Johnson v. United States, 11468.

Citation385 A.2d 742
Decision Date29 March 1978
Docket NumberNo. 11468.,No. 12492.,11468.,12492.
PartiesJimmy JOHNSON, Appellant, v. UNITED STATES, Appellee.
CourtD.C. Court of Appeals

John E. Kirby, Washington, D. C., for appellant.

Richard C. Otto, Asst. U.S. Atty., Washington, D. C., with whom Earl J. Silbert, U.S. Atty., John A. Terry, Peter E. George and Timothy J. Reardon, Asst. U.S. Attys., Washington, D. C., were on the brief, for appellee.

Before NEBEKER, YEAGLEY and FERREN, Associate Judges.

NEBEKER, Associate Judge:

Appellant was convicted of taking indecent liberties with and enticing a minor. D.C.Code 1973, §§ 22-3501(a), -3501(b). During the pendency of his appeal from those convictions, in which he asserts that he was denied the effective assistance of trial counsel, appellant filed a motion in the trial court for a new trial alleging, again, that the conviction was incurred without the effective assistance of counsel. That motion was denied without a hearing, and an appeal was noted. The two appeals are here consolidated. We reverse the denial of the post-judgment motion and remand the consolidated cases.

In his post-judgment motion, appellant alleged, with proper supporting affidavits, that trial counsel never consulted with him between arraignment on the charges and the day of trial; that trial counsel never discussed with him the possibility of the use of character witnesses in his defense and that such witnesses existed; that trial counsel never advised him that if he took the stand in his defense, as he did, his prior convictions could be used to impeach him; that trial counsel never discussed with him the substance of the testimony that appellant would give in his defense; that trial counsel never had any contact with the physician who examined the victim in this case; and that that physician would have testified, had he appeared at trial, that in his opinion the incidents alleged by the victim could not have occurred.

The government submitted affidavits in opposition to appellant's motion which contradicted appellant's assertions in most if not all respects. The motions judge, who was also the trial judge in this case, entered the following order:

Based upon a consideration of the pleadings and the Court's own recollection of the proceedings in connection with the above-captioned case, the Court finds that the sum total of the defendant's representation was constitutionally adequate. The defendant has not carried the heavy burden of demonstrating ineffective assistance of counsel under [the relevant legal standards].

Although the post-judgment motion in this case was styled a motion for a new trial, the parties are agreed that the relevant criteria for the determination upon the necessity of a hearing are contained in D.C. Code 1973, § 23-110. For while the trial court is divested of jurisdiction to grant a new trial motion filed pending appeal, Smith v. Pollin, 90 U.S.App.D.C. 178, 194 F.2d 349 (1952), the Superior Court always has jurisdiction to entertain such a motion or a motion for vacation of an illegally imposed sentence. Id.; D.C.Code 1973, § 23-110; Womack v. United States, 129 U.S.App.D.C. 407, 395 F.2d 630 (1968). If, therefore, an appellant has pending appeal, moved the trial court for a new trial, where the grounds asserted in the motion would be cognizable under D.C.Code 1973, § 23-110, and where the government's remedy upon vacation of the sentence under the statute would be a new trial, then a motion for a new trial should be considered as a motion under the statute. Both conditions are met in this case since a sentence imposed as the result of a conviction incurred without the effective assistance of counsel is illegal and the government's remedy for vacation of the sentence is a new trial.

The policy considerations discussed in Womack v. United States, supra, which persuaded that court that a motion to vacate an illegally imposed sentence is not appropriate to be entertained in the trial court pending direct appeal, are not applicable to a case such as this. In Womack the motion to vacate alleged a denial of due process based upon asserted in-trial error, error which in most cases will be sufficiently delineated in the record on direct appeal; in the unusual case that requires remand for amplification of the record, the court noted, remand is always available. Where, however, an appellant alleges that the representation of his trial counsel was ineffective, the record on direct appeal is ordinarily barren of the evidentiary facts which would either confirm or refute that allegation. In the instant case, for...

To continue reading

Request your trial
21 cases
  • Diamen v. US
    • United States
    • D.C. Court of Appeals
    • February 25, 1999
    ...averred that Jennings implicitly did so. 12. Neither Head v. United States, 489 A.2d 450-51 & n. 1 (D.C.1985) nor Johnson v. United States, 385 A.2d 742, 743 (D.C.1978) decides the issue here presented. See, e.g., District of Columbia v. Sierra Club, 670 A.2d 354, 360 (D.C.1996) ("the rule ......
  • Junior v. US, 88-CF-1577
    • United States
    • D.C. Court of Appeals
    • November 29, 1993
    ...pursuant to Rule 33 rather than § 23-110) and (Vincent) Johnson, supra, 585 A.2d at 769 n. 3 (same) with (Jimmy) Johnson v. United States, 385 A.2d 742, 743 (D.C.1978) (post-judgment motion for new trial properly treated as § 23-110 motion). Since appellant's letter, treated by the trial ju......
  • Thomas v. United States
    • United States
    • D.C. Court of Appeals
    • April 12, 2012
    ...on appellant “adequately to allege facts which, if demonstrated, would establish ineffective assistance of counsel.” Johnson v. United States, 385 A.2d 742, 744 (D.C.1978) (footnote citation omitted). However, “a hearing is unnecessary when the motion contains only ‘(1) vague and conclusory......
  • Glass v. United States
    • United States
    • D.C. Court of Appeals
    • November 16, 1978
    ...had a few occasions to consider this type of issue, Gibson v. United States, D.C.App., 388 A.2d 1214 (1978); Johnson v. United States, D.C.App., 385 A.2d 742 (1978); Session v. United States, supra. In Gibson, supra at 1216, we noted that "because § 23-110 is a remedy of virtually last reso......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT