Appeals from the Superior Court of the District of Columbia; Hon. Nicholas S. Nunzio, Trial Judge.
Rogers, Chief Judge. Steadman, Associate Judge, and Belson, Associate Judge, Retired.*
The opinion of the court was delivered by: Per Curiam
Appellant Eddie Wilson appeals from the denial of his motion pursuant to D.C. Code § 23-110 (1989) to vacate judgments of conviction resulting from his guilty pleas in 1976. He contends that the trial Judge violated Super. Ct. Crim. R. 11 (e) (1990) and the Due Process Clause of the Fifth Amendment by participating in the plea negotiations and by sentencing him to life imprisonment in violation of the plea agreement. He also contends that the imposition of concurrent sentences on 34 counts in his absence requires vacation of those sentences. Because Rule 11 (e) was not in effect when appellant entered his guilty pleas and he has failed to demonstrate manifest inJustice, we affirm.
Appellant was charged in three indictments with over 100 counts, involving various offenses and victims, including first degree murder while armed, armed robbery, arson, and kidnapping. On October 5, 1976, he entered pleas of guilty to thirty-six counts.
Prior to the plea hearing, defense counsel met with the prosecutor in the trial Judge's chambers to discuss a plea agreement; appellant was not present. According to defense counsel's testimony at the hearing on the § 23-110 motion, the trial Judge did not "make any promises," but:
indicated that there was a range of sentence which he was going to give to , and that was going to be a range of -- In the twenties as a minimum, and in the eighties, high seventies and eighties -- I think it was 22 to 28 was going to be the minimum, and whatever three times each of those numbers -- 66 to 84 would be the maximum.
Defense counsel thereafter discussed this with appellant, told him that no promises had been made, and appellant indicated his willingness to enter pleas of guilty. Later the same day the Judge accepted appellant's guilty pleas.
At the plea hearing, the trial Judge, upon confirming that appellant understood that by pleading guilty he was waiving his right to raise an insanity defense, advised appellant of his commitment to a sentencing range from twenty-two to sixty-six years or up to twenty-eight to eighty-four years. *fn1 The Judge also ascertained that no promises, threats or trickery had caused appellant to plead guilty, advised appellant that he could get 300 to 900 years' imprisonment if he went to trial and was convicted, and further advised appellant of the rights that he would waive if he pleaded guilty. Appellant responded affirmatively that he was pleading guilty voluntarily and of his own free will, and that he was satisfied with defense counsel. With respect to the sentencing range, the trial Judge received a negative response to his question whether appellant thought that the Judge was "tricking you with the prospective sentence that I suggested to the attorneys. . . ." After further colloquy between the Judge and appellant, and identification by the prosecutor of the counts to which appellant was to plead guilty, the Judge accepted appellant's pleas to 36 counts and ordered a youth study. *fn2
Subsequently, at sentencing three months later, the trial Judge expressed regret that he had previously committed himself to the sentencing range ("that was the biggest mistake I ever made"), but stated that he would abide by his range-of-sentence commitment. The Judge then sentenced appellant to life imprisonment for murder, observing that "as I understand life imprisonment, it is not less than 20 nor more than 60 years," and to 8 to 24 years for armed robbery, consecutive to the life sentence. The transcript does not reveal further Discussion about sentences on the other counts, but orders entered that date indicate that the Judge imposed concurrent sentences on the remaining 34 counts, and that 16 counts were dismissed; the trial court jacket docket indicates that the sentences were imposed in appellant's presence.
Appellant filed three pro se motions since being sentenced. *fn3 The third pro se motion, dated October 25, 1987, sought to vacate illegal sentences and set aside appellant's convictions, claiming that he should have been sentenced under the Youth Act and that he was given a plea bargain, not by the government, but by the trial Judge, who was biased against him. Appellant also alleged that the illegal sentences resulted from defense counsel's ineffectiveness in failing to investigate and prepare a defense and to object to the illegal sentences. Appellant further claimed that his sentences were illegal sentences because of a merger of counts. The trial Judge denied the motion. Because the trial Judge failed to address appellant's ineffective assistance claim, this court stayed appellant's subsequent appeal, appointed counsel, and directed the Judge to address appellant's ineffectiveness claim. The trial Judge thereafter held a hearing and denied the motion.
Appellant contends that the trial Judge abused his discretion in denying the motion to vacate his sentences because the Judge actively participated in the plea negotiations and agreed to impose a sentence as part of the plea agreement in violation of Super. Ct. Crim. R. 11 (e). He maintains that the Judge's participation rendered his pleas coerced and involuntary under the Due Process Clause of the Fifth Amendment. We treat appellant's motion to vacate his sentence under D.C. Code § 23-110 as a motion under Super. Ct. Crim. R. 32 (e) to withdraw a guilty plea. McClurkin v. United States, 472 A.2d 1348, 1352 (D.C.), cert. denied, 469 U.S. 838, 105 S. Ct. 136, 83 L. Ed. 2d 76 (1984). Denials of such motions will not be reversed absent a clear abuse of discretion and are tested under the "manifest inJustice" standard. Willis v. United States, 468 A.2d 1320, 1322 (D.C. 1983).
Both Super. Ct. Crim. R. 11 (e) and the Due Process Clause limit the role of trial Judges in plea bargaining negotiations. German v. United States, 525 A.2d 596, 601 n.6 (D.C.), cert. denied, 484 U.S. 944, 108 S. Ct. 331, 98 L. Ed. 2d 358 (1987); see United States v. Adams, 634 F.2d 830, 836 n.3 (5th Cir. 1981). The prohibition contained in Rule 11 as amended November 10, 1976, is absolute. German, supra, 525 A.2d at 600 ("the sentencing Judge should take no part whatever in any Discussion or communication regarding the sentence to be imposed prior to the entry of a plea of guilty or conviction, or submission to him of a plea agreement") (quoting United States v. Werker, 535 F.2d 198, 201 (2d Cir.), cert. denied, 429 U.S. 926, 97 S. Ct. 330, 50 L. Ed. 2d 296 (1976)); Super. Ct. Crim. R. 11 (e) (1990) ("the Court shall not participate in any such negotiations"). This prohibition is far more stringent than that provided by Due Process, which permits a "moderate type of participation" in plea negotiations. German, supra, 525 A.2d at 601 n.6 (quoting Damiano v. Gaughan, 770 F.2d 1, ...