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Butler v. United States

November 26, 2003


Appeals from the Superior Court of the District of Columbia (F-10683-87 & F-11065-87) (Hon. Lee Satterfield, Trial Judge)

Before Schwelb and Washington, Associate Judges, and Pryor, Senior Judge.

The opinion of the court was delivered by: Pryor, Senior Judge

Argued October 16, 2003


Appellant pleaded guilty to an information alleging two counts of armed robbery. *fn1 Later, after a number of unsuccessful efforts to lessen his sentence, appellant filed a motion for collateral relief, pursuant to D.C. Code § 23-110 (2001), which is the subject of this appeal. This motion asserts ineffective assistance of his former trial counsel, with respect to the entry of the guilty pleas and for failure to file a motion to withdraw the guilty pleas before sentencing, as appellant had requested. The judge who accepted the pre-indictment pleas is now deceased. Appellant contends in this court that the judge who appointed counsel to represent him, and subsequently conducted a hearing, erred in concluding that the guilty pleas were knowingly and voluntarily entered, and that there was no reasonable probability that a motion to withdraw the pleas, if filed, would have been granted. Upon review of the trial judge's findings and conclusions, we affirm the order denying relief.


A. The Pleas of Guilty

In the summer of 1987, appellant and other persons were being investigated regarding a series of similar robberies. O n October 21, 1987, as part of a pre-indictment plea agreement, appellant pleaded guilty to two counts of armed robbery alleged to have occurred on June 19, 1987 and July 21, 1987. Appellant was charged with committing the crimes in concert with others. As part of the plea agreement, the government promised not to prosecute three other armed robbery charges, but did not waive the opportunity to seek pre-sentencing detention and allocution at sentencing. The pleas were entered before the now deceased Honorable Robert Shuker. In accepting the pleas, Judge Shuker, pursuant to Super. Ct. Crim. R. 11, addressed appellant directly and extensively. Appellant, in response to a number of different questions, declared that his decision to plead guilty was voluntary. The judge explained that by pleading guilty, appellant would be waiving a variety of rights, including, in this instance, grand jury consideration of the pending cases, a judge or a jury trial, a right to counsel, a right to cross-examine government witnesses, a right to call witnesses on appellant's behalf, as well as a righ t to remain silent and require the government to meet its burden. Appellant stated that he understood he was waiving these rights as w ell as the loss of the right to appeal any questions except any remaining procedural rights.

The government proffered that in the first robbery, appellant entered the store after a co-defendant had gone in and out of the store a few times. Appellant went to the office and obtained money, brandishing a gun. Appellant and the co-defendant also went through cash registers. At least three witnesses identified appellant by photographic array and in a line-up. The co-defendant would have testifie d that appellant w as involved in th e robbery.

The government proffered that in the second robbery, appellant returned to the same store. As in the earlier instance, the co-defendant initially walked into the store several times; then the appellant and co-defendant entered with guns. A complainant recognized them from the previous robbery. The co-defendant took money from the cash registers.

Appellant was identified by three witnesses.

At the conclusion of the government's proffer, appellant pleaded guilty to both armed robberies, but denied having possession of a pistol in the second robbery. *fn2

B. Post-Conviction Relief

Shortly after pleading guilty, appellant had a change of heart. He claims he notified trial counsel of his desire to file a motion to withdraw his guilty plea. Counsel never filed the motion, but allegedly misrepresented to appellant that she had filed it and that the judge had denied it. Appellant was subsequently sentenced on February 3, 1988 to eight to twenty-four years imprisonment for one offense, and ten to thirty years as to the other offense, to run consecutively. *fn3 Over ten years after sentencing, on July 22, 1999, appellant filed a pro se motion pursuant to D.C. Code § 23-110, alleging that his counsel was ineffective for allowing him to be sentenced consecutively instead of concurrently because he only signed one waiver of indictment. Shortly after, appellant received the record of his case from the court, and he discovered that his counsel had never filed the requested motion to withdraw his pleas. Whereupon he again sought relief under § 23-110, alleging that he pleaded guilty because of pressure from his counsel, and that she was ineffective for failing to file the motion to withdraw his guilty pleas and for lying about its disposition. On ...

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