Appeal from the Superior Court of the District of Columbia; Hon. A. Franklin Burgess, Jr., Motions Judge; Tim C. Murphy, Trial Judge
Rogers, Chief Judge, and Newman and Steadman, Associate Judges.
The opinion of the court was delivered by: Rogers
Appellant Carl Morrison appeals from the denial of his motion to vacate his plea of not guilty by reason of insanity and for unconditional release pursuant to D.C. Code § 24-301 (k) (1989 Repl.). He contends that his plea of not guilty by reason of insanity (NGI) should be vacated and his commitment to St. Elizabeths Hospital set aside because the trial Judge failed to address him personally regarding the voluntariness of his plea and to advise him of the direct consequences of his NGI plea in violation of Super. Ct. Crim. R. 11. Therefore, he maintains that he did not make a voluntary and knowing waiver of his rights. Further, appellant contends that he received ineffective assistance of counsel because his trial attorney failed to advise him of his right to appeal the NGI judgment. Finding that appellant failed to demonstrate manifest inJustice requiring vacation of his plea, or that he was denied the effective assistance of counsel, we affirm.
Standard for Withdrawal of NGI Plea. At a stipulated trial on March 29, 1976, it was established that appellant struck and threatened two police officers on August 26, 1975, but that his conduct was a product of his mental illness, paranoid schizophrenia. The trial Judge found appellant to be not guilty by reason of insanity of the charges, and following a Bolton *fn1 hearing (D.C. Code § 24-301 (d)), ordered that appellant be committed to St. Elizabeths Hospital. Thereafter, appellant filed numerous motions for unconditional release pursuant to D.C. Code § 24-301 (k) and now appeals from the denial of his August 6, 1985 motion. *fn2
D.C. Code § 24-301 (k)(1) (1989 Repl.) provides that
A person in custody . . ., pursuant to the provisions of this section, claiming the right to be released from custody, the right to any change in the conditions of his release, or other relief concerning his custody, may move the court having jurisdiction to order his release, to release him from custody, to change the conditions of his release, or to grant other relief.
The motions Judge ruled, and the government agrees, that appellant may properly raise his claims challenging the NGI verdict by motion under § 24-301 (k). *fn3 See Legrand v. United States, 570 A.2d 786 (D.C.1990); Sanderlin v. United States, 254 U.S.App.D.C. 18, 24, 794 F.2d 727, 733 (1986). The language of the statute is sufficiently broad, referring to "other relief". Although, in context, this phrase might be viewed as referring to relief based on a valid initial NGI verdict, we see no reason to so confine the language. Further, D.C. Code § 24-301 (k)(7) provides that to the extent other vehicles exist, such as , *fn4 a motion under § 24-301 (k) is to be pursued first. In addition, D.C. Code § 23-110 is inapplicable since an NGI defendant is not considered to be under "sentence". See O'Beirne v. Overholser, 109 U.S.App.D.C. 279, 282, 287 F.2d 133, 136 (1960) (an accused person being confined in a hospital is not a "prisoner" nor under "sentence" for purposes of filing a motion under 28 U.S.C. § 2255). Accordingly, we hold that appellant properly challenges his NGI judgment under § 24-301 (k)(1).
Thus, the principal issue is the standard to be applied in deciding whether trial Judge error requires granting appellant the relief he seeks. *fn5 Appellant contends that because his trial attorney failed to advise him of his right to appeal the NGI judgment, his position is analogous to that of a criminal defendant who is seeking to withdraw a guilty plea prior to sentencing. The motions Judge, after finding that appellant had failed to demonstrate ineffective assistance of counsel, disagreed and applied a manifest inJustice standard.
Appellant's contention that he was denied the effective assistance of counsel is meritless. *fn6 The motions Judge found "no persuasive evidence that [counsel's] advice was outside the range of competence demanded of attorneys in criminal cases." The Judge noted that appellant was unable to recall much of what had happened ten years ago and that his memory was faulty, as evidenced by his claim that the trial Judge promised appellant he could be released in one year, which was unsupported by the transcript of the proceedings; that his defense attorney had twice advised him not to plead guilty by reason of insanity and had visited appellant at St. Elizabeths Hospital for at least 35 minutes prior to the March 1976 hearing, at which he entered his NGI plea, and had met with appellant before and after his appearances before the trial Judge; and that his attorney had represented him in accordance with appellant's wishes. These findings are supported by the record and are not clearly erroneous. Hence we need not reach the issue of prejudice.
