Blackmon v. United States, 18-CO-73
| Decision Date | 12 September 2019 |
| Docket Number | No. 18-CO-73,18-CO-73 |
| Parties | James Earl BLACKMON, Appellant, v. UNITED STATES, Appellee. |
| Court | D.C. Court of Appeals |
Vincent A. Jankoski for appellant.
Kathleen Gibbons, Assistant United States Attorney, with whom Jessie K. Liu, United States Attorney, and Elizabeth Trosman, Sitara Witanachchi, and Nicholas P. Coleman, Assistant United States Attorneys, were on the brief, for appellee.
Before Glickman and Thompson, Associate Judges, and Greene, Senior Judge, Superior Court of the District of Columbia.*
Appellant James Blackmon challenges the trial court's denial of his "Motion to Vacate, Set-Aside, or Correct The Sentence Pursuant to D.C. Code § 23-110," in which he sought relief based on his trial counsel's deficient advice regarding a plea offer (, counsel's erroneous advice about the maximum sentence appellant could face if he rejected the plea offer and was convicted after a retrial). Appellant contends that the trial court's conclusion that he failed to show prejudice from his trial counsel's deficient representation was premised on a misinterpretation of Lafler v. Cooper , 566 U.S. 156, 132 S.Ct. 1376, 182 L.Ed.2d 398 (2012) (). We affirm.
After a trial in March 2009, appellant was convicted of three counts of first-degree sexual abuse, one count of attempted first-degree sexual abuse, one count of first-degree burglary, one count of kidnapping, and one count of assault with significant bodily injury ("ASBI"). See Blackmon v. United States ("Blackmon I "), 146 A.3d 1074, 1075 (D.C. 2016). Although the government had asked the court to sentence appellant to life imprisonment without the possibility of parole, the court (the Honorable Geoffrey Alprin) sentenced him to an aggregate term of 34 years of incarceration. In resolving his direct appeal, this court vacated appellant's convictions and remanded the case for a new trial because, in violation of appellant's Sixth Amendment confrontation rights, the government was allowed to "present the results of DNA testing through a witness who had neither conducted nor observed the testing." Blackmon I , 146 A.3d at 1076. Following a second jury trial in April of 2014, appellant was acquitted of burglary, but was convicted again of all other charges. Id. The trial court again sentenced appellant to a total of 34 years of incarceration.1 Id.
The instant appeal focuses on what happened during the lead-up to appellant's second trial. The government presented a plea offer under which "if [appellant] pled to First-Degree Sexual Abuse With Aggravating Circumstances, [the government] would agree to [a Super. Ct. Crim. R.] 11(e)(1)(C) plea of 25 years incarceration ... with credit for time served." In advising appellant about the plea offer, appellant's trial counsel, Jason Downs, informed appellant that if he rejected the plea offer and was ultimately convicted at the second trial, he would not receive a sentence of incarceration that was more than the 34 years imposed following his first trial. Blackmon I , 146 A.3d at 1076. Appellant rejected the plea offer. Id.
Shortly after the second trial began, realizing that the advice he had given appellant was mistaken, Mr. Downs disclosed his mistake to the trial court and asked the court to appoint independent counsel to speak with appellant.2 Id. Appellant, in an ex parte hearing at the bench, told the court, "If you can get the original ... plea back[,] I[']ll take it[.]" Id. The prosecutor stated in open court, however, that the original 25-year plea offer "was no longer on the table." Id. The government instead offered appellant a plea agreement with a government sentencing recommendation of 34 years, an offer appellant rejected. Id. at 1076-77. The government then "agreed to cap its allocution at 34 years," asserting that this would "restore [appellant] to where he was" when he rejected the 25-year plea offer. Id. at 1077. The court (the Honorable Jennifer Anderson) "agreed to be bound by the 34-year sentence and not impose a sentence greater than that." The case proceeded to trial, and, as already noted, the jury acquitted appellant of burglary but found him guilty of all the remaining charges, and the court sentenced him to 34 years' imprisonment. Blackmon I , 146 A.3d at 1077.
On January 10, 2017, appellant filed his § 23-110 motion, asserting that he received ineffective assistance of counsel from Mr. Downs. On November 17, 2017, Judge Anderson held an evidentiary hearing on the motion. The court denied the motion on January 11, 2018, concluding that appellant "was not prejudiced by Mr. Downs' deficient advice."
