Hockaday v. United States, 8567.

• Decision Date: 11 June 1976
• Docket Number: No. 8567.,8567.
• Citation: 359 A.2d 146
• Parties: George A. HOCKADAY, Appellant, v. UNITED STATES, Appellee.
• Court: D.C. Court of Appeals

359 A.2d 146

George A. HOCKADAY, Appellant, v. UNITED STATES, Appellee.

No. 8567.

District of Columbia Court of Appeals.

Argued October 16, 1975.

Decided June 11, 1976.

Melvin M. Feldman, Washington D. C., appointed by this court, for appellant.

Gerald F. Treanor, Jr., Asst. U. S. Atty., Washington D. C. with whom Earl J. Silbert, U. S. Atty. and John A. Terry, Stuart M. Gerson, and Alexia Morrison, Asst. U. S. Attys., Washington D. C., were on the brief, for appellee.

Before YEAGLEY, HARRIS, and MACK, Associate Judges.

HARRIS, Associate Judge:

Appellant was arrested in a ladies' bathroom at the Whitelaw Hotel and charged with unlawful entry, D.C.Code 1973, § 22-3102, possession of the implements of crime, id. § 22-3601, and unlawful possession of marijuana and heroin, id. § 33-402.¹ A jury found appellant guilty on all four counts, but the trial court vacated the conviction for unlawful entry. Appellant was sentenced to consecutive one-year terms of imprisonment on each of the remaining three offenses, but execution of the sentences was suspended conditioned upon appellant's participation in the Last Renaissance drug addict rehabilitation program.

Appellant raises several issues. Only two merit discussion. Appellant principally argues: (1) that the trial court erred in failing to give meaningful consideration to appellant's in-trial proffer of guilty pleas to two of the four charges against him, and (2) that error occurred when the trial court imposed sentence on appellant in the absence of his counsel. We agree with both contentions.

I

Appellant's trial commenced at 3:20 p. m. on Friday, February 1, 1974. The court disposed of certain preliminary matters, and the case was recessed until the following Monday.²

The trial resumed at 11:40 a. m. on Monday morning. A luncheon recess was called at 12:30 p. m. Court convened again at 2:20 p. m. Defense counsel then advised the court of his client's decision to enter a plea of guilty to two of the four charges against him. The following colloquy took place:

[DEFENSE COUNSEL]: Your Honor, one further thing. My client — There will be a disposition at this time. My client advised me that he is willing to enter a plea at the present time to the count of unlawful entry and also the count of possession of marijuana.

THE COURT: Mr. Hockaday, you may stand.

I'm not so sure I ought to take this plea. Are you sure you want to dispose of it in this courtroom, Mr. [Defense Counsel]?

[DEFENSE COUNSEL]: Can I confer with my client to see?

THE COURT: Yes, sir.

Mr. [Defense Counsel], I'm not going to even ask the Government if they agree. This trial has been too much trouble. I'd rather it proceed. Be seated.³

The trial resumed, and appellant was convicted on all four counts. The trial court's only further reference to the proffered plea came after the jury had rendered its verdicts. The court then addressed appellant as follows:

THE COURT: * * * The Court would not take your plea of guilty after trial had commenced for you protection, for the protection of your lawyer and the protection of the judge. Not that I feel I need any protection. But because of the way in which this trial had commenced and the tangents it was apparently taking, the Court thought it best to let the jury have the whole case and, finally, the last word.

It is true that the decison whether to accept or reject a guilty plea is lodged in the discretion of the trial court. Griffin v. United States, 132 U.S.App.D.C. 108, 110, 405 F.2d 1378, 1380 (1968); McCoy v. United States, 124 U.S.App.D.C. 177, 178, 363 F.2d 306, 307 (1966). Nonetheless, the exercise of that discretion is circumscribed by the nature of the trial judge's role in the plea bargaining process.⁴ We agree that "the [trial] court does not have primary responsibility, but rather the role of guarding against abuse of prosecutorial discretion." United States v. Ammidown, 162 U.S.App.D.C. 28, 33, 497 F.2d 615, 620 (1973). Thus, where, as here, a disposition has been agreed upon by both the defendant and the government, the trial court must identify good reasons for a departure from following that course. If no proper cause exists to vitiate the plea, the trial court is obliged to accept it. See United States v. Ammidown, supra; United States v. Gaskins, 158 U.S.App.D.C. 267, 485 F.2d 1046 (1973); Griffin v. United States, supra; McCoy v. United States, supra; cf. United States v. Canty, 422 F.2d 358, 359 (4th Cir. 1970), cert. denied, 409 U.S. 987, 93 S.Ct. 343, 34 L.Ed.2d 254 (1972).

