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Bennett v. United States

District of Columbia Court of Appeals


February 25, 1999

GREGORY BENNETT, APPELLANT,
v.
UNITED STATES, APPELLEE.

Before Wagner, Chief Judge, Farrell, Associate Judge, and King, Senior Judge. *fn*

The opinion of the court was delivered by: Senior Judge King.

Notice: This opinion is subject to formal revision before publication in the Atlantic and Maryland Reporters. Users are requested to notify the Clerk of the Court of any formal errors so that corrections may be made before the bound volumes go to press.

Appeal from the Superior Court of the District of Columbia

(Hon. Harold L. Cushenberry, Jr., Trial Judge)

Argued November 12, 199

Dissenting opinion by Chief Judge Wagner at p. ___.

King, Senior Judge: Gregory Bennett appeals the trial court's denial of his motion to withdraw his guilty plea to second degree murder while armed, in violation of D.C. Code § 22-2403 (1981), which was filed before sentencing. On appeal, Bennett claims the trial court abused its discretion in denying the motion to withdraw his guilty plea where Bennett's medical condition at the time of the plea precluded his entering the plea in a knowing and voluntary manner and where he had consistently asserted his innocence of the charges against him. Concluding that the trial Judge did not abuse discretion in denying the motion to withdraw, we affirm.

GUILTY PLEA PROCEEDING

Bennett entered his guilty plea on February 7, 1995, before Judge Harold L. Cushenberry, Jr. The case had been scheduled for trial the day before, *fn1 however, trial did not begin because of the unavailability of a defense witness. The trial court did consider pre-trial motions, during the course of which the possibility of a guilty plea was discussed. *fn2 However, when asked by the trial Judge what he had decided with respect to the plea agreement, Bennett cried and said, "I don't know nothing about that case." He also said, "I'm not trying to plead guilty to nothing." *fn3 Later that day, government counsel stated that the plea offer was good until 10:00 a.m. the next morning, when it would be withdrawn.

The next morning, after the trial court determined that the trial would have to be continued due to the unavailability of the defense witness, who was hospitalized, Bennett's counsel ("plea attorney" or "plea counsel") stated that he "believe[d] [his client was] prepared to accept the plea offer." The trial court then conducted the proceeding resulting in the acceptance of a guilty plea.

The government proffered that on September 8, 1993, at approximately 4:30 a.m., a group of three people which included the murder victim, Sean Gleason, went to an apartment building in Southeast Washington for the purpose of purchasing crack cocaine. They spoke with Tony Fairwell, the occupant of an apartment in the building, who told them he would take them to someone he knew who could provide them with what they were seeking to buy. Meanwhile, three acquaintances of Fairwell, one of whom was Bennett, decided to rob the prospective buyers after they returned with Fairwell from making their purchase.

Bennett and his two companions, Lewis Curtis and Ricky Walker, confronted the three buyers outside the apartment building. One of the three in Bennett's group was armed with a loaded and operable handgun and the government proffered that some of the evidence tended to show that Bennett had the gun, while other evidence tended to show that Walker had the gun. *fn4 Bennett, Curtis, and Walker permitted Fairwell to proceed into the apartment building and told the other three to hand over any money or drugs they had. After the victims denied having money or drugs, Gleason was shot in the head. He fell to the ground and all the others fled the scene; Gleason died as a result of the bullet wound. Walker and Curtis subsequently were apprehended, pleaded guilty to offenses arising out of the incident, and agreed to testify against Bennett.

Following the government's proffer and the trial Judge's recitation of the elements of second degree murder while armed and the government's burden of proof, the trial Judge asked Bennett, "Is the government's statement correct?" Under oath, Bennett replied, "Yes, sir." The Judge then asked, "Mr. Bennett, how do you wish to plead to the charge of murder in the second degree while armed? Are you guilty or not guilty?" Still under oath, Bennett answered, "I'm guilty."

Bennett's answers to the questions asked by the trial Judge to determine whether Bennett understood the consequences of his plea were brief but responsive. *fn5 However, when the trial Judge asked Bennett if he had had enough time to think about his decision to plead guilty, Bennett said, "No, sir." When pressed on the point, Bennett stated, "I haven't had enough time to really think about this, the plea bargain." Because the prosecution had indicated that the plea offer would be withdrawn if no plea was entered that day, the trial Judge reminded Bennett that he had to make the decision at that time. Bennett responded, "The only thing I want to say, it's hard to say if it's -- in one day to let me know if I want to go to trial or not, because I only had one day to decide this. So it's hard to tell -- to say if I can go to trial or not because -- ." The trial Judge again indicated that the government offer would be withdrawn, stating, "It's either today or it's never." Bennett then said he admitted his guilt. *fn6

