*1 PETTIFORD, Appellant, Franklin H.
v. STATES, Appellee.
UNITED
No. 95-CO-637. Appeals.
District of Columbia Court of
Argued May 1996. Aug.
Decided DC, Thomas, Washington, appoint-
Neal L. court, appellant. ed Simms, United States Gina L. Assistant Holder, Jr., Attorney, Eric H. with whom Fisher, Attorney, John R. States II, Black, L. Thomas Thomas C. Jackson Attorneys, were on Assistant United States brief, appellee. WAGNER, Judge, Chief Before MACK, FARRELL, Judge, Associate Judge. Senior MACK, Judge: Senior pled guilty Appellant Franklin H. Pettiford armed, second- first-degree murder while carrying degree murder while armed and pistol without a license. After a motion to vacate his appellant filed § 23-110 sentence under D.C.Code (1989), part, ineffective assistance alleging, Superior denied his counsel. The Court motion, appeals. *2 22-3204(a) (1989), § in connection I. D.C.Code plea judge The with the murder of Garvin. Background A. accepted plea. posture The of this ease reaches this court debriefing in During one of the sessions preceding a tortuous route of events—two 1989, 1991, 30, shooting January of the June murders, seventeen-year-оld a arres- Jones, government wit- a death rights being tee’s waiver of admissions ness, explored. Appellant admitted (but firing on the scene the fatal shot at scene, presence at the murder but claimed killing), the time of extensive the second gun. that he not fired his He stated that had negotiations by gov- defense counsel with the individual, Rose, actually another ernment, debriefing agreement during (The government committed presence which the of the arrestee at the statement at claimed surfaces, gov- scene of the first murder debriefing session it had to an talked prosecute ernment’s declared intention to implicated appellant informant who first murder in the federal court where it Following the Angela Jones murder. de- penalty, superseding would seek the death briefing, government alleged that it had murders, plea agreement covering both implicated loсated an who also entry guilty to first and second- appellant.) threatened to armed, degree murders while and subse- prosecute appellant for the murder of quent, attempts unsuccessful to withdraw in federal court under a federal statute Jones pleas. those penalty for the mur- which allowed the death Luther was shot on No- and killed Appellant’s of a witness. der 1990, appel- vember 1989. March plea negotiations, in again engaged lant was arrested connection with Garvin’s superseding into a entered charged first-degree death and was agreement that both the Jones and covered murder while armed violation of D.C.Code agreement, this the Garvin murders. Under (1989). 22-2401, §§ Appellant, after -3202 plead guilty waiving rights, po- a statement to the made while armed in connection with the lice; being he admitted to pleas with Angela Jones and his firing murder of Garvin and to into resрect killing would to the Luther Garvin decedent; the air over the head of (ie., same as before second-de- remain the receiving payment also admitted a car in carrying a gree murder while armed and participation slaying. license). 10, 1991, pistol On June without codefendant, maintained that his Michael appellant pled guilty to the McIntyre, actually killed Garvin. accepted plea judge, murder before who Thereafter, appellant’s court-appointed at- torney, began plea negotia- Michael result, government, tions with the and as Sentencing Hearing B. preliminary entered into a “debrief- Appellant’s sentencing hearing was held on (and ing” agreement subsequent September 1991. After defense counsel agreement). agreement, Under the he was completed allocu- (and provide) provide to continue to tion, imposed, but bеfore the sentence was prosecutors agen- and other law enforcement appellant: plea judge addressed regarding cies with information individuals Pettiford, your opportunity is activity. September in criminal On involved important for say you think it is me what 14, 1990, pur- after waiver of indictment you al- in addition to to know what plea agreement, appellant pled suant to ready your letter. As I think about said guilty before the Honorable Ricardo Urbina case, should be sentence (hereinafter “plea judge”) to an informa- say, you like to sir? what is it that charging second-degree mur- responded: armed, der while in violation D.C.Code Honor, say things, 22-2403, (1989), I’d like to three carrying §§ Your -3202 and to grant license, hope you you can and I know that pistol without a violation t one, you don my you saying I hear is that take is what me three wishes: want to you trial; represent two, want Mr. Dowd go to a nеw cop back and want issue, you be enti- regard, and in that will lawyer of the fact that he did because your situa- have new counsel review tled to my help through me and for- properly ask the Court tion and go that if I telling me all sorts lies about *3 your sentencing in the mally to reconsider trial, appeal, no such and thing ain’t plea in the case. your reconsider case and my you case is—I should