Pettiford v. US, 95-CO-637.
| Decision Date | 28 August 1997 |
| Docket Number | No. 95-CO-637.,95-CO-637. |
| Parties | Franklin H. PETTIFORD, Appellant, v. UNITED STATES, Appellee. |
| Court | D.C. Court of Appeals |
Neal L. Thomas, Washington, DC, appointed by the court, for appellant.
Gina L. Simms, Assistant United States Attorney, with whom Eric H. Holder, Jr., United States Attorney, and John R. Fisher, Thomas C. Black, and L. Jackson Thomas II, Assistant United States Attorneys, were on the brief, for appellee.
Before WAGNER, Chief Judge, and FARRELL, Associate Judge, and MACK, Senior Judge.
Appellant Franklin H. Pettiford pled guilty to first-degree murder while armed, second-degree murder while armed and carrying a pistol without a license. After sentencing, appellant filed a motion to vacate his guilty pleas and sentence under D.C.Code § 23-110 (1989), alleging, in part, ineffective assistance of counsel. The Superior Court denied his motion, and appellant appeals.
The posture of this case reaches this court by a tortuous route of preceding events—two 1989 murders, a seventeen-year-old arrestee's waiver of rights and admissions of being on the scene (but not firing the fatal shot at the time of the second killing), extensive negotiations by defense counsel with the government, a debriefing agreement during which the presence of the arrestee at the scene of the first murder surfaces, the government's declared intention to prosecute the first murder in the federal court where it would seek the death penalty, a superseding plea agreement covering both murders, the entry of pleas of guilty to first and second-degree murders while armed, and subsequent, unsuccessful attempts to withdraw those pleas.
Luther Garvin was shot and killed on November 27, 1989. In March of 1990, appellant was arrested in connection with Garvin's death and was charged with first-degree murder while armed in violation of D.C.Code §§ 22-2401, -3202 (1989). Appellant, after waiving rights, made a statement to the police; he admitted to being present at the murder of Garvin and to firing his gun into the air over the head of the decedent; he also admitted receiving a car in payment for his participation in the slaying. However, he maintained that his codefendant, Michael McIntyre, actually killed Garvin.
Thereafter, appellant's court-appointed attorney, Michael Dowd, began plea negotiations with the government, and as a result, appellant entered into a preliminary "debriefing" agreement (and a subsequent plea agreement). Under the agreement, he was to provide (and to continue to provide) the prosecutors and other law enforcement agencies with information regarding individuals involved in criminal activity. On September 14, 1990, after waiver of indictment and pursuant to the plea agreement, appellant pled guilty before the Honorable Ricardo Urbina (hereinafter the "plea judge") to an information charging him with second-degree murder while armed, in violation of D.C.Code §§ 22-2403, -3202 (1989), and to carrying a pistol without a license, in violation of D.C.Code § 22-3204(a) (1989), in connection with the murder of Garvin. The plea judge accepted the plea.
During one of the debriefing sessions in January of 1991, the June 30, 1989, shooting death of Angela Jones, a government witness, was explored. Appellant admitted his presence at the murder scene, but claimed that he had not fired his gun. He stated that another individual, Jerry Rose, had actually committed the murder. The government threatened to prosecute appellant for the murder of Angela Jones in federal court under a federal statute which allowed the death penalty for the murder of a government witness. Appellant's counsel again engaged in plea negotiations, and appellant entered into a superseding plea agreement that covered both the Jones and the Garvin murders. Under this agreement, appellant was to plead guilty to first-degree murder while armed in connection with the Angela Jones murder, and his pleas with respect to the Luther Garvin killing would remain the same as before (i.e., second-degree murder while armed and carrying a pistol without a license). On June 10, 1991, appellant pled guilty to the Angela Jones murder before the plea judge, who accepted the plea.
Appellant's sentencing hearing was held on September 9, 1991. After defense counsel and the government had completed allocution, but before the sentence was imposed, the plea judge addressed appellant:
Mr. Pettiford, this is your opportunity to say what you think it is important for me to know in addition to what you have already said in your letter. As I think about what the sentence should be in your case, what is it that you would like to say, sir?
