Appeals from the Superior Court of the District of Columbia. (No. F9979-97). (Hon. A. Franklin Burgess, Jr., Trial Judge). (Hon. Susan R. Winfield, Motions Judge).
The opinion of the court was delivered by: King, Senior Judge
Before RUIZ and GLICKMAN, Associate Judges, and KING, Senior Judge.
In this appeal, Quincy Joseph argues that the trial court abused its discretion in denying without a hearing his motion to vacate, set aside, or correct sentence filed pursuant to D.C. Code § 23-110 (2001), and in failing to rule on his claim that trial counsel was ineffective in not advising appellant to maintain his initial guilty plea prior to its successful withdrawal. Because an evidentiary hearing is necessary to resolve disputed material facts, we remand the record for further proceedings.
According to the government's evidence, on the evening of December 27, 1997, a man, later identified as Joseph, wearing a leather jacket, a black knit hat, black ski mask, black gloves, tan Army-like pants, white shoes, and armed with a silver pistol, entered the Last Stop clothing store, located at 405 8th Street, S.E., as employees were closing for the evening. Without speaking, Joseph waved his gun and pointed it at the employees, motioning for them to go to a storage room in the back of the store. Joseph had previously been employed at Last Stop and was friends with the store manager, Craig Curry. The employees, however, did not know that Joseph was the individual behind the ski mask. After unsuccessfully attempting to open the register on his own, Joseph went to the storage room, pointed his gun at Curry, and escorted him to the front of the store to open the cash register. Once the register was open, Joseph took the cash drawer, containing almost $1,600.00, and placed it in a black backpack. He then escorted Curry back to the storage room, pushed him to the floor, searched his pockets, and exited the store from the rear.
As soon as Joseph left, Curry and another employee ran out of the store and summoned Metropolitan Police Department ("MPD") Officer Anthony Bowman, who was across the street working security at another store, telling him what had just occurred. Curry pointed out Joseph, who could be seen running down 8th Street towards the Eastern Market Metro Station. Officer Bowman radioed his dispatcher that he was in pursuit of a robbery suspect wearing a black jacket, gray pants, black hood, black ski mask, and armed with a silver automatic weapon. Officer Bowman -- now joined by Metro Transit Police Officer Cecil Dixon -- continued to pursue the suspect on foot. The officers' pursuit of the suspect led them to an alley near the 600 block of D Street, S.E. When Joseph emerged from the alley, Officer Bowman yelled, "Police. Take your hands out [of] your pocket." Joseph had a bag in his left hand, and his right hand remained in his pocket. Officer Bowman then saw Joseph's right hand come up, heard the sound of a gunshot, and saw a muzzle flash. Joseph ran away, and Officer Bowman continued to give chase. During the second leg of the pursuit, Joseph stopped briefly, extended his arm towards Officer Bowman, and fired another shot.*fn1 Joseph again ran away and the foot chase continued.
At this point, United States Capitol Police Officer Daniel Quigley responded to the scene in his police cruiser. Officer Bowman pointed to the direction in which Joseph had run, and Officer Quigley drove to that location, parked at the entrance of a parking lot in the rear of a restaurant, but did not see anyone. Officer Quigley exited his vehicle and walked into the parking lot to determine if the suspect was hiding. When Officer Quigley started walking back to his vehicle to retrieve a flashlight, he heard a noise come from a dumpster in the parking lot. Officer Quigley drew his weapon and saw Joseph quickly emerge from the dumpster with a bag in his hand. He was not wearing the jacket, hat, mask or gloves. Officer Quigley yelled, "Drop the gun. Drop the gun. Get your hands up." While Officer Quigley and other officers were trying to subdue Joseph, Curry, who had been following the officers' foot pursuit in his car, arrived, recognized Joseph and started yelling at him. Joseph replied, "I'm sorry Craig. I'm sorry . . . . [W]hat was I supposed to do[?] I had to feed my babies."
A leather jacket, black hat, black mask, and gloves were recovered from inside the dumpster from which Joseph had emerged. A black backpack containing approximately $1,586.50 in cash and a roll of duct tape were recovered outside the dumpster. A loaded, silver handgun was also recovered outside the dumpster.
At trial, Joseph denied having robbed the Last Stop and having shot at Officer Bowman. He testified that he was in an alley just off of 6th and D Streets smoking marijuana when he heard gunshots in the distance. Shortly thereafter, he saw a man run (with a limp) into the alley, throw something into and behind the dumpster, and run away. Joseph also presented the testimony of his friend, Lester Reid, who testified that he saw Joseph some time around 5:00 p.m. on December 27, 1997, but did not know his whereabouts thereafter. Reid also testified that when he saw Joseph in the early evening, Joseph had on khaki pants and a dark-colored shirt, but did not have on a black leather jacket, gloves, or a bag in his possession. Joseph also introduced the testimony of three character witnesses, who testified that Joseph was a caring and honest person.
On May 14, 1998, Joseph was scheduled to begin trial on three counts of armed robbery,*fn2 one count of assault with a dangerous weapon (pistol),*fn3 one count of second degree burglary while armed,*fn4 two counts of possession of a firearm during a crime of violence,*fn5 one count of assaulting a police officer with a dangerous weapon,*fn6 one count of assault with intent to kill while armed,*fn7 and one count of carrying a pistol without a license.*fn8 Before Joseph's trial commenced, his lawyer (William Thompson)*fn9 requested permission to approach the bench and stated:
[G]iven . . . the facts and nature of this case, there's a very substantial likelihood that [Joseph] may ...