been told have him, let I sit here listen to proceeded this—but to sentence The court me, him, know, you try guide but—and on the twenty years imprisonment to life two, really—I want to That’s connection go I to trial. charge of murder murder, I have. first three wishes would like to seven the with the Jones I the years imprisonment on twenty-one would— second-degree in connec- charge The continued discussion as follows: served to be tion with the Garvin that, Q: Well, any- in addition to is there consecutively, imprisоnment one year you the thing [say] wish about what charge carrying pistol without deny should be? I sentence Should license, concurrently served to be your your motion vacate second-degree charge. at this time? just A: like— I would §C. 23-110 Motion words, Q: you asking In other me to are hearing, sentencing Some time your plea— vacate counsel, Dowd, moved to Michael appoint- Yes, from the court A: withdraw case. The sir. attorneys appellant, a series of new ed Q: you go let —and trial? 28, 1994, filed March and on A: Yes. Guilty and Sentence “Motion to Vacate Pleas ' ‡ ‡ ‡ í¡; ‡ ijs D.C.Code, 110.” In to 23 Section Pursuant motion, appellant the Court alleged “that Q: anything you Is there want me inquiry to conduct an of his claim of failed you in sentencing know about addition his re- assistance of counsel and ineffective you already to what said? for a new made quest for, you know, sorry really A: I’m hearing; sentenсing that he was denied happened people, guess I I but effective assistance lane, just up got caught in the fast sentencing; guilty pleas and at time of growing boys, you with the older charges were the substance and nature of the I, I know. ain’t never no brothers him; agree- explained and that All I my around. sisters and by] ... government [into ments entered had, my mother. I That’s all government.”1 breached be, know, just you wanted to if I— (herein- mother, maybe my if Honorable Steffen W. Graae I’d The listened judge”) “motions an evidentia- maybe I wouldn’t in this after the held have been know, hearing April of 1991. type today, you ry of trouble here on motion testimony appel- just Judge Graae heard but I wanted to a knucklehead witnesses, Agent Special hang lant and three FBI out the older fellows. Dowd, As- Reilly, Counsel Michael Dan plea judge then that he would indicated Attorney L. sistant States Jackson deny appellаnt’s motion to vacate his II. Thomas pleas, concluding: Testimony Agent Reilly’s Special 1. Well, Pettiford, deny going am testified, Reilly Special Agent at this Motion to Vacate Your Plea process ongoing criminal prejudice. investigating time without What means Therefore, not dis- argue appeal agreements. we will does not ed the on charges nature of were not substance and these issues further. cuss him, government breach- or that the conspiracy, present appellant fully agree- debriefing understood the ment, appellant. Appellant cooperating sessions with first fact that dis- as well as the January help on cussed Jones murder with the terms 7, 1991; report proceedings plead guilty. on one he decided to day, agent appel- Immediately had recorded that following the execution of counsel, lant’s Michael debriefing agreement, counsel and other, meeting, but on the due to an meetings attended with the pres- oversight, he had not recorded such the Garvin murder was discussed. which agent ence. The did recall Mr. Dowd Septem- further that in Counsel testified stopping proceedings when be- ber of made a written murder; gan discussing appellant, went over offer and that he connecting appel- did not have information detail, appellant in offer with ex- *4 Angela prior lant to the Jones murder to this plaining the differences between first and However, meeting. investigation further re- requi- second-degree murder in terms of the ap- vealed that two witnesses could connect site intent and the differences. pellant shooting. to the On cross-examina- strength govern- He reviewed the of the by government, agent that stated case, noting very that it would be ment’s present to his recollection Mr. Dowd was at appellant’s He hard to overcome confession. every meeting, on the occasions when and up rights appellant give identified Dowd, appellant arrived before Mr. substan- pled guilty; he told he he denied that regarding appellant’s matters case were tive appellant right that would not have a he not discussed until Mr. Dowd arrived. appeal if he went to trial. Testimony 2. Michael Dowd’s agreement formally ex- debriefing that, prior Michael Counsel Dowd testified by appellant government on ecuted and the plea negotiations regarding the Luther 10, September agreement 1990. The said prepared appel- Garvin he had following government’s about the use of by talking appellant lant’s case and the provided by appellant: information appellant’s detective who took confession. any not use informa- The Government will knowing admitted that the men pursuant provides tion which Mr. Pettiford Garvin, that intended to shoot he himself directly agreement against to this him