HEARING ON MOTION TO WITHDRAW GUILTY PLEA

On March 7, 1995, Bennett, through his attorney, filed a motion to withdraw the guilty plea and on June 30 and July 14, 1995, Judge Cushenberry conducted a hearing on the motion. Bennett testified that he did not shoot Gleason, that he was not present at the scene of the murder, that he was unfamiliar with the area where the murder occurred, that he did not know Lewis Curtis at all, and that he didn't know Ricky Walker but had "seen him before." In addition, he related that he had asked his plea attorney's investigator to show him pictures of the place where the murder occurred because he was unfamiliar with that specific location. *fn7

Bennett also testified to a history of frequent epileptic seizures since 1987. After suffering a seizure, Bennett claimed, he would lose his memory for "about five or six hours." He stated that in the days following a seizure he feels "[r]eal groggy and kind of out of it. You can't really remember a lot and then you be like worried and confused about a lot of things." *fn8 He testified that his medication also affected his mental functioning. "The phenobarbital have you lose your speech, it have you like a lapse and have you forgetting a lot."

Bennett said that he had consistently told his lawyer he did not want to plead guilty. "[E]very time he came to see me I always told him I'm not taking the plea in this case." He testified that he told his lawyer the same thing the evening of Monday, February 6, 1995, when counsel asked him if he wanted to plead guilty, and again the next morning. He believed he would be going to trial when he went to court on Monday, February 6, and again on Tuesday morning. He also said that he had expressed dissatisfaction with his lawyer through several letters to the court because he felt the lawyer was not working in his best interest and only wanted Bennett to plead guilty so he could get the case over with.

Bennett claimed he did "not really" remember pleading guilty. He testified that two days before pleading guilty, on February 5, 1995, he suffered a "really bad" seizure and did not get himself together until four or five days later. He stated that when his lawyer "asked [him] about the plea," he didn't know what he was saying and just "said okay" without realizing what he was agreeing to. He said that he "didn't really understand the questions" the Judge asked him, even though he "said yeah, I understand the plea." He also testified that he signed the jury trial waiver form because he believed it was "for a jury." *fn9

Bennett asserted that later on the day that the plea was entered, he called his attorney and told "an investigator or somebody" at his attorney's office that he wanted to withdraw his plea. He also claimed he asked his sister to contact his attorney to request that his plea be withdrawn, since Bennett was having trouble reaching his attorney. Bennett did not again speak with his attorney until March 2, 1995, when the lawyer visited him at the prison facility in Lorton, Virginia, and Bennett told the attorney he wanted to take his "plea back" because he was innocent.

Bennett's father testified that his son began having seizures when he was nine years old and that the seizures had become progressively worse as Bennett got older. The father testified that when Bennett has a seizure, he goes "into a shake," blacks out and is "dizzy," "druggy," and "not himself" for up to a week following the seizure. Bennett's father suggested that his son's intelligence had been affected by repeated injury to his head resulting from falls which occurred during seizures. The father further speculated that his son's mental problems were also a result of over-medication received in prison.

On cross-examination, Bennett's father testified that it was readily apparent to him and to others when his son had recently suffered a seizure. Following a seizure, Bennett would stand "with his head down" or "look sick." Also, "[s]ometimes you'll call him and he don't answer right away." In addition, the father related that "[s]ometimes he say yes when he should say no." The father testified that it was clear that his son had recently suffered a seizure on the day he pled guilty. *fn10

Bennett's father also testified that when he saw his son following the guilty plea two or three days later, his son initially "didn't really know he had pleaded guilty." The father claimed that when he asked his son why he had pled guilty his son said that he did what his lawyer told him to do.

Dr. Khurrolah Abbei, a witness called by the government, testified that he was responsible for monitoring the phenobarbital and dilantin Bennett took to control his seizures. Because Dr. Abbei began treating Bennett when Bennett was transferred to Lorton following the guilty plea, *fn11 the doctor was unable to testify from personal knowledge whether Bennett had a seizure on February 5, 1995, two days prior to the guilty plea. In addition, Dr. Abbei related that he had never observed Bennett either during or following a seizure and conceded that he therefore could not testify from personal experience to the effect Bennett's seizures had on him. Dr. Abbei did state, however, that Bennett suffered from grand mal seizures, which are "the worst kind of seizure" and can last up to half an hour. Dr. Abbei also testified that it takes about half an hour to recover from the effects of a grand mal seizure.