Appellant responded:
Your Honor, I'd like to say three things, and I hope you know that you can grant me three wishes: one, I want to take my cop back and go to trial; two, I want a new lawyer because of the fact that he did not help me through my case, and he was telling me all sorts of lies about that if I go to trial, ain't no such thing as appeal, and my case is—I should have been told you this—but I sit here and listen to him, let him, you know, try to guide me, but—and two, I really—I want to go to trial. That's the first three wishes I would like to have. I would—
The discussion continued as follows:
The plea judge then indicated that he would deny appellant's motion to vacate his guilty pleas, concluding:
Well, Mr. Pettiford, I am going to deny your Motion to Vacate Your Plea at this time without prejudice. What that means is what I hear you saying is that you don't want Mr. Dowd to represent you on this issue, and in that regard, you will be entitled to have new counsel review your situation and ask the Court properly and formally to reconsider your sentencing in the case and reconsider your plea in the case.
The court proceeded to sentence appellant to twenty years to life imprisonment on the charge of first-degree murder in connection with the Angela Jones murder, seven to twenty-one years imprisonment on the charge of second-degree murder in connection with the Garvin murder, to be served consecutively, and one year imprisonment for the charge of carrying a pistol without a license, to be served concurrently with the second-degree murder charge.
Some time after this sentencing hearing, appellant's counsel, Michael Dowd, moved to withdraw from the case. The court appointed a series of new attorneys for appellant, and on March 28, 1994, appellant filed a "Motion to Vacate Guilty Pleas and Sentence Pursuant to 23 D.C.Code, Section 110." In his motion, appellant alleged "that the Court failed to conduct an inquiry of his claim of ineffective assistance of counsel and his request for a new counsel made during the sentencing hearing; that he was denied the effective assistance of counsel prior to his guilty pleas and at time of sentencing; that the substance and nature of the charges were not explained to him; and that the agreements entered into by the government ... were breached by the government."1
The Honorable Steffen W. Graae (hereinafter the "motions judge") held an evidentiary hearing on this motion in April of 1991. Judge Graae heard the testimony of appellant and three witnesses, FBI Special Agent Dan Reilly, Counsel Michael Dowd, and Assistant United States Attorney L. Jackson Thomas II.
Special Agent Reilly testified, that in the process of investigating an ongoing criminal conspiracy, he was present at the debriefing sessions with appellant. Appellant first discussed the Angela Jones murder on January 7, 1991; on one report of the proceedings on that day, the agent had recorded that appellant's counsel, Michael Dowd, was present for the meeting, but on the other, due to an oversight, he had not recorded such presence. The agent did not recall Mr. Dowd stopping the proceedings when appellant began discussing the Angela Jones murder; he did not have information connecting appellant to the Angela Jones murder prior to this meeting. However, further investigation revealed that two witnesses could connect appellant to the shooting. On cross-examination by the government, the agent stated that to his recollection Mr. Dowd was present at every meeting, and on the occasions when appellant arrived before Mr. Dowd, substantive matters regarding appellant's case were not discussed until Mr. Dowd arrived.
Counsel Michael Dowd testified that, prior to plea negotiations regarding the Luther Garvin murder, he had prepared for appellant's case by talking to appellant and the detective who took appellant's confession. Appellant admitted knowing that the men intended to...
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...injustice can take several forms. It can result, for example, from a fatal defect in the Rule 11 proceedings. See Pettiford v. United States, 700 A.2d 207, 216 (D.C.1997). We have also found manifest injustice when the government failed to comply with the terms of a plea agreement. Gaston v......
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Cosio v. U.S.
...all avenues leading to facts relevant to the merits of the case and the penalty in the event of conviction." Pettiford v. United States, 700 A.2d 207, 216-17 (D.C.1997) (quoting American Bar Association Standards for Criminal Justice, The Defense Function 4-4.1(a) (3d ed.1993)). We take thi......
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Bennett v. US, 95-CF-1178.
...113, 645 F.2d at 1038 (withdrawal motion filed five weeks after plea not a swift attempt at retraction). 38. But see Pettiford v. United States, 700 A.2d 207, 217 (D.C.1997) (delay of two months does not present persuasive reason to deny motion to withdraw where counsel's incompetent perfor......
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Byrd v. US, 99-CO-164.
...plea was entered," the other to show "that justice demands withdrawal in the circumstances of the individual case." Pattiford v. United States, 700 A.2d 207, 216, (D.C.1997) (internal quotations omitted). When a motion to withdraw is made prior to sentencing, as it was here, the motion shou......