times, though stating shot at four Federal, an admission or otherwise in a just he over his head. had aimed Counsel state, prosecution or local criminal unless any did not interview witnesses or hire other agreement. Mr. Pettiford breaches investigator. appellant Because told him ‡ ‡ ‡ ‡ ‡ ‡ rights that he knew of his when he made the Nothing agreement in this shall be con- police, statement to the he concluded that permit your strued to client to commit get they probably would not be able to or perjury, to make false statements decla- suppressed. confession rations, any justice, to commit obstruct approached by govern- Counsel was crime, protect your client from other or appellant’s preliminary ment soon after hear- prosecution any violent crime which he possibility appellant to discuss the might any has committed or commit or ap- identifying other individuals with whom other crimes committed after the execution pellant activity. Ap- was involved in criminal agreement. of this pellant cooperate, was anxious to and there- after, explained that he appellant and the entered Mr. Dowd understood plea agreement debriefing agree- “debriefing” agreement. According into the thing regarding same agreement, to this could not ment to mean the by any government’s provided of information make direct use of statements made use appellant: while it could not use appellant, but there was a reservation for him, directly against govern- statements derivative use of such statements. Counsel from appellant layman’s use information derived this to terms could po- He prior appellant’s signing agreement, pellant’s of the statements. believed knowing that use of information was scene with a tential derivative plea agreement. implicit in the kill Jones. He believed there to unnecessary, further would be Mr. Dowd also that on occasion stated provide said that did express take appellant would a desire to back sug- or any possible defense witnesses plea, discussing but it with after Therefore, began en- gest any he defenses. change he would his mind. negotiations this second gaging testified Counsel advised discussing appellant. it with government’s questions to answer the Mr. Dowd that around testified any debriefing sessions but volunteer agreement time of the second stated information. He longer him that he no wanted told sessions, debriefing including for all of the murder. He stat- Jones January meeting on when the conse- potential told ed that he subject murder was first decision, quences of such further no discussed. He stated that he had mind, changed although he continued knowledge about involvement empha- about the decision. Counsel vacillate meeting, this murder however, sized, that the to take final decision Attorney the Assistant States by appellant. made subject. point, brought At this emphasized he contin- Mr. Dowd also alone, speak asked *5 appel- uously get a better tried deal appellant him that see gone told he had lant, genuinely that he feared that and Rose, one Angela Jerry Jones with who had government planned try get the death actually Appellant committed the murder. 8, 1991, ap- penalty appellant. May On that he Rose’s said was to cover Mr. pellant government entered into back, but did not he had a mention that superseding plea agreement under which weapon Thereupon at first. advised pellant plead guilty first-degree was to appellant that he could refuse to answer Jones, Angela while armed of as well questions, probably which would be consid- requirements original as abide agreement, ered a breach of and plea agreement. prosecu- might lead to killing. tion for the Luther He also sentencing prior Mr. Dowd testified that appellant that telling advised if him that he appellant told he did not believe truth had not been in the actual involved good sentencing getting was deal. For the killing, then he should questions. answer the mem- hearing, prepared sentencing conversation appellant After their decided highlighting appellant’s cooperation orandum government’s questions, answer attempting to mini- government with the eventually appellant it came out that killings. appellant’s involvement in the mize with him carried and that he had hearing appellant met with He before they why were Ms. going known to see over the memoran- and he went Jones. dum, appellant thought and told what he testified, say appellant judge. Appellant further that soon after should Mr. Dowd discussion, any began express not dissatisfaction with his did speak charging appellant Angela he with the services before nor did later, govern- Jones murder. Two months counsel that he to withdraw his tell wanted appellant indepen- appellant agents guilty pleas. Immediately ment told that an court, part eyewitness appellant asking dent had seen take addressed the counsel, vacated, appellant, appel- lolling, going in the and that court, request had a off the record. indict federal lant’s mother discussion penalty, Angela During was this discussion counsel told the death because to, explained really if he witness. hе wanted Counsel judge to