Dr. Abbei informed the court that Bennett's medical records from the spring of 1995 indicated that Bennett had experienced seizures at Lorton during that period. In addition, Bennett's medical records from that period showed that Bennett had complained on May 18, 1995, that he didn't want to take his prescribed phenobarbital because it was making him sleepy, that he had failed to take his prescribed medication for several days after that complaint, and that he reported having a seizure on May 22, 1995. Finally, Dr. Abbei testified, based on his review of the medical records, that Bennett had normal levels of dilantin and phenobarbital in his system on February 7, 1995, the day he pled guilty. He also observed that typical side effects of phenobarbital include drowsiness, lack of alertness, and slurred speech, but that these effects should subside within a week of beginning to take the drug. *fn12

Another government witness, the plea attorney, *fn13 testified that he had discussed the guilty plea with Bennett on the evening of Monday, February 6, prior to the court proceeding, when the plea attorney met with Bennett at the District of Columbia Jail for more than an hour, and again the next morning, before Bennett pled guilty. *fn14 When asked whether it "seemed" that Bennett understood the substance of those conversations and was able to communicate with him concerning the plea, the attorney responded, "Most definitely." Plea counsel also testified that there was nothing unusual or different about his conversations with Bennett just prior to the plea as compared with previous conversations.

On cross examination, plea counsel agreed that Bennett was "not the most sophisticated client in the world." However, counsel indicated that in general Bennett did not have difficulties communicating or comprehending; rather, it was counsel's belief that "he was stubborn."

Plea counsel also testified that he was aware that Bennett was subject to seizures and that Bennett was taking dilantin; however, he was unaware that Bennett was also taking phenobarbital or any narcotic drug. Moreover, plea counsel testified that he had not believed the dilantin would affect Bennett's ability to understand the plea proceeding, since his concern prior to that time had been with the failure of prison staff to provide Bennett with his medication. Further, plea counsel testified that he believed Bennett's medication and, apparently, seizure problems had been resolved in the fall of 1994. *fn15

Plea counsel also testified that he was aware of Bennett's family's concerns that Bennett did not understand the significance of the plea proceeding and of his family's belief that he was innocent. *fn16 Counsel stated that he did not raise the family's concerns about Bennett's lack of comprehension to the court because he believed Bennett did, in fact, understand the significance of the plea proceeding. *fn17

Finally, plea counsel testified that the first contact he had with Bennett following the guilty plea was on March 2, 1995, -- over three weeks after the plea -- when he visited Bennett at Lorton regarding sentencing. *fn18 At that time, Bennett "announced before we even said hello to each other that he wanted to withdraw the plea."

THE TRIAL COURT'S RULING ON THE MOTION

At the Conclusion of the hearing on July 19, 1995, Judge Cushenberry, ruling from the bench, denied the motion. The Judge remarked that he had conducted the evidentiary hearing "in fairness to Mr. Bennett and to his family who had raised concerns about what they perceived to be his understanding and awareness of the proceedings." Other factors bearing on his decision to conduct the extensive hearing included the court's lack of awareness at the time of the plea that Bennett was taking prescribed psychotropic medication *fn19 and the Judge's own lack of independent "recollection specifically of what happened *fn20 and how Mr. Bennett sounded" *fn21 at the plea hearing.

The trial court found that although Bennett had raised concerns about his attorney's performance prior to the guilty plea, Bennett "indicated he was completely satisfied with his lawyer and . . . withdrew the letter" when the court addressed his concerns on February 6, 1995.

The trial Judge credited Bennett's father's testimony that when Bennett experienced seizures, it took a day or two to recover full mental alertness. *fn22 However, the trial Judge did not credit Bennett's testimony or that of his father that Bennett had suffered a seizure the Sunday before the plea because of the absence of any record of that seizure in Bennett's records. *fn23

The trial court credited plea counsel's testimony that "he had no trouble communicating with [Bennett]" on the night before the plea and on the morning of the plea, that counsel "had fairly detailed Discussions with Mr. Bennett about his case on the night before the plea," and that Bennett "appeared to respond appropriately to [counsel's] questions" on the night before the plea.

With respect to Bennett's demeanor and conduct at the plea hearing, the Judge stated that he:

"does not attribute [Bennett's] reluctance to plead guilty . . . to any adverse reaction to the medication he was taking or to any decreased mental alertness attributable to a recent seizure. Rather, the court attributes [the] crying he did on February 6th as well as his initial comments to the court that he wanted to have more time to consider the plea offer . . . to the normal anxiety experienced by any person who had long committed himself and members of his loving, supportive family to a different trial strategy and [who] was faced with an extraordinarily different decision to waive his right to jury trial and acknowledge his personal criminal responsibility."

