Before Farrell, Ruiz, and Washington, Associate Judges.
The opinion of the court was delivered by: Ruiz, Associate Judge
Appeal from the Superior Court of the District of Columbia Criminal Division (Hon. Reggie B. Walton, Trial Judge)
Argued September 14, 1999
On July 19, 1995, appellant Frederick Douglas Kyle was indicted on charges of first degree sexual abuse, see D.C. Code § 22-4102 (1996 Repl.), kidnaping, see § 22-2101, and threatening to injure a person, see § 22-2307 (1996). During the trial, after the government's opening statement and the complaining witness' direct testimony, appellant pled guilty to first degree sexual abuse and kidnaping, subject to enhancement papers which made him eligible for a sentence of life in prison without the possibility of parole.
Before sentencing, appellant filed a motion to withdraw his guilty plea. The trial court denied his motion and sentenced appellant on the sexual abuse charge to life in prison without possibility of parole, and, on the kidnaping charge, fifteen years to life imprisonment, the terms to run consecutively. Appellant filed a timely notice of appeal.
On January 7, 1998, appellant filed in the trial court an application to have appellate counsel appointed for the purpose of pursuing a collateral attack on his conviction, contending he was denied effective assistance of counsel. See D.C. Code § 23-110 (1996 Repl.). The trial court denied appellant's motion, and appellant filed a notice of appeal.*fn1
On appeal, appellant argues that: (1) the trial court abused its discretion in denying appellant's motion to withdraw his plea of guilty because his plea was not knowing and voluntary and lacked a factual basis as required by Superior Court Criminal Rule 11(f) (2000); (2) the trial court erred in denying appellant's motion requesting appointment of counsel to collaterally attack his conviction, because as an incarcerated prisoner, appellant cannot investigate and file an effective motion without counsel's assistance, and, under the circumstances, the trial court's refusal to appoint counsel amounts to a final order; and (3) the trial court erred in enhancing appellant's sentence to remove the possibility of parole because the government did not establish that appellant had been convicted of sex offenses against at least two victims, as required by D.C. Code § 22-4120 (a)(5). We affirm the judgment on direct appeal, and affirm the trial court's denial on the merits of the request for appointment of counsel.*fn2
I. Denial of Motion to Withdraw Guilty Plea
In order to succeed on a motion to withdraw a guilty plea, a defendant must establish one of two separate and independent grounds: either that there was a "fatal defect" in the plea colloquy (the procedure for which is established in Superior Court Criminal Rule 11), or that "justice demands withdrawal under the circumstances of [defendant's] case." Pierce v. United States, 705 A.2d 1086, 1089 (D.C. 1997), cert. denied, 525 U.S.1087 (1999). Post-sentence attacks on guilty pleas are subject to the "manifest injustice" standard. See Super. Ct. Crim. R. 32 (e) (2000);*fn3 Morrison v. United States, 579 A.2d 686, 689 (D.C. 1990) (citing cases). A motion to withdraw a guilty plea made before sentence is regarded more leniently and should be given favorable consideration "if for any reason the granting of the privilege seems fair and just." Pierce, 705 A.2d at 1092. Here, the motion to withdraw the plea was made before sentencing, so the "fair and just" standard applies.*fn4
Appellant contends that his guilty plea was not knowing and voluntary, that the plea lacked a factual basis as required by Superior Court Criminal Rule 11 (f), and, therefore, that the trial court abused its discretion in refusing to permit the plea to be withdrawn. We review appellant's "knowing and voluntary" claim and his "factual basis" claim under the fatal defect prong of Pierce. We also review his claims under the "fair and just" standard.
A. "Knowing and voluntary" nature of plea
Kyle argues that his plea was not knowing and voluntary because he was denied the effective assistance of counsel at a critical stage in the proceedings, when deciding whether or not to pursue an insanity defense. He asserts that at the time of the Rule 11 inquiry he had not considered an insanity defense and was not even aware that such a defense might be available to him because he had only eight minutes to discuss the matter with his attorney, and then returned to the courtroom and waived his right to an insanity defense.
Kyle did not assert ineffective assistance of counsel in his written motion to withdraw the guilty plea. See supra note 4. During the sentencing hearing, however, he alleged that his counsel had been unprepared to go to trial and had not advised him about the insanity defense.*fn5 There has not been a collateral proceeding to develop the facts concerning the assistance that Kyle received from counsel in considering an insanity defense.*fn6 Thus, we must look to the available trial record for support that the plea was not knowing and voluntary because Kyle was not advised concerning an insanity defense. In so doing, we see no reason to doubt the voluntariness of his guilty plea.
Kyle initiated the plea negotiations after being moved by the complaining witness' testimony, and his lawyer confirmed his intentions by asking him about it three times. In addition, Kyle gave a reason for wanting to make a plea at that time, i.e., that he did not want to put the complaining witness through any more humiliation. The transcript does not show that the court limited the time Kyle had to talk with his lawyer about the insanity defense. Following a recess, Kyle told the court that he had had sufficient opportunity to discuss the insanity defense with his lawyer, and that he did not intend to pursue it. He again gave lucid and cogent reasons for his decision, saying, "I don't want to put her through that . . . . I know she's not lying. I know she's telling the truth . . . . I have no intention of playing no games, legally or otherwise, to . . . pursu[e] any pretense of insanity or anything else." Subsequently, in his oral statement to the court prior to sentencing, Kyle said that he had not had sufficient opportunity to discuss the insanity defense with his lawyer. See supra note 5. The trial court credited Kyle's statements during the plea colloquy and did not believe his statements during the sentencing hearing.*fn7 We will not disturb such a finding on appeal. ...