Appeal from the Superior Court of the District of Columbia; Hon. Robert A. Shuker, Trial Judge.
Before Ferren and Belson, Associate Judges, and Pryor, Senior Judge.
The opinion of the court was delivered by: Ferren
FERREN, Associate Judge: The trial court denied without a hearing appellant's motion, pursuant to D.C. Code § 23-110 (1989), *fn1 to vacate his sentence. Appellant argues he was denied effective assistance of counsel in December 1979 when he pleaded guilty to one count of assault with intent to rape, id. § 22-501 (1989), for which he received probation (revoked four years later). Appellant now asserts his innocence and claims he would not have pleaded guilty if counsel had not erroneously informed him that his cousin had made a statement to the police and was prepared to testify against him at trial. The record includes a recent affidavit from appellant's cousin attesting that he never made a statement to the police about appellant and that he never agreed to testify against appellant. This case accordingly presents two questions: (1) whether appellant is barred from collaterally attacking his guilty plea on the ground of ineffective assistance of counsel because he failed to appeal the revocation of his probation and to raise the ineffectiveness issue then; and, if not, (2) whether appellant is entitled to an evidentiary hearing on his claim. We perceive no such bar and reverse and remand for an evidentiary hearing.
On December 10, 1979, on advice of counsel and in exchange for the government's agreement to drop the rape charge against him, *fn2 appellant pleaded guilty to one count of assault with intent to rape, id. The government proffered that its evidence at trial would have shown the following: On the evening of December 22, 1978, appellant had been at his cousin R.C. Hooker's apartment, along with a few of Hooker's friends. At some point after midnight, Hooker and his brother left the apartment with two women, leaving appellant alone in the apartment. At approximately 4:00 a.m., appellant knocked on the door of complainant, who lived in the same building as Hooker. Complainant answered the door; thinking it was Hooker, her boyfriend. Appellant entered the apartment, smelling of alcohol. Complainant asked appellant to leave, but appellant grabbed her, forced her into the bedroom, and had sex with her against her will. A knock on the door interrupted appellant; he decided to go back to his cousin's apartment. Complainant dialed Hooker's apartment for help. Appellant intercepted the call and hung up after a brief conversation. Shortly thereafter, Hooker reached complainant by telephone. Complainant asked Hooker to come to her apartment. When Hooker arrived, complainant told him what had happened. Hooker then returned to his apartment, "beat up" appellant, and called the police. Appellant was arrested on the scene.
Appellant originally denied having had sexual intercourse with complainant. *fn3 Appellant later testified before a grand jury that he had been looking for Jewel Morton, a friend who lived in the building, when he mistakenly knocked on complainant's door. He further testified that complainant had allowed him to enter her apartment and had consented to have sex with him. Morton told the grand jury, however, that appellant knew she was not home that night and, therefore, would not have been looking for her.
The government did not indicate during its proffer what witnesses it would have called at trial, although at one point in the plea hearing the prosecution identified Hooker as a government witness. During the plea colloquy, appellant acknowledged that he was guilty and that he was satisfied with the advice counsel had given to him. *fn4
The court accepted appellant's plea and, at a later hearing, sentenced him to five to fifteen years in prison, suspended execution of sentence, and imposed a five-year period of probation. After a conviction in Virginia over four years later for unauthorized use of a vehicle, *fn5 the trial court revoked appellant's probation and, on June 6, 1984, reimposed the original sentence of five to fifteen years of incarceration. Appellant was represented at the revocation hearing by the lawyer who had counseled him in connection with the plea. Appellant did not appeal the revocation of his probation. *fn6
Over three and one-half years later, on February 24, 1988, appellant filed a pro se motion to vacate, set aside, or correct sentence. The motion essentially amounted to a claim of ineffective assistance of counsel *fn7 based on two grounds: (1) counsel's failure to ascertain whether appellant's cousin, Hooker, had given a statement to the police, *fn8 and (2) counsel's failure to advise him properly concerning the potential weight of Hooker's testimony. *fn9 Appellant stated several times in the motion that he would not have pleaded guilty had it not been for counsel's representation (and appellant's resulting belief) that appellant's cousin had given a statement to the police and would testify against appellant.
On March 7, 1988, the trial court denied the motion without an evidentiary hearing on two grounds. First, citing Head v. United States, 489 A.2d 450 (D.C. 1985), the court stated that it "cannot grant relief when a defendant has failed to raise an available challenge to his conviction on appeal unless the defendant makes a showing of exceptional circumstances for his failure to raise the issues on appeal and prejudice as a result of this failure." Finding no exceptional circumstances for his failure to appeal, the court ruled appellant was barred from raising his sixth amendment claim at this late date. Second, the court found that even if it could consider appellant's motion, "the conclusory allegations contained in the motion fail to raise any real claims of ineffective assistance of counsel." Appellant promptly filed a pro se motion for reconsideration and "arguments for petition for writ of habeas corpus"; he attached an affidavit from Hooker stating that Hooker had never given a statement to the police and had never intended to testify against appellant. *fn10 The court denied appellant's motion for reconsideration. *fn11
In his "petition for appeal," appellant asserts his innocence. He states that both he and complainant were at Hooker's apartment when Hooker and his brother left with two women. According to appellant's petition, complainant left the party shortly thereafter, announcing that she was returning to her own apartment now that her boyfriend had left with another woman. Because Hooker had still not returned some time later, appellant left Hooker's apartment and knocked on complainant's door. Complainant invited him in and sat next to him on the living room couch. She asked appellant about the woman with whom Hooker had left the party. Appellant and complainant, according to appellant's petition, then engaged in consensual sexual intercourse. During this time there was a knock on the door. Complainant advised appellant to ignore the knock, as it might be Hooker. When appellant left complainant, he returned to Hooker's apartment. Hooker was there and asked where appellant had been. Appellant replied that he had been "out." Hooker left a few minutes later and then returned, accusing appellant of "backstabbing him" with complainant. A fight took place during which Hooker punched appellant. Appellant was arrested at approximately 7:00 a.m. and charged with rape. *fn12
Appellant now renews, on appeal, his argument that he was denied his sixth amendment right to effective assistance of counsel, citing trial counsel's failure to investigate and to advise appellant properly. He argues that he is entitled to an evidentiary hearing on his claims. Appellant cites the statutory language of § 23-110 (c) and several cases from this court, including Pettaway v. United States, 390 A.2d 981 (D.C. 1978), for the proposition that there is a strong presumption in favor of conducting a hearing on § 23-110 motions. He stresses that the presumption favoring a hearing is particularly strong in cases such as this concerning alleged ineffective assistance of counsel, citing ...