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Clark v. United States

Court of Appeals of Columbia District

April 21, 2016

RALPH L. CLARK, JR., Appellant,

Submitted February 2, 2016

On Appeal from the Superior Court of the District of Columbia Criminal Division

Appeal from the Superior Court of the District of Columbia (CF3-7495-10) (Hon. Ann O. Keary, Trial Judge)

William T. Morrison was on the brief for appellant.

Vincent H. Cohen, Jr., Acting United States Attorney at the time the brief was filed, and Elizabeth Trosman, and Candice C. Wong, Assistant United States Attorneys, were on the brief for appellee.

Before Washington, Chief Judge, Thompson, Associate Judge, and Ferren, Senior Judge.


This case was submitted to the court on the transcript of record and the briefs filed, and without presentation of oral argument. On consideration whereof, and for the reasons set forth in the opinion filed this date, it is now hereby

ORDERED and ADJUDGED that the judgment of the trial court is affirmed.


John M. Ferren. Senior Judge

This is the second time this case has come before this court, a collateral attack on the conviction we affirmed in Clark I.[1] Alleging ineffective assistance of counsel, appellant asks us to reverse the trial court's denial, without a hearing, of his motion to vacate his conviction and sentence pursuant to D.C. Code § 23-110 (c). After reviewing the record, we agree that appellant's representation was constitutionally deficient, but we conclude that he suffered no prejudice as a result. Accordingly, we must affirm.

I. Facts and Proceedings

Appellant Ralph L. Clark was convicted of committing an armed robbery at Starbucks in the Howard University book store. He accepted the government's plea offer, which provided in relevant part that "[a]lthough the [g]overnment reserves the right to allocute at [Clark's] sentence in this case, it agrees not to allocute for a sentence greater than 10 years incarceration."[2] In its Memorandum in Aid of Sentencing, however, the government - in three places - recommended that Clark receive twenty years of incarceration.[3]

"At the sentencing, the trial judge, having reviewed the plea agreement, mentioned the error in the government's memorandum. The prosecutor immediately acknowledged the error, explaining that she had forgotten the "cap" and agreeing that the twenty-year recommendation was 'off the table.'"[4] Defense counsel responded that she "didn't have a chance to talk to Mr. Clark about this."[5]She added that, because the government had filed a document vigorously arguing for a sentence that violates the plea agreement, the government should file another one with a retraction indicating that "they're vigorously arguing for the sentence that they agreed that they would."[6] The trial judge agreed with counsel but did not delay the sentencing. She advised counsel, after reviewing the plea agreement, that she had "immediately noticed the error" upon reading the government's sentencing memorandum; that "everyone's ready for sentencing today"; and that it would be "sufficient with the confession of error" if the prosecutor were to file "an amended document and we vacate the other one."[7] Defense counsel concurred, "[a]s long as the error is corrected."[8]

During allocution, after reviewing Clark's "violent criminal history, " the prosecutor concluded by saying that "a ten-year sentence is very generous in this case."[9] Defense counsel asked for leniency but did not object to the prosecutor's allocution. After permitting Clark to speak, the judge sentenced him to prison for ten years, a sentence, we later observed, that "was consistent with the prosecutor's obligations under the plea agreement."[10]

II. Direct Appeal (Clark I)

On direct appeal (Clark I), Clark's new counsel argued that the prosecutor had violated the plea agreement not only by recommending a twenty-year sentence after promising to cap the allocution at ten years, but also by compounding the violation by arguing that a ten year sentence would be "very generous."[11] Counsel on appeal therefore asked this court to vacate Clark's sentence and arrange for resentencing before a different judge. Counsel also argued that if the new sentence were to exceed ten years, Clark should be permitted to withdraw his plea.[12]

This court agreed that the government's breach of the plea agreement in the sentencing memorandum "was both grave and inexcusable, " indeed that this "blatant breach" had "potentially devastating consequences" for two reasons: the prosecutor initially requested twice the level of incarceration - "ten more years" - than the plea agreement allowed, and the prosecutor argued at sentencing that even the ten years called for by the agreement was "very generous."[13] This allocution, we said, "was anything but an emphatic retreat from the impropriety"; it was an "implied dissatisfaction with that agreement."[14] We acknowledged no reason to question the judge's assurance that she would be guided by the plea agreement, not by the government's noncompliance; but, we stressed: "the judge had read what she had read and had heard what she had heard, and the combination of what the prosecutor wrote and what the prosecutor said could hardly have left the judge in doubt that the level of the prosecutor's commitment to the plea agreement was quite modest."[15]

All this said, we noted that when the judge decided to go ahead with sentencing, defense counsel replied, "Okay."[16] Furthermore, counsel did not object to the judge's decision to keep the case for sentencing, rather than referring it to another judge; nor did counsel object to the prosecutor's allocution.[17] This left us, we said, no alternative to reviewing the record for "plain error affecting substantial rights, " a review focused exclusively on the actions of the trial judge.[18] This meant that, to prevail, "Clark would have to demonstrate that the judge committed plain error by failing to recuse herself sua sponte, so that the case could be reassigned to another judge who would not be apprised of the recommendation made by the government in its initial sentencing memorandum."[19]

We concluded that, on direct appeal, Clark had satisfied none of the four requirements to establish plain error by the trial judge, as prescribed by the Supreme ...

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