Gaston v. United States

• Decision Date: 07 January 1988
• Docket Number: No. 86-1079.,No. 84-1017.,84-1017.,86-1079.
• Parties: Florie GASTON, Appellant, v. UNITED STATES, Appellee.
• Court: D.C. Court of Appeals

Page 893

535 A.2d 893

Florie GASTON, Appellant, v. UNITED STATES, Appellee.

No. 84-1017.

No. 86-1079.

District of Columbia Court of Appeals.

Submitted July 6, 1987.

Decided January 7, 1988.

As Amended on Denial of Rehearing April 7, 1988.

Kenneth Michael Robinson, with whom Dennis M. Hart was on brief, for appellant.

Joseph E. diGenova, U.S. Atty., with whom Michael W. Farrell, Carolyn J. Adams, and David Howard Saffern, Asst. U.S. Attys., were on brief, for appellee.

Before MACK and NEWMAN, Associate Judges, and GALLAGHER, Senior Judge.

MACK, Associate Judge:

Florie Gaston appeals from a judgment of conviction entered upon her plea of guilty to charges of possession with intent to distribute cocaine in violation of D.C. Code § 33-541(a) (1981). Appellant contends that the trial court erred (1) in failing to comply with the requirements of Super. Ct.Crim.R. 11 before accepting her plea, and (2) in refusing to grant her a hearing on her motion made pursuant to D.C. Code § 23-110 (1981). We find, in the circumstances here, that the failure of the trial court to apprise appellant of the maximum sentence provided by law and the applicability of the mandatory minimum sentence, before accepting her plea, is an omission which compels reversal and remand. We also find that the trial court erred in summarily denying appellant's motion to withdraw her guilty plea based on ineffective assistance of counsel and an inadequate Rule 11 inquiry. Were a remand not mandated by our treatment of the issues on direct appeal,¹ we would reverse and remand for a hearing on appellant's § 23-110 motion.²

I

In a four-count indictment appellant was charged with three counts of unlawful possession with intent to distribute phencyclidine (PCP), cocaine, and marijuana and one count of unlawful possession of valium. D.C. Code § 33-541(a)(1) & (d). On May 16, 1984, before Judge Ryan, appellant entered a plea of guilty to unlawful possession of cocaine with intent to distribute.³ At the Rule 11 hearing, the trial judge informed Ms. Gaston that she had a right to trial by jury and a right to present witnesses in her defense, which she was giving up by pleading guilty. The trial court then asked appellant whether any promises had been made to her in exchange for her plea. At this point, the government interrupted to say that it was waiving "stepback" and reserving allocution with the exception that "we will not dispute any evidence by the defense that the defendant is eligible for the addict exception.⁴ a The court then attempted to clarify to appellant the nature of the government's promise, stating: "although they have retained the right to speak at the time of sentencing, they will not contest any evidence that you may have, that would make you eligible for the addict exception." The court also ascertained that no other promises or threats had been made to appellant, that she was not under the influence of narcotics at the time of entering the plea, and that she was satisfied with her attorney. The court thereafter determined her plea valid and voluntary.

At the sentencing hearing, appellant's counsel strongly argued that Ms. Gatson should be sentenced under the narcotic addict exception, stressing appellant's age, her poor health, and her extensive reliance on marijuana and cocaine following diminished relief from over-the-counter painkillers, which she had been taking for years. Despite the government's pledge not to contest the evidence that Ms. Gaston qualified under the addict exception, the government then stated: "Your Honor, the addict exception applies only to addiction to a narcotic controlled substance. Cocaine, marijuana and alcohol, none are narcotic controlled substances, therefore, the mandatory minimum would apply." Thereafter, the court concluded: "The legislature has spoken. Twenty months to five years. That's it."

Ms. Gaston noted an appeal from the judgment, and also filed a motion to withdraw her plea and vacate sentence pursuant to Super.Ct.Crim.R. 32(e) and D.C. Code § 23-110. Upon appellant's request, her direct appeal was held in abeyance until the trial court ruled on her collateral attack upon her guilty plea. Some eighteen months later, Judge Hannon denied, without benefit of a hearing, appellant's motion collaterally attacking her plea. After appellant noted her appeal from the denial of her motion to withdraw her plea, the two appeals were consolidated.

II

Superior Court Criminal Rule No. 11 requires the trial court to apprise the defendant of the maximum sentence provided by law and any mandatory minimum sentence before accepting a plea. Specifically, Rule 11(c)(1) states:

ADVICE TO DEFENDANT. Before accepting a plea of guilty or nolo contendere, the Court must address the defendant personally in open court and inform him of, and determine that he understands, the following:

(1) The nature of the charge to which the plea is offered, the mandatory minimum penalty provided by the law, if any, and the maximum possible penalty provided by the law . . . (emphasis added).

