Barrie v. United States
| Docket Number | 20-CO-42 |
| Decision Date | 11 August 2022 |
| Citation | 279 A.3d 858 |
| Parties | Ismahil BARRIE, Appellant, v. UNITED STATES, Appellee. |
| Court | D.C. Court of Appeals |
Jenifer Wicks, Washington, was on the opening brief for appellant. Ian A. Williams was on the reply brief.
Raj Parekh, Acting United States Attorney, and Ronald L. Walutes, Jr., and Cristina C. Stam, Assistant United States Attorneys, were on the brief for appellee.
Before Beckwith and Easterly, Associate Judges, and Thompson, Senior Judge.*
In March 2014, appellant Ismahil Barrie pled guilty to attempted first-degree sexual abuse and kidnapping.1 In June 2019, through counsel, he filed a motion pursuant to D.C. Code § 23-110, in which he asserted that he would not have pled guilty but for the ineffective assistance of his trial counsel and asked that his convictions be vacated. Specifically, appellant argued that trial counsel "failed to adequately investigate this matter and failed to adequately advise [appellant] about the direct [immigration] consequence of his plea in this case." This appeal followed after the Superior Court denied appellant's motion without a hearing on his claims. Appellant contends that the court erred in doing so and seeks a remand for a hearing. We agree that appellant was entitled to a hearing on his claim that his counsel provided inadequate advice about the immigration implications of pleading guilty to the charged offenses. Accordingly, we vacate the order denying the § 23-110 motion and remand for further proceedings.
In exchange for appellant's guilty plea, the government agreed not to indict him on any greater charges arising from the case, including first-degree sexual abuse, assault, and burglary. The government's proffer during the plea proceeding explained that appellant had earlier been in a romantic relationship with the complainant, S.L., and had remained in contact with her after the relationship ended. He visited her home with her permission on December 22, 2013, sometime in the afternoon. Later that evening and into the early hours of December 23, 2013, appellant began texting and calling her. Sometime between approximately 3:00 and 4:00 that morning, he entered her apartment while she was sleeping, confronted her in her bed, accused her of seeing another man, refused to leave her apartment when she told him to, and eventually dragged her into a closet, where he detained her against her will for about two hours and covered her mouth as she tried to scream for help. Eventually, appellant let S.L. out of the closet, and she got back into her bed, but appellant dragged her from the bed onto the floor and forcibly penetrated her vagina against her will, first with his fingers and then with his penis. When appellant thereafter went to the bathroom, S.L. ran naked from the apartment and called the police. Appellant told the court that the proffer correctly reflected "what happened."
The trial court (the Honorable Jennifer Anderson) conducted a plea colloquy with appellant before he accepted his guilty plea. Appellant confirmed that he had "had enough time to talk to [his] attorneys about [his] decision to enter a plea agreement" and stated that he understood the maximum penalties for each of the counts of conviction and the requirement that he register as a sex offender for ten years. Upon learning that appellant was born in Sierra Leone, Judge Anderson had the following exchange with appellant:
After accepting appellant's guilty plea, the Superior Court sentenced him to sixty months of incarceration, followed by five years of supervised release, for attempted first-degree sexual abuse, and to forty-eight months of incarceration, followed by five years of supervised release, for kidnapping, to run consecutively. The trial court also ordered appellant to register as a Class A sex offender.
In his § 23-110 motion, appellant asserted that his attorneys provided ineffective assistance by (1) failing to investigate the case effectively and to present relevant exculpatory evidence; and (2) failing to advise appellant that his plea would result in "absolute immigration consequences." Regarding the first of these grounds for relief, appellant claimed that his counsel did not interview "immediate family members who had knowledge of [appellant's] relationship with the complainant and the circumstances leading to his arrest." Appellant attached to his motion his own affidavit and affidavits from his mother and sister. Appellant's sister, Fatima Barrie, stated in her affidavit that S.L. came to the family's home to pick up appellant on or about December 19, 2013, and she did not see appellant again before his arrest on December 23, 2013. Appellant's mother, Ethel Barrie, stated in her affidavit that she had pressed charges against S.L. prior to appellant's arrest because S.L.’s son had damaged her front door in September 2013. Appellant's affidavit stated that at one point S.L. and her son went to appellant's mother's home and damaged the front door of the house. Regarding his second claim, appellant acknowledged that the court and his attorneys advised him that there were potential immigration consequences from pleading guilty but claimed that his attorneys did not explain to him that a conviction would "definitively" have "absolute immigration consequences," i.e., automatic removal and permanent inadmissibility. Appellant claimed that he would not have pled guilty if he had known that he would be deported after serving his sentence.
