In re Bethea

• Decision Date: 28 September 2017
• Docket Number: No. 16-CO-295.,16-CO-295.
• Citation: 170 A.3d 192
• Parties: Venlonte V. BETHEA, Appellant, v. UNITED STATES, Appellee.
• Court: D.C. Court of Appeals

170 A.3d 192

Venlonte V. BETHEA, Appellant,

v.UNITED STATES, Appellee.

No. 16-CO-295.

District of Columbia Court of Appeals.

Submitted June 20, 2017

Decided September 28, 2017

Richard S. Stolker was on the brief for appellant.

Channing D. Phillips, United States Attorney at the time the brief was filed, Elizabeth Trosman, Chrisellen R. Kolb, and Michael E. McGovern, Assistant United States Attorneys, were on the brief for appellee.

Before Glickman, Thompson, and Easterly, Associate Judges.

Opinion for the court by Associate Judge Easterly.

Dissenting opinion by Associate Judge Thompson, at page 196.

Easterly, Associate Judge:

Appellant Venlonte V. Bethea appeals the Superior Court's order denying his motion under D.C. Code § 23–110 (2001)—alleging that he received ineffective assistance of counsel (IAC) at trial—without a hearing. Because we conclude that our well established presumption in favor of holding a hearing on all § 23–110 motions has not been rebutted, we reverse and remand for a hearing on his IAC claim.

I.

Mr. Bethea was convicted by a jury of conspiracy to commit murder; four counts of assault with intent to kill while armed; second-degree murder while armed; possession of a firearm during a crime of violence; carrying a pistol without a license; and carrying a dangerous weapon. Bethea v. United States , No. 04–CF–120, Mem. Op. & J. at 1, 2 A.3d 1093 (D.C. Aug. 9, 2010). On direct appeal, this court affirmed all of his convictions. Id. Mr. Bethea also sought to collaterally challenge his convictions by filing a § 23–110 motion in which he alleged that he possessed newly-discovered, exculpatory evidence and that his trial counsel had provided him with ineffective assistance.¹ But, because this motion was filed prior to Mr. Bethea's sentencing in 2004, the trial court ruled it was not yet ripe and dismissed it.² Post-trial counsel did not re-file the § 23–110 motion after sentencing. Mr. Bethea was appointed appellate counsel in 2004; appellate counsel moved in 2009 (but still during the pendency of Mr. Bethea's appeal) to "adopt" the previously dismissed § 23–110 motion and to "issue stay [sic] pending further investigation and the possible filing of a supplement to the ineffective assistance motion."³ Appellate counsel never filed a supplement, never moved to lift the stay, and never obtained a ruling on this motion. In 2015, post-trial counsel, whom the trial court reinstated for reasons not reflected in the record, filed the § 23–110 motion that is the subject of this appeal, apparently reiterating the same claims as were raised in the previously filed motions.⁴

The trial court denied Mr. Bethea's § 23–110 motion without a hearing. While acknowledging that there is a presumption in favor of holding a hearing on all § 23–110 motions, see Ramsey v. United States , 569 A.2d 142, 147 (D.C. 1990), the trial court determined that Mr. Bethea's motion fell within the narrow exception that allows a trial court to rule on a motion summarily if it finds "that under no circumstances could the petitioner establish facts warranting relief." Pettaway v. United States , 390 A.2d 981, 983–94 (D.C. 1978). As the trial court noted, this exception encompasses three categories of claims: those that "(1) are palpably incredible; (2) are vague and conclusory; or (3) even if true, do not entitle the movant to relief." White v. United States , 146 A.3d 101, 109 (D.C. 2016) (quoting Hardy v. United States , 988 A.2d 950, 961 (D.C. 2010) ). The trial court placed this case into the third category, determining that "defendant's claim would warrant no relief even if it were true."⁵

We review a trial court's decision to deny a § 23–110 petition without hearing for abuse of discretion. Lane v. United States , 737 A.2d 541, 548 (D.C. 1999) ; see also Bellinger v. United States , 127 A.3d 505, 514–15 (D.C. 2015) ("While the decision whether to hold an evidentiary hearing on a § 23–110 collateral challenge to the constitutionality of a conviction is committed to the trial court's discretion, the extent of that discretion is quite narrow." (internal quotation marks omitted)). Although the trial court identified a legitimate ground for denying a § 23–110 petitioner a hearing—namely, that appellant's claim would warrant no relief even if it were true—we conclude that the trial court here abused its discretion by denying the petition summarily.

