Appeal from the Superior Court of the District of Columbia Criminal Division (F-3220-03). (Hon. Judith E. Retchin, Trial Judge).
Before Farrell and Ruiz, Associate Judges,and Ferren, Senior Judge.
The opinion of the court was delivered by: Ruiz, Associate Judge
Pursuant to an agreement with the government, on September 4, 2001, the appellant pled guilty to one count of second-degree murder while armed, and one count of possession of a firearm during a crime of violence; the remaining counts of the indictment were dismissed.*fn1 Before he was sentenced, the appellant -- now represented by substitute counsel appointed at his request -- filed a motion with the Superior Court, seeking to withdraw his guilty plea, asserting for the first time that he killed his victim in self-defense. Finding no abuse of discretion in the trial court's denial of that motion, we affirm.
This case stems from the shooting death of David Jones on April 11, 2000. The evidence, as adduced from the factual proffers made in the plea colloquies of the various perpetrators who pled guilty, is that the appellant entered into an agreement with Michael Weathington, Jose Sweeny, and Todd Morris to rob Jones in the vicinity of 60th and Blane Streets, Northeast. Appellant agreed with the others to approach Jones and demand money. After an initial encounter was aborted, they saw Jones again, and appellant approached him. At some point both men began to fire at each other: Jones died near the scene, and the appellant was hospitalized for his wound. The appellant now contends that by the time he approached Jones, he had resolved in his mind not to rob him. He claims that he approached Jones solely for the purpose of recovering money from Debbie, a woman standing next to Jones. He contends that Jones shot first and that he shot Jones only in self-defense.
In order to succeed on a motion to withdraw a guilty plea, a defendant must establish one of two separate and independent grounds: either that there was a fatal defect in the plea colloquy, or that justice demands withdrawal under the circumstances. See Pierce v. United States, 705 A.2d 1086, 1089 (D.C. 1997) (citations omitted). While motions to withdraw a guilty plea which are made after sentencing are subject to the "manifest injustice" standard of 32 (e) of the Superior Court Criminal Rules, Morrison v. United States, 579 A.2d 686, 689 (D.C. 1990) (quoting Carmichael v. United States, 479 A.2d 325, 327 (D.C. 1984)), a motion to withdraw a guilty plea made before sentencing is regarded more leniently and is given favorable consideration "if for any reason the granting of the privilege seems fair and just." Springs v. United States,614 A.2d 1, 4 (D.C. 1992) (quoting Gooding v. United States, 529 A.2d 301, 306 (D.C. 1987)).*fn2
In this case, since the original motion to withdraw the plea was made before sentencing, the "fair and just" standard applies. Three factors are relevant to this inquiry: (1) whether the defendant has asserted his legal innocence; (2) the length of delay between entry of the plea and expression of the desire to withdraw it; and (3) whether the defendant had the full benefit of competent counsel at all relevant times. See Pierce, 705 A.2d at 1092 (citing Gooding, 529 A.2d at 306-307). "[N]one of these factors is controlling and the trial court must consider them cumulatively in the context of the individual case." Springs, 614 A.2d at 4 (quoting Gooding, 529 A.2d at 306). The court is also allowed to consider other factors, as necessary on the facts of the individual case, in considering whether it would be fair and just to allow the defendant to withdraw his plea. See id; Bennett v. United States, 726 A.2d 156, 166 (D.C. 1999).
"Withdrawal of a plea is not a matter of right, and the determination of whether the defendant has met the 'fair and just' standard for withdrawing the guilty plea is left to the trial court's sound discretion." Binion v. United States, 658 A.2d 187, 191 (D.C. 1995) (citations omitted); Bennett, 726 A.2d at 166. The trial court's decision will not be reversed unless it is shown that this discretion has been abused. See id. at 165 (citations omitted). A review of the record analyzed in conjunction with this court's decisional law leads us to conclude that the trial court acted within its discretion in denying appellant's petition to withdraw his guilty plea.