investigate or the case he not withdraw from and ask did Appellant counsel. said any type appoint other new undertake (It being go ahead. be noted appellant had admitted at the wanted to should because appear this conversation does the tran- documents. He admitted that Mr. Dowd had script, appear nor does there to have been a debriefing agreement read at least the to him pause in proceedings.) ex- Dowd it, signed before he but claimed that counsel plained stop proceedings, he did not He it him. believed request an ineffective assistance of coun- that under the documents the hearing, sel because he did not believe that any gave could not use information he them really displeased rep- with his against agreed testify him. He never resentation. He stated that he had bе- against his codefendants. sincere, lieved that he would Appellant testified that he told his counsel have filed a motion to withdraw. presence Angela about his at the scene of the Finally, Mr. Dowd testified that two Jones murder about months two before months after sentencing hearing, he re- debriefing discussion about murder in the plea appel- ceived letters from the session. He told Mr. Dowd that Rose judge’s lant had forwarded to the chambers. door, knocked on Jones’ and shot her These letters indicated that wanted opened. when the door was He told Mr. guilty pleas to withdraw his and to vacate his going Dowd that did not know what was Appellant sentences. also wrote that he was on and left the scene. also denied representation. with Mr. dissatisfied Dowd’s govern- that he ever told Mr. Dowd or the response, counsel moved to withdraw from gone that he had Jones’ the case and asked that new counsel be occasion; house on a he denied that he appointed. He stated never admitted he had known that Rose was said that he was innocent of Luther going to kill the house to Ms. Jones. He Garvin or Jones. subject testified that when the of the murder Appellant’s Testimony S. session, debriefing came Mr. Dowd Appellant testified that Mr. Dowd came stop did not the conversation to talk to him *6 preliminary see him before the hearing to privately, merely appellant if told that he discuss the Luther murder. Garvin He told anything govern- knew he should tell the he, McIntyre Mr. that Dowd Michael Attorney ment. The Assistant United States Jerry present Rose were at the Luther Gar- government him told that the had a witness murder, McIntyre vin had shot and represented appellant who was involved Garvin, killed while he had shot over Garvin’s Angela the Jones murder. He discussed explain hеad. He had tried to to Mr. Dowd Angela govern- the Jones murder with the things that certain in his to statement ment because counsel told him incorrect, police had been but counsel had about this witness. He decided to not to him. listened He had not looked at first-degree Angela murder of it; prior signing police the statement to Jones because his him that own counsel told sign him had told to it. also testi- get forty fifty year he or if sentence explain fied that Mr. Dowd him did not to explain he went to trial. Counsel did not government’s against what the evidence was first-degree that a murder carried conviction him, confession, except for the nor did coun- sentence; mandatory twenty years to life explain being sel to him his chances of ac- he did not believe that the quitted if he went to trial. Mr. Dowd told penalty. Appellant seek the death admitted appeal him that not to he would bе able he explained hearing that the at the went trial. get twenty years him that he would to life Appellant further testified he had charge, on the and that grade seventh education and that he could he understood this. very not read well. Mr. Dowd never read Finally, appellant testified that Mr. Dowd plea negotia-
the documents involved in the any potential did not ask him about witnesses him, tions to but the Assistant United States cases, investigate Attorney these and that he did not had read these documents to him. merely sign appellant Mr. in re- Dowd told an individual that mentioned explicitly that the it did not state agreement, murder. He lation to Luther Garvin right to government retained the make deriv- not have this witness would admitted He, however, ative use of statements. say at Mr. able that he did shoot been , govern- that the had at the because she was use of make his state- ment could derivative He that аbout scene of murder. stated agreement. under the ments he told month and half before Mr. Dowd that he wanted take prior testified that Mr. Thomas further his pleas He to vacate because back. wanted meeting Angela Jones the first which adequately not feel that Mr. Dowd had he did discussed, government had a was him, was represented and because Mr. Dowd appellant in the implicated who had witness telling him that if he went trial he would time, appellant murder.2 At that admitted again,” “there “never see the and that streets gone that he Rose thing parole.” no such He learned was murder, day Jones’ house before appeal from others he talked to he could day