White v. United States

• Decision Date: 01 September 2016
• Docket Number: No. 13-CO-1349,13-CO-1349
• Citation: 146 A.3d 101
• Parties: Jayvon R. White, Appellant, v. United States, Appellee.
• Court: D.C. Court of Appeals

146 A.3d 101

Jayvon R. White, Appellant,

v.United States, Appellee.

No. 13-CO-1349

District of Columbia Court of Appeals.

Argued September 17, 2015

Decided September 1, 2016

Matthew J. Dowd, with whom Wesley E. Weeks, was on the brief, for appellant.

Tim Cahill, Assistant United States Attorney, with whom Ronald C. Machen Jr., United States Attorney at the time the brief was filed, and Elizabeth Trosman, Suzanne Grealy Curt, James Sweeney, and Lauren R. Bates, Assistant United States Attorneys, were on the brief, for appellee.

BEFORE: Thompson and Beckwith, Associate Judges; and Reid, Senior Judge.

REID

, Senior Judge:

In 2004, this court rejected appellant Jayvon White's challenge to the trial court's denial of his motion to withdraw his guilty plea. White v. United States , 863 A.2d 839 (D.C.2004)

(White I ). In the case now before us, Mr. White appeals the trial court's denial of his 2012 pro se motion, filed under D.C. Code § 23–110 (2012 Repl.), to vacate, set aside or correct sentence and judgment. He primarily claims that (1) during his plea colloquy the trial court misinformed him about his parole eligibility; and (2) the trial court abused its discretion by denying his request for an evidentiary hearing on his 2012 motion. He also argues that he is not procedurally barred from asserting his 2012 claims. For the reasons set forth below, we vacate the trial court's judgment and remand this case to the trial court for an evidentiary hearing, followed by the trial court's statement of factual findings and conclusions of law.

FACTUAL SUMMARY

The record reveals that on September 4, 2001, the trial court (the Honorable Judith Retchin) held a hearing regarding Mr. White's decision to accept the government's plea offer. Mr. White agreed to plead guilty to the lesser-included charge of second-degree murder while armed, and to possession of a firearm during a crime of violence (“PFCV”). The government agreed to (a) dismiss another charged robbery case and the remaining counts in the indictment, and (b) to withdraw the life without parole papers that it had filed.

During the plea colloquy on September 4, 2001, Judge Retchin informed Mr. White that (a) the penalty for the second-degree murder offense was “20 years to life with a mandatory sentence of at least five to fifteen years,” and (b) the related PFCV offense had a mandatory sentence of five to fifteen years. In addition, Judge Retchin explained that she could impose consecutive sentences, “meaning that [she] could sentence [Mr. White] to as much as 25 years to life.” The judge stated that Mr. White would not be affected by the then recently adopted Truth in Sentencing law, and therefore, he would be eligible for parole, but “that the mandatory part of the sentence is exempted from the parole, meaning that [Mr. White] would be required to serve a minimum of five years,” and that if the court made the sentences consecutive, “it would be a minimum of 10 years before [he would] even [be] eligible for parole.” Mr. White, who was represented by his trial counsel (Michael J. McCarthy), said he understood the explanation, and he acknowledged that no one had told him what his actual sentence would be.¹ Mr. White entered his guilty plea.

Prior to sentencing and through new trial counsel (Lexi Negin Christ), Mr. White filed a motion on December 7, 2001, to withdraw his guilty plea. He submitted an affidavit in support of his motion on January 14, 2002. The affidavit summarized his alleged understanding as to what his trial counsel had told him about the effect of a guilty plea.² The trial court held an evidentiary hearing on the motion on February 8, 2002, during which Mr. White testified. He stated his belief that if he lost at trial he would be sentenced to life without parole, and further, that defense counsel had informed him that if he took the government's plea offer, “he would see the parole board after 5 years” and he would “probably do about fifteen years.” Subsequently, on February 13, 2002, the trial court denied Mr. White's motion, rejecting (1) his assertion of legal innocence; (2) his contention that he promptly moved to withdraw his guilty plea; (3) his argument that he was “deprived of the full benefit of competent counsel” with respect to his plea offer; (4) his claim that his medical condition “distracted him” in his consideration of his plea offer; and (5) his claim that “he had no confidence in his trial counsel.”

