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District of Columbia Court of Appeals.

April 16, 1998



Before King and Reid, Associate Judges, and WINFIELD[fn*], Associate Judge of the Superior Court of the District of Columbia. [fn*] Sitting by designation pursuant to D.C.Code § 11-707(a) (1995).

The opinion of the court was delivered by: King, Associate Judge:

Walter Demus appeals the ruling of the trial court denying his motion to dismiss a single count indictment in which he was charged with prison breach in violation of D.C.Code § 22-2601 (1995 Supp.). The charge arose out of Demus's unauthorized failure to return to the halfway house in which he had been placed pending trial in another criminal case. Judge Washington denied the motion to dismiss in a comprehensive and well considered order which is set forth in its entirety in the appendix. We are persuaded by the trial court's reasoning, and we adopt Judge Washington's order as the opinion of this court. *fn1 Accordingly, for the reasons stated, the judgment is affirmed.

We write further, however, because we are concerned about one procedural aspect of this case which we raise sua sponte. The appeal here was taken after the entry of a conditional plea of guilty. The governing rule provides in part that:

With the approval of the Court and the consent of the government, a defendant may enter a plea of guilty or nolo contendere, reserving in writing the right, on appeal from the judgment, to review of the adverse determination of any specified pre-trial motion.

Super. Ct.Crim. R. 11(a)(2) (emphasis added). Although it is clear from the transcript of the plea proceeding that Demus was entering his guilty plea conditioned upon his reservation [710 A2d Page 859]

of the right to appeal the denial of the motion to dismiss, and that the government and the trial court agreed to that procedure, there was no written reservation as required by the Rule 11(a)(2). While the government does not challenge Demus's right to appeal the adverse ruling in this case, it urges that we enforce this written requirement in future cases to avoid uncertainty concerning which pretrial ruling is being appealed, or any doubt with respect to whether there has been approval by the government and the trial judge taking the plea. We agree.

Because our rule is identical to the federal rule we look with favor on the federal authorities where we have no clear precedent in this court. See, e.g., Bible Way Church of Our Lord Jesus Christ of the Apostolic Faith v. Beards, 680 A.2d 419, 427 n. 5 (D.C. 1996), cert. denied, ___ U.S. ___, 117 S.Ct. 1335, 137 L.Ed.2d 494 (1997). In that regard, the Advisory Committee Notes to the federal rule emphasize the importance of a written reservation, suggesting that the requirement be enforced:

The requirement that the conditional plea be made by the defendant "reserving in writing the right to appeal from the adverse determination of any specified pre-trial motion," . . . will ensure careful attention to any conditional plea. It will document that a particular plea was in fact conditional, and will identify precisely what pretrial issues have been preserved for appellate review. By requiring this added step, it will be possible to avoid entry of a conditional plea without the considered acquiescence of the government . . . and post-plea claims by the defendant that his plea should be deemed conditional merely because it occurred after denial of his pre-trial motions. . . .

Advisory Committee Notes to Rule 11, Fed. R.Crim.P., 97 F.R.D. 245, 283, (1983). Not all federal jurisdictions, however, agree with the sentiments expressed in the quoted passage, with at least one court suggesting that the lack of a written reservation may be excused under the harmless error provision. *fn2 See, e.g., United States v. Fernandez, 887 F.2d 564, 566 (5th Cir. 1989).

Other federal courts, however, have held, without reaching the issue whether a written reservation should be mandated, that formal adherence to the rule's provision are necessary and essential. See, e.g., United States v. Pierre, 120 F.3d 1153, 1156 (11th Cir. 1997). We are satisfied that the latter view best assures there will be no misunderstanding concerning what was agreed to in the trial court. Therefore, we think that strict adherence to the requirement of a written reservation is the preferable course. Indeed, we have observed that "[f]ailure to specify a particular pretrial issue in the written plea agreement will preclude raising that issue on appeal." See Collins v. United States, 664 A.2d 1241, 1242 (D.C. 1995).

As we have said, the government does not contend that Demus has lost his right to appeal the adverse ruling by the trial court, and we do not, by resolving his appeal on the merits, disagree. In the future, however, the reservation of the right to appeal a specified ruling as part of a conditional guilty plea must be set forth in writing. *fn3 Id.

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