McClurkin v. United States

• Decision Date: 31 January 1984
• Docket Number: No. 80-1333.,80-1333.
• Citation: 472 A.2d 1348
• Parties: Ricky McCLURKIN, Appellant, v. UNITED STATES, Appellee.
• Court: D.C. Court of Appeals

Page 1348

472 A.2d 1348

Ricky McCLURKIN, Appellant, v. UNITED STATES, Appellee.

No. 80-1333.

District of Columbia Court of Appeals.

Argued October 6, 1982.

Decided January 31, 1984.

COPYRIGHT MATERIAL OMITTED

Christian J. Mixter, appointed by this court, with whom Linda E. Chatman, Washington, D.C., was on brief, for appellant.

Donald J. Allison, Asst. U.S. Atty., with whom Stanley S. Harris, U.S. Atty., at time brief was filed, John A. Terry, Asst. U.S. Atty., at time brief was filed, and G. William Currier, Asst. U.S. Atty., Washington, D.C., were on brief, for appellee.

Before NEWMAN, Chief Judge, KERN and BELSON, Associate Judges.

BELSON, Associate Judge:

Appellant seeks review of two orders of the trial court denying collateral relief under D.C.Code § 23-110 (1973) from his guilty plea to one count of second-degree murder while armed in violation of D.C.Code §§ 22-2403, -3202 (1973).¹ Appellant's principal contentions are: 1) that his plea was made neither voluntarily nor intelligently because both the court and his counsel failed to inform him of the elements of second-degree murder contrary to the holdings of Henderson v. Morgan, 426 U.S. 637, 96 S.Ct. 2253, 49 L.Ed.2d 108 (1976) or, alternatively, in violation of the requirements of Super.Ct.Crim.R. 11(c) governing guilty plea proceedings, and 2) that he was denied his Sixth Amendment right to effective assistance of counsel both prior to and at his plea and sentencing proceedings.² We affirm.

I

The charges against appellant arose from the killing of Lewis Minor on the night of March 18, 1975. Appellant and codefendants Joseph Mention and Bruce Mention were arrested shortly after the incident. As part of a plea bargain with the government, appellant pleaded guilty on November 12, 1975, to one count of second-degree murder while armed, a lesser-included offense of first-degree murder while armed.³

On July 1, 1976, appellant filed a pro se motion to vacate his sentence under D.C. Code § 23-110. The trial court's denial of that motion was affirmed by this court and is not at issue on this appeal.⁴

On February 18, 1980, appellant filed a second pro se motion with the trial court to vacate sentence, purportedly under the authority of 28 U.S.C. § 2255 (1976), the federal counterpart of D.C.Code § 23-110. See Swain v. Pressley, 430 U.S. 372, 381-82, 97 S.Ct. 1224, 1229-30, 51 L.Ed.2d 411 (1977); Lorimer v. United States, 425 A.2d 1306, 1308 (D.C.1981) (per curiam). In that motion, the denial of which is now before us for review, appellant repeated the contention made in his 1976 motion that trial counsel had deceived him about the likelihood of a Youth Act sentence. Appellant also contended that his substitute counsel at sentencing did not provide effective assistance in that he failed to secure Youth Act treatment for him, failed to allow appellant to read the presentence Youth Act report, failed to inform appellant of the possible severity of the adult sentence and, generally, failed "to protect [his] constitutional rights." The court treated appellant's motion as made under D.C.Code § 23-110 and denied it without a hearing on August 20, 1980. Appellant noted his appeal.

In December 1980, we appointed counsel to assist appellant with his appeal. Appointed counsel withdrew in July 1981 and present counsel were substituted. Counsel then filed a motion in Superior Court for rehearing of that court's denial of the 1980 § 23-110 motion, raising new issues which form the principal bases of this appeal. We granted a stay of appellant's appeal while his motion for rehearing was pending. On April 29, 1982, the trial court denied rehearing in a Memorandum Opinion and Order.

II

Before reaching the merits of appellant's contentions, we must first address two jurisdictional issues raised by the government. First, the government contends that we have no jurisdiction over appellant's appeal from the August 1980 denial of his § 23-110 motion because appellant's pro se appeal was filed in an untimely manner.

We reject this contention. The Clerk of the Superior Court failed to send the parties the required notice of the entry of that ruling made outside their presence. D.C.App.R. 4 II(b)(4). Thus appellant's time for noting appeal began to run as of the time he had actual notice of entry of the order. Samuels v. United States, 435 A.2d 392 (D.C.1981) (per curiam). Since the record does not identify that date, we will assume jurisdiction. See id. at 395.

