Appeal from the Superior Court of the District of Columbia (F-4605-96) (Hon. Harold L. Cushenberry, Jr., Trial Judge)
Before Glickman and Washington,
Associate Judges, and Nebeker, Senior Judge.
The opinion of the court was delivered by: Washington, Associate Judge.
In this case, we must decide whether our holding in Williams v. United States, 783 A.2d 598 (D.C. 2001) (en banc) applies where appellate counsel appointed under the District of Columbia Criminal Justice Act*fn1 failed to note an appeal from the denial of a second motion under D.C. Code § 23-110 (2001) where requested by defendant. Appellant Jimmy Pearsall ("Pearsall") appeals the trial court's denial of his motion to vacate and reenter its order denying his § 23-110 motion ("motion to vacate"). Pearsall argues that the trial court erred because he is entitled to relief under Williams. We agree that Pearsall is entitled to relief under Williams if it is determined that he made a timely request to his appellate counsel to note an appeal. Consequently, we remand the case to the trial court to hold a hearing on the matter.
A. Pearsall's Trial, Sentencing, and First § 23-110 Motion
On October 28, 1997, after a jury trial, Pearsall was convicted of conspiracy to commit armed robbery,*fn2 second-degree burglary while armed,*fn3 kidnaping while armed,*fn4 attempted armed robbery as a lesser-included offense of armed robbery,*fn5 first-degree felony murder while armed,*fn6 carrying a pistol without a license,*fn7 and possession of a firearm during the commission of a crime of violence or dangerous offense. His trial attorney, appointed by the court, was Charles Stow ("Stow"). *fn8
On December 10, 1997, before sentencing, Pearsall wrote a letter to the court regarding his trial and conviction. In the letter, Pearsall alleged that Stow failed to represent him adequately and "did a poor job at defending [his] life." Among the problems Pearsall cited were: 1) Stow's failure to mount a proper defense at trial, 2) his failure to visit Pearsall on a regular basis, 3) his failure to investigate the case or call witnesses Pearsall provided to him, and 4) his failure to visit Pearsall after he was convicted. Pearsall also wrote that neither he nor his mother was able to contact Stow after several attempts, and that Stow failed to return their phone calls. Pearsall then requested that the court appoint him a new lawyer for purposes of his appeal. On December 27, 1997, Pearsall sent another letter moving the court to either withdraw his counsel or hold a hearing to determine if his Sixth Amendment right to effective assistance of counsel had been infringed. Pearsall set forth four grounds for his request: 1) Stow did not subpoena Pearsall's witnesses to court, 2) Stow failed to take time to prepare his defense, 3) Stow told Pearsall that, were Pearsall to get convicted, it would be for less-severe charges, and 4) Stow often confused Pearsall during trial.
In response to Pearsall's letters, the court allowed Stow to withdraw as counsel and appointed Leonard Birdsong ("Birdsong") "for the purposes of sentencing and also with respect to any post-conviction relief and further proceedings he may deem appropriate." The court also stated it would consider Pearsall's claim of ineffectiveness of trial counsel as a post-trial § 23-110 motion after sentencing, which occurred on February 6, 1998. Birdsong filed a motion under § 23-110 which generally incorporated Pearsall's earlier allegations with respect to Stow's performance. After sentencing, a timely notice of appeal from the conviction was filed. The trial court denied Pearsall's § 23-110 motion without a hearing. Pearsall's appellate counsel at the time filed a timely notice of appeal from the denial of the motion.
B. Pearsall's Second § 23-110 Motion
This court appointed Joanne Vasco ("Vasco") to represent Pearsall on appeal. Vasco obtained a stay of Pearsall's direct appeal and, on June 14, 1999, filed a second § 23-110 motion in the trial court. In that motion, Vasco stated that it was her obligation as appellate counsel "to pursue any claims based upon ineffective assistance of counsel that are legitimate and desired by the defendant." Accordingly, the second § 23-110 motion alleged that Birdsong and Stow were ineffective in carrying out Pearsall's defense. Regarding Birdsong's performance on Pearsall's first § 23-110 motion, the motion stated that Birdsong's motion was insufficient to bring the matter to a hearing, and also "failed to consult Pearsall as to the contents of his motion, and conducted no investigation into trial counsel's representation." Regarding Stow, the motion alleged that he failed to call two alibi witnesses who were available and known to him. Pearsall alleged that had Stow called the two alibi witnesses, who purportedly received Pearsall at their home "miles away from the scene of the murder just minutes after the murder occurred," this would surely have affected the outcome of the trial. Attached to his second § 23-110 motion were affidavits of the two alibi witnesses.
The trial court denied Pearsall's second § 23-110 motion on September 21, 1999 without a hearing. The court acknowledged that, in the motion, Pearsall claimed that "both his trial counsel and his post-trial counsel ineffectively assisted him." The court, however, denied Pearsall's motion partly based on Lee v. United States, 597 A.2d 1333 (D.C. 1991), a case in which we held that because the defendant had no constitutional right to post-trial counsel, he could not prevail on the claim that counsel was constitutionally ineffective. The court also held that Pearsall failed to overcome the cause and prejudice bar for successive § 23-110 motions. Vasco did not note an appeal from the denial of this motion, and subsequently moved to withdraw from the case. This court then appointed M. Elizabeth Kent ("Kent") as Pearsall's next appellate counsel. At this time, Pearsall's direct appeal and appeal from the first § 23-110 motion were still pending in this court.
C. Motion to Vacate and Reenter Denial of Second § 23-110 Motion and Direct Appeal
On November 17, 2001, after oral argument on Pearsall's direct appeal, but while the case was still under advisement, Kent filed a motion in the trial court to vacate and reenter its denial of Pearsall's second § 23-110 motion. Kent argued that this court's holding in Williams v. United States, 783 A.2d 598 (D.C. 2001) (en banc) mandated that the trial court vacate and reenter its order denying Pearsall's second § 23-110 motion so that he could note a timely appeal from that order. The motion stated that Lee, upon which the trial court had relied in denying Pearsall's second § 23-110 motion, had been overruled in part by Williams. Under Williams, ...