A. Assertion of Legal Innocence
Our first inquiry is whether the appellant has asserted a credible claim of legal innocence. Although a claim of innocence is an "important" factor in the court's determination of whether it will allow a defendant to withdraw a guilty plea, this claim is "not dispositive." Springs, 614 A.2d at 5. When a criminal defendant moves to withdraw his guilty plea, he must "set forth some facts, which when accepted as true, make out some legally cognizable defense to the charges, in order to effectively deny culpability." Id. (citations omitted); see also Pierce,705 A.2d at 1093. The mere assertion of a defense is insufficient to allow withdrawal of a plea, and withdrawal will not be permitted where the defense, even if legally cognizable, is "unsupported by any other evidence." See Bennett, 726 A.2d at 167. In deciding whether a credible claim of innocence has been made, such an assertion is to be weighed against "the proffer made by the government, appellant's sworn adoption of the facts contained in that proffer, and appellant's own sworn admissions made at the time the pleas were entered." Maske v. United States, 785 A.2d 687, 695 (D.C. 2001) (quoting Springs, 614 A.2d at 6). The judge is permitted to compare the two conflicting versions of events, and to credit one over the other. See Bennett,726 A.2d at 167-68; Austin v. United States, 356 A.2d 648, 649 (D.C. 1976). As with other credibility determinations entrusted to the trial court, we defer to the trial judge's assessment. See In re A.L., 839 A.2d 678, 679 (D.C. 2003) (citing In re T.M., 577 A.2d 1149, 1151 (D.C. 1990)).
In this case, there was a very strong factual proffer made by the government,*fn3 and the appellant's sworn adoption of this proffer also clearly established his guilt in the killing of David Jones.*fn4 The trial judge did not clearly err when she discredited the appellant's post-plea version of events, which is so greatly at odds with his earlier ratification of the government's strong factual proffer and his own description to the court of the armed robbery and shooting.*fn5 See, e.g., Austin, 356 A.2d at 649 (noting a "clear statement by appellant" at his plea supporting his guilt); Springs, 614 A.2d at 6 (allowing the judge to reject the claim of innocence because "[t]he government's proffer together with appellant's sworn statements made at the time of the pleas provided a factual context which overwhelms appellant's lame and unsupported claims of non-culpability"); Binion, 658 A.2d at 193 ("The government's strong proffer also undercuts appellant's post-plea claim of innocence.") (citation omitted).
Motions to withdraw that are made promptly are "regarded with particular favor" because "a swift change of heart is itself a strong indication that the plea was entered in haste and confusion." Gooding, 529 A.2d at 307 (citing United States v. Barker, 168 U.S. App. D.C. 312, 326, 514 F.2d 208, 222 (1975)). The length of time is measured as between the date of the plea and "the time the defendant sought to withdraw the plea." Pierce, 705 A.2d at 1094 (quoting Springs, 614 A.2d at 4). In the present case, the appellant pled guilty on September 4, and the first record evidence of the appellant expressing a desire to withdraw his plea is his handwritten letter which Judge Retchin received on October 19. In his testimony in support of the motion to withdraw, the appellant stated that he mailed the letter much earlier, and places the date of mailing alternatively during the first week of October (four weeks after the plea), or about three weeks after the plea.*fn6 We have repeatedly held that a delay of similar length does not weigh in favor of allowing a defendant to withdraw his guilty plea. See Bennett, 726 A.2d at 169 (three-week delay); Springs, 614 A.2d at 8 (three weeks); Byrd v. United States,801 A.2d 28, 33 (D.C. 2002) (twenty-six day delay); see also Maske, 785 A.2d at 695 ("more than two months"); Pierce, 705 A.2d at 1094 (eleven weeks).
The appellant's claim that he promptly moved to withdraw his plea is further undercut by his subsequent actions and the testimony of Mr. McCarthy, his attorney at the time the plea was entered. The record shows, and the appellant has not disputed, that he wrote the judge on October 17, expressing remorse for his actions and admitting that he "must pay for the part I played in taking David Jones['s] life." Additionally, in his written statement of October 31, made as part of the pre-sentencing investigation after he expressed a desire to withdraw his guilty plea, the appellant wrote that he "agree[d] with the statement of facts which the prosecutor read in court at the time of my guilty plea," and that he "wish[ed] to accept full responsibility for my own actions in committing this crime." Further, McCarthy, whom the court found "extremely credible on every issue about which he testified," related that when he met with the appellant after receiving a copy of his October 19 letter to the judge, his then-client told him to "forget the letter withdrawing the plea, I want to stick ...