accomplish next had returned the conviction, therefore he decided objective their her. pleas. un- withdraw While had been actually pellant stated that he did not shoot happy with Mr. Dowd’s services could not remem- her. Government he never told court stopped meeting Mr. ber whether Dowd hearings Mr. had told because Dowd privately talk before go along said. the court regarding information Jones gave b,. Attorney L. Assistant States A few months after this first dis- murder. Testimony Jackson Thomas’ cussion, approached by informant, eyewitness, who as an a second Thomas, testifying Mr. behalf implicated also government, responsible that he stated gone This said that for the Luther Garvin with a to the door of and that he and Dowd had dis- hand, actually during and had fired appellant’s potential cooperation. cussed course of the incident. to his Counsel stated recollection debriefing agreement govern- stated that the Mr. Thomas further testified that at some could use not make direct regarding the point their discussions statements, but that it could derivative make he told Angela Jones *7 explained agree- use of them. He had against charges to him for he intended file appellant government to before be- murder, planned her and that he to recom- gan debriefing him. Mr. Dowd government seek mend that the death may debriefings, at all of the and he while at penalty. point He admitted that meeting been there for entire authority superiors from his to did not have every occasion, always Mr. Dowd was appellant prosecute pen- seek the death there when discussed matters. alty. He informed Mr. Dowd of the exis- government The had extended offer to of an to murder. tence appellant, agree in to which was to appellant agreed to Thereafter provide testify information and murder while armed and explained Mr. Thomas asked. testify against participants other in the appellant in before agreement detail To counsel’s recollec- murder. signed tion, it. He that while conceded and Mr. Dowd had a discus- plea agreement provided govern- during pause proceedings that the in the sion expressed his concerns the court ment could not use statements lawyer. directly against him unless he breached the and asked for new first, day it was stated that the in which first discussed. next 2. At Thomas implicated appellant prior testimony had two witnesses who corrected his meeting Jones murder
D.
Trial Court’s
Ruling3
support
a claim of ineffective assistance of
counsel.
appellant’s §
The trial court denied
23-110
I think the
nothing
record—there’s
response
appellant’s argument
motion. In
suggest here that there is some other evi-
sentencing
that the
court should have held a
your
dence that would exonerate
client.
hearing prior
Monroe-Farrell4
fact,
I’ve heard of nоt a shred of evi-
on the ineffective assistance of counsel claims
proposition,
dence for the
that he was not
by appellant,
raised
the trial court stated:
involved in the Luther Garvin
seems to me
[I]t
we have addressed the
he was not
in
involved
.the
question,
bottom line
which is
one
And,
there—no witnesses have
you’re aiming
anyway,
at
of whether the
been mentioned to the Court. No evi-
vacated,
plea should
thus
the sen-
lately
dence has been
uncovered that
aside_
So,
tence should
I
be set
any way
exonerate Mr. Pettiford
suggest
you
it’s
kind
immaterial what
from his involvement in those two crimes.
happened
Judge
back before
Urbina on the
So,
you aptly
even if—as
argue Mr.
day
because we are revisit-
Dowd failed to make a—conduct an inves-
question
...
begin-
whole
from
tigation, independent investigation of these
ning point.
offense[s], you
presented
twо
haven’t
me
proceeded
The court
to evaluate Mr. Dowd’s
anything
suggest
that would
assistance to
under the Strickland5
something
there was
for him to uncover
example,
test.
response
For
uncover,
that he failed to
and thus—I don’t
argument that Mr.
sufficiently
Dowd did not
any
see
evidence in
propo-
the ease for the
investigate
the trial
stated:
sition that
client has met the second
the Strickland test.
prong in
[I]ndeed,
investigation
integral
is an
part
process
working
of even
out a
Following
arguments
plea agreement.
I
argue
wouldn’t
government,
the trial
court stated
And,
you
certainly
on that.
I’m
not con- part:
doning Mr. Dowd’s statement where he
respect
argument
[W]ith
the—to the
appears
general
to articulate a—that his
providing
that Mr. Dowd was not
effective
practice is not
to conduct an
representation during
plea process,
I
gonna
where it’s
еnd
I agree.
indicated,
am as I
I am
unconvinced.
appropriate
do not think that is
standard
met,
fact,
you’ve
don’t think that
either
lawyer
apply
defense
to his re-
Strickland test with
prong of the
respect
sponsibilities.
performance.
to Mr. Dowd’s
you
get past
even if
I think
professional
it was well within
test,
Strickland
prong
first
bounds,
represent-
the manner which he
namely
generally
profes-
that it’s
accepted
ed Mr. Pettiford
the—during the
practice
proceed
way, you
sional
in this
plea negotiations
up through
sentenc-
And,
still have to establish to the
ing.
Court’s satis-
I want to make clear here at
preju-
point
faction that
there—that
there is a
something
that we haven’t di-
*8
dice,
addressed,
you’ve
prong
rectly
that
met the second
of
but I do hear Mr. Petti-
And,
the
I
testify yesterday
test.
think that’s where there
I
ford
what
considered
really
anything
very
general
isn’t
I can think of that
a
vague,
will
be
and unconvinc-
States,
(D.C.),
only
the
known of one of the
4. Monroe v. United
II. tive of counsel the standard assistance under Strickland, us, requiring prejudice to arguments In view before it is im- set forth in precise a claim. рortant identify that we issues as the defendant in order establish pleas, only plea judge Did err in we have we see them. the context applied appel when initially denying the motion to the Strickland standard defendant’s guilty, lant raises an ineffective assistance withdraw based on ineffective *9 counsel, to vacate his holding post-sentence a claim in a motion assistance of without hear- States, See, e.g., v. 592 reconsidering plea. in United ing? judge, Did the trial Wilson motion, judge appellant’s pleas. ruling denying This has not been also conclud- require- judge pealed. ed that the satisfied the Super. accepting ments of R. 11 in Ct.Crim. 216 1009, (D.C.), denied, competent
A.2d 1013 n. 8 cert. of at all relevant 502 times.” omitted). 1017, 666, (citations U.S. 112 116 Id. at S.Ct. L.Ed.2d 757 306-07 We noted (1991); States, United in Gooding Morrison v. 579 A.2d of these factors is “[n]one (D.C.1990). 686, 689 n. evaluating controlling 6 When and the trial court must consider presentence to vacate guilty plea, cumulatively motion them in the context of the indi competency we consider of vidual 306. We also case.” Id. at stated that factors, motions, counsel as one of the but just we have fair and “[o]n ‘leave to with required showing prejudice never plea as draw a guilty prior sentencing should in Gooding freely found Strickland. See v. (quoting United Id. allowed.’” Poole v. States, (D.C.1987). 301, States, 71, U.S.App. 75, 529 306-07 A.2d United 102 D.C. 250 (citations Therefore, omitted)). 396, 400 (1957) judge apply in motions erred F.2d ing the Strickland standard to pleas, motion to vacate and in not evaluat Competency A. Counsel ing presented Gooding. other factors in competency We will consider the of coun- appropriate
We will analysis undertake the sel recognized factor first. This court has below. importance pretrial preparation by defense counsel: III. prerequisite [A]n essential to counsel’s ways There in are two which an accused presentation intelligent of an and knowl- may successfully guilty move to withdraw a edgeable requirement is the defense 32(e), plea Super. under R. Ct.Crim. one of consult, investigate prepare for tri- which is to a “fatal establish defect al. Rule 11 proceeding guilty plea at which the States, 268, Harris v. 441 United A.2d 272 Gooding, supra, was entered.” 529 at A.2d (citation omitted). (D.C.1982) We have also (footnote omitted). 305 The motions recognized that counsel must defense make appellant’s argument considered preparations engage order bar- defect, rejected was such a Rule 11 it. gaining: argued ruling has not that this Supreme has appeal, [T]he error on stated that trial and therefore we need not Court counsel’s failure become consider it informed further. bearing facts might situation may An also seek to accused with satisfy neсessary the standard to vacate a 32(e) guilty plea draw a by under Rule show plea on collateral attack. “justice demands withdrawal States, 142, Ramsey v. 569 A.2d 147 United circumstances of the individual case.” at Id. (D.C.1990) Henderson, v. (citing Tollett 411 305-06. When a motion withdraw is made 1602, 266-67, 1607-08, U.S. S.Ct. here, as it was the mo “ (1973)).7 promulgat- L.Ed.2d 235 Standards ‘if granted any should be reason the ed Bar American Association also granting privilege of the seems fair and importance discuss of investigating just.’” (quoting Id. at 306 Kercheval v. ease, even if the defendant intends to 220, 224, 274 U.S. 47 S.Ct. guilty: (1927)) (other 583, 71 L.Ed. cita omitted). tions prompt The factors we use to deter Defense counsel should conduct a mine just” investigation whether it be “fair of the circumstances guilty plea explore leading allow the of a ease all avenues withdrawal are as (1) follows: “whether the defendant has as facts relevant to the merits of the case and (2) innocence;” penalty serted his