Williams v. US

• Decision Date: 18 October 2001
• Docket Number: No. 98-CO-1911.,98-CO-1911.
• Citation: 783 A.2d 598
• Parties: Craig A. WILLIAMS, Appellant, v. UNITED STATES, Appellee.
• Court: D.C. Court of Appeals

783 A.2d 598

Craig A. WILLIAMS, Appellant, v. UNITED STATES, Appellee.

No. 98-CO-1911.

District of Columbia Court of Appeals.

Argued En Banc September 10, 2001.

Decided October 18, 2001.

Matthew W. Greene, Fairfax, VA, and Christopher Warnock, Washington, DC, both appointed by the court, for appellant.

Roy W. McLeese, III, Assistant United States Attorney, with whom Roscoe C. Howard, Jr., United States Attorney, and John R. Fisher and Elizabeth H. Danello, Assistant United States Attorneys, were on the brief, for appellee.

Timothy P. O'Toole, Public Defender Service, with whom James Klein, Public Defender Service, was on the brief, as amicus curiae.

Before WAGNER, Chief Judge, TERRY, STEADMAN, SCHWELB, FARRELL, RUIZ, REID, GLICKMAN, and WASHINGTON, Associate Judges, and NEWMAN, Senior Judge.

ON REHEARING EN BANC

FARRELL, Associate Judge:

We granted rehearing en banc in this case to consider whether relief is available to a criminal defendant whose appointed counsel on direct appeal fails to note a requested appeal from the denial of a motion alleging ineffective assistance of trial counsel filed during the direct appeal. For the reasons that follow, we hold that the breach of counsel's statutory duty to note an appeal in these circumstances entitles the defendant to a new opportunity to appeal the denial.

I.

A jury found appellant (Williams) guilty of first-degree murder and carrying a pistol without a license. Williams filed a timely notice of appeal and, represented by new counsel, also filed a motion in Superior Court under D.C.Code § 23-110 (2001) alleging ineffective assistance of trial counsel. In doing so, he acted in conformity with this court's decision in Shepard v. United States, 533 A.2d 1278 (D.C.1987), which held that, in general, "if an appellant does not raise a claim of ineffective assistance of [trial] counsel during the pendency of the direct appeal, when at the time appellant demonstrably knew or should have known of the grounds for alleging counsel's ineffectiveness, that procedural default will be a barrier to this court's consideration of appellant's claim." Id. at 1280. Consistent with its usual practice, this court stayed the direct appeal pending decision on the § 23-110 motion. Id.

The trial court scheduled a hearing on the motion for November 19, 1992, and appointed appellate counsel to represent Williams in that proceeding. Following the hearing, the court denied the motion in open court, and Williams' counsel noted what purported to be an appeal from that order. See, e.g., Hall v. United States, 559 A.2d 1321, 1322 (D.C.1989)

(separate notice of appeal must be filed from denial of § 23-110 motion). But the notice of appeal, as it appeared in the record, lacked a second page and thus did not contain the signature of either Williams or his counsel. See D.C.App. R. 3(a) ("The notice of appeal shall be signed by the individual appellant or by counsel for appellant."). Appellate counsel proceeded to brief the merits of issues in the combined appeals, including the ineffectiveness claim raised by the denial of the § 23-110 motion. At oral argument, however, a division of this court raised the issue of the incomplete notice of appeal, and subsequently issued a memorandum opinion and judgment affirming Williams' convictions but stating that, because the steps necessary to effectuate an appeal from the denial of the § 23-110 motion had not been accomplished, the court was neither "consider[ing] nor resolv[ing]... issues relating to the denial of relief by the trial court as to assertions of ineffective assistance of counsel." This court then issued its mandate and later denied a petition for rehearing "without prejudice to appellant seeking further relief [on the ineffective assistance claim] before the trial court."

Again represented by new counsel, Williams filed a second § 23-110 motion in Superior Court alleging ineffective assistance by his appellate counsel in failing to perfect the appeal from the denial of his first motion.¹ The government responded by citing Lee v. United States, 597 A.2d 1333 (D.C.1991), in which appellate counsel, after filing a § 23-110 motion during the pendency of the direct appeal, had failed to file a separate notice of appeal from the order denying the motion. Rejecting a claim of ineffectiveness similar to Williams', the Lee court observed that "[t]he Constitution does not . . . require the appointment of counsel for post-conviction proceedings," citing (inter alia) Coleman v. Thompson, 501 U.S. 722, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991), and that "[t]here is likewise no statutory basis for an unqualified right to appointment of counsel." Id. at 1334. The court therefore held that "[s]ince Lee had no constitutional right to counsel for his § 23-110 motion, he cannot prevail on a claim that his counsel was constitutionally ineffective in relation to that motion." Id. at 1334.

