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December 30, 1992


Appeals from the Superior Court of the District of Columbia; (Hon. Eugene N. Hamilton, Sentencing and Motions Judge)

Before Ferren and Schwelb, Associate Judges, and Mack, Senior Judge. Opinion for the court by Associate Judge Ferren. Dissenting opinion by Associate Judge Schwelb.

The opinion of the court was delivered by: Ferren

FERREN, Associate Judge: Appellant pleaded guilty to nine counts of a thirty-seven count indictment and was sentenced to prison for a total of 40 to 120 years. *fn1 He appeals from the trial court's order denying his motion to withdraw his guilty plea under Super. Ct. Crim. R. 32 (e) and to vacate his sentence under D.C. Code § 23-110 (1989 Repl.). The primary issue on appeal is whether appellant understood the consequences of a revised plea package the prosecutor and defense counsel arranged during the plea hearing. This revised agreement resulted in appellant's pleading to an additional burglary count ("count 20"), increasing the overall plea package from eight counts (the original agreement) to nine counts. Because neither the trial court nor defense counsel informed appellant of the consequences of the revised plea bargain, i.e., that he was pleading to an additional burglary count that carried with it an additional possible prison sentence ranging from 5 to 30 years, *fn2 we conclude that appellant did not intelligently plead to -- and thus did not intelligently waive his constitutional rights with respect to -- count 20. Furthermore, because the trial court imposed a consecutive sentence of 5 to 15 years for count 20, we conclude that prejudice occurred resulting in manifest inJustice. See Super. Ct. Crim. R. 32 (e). However, we also conclude that appellant knowingly, voluntarily, and intelligently entered guilty pleas to the other eight counts.

This rather unorthodox set of circumstances, flowing from the summary revision of a plea offer inadequately communicated to a defendant, prompts us to suggest a remedy that will alleviate the prejudice of manifest inJustice, afford due process to appellant, and at the same time give the government the option of conserving both prosecutorial and judicial resources. We remand this case to the trial court with the following instructions. If the government wishes to petition the court to vacate appellant's conviction on count 20, it may do so and appellant's convictions on the remaining eight counts will stand. Otherwise, the court must allow withdrawal of appellant's guilty pleas and vacate his convictions and sentence on all nine counts. *fn3


On January 25, 1984, the government filed a thirty-seven count indictment against appellant. The charges covered incidents that occurred on seven different dates in the fall of 1983. The alleged offenses included armed rape, sodomy, armed robbery, first and second degree burglaries, and related assault and destruction of property charges. At a March 1984 status hearing, the prosecutor first announced a plea offer. Once it became clear, however, that appellant did not want to plead guilty, the case remained scheduled for trial. On May 14, 1984 -- the day trial was set to begin -- appellant's case was called for Disposition. While everyone was waiting for the marshal to bring appellant into the courtroom, the prosecutor informed the court that appellant would plead guilty to eight counts of the indictment. Defense counsel affirmed that expectation. After appellant arrived, the court personally addressed appellant, going over each of the eight counts in the offer. Appellant agreed that the counts enumerated by the court constituted the plea bargain he was prepared to accept.

The court told appellant that he was not required to plead guilty to any of the counts and that he had an absolute right to trial by jury if he desired. The court asked appellant if he had any question about what the court had told him. Appellant said no. The court asked appellant if he understood the consequences of pleading guilty, and appellant replied yes. The court informed appellant that if the court accepted his pleas of guilty, it could impose the maximum sentences provided by law and that, in the case of rape, the maximum sentence was life imprisonment. Appellant replied that he understood. The court then stated the maximum/minimum sentence provided by law for each of the counts in the plea agreement and informed appellant that sentences could be imposed concurrently or consecutively. The court then went through the specific allegations of each of the eight counts to which appellant was proffering a guilty plea. For each count, the court either engaged appellant in a brief colloquy about the underlying facts or, in the case of Alford pleas, see supra note 1, asked the government for a complete proffer of what it expected its evidence to be with respect to each offense if the matter were to go to trial. During this part of the hearing, appellant freely admitted to raping one of the complainants (alleged in count 6 of the indictment).

The plea hearing proceeded smoothly until the court reached the eighth and final count of the plea offer. When the court informed appellant of the underlying allegations of that count (count 33 of the indictment) -- that he had carnal knowledge of Complainant "M" forcibly and against her will -- appellant denied that he had committed the offense and stated that he had only entered Complainant M's home and robbed her. when the court asked appellant why he had indicated earlier that he wanted to plead guilty to count 33, he responded, "I didn't know it was that one." At that point, defense counsel asked for the court's indulgence and conversed with the prosecutor off the record for several minutes out of the earshot of both the court and appellant. Following the short Discussion between counsel, the prosecutor informed the court of a revised plea offer:

[The Prosecutor]: Your Honor, in view of what has been said, the Government is revising plea offer slightly [emphasis added].

[The Court]: Yes, sir.

[The prosecutor]: We now would expect Mr. Eldridge to enter a plea of guilty to count 24 of rape, and that would be a straight plea not under the doctrine of Alford, to the rape of [Complainant "W"] and of count 20, burglary in the first degree, with respect to the home of [Complainant W], and count 33, the lesser included charge of assault with intent to -- assault with intent to commit rape on [Complainant M], and that would be under the doctrine of Alford.

The court then restated the prosecutor's proposed revision and asked appellant if he desired to plead as the prosecutor had outlined. Appellant said yes. The court then book appellant through the allegations in each count of the plea revision; appellant admitted that he had committed first degree burglary (count 20) and forcible rape (count 24), and the government presented its expected evidence regarding assault with intent to commit rape under count 33, to which appellant pleaded under Alford. Finally, the court confirmed one more time that appellant understood the meaning of his bargain before accepting appellant's guilty pleas.

On July 19, 1984, the court sentenced appellant to consecutive prison terms which, when aggregated, amounted to 40 to 120 years. The aggregate sentence included 10 to 30 years on the count 24 rape charge and 5 to 15 years on the count 20 burglary charge.

After sentencing, appellant filed several pro se motions to reduce his sentence. Pertinent to this appeal, on October 17, 1984, appellant sent a letter to the court complaining that he had not understood the plea agreement. On January 31, 1985, appellant filed another motion in which he stated, among other things: "I don't understand what my plea was all about; it was never explained to me in full details." The filing which triggered the instant appeal, however, was appellant's June 10, 1985 pro se petition, which inventoried an abundance of alleged infirmities and inJustices. After counsel was appointed, appellant filed a supplemental memorandum which characterized appellant's petition as a motion to vacate sentence under D.C. Code ยง 23-110 and to withdraw his guilty pleas under Super. Ct. Crim. R. 32 (e). In particular, this memorandum focused on appellant's plea to count 20 and argued that it was "in error" because appellant did not intend to plead to nine counts rather than eight, as originally agreed. Following a lengthy evidentiary ...

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