Announcing its ruling from the bench, the court explained that it was "hard ... to say" whether it would have accepted a Super. Ct. Crim. R. 11(e)(1)(C) plea, but "assume[d], for the purposes of [appellant's] motion, that [it] would have" done so given that it "typically defers to seasoned prosecutors and ... defense lawyers who have negotiated a plea." The court viewed the issue as whether appellant "would have taken the plea."3
The court began its analysis by recognizing that "a higher sentence [after a second trial] gives rise to a presumption of vindictiveness for having exercised appellate rights ...." See infra n.6. Stating that it was not aware of any new information that would have justified a more severe sentence than was imposed after appellant's first trial, the court found that appellant faced only a "remote possibility" of a sentence exceeding 34 years. The court found that appellant had not established "a reasonable probability that had he been correctly advised about the remote possibility of a sentence in excess of 34 years, this would have caused him to accept the 25-year plea offer."
The court then explained that what was "more important[ ]" in resolving appellant's motion was appellant's demeanor at the hearing and statements he made insisting on his innocence.4 The court observed that during the hearing, appellant had "hemmed and hawed, sighed, [and] took a long time answering some of the questions." The court went on to describe appellant's insistence at the hearing that he "didn't do this crime"; his lament about "[w]hat happened to the truth"; his protest that "you want me to admit something I didn't do"; his testimony that he was "not going to say [he] raped anyone"; his statements that he never knew in seeking a hearing on his counsel's ineffectiveness that he "had to tell [the court] [he] did something knowing that [he] didn't do it" or that "to plead guilty [he] had to accept guilt" and "admit guilt in order to get the 25 [years]"; and his "continually sa[ying] that he did not do this crime." The court noted that appellant "could not answer the questions" after the prosecutor "read out what would have been the proffer"; instead, he was "sigh[ing]" and "breath[ing] deeply" with his "eyes ... closed."
The court acknowledged that after a break in the hearing, appellant returned and said he "would have pled guilty, even though he wasn't guilty, to get the 25 [years,]" but found that testimony "incredible ... based upon [appellant's] ... demeanor ... in court." Citing its general practice in serious cases of asking the defendant "to put into his own words what happened" if the court sees any kind of hesitation, the court noted that when it asked this of appellant, he was "stymied" and said that he would only "be repeating what [he] heard." All of this, the court reasoned, "prove[d] fatal for the prejudice prong of [appellant's] Lafler claim." The court concluded that "there is no way [appellant] could have gotten through a plea colloquy" and therefore that appellant "was not prejudiced by Mr. Downs' deficient advice." The court also observed that the "record is clear that [appellant] was not extended an Alford5 plea, which would be the only way that he would be allowed to plead guilty without admitting guilt ...."
This appeal followed. Appellant contends that the trial court "erroneously interpreted the Lafler factors." He argues that Lafler "only requires that the trial court be willing to accept the ‘terms’ of the plea agreement [meaning "the reduction in sentence and/or charges that the plea agreement provides"] and "does not address" the matter that the trial court deemed important: "whether the trial court would accept [appellant's] proffered plea of guilty." Appellant argues that the court used an "incorrect legal standard" and thus abused its discretion in treating "acceptance of guilt as a precondition of a finding of prejudice."
"When claiming ineffective assistance of counsel, a defendant must establish that his counsel's performance was deficient and that the deficiency resulted in prejudice." Andrews v. United States , 179 A.3d 279, 293 (D.C. 2018) (citing Strickland v. Washington , 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) ). To show Strickland prejudice, a defendant must show that there is a "reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland , 466 U.S. at 694, 104 S.Ct. 2052. More specifically, and as pertinent here, to show prejudice, a defendant who contends that his counsel's deficient advice caused him to reject a plea offer must "show [that] the outcome of the plea process would have been different with competent advice." Lafler , 566 U.S. at 163, 132 S.Ct. 1376.
This court reviews a trial court's denial of a § 23-110 motion for abuse of discretion. Gardner v. United States , 140 A.3d 1172, 1195 (D.C. 2016). We assess the trial court's findings of fact for clear error and its determinations on questions of law de novo . Id.
As in Lafler , "[t]he instant case comes to the [c]ourt with the concession...
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