The trial court began its analysis by assessing the likely prejudice that Mr. Bethea suffered from his trial counsel's failure to call David Norwood, a witness who—according to the § 23–110 motion and the affidavit of Mr. Norwood (attached to the § 23–110 motion)—would have significantly impeached Wendy Barksdale, a key government witness at trial.⁶ Ms. Barksdale claimed to have seen the shooting from the window of Mr. Norwood's apartment, and she testified that, from this vantage point, she had "no doubt" that she had seen "[Mr.] Bethea fire a gun into the driver's side window of a car." Bethea , No. 04–CF–120, Mem. Op. & J. at 2. Mr. Norwood stated in his affidavit, however, that Ms. Barksdale could not have been watching from the window of his home. Mr. Norwood elaborated that, on the day of the murder, he "left home at approximately 7:00 AM and return[ed] to [his] home at 7:00 PM" and "[t]here is no way physically possible for Ms. Wendy Barksdale or [him] to have been in [his] residence during the hours specified."⁷

The court assumed, without explanation, that Mr. Norwood's testimony would have been as "vague" and "devoid of practically any detail[ ]" as his affidavit. Preliminarily, we view Mr. Norwood's affidavit differently. Although it does not say it explicitly, this affidavit clearly implies that Ms. Barksdale was not at his home when he left in the morning nor when he returned in the evening, that he locked the door to his residence, that Ms. Barksdale did not have a key, and that he had no reason to believe Ms. Barksdale had any other means of accessing his home. This much can be readily inferred from Mr. Norwood's clear statement that "[t]here is no way physically possible for Ms. Wendy Barksdale ... to have been at [his] residence ...." Moreover, in making the assumption that Mr. Norwood's testimony would have mirrored his affidavit, the trial court failed to recognize that, at a hearing, Mr. Norwood would be questioned by counsel for both Mr. Bethea and the government, and his assertions in his affidavit could be expanded upon—and, further, that he might not be the only witness called to testify. (It seems likely that Mr. Bethea and/or his trial counsel, would also have testified at a § 23–110 hearing, as Mr. Bethea's IAC claims make relevant both his communications with his trial counsel and any investigation by counsel related to Mr. Norwood.) By making assumptions about what testimony would be elicited and then assessing Mr. Bethea's underlying Strickland claim in light of those assumptions, the trial court conflated the procedural question of whether there is a reason to deny petitioner a hearing on his motion with the distinct merits question of whether the petitioner's claims warrant relief (once all evidentiary questions have been resolved, typically through a hearing).

Separating the procedural question from the merits question, we conclude that the presumption in favor of granting Mr. Bethea a hearing was not rebutted. Mr. Norwood's affidavit alleged specific facts that indicate that counsel provided ineffective assistance by failing to call a witness who could have testified that the government's sole eyewitness to the murder could not have seen what she said she saw. Accordingly, it cannot be said that "under no circumstances could [Mr. Bethea] establish facts warranting relief." Ramsey , 569 A.2d at 147.

Because we conclude that the presumption in favor of holding a hearing on claims brought under § 23–110 has not been rebutted, we reverse and remand for further proceedings consistent with this opinion.

So ordered.

Thompson, Associate Judge, dissenting:

As the majority opinion acknowledges, this court reviews a trial court's decision to deny a D.C. Code § 23–110 motion without a hearing for abuse of discretion. I am unable to join my colleagues in reversing the judgment denying appellant's motion without a hearing because I cannot conclude in good conscience that, on the record that was before him, Judge Iscoe erroneously exercised his discretion in determining that no hearing was warranted.

To briefly recap the facts, in February 2002, a jury convicted appellant of conspiracy to commit murder, second-degree murder while armed, multiple counts of assault with intent to kill while armed, and other offenses, all based on an incident that occurred "[s]ometime after 6:00 p.m." on September 21, 1998 (the "incident"). On January 8, 2004, before he had been sentenced, appellant filed a motion for a new trial based in part on a claim of ineffective assistance of counsel. The Superior Court judge who had presided over appellant's trial denied the motion as not yet ripe. Appellant was subsequently sentenced and filed a direct appeal, and this court affirmed his convictions. In July 2009, during the pendency of appellant's direct appeal, Judge Iscoe, to whom the case had been transferred, granted leave for appellant to adopt his January 8, 2004, motion and, at appellant's request, stayed consideration of that motion "pending further investigation and the possible filing of a supplement." Over six years later, in August 2015, appellant filed a second (almost identical) motion pursuant to D.C. Code § 23–110 for a new trial based on ineffective assistance of counsel and newly discovered evidence, attaching the same 2002 affidavit of David Norwood and unsworn statement (purportedly from Norwood) he had attached to his 2004 motion.

In his August 2015 motion, appellant asserted that he had "specifically asked [his] trial counsel" to call Norwood as a witness at trial. Appellant argued that...