Appeal from the Superior Court of the District of Columbia; Hon. Fred B. Ugast, Trial Judge
Rogers, Chief Judge, and Newman and Steadman, Associate Judges.
The opinion of the court was delivered by: Rogers
Appellant Paul Holland appeals from the denial of his motion pursuant to D.C. Code § 23-110 (1981) on the principal grounds that the trial Judge accepted his guilty plea without warning him that he might be forced to pay restitution to the victim and thereafter the court imposed excessive restitution. We agree that the trial Judge erred by not warning appellant of possible restitution as a part of his sentence. However, because appellant has failed to show manifest inJustice, reversal is not warranted on this ground. Further, his excessiveness claim is time barred. Accordingly, we affirm.
On July 29, 1985, appellant pleaded guilty to second degree burglary, D.C. Code § 22-1801(b), unauthorized use of a vehicle, id. § 2204, and felony destruction of property, id. § 403. Following the government's proffer of proof, *fn1 the trial Judge conducted an inquiry of appellant pursuant to Super. Ct. Crim. R. 11. Appellant admitted that he had entered Laura Trexler's home without permission with the intent to steal, that he had started Trexler's car without permission, and that he drove the car into the garage door, damaging both. *fn2 Appellant stated that his decision to plead guilty was not premised on any agreement with the government. The government explained at the time of the plea that "the only offer which is there is that if cooperates with the government [by testifying in a homicide case], we will make that cooperation known to the court." *fn3
The trial Judge inquired whether appellant understood that by pleading guilty he waived his rights associated with a jury trial, including the presumption of innocence, the right to remain silent, the right to have an attorney present and the right to confront hostile witnesses. The Judge advised appellant of the maximum sentence he could receive by pleading guilty, namely consecutive adult sentences of 15, 5 and 10 years. The trial Judge informed appellant that the sentence could include up to $500 per charge for court costs. Appellant responded that he understood each of these consequences, and that he wished to plead guilty. The Judge did not mention that restitution could also be imposed.
On September 25, 1985, the original date for the sentencing hearing, both the government and appellant requested a continuance so that the parties could discuss further whether appellant would testify in the homicide case. Trexler and two other witnesses who had come to court were permitted to allocute, but the sentencing was otherwise continued. On October 9, 1985, the trial Judge sentenced appellant to a total of nine to 30 years in prison, *fn4 and ordered appellant to pay "restitution in the event that there is any moneys earned by that may be paid in installments at some point after and during the course of incarceration up to ability to pay up to $3,500. . . ." The Judge also ordered appellant to pay $300 in court costs.
Following the denial of appellant's motion to reduce his sentence under Rule 35, *fn5 and after numerous other communications with the trial court, on September 10, 1987, appellant was appointed new counsel, who filed a motion, pursuant to D.C. Code § 23-110 and Super. Ct. Crim. R. 32(e), to vacate the judgment and allow withdrawal of the guilty plea on the same grounds raised in this appeal. The trial Judge denied the motion without a hearing.
Appellant argued in his motion to vacate that the trial Judge violated Rule 11 by failing to warn him of possible restitution. At the time appellant was sentenced, Rule 11 did not specifically require Judges to warn defendants about possible restitution before accepting a guilty plea, *fn6 but only to inform a defendant of "the mandatory minimum penalty provided by law, if any, and the maximum penalty provided by law." Super. Ct. Crim. R. 11(c)(1) (Sept. 1, 1985). The court has interpreted this part of the Rule to require a Judge to warn a defendant of the "direct consequences" of his plea. See Gaston v. United States, 535 A.2d 893, 895 (D.C. 1988) ("a defendant must know the direct consequences of a plea before he can plead intelligently"); Hicks v. United States, 362 A.2d 111, 113 (D.C. 1976) (concluding that Rule 11 requires that a defendant be advised that the sentence for prison breach must be served consecutively). Therefore, we must decide whether the restitution was a "direct consequence" of appellant's plea.
Although this court has not had occasion to define precisely the line between "direct" and "collateral" consequences of a guilty plea, we have no difficulty concluding that restitution is a direct consequence about which a defendant should be warned. As the Advisory Committee to the Federal Rules explained in the note to the 1985 amendment, "restitution is deemed an aspect of the defendant's sentence." Fed. R. Crim. P. advisory committee's note (1985). It therefore "is a matter about which a defendant tendering a plea of guilty or nolo contendere should be advised." Id. Unlike typical examples of "collateral" matters, such as loss of civil rights, United States v. Washington, 341 F.2d 277, 286 (3d Cir. 1965), and deportation, Fruchtman v. Kenton, 531 F.2d 946 (9th Cir. 1976), restitution to the victim is ordered by the sentencing Judge as part of the sentence. Restitution is "an automatic result of the conviction in that there no subsequent determination in a civil proceeding of the degree or amount of petitioner's liability. The result absolutely part and parcel to the sentence itself." United States v. Lott, 630 F. Supp. 611, 613 (E.D.Va. 1986). United States v. Corn, 836 F.2d 889, 893 (5th Cir. 1989) (noting in dictum that "the unamended [Rule 11] required notice" of restitution). Accordingly, we hold that the trial Judge violated Rule 11 by failing to warn appellant that restitution could be imposed.
The question remains whether the Rule 11 violation warrants reversal. The court has held that a defendant who raises a Rule 11 challenge to his guilty plea after sentencing must show manifest inJustice in order to prevail on a collateral attack. Hicks, supra, 362 A.2d at 113; Gaston, supra, 535 A.2d at 896 (distinguishing Hicks as "a post-conviction collateral attack" requiring "manifest inJustice"). According to the government, appellant's challenge falls short of demonstrating manifest inJustice because appellant's sentence does not substantially exceed the amount of court costs about which he had been warned. In our view the difference is not insubstantial. Appellant was informed that he might have to pay court costs up to $1,500. He was actually ordered to pay costs of $300 and restitution of $3,500. Therefore, the sentence appellant received was $2,300 in excess of the maximum exposure of which he had been warned. Cf. McCarthy v. United States, 394 U.S. 459, 471-72, 89 S. Ct. 1166, 22 L. Ed. 2d 418 (1969) ("prejudice inheres in a failure to comply with Rule 11"); United States v. Timmreck, 441 U.S. 780, 783, 99 S. Ct. 2085, 60 L. Ed. 2d 634 (1979) (finding a "technical violation" of Rule 11 harmless in a collateral attack, where the defendant "received a sentence within the maximum described to him at the time the guilty plea was accepted").
On the other hand, at no place in the record has appellant alleged that if he had been properly informed of possible restitution, he would not have pleaded guilty. Such an allegation is, as the government argues, necessary in order for a defendant to establish prejudice in a Rule 11 violation. See Lott, supra, 630 F. Supp. at 613 (finding prejudice because "it is conceivable that the would have decided against pleading guilty had she known the Court could order" restitution); Bailey v. United States, 385 A.2d 32 (D.C.), cert. denied, 439 U.S. 871, 99 S. Ct. 203, 58 L. Ed. 2d 183 (1978) (finding no manifest inJustice despite erroneous advise from defense counsel, because the "bad advice was an insignificant factor in the decision to plead guilty"). Indeed, appellant's post-sentencing correspondence with the trial Judge ...