Appeal from the Superior Court of the District of Columbia (F-1018-97) (Hon. Harold L. Cushenberry, Jr., Trial Judge)
Before: Ruiz and Glickman, Associate Judges, and Ferren, Senior
The opinion of the court was delivered by: Ferren, Senior Judge
Opinion dissenting in part by Associate Judge Ruiz
This appeal requires us to remand for resentencing because of the government's failure to honor a plea agreement.
A fifteen-count indictment charged appellant with one count of first-degree murder while armed (premeditated), *fn1 three counts of possession of a firearm during a crime of violence, *fn2 two counts of assault with intent to kill while armed, *fn3 five counts of assaulting a member of the fire department with a dangerous weapon, *fn4 and two counts each of carrying a pistol without a license *fn5 and possession of an unregistered firearm. *fn6 Trial began on October 19, 1998. The next day, after the government's opening statement, defense counsel informed the court that there was a possible plea and disclosed the terms of the government's offer. Counsel requested time to discuss the plea offer with appellant before making an opening statement.
After reconvening and recessing two more times, at the request of defense counsel - and some two hours after defense counsel first informed the court of the possible plea - counsel reported that a plea agreement had been reached. Specifically, appellant was willing to plead guilty to one count of first-degree premeditated murder while armed, one count of unarmed assault with intent to kill, four counts of assault on a member of the fire department, and one count of unarmed manslaughter for a homicide unrelated to the other charges. As consideration for the plea, the government would recommend concurrent sentences for the five assault counts, to run consecutively to sentences on the murder and manslaughter counts. The parties agreed that, at sentencing, both the government and appellant would recommend a sentence of thirty years to life for the murder, ten to thirty years for the manslaughter, and five to fifteen years for the assault counts, for an aggregate sentence of forty-five years to life.
The prosecutor did not dispute any term of the agreement as stated by defense counsel. Handwritten on the top of the "Waiver Trial by Jury" form, signed by the parties and the court, is a list of the charges to which appellant was pleading followed by the statement "Parties agree to total sentence of 45 years to life." The court then placed appellant under oath and conducted the colloquy required by Super. Ct. Crim. R. 11. Appellant responded properly to each of the judge's questions, indicating that he knowingly and voluntarily was pleading guilty to each of the charges as stated, that he was satisfied with the services of his attorney, that he had had enough time to think about his decision to plead guilty, that the government's proffers of the facts with respect to each of the offenses were correct, that he understood the charges of the offenses to which he was pleading guilty as well as the elements thereof, and that he wished to enter a guilty plea to each of the murder, manslaughter and assault charges. The court accepted the pleas and scheduled sentencing for December 18, 1998.
On November 15, 1998, some three and a half weeks after entering his plea, appellant sent the trial judge a handwritten letter in which he sought to withdraw the guilty pleas. He claimed that he had been under a great deal of pressure at the time he pled guilty and that his attorney had not properly prepared for his defense. Appellant later supplemented this letter with a handwritten pro se motion to withdraw the plea, in which he claimed he had pled guilty in haste after his attorney informed him that an acquittal was unlikely. The trial court appointed new defense counsel and rescheduled sentencing. Counsel filed a supplemental motion to withdraw guilty plea, arguing that leave should be given for withdrawal of the plea because the motion was timely (i.e., before sentencing), appellant was the victim of misidentification, and appellant was under undue pressure to plead guilty. The court denied the motion in a written order dated January 29, 1999, finding that appellant had made "no colorable showing of ineffective assistance" and had not asserted any deficiency in the Rule 11 proceeding.
At sentencing on February 5, 1999, the trial judge reiterated his decision to deny appellant's motion and the reasons therefor, and found that there was no fair or just reason to permit appellant to withdraw his pleas. Thereafter, the prosecutor offered, in relevant part, the following allocution as to sentencing:
The Government understands and is well aware though we made the plea offer and Mr. Byrd accepted the plea back then, that was the only act of mercy that he actually showed by basically sparing the families of the additional mental misery. We understand that although we've made the plea offer to . . . Mr. Byrd and we are bound by our agreement, the court is not bound by that and ultimately it is the court that makes the final decision with regard to Mr. Byrd and what appropriate sentence should be fashioned in this particular case. So the Government is asking that the court impose a sentence that reflects the seriousness of this particular offense. And that's all we have to say at this particular point.
The government's allocution failed to mention the forty-five-years-to-life sentence specified by the original plea agreement. Immediately after the allocution, defense counsel asserted that the government had violated its obligation by not bringing the parties' agreement to the court's attention. Counsel argued that this breach supported the motion to withdraw guilty pleas.
The court ruled that the agreement had not been violated because the government had not asked the court to impose a sentence in excess of the amount specified by the parties. The court then imposed a sentence, in the ...