forth some present facts, was not at the scene of the true, which accepted when as make out murder, participate murder, did not in the legally cognizable some defense to the and did not even know one of the alleged co- charges, in effectively order to deny culpabil participants (citations omitted).26 in the murder. ity.” Bennett also Id. 25. To this contention, Bennett support case, claims In that assertion of innocence appellant’s government's against case him was was based on self-defense. However, based of one of his solely upon there concluded that as a matter correctly alleged Walker, whom the accomplices, Ricky lawof could not make out such appellant victims testified was the one who possessed grounded claim. That determination was in the gun. Bennett also asserts that he was never legally cognizable that a claim of self- principle identified surviving either of the victims. The using defense an accused force to requires deadly findings trial court made concerning no believe, the time of the incident, that he is in strength, government’s weakness, case imminent of death or serious harm. peril bodily and we cannot discern from the record basis Because Binion never sworn repudiated making such an assessment ourselves. statement, made when he entered his that at the time he shot showing
26. victims his life was was not made in Bin- necessary ion, supra, longer no legally where we not make out affirmed did peril, court order cognizable withdrawal of claim of innocence. appellant’s A.2d at 192- degree two counts of first murder while armed.
167
Bennett,
recognize
not credit an
We
in claim
held that a trial
need
participate
that he did not
in the
directly
murder
contra-
assertion of innocence
scene,
present
and was
even
at the crime
culpability
dicts a sworn
statement
presented what
has
can be described on its
Austin,
supra,
made
the defendant.
356
Still,
cognizable
legally
face as a
defense.
it
decided, under
A.2d at 649.
In Austin we
unsupported
any
is a defense
other evi
very
present-
circumstances
similar to those
dence, including any representations as to his
here,
properly
trial
ed
that the
court could
suggesting
whereabouts or habitual behavior
reject
claim at the
with-
defendant’s
why he could not have been
the scene of
at
of the
drawal
that he was unaware
Furthermore,
shooting.27
mere as
“the
perpetrators’
burglary,
intent
to commit
legally cognizable
sertion of a
defense is [not]
light of his clear
at the time of the
admission
always
securing
a sufficient
condition
knowingly
that he had
assisted and ad-
Barker,
plea.”
supra,
perpetrators
vised the
in the commission of
325,
U.S.App.D.C. at
27. As the trial
noted, Bennett "offered no
29.In
to withdraw his
moved
appellant
general
more
than
denial to the offenses.
[His]
kidnapping
to armed
and sodomy,
"
father's
makes it clear that he cannot
claiming that he
'did not commit
the offense’
his son with an alibi nor did
wit-
provide
charges;"
and that he was innocent of the
nesses or Mr. Bennett
toas where he was
testify
"had not been
from the
and that
'picked
lineup,'
at
the time ...
the offense was committed."
wrong
to be at the
at
'happened
place
"
wrong
did not
time;’
and "that he ‘factually
28. The
Barker
noted that
some
"[w]hile
”
charged
with.’
[he was]
commit
offense
suggesting
decisions have come
close
that a
the trial
determination that
plea
expression
and the
of his desire to with
“claim of innocence”
weigh
factor
should
draw it
weight
lent considerable
in favor of
in Bennett’s favor.
just
withdrawal under the fair and
standard.
Binion, supra,
aware
new information
Competence of Counsel
Moreover,
government’s
case.39
coun
sel’s
believed Bennett un
Competence of
is the third factor
counsel
derstood the
of his conversations
substance
evaluating
the trial court must consider in
essentially
with his
credited
under the fair
motion
and was consistent with the
Springs, supra,
A.2d at
standard.
judge’s own
of that
omitted).
assessment
circumstance.
(citation
suggests
appeal,
court’s
On
we defer to the trial
as
if his
met the standard
even
counsel
credibility
sessments of witnesses’
and we
performance
prejudice
set
forth in
will not disturb
court’s factual
Washington,
v.
U.S.
find
Strickland
*14
2052,
(1984),
ings
they
support
S.Ct.
L.Ed.2d 674
coun-
unless
lack
in the record.
performance
See,
States,
sel’s
the
e.g.,
“undercuts
confidence”
Johnson
v. United
with which we could find that Bennett en-
1216,
(D.C.1992),
denied,
cert.
507 U.S.
knowing
voluntary guilty plea.
(1993).
tered a
and
1611,
113 S.Ct.
123 L.Ed.2d
support
points
In
of his argument, Bennett
record,
say
judge
On this
we cannot
the trial
notify
plea
counsel’s
to
the
failure
trial
crediting
plea
erred
counsel’s
just
court that his client
suffered a
sei-
concerning
representation
of Bennett and
taking phenobarbital
zure and was
and dilan-
mental capacity prior
pleading
Bennett’s
by prescription;
plea
tin
to his
and
counsel’s guilty.
disturbing
Nor is
there
basis
pressure
plead
continual
on
finding
the trial court’s
repre
that counsel’s
guilty,
against
where this was
Bennett’s
weigh
sentation of
not
Bennett did
Ben
particularly
wishes and where Bennett was
just
under
nett’s favor
the fair and
standard
vulnerable due to his medical condition.
