APPEAL FROM THE SUPERIOR COURT, MICHAEL L. RANKIN, J. [716 A2d Page 184]
Before Wagner, Chief Judge, Farrell and King, Associate
The opinion of the court was delivered by: Wagner, Chief Judge:
Appellant, Johnny Ray Southall, was indicted for first degree burglary (D.C.Code § 22-1801(a) (1996)), aggravated assault while armed (shovel) (D.C.Code §§ 22-504.1, -3202), mayhem while armed (shovel) (D.C.Code §§ 22-506, -3202), and threatening to injure a person (D.C.Code § 22-2307). He entered pleas of guilty to the lesser-included offenses of second degree burglary and aggravated assault, and the government dismissed the remaining charges at the time of sentencing. The trial court sentenced Southall to consecutive terms of incarceration of four to twelve years on the burglary count and three to nine years on the aggravated assault count. The court also ordered Southall to pay restitution to the victim in the amount of $2015.75 "to be taken from any and all earnings while incarcerated," designed to "compensat[e] . . . the victim for her pain and suffering and medical expenses." In his direct appeal from the trial court's order denying his motion to reduce sentence, Southall argues that the trial court erred in imposing a sentence which included a restitution order to compensate the victim, in part, for pain and suffering and in requiring that all of his income be used to discharge the restitution obligation. In his collateral appeal, Southall challenges the trial court's denial of his motion to withdraw guilty plea. We affirm the trial court's decision, except that we remand for resentencing consistent with this opinion.
Southall was charged originally by complaint on October 24, 1994, with first degree [716 A2d Page 186]
burglary while armed. Following a preliminary hearing on October 26, 1994, he was held without bond pursuant to D.C.Code § 23-1322(b). *fn1 On November 17, 1994, his original attorney was granted leave to withdraw. Michael Frucci was appointed trial counsel, and a status hearing was set for December 27, 1994. At the status hearing, the case was continued for a further status hearing, and a tentative trial date was set for January 23, 1995. In the interim, on January 18, 1995, Southall was indicted in this case on the charges of first degree burglary (with intent to commit an assault), aggravated assault while armed, mayhem while armed, and threatening to injure a person. Southall was arraigned on the indictment on January 25, 1995. At the time of the arraignment, Mr. Frucci reported to the court that Southall had requested that he withdraw as counsel. After considering each of Southall's complaints about Mr. Frucci's representation, the trial court denied the request. *fn1 With Southall's consent, defense counsel requested, and the court granted, a continuance of the trial date until February 27, 1995.
On the scheduled trial date, defense counsel requested a continuance, contending that there was an essential eyewitness whose name Southall had not been able to provide until five days before the trial date. *fn2 Counsel explained further that his investigator had searched for several days, but was unable to locate the witness. Counsel represented further that Southall had given an address only the day before "where the witness might be located." *fn2 The court requested a proffer of the witness' expected testimony, and defense counsel proffered that
[r]ight from the beginning of the case . . . Mr. Southall has told me . . . that there was another individual in the room with the complaining witness and that they were involved in sexual intercourse.
That Mr. Southall came into the room and a fight ensued between him and the other man. And that in the — the complaining witness tried to get between them and in the process was injured but he didn't strike her intentionally, he didn't know if he struck her or the other gentleman.
Counsel also stated that the witness, the man in the apartment with the complainant at the time, would testify that someone else broke [716 A2d Page 187]
the window. Defense counsel explained that Southall had a key with which he let himself into the premises. The trial court denied the motion for continuance and called for a jury, stating: "After giving due consideration to the proffer of evidence, the Court has determined that in the interest of justice it requires that this case proceed."
At the beginning of the hearing, in response to the court's inquiry, defense counsel represented that his relationship with his client seemed fine and that Southall had not mentioned any problems when he saw him the previous day. However, after the court's denial of the request for continuance of the trial, defense counsel stated that Southall wanted him to seek to withdraw as counsel. The trial court rejected the request, stating that it had already explored those issues with him. After a forty minute recess, a venire ...