Gooding v. U.S.

• Citation: 529 A.2d 301
• Decision Date: 10 August 1987
• Docket Number: No. 84-753.,84-753.
• Parties: John H. GOODING, Appellant, v. UNITED STATES, Appellee.
• Court: Court of Appeals of Columbia District

Page 301

529 A.2d 301

John H. GOODING, Appellant, v. UNITED STATES, Appellee.

No. 84-753.

District of Columbia Court of Appeals.

Submitted November 12, 1985.

Decided August 10, 1987.^*

J. Herbie DiFonzo, Washington, D.C., appointed by the court, was on the brief for appellant.

Joseph E. diGenova, U.S. Atty., and Michael W. Farrell, Judith Hetherton, Darryl Jackson, L. Jackson Thomas, and Debra N. Diener, Asst. U.S. Attys., Washington, D.C., were on the brief for appellee.

On Petition for Rehearing

Before PRYOR, Chief Judge, and NEBEKER, MACK, NEWMAN, FERREN, BELSON, TERRY, ROGERS and STEADMAN, Associate Judges.

ORDER

PER CURIAM.

By en banc order filed March 18, 1987, 522 A.2d 887 (D.C. 1987), we granted the petition of the United States to rehear this case en banc; we vacated the opinion of the division reported as Gooding v. United States, 513 A.2d 1320 (D.C. 1986). In its petition, the United States stated:

While we believe, for the reasons stated by Judge Ferren in dissent, id. at 1335-44, that the panel also erred in concluding that the trial court abused its discretion in denying withdrawal of the guilty plea under the "fair and just" standard, we would not seek en banc consideration of this case if the panel had premised its holding solely on that basis. Indeed, we would be satisfied if the panel, on rehearing, were to delete the Rule 11 basis for its holding. However, because of the threatened impact of this "independent ground" of the panel's ruling on scores of convictions based on guilty pleas, long thought to have been final, we believe this case raises "a question of exceptional importance" warranting en banc consideration under D.C.App.R. 40(c)(2).

Upon further consideration, the division has decided to accede to the suggestion of the United States that its opinion be amended and, as amended, reissued, to reflect that its holding is not premised on the ground that appellant's plea of guilty was involuntarily entered under Rule 11. The division today has reissued its opinion as thus amended. Accordingly, the en banc order of March 18, 1987, is vacated.

Before MACK, FERREN and ROGERS, Associate Judges.

MACK, Associate Judge:

We are asked to review the denial, after a hearing, of appellant John H. Gooding's Rule 32(e) motion to withdraw his plea of guilty to kidnapping. In the trial court, appellant argued that his plea was involuntarily entered and that it was fair and just that it be withdrawn. On the record before us, we conclude that withdrawal of the plea should have been permitted as fair and just under the circumstances. We, therefore, reverse and remand so that appellant can have the opportunity to put an asserted coercion defense before a jury.

I

Briefly, the facts surfacing from the government's cursory proffer of evidence at the time of plea show that on April 5, 1982, Lawrence McIntyre was abducted at gunpoint from a street in the District of Columbia. He was taken to an address in Northwest Washington where he was handcuffed and held against his will. McIntyre was subsequently moved to Baltimore, Maryland, and Springfield, Virginia. During his period of incarceration, which lasted until the following day, McIntyre was assaulted with a gun.

According to his testimony at the plea withdrawal hearing, appellant's involvement in this crime began when, for an unrelated purpose, he called at the apartment of his codefendant, Kenneth Bass.¹ After discovering that McIntyre was being held on the premises against his will, appellant nevertheless stayed there in a posture that facilitated the kidnapping. In contrast to Bass, appellant does not appear to have employed either guns or handcuffs. He acted with consideration towards the victim.

The kidnapping of McIntyre was among a series of connected offenses involving two other victims. Bass was the acknowledged principal in all of these crimes.² A third participant has seemingly never been apprehended. Appellant had become acquainted with Bass several years earlier when they served a prison sentence in Butner, North Carolina. Both men, at that time, were members of a religious group known as the Moorish Science Temple of America, to which appellant was introduced by other prisoners.

On November 30, 1983, appellant pled guilty to aiding and abetting Bass in the kidnapping of McIntyre.³ See D.C.Code § 22-2101 (1981). Prior to sentencing, within a few days of its entry, appellant sought to withdraw his guilty plea. New counsel was appointed and on January 30, 1984, the Rule 32(e) withdrawal motion was filed in the trial court. On April 23, 1984, appellant presented testimony that his guilty plea had not been voluntarily entered and that his participation in the McIntyre kidnapping had been coerced by his admittedly violent codefendant. On May 18, 1984, the trial court denied the withdrawal motion and proceeded to sentence appellant to twelve to thirty-six years in prison, all but five years to be suspended, with a five year probation period to follow his release.