The trial court concluded that appellant's motion could be resolved on the existing record and that no evidentiary hearing was necessary. Regarding appellant's claim that his counsel failed to interview appellant's family members, the court reasoned that even if appellant's allegations were true, the affidavits did not "contradict the government's significant evidence against" appellant. Regarding appellant's second claim, the court cited appellant's responses during the plea colloquy and determined that the record "conclusively show[ed] that [appellant] had the opportunity to consider the immigration consequences of accepting the government's plea offer, including deportation." The court further explained that the relevant statute, 8 U.S.C. § 1227(a), provides that aliens should be removed "upon the order of the Attorney General." Given that language, the court concluded that it should not require trial counsel to give a defendant "definitive assurances" regarding potential deportation.
Motions under § 23-110 asserting ineffective assistance of counsel are evaluated under the standard set forth in Strickland v. Washington , 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). See Upshur v. United States , 742 A.2d 887, 895 (D.C. 1999). The Strickland standard requires that a defendant show (1) "that counsel's performance was deficient," and (2) "that the deficient performance prejudiced the defense." Strickland , 466 U.S. at 687, 104 S.Ct. 2052. This court has recognized that "[t]he failure [by trial counsel] to make a proper pretrial investigation [and] to interview exculpatory witnesses ... constitutes constitutional ineffectiveness." Byrd v. United States , 614 A.2d 25, 30 (D.C. 1992). We have also said that in the context of a guilty plea, a failure of trial counsel to inform a client of facts material to his plea can support a claim of deficient representation. Upshur , 742 A.2d at 895. That is because "a guilty plea is valid only if it is entered ... with sufficient awareness of the relevant circumstances and likely consequences." Hilliard v. United States , 879 A.2d 669, 671 (D.C. 2005) (per curiam) (internal quotation marks omitted). "In the context of the request to set aside conviction[s] and withdraw [a] guilty plea, the Strickland prejudice standard requires a showing ‘that there is a reasonable probability that, but for counsel's errors, [the defendant] would not have pleaded guilty and would have insisted on going to trial.’ " Upshur , 742 A.2d at 895 (quoting Hill v. Lockhart , 474 U.S. 52, 59, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985) ); see also Padilla v. Kentucky , 559 U.S. 356, 372, 130 S.Ct. 1473, 176 L.Ed.2d 284 (2010) ().
Section 23-110(c) requires a hearing on a § 23-110 motion "[u]nless the motion and files and records of the case conclusively show that the prisoner is entitled to no relief." D.C. Code § 23-110(c). Thus, "[w]hile the decision whether to hold an evidentiary hearing on a § 23-110 [motion] is committed to the trial court's discretion, the extent of that discretion is quite narrow," and "[a]ny question regarding the appropriateness of a hearing [on a § 23-110 motion] should be resolved in favor of holding a hearing." Bellinger v. United States , 127 A.3d 505, 514-15 (D.C. 2015) () (internal quotation marks omitted). "In order to uphold the denial of a § 23-110 motion without a hearing, we must be satisfied that under no circumstances could the petitioner establish facts warranting relief." Hilliard , 879 A.2d at 671 (internal quotation marks omitted). But we will affirm the trial court's denial of a § 23-110 motion without a hearing if the claims "(1) are palpably incredible; (2) are vague and conclusory; or (3) even if true, do not entitle the movant to relief." Hardy v. United States , 988 A.2d 950, 961 (...
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