Appeal from the Superior Court of the District of Columbia; (Hon. Warren R. King, Trial Judge)
Before Rogers, Chief Judge, and Terry and Sullivan, Associate Judges.
The opinion of the court was delivered by: Rogers
ROGERS, Chief Judge: The question in this appeal is whether, upon resentencing for a lesser included offense after a guilty plea, the trial court violated appellant's due process rights or abused its discretion by imposing a sentence that is greater than the sentence originally imposed after a trial on the greater offense but a sentence that is still less than the total cumulative sentence previously imposed. We find no error by the trial Judge, and therefore we affirm.
Appellant Vincent A. Johnson was convicted, by a jury, of one count of armed robbery, D.C. Code §§ 2901, -3202 (Repl. 1989), and two counts of assault with intent to rob while armed, id. §§ 501, -3202. Prior to sentencing, he filed a pro se motion for a new trial, on the ground of ineffective assistance of trial counsel, which was denied by the trial Judge. He was sentenced to ten years to life for armed robbery and three years to life on each count of assault with intent to rob while armed. The assault sentences were concurrent with each other, but consecutive to the armed robbery sentence and any other sentence appellant might serve. Appellant appealed his convictions and the denial of his motion without a hearing. The court found no merit to the contentions in his direct appeal attacking his convictions, but remanded the case for a hearing on the motion for a new trial, and if denied, for a hearing on the adequacy of sentencing counsel, or for resentencing. Johnson v. United States, 585 A.2d 766, 768 n.2, 771 (D.C. 1991) (Johnson I). *fn1
In his motion for a new trial, appellant alleged, inter alia, that his trial counsel had failed to advise him of a plea offer made by the government. On remand, appellant and the government reached an agreement whereby they would ask the trial court to vacate appellant's convictions contingent upon his accepting a plea offer and pleading to the lesser included offense of assault with intent to rob. D.C. Code § 22-501 (Repl. 1989). The trial Judge inquired of the government and defense counsel whether there was any legal impediment to proceeding, in view of the outstanding convictions which had been affirmed on appeal. He concluded, in view of the remand of the case, that were appellant to prevail in his motion, the parties would be back to the status that they were in prior to commencement of the trial. The prosecutor suggested that in the interests of judicial economy the government would concede for the purposes of Discussion that the defense has some merit and seek to have the convictions vacated with the understanding that appellant would immediately plead guilty to assault with intent to rob. The prosecutor also advised the trial Judge that the government would not present any evidence on the motion for a new trial or the motion to vacate. The Judge proceeded to conduct an inquiry pursuant to Super. Ct. Crim. R. 11, and accepted appellant's plea to assault with intent to rob. In the course of that inquiry, the Judge advised appellant that he could be sentenced to a maximum term of two to fifteen years. The prosecutor noted that the government reserved its right to speak at sentencing. Appellant took an oath, and after hearing the prosecutor's proffer of proof, admitted to the truth of the proffer. The Judge accepted appellant's plea and agreed into move to vacate [appellant's other] convictions." *fn2
The trial Judge agreed to defense counsel's request that sentencing proceed on the same date, August 2, 1991. Defense counsel stated that appellant had been imprisoned since 1985 and during that time had become a changed man, ceasing to use illegal drugs, regularly attending Narcotics Anonymous meetings, completing his GED program, and having a good disciplinary record in the Central Facility at the Lorton Reformatory. Counsel noted that appellant had worked at the Lorton print shop for a year and a half, currently worked halftime at maintenance, attended a graphic arts school, had a certificate from a pre-industrial training program, and had two grown children in the community and a verifiable address where he could live. Defense counsel requested that appellant be sentenced nunc pro tunc to one to three years' imprisonment.
In response, the trial prosecutor urged that appellant be sentenced to the maximum sentence. The prosecutor reminded the trial Judge that appellant had raised an alibi defense at trial (but did not testify) contrary to appellant's admission upon his plea. Further, the prosecutor represented that a previous plea effort did not work out because appellant did not agree with the factual proffer. Finally, the prosecutor noted "the Court's original sentence" and appellant's "extensive record," and argued that a one to three year sentence "would not be a sentence that would reflect what did, what occurred in this courtroom, what this case has gone through."
After defense counsel responded to the prosecutor's comments, appellant apologized to the court for his crimes, explained why the alibi witnesses' testimony was not necessarily inconsistent with his commission of the crimes, and stated that he had ceased using drugs since he had been in jail and regularly attended Narcotics Anonymous meetings. The prosecutor suggested a contrary view of the alibi witnesses' testimony and informed the Judge that appellant had several prior convictions. *fn3 Defense counsel advised that appellant had no "backup time." The trial Judge sentenced appellant to five to fifteen years and required that he pay $60 for crime victims' compensation. *fn4 Appellant appeals from the judgment of conviction of August 2, 1991.
Appellant contends that because the sentence imposed upon resentencing, of five to fifteen years for the lesser offense of assault with intent to rob, was greater than the previous sentence for the greater offense, of three to life for assault with intent to rob while armed, it impermissibly infringed on appellant's due process rights under North Carolina v. Pearce, 395 U.S. 711, 23 L. Ed. 2d 656, 89 S. Ct. 2072 (1969).
In Pearce, the Supreme Court was confronted with a situation in which a defendant had successfully obtained, on collateral attack, the reversal of his convictions and was retried, convicted after a second trial of the same offenses, and resentenced to a longer sentence than previously imposed. The Supreme Court held that in order to assure "open and equal access to the courts," id. at 724 (citations omitted):
Due process of law . . . requires that vindictiveness against a defendant for having successfully attacked [her or] his first conviction must play no part in the sentence he [or she] receives after a new trial. And since the fear of such vindictiveness may unconstitutionally deter a defendant's exercise of the right to appeal or collaterally attack [her or] his first conviction, due process also requires that a defendant be freed of apprehension of such retaliatory motivation on the part of the sentencing Judge.
Id. at 725. As a result, there is a presumption of vindictiveness that arises when a trial Judge sentences a defendant to a greater sentence for the same offenses after a second trial. Id. at 726; see Alabama v. (James) Smith, 490 U.S. 794, 795, 104 L. Ed. 2d 865, 109 S. Ct. 2201 (1989). Consequently, the Court stated that "whenever a Judge imposes a more severe sentence upon a defendant after a new trial, the reasons ...