Before Terry, Ruiz, and Glickman, Associate Judges.
The opinion of the court was delivered by: Glickman, Associate Judge
Appeal from the Superior Court of the District of Columbia (Hon. Judith Bartnoff, Trial Judge)
Appellant Lorenzo A. Roye appeals from the denial of his motion to withdraw his guilty plea. The government concedes that it breached its plea agreement and that Roye is entitled to relief. We agree with Roye that he should be allowed to withdraw his plea.
Roye was indicted on charges of assault with intent to kill while armed and related offenses. On the day of trial, he tendered a plea of guilty to the lesser included offense of aggravated assault. As part of his plea agreement, unambiguously set forth on the record in accordance with Super. Ct. Crim. R. 11 (e)(2), the government promised to recommend a sentence of three to nine years, with execution of that sentence to be suspended as to "all but time served" (approximately eleven months as of the date of sentencing). In lieu of further incarceration, the government agreed to support probation for three years with a requirement that Roye participate in anger management counseling.
By the time of Roye's sentencing hearing two months later, on February 6, 1998, the government's promise to recommend an execution-suspended sentence was forgotten by everyone but Roye himself. Roye's defense counsel *fn1 had only a "vague" memory that "there was some conversation about probation" and an anger management program. He requested the court to consider a split sentence but said nothing about limiting Roye's incarceration to the eleven months he had already served. For his part, counsel for the government asked the court to extend Roye's imprisonment before placing him on probation:
Your Honor, a person like that doesn't deserve to be on the street at this particular time. A split sentence sure but we would submit to the Court at least two to six years is appropriate and a period of probation and that probation should not commence until such time as he has received extensive counseling regarding violence.
Although his own counsel remained silent, Roye himself objected that the government had agreed to recommend "a suspended sentence, [with] three years probation." Roye started to say that he wanted to withdraw his guilty plea and go to trial, but the court said that the government was not violating its agreement - which, the court recollected (incorrectly), was merely to recommend no more than three to nine years imprisonment with "some of it" suspended.
After further colloquy the court imposed sentence. Rejecting the options of probation and a split sentence altogether, the court sentenced Roye to a straight term of imprisonment for three to nine years. The court expressly declined to allow Roye to withdraw his guilty plea, a position it adhered to when it denied Roye's subsequent pro se motions to reduce his sentence or withdraw his plea.
Instead of recommending that the court suspend the execution of Roye's sentence and place him on probation, the government asked the court to require him to remain incarcerated. The government thereby breached its "duty to comply strictly" with the terms of its plea agreement. White v. United States, 425 A.2d 616, 620 (D.C. 1980). Whether or not the government's allocution actually influenced the sentencing judge, the government's breach was material and Roye's sentence must be vacated. See Santobello v. New York, 404 U.S. 257, 262-63 (1971); White, 425 A.2d at 618. That much is not in dispute in this appeal.
What is in issue is the further remedy to which Roye is entitled. Roye asks that we allow him to withdraw his guilty plea. The government represents that it takes no position in this court on the proper remedy. Rather, the government asks us to remand to permit the trial court to choose between withdrawal of the plea and a new sentencing proceeding at which the government would be required to render specific performance of its promise to ask for an execution-suspended sentence. Specific performance, the government observes, has been deemed to be "the preferred remedy," Margalli-Olvera v. INS, 43 F.3d 345, 354-55 (8th Cir. 1994), as well as the "less drastic" one. White, 425 A.2d at 620. When specific performance can be accomplished, it is preferred to other remedies for breach of the plea agreement because "[o]nce that is done, a defendant `will obtain all he says he was promised and can then have no right to withdraw the plea.'" United States v. Kurkculer, 918 F.2d 295, 300 (1st Cir. 1990) (quoting McAleney v. United States, 539 F.2d 282, 286 (1st Cir. 1976)).
We agree that when the government materially breaches its plea bargain, it is often appropriate to remand to enable the sentencing court to exercise its discretion as to the best choice of remedy under the circumstances. See, e.g., United States v. Bowler, 585 F.2d 851, 856 (7th Cir. 1978). *fn2 In this case, however, such a remand is not necessary; for we conclude, much as other appellate courts have concluded in like ...