Appeal from the Superior Court of the District of Columbia (FEL6906-64) (Hon. Judith E. Retchin, Motions Judge).
The opinion of the court was delivered by: Reid, Associate Judge
(Amended February 25, 2010)*fn1
Before REID and THOMPSON, Associate Judges, and KING, Senior Judge.
This case has a long, unique, and convoluted history. Approximately fifteen years ago, appellant John Hardy was convicted by a jury of several felony charges that arose from a shooting incident. Mr. Hardy believed the performance of his court-appointed trial attorney was inadequate; he therefore retained new counsel for his appeal. Although his retained appellate counsel accepted payment and knew that Mr. Hardy wished to claim ineffective assistance of trial counsel, she inexplicably abandoned his appeal without ever entering an appearance. Consequently, Mr. Hardy's trial attorney drafted the appellate brief which, of course, lacked any reference to ineffective assistance of trial counsel.*fn2 We affirmed Mr. Hardy's judgment of conviction in 1996, in an unpublished Memorandum Opinion and Judgment.*fn3
During 2000 and 2001, Mr. Hardy wrote letters and filed pro se motions in an attempt to bring his ineffective assistance claim to light. His pro se efforts were unsuccessful; however, the Public Defender Service ("PDS") agreed to represent him. Beginning in 2002, PDS filed several motions and petitions with different courts - the Supreme Court, this court and the trial court - seeking to effectuate Mr. Hardy's ineffective assistance claim. The instant appeal is from the denial of his 2006 motion to vacate convictions ("2006 Motion"), filed pursuant to D.C. Code § 23-110 (2001). Based upon our review of the record and applicable legal principles, we are constrained to vacate the order of the motions court denying Mr. Hardy's 2006 Motion and to remand this case to the trial court, with instructions to hold an evidentiary hearing on the merits of Mr. Hardy's 2006 Motion for the purpose of determining whether a new trial is required because of ineffective assistance of trial counsel.
Mr. Hardy's Conviction and Direct Appeal
The record before us reveals that in October 1994, a jury found Mr. Hardy guilty of assault with intent to murder while armed, aggravated assault while armed, carrying a pistol without a license, and two counts of possession of a firearm during a crime of violence. Because Mr. Hardy believed the performance of his court-appointed trial counsel, Mr. Ayeni, was ineffective, Mr. Hardy's grandmother hired Ms. Pullings to represent him on appeal. Ms. Pullings accepted $1500 in fees but never entered her appearance in the appellate proceeding.*fn4 Mr. Ayeni, therefore, filed Mr. Hardy's appellate brief.*fn5 Not surprisingly, the brief did not include a claim of ineffective assistance of trial counsel.*fn6 We affirmed Mr. Hardy's conviction. See note 2, supra. On July 22, 1999, Mr. Hardy sent a letter to the "Clerk of the Court; Court of Appeals for the District of Columbia," with a motion to the "United States Court of Appeals for the District of Columbia" "to allow reconsideration of the appeals case with different appeals counsel." This communication, which was received by this court on August 5, 1999, focused on the alleged misconduct of Ms. Pullings and her inadequate representation, and it asserted that "justice can only be served by allowing competent appeals counsel to revisit and file the defendant['s] appeals issue before the court." A docket sheet shows that the communication was "construed as a motion to recall mandate" and denied on October 19, 1999, without explanation.
A few months later, on November 29, 1999, this court received from Mr. Hardy a "Motion by Person in Custody to Reappeal Case." This handwritten, three-page motion primarily summarized the failings of Ms. Pullings, the filing of the appellate brief by his trial counsel even though Mr. Hardy desired to "raise the trial counsel's ineffectiveness," and the prejudice to Mr. Hardy. He ended the motion by "respectfully request[ing] that this trial be reappealed." We issued an Order on January 3, 2000, which stated only: "On consideration of the motion of pro se appellant to re-appeal case, it is ORDERED that the motion is denied."
