Appeal from the Superior Court of the District of Columbia; Hon. Warren R. King, Trial Judge
Rogers, Chief Judge, and Belson and Schwelb, Associate Judges.
The opinion of the court was delivered by: Rogers
Appellant Vincent Johnson appeals from his convictions *fn1 on the principal grounds that the trial court erred in responding to appellant's allegations of ineffective assistance of counsel by denying his pro se motion for a new trial without a hearing and by failing to conduct the necessary inquiry regarding counsel at the sentencing hearing. *fn2 We agree and accordingly remand for a hearing on the motion for new trial, and, in the event that motion is denied, for a hearing on the adequacy of sentencing counsel or, alternatively, for re-sentencing.
The government's evidence at trial showed that appellant and an accomplice approached three teenagers on the street. Appellant, who was holding a small gun, said, "this is a stickup." After ordering the teenagers to some nearby steps, appellant demanded their money, saying "Don't move, if you move, I'm going to shoot you." Appellant then told his accomplice to search two of the teenagers, which he did, finding eight dollars. The accomplice told appellant that "it ain't worth no eight dollars" and ran off. Appellant also left, telling the victims to "stay there. I should blow your head off." The teenagers testified for the government, as did the accomplice.
Appellant, who was represented at trial by retained counsel, Eric Sayles, presented an alibi and misidentification defense, calling a total of six alibi witnesses. The jury returned a verdict of guilty on all counts.
Appellant filed a pro se motion for a new trial, alleging ineffective assistance of his trial counsel. The trial Judge appointed new counsel, David Couch, to represent appellant at sentencing. Mr. Couch, upon speaking to appellant, returned to court with appellant to advise the Judge that appellant was of the view that their relationship was "doomed from the start." The trial Judge thereupon admonished appellant that "if you don't like Mr. Couch, you go out and get your own lawyer, do you understand that?" The Judge denied the motion for a new trial without a hearing and proceeded to sentence appellant to a total of thirteen years to life imprisonment.
Appellant's pro se motion for a new trial asserted sixteen reasons why trial counsel's performance was deficient. The trial Judge denied the motion both as untimely and on the merits. The motion, properly treated as filed pursuant to Super. Ct. Crim. R. 33, *fn3 was, as the government agrees, timely filed. Rule 33 requires that a motion alleging ineffective assistance be made "within 7 days after verdict." *fn4 The trial Judge found that appellant had filed the motion eight days after verdict, and that the motion was therefore untimely. However, Rule 45 provides that "when a period of time prescribed or allowed is less than eleven (11) days, intermediate Saturdays, Sundays and legal holidays shall be excluded in the computation." Super. Ct. Crim. R. 45 (a). Applying Rule 45, appellant's motion was timely filed.
The trial Judge also erred by denying the motion without a hearing. Although appellant's motion was filed pursuant to Rule 33, it alleged ineffective assistance of counsel, and should therefore have been evaluated as if it were a motion under D.C. Code § 23-110. See Glass v. United States, 395 A.2d 796, 809 n.28 (D.C. 1978); see also 3 C. WRIGHT, FEDERAL PRACTICE & PROCEDURE § 552 at 244 (2d ed. 1982) (substantial overlap between Rule 33 and 28 U.S.C. § 2255). The court has previously held that "there is a presumption that a trial court presented with a section 23-110 motion should conduct a hearing." Gaston v. United States, 535 A.2d 893, 895 (D.C. 1987). This is especially true with claims of ineffective assistance which will normally involve matters outside the record. Gibson v. United States, 388 A.2d 1214, 1216 (D.C. 1978). Only if "the allegations of the motion itself are vague and conclusory, are wholly incredible, or even if true, would merit no relief" is it appropriate to deny a motion without a hearing. Shepard v. United States, 533 A.2d 1278, 1283 (D.C. 1987).
Although most of appellant's claims of ineffective assistance are vague, conclusory, or otherwise would not merit relief, at least one claim required further inquiry. Appellant alleged that "Counsel first told the defendant that for $1,500 he would work out a plea agreement with the government for him. Counsel never once reapproach the defendant with any type of plea agreement nor did counsel ever again mention a plea." This allegation, which is not inherently incredible, in view of an earlier plea offer by the government, raised a colorable claim of ineffective assistance. *fn5 Furthermore, the trial Judge's comments about defense counsel's performance at trial lend some support to appellant's expressions of concern about his attorney's performance. *fn6 Accordingly, the trial Judge erred in not conducting a hearing to determine whether appellant could establish his claim of ineffective assistance.
Appellant has raised the further claim that the trial Judge erred by failing to conduct a Monroe/Farrell-type of inquiry at sentencing. The court has held:
When a defendant makes a pre-trial challenge to the effectiveness of counsel -- whether court-appointed or retained -- and requests the appointment of new counsel on the ground that counsel, due to lack of investigation, preparation, or other substantial reason, is not rendering reasonably effective assistance, the trial court has a constitutional duty to ...