Appeal from the Superior Court of the District of Columbia. (F-9129-96) (Hon. Henry F. Greene, Trial Judge).
The opinion of the court was delivered by: Blackburne-rigsby, Associate Judge
Before KRAMER and BLACKBURNE-RIGSBY, Associate Judges, and KING, Senior Judge.
Appellant Jaime Ortiz was convicted of one count of second-degree child sexual abuse following a jury trial and one count of misdemeanor simple assault following a bench trial.*fn2 On appeal, he contends that the trial court abused its discretion by pressuring him to withdraw his guilty plea, or, alternatively, refusing to enter judgment on his guilty plea, and that insufficient evidence supported his conviction for second-degree child sexual abuse.*fn3 Finding no error, we affirm.
On a summer afternoon in 1996, C.E. and her younger brother R.E. were picked up after school by their mother and her long-time boyfriend Jaime Ortiz, who C.E. had thought of as her "stepfather" for the past four years. After C.E.'s mother went to work, Mr. Ortiz took C.E. and R.E. to Theodore Roosevelt island. Mr. Ortiz suggested that the children take off their pants before they got into the water. C.E. removed her pants and dipped her feet in the river. When she went to dry off, Mr. Ortiz asked C.E. when she planned to lose her virginity and whether she had gotten her period yet. C.E. testified that she went to play with her brother because Mr. Ortiz's questions and earlier request that she remove her pants made her "uncomfortable."
After playing with her brother, C.E. ended up sitting next to Mr. Ortiz, who told her to sit between his legs on the towel so that she would not get dirty by sitting on the ground. C.E. sat on the ground, but Mr. Ortiz again told her to sit on his lap so that she would not get dirty. When C.E. sat on his lap with her back to him then, Mr. Ortiz told her to turn around. When she turned around, Mr. Ortiz kissed her on her mouth and inserted his tongue into her mouth. C.E. testified that then he began pushing "his private part" against her "bottom." He moved "from side to side, well, forward and backward." She testified that she felt "uncomfortable" but did nothing because she was "scared he could have done more." When Mr. Ortiz stopped, C.E. began to cry, and he told her "[d]on't tell anyone about what just happened" before she left to find her brother.
Mr. Ortiz contends that the trial court abused its discretion by pressuring him to withdraw his guilty plea, or, alternatively, by refusing to enter judgment on his guilty plea. The trial court did not exert any pressure on Mr. Ortiz to withdraw his guilty plea nor did it sua sponte vacate the plea and set a trial date. Defense counsel moved orally to withdraw his plea at the sentencing hearing on May 8, 1997. Judge Walton's questions and statements demonstrated his degree of uncertainty as to what Mr. Ortiz wanted to do. At the beginning of the hearing, Judge Walton stated, "I guess we have to set a trial date" because "we have to set a trial date if [Mr. Ortiz is] saying he didn't do this" so "if Mr. Ortiz wants to go to trial, we can set this matter for a trial date." (emphasis added). Defense counsel did not refute the trial court's understanding that Mr. Ortiz wanted to go to trial and made no effort to save the guilty plea; rather, defense counsel suggested that they pick a trial date. Furthermore, when the case was transferred from Judge Walton to Judge Greene, defense counsel did not attempt to revive the plea and, to the contrary, did not object when the prosecutor stated that "there have been no requests by the defense about making an additional plea offer." Then, at sentencing before Judge Greene, defense counsel again did not object to the prosecutor's statement that defense counsel had not sought to reopen plea negotiations.
Taken together, these acts and omissions by defense counsel support the conclusion that defense counsel not only intended to withdraw the guilty plea in front of Judge Walton (by making an oral motion) but also intended to proceed to trial (by not raising the issue later in front of Judge Greene). The trial court did not abuse its discretion by permitting Mr. Ortiz to voluntarily withdraw his guilty plea.
Even if Mr. Ortiz had not moved to withdraw his guilty plea, the trial court properly refused to enter judgment on it. The "decision whether to accept or reject a guilty plea is lodged in the discretion of the trial court." Hockaday v. United States, 359 A.2d 146, 148 (D.C. 1976). A defendant does not have an "absolute right to have a guilty plea accepted." Santobello v. New York, 404 U.S. 257, 262 (1971). The trial judge should not enter judgment on a guilty plea unless it is satisfied that there is a factual basis for doing so. Super. Ct. Crim. R. 11 (f). Even after a factual basis for a plea is established, a trial court may still reject a plea and refuse to enter judgment when the defendant maintains his innocence. See United States v. Rashad, 364 U.S. App. D.C. 368, 371-72396 F.3d 398, 401 (2005); Gooding v. United States, 529 A.2d 301, 305 n.6 (D.C. 1987) (per curiam) (en banc) (when interpreting Super. Ct. Crim. R. 11, the District of Columbia Court of Appeals looks to federal courts construing their analogous Rule 11 of Criminal Procedure).
In this case, Judge Walton explained that, even though the hearing was scheduled as a sentencing hearing, Mr. Ortiz's denials to the probation officer, which were contained in the Pre-Sentence Report, meant that he could not sentence "an innocent [person]." Specifically, Judge Walton noted that Mr. Ortiz told the probation officer twice that "he accidentally kissed [C.E.] on the lips," that "he denie[d] having done anything inappropriate," and that C.E.'s "allegations are fabrications made up against him." (emphasis added). Judge Walton was appropriately concerned that these statements not only undermined the factual basis of the plea -- namely, that he had not either committed the necessary act of "sexual contact" nor possessed the specific intent necessary to constitute misdemeanor sexual abuse*fn4 -- but they also supported the conclusion that Mr. Ortiz was professing his innocence. As such, under Super. Ct. Crim. R. 11, the trial court was properly concerned that it lacked a factual basis and that the defendant was maintaining his innocence -- both conclusions which would have precluded it from entering judgment on Mr. Ortiz's guilty plea.*fn5 See United States v. Gomez-Gomez, 822 F.2d 1008, 1011 (11th Cir. 1987) (no abuse of discretion when trial court rejected defendant's guilty plea after he "cast doubt upon the validity of [it] by protesting his innocence or by ...