Johnson v. US, 99-CO-1143.

• Decision Date: 12 December 2002
• Docket Number: No. 99-CO-1143.,99-CO-1143.
• Citation: 812 A.2d 234
• Parties: Danny Lee JOHNSON, Appellant, v. UNITED STATES, Appellee.
• Court: D.C. Court of Appeals

812 A.2d 234

Danny Lee JOHNSON, Appellant, v. UNITED STATES, Appellee.

No. 99-CO-1143.

District of Columbia Court of Appeals.

Argued January 31, 2001.

Decided December 12, 2002.

Jon S. Pascale, appointed by the court, for appellant.

Susan A. Nellor, Assistant United States Attorney, with whom Wilma A. Lewis, United States Attorney at the time the brief was filed, and John R. Fisher, Thomas J. Tourish, Jr., and Carolyn K. Kolben, Assistant United States Attorneys, were on the brief, for appellee.

Before TERRY and WASHINGTON, Associate Judges, and KERN, Senior Judge.

TERRY, Associate Judge:

This is an appeal from the denial of a motion to withdraw a guilty plea. Appellant was charged in a 41-count indictment with crimes committed on seven different dates between April and October 1994. He agreed to plead guilty to nine charges based on those seven incidents. Under the plea agreement, appellant pleaded guilty in March 1996 to three counts of second-degree burglary, two counts of robbery, one count of kidnapping, one count of attempted second-degree burglary, one count of first-degree burglary while armed, and one count of first-degree theft. A few weeks later, the court sentenced him to lengthy terms of imprisonment, including fifteen years to life for kidnapping and fifteen years to life for first-degree burglary while armed. All of the sentences were ordered to run consecutively, except for the first-degree theft sentence of thirty months to ten years, which was to be served concurrently with one of the other sentences.¹ Appellant noted an appeal from his conviction, which this court affirmed in an unpublished memorandum opinion and judgment. Johnson v. United States, No. 96-CO-815 (D.C. July 3, 1997).

In October 1998, more than two and a half years after the guilty plea, new counsel for appellant filed a motion to withdraw that plea, pursuant to Super. Ct.Crim. R. 32(e). The trial court² denied the motion after a hearing, and from that denial appellant has brought this appeal.

Appellant contends that the court erred in refusing to grant his motion to withdraw the guilty plea. He maintains that the judge who accepted his plea violated his rights under the Grand Jury Clause of the Fifth Amendment by allowing him to plead guilty to three charges different from those contained in the indictment. Further, he argues that the government violated the plea agreement by failing to recommend a maximum sentence of fifteen to forty-five years' imprisonment. Finally, appellant claims that his counsel at the plea proceeding rendered ineffective assistance.

We agree that the government impermissibly amended one count of the indictment when it substituted a robbery charge for a charge of assault with intent to rob. We hold, however, that the court's acceptance of that amendment, to which appellant did not object, was not plain error. Finding no infirmity in the other eight convictions and no reason to set aside the otherwise valid plea agreement, we therefore leave undisturbed all nine of appellant's convictions.

I

A. The Guilty Plea

On the day that appellant's trial was set to begin, March 5, 1996, defense counsel advised the court that his client was interested in entering a plea of guilty to some of the charges. Following further discussion about the government's plea offer and the possible sentences, the court summarized the government's position: "So you're basically not—you're reserving allocution, making no promises on what you're going to be requesting?" The prosecutor replied, "Right."

The prosecutor then outlined a new plea offer under which appellant would plead guilty to nine offenses, as charged in nine of the forty-one counts of the indictment.³ The court clarified the nine counts and stated the maximum and mandatory minimum sentences, as appropriate, for each offense. Yet again the court reminded defense counsel that there were "no promises on the part of the government about [the sentences'] being anything but consecutive to each other or consecutive to the Maryland sentence."⁴ The prosecutor stated, however, that the government was prepared to withdraw the "life papers" that it had filed if appellant agreed to this new and final plea offer. After a short recess, defense counsel told the court that his client wished to accept the offer and plead guilty.

The court placed appellant under oath and began a thorough Rule 11 inquiry, during which the court made it very clear that every term of the plea agreement needed to be understood so that the matter could not be revisited at a later date. "[Y]ou can't come back in a day or two and say, hey, you know, I didn't understand it, I thought that this was involved or that was involved. This is it. This is your chance."