or her in the event conviction. The “the length delay entry include between should efforts se- (3) it;” possession desire to withdraw cure information prosecution “whether the has accused had the full benefit and law enforcement authori- dealing 7. Note that in we are a lower our case with a therefore we follow standard than presentence motion to withdraw a applied Ramsey. opposed on a collateral attack *10 Delay Length re- B. duty investigate exists ties. The of admissions or gardless of accused’s length delay “the be consider next We con- to defense counsel of facts statements plea entry of the tween stituting guilt or the accused’s stated de- supra, Gooding, it.” to withdraw desire plead guilty. sire to plea his Appellant entered first A.2d at 307. Justice, The ABA for Criminal Standards 14, 1990, his September second on 4-4.1(a) (3d ed.1993). Function Defense expressed his July 1991. He first on pro- whether Mr. Dowd We must evaluate court these desire withdraw competent assistance vided 9, 1991, September some two months on that based on the record before us. We note agreement that superseding plea covered judge did not believe motions hardly This have been both murders. could relationship of his with Mr. Dowd. account government. It is true prejudicial judge op- Recognizing that the trial had the request appellant made the withdrawal that witnesses, not portunity to view the we do possible last moment before sentenc at the However, attempt dispute finding. testimony on the ing. based testimony of Mr. even based on hearing, it is clear that § 23-110 grave prepara- his we have concerns about expressed pleading guilty reservations about Mr. this case. Dowd admitted that he hearing. Mr. before the well investigate killing did nоt Luther Garvin testimony that Dowd’s confirms beyond finding out about confes- about his decision to had vacillated sion, investigate not that did Moreover, appellant claimed that he guilty. Jones murder. He testified that convey these concerns to court did not investigation nec- did not feel that such was following the essary because he was advice because in both cases admit- earlier testimony certainly his crimes. The mo- Mr. Dowd and counsel’s ted involvement expressed strategy employed in regarding tions also concern to the ill-advised preparation: Mr. Dowd’s lack of fact. also confirm this We do defense would entry delay between not find certainly condoning I’m Mr. Dowd’s persuasive presents a motion to withdraw appears where he to articulate statement deny motion to withdraw. general practice a—that his is not to con- reason an it’s gonna duct where end
up
plea....
in a
not think
is an
do
Innocence
C. Assertion of
lawyer
appropriate standard for a defense
apply
responsibilities.
his
Finally,
consider whether
we will
Id.
306.
asserted his
innocence.
at
has
preparation in
The lack of
this case is
sentencing hearing
point
no
At
especially troubling of the
view
fact
his
his innocence. Rather
did
voice
client, contemplat-
Mr. Dowd
steered
own
the nature of
leniency
bordered on
already charged
testimony
apology. By his own
at
through
pro-
“debriefing
one
vacate,
hearing on
motion to
charge
ultimately
cess” which
led to
of Garvin. When
involved
invoking the
an even more serious murder
murder, appellant re-
about
asked
punishment.
find
threat
increased
We
colloquy
be evidence
sponded
that could
preparation
Mr. Dowd’s lack of
necessary for
prеmeditation
lack of
weighs heavily
granting ap-
case
favor
perhaps
murder or
claim
pellants motion to
one
withdraw
presence.9
innocent
pleas.
(D.C.
knew
I did
tell him that I
she
A:
See
v. United
8. Carter 1996) (enbanc). explain going some- killed. Let me to be thing, thing, okay? When we went one Pettiford, you right. Q: All do admit house, me, Jerry, okay, lady’s it was telling attorney [Angela you went okay? porch. Went on the killed, you day Jones’] house she lady’s knock door. asked me to [McIntyre] going knew that Rose and whose that was because didn’t know house kill her? *11 218 murder,
As to the Garvin
appellant has we find
the trial court abused its discre-
made a
assertion
refusing
“bald
of innocence” that
permit
tion in
the withdrawal of
judges
unpersuasive
some
have found
in oth
We,
plea
first-degree
murder.
there-
cases,
States,
Springs
er
see
v. United
614 fore,
on
reverse the conviction
that count.
(D.C.1992)
omitted) (cit
(quotation
A.2d
5
respects,
judgment
other
all
is af-
alia,
States,
ing,
Gooding
inter
v. United
513 firmed.
