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August 30, 1991


Appeals from the Superior Court of the District of Columbia; Hon. Donald S. Smith, Trial Judge

Ferren, Associate Judge. Rogers, Chief Judge, and Pryor, Senior Judge.

The opinion of the court was delivered by: Ferren

On January 12, 1984, appellant pled guilty to armed rape and armed kidnapping involving two separate crimes. The trial court sentenced him to two concurrent prison terms of fifteen years to life. Sixteen months later appellant filed a motion to withdraw his plea, claiming his rape plea was tainted because: (1) he lacked the mental capacity to understand the plea and related proceedings; (2) his counsel rendered ineffective assistance; and (3) his lawyer promised appellant a Youth Act sentence. Finding these claims unavailing, we affirm.


Appellant pled guilty to armed rape in an incident where he and co-defendant William D. Davidson "bumped and raped" the complaining witness. After bumping complainant's car from behind, appellant and Davidson allegedly abducted her at gunpoint and took turns raping her. She escaped and identified appellant both in a photo array and in a line-up. Appellant filed a motion to reduce his sentence on September 7, 1984, which the trial court denied on January 28, 1985. Appellant then filed a motion to withdraw the guilty plea on September 16, 1985, which the trial court, after a hearing, denied on February 26, 1986. Appellant then filed a motion to reopen, reconsider, and vacate his plea on March 10, 1988, which the trial court, after a hearing, denied on March 13, 1989. This appeal followed. *fn1


Appellant argues that he was mentally retarded and could not understand his plea, and that the trial court therefore plainly erred by not holding, sua sponte, a special competency hearing for accepting the plea.

This jurisdiction, unlike many, applies a more stringent standard for determining competency to enter a plea than for competency to stand trial. See Willis v. United States, 468 A.2d 1320, 1323 (D.C. 1983); Frendak v. United States, 408 A.2d 364, 380 (D.C. 1979). However, in Hunter v. United States, 548 A.2d 806, 810 (D.C. 1988), our most recent case on this subject, we noted:

A separate hearing is not required if there is a pre-plea determination of competence based on a psychiatric evaluation and no new factual issues pertaining to competence are raised in the motion to withdraw the plea.

Id., 548 A.2d at 810 n.10; see Willis, 468 A.2d at 1323 (specialized hearing on defendant's plea competence required when "question of mental competence has previously been raised on the record").

At the pretrial suppression hearing, appellant argued that he was not competent to waive his Miranda rights, and at that time a clinical psychologist testified that appellant's IQ was 73 or borderline mentally retarded. The psychologist, however, testified that appellant nonetheless had no trouble understanding him or following the testing instructions. The trial court denied the motion to suppress, noting that appellant "knew what he was doing." Then, during the preparation stages of appellant's defense, a staff psychiatrist found appellant was "competent to stand trial by virtue of having a factual and rational understanding of the charge against him and capable of properly assisting counsel with the preparation of his defense." Appellant's competency was not raised at his plea hearing, and there is nothing in the record of the plea hearing to indicate that appellant did not understand or comprehend the trial court's questions.

At the hearing on the motion to withdraw the plea, the trial court ruled that appellant had been competent to understand the plea proceedings twenty-one months earlier:

But, on the question of whether he understood [his plea], there is not one scintilla of evidence before this Court by way of medical evidence that he did not understand the plea and that he was not able, in fact, to enter an intelligent plea. In fact, the medical testimony is to the contrary, because he was found competent to stand trial and competent to consult with his lawyer. . . . So, we must say, in all candor, that this defendant knew and was able to understand exactly what his options were. In fact, this defendant has impressed the Court as being a street-wise person. . . . he knew exactly what he was doing, made an intelligent choice and pled guilty.