The trial court did not credit Bennett's testimony at the withdrawal hearing that he did not understand the plea proceedings:

"His assertions to the contrary at this time are flatly refuted by the solemn statements he made under oath during the plea proceedings. He of course did acknowledge appropriately, although he didn't speak a lot, he spoke in soft terms, fundamental information about himself, his age, his education, his full understanding of the penalties of the offense [he would] be subjected to, including the mandatory minimum. He expressed satisfaction with his attorney at the time, and acknowledged his guilt, saying I admit my guilt when I pressed him with respect to his liability under an aiding and abetting theory."

". . . [H]aving listened [to the tape] . . . although Mr. Bennett did speak in soft tones, there's nothing that I heard in his voice that suggests to me that when he responded to the Court's questioning he did not understand the choice he was making . . . . He spoke softly, he did not slur his speech, did not sound drowsy or disoriented in any way. He did seem resigned to mak[ing] a very difficult decision. . . ."

"To my mind, the Discussions he had with me indeed demonstrate that he had an awareness of the significance of the decision he was making, at least in this respect. He had twice before talked about needing more time or wanting more time. More time . . . to think about the decision whether to go to trial or plead guilty. That suggests to me not someone who [was] completely unaware of the choices he [was] making but [rather someone who] was aware of the difficulty of the choices he [was] making and [who] want[ed] to make [a choice].[ *fn24 ]"

The trial court addressed the importance of the plea process, emphasizing the weight to be given a defendant's admissions under oath. "Whenever a person pleads guilty and a Judge goes through a lengthy inquiry and they're put under oath and they admit their criminal responsibility, those solemn promises made in open court are significant and they're not likely to be withdrawn."

As the trial Judge acknowledged, he was required to apply the "fair and just" standard enunciated in Gooding v. United States, 529 A.2d 301 (D.C. 1987). In applying that standard, the following findings were made. First, the trial Judge found that Bennett had "clearly" asserted his legal innocence but that he had "offered no more than a general denial to the offenses." Concerning the promptness of the motion to withdraw, the trial Judge found that it was "unclear" when Bennett first attempted to contact his attorney by telephone in order to withdraw the plea but that he had no direct communication with his attorney until March 2, 1995. He found that a withdrawal of the guilty plea would not prejudice the government. The trial Judge finally noted, "I have searched my mind to determine whether or not there's any fair and just reason attributable to [Bennett's] use of psychotropic medication" warranting dismissal of his guilty plea and concluded that there was none.

LEGAL DISCUSSION

Bennett contends that the trial Judge abused his discretion in denying his motion to withdraw his guilty plea in light of Bennett's consistent assertion of innocence of the charges against him and in light of his medical condition, which precluded his pleading guilty in a knowing and voluntary manner. Bennett asserts that a number of other factors also bear on the issue, including: his unwillingness to plead guilty and ultimate acquiescence in the face of coercion by his counsel and the trial court; the failure of the trial court and of plea counsel to probe the effects of Bennett's epileptic seizures and medication on his ability to plead guilty knowingly and voluntarily; Bennett's diminished mental acuity as a result of repeated epileptic seizures; and Bennett's alleged attempt to contact counsel almost immediately following the plea to tell counsel to withdraw the plea. Taken together, Bennett contends, these factors warrant a reversal of the trial court's denial of the motion to withdraw the guilty plea.

Under Rule 32 (e), a defendant may successfully move to withdraw a guilty plea by establishing either of two separate and independent grounds. He may show that there was a fatal defect in the proceeding at which the guilty plea was taken, see Super. Ct. Crim. R. 11, or that Justice demands withdrawal under the circumstances of the individual case, i.e., it would be "fair and just" to allow withdrawal of the plea. Springs v. United States, 614 A.2d 1, 3 (D.C. 1992) (citation omitted). In this case, Bennett concedes that there was no Rule 11 violation; therefore we only consider whether the trial court abused its discretion in not allowing withdrawal of the plea on "fair and just" grounds. Gooding, supra, 529 A.2d at 306 (quoting Kercheval v. United States, 274 U.S. 220, 224 (1927)).