(D.C.1986)
(Ferren, J.,
A.2d
1344
dis
So ordered.
I), vacated,
senting) (Gooding
reissued as
(D.C.1987)).
amended,
Therefore to the factors convince me that themselves “cumulatively in the context of individ- [this] case,” denying abused his ual we examine the assertions and discretion charge. as to murder by appellant withdrawal either admissions made at his belated And, murder, as to the hearing. presence at Garvin there is no He admitted his saying sound basis for that counsel scene of both murders. He admitted that he faded to (and perform competently fired over head of in connection with Garvin he is serving imposed police Pettiford to the sentence for second-de- confessed gree complicity for his admitting murder involvement that he case). armed, knowing compan- He denied approached with two oth- ion was to the going say home of Ms. Jones to “you ers whom he heard know what we murder; do,” commit he denied shot that he Ms. fired four have to shots at Jones, Garvin, Assistant At- United States though assertedly over his head. He (see torney confirmed this latter fact also police drug- also told that the supra). note 7 The Assistant United States given pay- related and that he was car as that, Attorney also confirmed on basis of ment for his role in it. His identified the location located winning suppression arguable no basis for debriefing process, he told second-degree the confession. The the government request the death spared expo- murder while armed Pettiford penalty appellant agreed and that thereafter charge first-degree sure to a first-degree was, essence, pre-arranged assаssi- nation.
When we balance this to scenario factors,
gether Gooding with the other in murder is a cluding question competency of while armed the Jones differ- standard, judged by proper largely repre- ent matter. On the basis time, anybody’s you stupid By Jerry go knocking around I seen don't MF. out, that— got firing. Jerry door unless know them. When Once occurred, lady—the fire, when that dude had to I turned around and broke the dude answered door—when steps. down the was still on the door, answered ... Ms. Jones had steps. steps, say come and I her down heard appellate no decisions where have found prosecutor that he would by the sentation *12 their plea context have utilized superiors to seek a in the permission from his courts ask (while vacating greater court convic- federal a capital authority murder indictment (under tion) ad- a newly legislation), judgment on lesser entry enacted to direct accept plea a offеr to first- See, Rutledge Pettiford to v. e.g., vised Unit- included offense. — Superior degree while armed -, -, murder 116 S.Ct. U.S. ed Court, mandatory mini- bringing with it a (1996). 1241, 1250, 134 Given L.Ed.2d years prison. Al- twenty mum term of to insure of Rule 11 meant requirements counsel he though prosecutor had told is precisely what he knows that a defendant an who would tie Pettiford to, to be is obvious reason pleading inqui- no further shooting, counsel made wary remedy a of such concerning ry or the witness— point pursue I therefore do setting. that Pettiford had told reason alone further, be agree that Pettiford must part “that he was mother proof to its put allowed to went there sense that he the Jones shooter,” himself armed and know- “why In coun- going there.” hearing, asking view as sel’s name, prosecutor eyewitness’s witness,
asking having or speak with that try investigator
an to locate the witness to
question “things I would him were the sort gone trial.
have done had the ease prepared differently for trial than have Floyd BURWELL, Appellant, Delores plea.” adds to preparing for When one apparent this obliviousness to the counsel’s v. uncertainty prosecutor’s chances capital BURWELL, Appellee. obtaining Stanley murder indictment and Homer conviction,1 perfor- deficiency in counsel’s No. 95-FM-698. stark, reality mance is that the first- degree plea may murder have been no “bar- Appeals. Court of District Columbia gain” compelling at makes case for all this presentence withdrawal. Argued April 1997. hand, accepted On the other had Pettiford Sept. Decided 1997. second-degree an offer ato possible capital rather than face a
indictment, question it harder adequacy performance. counsel’s accepted
Even more less at or face prosecutor’s eye-
value claim have an naming accomplice, as an
witness Pettiford genuine might to murder-II been given prosecutor’s intent
trade-off penalty murder of a
seek death question, intriguing witness. An
therefore, proper- is whether this court could
ly murder con- vacate Pettiford’s slaying,
viction for the Jones but leave intact implicit
an conviction for lesser-included murder-II. The has
offense of however, remedy, argued appropriate would have seen this as role seemed at most that of aider Office Pettiford’s abettor, Attorney’s for the new statute is doubtful. the U.S. test case whether