In light of these well-established limitations on the exercise of the trial court's discretion to reject a bargained plea, the blanket refusal to hear from either side concerning the proffered plea an abuse of discretion.⁵ The judge's apparent belief that the trial had been "too much trouble" (although it had consumed only two hours and 15 minutes of court time to that point) presents an inadequate justification for the perfunctory denial of the prosecutor's prerogative to negotiate a plea bargain and the defendant's right to be heard thereon.⁶

II

Some months after trial, appellant's case came up for sentencing. The sentencing hearing was conducted in two sessions, one in the morning and one in the afternoon of the same day. At the morning session, the trial court afforded both appellant and his counsel an opportunity to speak in mitigation of sentence. The judge then explained that he would offer appellant a choice between imprisonment and treatment for narcotics addiction, but nothing was said as to the length of any period of incarceration. When appellant expressed a preference for treatment, the court passed the case to allow an official from the Last Renaissance program to interview appellant and decide whether he was suitable for the program. The case was recessed at 10:40 a. m.

Consideration of the case resumed at 3:25 p. m. Appellant was present, but his attorney was not.⁷ A representative from Last Renaissance then indicated to the court that it would accept appellant into that program. The trial court immediately imposed consecutive sentences of one year on each of the three counts, but suspended execution thereof provided appellant abided by the rules and regulations of the Last Renaissance program. The court then addressed appellant:

THE COURT: * * * Do you understand, sir?

MR. HOCKADAY: Up to a point. I didn't hear you — you know — three years, but I didn't —

THE COURT: See, you are more interested in the time than you are in getting cured. I hope when you walk out of here you remember that.

MR. HOCKADAY: I am saying I didn't hear you —

THE COURT: If that is true, I will see you again. I said one year on each count to run consecutively. If you mean what you say about being cured, you can forget that. Don't forget it because if you miss it, you have got three years. The alternative gives you a cure or three years.

The government essentially concedes error on this issue. The right to effective assistance of counsel at the sentencing stage of a criminal proceeding is secured by the Constitution. Mempa v. Rhay, 389 U.S. 128, 88 S.Ct. 254, 19 L.Ed. 2d 336 (1967); United States v. Johnson, 155 U.S.App.D.C. 28, 475 F.2d 1297 (1973); Gadsden v. United States, 96 U. S.App.D.C. 162, 165, 223 F.2d 627, 630 (1955). In the face of a constitutional error, reversal is required unless it is shown that the error was harmless beyond a reasonable doubt. Chapman v. California, 386 U.S. 18, 24, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967).

Applying this stringent standard, we cannot say that the absence of trial counsel at the actual moment when the sentences were imposed was harmless to appellant beyond a reasonable doubt. The fact that counsel had been present earlier in the day when alternative dispositions were discussed is not sufficient. To carve out such an exception to the constitutionally guaranteed right of assistance of counsel would improperly open the door to a case-by-case evaluation of the necessity of counsel's presence. The right is too deeply — and properly — embedded in our jurisprudence to sanction such an approach. We share the belief expressed in Gadsden v. United States, supra, that "justice must not only be done but must manifestly be seen to be done . . . ."⁸

Our conclusion that appellant's lack of assistance at the actual sentencing was not harmless is further supported by the circumstances of this case. The record reveals appellant's confusion over the meaning of the sentence, and, given the interlude between the morning and afternoon sessions, it is possible that appellant and his counsel could have reached a further understanding on the sentencing alternatives in the interim. In addition, the trial court had expressed concern regarding appellant's mental stability.⁹ In light of these facts, we are unable to conclude that appellant's final confrontation with the court for the imposition of sentence was so devoid of the dangers which the right to counsel seeks to prevent that the absence of such assistance may be held to have been harmless beyond a reasonable doubt.

In order to correct these errors, on remand the trial court should determine whether appellant wishes to retender his original two pleas of guilty. If he elects to do so, and, after the relevant inquiries are made, the trial court accepts the pleas, appellant should be resentenced in the presence of counsel on the unlawful entry and possession of marijuana convictions.¹⁰ On the other hand, if, as was suggested by appellant's counsel at oral argument, appellant no longer wishes to tender guilty pleas to unlawful entry and possession of marijuana, the trial court should resentence in the presence of counsel on what would then be appellant's three valid convictions, for they otherwise are affirmed.

We are aware of the fact that appellant also is serving a sentence of six-to-20 years on a 1973 conviction of murder. However, we conclude that remand and resentencing...