Initially, we note that "withdrawal of a plea is not a matter of right, and the determination of whether the defendant has met the 'fair and just' standard for withdrawing the guilty plea is left to the trial court's sound discretion." Binion v. United States, 658 A.2d 187, 191 (D.C. 1995) (citations omitted); United States v. Barker, 168 U.S. App. D.C. 312, 323, 514 F.2d 208, 219 (presentence motion to withdraw guilty plea is addressed to sound discretion of trial court and reversal on appeal is "uncommon"), cert. denied, 421 U.S. 1013 (1975). See also United States v. Ramos, 810 F.2d 308, 311 (1st Cir. 1987) (federal appeals court will not set aside district court's findings concerning motion to withdraw guilty plea "unless a defendant unequivocally shows an abuse of discretion"); United States v. McKoy, 207 U.S. App. D.C. 112, 113, 645 F.2d 1037, 1039 (1981). Therefore, we will not disturb the trial court's denial of a motion to withdraw a guilty plea, under the fair and just standard, absent a clear showing that the trial court abused its discretion.

Under the fair and just standard, the factors a trial court must consider when evaluating a motion to withdraw a guilty plea include: (1) "whether the defendant has asserted his or her legal innocence;" (2) "the length of the delay between entry of the guilty plea and the desire to withdraw it;" and (3) "whether the accused has had the full benefit of competent counsel at all relevant times." Springs, supra, 614 A.2d at 4 (citations omitted). "'[N]one of these factors is controlling and the trial court must consider them cumulatively in the context of the individual case.'" Id. (citation omitted). Moreover, the "'circumstances of the individual case may reveal other factors which will affect the calculation . . . under the fair and just standard.'" Id. (citation omitted). "[W]hen analyzing the [first] factor, the plea Judge should consider the strength of the government's proffer and, if there has been a valid assertion of innocence, the reason the claimed defense was not put forward at the time of the plea." Id. (citation omitted). "[W]hen analyzing the [second] factor, the court should consider whether the government would be prejudiced by a withdrawal of the plea measured as of the time the defendant sought to withdraw it." Id. (citation omitted).

Assertion of Legal Innocence

Bennett argues that the trial court's finding that his assertion was "general" in nature is belied by his testimony at the plea hearing that he was not present at the scene of the murder, did not participate in the murder, and did not even know one of the alleged co-participants in the murder. Bennett also emphasizes the fact that "he continually maintained his legal innocence," both before and after the plea hearing, "as evidenced by his repeated assertions that he was not on the scene of the shooting death with which he had been charged." Bennett maintains that his testimony at the plea withdrawal hearing provides a cognizable legal defense under the fair and just standard, particularly in light of a government case against Bennett which he claims was not overwhelming. *fn25

As we emphasized in Springs, "[A] claim of innocence is an important, but not dispositive, factor to be weighed by the trial Judge in deciding whether, in the exercise of discretion, a motion to withdraw a guilty plea, under the fair and just standard should be granted." Id. at 5. Therefore, we must consider whether the trial court abused its considerable discretion in denying Bennett's motion to withdraw his guilty plea in light of Bennett's claim that he was not present at the scene, together with the absence of any explanation for not asserting this defense at the plea hearing. Id. at 4.

In Springs we concluded, "It is not enough . . . simply to claim one is innocent or that one did not commit the offense. 'A bald assertion of innocence . . . without any grounds in support thereof will not give a defendant the absolute right to withdraw his guilty plea.'" Id. at 5 (citing Patterson v. United States, 479 A.2d 335, 340 (D.C. 1984)). Rather, "the movant must set forth some facts, which when accepted as true, make out some legally cognizable defense to the charges, in order to effectively deny culpability." Id. (citations omitted). *fn26

We recognize that Bennett, in claiming that he did not participate in the murder and was not even present at the crime scene, has presented what can be described on its face as a legally cognizable defense. Still, it is a defense unsupported by any other evidence, including any representations as to his whereabouts or habitual behavior suggesting why he could not have been at the scene of the shooting. *fn27 Furthermore, "the mere assertion of a legally cognizable defense is [not] always a sufficient condition for securing withdrawal of a plea." Barker, supra, 168 U.S. App. D.C. at 325, 514 F.2d at 221. *fn28 See also Austin v. United States, 356 A.2d 648, 649 (D.C. 1976); McKoy, supra, 207 U.S. App. D.C. at 114, 645 F.2d at 1039. We agree with the Barker court's observation that if the mere assertion of a legally cognizable defense were a sufficient condition for withdrawal, "the guilty plea would become a mere gesture, a temporary and meaningless formality reversible at the defendant's whim" rather than "'a grave and solemn act . . . accepted only with care and discernment.'" 168 U.S. App. D.C. at 325, 514 F.2d at 221 (quoting Brady v. United States, 397 U.S. 742, 748 (1970)). *fn29

