Byrd v. US, 99-CO-164.

• Decision Date: 06 June 2002
• Docket Number: No. 99-CO-164.,99-CO-164.
• Citation: 801 A.2d 28
• Parties: Robert W. BYRD, Appellant, v. UNITED STATES, Appellee.
• Court: D.C. Court of Appeals

801 A.2d 28

Robert W. BYRD, Appellant, v. UNITED STATES, Appellee.

No. 99-CO-164.

District of Columbia Court of Appeals.

Argued March 14, 2002.

Decided June 6, 2002.

Gregory A. Cotter, Washington, DC, appointed by the court, for appellant.

Jonathan W. Haray, Assistant United States Attorney, for appellee. Roscoe C. Howard, Jr., United States Attorney, and John R. Fisher and Margaret A. Carroll, Assistant United States Attorneys, were on the brief, for appellee.

Before RUIZ and GLICKMAN, Associate Judges, and FERREN, Senior Judge.

FERREN, Senior Judge.

This appeal requires un to remand for resentencing because of the government's failure to honor a plea agreement.

I.

A fifteen-count indictment charged appellant with one count of first-degree murder while armed (premeditated),¹ three counts of possession of a firearm during a crime of violence,² two counts of assault with intent to kill while armed,³ five counts of assaulting a member of the fire department with a dangerous weapon⁴ and two counts each of carrying a pistol without a license⁵ and possession of an unregistered firearm.⁶ Trial began on October 19, 1998. The next day, after the government's opening statement, defense counsel informed the court that there was a possible plea and disclosed the terms of the government's offer. Counsel requested time to discuss the plea offer with appellant before making an opening statement.

After reconvening after recessing two more times, at the request of defense counsel — and some two hours after defense counsel first informed the court of the possible plea — counsel reported that a plea agreement had been reached. Specifically, appellant was willing to plead guilty to one count of first-degree premeditated murder while armed, one count of unarmed assault with intent to kill, four assault on a member of the fire department, and one count of unarmed manslaughter for a homicide unrelated to the other charges. As consideration for the plea, the government would recommend concurrent sentences for the five assault counts, to run consecutively to sentences on the murder and manslaughter counts. The parties agreed that, at sentencing, both the government and appellant would recommended a sentence of thirty years to life for the murder, ten to thirty years for the manslaughter, and five to fifteen years for the assault counts, for an aggregate sentence of forty-five years to life.

The prosecutor did not dispute any term of the agreement as stated by defense counsel. Handwritten on the top of the "Waiver Trial by Jury" form, signed by the parties and the court, is a list of the charges to which appellant was pleading followed by the statement. Parties agree to total sentence of 45 years to life." The court then placed appellant under oath and conduct the colloquy required by Super. Ct.Crim. R. 11. Appellant responded properly to each of the judge's questions, indicating that he knowingly and voluntarily was pleading guilty to each of the charges as stated, that he was satisfied with the services of his attorney, that he had had enough time to think about his decision to plead guilty, that the government's proffers of the facts with respect to each of the offenses were correct, that he understood the charges of the offense to which he was pleading guilty as well as the elements thereof, and that he wished to enter a guilty plea to each of the murder, manslaughter and assault charges. The court accepted the pleas and scheduled sentencing for December 18, 1998.

On November 15, 1998, some three and a half weeks after entering his plea, appellant sent the trial judge a handwritten letter in which he sought to withdraw the guilty pleas. He claimed that he had been under a great deal of pressure at the time he plead guilty and that his attorney had not properly prepared for his defense. Appellant later supplemented this letter with a handwritten pro se motion to withdraw the plea, in which he claimed he had plead guilty in haste after his attorney informed him that an acquittal was unlikely. The trial court appointed new defense counsel and rescheduled sentencing. Counsel filed a supplemental motion to withdraw guilty plea, arguing that leave should be given for withdrawal of the plea because the motion was timely (i.e., before sentencing), appellant was the victim of misidentification, and appellant was under undue pressure to plead guilty. The court denied the motion in a written order dated January 29, 1999, finding that appellant had made "no colourable showing of ineffective assistance" and had not asserted any deficiency in the Rule 11 proceeding.

