Long v. United States, s. 98–CF–1088

• Decision Date: 23 January 2014
• Docket Number: 04–CO–1503.,98–CF–1425,Nos. 98–CF–1088,s. 98–CF–1088
• Citation: 83 A.3d 369
• Court: D.C. Court of Appeals
• Parties: Colie L. LONG, Appellant, v. UNITED STATES, Appellee.

83 A.3d 369

Colie L. LONG, Appellant,

v.UNITED STATES, Appellee.

Nos. 98–CF–1088, 98–CF–1425, 04–CO–1503.

District of Columbia Court of Appeals.

Argued April 24, 2013.

Decided Oct. 24, 2013.

Amended Jan. 23, 2014.¹

Sydney J. Hoffmann for appellant.

Suzanne C. Nyland, Assistant United States Attorney, with whom Ronald C. Machen Jr., United States Attorney, and Roy W. McLeese III, Assistant United States Attorney at the time the motion was filed, for the appellee.

Before GLICKMAN, Associate Judge, and BELSON and SCHWELB, Senior Judges.

BELSON, Senior Judge:

Appellant, Colie L. Long, asks this court to recall the mandate it issued in 2006 after the resolution of his direct appeal in Long v. United States, 910 A.2d 298 (D.C.2006)( Long I ) and to reconsider our holding in that case. After evaluating appellant's claims, we grant the motion, reconsider our earlier decision, vacate appellant's sentences but not his convictions, and remand for resentencing.

An abridged recitation of the history of this case is necessary to understand the conclusion we reach here.² On March 19, 1996, appellant “shot and killed fourteen-year-old Ronald Williamson.” Long I, 910 A.2d at 301. A grand jury indicted appellantfor first-degree premeditated murder and related charges. At appellant's first trial, which took place in March 1998, the jury convicted him only of “carrying a pistol without a license, and a mistrial was declared on the other charges.” Id. at 303. The government obtained a superseding indictment, and appellant's second trial began on June 22, 1998. Id. At this trial, appellant was convicted of first-degree premeditated murder while armed,³ conspiracy to commit murder,⁴ assault with a dangerous weapon,⁵ and possession of a firearm during a crime of violence.⁶Id. at 301. After a subsequent hearing, the trial court issued an order on September 30, 1998, sentencing appellant to life in prison without parole (“LWOP”). Following the procedure required at that time by D.C.Code § 22–2404, the trial judge found, beyond a reasonable doubt, that three of the aggravating factors listed in D.C.Code § 22–2404.1 ⁷ existed in this case: “(1) that the murder was especially heinous, atrocious or cruel; (2) that the murder victim was especially vulnerable due to age; [and] (3) the murder was committed after substantial planning.” ⁸ Appellant filed a timely notice of appeal. He subsequently filed a motion to vacate his conviction pursuant to D.C.Code § 23–110 (2001) on grounds of ineffective assistance of trial counsel, the denial of which appellant also appealed.

Litigation over appellant's D.C.Code § 23–110 motion delayed this court's resolution of his direct appeal until 2006. During that time, the Supreme Court issued a series of decisions, including Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002), Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004), and United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), that expanded constitutional protections for defendants at sentencing. This court quickly recognized in other cases that, in light of the Supreme Court's decisions, a defendant is entitled to trial by jury regarding the aggravating factors that can make a defendant eligible for a sentence of LWOP. In a series of cases, beginning with Keels v. United States, 785 A.2d 672 (D.C.2001), this court applied plain-error review to sentences of LWOP imposed prior to the issuance of Apprendi. Upon finding plain error, this court reversed and remanded several cases for re-sentencing. See id. at 687,see also Robinson v. United States, 890 A.2d 674, 685 n. 19 (D.C.2006)( Robinson I ) ;Dockery v. United States, 853 A.2d 687, 691 (D.C.2004).

Appellant himself took note of the applicability of the Apprendi line of cases to his own situation. In April 2001, he wrote to his attorney on direct appeal, Richard Stolker, suggesting that “due to Apprendi v. New Jersey my sentencing to life in prison without parole is not right (or shall we say unconstitutional). Simply because the enhancement papers (which were the reasons for my life without parole sentence in accordance with § 22–2404.1), were not brought before a grand jury and that all of the aggravating circumstances (especially while attempting to commit a robbery) were never substantially proven.” ⁹ But counsel did not take any steps to raise appellant's Apprendi issue. Three years later, on July 16, 2004, appellant filed a pro se Rule 35(a) motion to correct his sentence, citing both Apprendi and Blakely. Appellant argued that, at his sentencing hearing, “the government presented 4 aggravating factors to the court, which warranted the imposed sentence of life imprisonment without the possibility of parole. The jury which deliberated my case held no knowledge of these aggravating factors.” On August 9, 2004, Appellant's Rule 35 motion was denied by the trial court in an order that did not cite Keels, which this court had decided in 2001. The trial court sent notice of its denial to appellant's counsel on direct appeal. No appeal from that order was noticed.

