Appeal from the Superior Court of the District of Columbia (FEL-7539-04) (Hon. Wendell P. Gardner, Jr., Trial Judge)
The opinion of the court was delivered by: Glickman, Associate Judge:
Before GLICKMAN and BLACKBURNE-RIGSBY, Associate Judges, and TERRY, Senior Judge.
Prior to their trial on charges of assault with intent to kill while armed and other offenses, the government extended "wired" plea offers to appellant Basillo Benitez and his co-defendant, Carlos SarmientoMorales. The offers were not accepted, and the two men were tried and convicted on several counts. Benitez subsequently moved the trial court to vacate his convictions because his defense attorney never informed him of the government‟s offer, thereby denying him his Sixth Amendment right to the effective assistance of counsel. After an evidentiary hearing, the court credited Benitez‟s claim and found that he would have accepted the plea offer had he been advised of it. The court found, however, that Benitez would have been unable to go through with the proposed plea because there was no evidence that the government would have "unwired" it or that his co-defendant also would have accepted the plea offer. Concluding that Benitez therefore did not show prejudice from his counsel‟s failure to inform him of the plea offer, the court denied relief. Benitez has appealed that decision to this court.
We agree with the trial court that Benitez did not make a sufficient showing of prejudice. For the reasons stated below, we remand for further proceedings on Benitez‟s claim.
On November 21, 2004, according to the government‟s evidence at trial, Benitez and Sarmiento-Morales forced their way into the apartment of Virgilio Argueta and demanded money. When Argueta refused to give it to them, Sarmiento-Morales fetched a knife from the kitchen and gave it to Benitez, who proceeded to stab Argueta in the abdomen. Taking cash and other property belonging to Argueta, Benitez and Sarmiento-Morales then left the apartment. Argueta survived the stabbing and reported it to the police.
Eventually, Benitez and Sarmiento-Morales were arrested and charged with first-degree burglary, assault with intent to kill while armed, aggravated assault while armed, armed robbery, and other offenses arising out of the November 21 incident. Benitez was also charged with having threatened and assaulted Argueta in a separate encounter on November 16, 2004, five days before the stabbing.
Following their indictment, the government extended identical written plea offers to Benitez and his co-defendant. In exchange for each defendant‟s plea of guilty to first-degree burglary, the government was prepared to dismiss all of the other charges and (if certain conditions were met) to agree not to allocute for more than the lowest period of incarceration in the applicable guideline range.*fn1 The government specified that the plea offers were "wired," meaning it was a condition of each defendant‟s offer that his co-defendant accept the offer too.
The offers expired on July 28, 2005. At a pretrial hearing on that date, the prosecutor informed the judge in the presence of both defendants and their counsel that the "defendants are rejecting the Government‟s plea offer." No defendant or defense counsel said anything in response to this statement.
Trial commenced a few weeks later. In the end, the jury acquitted Benitez and Sarmiento-Morales of first-degree burglary and armed robbery but found them guilty of assault with intent to kill while armed, aggravated assault while armed, and other, lesser offenses in connection with the November 21 incident. Benitez was found not guilty of the assault and threat charges relating to the November 16 incident. On November 28, 2005, the trial court sentenced him to serve 132 months in prison. This court affirmed his convictions on direct appeal.*fn2
While his appeal was pending, Benitez filed a motion in the trial court to vacate his conviction pursuant to D.C. Code § 23-110 (2001) alleging ineffective assistance of counsel. At an evidentiary hearing on the motion, Benitez testified that his defense attorney, Howard McEachern, failed to apprise him of the government‟s plea offer, thereby depriving him of the opportunity to accept that offer and limit his sentencing exposure. Benitez claimed that he would have accepted the offer had he been informed of it. The government disputed each of these assertions. It called McEachern, who testified that he was confident he discussed the plea offer with Benitez, even though he did not specifically remember doing so, and that Benitez steadfastly maintained his innocence. No other witnesses appeared at the hearing. At its conclusion, after confirming that the parties had no additional evidence to present, the court declared the evidentiary record closed ("I‟m going to cut off the admission of any further evidence. . . .
[O]nce I stop today there is not going to be any more evidence.") and proceeded to hear argument.
Following the argument, the court observed that while the parties had disputed whether McEachern had informed Benitez of the plea offer and whether Benitez would have taken it, there was another issue they had ignored: whether it would have been possible for Benitez to accept the government‟s offer and obtain its benefits, given that the offers extended to him and his co-defendant were wired. Even assuming Benitez would have wanted to plead guilty on the government‟s terms, the court pointed out, there was no evidence that Sarmiento-Morales would have enabled him to do so by pleading guilty too, or that the government would have unwired the plea. The court asked the parties to be sure to address in their ...