The trial court in this case perceived itself bound by Lee and denied the second § 23-110 motion. On appeal, a division of this court likewise concluded that the issue of counsel's effectiveness in failing to note the appeal properly was controlled by Lee, and affirmed.² See Williams v. United States, 760 A.2d 205 (D.C.2000)

.

II.

Sitting en banc, we now hold that when, as in Lee and this case, a convicted defendant entitled to representation under the District of Columbia Criminal Justice Act appeals his conviction, and while the appeal is pending appointed counsel files a § 23-110 motion in accordance with Shepard, counsel has the statutory duty to take the steps necessary to effect an appeal requested by the defendant from the denial of that motion. Failure to fulfill this duty requires that the order of denial be vacated and re-entered so that an appeal may be properly noted. In so holding, we find it unnecessary to address additional issues which the parties were asked to brief for the en banc court. In particular, we decline in this case to reconsider the rule of Shepard set forth above, and our opinion presumes the continued operation of that rule.

In relevant part, the Criminal Justice Act provides: "A person for whom counsel is appointed shall be represented at every stage of the proceedings from such person's initial appearance before the court through appeals, including ancillary matters appropriate to the proceedings." D.C.Code § 11-2603 (2001) (emphasis added). Shepard implicitly recognized the obligation that appointment to represent a convicted defendant under this provision places on counsel conducting the direct appeal to weigh filing a § 23-110 motion based on ineffectiveness of counsel. As we explained in Doe v. United States, 583 A.2d 670, 674 (D.C.1990):

[Although] Shepard [did] not address the question of whether the express or implied duties of counsel appointed for a direct appeal include giving advice or taking actions with respect to the filing of § 23-110 motions based on the ineffectiveness of trial counsel[,] . . . it placed upon the client, appellant on direct appeal, a duty to pursue recognizable avenues of § 23-110 relief for ineffectiveness of trial counsel, or face a procedural bar to later efforts to do so. We think it follows that an inherent part of counsel's responsibility on direct appeal is to consider whether the client's interests require the filing of a motion under § 23-110 based on ineffectiveness of counsel.

In Doe we outlined the duties of appellate counsel in regard to such a motion, id. at 674-75,³ but we did not, because we had no occasion to, consider whether among those responsibilities is preservation of the denial of the § 23-110 motion for review by this court. In our judgment, however, that duty flows inescapably from the appointment of counsel and the procedure that Shepard commands.

The Shepard procedure, as we were careful to point out in that case, applies only when "appellant during the pendency of his direct appeal demonstrably knew or should have known of the grounds for alleging his [trial] attorney's ineffectiveness." 533 A.2d at 1280. In that sense, the ineffectiveness claim is no different from any of the myriad claims that may be raised on direct appeal, except that it, far more probably than others, will require amplification through evidence not present, and findings not possible, within the four corners of the trial record. Hence, as we said in Shepard, our past decisions had "suggested that an appellant who is aware of a basis for alleging ineffective assistance of trial counsel should file, during the pendency of direct appeal, a [corresponding] § 23-110 motion" because, "[w]here it is appropriate, that motion can furnish appellant a means of making a record regarding matters relevant to the ineffectiveness claim that do not appear in the record of the case on direct appeal." Id.⁴ But the distinguishing feature of the ineffectiveness claim which Shepard addressed is that it can, and therefore must—so Shepard held—be raised within the framework of the direct appeal by the attorney appointed for the appeal. We perceive no reason why the obligations of counsel appointed for direct appeal, Doe, supra, should not include the taking of ministerial steps necessary to insure review requested by the defendant of the order denying the § 23-110 motion and any accompanying record. See Plan for Furnishing Representation To Indigents Under the District of Columbia Criminal Justice Act, Section IV, para. 3 ("In cases where an appeal is available as of right,... [and i]f requested to do so by the [defendant], counsel shall file a timely notice of appeal. . . .").

The fact that, under Shepard, the vehicle for mounting the claim of ineffectiveness is this jurisdiction's statutory postconviction procedure does not change the character of appellate counsel's obligation. Indeed, in Snell v. United States, 754 A.2d 289, 292 (D.C.2000), we recognized that an alternative procedure—remand of the record of the...