Mr. Hardy's Pro Se "Motion for Trial Transcripts" and His June 6, 2000 Letter
In early March 2000, Mr. Hardy filed a handwritten pro se "Motion for Trial Transcripts" with a supporting memorandum of point and authorities, a declaration and a certificate of service. In these papers, Mr. Hardy explained how his grandmother had hired Ms. Pullings as appellate counsel and asserted that Ms. Pullings knew he wanted to file an ineffective assistance of counsel claim against Mr. Ayeni. Further, Mr. Hardy stated that Ms. Pullings accepted his grandmother's money but failed to appear and subsequently was formally reprimanded for abandoning his case. Ms. Pullings' abandonment, Mr. Hardy wrote, "left his appeal in the hands of the very attorney [Mr. Ayeni] about whom he wished to file [an] ineffective [assistance claim]." He described himself as a "destitute prisoner" entitled to the transcripts under case law, and he detailed his unsuccessful attempts to obtain copies from Mr. Ayeni. Without the transcripts, Mr. Hardy explained, "[he was] unable to file a D.C. Code § 23-110 remedy to vacate, set aside conviction on numbers [sic] of ineffective assistance [of] trial counsel." He, therefore, requested that the court order his former counsel to "relinquish all available trial transcripts," and he asked the court to "appoint counsel [for him]... pursuant to D.C. Code [§] 23-110 et seq."
The motions judge denied Mr. Hardy's motion on March 29, 2000.*fn7 In her Order, the judge summarily mentioned the motion's content, noted Mr. Hardy's statement "that he is in need of his pre-trial transcripts so that he can file a 23-110 motion alleging ineffective assistance of counsel," and stated the following reason for denying the request for transcripts and the appointment of counsel:
Defendant's non-specific, "kitchen-sink" claim is too general to warrant any relief. His failure to assert a more specific claim does not justify appointment of counsel or the preparation of transcripts at further government expense.
The judge also revealed that her law clerk had contacted Mr. Ayeni.*fn8
On June 16, 2000, the motions judge received a letter from Mr. Hardy, dated June 6, 2000 (the "Letter"). In the Letter, Mr. Hardy complained that Mr. Ayeni neither interviewed nor put "important witnesses on the stand." He also stated that Mr. Ayeni ignored his desire to accept a plea bargain that would have resulted in a conviction for only the charge of assault with intent to murder, and he asserted that "[Mr. Ayeni] told [him he, Mr. Hardy,] was  young and ignorant to the law and let him handle it." Further, Mr. Hardy discussed Ms. Pullings' misconduct as his appellate counsel, the resulting appellate representation of Mr. Ayeni, and Ms. Pullings' disciplinary sanction. He asked the judge not to "look at [his] claim as being 'kitchen-sink'  or too general to warrant [him] any relief," and implored her to "please hear [his] cries." Mr. Hardy ended the Letter by saying:
I sincerely hope that you would look into some of the issues I've presented in this letter because as "God" as my witness, "they are the truth." I also hope I'm not putting a burden on your shoulders but honestly I don't know where else to turn. So please help me.
In an Order issued July 7, 2000, the motions judge interpreted the Letter "as a pro se Motion for Ineffective Assistance of Counsel" under D.C. Code § 23-110 and denied the motion. She acknowledged Mr. Hardy's account of Mr. Ayeni's performance and noted that Mr. Hardy "recently filed a pro se Motion for Trial Transcripts essentially arguing the same points as those expressed in the pending motion." In a footnote, she explained that the Superior Court lacks jurisdiction over a claim of ineffective assistance against Ms. Pullings as appellate counsel. In addition, the judge discussed the presumption of a hearing before ruling on a § 23-110 claim, but she determined that no hearing was required because Mr. Hardy's claim was "vague and conclusory."*fn9
Mr. Hardy's January 2001 Pro Se Motion and PDS' Appearance as His Counsel
On July 20, 2000, the Chief Judge of this court received a letter from Mr. Hardy. In it, Mr. Hardy recounted how Ms. Pullings' abandonment of his case resulted in Mr. Ayeni handling his direct appeal, summarized the ineffective assistance claim he desired to file against Mr. Ayeni, and declared that he "[did not] know where else to turn" for help on his appellate-counsel ineffective assistance claim. The Chief Judge sent Mr. Hardy's letter to the Clerk's Office; in turn, the Clerk referred Mr. Hardy's case to the Appellate Division of PDS.
On January 29, 2001, while PDS was reviewing Mr. Hardy's case prior to deciding whether to represent him, Mr. Hardy filed a pro se "Motion to Vacate, Correct, or Set-Aside Sentence Pursuant to D.C. Title 23:110 [sic]" ("2001 Motion"). Citing United States v. McLaughlin, 334 U.S. App. D.C. 1, 164 F.3d 1 (1998), Mr. Hardy alleged a violation of his Sixth Amendment right to effective assistance of counsel because Mr. Ayeni failed to raise the issue of the merger of his convictions for assault with intent to murder while armed and aggravated assault while armed. The government responded that McLaughlin was inapposite ...