Hunter v. U.S., 86-1683.

• Decision Date: 14 October 1988
• Docket Number: No. 86-1683.,86-1683.
• Parties: James HUNTER, Appellant, v. UNITED STATES, Appellee.
• Court: D.C. Court of Appeals

Page 806

548 A.2d 806

James HUNTER, Appellant, v. UNITED STATES, Appellee.

No. 86-1683.

District of Columbia Court of Appeals.

Submitted July 1, 1988.

Decided October 14, 1988.

Elaine Mittleman, Falls Church, Va., was on the brief for appellant.

Jay B. Stephens, U.S. Atty., Michael W. Farrell, Elizabeth Trosman, Thomas J. Motley and Roberto Iraola, Asst. U.S. Attys., Washington, D.C., were on the brief for appellee.

Before FERREN, ROGERS and STEADMAN, Associate Judges.

ROGERS, Associate Judge:

Appellant James Hunter appeals from the denial of his presentence motion to withdraw his guilty plea under Super.Ct. Cr im.R. 32(e) to voluntary manslaughter while armed. He contends that the trial court abused its discretion since the court failed during the Super.Ct.Crim.R. 11 inquiry to make a proper determination of appellant's competence to plead and there were fair and just reasons to allow withdrawal of his plea. Because the trial court improperly ignored evidence bearing on appellant's competence to enter a guilty plea, we reverse and remand to the trial court for further proceedings.

I.

On June 12, 1986, appellant entered a guilty plea to voluntary manslaughter while armed. D.C.Code §§ 22-2405, -3202 (1981). He appeared two more times before the trial court: on August 8, 1986, when he decided to keep to his guilty plea, and on November 13, 1986, when his motion to withdraw his guilty plea was denied. Thee facts concerning appellant's three appearances are as follows:

On June 12, 1986, after the government had completed its proffer,¹ the trial judge questioned appellant about the shooting incident. Appellant acknowledged that he had been involved in a verbal exchange with the decedent (Brown) and stated that three people, Brown and two men, had approached him, causing him to fear they were going to kill him. The judge examined appellant closely on his claimed fear of injury.² When the judge encountered difficulty in communicating with appellant, and concluded that appellant was not at the point at which the court could proceed to take his plea,³ defense counsel⁴ spoke with appellant. Thereafter the judge was able, by leading questions,⁵ to extract from appellant the admission that he had shot the decedent out of anger rather than fear for his life or safety. The judge then proceeded to ask appellant whether he understood the consequences of entering a guilty plea and appellant routinely answered yes.

The judge accepted appellant's plea and scheduled a sentencing hearing for August 6, 1986. Two days before the hearing, appellant's counsel informed the judge that appellant might want to withdraw his plea. The judge postponed the sentencing hearing for two days so appellant and his counsel could confer.

At appellant's second appearance before the judge, on August 8, 1986, the judge placed appellant under oath and he stated that he would "keep the guilty plea." The judge noted, however, that appellant had given a different version of the facts to the probation officer than he had given to the court. Ms. Betsy Biden, a program developer from the Offender Rehabilitation Division of the D.C. Public Defender Service, who appeared in court with appellant and defense counsel, then informed the judge, at the bench with both counsel present, that she expected a psychological evaluation to be performed on appellant would show "severe organic brain damage" due in part to appellant's alcohol abuse. She further stated that she did not believe appellant remembered "from time to time what he says," and that she doubted appellant understood that the testimony he had given at the first plea hearing differed from the information he gave to the probation officer. The judge commented that "if [appellant] doesn't understand those basic things . . . we may have to set aside the plea sua sponte. What are you saying? He is not competent to understand the facts?" The judge observed that she had "a feeling" that "there were some problems with his mental capacity [although] [n]ot to the point of his being incompetent or anything. He is, just let's say, slow."

The judge then questioned appellant who stated that he remembered the date on which the shooting occurred, and he gave a series of yes and no answers to the judge's leading questions about whether he acted out of fear or was simply angry. The judge concluded that appellant's responses "wipe[d] out any self-defense," and set a new sentencing date, allowing six weeks for the completion of a psychological evaluation. Sentencing was again continued, from September 24 to November 13, because the psychological evaluation had not been completed.

