Before Wagner, Chief Judge, Terry, Steadman, Schwelb, Farrell,
Ruiz, Reid, Glickman, and Washington, Associate Judges, and Newman,
The opinion of the court was delivered by: Farrell, Associate Judge
Appeal from the Superior Court of the District of Columbia (Hon. Henry F. Greene, Trial Judge)
Argued En Banc September 10, 2001
Opinion for the court by Associate Judge Farrell.
Concurring opinion by Associate Judge Ruiz.
Concurring opinion by Associate Judge Glickman, with whom Senior Judge Newman joins.
We granted rehearing en banc in this case to consider whether relief is available to a criminal defendant whose appointed counsel on direct appeal fails to note a requested appeal from the denial of a motion alleging ineffective assistance of trial counsel filed during the direct appeal. For the reasons that follow, we hold that the breach of counsel's statutory duty to note an appeal in these circumstances entitles the defendant to a new opportunity to appeal the denial.
A jury found appellant (Williams) guilty of first-degree murder and carrying a pistol without a license. Williams filed a timely notice of appeal and, represented by new counsel, also filed a motion in Superior Court under D.C. Code § 23-110 (2001) alleging ineffective assistance of trial counsel. In doing so, he acted in conformity with this court's decision in Shepard v. United States, 533 A.2d 1278 (D.C. 1987), which held that, in general, "if an appellant does not raise a claim of ineffective assistance of [trial] counsel during the pendency of the direct appeal, when at the time appellant demonstrably knew or should have known of the grounds for alleging counsel's ineffectiveness, that procedural default will be a barrier to this court's consideration of appellant's claim." Id. at 1280. Consistent with its usual practice, this court stayed the direct appeal pending decision on the § 23-110 motion. Id.
The trial court scheduled a hearing on the motion for November 19, 1992, and appointed appellate counsel to represent Williams in that proceeding. Following the hearing, the court denied the motion in open court, and Williams' counsel noted what purported to be an appeal from that order. See, e.g., Hall v. United States, 559 A.2d 1321, 1322 (D.C. 1989) (separate notice of appeal must be filed from denial of § 23-110 motion). But the notice of appeal, as it appeared in the record, lacked a second page and thus did not contain the signature of either Williams or his counsel. See D.C. App. R. 3 (a) ("The notice of appeal shall be signed by the individual appellant or by counsel for appellant."). Appellate counsel proceeded to brief the merits of issues in the combined appeals, including the ineffectiveness claim raised by the denial of the § 23-110 motion. At oral argument, however, a division of this court raised the issue of the incomplete notice of appeal, and subsequently issued a memorandum opinion and judgment affirming Williams' convictions but stating that, because the steps necessary to effectuate an appeal from the denial of the § 23-110 motion had not been accomplished, the court was neither "consider[ing] nor resolv[ing] . . . issues relating to the denial of relief by the trial court as to assertions of ineffective assistance of counsel." This court then issued its mandate and later denied a petition for rehearing "without prejudice to appellant seeking further relief [on the ineffective assistance claim] before the trial court."
Again represented by new counsel, Williams filed a second § 23-110 motion in Superior Court alleging ineffective assistance by his appellate counsel in failing to perfect the appeal from the denial of his first motion. *fn1 The government responded by citing Lee v. United States, 597 A.2d 1333 (D.C. 1991), in which appellate counsel, after filing a § 23-110 motion during the pendency of the direct appeal, had failed to file a separate notice of appeal from the order denying the motion. Rejecting a claim of ineffectiveness similar to Williams', the Lee court observed that "[t]he Constitution does not . . . require the appointment of counsel for post-conviction proceedings," citing (inter alia) Coleman v. Thompson, 501 U.S. 722 (1991), and that "[t]here is likewise no statutory basis for an unqualified right to appointment of counsel." Id. at 1334. The court therefore held that "[s]ince Lee had no constitutional right to counsel for his § 23-110 motion, he cannot prevail on a claim that his counsel was constitutionally ineffective in relation to that motion." Id. at 1334.
The trial court in this case perceived itself bound by Lee and denied the second § 23-110 motion. On appeal, a division of this court likewise concluded that the issue of counsel's effectiveness in failing to note the appeal properly was controlled by Lee, and ...