II

The backdrop against which any discussion concerning the withdrawal of guilty pleas must be set is the dominance of such dispositions in our criminal justice system. In 1985, guilty pleas accounted for 87.1% of all adult felony convictions and 91.4% of all adult misdemeanor convictions in the Superior Court. THE DIST. OF COLUMBIA GOV'T, INDICES — A STATISTICAL INDEX TO DISTRICT OF COLUMBIA SERVICES 224 (1986). By pleading guilty, an accused surrenders a whole panoply of constitutional rights.⁴ Because the consequences are so grave, Rule 11 lays down stringent procedural requirements regulating the entry of guilty pleas, while Rule 32(e) provides a remedial mechanism for their withdrawal where the interests of justice so require. On appeal, court rigorously scrutinizes both proceedings to ensure that the vast majority of criminal defendants who plead guilty have truly abandoned their constitutional right to a trial with its attendant safeguards.

An accused can successfully move to withdraw a guilty plea under Rule 32(e)⁵ by establishing either of two independent grounds. The first is proven if the defendant shows that there was a fatal defect in the Rule 11 proceeding at which the guilty plea was entered.⁶ Paragraph (d) of Rule 11 obliges the trial court to ensure that "any guilty plea represent a voluntary and intelligent choice among the alternative courses of action open to the defendant," Byrd v. United States, 377 A.2d 400, 404 (D.C. 1977), while paragraph (f) puts an additional obligation on the court to make "such inquiry as shall satisfy it that there is a factual basis for the plea." Failure by the court to meet these Rule 11 standards will require the subsequent grant of a Rule 32(e) withdrawal motion unless it is apparent, under the terms of Rule 11(h), that any variance was purely technical and affects no substantial right in any way.⁷ McCarthy, supra note 4, 394 U.S. at 471-72, 89 S.Ct. at 1173-74; United States v. Barker, 168 U.S.App.D.C. 312, 325-26, 514 F.2d 208, 221-22 (en banc), cert. denied, 421 U.S. 1013, 95 S.Ct. 2420, 44 L.Ed.2d 682 (1975). The strictness of our review of Rule 11 violations is necessary because a guilty plea cannot have the effect of waiving constitutional rights without due process, Johnson v. Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019, 1023, 82 L.Ed. 1461 (1938) (quoted in McCarthy, supra note 4, 394 U.S. at 466, 89 S.Ct. at 1171).

Another way in which an accused can seek to withdraw a guilty plea under Rule 32(e) is by showing, not that the Rule 11 proceeding was defective, but rather that justice demands withdrawal in the circumstances of the individual case. This latter route, understandably, will most frequently be relied upon by defendants whose guilty pleas are not vulnerable to attack for violation of Rule 11. E.g., Gearhart v. United States, 106 U.S.App.D.C. 270, 273-74, 272 F.2d 499, 502-03 (1959). The standard to be applied to these defendants — unlike that applicable to those whose guilty pleas were not shown at the Rule 11 proceeding to be voluntary, intelligent and supported by a factual basis — varies depending on whether the withdrawal motion is brought before or after sentencing. In such cases, a presentence withdrawal motion is regarded much more leniently and should be granted "if for any reason the granting of the privilege seems fair and just." Kercheval v. United States, 274 U.S. 220, 224, 47 S.Ct. 582, 583, 71 L.Ed. 1009 (1927); see also Taylor v. United States, 366 A.2d 444, 447 (D.C. 1976) (per curiam); Jordan v. United States, 350 A.2d 735, 737 (D.C. 1976). On fair and just motions, "[l]eave to withdraw a guilty plea prior to sentencing should be freely allowed." Poole v. United States, 102 U.S. App.D.C. 71, 75, 250 F.2d 396, 400 (1957) (citations omitted). A withdrawal motion which does not establish a Rule 11 violation and is brought after sentencing, however, will prevail only upon a showing of "manifest injustice." Shepard v. United States, 363 A.2d 291, 293 (D.C. 1976); Bettis v. United States, 325 A.2d 190, 195 (D.C. 1974). Whether brought before or after sentence, these motions are addressed to the sound discretion of the trial court and we reverse only upon a showing of abuse of such discretion. Lorimer v. United States, 425 A.2d 1306, 1308 (D.C. 1981) (per curiam).

The fair and just standard, which governs presentence withdrawal motions absent a Rule 11 violation is viewed in light of a number of factors. None of these factors is controlling and the trial court must consider them cumulatively in the context of the individual case. Where the accused asserts, but fails to establish, a Rule 11 violation, the trial court should nonetheless consider the fair and just factors in order to determine whether that alternative standard demands that the withdrawal motion be granted. "We would caution the trial courts that, when faced with a presentencing request for withdrawal of a guilty plea, full...