No new evidence or factual issues bearing on appellant's competency were presented at the plea hearing. *fn2 Compare Hunter, 548 A.2d at 807 (trial court ignored record evidence questioning competence: difficulties in communicating with defendant and changing versions of crime) with Willis, 468 A.2d at 1324 (trial court did not abuse discretion in not holding plea competence hearing because appellant "raised no new factual issues, making only bold, unsubstantiated assertions of mental incompetence"); see United States v. Masthers, 176 U.S. App. D.C. 242, 244, 539 F.2d 721, 723 (1976) (record evidence of defendant's incompetence should have alerted trial court to hold a plea competence hearing). In Willis, this court refused to find error because all psychological examinations of the defendant indicated he suffered only from personality disorders and that he was a "malingerer." Id., 468 A.2d at 1324. In the present case, in addition to a lack of record foundation for asserting appellant's incompetence to plead, every person on record opined that appellant was able to understand and evaluate his options: the trial court, Attorney Pleshaw, Pleshaw's investigator Samuel, and the psychologist who presented testimony on appellant's IQ at the suppression hearing. This evidence is in addition to the psychiatrist's finding that appellant was competent to stand trial. With this record, we cannot say the trial court erred in failing to inquire at a plea hearing, sua sponte, into appellant's competence to plead guilty. See State v. Watson, 198 Conn. 598, , 504 A.2d 497, 501 (1986) (insufficient record evidence to support sua sponte plea competence inquiry).


To reverse for the second claimed error, we must find that the trial court abused its discretion in denying appellant's motion to withdraw his guilty plea for ineffective assistance of counsel. 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); Lorimer v. United States, 425 A.2d 1306, 1308 (D.C. 1981). Appellant's burden is substantial; post-sentence pleas are withdrawn only to correct "manifest inJustice." Super. Ct. Crim. R. 32(e); see McClurkin, 472 A.2d at 1352; Willis, 468 A.2d at 1322. Moreover, appellant must show that counsel's advice "fell short of the range of competence demanded of attorneys in criminal cases" and motivated his plea. McClurkin, 472 A.2d at 1360 (quoting Gibson v. United States, 388 A.2d 1214, 1215 n.4 (D.C. 1978); see Hill v. Lockhart, 474 U.S. 52, 58-60, 106 S. Ct. 366, 88 L. Ed. 2d 203 (1985).

Appellant raises several ineffectiveness challenges that can be disposed of summarily. His counsel, Robert Pleshaw, took actions consistent with a competent, spirited defense. Pleshaw successfully moved to sever appellant's case from Davidson's. He also attempted to suppress both the complainant's identifications and appellant's statements to the police. To prevail on many of appellant's claims, such as counsel's alleged failure to pursue an alibi, we would have to credit appellant or his mother, rather than Pleshaw. But the trial court explicitly credited Pleshaw:

In regard to the ineffective assistance, we simply do not believe the testimony of the defendant, would credit the testimony of Mr. Pleshaw and we rather marvel at the plea bargain that he was able to work out for the defendant. . . . We did not and do not find the testimony of [defendant's] mother to be very persuasive in connection with the possible alibi and one must wonder why she failed, on so many occasions, to tell anyone about it. . . . The convenience of her answers on so many aspects of this case -- I call it convenient forgetfulness.

Assessing the credibility of witnesses is uniquely a trial court's function, and we reverse only if we find those assessments plainly wrong or lacking evidentiary support. See Taylor v. United States, 565 A.2d 992, 994 (D.C. 1989); Nche v. United States, 526 A.2d 23, 24 (D.C. 1987). The trial court's ruling was neither plainly wrong nor lacking evidentiary support. *fn3


Appellant argues that he pled guilty only because Pleshaw promised he would receive a Youth Act sentence. Pleshaw testified that he told appellant he was more likely to receive YCA treatment if he pled guilty but that he did not promise what sort of sentence appellant would receive. In addition to the trial court's crediting Pleshaw, the record at the plea hearing belies appellant's claim. Pleshaw, at the plea hearing attended by appellant, stated: "I have indicated to that I have no idea what kind of sentence you will impose, whether a Youth Act sentence or an adult sentence." The trial court told appellant: "Now, on these sentence, if you were sentenced as an adult and received a sentence, you would go to the penitentiary. You wouldn't go to the youth center." Moreover, appellant recalled that at the hearing challenging the plea, the trial court did tell him he might receive an adult sentence. Appellant's argument is accordingly unsupported on this record.


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