Moreover, in this analysis we place considerable reliance upon the weighing by the trial Judge of Bennett's sworn adoption of the facts proffered at the plea hearing against his later claim of innocence. In those circumstances the Judge is not required to accept, at face value, the claim of innocence asserted. In that regard, we have squarely held that a trial Judge need not credit an assertion of innocence that directly contradicts a sworn prior statement of culpability made by the defendant. Austin, supra, 356 A.2d at 649. In Austin we decided, under circumstances very similar to those presented here, that the trial court could properly reject the defendant's claim at the plea withdrawal hearing that he was unaware of the perpetrators' intent to commit burglary, in light of his clear admission at the time of the plea that he had knowingly assisted and advised the perpetrators in the commission of the offense. See also Springs, supra, 614 A.2d at 6-7 ("The government's proffer [which appellant adopted under oath] together with appellant's sworn statements made at the time of the pleas provided a factual context which overwhelms appellant's lame and unsupported claims of non-culpability.").

Here, as in Austin, the trial Judge weighed the admissions under oath that were made at the time of the entry of the guilty plea against Bennett's contrary assertions at the withdrawal hearing, and found the former more believable. In short, as Austin unequivocally holds, in evaluating Bennett's claim of innocence under the fair and just standard, the trial court was free to discredit Bennett's later testimony that he did not participate in the murder and was not present at the crime scene, in the face of Bennett's admissions at the plea hearing that he in fact took part in the commission of the offense.

Our holding in Austin, which permits the trial Judge to disbelieve a claim of innocence, would appear to be at odds with language in other opinions to the effect that the trial court "should not attempt to decide the merits of the proffered defense, thus determining the guilt or innocence of the defendant." Gearhart v. United States, 106 U.S. App. D.C. 270, 273, 272 F.2d 499, 502 (1959). *fn30 We think that in these circumstances -- where the proffered defense was so sketchy -- there is no real conflict between the two principles, but even if there is conflict, the rule of Austin governs. In that regard, we note that the Gearhart court cited no authority for the observation quoted above and the principle stated is best characterized as obiter dictum. Moreover, in Gearhart, there was no conflict between the assertion of innocence at the plea withdrawal hearing and prior sworn testimony given by appellant. *fn31 Similarly in Gooding, where we quoted the cited passage from Gearhart, appellant's coercion defense was not at odds with his testimony at the plea hearing. See infra at 28-29 and note 34. *fn32 Therefore, although we have said that as a general proposition the trial Judge should not ordinarily assess the merits of a proffered defense at a plea withdrawal hearing in cases where some affirmative defense was being asserted, in Austin we held that a trial Judge was free to discredit a defendant's assertion of innocence when it directly contradicted the defendant's prior sworn statement of culpability. 356 A.2d at 649. Such a finding by the hearing Judge is particularly compelling where, as in the present case, the later assertion of innocence is unsupported by any other evidence.

Finally, no weight should be given to Bennett's assertion the day before pleading guilty that he knew "'nothing about [the] case.'" The decisive fact is that, when confronted with the prosecutor's factual proffer at the plea proceeding, Bennett affirmed it and offered no claim of innocence. "[A] court, in addressing a withdrawal motion, must consider not only whether the defendant has asserted his innocence, but also the reason why the defenses now presented were not put forward at the time of the original pleading." Barker, supra, 168 U.S. App. D.C. at 325, 514 F.2d at 221 (citations omitted) (emphasis added). *fn33 In Gooding, for example, appellant, who asserted his innocence to a kidnapping charge based on a coercion defense, convincingly maintained that his fear of reprisals by his co-defendant prevented him from asserting this defense at the time of the original pleading. *fn34 In contrast, Bennett has offered no reason for failing to assert his innocence at the time he entered his guilty plea or at any time soon thereafter. Therefore, in assessing his assertion of innocence under the fair and just standard, we conclude that Bennett's lack of any explanation for his failure to assert his innocence at the time of the plea also weighs against him on this prong of the test. See McKoy, supra, 207 U.S. App. D.C. at 114, 645 F.2d at 1039 (defendant's lack of "tenable explanation" for his failure to raise possibility of insanity defense prior to plea withdrawal hearing weighs against him in consideration of assertion of innocence factor).

In Conclusion, we are persuaded that the trial Judge was free to discredit Bennett's claim of innocence where his testimony on that issue conflicted directly with his sworn acknowledgment of culpability at the plea hearing and where Bennett offered neither evidence in support of his innocence claim nor a convincing explanation for his failure to assert that claim at that time. Therefore, we hold that there was no abuse of discretion in the trial Judge's determination that the "claim of innocence" factor should not weigh in Bennett's favor.