Although
judge
the trial
made no
Factors
Other
findings
explicit
concerning competence of
In addition to the factors we routine
counsel,38
judge implicitly
the trial
found that
ly
just analysis,
consider under the fair and
provide
grant
this factor did
a basis for
we have noted
the “circumstances
the
ing
Bennett’s motion to withdraw his
may
individual case
reveal other
factors
finding
by
supported
This
the
is
rec
...
which will affect the calculation
under
hearing,
At the
ord.
counsel testified at
just
Springs, supra,
the fair and
standard.”
subject
length
representation
on the
of his
(citation omitted).
40. As evidence deciding of limited mental relied on Dr. Abbei's in ability, testimony that, to the fact the time of the Bennett’s motion to withdraw his points plea, deny awas old However, man who lived with his even if the trial had con- thirty-two year and was unable to hold down a did, fact, cluded that Bennett in suffer an parents steady epilep- job long-term because of the of 5, 1995, effects his illness tic seizure on the record February sup- on his finding mental health. Bennett's counsel also a further that Bennett would have ports to Bennett’s "obvious lack of recovered from that seizure the time points of sophistica- justice tion related to the criminal and later. Dr. system” Specifically, grasping aiding grand that, of and Abbei testified in his mal difficulty concept experience, abetting legal and its on the determina- last to half effects of seizures an hour and the impact up tion of his such seizures subside after another half hour. culpability. finding 41. The has observed that Bennett's 43. Abbei’s testi- This bolstered Dr. contention that his is side initial effects of the involuntary any pheno- mony taking some tension with his there was barbital Bennett was for his seizures stipulation agree. no Rule 11 violation. We The Rule 11 would have subsided within a week after he designed drug, began taking is to insure "that a defendant an event that occurred inquiry rights who waives 12, constitutional ... so months before. See note [does] supra. knowingly, intelligently.” El voluntarily, (D.C. dridge States, 690, v. United 618 A.2d 695 finding was counsel’s 44. This supported by plea 1992) (citations omitted). admitting By that Bennett understood the substance violation, there was no Rule 11 Bennett concedes had, of the conversations he and Bennett both that this was met here. requirement evening 6, 1995, and on the February morning 7 Bennett's February entering concerning See 23, 42. note The trial does not of the supra. plea, findings agreement. indicate in his extent which he 172
WAGNER,
(D.C.1971) (Deci-
310,
Judge, dissenting:
Ryan,
Chief
A.2d
sions of the D.C. Circuit rendered before
just”
Under the more lenient “fair and
“constitute the case law of
applicable
a presentencing
standard
mo
Columbia”).
the District of
guilty plea, my opinion,
tion to withdraw
in denying appellant’s
court erred
The trial court also faded to evaluate the
strength
motion. Leave to withdraw a
government’s proffer.
sentencing
freely,
before
should be allowed
government’s proffer
weakness of the
tends
“
‘if
granting
privi
allowing
for
reason the
toward
withdrawal of the
”
lege
just.’ Gooding
plea. Gooding,
seems fair
v.
supra
Unit
A.2d
(D.C.1987)
States,
301,
Here,
(quot
ed
government acknowledged
A.2d
in its
States,
v.
proffer
Kercheval United
274 U.S.
that there
conflicting
would be
testi-
(1927)).
mony
actually
47 S.Ct.
plea, appellant drugs, had taken two dilantin narcotic, phenobarbital, which he con
tended, ability affected to think. The specifically court found that withdrawal prejudice govern would facts,
ment. On these which are set forth fully majority opinion,
more
in the
the “fair
met,
just”
my
standard was
view. WASHINGTON METROPOLITAN AREA
AUTHORITY, Appellant,
TRANSIT
analysis,
Where the trial court erred in its
my
opinion,
deciding
was in
the merits of
v.
appellant.
defense advanced
In re
JOHNSON,
al., Appellees.
T.
Eleanor
et
solving a
motion to withdraw a
“
No. 96-SP-1784.
sentencing,
filed before
‘court should
attempt
prof
the merits of the
decide
District of
Appeals.
Columbia Court of
defense,
fered
determining
guilt
thus
” Gooding,
innocence of the defendant.’
su
Argued April
pra,
(quoting
tin v. United
1976) requires contrary. us to hold to the issue,
On this we are bound to follow the Gearhart,
decision in which holds that
court should not resolve the merits of the deciding
defense in the motion. M.A.P. v.