Appellant's contention that the manifest inJustice standard should not be applied to a request to withdraw a NGI plea is likewise unpersuasive. Post-sentence attacks on guilty pleas are subject to the "manifest inJustice" standard of Super. Ct. Crim. R. 32 (e), and the appropriate procedure for relief from a guilty plea is a motion to withdraw a plea under Rule 32 (e) or D.C. Code § 23-110. Carmichael v. United States, 479 A.2d 325, 327 (D.C. 1984) (Rule 32 (e) motion) (citing Willis v. United States, 468 A.2d 1320, 1322 (D.C. 1983)); McClurkin v. United States, 472 A.2d 1348, 1352 (D.C.1984); Lorimer v. United States, 425 A.2d 1306, 1308-09 (D.C. 1981) (per curiam). See also United States v. Watson, 179 U.S.App.D.C. 103, 108, 548 F.2d 1058, 1063 (1977) (request for relief under 28 U.S.C. § 2255 subject to manifest inJustice standard of Fed. R. Crim. P. 32 (d)). Although "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." McClurkin, supra, 472 A.2d at 1352. The motions Judge, observing that the considerations which support the requirement of Rule 11 are present when a defendant enters an NGI plea and his counsel stipulates to all the acts charged, concluded that appellant's collateral attack of his NGI plea is analogous to the appeal by a defendant who has pleaded guilty, who may attack the voluntary and intelligent character of his plea and applied the manifest inJustice standard. *fn7
Appellant analogizes his position to that of a defendant seeking to withdraw a guilty plea prior to sentencing, and contends that the motions Judge should have applied the "per se prejudice" standard of McCarthy v. United States, 394 U.S. 459, 471-72, 89 S. Ct. 1166, 22 L. Ed. 2d 418 (1969). However, McCarthy's "per se" standard is only available on direct appeal. United States v. Timmreck, 441 U.S. 780, 783-84, 99 S. Ct. 2085, 60 L. Ed. 2d 634 (1979); Hill, supra note 7, 368 U.S. at 428. Since we find no error by the motions Judge in ruling that appellant was not denied the effective assistance of counsel, we need not address appellant's contention that the McCarthy standard should be applied because appellant would have appealed the NGI plea directly but for the ineffective assistance of counsel.
For purposes of collaterally attacking pleas, insanity acquittees have long been deemed in this jurisdiction to be analogous to defendants who plead guilty. United States v. Brown, 138 U.S.App.D.C. 398, 401, 428 F.2d 1100, 1103 (1970). In assessing the Rule 11 violations the motions Judge applied a manifest inJustice standard, reasoning that "f the process leading to stipulation is to be Judged by Brown standards -- that is, by what is required prior to guilty pleas, then the standard for judging a collateral attack should be no more favorable to the person seeking to vacate the stipulation." The policy interest behind permitting the correction of their pleas is the same. Balancing concerns for finality against concerns for correcting inJustice places a limit on relief by collateral attack to cases in which the defendant can demonstrate manifest inJustice. See Timmreck, supra, 441 U.S. at 784. Appellant's contention that a lower standard should be applied to committed insanity acquittees because the reason for their commitment, the treatment of their mental illness, is different from the purposes of incarceration upon conviction, is unpersuasive. The policies at issue are not those which surround the curtailment of the individual's liberties, but those which surround scrutinizing the individual's plea and correcting manifest inJustice. *fn8
Therefore, for purposes of collaterally attacking a NGI plea, we hold that committed insanity acquittees stand in the same position as defendants who seek to withdraw a guilty plea. See Legrand, supra, 570 A.2d at 793. Consequently, the same factors are to be considered in connection with a collateral attack on a ...