Appeal from the Superior Court of the District of Columbia. (Hon. Noel A. Kramer, Trial Judge).
Before Steadman and Farrell, Associate Judges, and Pryor, Senior Judge.
The opinion of the court was delivered by: Farrell
FARRELL, Associate Judge: Appellant entered a plea of guilty to attempted robbery while armed (D.C. Code §§ 22-2902, -3202 (1989 & Supp. 1994)) and carrying a pistol without a license (id. § 22-3204 (a) (Supp. 1994)). More than fifteen months after the imposition of sentence, he moved to withdraw the guilty plea on the ground that his plea agreement with the government, which the trial Judge had accepted, violated Rule 11 (e) of the Superior Court Rules of Criminal Procedure because it provided that the agreement would be "void" if the court exercised a particular sentencing option. The trial Judge, in retrospect, agreed that the plea had violated Rule 11 (e), but denied the motion to withdraw because appellant had not shown "manifest inJustice" under Super. Ct. Crim. R. 32 (e) or D.C. Code § 23-110 (1989). We affirm.
A four count indictment charged appellant with felony murder while armed (D.C. Code §§ 22-2401, -3202 (1989 & Supp. 1994)) and related offenses which arose from the fatal shooting of Robert Williams in the course of an attempted robbery. On June 17, 1991, appellant, who was nineteen years old at the time, signed a written agreement with the prosecutor by which he would plead guilty to attempted armed robbery and carrying a pistol without a license, in exchange for which the government would dismiss the other charges arising from the homicide. The agreement provided that the government reserved the right to recommend the maximum sentence, i.e., fifteen years to life and one year of imprisonment, respectively, for the two plea charges. It then stated, in the language which prompted appellant's later motion to withdraw:
Mr. Williams waives his right to request that he be sentenced under the Youth Rehabilitation Act and he further agrees that this plea agreement will be void if he is sentenced under this Act. Therefore, the Judge must sentence Mr. Williams to the mandatory minimum sentence of five to fifteen years at the very least. Mr. Williams reserves the right to request lenient sentencing and understands that ultimately, his sentence is a matter solely within the discretion of the Judge. The Judge is not a party to this agreement and may impose any sentence which he or she deems appropriate, so long as it does not exceed the maximum permissible term of incarceration. [Emphasis added.]
Above appellant's signature was a "Defendant's Acknowledgment and Acceptance" indicating that he had carefully reviewed the agreement with his attorney, understood it, and agreed to be bound by it. His attorney signed a "Counsel's Acknowledgment" stating that he had discussed each part of the agreement with appellant and that, in his opinion, appellant's decision to enter it was "informed and voluntary."
When appellant's change of plea came before the court on June 17, 1991, the trial Judge expressed concern about the asserted waiver of appellant's right to a Youth Rehabilitation Act (YRA) *fn1 sentence, stating that, "as you know in this Court, plea agreements with respect to sentencing don't bind Judges. And I will not be a party to any kind of agreement with respect to what the appropriate sentence in the case will or will not be." The Judge had "no idea" at that point whether the YRA option "will be an appropriate sentence in this case," but explained that, "given this agreement, I almost certainly will send Mr. Williams ultimately for a Youth Act study *fn2 so that I can completely satisfy myself that that will not be the appropriate sentence here." The reason for this was that
I understand that if I were to sentence him [under the YRA], the agreement would be null and void. But I want to make it absolutely clear before I ask Mr. Williams the first question on what his date of birth is that I don't intend to be limited in my sentencing options. And if I think he should get the Youth Act sentence for some reason, I'll give it to him and the plea will be void. [Emphasis added.]
In response to the Judge's concern about the effect of a YRA sentence on the agreement, appellant's counsel stated:
I think both parties understood and anticipated the Court's concern on that score. I think the Court should understand that separate and apart from this agreement I would not be asking for a Youth Act study. For reasons unrelated to the plea, I've had many clients, and Mr. Williams is one of them, who have heard enough bad things about the Youth Center and he would prefer to forego that option.
The Judge noted her previous experience of having "defendants request not to be sentenced under the Youth Act," and appellant's counsel reiterated that he would "like to be heard at some point about the reasons why we believe that even though we understand that it has some potential adverse consequences for Mr. Williams, . . . we would prefer that the Court forego that option [i.e., a YRA sentence]."
The Judge then conducted the plea inquiry required by Rule 11(d). In the course of this she explained that by giving up his right to YRA sentencing, appellant was giving up the set-aside possibility under that statute (D.C. Code § 24-806) as well as the possibility of avoiding the mandatory minimum sentence. She also made certain he understood that were she to sentence him under the YRA, the entire plea "would become invalid." *fn3 Knowing these facts, appellant was asked specifically whether he "wished to give up the right to be sentenced under the Youth Rehabilitation Act," and answered, "Yes, ma'am." After hearing the government's factual proffer as to the underlying shooting and robbery, the Judge questioned appellant further and then accepted his plea as voluntary and factually supported.
In the ensuing Discussion of a sentencing date and the possibility that the Judge would nonetheless send appellant for a YRA study, the prosecutor for the first time addressed the waiver provision, stating that it was "based upon representations from [defense counsel] that his client was not interested in the Youth Act" and the prosecutor's corresponding desire "to limit the likelihood that would receive a Youth Act ." What the prosecutor had hoped to forestall was the possibility "that perhaps through silence, could technically waive his right, but nonetheless in a sense hope to get a Youth Act sentence." When the prosecutor added that the provision "was not designed to specifically restrict the Court's discretion," the Judge replied that "I've indicated that I don't intend to let it have that effect ...." She added that it was unfortunate, "since we're available to begin the case for trial this morning[,] to have a provision in here which could end up voiding [the plea agreement]." But she acknowledged that "I don't ...