The government also contends that we lack jurisdiction over the trial court's April 1982 order denying appellant's motion for rehearing because appellant never filed a notice of appeal from this order as required under D.C.App.R. 4 II(a)(1). We find that argument unpersuasive because of the special circumstances of this case. When we granted appellant's request for a stay of his appeal from the earlier order of August 20, 1981, pending the outcome of appellant's, petition for a rehearing thereon, we requested that appellant's counsel notify us upon the trial court's disposition of the matter. Counsel did so by letter filed with this court on the 13th day after issuance of the trial court's Memorandum Opinion. We regard that letter as a timely notice of appeal. D.C.App.R. 4 II(b)(1), (4).⁵ While we hold we have jurisdiction of this appeal, we caution that a separate notice of appeal is required as to every order appealed from. See In re E.G.C., 373 A.2d 903, 905 (D.C. 1977).

III

We also note preliminarily that the two orders before us for review were entered in connection with efforts by appellant to withdraw his guilty plea. We therefore discuss briefly the standard to be applied by the trial court in ruling upon such matters.

Although we have held that "as a practical matter virtually every possible avenue of appeal is waived by a guilty plea," Bettis v. United States, 325 A.2d 190, 194 (D.C.1974), a defendant who is sentenced after pleading guilty may later attack the voluntary and intelligent character of the plea. See Tollett v. Henderson, 411 U.S. 258, 266-67, 93 S.Ct. 1602, 1607-08, 36 L.Ed.2d 235 (1973); Lorimer v. United States, supra, 425 A.2d at 1308. The most appropriate procedure for post-sentence relief from a guilty plea is a motion to withdraw a plea to "correct manifest injustice" under Super.Ct.Crim.R. 32(e); alternatively, a motion to vacate sentence may be made under D.C.Code § 23-110. See Lorimer, supra, 425 A.2d at 1308-09. A Rule 32(e) motion to withdraw a guilty plea is committed to the sound discretion of the trial judge whose decision will be disturbed on appeal only upon a showing of abuse of discretion. Lorimer, supra, 425 A.2d at 1308; Byrd v. United States, 377 A.2d 400, 405 (D.C.1977).

We have recently endorsed the testing of motions attacking the voluntariness of guilty pleas under § 23-110 by the "manifest injustice" standard of Rule 32(e). See Lorimer, supra, 425 A.2d at 1308; see also United States v. Watson, 179 U.S.App.D.C. 103, 108, 548 F.2d 1058, 1063 (1977) (requests for collateral relief from guilty pleas brought under 28 U.S.C. § 2255 should be treated under the manifest injustice standard of Fed.R.Crim.P. 32(d), which is the same as Super.Ct.R. 32(e)). Our task on review, therefore, will be to determine whether the trial judge abused his discretion in applying that standard.

IV

Although the trial court was to apply the manifest injustice standard of Rule 32(e), its disposition of these collateral attacks remained subject to the hearing requirement of D.C.Code § 23-110(c). Thus we must also determine whether the trial court erred in disposing of appellant's motions without conducting a hearing.

Section 23-110(c) provides that a court may deny relief summarily only where "the motions and files and records of the case conclusively show that the prisoner is entitled to no relief." See Bettis, supra, 325 A.2d at 196-98. An evidentiary hearing on a § 23-110 motion alleging ineffectiveness of counsel is not warranted if the allegations are vague and conclusory, are wholly incredible, or do not merit relief even if true. Smith v. United States, 454 A.2d 822, 824 (D.C.1983); Gibson v. United States, 388 A.2d 1214, 1215-17 (D.C.1978).

Based upon our review of the record and the analysis of appellant's contentions which we set forth in the remaining parts of this opinion, we are satisfied that the trial court did not err in declining to hold evidentiary hearings on appellant's motion. We agree with the trial court that appellant's contentions were either refuted by the record, or vague and conclusory. We turn now to appellant's arguments.

V

The first of appellant's principal contentions is that his plea was neither intelligent nor voluntary because the trial court failed to provide him with adequate notice of the elements of second-degree murder as required under Henderson, supra, or, alternatively, under Super.Ct.Crim.R. 11. We are satisfied that this contention is without merit.

At the plea proceeding, the government made the following evidentiary proffer of the events from which the charges against appellant arose.⁶ On the night of March 18, 1975, appellant and codefendant Bruce Mention, both escapees from the Oak Hill facility at the Children's Center, decided to go to Lewis Minor's apartment. Appellant and Bruce Mention each wanted to "f____ [him] up" because they believed Minor had informed the police of their whereabouts. Appellant and Bruce Mention had even told three or four people that they intended to kill Minor for doing so. They also wanted to rob Minor because he purportedly had received a lot of money from an income tax refund.

Bruce Mention's brother, codefendant Joseph Mention, secured a pistol. Appellant and Bruce Mention gained entry to Minor's apartment, while Joseph Mention remained outside. Minor was eventually shot in the back of the head by either appellant or Bruce Mention.⁷ From outside the apartment, Joseph Mention saw his brother simply...