Michael T. MARSHALL, Appellant, v. UNITED STATES, Appellee.
No. 15-CF-214
District of Columbia Court of Appeals.
Argued May 10, 2016 Decided August 25, 2016.
144 A.3d 1014
Daniel S. Harawa, Public Defender Service, with whom James Klein and Jonathan W. Anderson, Public Defender Service, were on the brief, for appellant. Sharon A. Sprague, Assistant United States Attorney, with whom Channing D. Phillips, United States Attorney, and Elizabeth Trosman, Elizabeth H. Danello, and Richard DiZinno, Assistant United States Attorneys, were on the brief, for аppellee. Before: Fisher and Blackburne-Rigsby, Associate Judges; and Nebeker, Senior Judge.
NEBEKER, Senior Judge:
This case presents an appeal from a trial court‘s reconsideration of a prematurely granted order allowing appellant to withdraw his original valid plea of guilty (before sentence). The withdrawal motion was filed nearly two months after the plea was entered. The trial court judge granted withdrawal without the benefit of an evidentiary hearing to enquire into the basis for the motion. The trial court judge granted the government‘s subsequent motion to reconsider and hold a hearing. It then vacated the order granting the withdrawal,
I.
On entering his plea of guilty to second-degree murder — a lesser included offense of the indicted charge of first-degree murder — appellant affirmed that he was pleading guilty of his own free will, and not as the result of any coercion. The trial court ensured he understood that if he decided to plead not guilty, the government would be required to prove his guilt with legally cоmpetent evidence, which he would be entitled to challenge with the aid of counsel, and set forth his own evidence and a defense, if he so chose. The trial court also explained that he would be entitled to all of his constitutional privileges, as well as the right to seek appellate review before this court. Appellant stated that he understood his rights and still desired to plead guilty.
The government proffered that had the case gone to trial, it would have presented evidence that on October 17, 2011, appellant shot the victim at least thirteen times with a .40 caliber Glock pistol — that was soon recovered at his girlfriend‘s grandmother‘s house — and fled the scene. Appellant agreed that all of these facts were true, and pleaded guilty to the charge of second-degree murder while armed. The trial court accepted his plea and set the case for sentencing.
Ten days before sentencing, aрpellant filed the motion to withdraw his guilty plea. In it, he did not contest the sufficiency of the Rule 11 inquiry, but made a bare-bone assertion of innocence. On June 19, 2014, the government opposed appellant‘s motion, principally arguing (1) that he failed to set forth any facts that would constitute a defense to the chаrge to which he already pleaded guilty, and (2) that his nearly two months of delay in moving to withdraw his plea should inure to his detriment in the trial court‘s consideration of the motion. On June 20, 2014, after hearing argument on the motion, but without conducting a factual inquiry, the trial court took the motion under advisement. On June 25, 2014, the trial court ruled in appellant‘s favor and informed the parties it believed it would be fair to allow appellant to withdraw his plea.
On July 31, 2014, the government moved for reconsideration of the order allowing appellant to withdraw his guilty plea and asked the court, at a minimum, to order an evidentiary hearing. On August 15, 2014, the trial court held a status heаring on that motion where the government proffered that it discovered a series of recorded jailhouse phone calls, many made before the motion to withdraw the guilty plea, wherein appellant stated he had learned that one of the principal witnesses against him was dead.2 On that basis, the
On November 24, 2014, the trial court informed counsel:
it appears to the Court that the Court did not focus sufficiently on this, whether or not the defendant had asserted actual innocence. And so what I‘m inclined to do is to schedule an evidentiary hearing for the defendant to assert — or so the Court can weigh his claim of legal innocence.
The trial court held an evidentiary hearing on January 9 and 23, 2015. On February 4, 2015, it delivered its reconsidered ruling denying appellant‘s request to withdraw his original plea. It analyzed several factors including the timing of, and bаsis for, the withdrawal, possible prejudice to the government, the competence of counsel, and whether withdrawal of the plea was “fair and just” under the circumstances.3 The trial court found that: (1) this case was heavily litigated before appellant elected to plead guilty; (2) that appellant wаited several weeks before moving to withdraw his guilty plea; (3) that the content of the May 2014 jailhouse calls revealed he did so only after learning a key witness against him was dead; (4) that an earlier April 2014 jailhouse call — made before appellant learned of the witness‘s death — showed he originally pleadеd guilty to gain a reduced sentence from first degree murder; and (5) that he readily admitted culpability during the Rule 11 inquiry, which he did not recant in his original motion to withdraw the plea or after the trial court granted reconsideration of that order. On this basis, the trial court concluded appellant was attempting to manipulatе the court system and that it would not be fair and just to permit him to withdraw from his original plea. The trial court then reinstated his guilty plea and sentenced appellant, in accordance with his original plea agreement, to 168 months’ (fourteen years) confinement to be followed by five years of supervised releаse.
This timely appeal follows.
II.
Whether a trial court has the authority to reconsider an order granting a criminal defendant‘s motion to withdraw from a guilty plea and then reinstate that plea is a matter of first impression before this court. Appellant argues the trial court lacked the authority to reconsider its previous order granting withdrawаl, and that precedent binding on this court compels us to conclude that the order permitting the withdrawal of appellant‘s guilty plea was irrevocable. The government, on the other hand, argues the order was interlocutory and subject to reconsideration so long as the trial court had jurisdiction over аppellant‘s case, which it had. The government additionally argues that our review is limited to plain error since appellant failed to raise this argument in the trial court.4 We
Our analysis begins with the District of Columbia Rules of Criminal Procedure, which “are closely modeled on the structure and substance of the Federal Rules of Criminal Procedure, [wherein] Rules 1-60 are identical to the Federal Rules[.]” Super. Ct. Crim. R., General Note (Repl. 2012). Moreover,
[t]he Superior Court shall conduct its business according to ... the Federal Rules of Criminal Procedure ... unless it prescribes or adopts rules which modify those Rules. Rules which modify the Federal Rules shall be submitted for the approval of the District of Columbia Court of Appeals, and they shall not take effect until approved by that court.