At sentencing on February 5, 1999, the trial judge reiterated his decision to deny appellant's motion and the reasons therefor, and found that there was no fair or just reason to permit appellant to withdraw his pleas. Thereafter, the prosecutor offered, in relevant part, the following allocution as to sentencing:

The Government understands and is well aware thought we made the plea offer and Mr. Byrd accepted the plea back then, that was then only act of mercy that he actually showed by basically sparing the families of the additional mental misery. We understand that although we've made the plea offer to . . . Mr. Byrd and we are bound by our agreement, the court is not bound by that and ultimately it is the court that makes the final decision with regard to Mr. Byrd and what appropriate sentence should be fashioned in this particular ease. So the Government is asking that the court impose a sentence that reflects the seriousness of this particular offense. And that's all we have to say at this particular point.

The government's allocation failed to mention the forty-five-years-to-life sentence specified by the original plea agreement. Immediately after the allocation, defense counsel asserted that the government had violated its obligation by not bringing the parties' agreement to the court's attention. Counsel argued that this breach supported the motion to withdraw guilty pleas.

The court ruled that the agreement had not been violated because the government had not asked the court to impose a sentence in excess of the amount specified by the parties. The court then imposed a sentence, in the aggregate, of fifty-eight years to life in prison.⁷

II.

Appellant contends that, for two reasons, the trial court abused its discretion in denying the motion to withdraw his guilty pleas. First, he contends, the government violated the plea agreement. Second, he argues, the two hours between the prosecutor's opening statement and the announcement of the plea agreement in open court comprised too short a period for appellant to have agreed — knowingly and voluntarily — to plead guilty, no matter what he said during the Rule 11 colloquy.

"There are two ways in which an accused may successful move to withdraw a guilty plea under Super. Ct.Crim. R. 32(e), one of which is to establish a fatal defect in the Rule 11 proceeding at which the guilty plea was entered," the other to show "that justice demands withdrawal in the circumstances of the individual case." Pattiford v. United States, 700 A.2d 207, 216, (D.C.1997) (internal quotations omitted). When a motion to withdraw is made prior to sentencing, as it was here, the motion should be granted "if for any reason the granting of the privilege seems fair and just." Id. (internal quotations omitted).

A.

Challenging the Rule 11 colloquy, appellant argues that he "went from the absence of a plea offer to the finalizing of a plea agreement in two hours — in a case involving the most serious of charges. . . . [T]he entire consideration process occurred during a compressed period of time in either the courtroom or the stark confines of the dock behind the courtroom. . . . Regardless of wind [appellant] said at the Rule 11 hearing, the circumstances under which the plea agreement was negotiated and finalized permit absolutely no level of comfort or satisfaction that [appellant's] actions were knowing and voluntary." Our summary of the relevant portions of the Rule 11 discussion in Part I above, as well as our review of the entire record, satisfies us that nothing supports a finding of a fatal defect in the Rule 11 colloquy or in the trial judge's finding that appellant was pleading guilty both knowingly and voluntarily. Thus, appellant does not meet the heavy burden of showing that the trial judge abused his discretion in denying appellant's motion to withdraw his guilty plea.

B.

In determining whether withdrawal of a plea agreement would be fair and just, the court applies three factors; whether the defendant has asserted his or her legal innocence, the length of delay between entry of the guilty plea and the defendant's expression of a desire to withdraw it, and whether the defendant had the benefit of competent counsel at all relevant times. Id. And, the "circumstances of the individual case may reveal other factors which will affect the calculation as to withdrawal of the guilty plea under the fair and just standard." Gooding v. United States, 529 A.2d 301, 307 (D.C.1987). None of these factors is controlling; all must be considered cumulatively in determining whether withdrawal of the plea would be "fair and just." Pettiford, 700 A.2d at 216. Whether a defendant has meet the standard is left to the sound discretion of the trial court, and the court's decision will not be disturbed absent an abuse of that discretion. Binion v. United States, 658 A.2d 187, 190 (D.C. 1995); United States v. Cray, 310 U.S.App. D.C. 329, 334, 47 F.3d 1203, 1208 (1995) (holding that, where no Rule 11 error occurred, appellate court "extremely reluctant" to find abuse of discretion in trial court's denial of motion to withdraw guilty plea, and that appellant must meet "extremely heavy burden" to prevail).

As to the first criterion, we note that, in his motion to withdraw guilty plea, appellant asserted his innocence by claiming "that he was...