Length of Delay

The length of delay between entry of the guilty plea and the expression of a desire to withdraw it is the second factor to be considered in determining whether the trial court abused its discretion in denying a motion to withdraw a guilty plea. Springs, supra, 614 A.2d at 7 (citation omitted). "A swift change of heart is itself a strong indication that the plea was entered in haste and confusion; [w]ithdrawal motions promptly made are regarded with particular favor." Id. (internal quotations omitted).

Bennett argues that it was error for the trial court to deny his motion in light of his "uncontradicted testimony" at the plea withdrawal hearing that Bennett attempted to reach his attorney on the same day he pled guilty, the fact that Bennett's sister spoke with his attorney two days later, and the fact that Bennett's first words to his attorney on March 2 concerned his desire to withdraw the plea.

The trial Judge concluded, however, that it was "unclear at what point Bennett may have first left a telephone message with [his attorney] raising his concerns about his guilty plea" and that "[the attorney] did not communicate with the defendant on this issue until March 2, 1995." We defer to the trial Judge's implicit finding that Bennett first expressed his desire to withdraw his guilty plea to his attorney just over three weeks after he pled guilty. *fn35

In Gooding, we concluded that a delay of only a few days between appellant's plea and the expression of his desire to withdraw it lent considerable weight in favor of withdrawal under the fair and just standard. 529 A.2d at 310-11. See also Binion, supra, 658 A.2d at 191 (delay of three days between plea and expression of desire to withdraw it weighs in appellant's favor). In Springs, in contrast, we held that a delay of just over three weeks between the time appellant pled guilty and his initial expression of the desire to withdraw his plea weighed against him. *fn36 In this case, we similarly conclude that the trial Judge did not err in determining that a three week delay, even in the absence of prejudice to the government, did not weigh in favor of granting Bennett's motion to withdraw his plea. *fn37

Competence of Counsel

Competence of counsel is the third factor the trial court must consider in evaluating withdrawal of a motion under the fair and just standard. Springs, supra, 614 A.2d at 4 (citation omitted). Bennett suggests that even if his plea counsel met the standard of performance and prejudice set forth in Strickland v. Washington, 466 U.S. 668 (1984), his counsel's performance "undercuts the confidence" with which we could find that Bennett entered a knowing and voluntary guilty plea. In support of his argument, Bennett points to plea counsel's failure to notify the trial court that his client had just suffered a seizure and was taking phenobarbital and dilantin by prescription; and to his plea counsel's continual pressure on Bennett to plead guilty, where this was against Bennett's wishes and where Bennett was particularly vulnerable due to his medical condition.

Although the trial Judge made no explicit findings concerning competence of counsel, *fn38 the trial Judge implicitly found that this factor did not provide a basis for granting Bennett's motion to withdraw his guilty plea. This finding is supported by the record. At the hearing, plea counsel testified at length on the subject of his representation of Bennett. For example, counsel testified to meeting with Bennett for more than an hour on Monday, February 6, the day before Bennett pled guilty. Counsel testified that Bennett first expressed interest in pleading guilty on that day, after counsel became aware of new information concerning the government's case. *fn39 Moreover, plea counsel's testimony that he believed Bennett understood the substance of his conversations with his attorney was essentially credited by the trial Judge and was consistent with the Judge's own assessment of that circumstance. On appeal, we defer to the trial court's assessments of witnesses' credibility and we will not disturb the trial court's factual findings unless they lack support in the record. See, e.g., Johnson v. United States, 616 A.2d 1216, 1234 (D.C. 1992), cert. denied, 507 U.S. 996 (1993). On this record, we cannot say the trial Judge erred in crediting plea counsel's testimony concerning his representation of Bennett and Bennett's mental capacity prior to pleading guilty. Nor is there any basis for disturbing the trial court's finding that counsel's representation of Bennett did not weigh in Bennett's favor under the fair and just standard.

Other Factors

In addition to the factors we routinely consider under the fair and just analysis, we have noted the "circumstances of the individual case may reveal other factors which will affect the calculation . . . under the fair and just standard." Springs, supra, 614 A.2d at 4 (citation omitted). Bennett suggests that his alleged mental incapacity as a result of a recent seizure and the effect of a prescribed narcotic drug in his system, as well as his limited mental ability, *fn40 constitute such factors and weigh heavily in Bennett's favor under the fair and just standard. We disagree. *fn41

Judge Cushenberry conducted a lengthy and thorough plea withdrawal hearing and then listened to the tape of the February 7 plea hearing in order to determine whether, because of his medical condition, Bennett could plead guilty knowingly and voluntarily. In concluding that his mental state posed no such impediment, the trial Judge found that Bennett had not suffered a seizure two days before the February 7 plea hearing. *fn42 In addition, based upon what he heard when he listened to the tape of the plea hearing, the trial Judge concluded that there was no impairment in Bennett's speech or mental functioning at the plea hearing. *fn43 Ultimately, the trial Judge concluded that Bennett "had an awareness of the significance of the decision he was making," *fn44 and therefore, that there was no fair and just reason for permitting withdrawal of Bennett's guilty plea. Upon our review of the record, we are satisfied that the trial court did not err in so deciding.

