Before Wagner, Chief Judge, and Steadman and Farrell, Associate
The opinion of the court was delivered by: Wagner, Chief Judge
Appeal from the Superior Court of the District of Columbia
(Hon. Geoffrey M. Alprin, Trial Judge)
Charles Upshur, appeals from an order of the trial court denying his motion to vacate conviction and withdraw guilty plea. He argues that the trial court erred in denying the motion without a hearing. Specifically, as grounds for reversal, he contends that he did not knowingly and voluntarily enter the guilty plea because: (1) he was not informed of the mandatory minimum penalties and the elements of the offense of second degree murder; (2) he was not competent to enter the plea; and (3) he was denied effective assistance of counsel because of counsel's alleged misrepresentation concerning the disposition of his motion to suppress statements and identification and promises of concurrent sentences. We conclude that only Upshur's claim of ineffective assistance of counsel based upon counsel's alleged misrepresentations concerning the unfavorable disposition of his motion warranted a hearing. Therefore, we remand for an evidentiary hearing on this claim. In all other respects, the order of the trial court is affirmed.
Upshur entered a plea of guilty to one count of second degree murder while armed. At the beginning of the plea proceeding, the trial court explained to Upshur that there was no hurry, and therefore, if Upshur did not understand anything, or if he needed additional time to confer with counsel, he should inform the court. Counsel for Upshur stated the substance of the plea agreement on the record in Upshur's presence. Upshur had executed a written plea agreement, which was presented to the court. The agreement provided for Upshur to plead guilty to one count of second degree murder while armed, a lesser included offense of first degree, premeditated murder while armed as charged in the indictment, in exchange for the government dismissing the count charging the greater offense and related weapons offenses. The government reserved its right to allocute at Upshur's sentencing and to recommend an appropriate sentence.
The court conducted a thorough inquiry under Super. Ct. Crim. R. 11. *fn1 The court ascertained from Upshur directly that these terms were, in fact, those to which he had agreed. The court further explained that "[i]f it is not your agreement[,] it doesn't make any difference what they agree to." The court informed Upshur of his right to a trial by jury, the right against self-incrimination, to present witnesses in his own behalf, and the government's burden of proving the charges beyond a reasonable doubt if the case went to trial. The court also informed Upshur of the penalty for second degree murder while armed, including the mandatory five-year minimum. Upshur said that he was not under the influence of any drugs, alcohol or anything that would alter his judgment in any way. He denied that anyone had threatened him or forced him to enter the plea. Upshur said that he was satisfied with his attorney. He also signed a form waiving his right to a trial by the court or by a jury.
The government proffered to the court the evidence that it would present if the case had proceeded to trial. According to the government's proffer, on August 6, 1990 at about 10:00 p.m., a witness, who identified Upshur by name and from a photo array, stated that Upshur had approached and shot a taxicab driver, Rauf Asanti. Shortly after he was shot, Asanti informed the police that a black male had approached his cab and shot him. Asanti died a few days later as a result of the gunshot wounds. After being advised of his rights, Upshur confessed to the murder in a videotaped statement. Upshur acknowledged at the plea proceeding that the government's proffer was a correct statement of the facts. Before accepting the plea, the court inquired of Upshur whether there was "anything bothering [him] or anything [he] wanted to ask [the court] about." Upshur said "[n]o." The court stated that it was satisfied that there was a factual basis for the plea, that Upshur understood the proceedings and that he entered the plea voluntarily.
The trial court ordered a pre-sentence report and scheduled Upshur's sentencing for a later date. Thereafter, the court sentenced Upshur to a term of incarceration of fifteen years to life with a five year mandatory minimum, to run consecutive to any other sentence. In a motion for reduction of sentence, Upshur again acknowledged his responsibility for the shooting, stating that, "I've . . . realize[d] that my actions for taking the life of another human being was totally wrong, and I accept full responsibility for the injustice that was committed."
Almost two years after sentencing, Upshur filed a motion to withdraw his guilty plea or to vacate and set aside sentence and conviction for ineffective assistance of counsel. In his motion, Upshur claimed that he was denied effective assistance of counsel in that his attorney purposely misrepresented that his motion to suppress had been denied, informed him that he would be sentenced to a concurrent term of incarceration of ten to thirty years, neglected to inform him of the mandatory minimum penalty, and was not prepared. Upshur also claimed that he told his attorney that he planned to explain to the court the promises made to him by counsel and by the detective who took his statement, but the attorney admonished him not to do so or the court would not accept his plea. In his motion to withdraw guilty plea, Upshur claimed that he was denied effective assistance of counsel, and he challenged generally the adequacy of the Rule 11 inquiry. He also contended that the trial court failed to inform him of the mandatory minimum penalty and the elements of the offense. Finally, he contended that he was not competent to enter the plea because diagnostic testing had revealed that he was below average in abstract reasoning. In a carefully detailed written order, the trial court denied the motion without a hearing. On appeal, Upshur makes essentially the same arguments, which we reject with one exception. We conclude that a hearing was necessary to dispose fully of Upshur's claim of ineffective assistance of counsel.
Upshur filed his motion to withdraw guilty plea pursuant to D.C. Code § 23-110 (1996), authorizing a convicted defendant to move to set aside a sentence, *fn2 and Super. Ct. Crim. R. 32 (e), *fn3 governing motions to withdraw a guilty plea. "In order to prevail on a post-sentence motion either to withdraw a guilty plea under Super. Ct. Crim. R. 32 (e), or to vacate sentence under D.C. Code § 23-110, appellant must show that he suffered `manifest injustice,' and that the trial court's refusal to grant his motion was an abuse of discretion." Eldridge v. United States, 618 A.2d 690, 695 (D.C. 1992) (citing Goodall v. United States, 584 A.2d 560, 562 n.5 (D.C. 1990) (citing McClurkin v. United States, 472 A.2d 1348, 1352 (D.C.), cert. denied, 469 U.S. 838 (1984)). With the exception of the trial court's failure to hold a hearing on one of Upshur's claims of ineffective assistance of counsel, we find no abuse of discretion in the trial court's denial of the motion.
First, we review briefly those claims which the trial court rejected quite properly. Upshur argues that the trial court erred in failing to apprise him of the applicable mandatory minimum sentence and elements of the offense of second degree murder. The transcript of the plea proceeding shows that the trial court informed Upshur directly of the penalty for second degree murder while armed, including the mandatory minimum. In response to a question from the court, Upshur acknowledged at that time that he understood the amount of time he was facing. Indeed, earlier in the proceeding, the prosecutor had informed the court of these penalties. Thus, Upshur's claim that he was not informed of the penalties he faced is belied by the record.
Upshur argues that his plea was not voluntary because the trial court did not inform him of the elements of second degree murder. Relying on Henderson v. Morgan, 426 U.S. 637 (1976), Upshur contends that his plea was involuntary because he was not informed that an element of proof of second degree murder was that he committed the offense "without premeditated design and plan to effect death, but with malice aforethought." In Henderson, the Supreme Court held that a guilty plea is involuntary as a matter of due process when a defendant is not given "real notice of the true nature of the charge against him." Id. at 645; see also Super. Ct. Crim. R. 11 (c)(1) (requiring the court to address a defendant and inform him of the nature of the charge to which the plea will be taken before accepting the plea). However, Henderson does not always require that the trial court describe each of the technical elements of the offense. McClurkin, supra, 472 A.2d at 1355 (citing Henderson, 426 U.S. at 647 n.18). Rather, the court's determination of voluntariness of the plea for purposes of due process requires an examination of the totality of the circumstances, including "`the complexity ...