Appeal from the Superior Court of the District of Columbia (F-1330-96) (Hon. Colleen Kollar-Kotelly, Plea Judge) (Hon. Russell F. Canan, Motions Judge)
Before Terry and Washington, Associate Judges, and Kern, Senior
The opinion of the court was delivered by: Terry, Associate Judge
This is an appeal from the denial of a motion to withdraw a guilty plea. Appellant was charged in a 41-count indictment with crimes committed on seven different dates between April and October 1994. He agreed to plead guilty to nine charges based on those seven incidents. Under the plea agreement, appellant pleaded guilty in March 1996 to three counts of second-degree burglary, two counts of robbery, one count of kidnapping, one count of attempted second-degree burglary, one count of first-degree burglary while armed, and one count of first-degree theft. A few weeks later, the court sentenced him to lengthy terms of imprisonment, including fifteen years to life for kidnapping and fifteen years to life for first-degree burglary while armed. All of the sentences were ordered to run consecutively, except for the first-degree theft sentence of thirty months to ten years, which was to be served concurrently with one of the other sentences. *fn1 Appellant noted an appeal from his conviction, which this court affirmed in an unpublished memorandum opinion and judgment. Johnson v. United States, No. 96-CO-815 (D.C. July 3, 1997).
In October 1998, more than two and a half years after the guilty plea, new counsel for appellant filed a motion to withdraw that plea, pursuant to Super. Ct. Crim. R. 32 (e). The trial court *fn2 denied the motion after a hearing, and from that denial appellant has brought this appeal.
Appellant contends that the court erred in refusing to grant his motion to withdraw the guilty plea. He maintains that the judge who accepted his plea violated his rights under the Grand Jury Clause of the Fifth Amendment by allowing him to plead guilty to three charges different from those contained in the indictment. Further, he argues that the government violated the plea agreement by failing to recommend a maximum sentence of fifteen to forty-five years' imprisonment. Finally, appellant claims that his counsel at the plea proceeding rendered ineffective assistance.
We agree that the government impermissibly amended one count of the indictment when it substituted a robbery charge for a charge of assault with intent to rob. We hold, however, that the court's acceptance of that amendment, to which appellant did not object, was not plain error. Finding no infirmity in the other eight convictions and no reason to set aside the otherwise valid plea agreement, we therefore leave undisturbed all nine of appellant's convictions.
On the day that appellant's trial was set to begin, March 5, 1996, defense counsel advised the court that his client was interested in entering a plea of guilty to some of the charges. Following further discussion about the government's plea offer and the possible sentences, the court summarized the government's position: "So you're basically not -- you're reserving allocution, making no promises on what you're going to be requesting?" The prosecutor replied, "Right."
The prosecutor then outlined a new plea offer under which appellant would plead guilty to nine offenses, as charged in nine of the forty-one counts of the indictment. *fn3 The court clarified the nine counts and stated the maximum and mandatory minimum sentences, as appropriate, for each offense. Yet again the court reminded defense counsel that there were "no promises on the part of the government about [the sentences'] being anything but consecutive to each other or consecutive to the Maryland sentence." *fn4 The prosecutor stated, however, that the government was prepared to withdraw the "life papers" that it had filed if appellant agreed to this new and final plea offer. After a short recess, defense counsel told the court that his client wished to accept the offer and plead guilty.
The court placed appellant under oath and began a thorough Rule 11 inquiry, during which the court made it very clear that every term of the plea agreement needed to be understood so that the matter could not be revisited at a later date. "[Y]ou can't come back in a day or two and say, hey, you know, I didn't understand it, I thought that this was involved or that was involved. This is it. This is your chance."
The court then asked the prosecutor to summarize the evidence relating to each of the nine counts that were the subject of the plea agreement. The court explained to appellant:
Now, those are the charges that you would be pleading to. And the government would . . . dismiss the other counts in the indictment. They're reserving . . . allocution . . . which means reserving the right to make recommendations to the court as to what should happen to you at your sentencing. Your counsel can address the court as well, and you can. And the court makes an independent decision. But I want you to understand that they also can make recommendations as well.
Appellant repeatedly said that he understood the plea agreement and the reservation of allocution, and that he did not have any questions. For the most part, appellant either agreed with the government's proffered evidence or stated more facts ...