The trial court here did not comply with Rule 11(c)(1). It completely failed to apprise Ms. Gaston of the fact that she would be subject to the mandatory minimum and did not inform her of the maximum sentence provided by law. In fact, there was no discussion of her potential sentence whatsoever.⁵

Brady v. United States, 397 U.S. 742, 90 S.Ct. 1463, 25 L.Ed.2d 747 (1970) established the proposition that a defendant must know the direct consequences of a plea before he can plead intelligently. Consequences are direct when they have a definite and immediate effect on the range of defendant's punishment. Cuthrell v. Director, 475 F.2d 1364, 1365 (4th Cir.), cert. denied, 414 U.S. 1005, 94 S.Ct. 362, 38 L.Ed.2d 241 (1973). The government agrees that one of the "core concerns" the trial court must address when conducting a Rule 11 inquiry is whether he or she comprehends the direct consequences of the plea. See McCarthy v. United States, 394 U.S. 459, 466-67, 89 S.Ct. 1166, 1170-71, 22 L.Ed.2d 418 (1969). In failing to ascertain whether or not Ms. Gaston knew the direct consequences of her plea — to wit, a mandatory minimum stay in prison of twenty months to five years — the trial court clearly failed to address a core concern of Rule 11.⁶

We note that recent federal decisions have strictly construed the federal equivalent of Rule 11. "`The policies behind Rule 11 are important and should be strictly enforced. . . .'" United States v. Gonzalez, 820 F.2d 575, 578 (2d Cir. 1987) (quoting Del Vecchio v. United States, 556 F.2d 106, 109 (2nd Cir. 1977)). "`In reviewing a district court's compliance with Rule 11, we can no longer accept as sufficient general statements or inquiries by the district judge on the theory that when construed in the light of surrounding circumstances they meet the rule's requirements. We now hold that, as a minimum, before accepting a guilty plea each district judge must personally inform the defendant of each and every right and other matter set out in Rule 11. Otherwise the plea must be treated as a nullity.'" Id. (quoting United States v. Journet, 544 F.2d 633, 636 (2d Cir. 1976)).

The significance of understanding the consequence of entering a plea has likewise been stressed by this court. In Hicks v. United States, 362 A.2d 111 (D.C. 1976), appellant, charged with one count of prison breach, argued that the trial court's failure to inform him of the consequences of his plea rendered his plea invalid under Rule 11. The court stated "we have no doubt that before accepting a plea of guilty the court should make certain the defendant understands that when sentence is ultimately imposed upon that plea the sentence must be consecutive to the sentence then being served. Our conclusion rests upon the facts that (a) Rule 11 expressly requires an `understanding of . . . the consequences of the plea' and (b) the mandatory consecutive nature of a sentence under this statute, which prevents the trial court from exercising discretion to impose a concurrent sentence, is a significant consequence of entering a plea." Id. at 113 (citations omitted). Hicks was, however, a postconviction collateral attack, and under the "manifest injustice" standard of Rule 32(e), the court found no showing of prejudice to the defendant and no abuse of discretion in the trial court's refusal to set aside the judgment. The court based its finding on the fact that at the time he entered his plea, appellant conceded through his attorney that he understood the maximum penalty was five years. Since the penalty he in fact received was one to three years consecutive to the prior sentence, so that the total time of imprisonment appellant had to serve did not substantially exceed the maximum appellant was aware he might be required to serve, the court found reversal not required.

In contrast, the appeal before us is a direct appeal. The Supreme Court has found on direct appeal that "prejudice inheres in a failure to comply with Rule 11," McCarthy v. United States, supra, 394 U.S. at 471, 89 S.Ct. at 1173. Cf. United States v. Timmreck, 441 U.S. 780, 784, 99 S.Ct. 2085, 2087, 60 L.Ed.2d 634 (1979) (no basis for allowing collateral attack, brought two years after sentence, "to do service for appeal"). See also United States v. Watson, 179 U.S. App.D.C. 103, 548 F.2d 1058 (1977) (greater showing of injustice is necessary to obtain relief on motion to vacate sentence than is requisite on direct appeal). Moreover, unlike the situation in Hicks, the missing information at issue in the instant case was not simply whether a sentence was to be served consecutively. Appellant was not advised of the most basic information, the amount of time she would have to serve under the mandatory minimum and the maximum possible sentence. This case is also different from Hicks in two other basic respects. There is no evidence in this record indicating actual knowledge of...