Consistent with this mandate, “[w]e construe rules that are substantially similar to the corresponding federal rule in light of the meaning given to the federal rule.” Potomac Dev. Corp. v. District of Columbia, 28 A.3d 531, 543 (D.C.2011) (following Supreme Court interpretation of
Appellant argues the trial court‘s decision to reconsider its order granting his motion to withdraw was “extra-legal[,]” because Super. Ct. Crim. R. 11 & 32 (e) do not specifically authorize reconsideration.5 But in United States v. Jerry, supra, the U.S. Court of Appeals for the Third Circuit ruled that the district court was authorized to reconsider an initial order granting appellant‘s motion to withdraw from his guilty plea based on the inherent authority of the courts to reconsidеr interlocutory rulings in cases sub judice.6 Id. at 604-05. The court determined that this power was based on common law principles regarding the district court‘s ability to modify or vacate interlocutory orders, id. at 604 (citing United States v. Benz, 282 U.S. 304, 51 S.Ct. 113, 75 L.Ed. 354 (1931); John Simmons Co. v. Grier Brothers Co., 258 U.S. 82, 42 S.Ct. 196, 66 L.Ed. 475 (1922)), and derived statutory support from
Though several state appellate courts have declined to adopt Jerry‘s rationale on the basis of state law,10 other courts — both state and federal — have embraced it to address the very issue with which we are now faced. See, e.g., United States v. Chant, 201 F.3d 445 (9th Cir.1999) (unpublished) (citing Jerry in holding that court has authority to vacate earlier order allowing withdrawal of plea); United States v. Farrah, 715 F.2d 1097, 1099 (6th Cir.1983) (per curiam), cert. denied, 466 U.S. 971, 104 S.Ct. 2343, 80 L.Ed.2d 817 (1984) (adopting Jerry to affirm district court‘s reconsideration of order granting motion to withdraw guilty plea, and then reinstate original guilty plea, while also analogizing to district court‘s ability to rescind orders dismissing full indictments and individual charges) (citing United States v. Green, 414 F.2d 1174 (D.C.Cir.1969)); State v. Riggins, 378 P.3d 513, 2016 WL 3610599 (2016) (citing Jerry to conclude that court‘s reconsideration of order to withdraw guilty plea not violation of constitutional rights); People v. Wilkens, 139 Mich.App. 778, 362 N.W.2d 862, 865 (1984).
In considering the Jerry approach, we must note that the inherent powers of the Superior Court are different than those of a federal district court. Francis v. United States, 715 A.2d 894, 901 (D.C.1998) (unlike the federal district courts Superior Court is one of general jurisdiction invested with “full panoply of inhеrent powers possessed by common law courts“) (citations omitted). We have held, however, that trial judges in Superior Court are free to rely on their inherent powers where superseding procedural rules and constitutional restraints are absent. Siddiq v. Ostheimer, 718 A.2d 145, 148 (D.C.1998) (inherent power remains where rules are silent and there exists no constitutional bar) (citing Francis, supra, 715 A.2d at 901 & n. 20). Likewise, we have noted that while there are no procedural rules (civil or criminal) that allow for reconsideration of interlocutory orders, nothing prevents a trial court from doing so while it exercises plenary jurisdiction over a case. See Williams v. Vel Rey Props., 699 A.2d 416, 419 (D.C.1997) (citations omitted); see also
Next, we disagree with appellant‘s argument that Kercheval v. United States, 274 U.S. 220, 47 S.Ct. 582, 71 L.Ed. 1009 (1927), and Heim v. United States, 47 App. D.C. 485 (1918), constitutionally barred the trial court from reconsidering it‘s initial order allowing appellant to withdraw from his guilty plea. Those cases stand for the proposition that, once withdrawn, neither the fact of an earlier guilty plea, nor statements made during the Rule 11 colloquy, can be used as evidence against a criminal defendant in a subsequent trial on the merits. Kercheval, supra, 274 U.S. at 223-25 (citing Heim, supra, 47 App.D.C. at 492-93). But the question before us is different, and asks whether, in this specific context, the trial court could correct its ruling. Indeed, appellant‘s suggested application of Kercheval and Heim would, in effect, require us to regard an order such as this with the same inviolability as a judgment of acquittal. But where an еven “egregiously erroneous” judgment of acquittal divests a trial court of further jurisdiction over the concerned charges, Fong Foo v. United States, 369 U.S. 141, 143, 82 S.Ct. 671, 7 L.Ed.2d 629 (1962) (per curiam), see also Smith v. Massachusetts, 543 U.S. 462, 125 S.Ct. 1129, 160 L.Ed.2d 914 (2005),13 a premature order permitting a defendant to withdraw from a guilty plea does not. Jerry, supra, 487 F.2d at 604-05. Thus, we consider such an order to be interlocutory in nature, and subject to reconsideration.
As such, the оnly remaining question is whether it was consonant with justice for the trial court to reconsider its ruling in appellant‘s case. We conclude that it was for the following reasons. First, the record shows the case had not proceeded to trial.14 Second, the trial court recognized it‘s failure to conduct a factual inquiry and fully to analyze factors15 intended to guide it in its exercise of discretion before granting a criminal defendant‘s motion to withdraw a guilty plea. See Bennett v. United States, 726 A.2d 156 (D.C.1999) (discussing inquiry trial court must make before
Thus, for the foregoing reasons, we affirm the judgment of conviction.
So ordered.