The trial court's judgment and commitment order, following Mr. White's sentencing, shows that on June 28, 2002, Judge Retchin sentenced Mr. White to 20 years to life on the second-degree murder offense and 5 to 15 years on the PFCV offense, and made the sentences consecutive. Judge Retchin indicated that Mr. White was committed to prison for “25 years,” and that a “mandatory minimum term of 10 years applies.” The judge amended the judgment and commitment order on March 12, 2004, nunc pro tunc to June 28, 2002, by deleting “25 years” but leaving “mandatory minimum term of 10 years applies.” Mr. White noticed an appeal of the trial court's denial of his motion to withdraw his guilty plea; we resolved that appeal in White I.

Mr. White made other efforts to alter or clarify his sentences. He sent a letter to Judge Retchin on August 4, 2006, asking that his sentences be changed to run concurrently. He sent another letter on October 26, 2006, which the court treated as a pro se motion to reduce sentence. The trial court denied the motion on the ground of lack of authority to reduce Mr. White's sentence. Judge Retchin received yet another letter from Mr. White on March 16, 2007, which she interpreted as a pro se motion to reduce sentence. In response to the motion, Judge Retchin asserted on June 7, 2007, that even if the court had authority to reduce Mr. White's sentences, it would not do so because of its belief that “the sentence imposed was just and appropriate in light of the conduct that gave rise to the conviction.”

Approximately two years later, in a letter dated June 1, 2009, Mr. White requested Judge Retchin's assistance with his parole eligibility. The judge's administrative assistant responded on June 3, 2009, that “[t]he [c]ourt does not intercede in parole determinations.” The assistant included the name of the Chief of the Parole Division at the Public Defender Service. Later, on September 13, 2010, Mr. White lodged a pro se motion “seeking clarification of exactly when he is eligible for parole consideration.” The first document attached to the motion was a 10/23/2008 program review of an “Inmate Skills Development Plan” containing basic data, including an entry stating “10 years—DC Omnibus Adult Sentence”—and a box labeled “Parole Status” showing an initial hearing date of “04-01-2013.” The second document was labeled, “Sentence Monitoring Computation Data as of 09-09-2009,” and it showed “Parole Eligibility” as “03-08-2025,” but also specified “Next Parole Hearing Date” as “06-00-2010.” The third document was a copy of Mr. White's August 18, 2010, inquiry to the Federal Bureau of Prisons about his parole eligibility date and the Bureau's response, stating: “Contact with DSCC (DCCOMPS), reported your parole hearing should not have been June 2010, but 6-9 months prior to your parole eligibility which is March 8, 2025. The ten-year DC Mandatory Minimum Term, is the least amount the Judge could sentence you to and would come [in]to play if you[ ] earned Educational Good Time, which you cannot. Your minimum term is 25 years and therefore [you are] eligible for parole March 2025.” Judge Retchin denied the motion for clarification of sentence, declaring on September 20, 2010, that “[i]t is the responsibility of the Parole Commission to determine when and if [Mr. White] will be released on parole,” and that “the mandatory minimum sentence does not equate to a parole eligibility date.”

Months later, on June 5, 2012, pursuant to D.C. Code § 23–110

, Mr. White filed a pro se motion to vacate, set aside or correct sentence and judgment. He claimed, first, that he “entered his plea of guilty under the advi [c]e of counsel and the [c]ourt, that he would be eligible for parole in ten years when in actuality, it would take 25 years from the date of [his] sentencing before [he] was eligible for parole.”

He further asserted that he was “[o]nly ... told [in] July of 2010 that he had been removed from the [p]arole docket because he was ineligible for parole until March 8, 2025.” Second, Mr. White argued that he was entitled to an evidentiary hearing because “the [c]ourt gave [him] erroneous advi[c]e,” as follows: “[I]f I make [the] sentence consecutive, it would be a minimum of 10 years before you're even eligible for parole.” Third, Mr. White maintained that the government breached its agreement with him because he has been incarcerated for ten years and has been “denied ... the fruits of his plea deal.”³

The Honorable Jennifer Anderson denied Mr. White's motion on October 9, 2013, finding that Mr. White's claims were procedurally barred, and that even if they were not procedurally barred, he would not be entitled to relief. Judge Anderson also concluded that none of Mr. White's allegations required an evidentiary hearing because (1) Judge Retchin denied the “exact claim” about his counsel in his “initial motion to withdraw his guilty plea, which denial was affirmed on appeal,” (2) the claim about Judge Retchin misinforming him about his parole eligibility “is palpably incredible based on the existing record,” and (3) with regard to his plea agreement with the government, “there was no misinformation for the government to object to.”

ANALYSIS

The Procedural Default Issue

We first consider Mr. White's argument that his claims are not procedurally barred, and the government's counter contention that his claims are procedurally barred. Mr. White argues that the trial court “inadvertently misinformed [him] that ‘if I make this sentence consecutive, it would be a...