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SULLIVAN v. U.S.

District of Columbia Court of Appeals.


November 5, 1998

GLENN SULLIVAN, APPELLANT,
V.
UNITED STATES, APPELLEE.

Appeal from the Superior Court, District of Columbia, Mildred M. Edwards, J.

Before Steadman, Farrell, and Ruiz, Associate Judges.

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

Appellant seeks reversal of the trial court's decision to deny without a hearing his pro se § 23-110 *fn1 motion to vacate his conviction alleging ineffective assistance of trial counsel. We affirm. Our affirmance, however, is without prejudice, so that any subsequent § 23-110 motion appellant may file is not precluded as "successive," based on the denial of the § 23-110 motion at issue in this appeal. *fn1

On October 19, 1993, after a jury trial, appellant was convicted of heroin distribution pursuant to D.C.Code § 33-541(a)(1) (1993). He appealed on grounds that the trial court erroneously admitted evidence of two prior drug sales and that there was insufficient evidence to convict. This court issued an unpublished opinion affirming his conviction, Sullivan v. United States, No. 93-CF-1642 (D.C. Mar. 16, 1995). Appellant was represented by the same counsel at trial and on his direct appeal.

On January 24, 1996, ten months after this court denied his direct appeal, appellant filed a pro se motion to vacate his conviction alleging ineffective assistance of counsel at trial. [721 A2d Page 937]

D.C.Code § 23-110(a). The government opposed this motion asserting that collateral attacks based upon claims of ineffective assistance of counsel are barred if not raised during the pendency of an appellant's direct appeal. See Shepard v. United States, 533 A.2d 1278, 1280 (D.C. 1987); Ready v. United States, 620 A.2d 233, 234 n. 2 (D.C. 1993). Although the government recognized an exception to this bar when a defendant can show "cause" for failure to bring his claim during pendency of his direct appeal as well as resulting prejudice, see Shepard, supra, 533 A.2d at 1281, it argued that appellant made no attempt to show the required cause.

On May 14, 1997, the motions court, citing Shepard, denied appellant's § 23-110 motion without an evidentiary hearing, concluding that appellant was procedurally barred from bringing his claim because he did not raise it on direct appeal and failed to show cause for this failure or resulting prejudice. *fn2 At no time was the motions court informed by appellant or the government that the same counsel had represented appellant at trial and on direct appeal. *fn2 Therefore, based on the arguments before her, the motions judge's ruling was correct. As we review for trial court error and conclude there was none, we affirm.

Facts that have subsequently come to light, however, require that our affirmance not serve as a basis for precluding trial court consideration, on the merits, of appellant's motion claiming ineffective assistance of trial counsel. On appeal to this court, now represented by counsel, appellant argues, and the government concedes, that because appellant's trial counsel was also his appellate counsel, appellant's § 23-110 motion was not procedurally barred for failure to show "cause" as required by Shepard. *fn3 This court has found "cause" when appellant is represented by the same counsel at trial and at subsequent proceedings where an ineffective assistance claim might be raised. See Ramsey v. United States, 569 A.2d 142, 146 (D.C. 1990) (finding appellant free to pursue his ineffectiveness claim in a § 23-110 motion when appellant pled guilty on advice of counsel, thereby precluding a direct appeal, and was represented by the same counsel at a subsequent probation revocation hearing where counsel's ineffectiveness was raised). "It would be a conflict of interest for a lawyer to appeal a ruling premised on the lawyer's own ineffectiveness." Id.; see also Brown v. United States, 656 A.2d 1133, 1135-36 (D.C. 1995) (noting the conflict of interest inherent in having trial counsel represent a defendant at a § 23-110 evidentiary hearing on ineffectiveness). Therefore, although we affirm the motions court's decision to deny appellant's § 23-110 motion, we do so without prejudice to a subsequent filing of a new § 23-110 motion which the trial court can assess on the merits.

Affirmed. [721 A2d Page 938]


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