The court then asked the prosecutor to summarize the evidence relating to each of the nine counts that were the subject of the plea agreement. The court explained to appellant:

Now, those are the charges that you would be pleading to. And the government would . . . dismiss the other counts in the indictment. They're reserving. . . allocution . . . which means reserving the right to make recommendations to the court as to what should happen to you at your sentencing. Your counsel can address the court as well, and you can. And the court makes an independent decision. But I want you to understand that they also can make recommendations as well.

Appellant repeatedly said that he understood the plea agreement and the reservation of allocution, and that he did not have any questions. For the most part, appellant either agreed with the government's proffered evidence or stated more facts that supported the charges. There were, however, two exceptions.

First, appellant disagreed with the proffer as it related to the charge of assault with intent to rob on August 9. He claimed that he "never touched anyone. I never called anyone no foul names or anything like [that]." Essentially, appellant admitted entering the home of Tyler Jugg and Kathleen Lavery, as well as kidnapping Ms. Lavery by tying her up (one of the charges included in the plea offer), but he denied assaulting Mr. Jugg. He did admit, however, that his accomplice, Jeffrey Long, wrestled with Mr. Jugg, and that when he (appellant) heard this scuffle, he assisted Mr. Long by tying up Ms. Lavery while Long tied up Jugg. Appellant then took an ATM card and $32 in cash from Jugg's wallet, along with some jewelry and other items from the house.⁵

While expressing some skepticism about appellant's account of the crime, the prosecutor proposed to amend the plea offer so that appellant would plead guilty to a charge of robbery of Mr. Jugg, rather than assault with intent to commit robbery. The court agreed that the charge could be changed to robbery because the penalty for that crime was the same as for assault with intent to commit robbery, i.e., at least two and not more than fifteen years' imprisonment, and because appellant's account of his role in the crime included all the elements of robbery. Appellant agreed to this change.

Appellant also challenged the government's plea offer of robbery and first-degree burglary stemming from the incident on October 4, 1994.⁶ The indictment stated that appellant had entered the home of Stewart Newell, Susan Morris, and their daughter Kimberly Newell with the intent to steal. The prosecutor said that appellant bound and gagged Kimberly Newell and then stole $8,000 worth of property. He added that appellant demanded Ms. Newell's ATM card and personal identification number (PIN) and later withdrew $1,050 from her bank account. Appellant claimed, however, that his accomplice, Mr. Long, was the one who entered the home and obtained the ATM card and the PIN. Appellant's only role in the crime, he insisted, was in taking the ATM card and withdrawing the cash from the bank.

Faced with appellant's version of the facts, the court said:

Well, let's be frank. We don't have. . . enough to plead on this [burglary] count. So on neither one—I think it's too weak on the aider and abetter as a robbery, and I think certainly he doesn't have a burglary in the first degree. I mean he's not a lookout, he's nothing.

The prosecutor offered to amend the plea agreement so that Mr. Johnson could plead guilty to first-degree theft for stealing the money with the ATM card,⁷ and to robbery as an aider and abettor of Long's robbery of the ATM card. After a fuller exposition of the events of October 4, the court concluded that the facts as agreed upon encompassed the elements of both first-degree theft and aiding and abetting a robbery. All parties were satisfied with this amendment to the plea agreement.

The court then thoroughly reviewed the plea offer with appellant and ensured that he understood the consequences of pleading guilty to these nine charges. The court also confirmed that appellant was satisfied with his legal representation and the plea offer, and that he was pleading guilty freely and without compulsion. Appellant then proceeded to plead guilty to the nine counts.

B. The Direct Appeal

On direct appeal, appellant presented three claims of error. First, he contended that the kidnapping conviction should merge with the robbery conviction because they both arose from the same August 9 incident. Second, he argued that the sentences imposed by the trial court, which totaled fifty-six years to life, constituted cruel and unusual punishment in violation of the Eighth Amendment. Finally, he maintained that the court erred when it allowed some of the victims to make oral statements at the sentencing hearing about the impact the crimes had had on their lives. This court found all of these arguments without merit and affirmed all of the convictions in July 1997.

C. The Motion to Withdraw the Plea

Almost a year and a half after that affirmance, new counsel for appellant filed a motion to withdraw his guilty plea, arguing that there was a "fatal defect" in the Rule...