The day before appellant's third appearance before the judge, for the sentencing, appellant filed, on November 12, 1986, a motion to withdraw his guilty plea under Super.Ct.Crim.R. 32(e). In the motion he claimed that his plea had not been knowingly and voluntarily made because he had not comprehended the law of self-defense.⁶ He further stated that he had tried to assert his claim of self-defense at his first sentencing hearing, on August 6, 1986, and that he had decided to plead guilty only after "apparent equivocation." At the sentencing hearing on November 13, the judge denied appellant's motion.

In denying appellant's motion to withdraw his guilty plea, the judge stated the following reasons. First, the presentence report indicated that appellant had ten prior convictions (including manslaughter⁷ and several gun charges and excluding convictions for drunken and disorderly conduct), and, hence, appellant was not a stranger to the criminal justice system and was fully capable of understanding, and, further, did in fact understand, the court's explanation of the sentence he could receive. Second, although appellant had been given the opportunity to withdraw his plea on August 8, he had elected, under oath, to keep his plea; indeed, appellant had "clearly . . . admitted" on two occasions that he had not acted in self-defense, and had decided not to assert the defense. The judge noted that she did not know what the psychological evaluation said because she had not received a copy. Third, appellant had told the court under oath that he had committed the offense "in such a way as would be inconsistent with self-defense and, therefore, [appellant's] last-minute assertion of innocence . . . is not anything more but a fear on the part of a man who is 59 or 60 about what this court's sentence is going to be in terms of the rest of his life." Fourth, based on the judge's knowledge of defense counsel, the judge was certain counsel had ably represented appellant.⁸

Appellant then told the judge that he wished to withdraw his guilty plea for several reasons, but that he "couldn't deny that [he] did admit the crime." Appellant said that one reason he wanted to withdraw his plea was because the government said it had several witnesses but no one had picked him out at the lineup and he wanted to see the witnesses in the case. He said that he was going along with the plea because even if he filed a motion to withdraw it, the judge had said she did not have to grant the motion. The judge thereupon told appellant that she did not understand what he was saying, and appellant explained that at his second appearance, when he came for the August 6 hearing, the judge had done all the talking and he had just listened except when he was put under oath and admitted the crime. The judge again said she did not understand, and appellant said "[e]ven if I go to trial, I still wouldn't deny it." Defense counsel then gave the judge the psychological evaluation, commenting that it had not previously been given to the judge because of the possible withdrawal of the plea. The judge passed the case to review the report. When court reconvened, the judge sentenced appellant to twelve to thirty-six years imprisonment for manslaughter while armed.

II.

In reviewing a decision by a trial court to deny a pre-sentence motion to withdraw a guilty plea under Super.Ct.Crim.R. 32(e), we begin by applying the long established test set forth most recently in Gooding v. United States, 529 A.2d 301 (D.C. 1987). This court must determine whether the trial court abused its discretion in denying such a motion where the standard that the trial judge must apply is whether granting the request would seem "fair and just." Gooding, supra, 529 A.2d at 306. Furthermore, the law is long settled that such requests are to be "freely granted." Id. We also examine the trial court's decision in light of certain factors. See id. at 307-11. Looking at those factors, and bearing in mind that no single factor is determinative, we note that, strictly speaking, at least two of the factors support the trial judge's decision. Appellant did not formally move to withdraw his plea until the eve of sentencing, which was five months after he had first pleaded guilty. United States v. Barker, 168 U.S.App.D.C. 312, 326, 514 F.2d 208, 222, cert. denied, 421 U.S. 1013, 95 S.Ct. 2420, 44 L.Ed.2d 682 (1975). Appellant also had competent counsel at all times, and there is nothing to suggest a breakdown in communication such as occurred in Gooding, supra, 529 A.2d at 311.⁹ Yet, as to each of these factors, the record shows that appellant stated his ambivalence about his plea within two months of his initial plea and that defense counsel never successfully conveyed to appellant the effect of a self-defense claim on his guilt or innocence of the charged offenses. Another factor, the assertion of innocence, presents an even more problematic situation.

When appellant initially appeared before the trial judge, he advised the judge, as she acknowledged, that he had acted in fear for his life. Thus, appellant asserted his innocence early, and it was not within the province of the plea-taking judge to decide the merits of his self-defense claim. Gooding, supra, 529 A.2d at 301 (citing Gearhart v. United States, 106...