Shepard v. United States, 9025.

• Decision Date: 03 September 1976
• Docket Number: No. 9025.,9025.
• Citation: 363 A.2d 291
• Parties: Ronald SHEPARD, Appellant, v. UNITED STATES, Appellee.
• Court: D.C. Court of Appeals

363 A.2d 291

Ronald SHEPARD, Appellant, v. UNITED STATES, Appellee.

No. 9025.

District of Columbia Court of Appeals.

Argued March 11, 1976.

Decided September 3, 1976.

Claude William Roxborough, Washington, D. C., for appellant.

Alexia Morrison, Asst. U. S. Atty., Washington, D. C., with whom Earl J. Silbert, U. S. Atty., John A. Terry and Joseph B. Valder, Asst. U. S. Attys., Washington, D. C., were on the brief, for appellee.

Before KELLY and YEAGLEY, Associate Judges, and PAIR, Associate Judge, Retired.

YEAGLEY, Associate Judge:

Raised on this appeal is the question whether the trial court erroneously denied appellant's post-sentencing motion to withdraw a plea of guilty he entered on one count of robbery in June 1973. We affirm.

Appellant was charged in a fourteen-count indictment with offenses occurring in connection with the robbery of the Colonial Storage Company on July 21, 1972. On June 4, 1973, after conferring with his attorney and being advised of the government's case against him, appellant entered to one count of robbery a so-called Alford plea by which he conceded that he would be convicted of the charge if the case were brought to trial while not directly admitting his participation in the crime.¹ The trial judge originally assigned to the case was unavailable the day of appellant's plea, and it was entered before another judge. Subsequently appellant appeared for sentencing before the originally assigned judge at which time he made an oral motion to withdraw his plea. The motion was denied and a sentence entered on July 5, 1973, of 2 to 8 years, to run consecutively with a sentence entered earlier by the local United States District Court on a bank robbery charge. Appellant did not appeal.

Following sentence, appellant retained a new attorney who immediately renewed appellant's efforts to withdraw the plea. On August 30, 1973, the motion filed by the second attorney was withdrawn in open court.² According to the appellant the motion was withdrawn because of a financial disagreement with counsel.

In March 1974, appellant, by his third attorney once more filed a motion seeking leave to withdraw the plea which at that date was, in effect, a motion to set aside the conviction and sentence. After a hearing, the trial court denied the motion on October 24, 1974, making appropriate findings of fact.

Appellant argued in the trial court and now argues on appeal that leave to withdraw the plea should have been allowed because (1) he was under the influence of tranquilizers at the time he entered his plea, and (2) the case proffered by the government was based on perjured information. On review, we concur in the trial court's conclusion that appellant failed to carry his burden³ of showing that an upset of the plea was required to correct "manifest injustice". See Super.Ct.Cr.R. 32(e); Bettis v. United States, D.C.App., 325 A.2d 190 (1974); Thomas v. United States, D.C.App., 201 A.2d 520 (1964). See also Durante v. United States, D.C. App., 309 A.2d 321 (1973); Bethel v. United States, D.C.App., 215 A.2d 763 (1966).

By his motion of March 1974, appellant argued for the first time that he had been sedated at the time he entered his plea and therefore had been unable to choose intelligently between standing and waiving trial. In the findings filed with the order denying the motion, the court noted that the trial judge accepting the plea had determined at the time that appellant fully understood what the Alford plea of guilty meant, that the plea was voluntarily made, and that the medication⁴ had not impaired appellant's ability to understand its significance. The trial court noted that appellant did not offer evidence to substantiate his claim as to the number of tranquilizers he had ingested prior to the hearing on the plea; that he did not offer medical testimony in support of his allegation that the medication had inhibited his ability to understand the effect of entering his plea; and that neither his original counsel nor the participating Assistant United States Attorney had observed anything in appellant's demeanor at the plea proceeding which suggested that he was not completely lucid. On the basis of these and related findings, the trial court concluded that appellant's plea had been voluntarily entered with a full appreciation of the consequences and with the aid of competent and conscientious counsel with whom he had discussed the case extensively. There being ample evidence in the record to support that conclusion it is controlling on our review. D.C.Code 1973, § 17-305(a); In re A.B.H., D.C.App., 343 A.2d 573, 575 (1975).

The second point raised for withdrawal concerns Gregory Hinton, a co-suspect in the robbery. Hinton identified appellant at the preliminary hearing as one of the three men who participated in the crime and was expected by both sides to appear as a witness for the prosecution should the case come to trial. Hinton apparently had a change of heart after his own conviction for the Colonial Storage robbery. Appellant produced an affidavit with his March 1974 motion in which Hinton stated that his participation in the proceeding against appellant had been obtained by trickery on the part of the United States Attorney, and that he had deliberately given false testimony adverse to the appellant.

Appellant's proof of the Hinton affidavit fell woefully short of that which would have demonstrated that a grant of leave to withdraw the plea was necessary under the standard previously set out. Hinton did not appear at the hearing, and no evidence was offered to show that he falsely implicated appellant in the robbery. Nor was evidence offered to rebut the independent evidence proffered by the government which also identified appellant as one of the three participants in the crime. The only evidence offered which in any respect related to the Hinton affidavit was a brief recitation by the...