On May 5, 2005, after appellant's D.C.Code § 23–110 motion was denied without a hearing, Mr. Stolker filed a brief on appellant's behalf in this court. The brief cited neither Apprendi nor Keels. Nonetheless, counsel did obtain some relief for appellant, as this court remanded for a hearing on the D.C.Code § 23–110 motion. Long I, 910 A.2d at 310–11. On remand, Mr. Stolker was replaced as appellant's attorney by Thomas Heslep, on February 2, 2007. Mr. Heslep eventually filed a “Renewed Motion for Correction of Sentence” in April 2008. Referring back to appellant's initial pro se filing in 2004, Mr. Heslep cited Apprendi,Blakely,Keels, and another LWOP case, Robinson v. United States, 946 A.2d 334 (D.C.2008)( Robinson II ). In Mr. Heslep's motion, he noted that “Mr. Long's appellate counsel did not raise this issue ..., although he should have done so. Nevertheless Mr. Long raised it during the pendency of his appeal.” In its opposition to Mr. Heslep's motion, filed on June 24, 2008, the government pointed out that any claim of deficient representation by appellant's counsel on direct appeal could be litigated in this court only through a motion to recall the mandate.

Following further procedural steps not pertinent here, see Long II, 36 A.3d at 377–78, the trial court denied Mr. Heslep's motion as procedurally barred. In 2012, a divided panel of this court affirmed, holding that Mr. Heslep's motion was procedurally barred by appellant's failure to appeal the denial of his pro se motion in 2004 but, more important, concluding also that Apprendi did not apply retroactively to collateral attacks because it was neither “a substantive rule nor a watershed rule of criminal procedure.” Id. at 379. This court did note, however, that appellant could have pursued his Apprendi claim on direct appeal, “as the appellant did in Keels v. United States.” Id. at 379 n. 12 (citation omitted).

After the trial court's decision in Long II, appellant's third post-conviction counsel, Sydney Hoffmann was appointed on January 7, 2009. She filed on March 28, 2012, the motion to recall the mandate currently at issue. The motion requests that this court recall the mandate issued after Long I because appellant was deprived of effective assistance of counsel on his direct appeal when his then counsel failed to present this court with appellant's Apprendi claim. However, as the government points out, appellant's motion was filed well after the expiration of the 180–day period established for such motions by D.C.App. R. 41(f).¹⁰ Accordingly, before evaluating the motion on the merits, our first task is to determine whether we can and should consider this untimely motion.

I.Rule 26(b) and “Good Cause”

Anticipating the government's objection, appellant has also requested that this court exercise its power under D.C.App. R. 26(b) and “extend the time prescribed by these rules to” file his motion.¹¹ This court may grant such an extension only upon a showing of “good cause.” In his motion, appellant argues that his own prompt and timely efforts to have his Apprendi issue adjudicated on the merits, despite his and his attorneys' failure to identify the proper procedural mechanism, support a finding of “good cause.” The government responds that since appellant and his attorneys clearly knew of his Apprendi claim for years before this motion was filed, appellant must advance a more adequate excuse for the prolonged failure to move to recall the mandate. However, it is clear to us that the delay in the filing of appellant's motion to recall the mandate has been due to the failure of counsel to do what was necessary to protect appellant's rights under Apprendi.

That appellant has not received, overall, effective representation by his first two post-conviction counsel regarding his Apprendi claim cannot be seriously disputed. The failure of appellant's original counsel on direct appeal to make an Apprendi argument on that appeal after appellant had requested in writing that he do so fell below the standards for effective representation articulated in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), and its progeny. He also failed to move to recall the mandate on the ground that he should have advanced appellant's Apprendi claim on direct appeal. This failure is understandable because attorneys generally cannot be expected to argue their own ineffectiveness. See Hardy v. United States, 988 A.2d 950, 960 (D.C.2010). However, Mr. Heslep, who succeeded as appellant's original counsel while the 180–day window to recall the mandate was still open, was free to argue the ineffectiveness of previous counsel. Mr. Heslep's motion of April 15, 2008, renewing appellant's 2004 pro se Rule 35(a) challenge,...