CONCLUSION

We emphasize that our standard of review is whether the trial Judge abused discretion in denying the motion to withdraw the guilty plea after conducting an extensive hearing on the issues raised in Bennett's motion. After carefully weighing the evidence, applying the proper legal standard and giving thoughtful consideration to the issues raised by Bennett, the experienced and able trial Judge, correctly finding that none of the Gooding factors weighed in Bennett's favor, determined that the interest of fairness and Justice was not served by allowing Bennett to withdraw his guilty plea. As we have said, the determination of whether a defendant has met the "fair and just" standard for withdrawing a guilty plea is left to the trial court's sound discretion. Binion, supra, 658 A.2d at 191. We will not disturb a trial court's assessment in those circumstances absent clear abuse of that discretion. Id. Therefore, taking into account Bennett's weak and unsupported assertion of innocence, which conflicted with his earlier sworn admission of guilt, the less than prompt expression of his desire to withdraw his plea, and the fact that Bennett was represented by competent counsel during the period leading up to and during the entry of the guilty plea, we hold the trial court did not abuse its discretion in denying Bennett's motion.

Accordingly, the order of the trial court is hereby

Affirmed.

Wagner, Chief Judge, Dissenting: Under the more lenient "fair and just" standard applicable to a pre-sentencing motion to withdraw guilty plea, in my opinion, the trial court erred in denying appellant's motion. Leave to withdraw a guilty plea before sentencing should be allowed freely, "'if for any reason the granting of the privilege seems fair and just.'" Gooding v. United States, 529 A.2d 301, 306 (D.C. 1987) (quoting Kercheval v. United States, 274 U.S. 220, 224 (1927)). Here, factors for allowing withdrawal weighed strongly in appellant's favor (i.e., assertion of legal innocence, early request for withdrawal, and lack of prejudice to the government). See Binion v. United States, 658 A.2d 187, 191 (D.C. 1995) (citing Springs v. United States, 614 A.2d 1, 3 (D.C. 1992) (other citations omitted)). Appellant asserted his innocence both before and after the plea, and he advanced a cognizable defense. Specifically, he contended that he was not at the scene of the crime, and there was evidence that the victims had failed to identify him. Unknown to the trial court at the time of the plea, appellant had taken two drugs, dilantin and phenobarbital, a narcotic, which he contended, affected his ability to think. The trial court found specifically that withdrawal of the plea would not prejudice the government. On these facts, which are set forth more fully in the majority opinion, the "fair and just" standard was met, in my view.

Where the trial court erred in its analysis, in my opinion, was in deciding the merits of the defense advanced by appellant. In resolving a motion to withdraw a guilty plea filed before sentencing, the "'court should not attempt to decide the merits of the proffered defense, thus determining the guilt or innocence of the defendant.'" Gooding, supra, 529 A.2d at 306 (quoting Gearhart v. United States, 106 U.S. App. D.C. 270, 272 F.2d 499, 502 (1959)). I must disagree with the majority that this court's decision in Austin v. United States, 356 A.2d 648, 649 (D.C. 1976) requires us to hold to the contrary. On this issue, we are bound to follow the decision in Gearhart, which holds that the court should not resolve the merits of the defense in deciding the motion. M.A.P. v. Ryan, 285 A.2d 310, 312 (D.C. 1971) (Decisions of the D.C. Circuit rendered before February 1, 1971, "constitute the case law of the District of Columbia").

The trial court also failed to evaluate the strength of the government's proffer. The weakness of the government's proffer tends toward allowing withdrawal of the guilty plea. Gooding, supra, 529 A.2d at 306. Here, the government acknowledged in its proffer that there would be conflicting testimony about who actually shot the victim. As the majority points out, the trial court also made no explicit findings concerning the competence of counsel, a critical consideration in the analysis. Id. at 307. Given these omissions in the evaluation of appellant's request, the error in the treatment of appellant's assertion of a defense, the absence of prejudice to the government, and the other factors favoring withdrawal, I can only conclude that the trial court abused its discretion in denying appellant's motion to withdraw guilty plea. Therefore, I respectfully Dissent from the opinion of the court.


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