Before Schwelb and Washington, Associate Judges, and Pryor, Senior
The opinion of the court was delivered by: Per Curiam
Appeal from the Superior Court of the District of Columbia
(Hon. A. Franklin Burgess, Jr., Trial Judge)
Dissenting opinion by Associate Judge Schwelb at p. 21.
Timothy G. Edwards appeals from an order denying without a hearing Edwards' motion to vacate his guilty plea. Edwards asks that we set aside his convictions, contending that at the time of his plea he suffered from a mental defect resulting from brain damage, that he did not understand the nature and consequences of his plea due to a brain injury, and that the plea proceeding was fundamentally flawed because he did not have the benefit of effective counsel, and the trial court failed to determine whether there was a factual basis for the plea. The government contends that Edwards' plea was knowing and voluntary and asks that we affirm the denial of Edwards' motion. We affirm.
I. THE TRIAL COURT PROCEEDINGS
A. Procedural background.
On January 2, 1996, a grand jury returned an eleven-count indictment charging Edwards and his co-defendant, Gregory S. James, with two counts of kidnaping while armed, two counts of armed first degree sexual abuse, three counts of first degree sexual abuse, two counts of threats, one count of possession of a firearm during a crime of violence ("PFCV"), and one count of carrying a pistol without a license. On April 1, 1996, following an extensive colloquy pursuant to Super. Ct. Crim. R. 11, Edwards entered a plea of guilty to PFCV and to one count of first degree sexual abuse. The remaining charges against Edwards were dismissed as part of a negotiated plea agreement. *fn1
On October 9, 1996, Edwards was sentenced to serve an aggregate prison term of fifteen to forty-five years. On November 12, 1997, more than one year after the sentence was imposed, Edwards filed a motion to vacate his plea. On June 18, 1998, the trial judge issued a written order in which he denied Edwards' motion without a hearing. This appeal followed.
B. The government's proffer.
During the Rule 11 colloquy, the prosecutor proffered that in the early morning hours of October 3, 1995, the complaining witness, a prostitute whose initials are K.W., *fn2 was plying her trade in the area of 13th and L Streets, N.W. when she was approached by appellant Edwards, who was driving a black Ford Mustang. According to the prosecutor, Edwards offered to pay $50 to K.W. in exchange for a sexual act. K.W. entered the car, and Edwards drove her to an alley in the rear of a nearby department store. Edwards then "pulled a silver handgun, put it in the victim's face and clicked it, and ask[ed] for her money." K.W. handed Edwards $450 in cash.
The prosecutor further represented that Edwards then "popped" the trunk release of the Mustang, and that Edwards' co-defendant, Gregory S. James, emerged from the trunk. Edwards and James ordered K.W. into the back seat of the vehicle, covered her with a blanket, and drove to an alley on Capitol Hill. Upon reaching their destination, the two men forced K.W., against her will, to have oral and vaginal sex with each of them. Edwards and James also stole K.W.'s watch, rings, purse and coat. The men then told K.W. to hide in some nearby bushes, *fn3 and they drove off.
Following the robbery and rape, K.W. returned to the area of 13th and L Streets, N.W. She then proceeded to a hospital located in Alexandria, Virginia where she reported that she had been raped and requested medical attention. K.W. did not contact the police until the following night, under the somewhat fortuitous circumstances set forth below.
The prosecutor proffered that in the early morning hours of October 4, 1995, some twenty-four hours after her initial encounter with Edwards and James, K.W. was in the area of 13th and L Streets, N.W. when she again saw Edwards driving the black Mustang. At that point, K.W. reported the sighting to the police, and the officers soon located the vehicle in a nearby alley. Edwards was in the driver's seat and a woman known to the police as a prostitute was in the passenger seat. The officers opened the trunk of the Mustang and discovered Mr. James lying in it. The police recovered from the trunk a silver handgun which, according to K.W., resembled the weapon brandished by Edwards on the previous night. K.W. identified Edwards and James as the men who had raped and robbed her. According to K.W., Edwards was the driver of the car and James was the individual who had been hiding in the trunk.
The trial judge accepted the pleas of Edwards and James following a lengthy hearing. *fn4 During the colloquy, Edwards stated, inter alia, that he understood the charges to which he was pleading guilty, as well as to the maximum and mandatory minimum penalties for these offenses; that he was pleading guilty to these offenses of his own free will; that he understood that he was giving up his right to a trial, as well as the rights that he would have at a trial and the right to appeal a finding of guilt; that he was satisfied with his attorney; and that there were no questions that he wished to ask the judge. The prosecutor then described the government's evidence as set forth in Part I B, supra, but the proceedings ran into some difficulty when the judge asked Edwards whether he agreed with the prosecutor's proffer:
THE COURT: Okay. Mr. Edwards, is that what happened?
DEFENDANT EDWARDS: I didn't have no handgun in the car, your Honor. I didn't, I didn't hold no handgun to her head. It wasn't even like that.
THE COURT: Did you force her to have sex with you?
DEFENDANT EDWARDS: No, I paid her.
THE COURT: Well, Mr. Edwards, as I've ...