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November 24, 1993


Appeal from the Superior Court of the District of Columbia; (Hon. Ronald P. Wertheim, Trial Judge)

Before Rogers, Chief Judge, and Terry and Sullivan, Associate Judges.

The opinion of the court was delivered by: Terry

TERRY, Associate Judge: Appellant brings this appeal from a trial court order denying his motion under D.C. Code § 23-110 to withdraw his guilty plea. He contends that the trial court erred in failing to hold a hearing to determine whether he was mentally competent to enter the plea and that the court's subsequent refusal to allow him to withdraw the plea constituted an abuse of discretion. We affirm.


Appellant Johnson was charged in a six-count indictment with armed kidnapping, *fn1 armed rape, *fn2 armed assault with intent to commit sodomy, *fn3 sodomy, *fn4 assault with a dangerous weapon, *fn5 and threatening to injure another person. *fn6 Following a mental examination by Dr. Lawrence Oliver, a psychologist with the Forensic Services Administration, the trial court found Johnson competent to stand trial. *fn7 A trial began on October 2, 1990, with the empaneling of a jury, but the proceedings were halted the next day when, pursuant to a plea bargain, Johnson pleaded guilty to one count of the indictment, the one in which he was charged with armed rape. As part of the plea bargain, the government agreed to dismiss all the remaining counts, as well as the indictment in another case in which Johnson was charged with first-degree burglary and armed rape. On November 27, 1990, the court sentenced Johnson to a prison term of fifteen years to life.

On July 24, 1991, Johnson filed a motion to vacate his sentence and withdraw his guilty plea, *fn8 which the trial court denied without a hearing. From that denial Johnson brings this appeal.


At Johnson's plea hearing, the government proffered that it would prove the following facts if the case went to trial:

Shortly before 11:00 p.m. on May 23, 1990, Johnson and the victim struck up a conversation at a bus stop. The victim, believing she had missed her last bus, eventually accepted Johnson's offer of a ride home. Even though she had just met him, she agreed to walk with him to his home nearby so that he could get his car. They entered the house through the basement, but once they were inside, the victim became concerned for her safety because of Johnson's behavior. When she tried to leave, Johnson picked up a smooth cord and wrapped it tightly around her neck, causing her to gag and choke. He then forced her to disrobe and to have sexual intercourse with him against her will. After the sexual act, Johnson took the victim into the bathroom and told her to clean herself with a washcloth. Finally, at about 2:45 a.m., the victim managed to leave Johnson's house, flagged down a passing police car, and reported what had happened to one of the officers in the car. The officer was prepared to testify that the victim said she had been "raped and strangled," was upset and hysterical, and had what appeared to be rope burns on her neck. The victim returned with the officer to Johnson's house and positively identified Johnson as her assailant. The police recovered the washcloth and the cord, as well as the sheets from the bed where the rape took place. Other corroborative testimony was available from a serologist, a hair and fiber expert, and a physician who examined the victim shortly after the rape.

When the court asked Johnson whether the government's description of the facts of the crime was "fair and accurate," Johnson responded, "Word for word, yeah, I would say it was." He specifically admitted that he had had sexual intercourse with the victim without her consent and that he had put the cord around her neck in order to subdue her. The court then accepted Johnson's guilty plea to the charge of armed rape.


Johnson contends that at the time he entered his plea, issues regarding his mental competency were raised on the record, and that the trial court therefore committed error in failing to hold a hearing on his competency to waive his rights. He also argues that the court erred in failing to hold a hearing on the motion to withdraw his plea because "new factual issues about his competency" had been raised in the motion. We reject both arguments. *fn9

Johnson moved to withdraw his guilty plea pursuant to D.C. Code § 23-110 (1989). Actually, section 23-110 authorizes a convicted defendant to file a motion to vacate his sentence; withdrawal of a guilty plea is governed by Rule 32 (e) of the Superior Court Criminal Rules. *fn10 Although in some cases this distinction is significant, in the case at bar it is not because the trial court treated the motion as if made under Rule 32 (e). Moreover, the standard by which this court reviews the trial court's action under either provision is the same, namely, whether the trial court abused its discretion in denying the motion. See McClurkin v. United States, 472 A.2d 1348, 1352 (D.C.), cert. denied, 469 U.S. 838, 83 L. Ed. 2d 76, 105 S. Ct. 136 (1984); Lorimer v. United States, 425 A.2d 1306, 1308 (D.C. 1981).

The government argues at the outset that the motion should be deemed "procedurally barred" under this court's decision in Shepard v. United States, 533 A.2d 1278 (D.C. 1987). This argument, although creative, is based on a ...

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