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Blackmon v. United States

Court of Appeals of Columbia District

September 29, 2016

James Earl Blackmon, Appellant,
v.
United States, Appellee.

          Argued April 21, 2016

         On Appeal from the Superior Court of the District of Columbia CF1-21355-08 Criminal Division Hon. Jennifer M. Anderson, Trial Judge.

          Matthew B. Kaplan for appellant.

          John L. Hill, Assistant United States Attorney, with whom Channing D. Phillips, United States Attorney, and Elizabeth Trosman, Sharon Donovan, Elizabeth H. Danello, and Ann K. H. Simon, Assistant United States Attorneys, were on the brief, for appellee.

          Before FISHER and BLACKBURNE-RIGSBY, Associate Judges, and RUIZ, Senior Judge.

         JUDGMENT

         This case came to be heard on the transcript of record and the briefs filed, and was argued by counsel. On consideration whereof, and as set forth in the opinion filed this date, it is now hereby

         ORDERED and ADJUDGED that the judgment of conviction is affirmed.

          OPINION

          Vanessa Ruiz Senior Judge.

         In this appeal, appellant James Blackmon claims that he is entitled to reversal of his convictions and a new trial because his appointed counsel had a continuing conflict of interest as a result of an error made in the course of considering the government's plea offer. We conclude that the trial court recognized the actual conflict of interest that was presented and addressed it in an appropriate manner by appointing other counsel to advise concerning the plea offer, and that the record does not support that there was a realistic possibility of lingering conflict that required a mid-trial hearing or appointment of new counsel for trial. Thus, we affirm the judgment of conviction.

         I.

         In March 2009, appellant was tried and convicted by a jury of three counts of first-degree sexual abuse (D.C. Code § 22-3002) (2012 Repl.), one count of attempted first-degree sexual abuse (D.C. Code §§ 22-3002, -3018), one count of first-degree burglary (D.C. Code § 22-801), one count of kidnapping (D.C. Code § 22-2001), and one count of assault with significant bodily injury (D.C. Code § 22-404 (a)(2)), all arising out of acts committed on February 4, 2008. Appellant was sentenced to 34 years of incarceration. On direct appeal, this court remanded for a new trial because appellant was denied the right to confrontation under the Sixth Amendment when, over his objection, the government was permitted to present the results of DNA testing through a witness who had neither conducted nor observed the testing. Blackmon v. United States, No. 09-CF-702, Mem. Op. & J. (D.C. Apr. 22, 2013).

         Following a second trial before a jury in April 2014, appellant was acquitted of burglary, but convicted of all remaining charges. The trial court again sentenced appellant to 34 years of incarceration.

         Before appellant's second trial, the government offered a plea agreement: in exchange for a plea of guilty to all the charges, the government would recommend that appellant receive no more than 25 years of incarceration. One of appellant's attorneys, Jason Downs, advised appellant that if he rejected the plea offer and was convicted at a second trial, he could not be sentenced to incarceration for more than the 34 years he had received in his first trial. Appellant rejected the plea. On the first day of trial, realizing his mistake, [1] Downs disclosed his error to the court and requested "that the Court appoint independent counsel to speak with [appellant]." Downs made clear that he was not withdrawing from the case but felt that he should not be the person to explain appellant's options in light of his erroneous advice. Appellant also addressed the court at an ex parte hearing at the bench. He said that he "was basically misled . . . [he] thought that not going back to trial, [he] would . . . just get the original sentence. . . . [He] never thought [he] could get more time." He added, "[i]f you can get the original . . . plea back[, ] I'll take it" and asked that the court "sentence [him] today" because he did not "want to come back to this courthouse anymore."

         The trial judge appointed a different lawyer, Michael Madden, "just to give [appellant] advice about . . . [his] options at this juncture." The government made clear that the original plea offer, with the 25-year sentencing recommendation, was no longer on the table. After a brief recess to allow Madden to speak with appellant, Madden explained to the court that appellant "want[ed] to take the Government's plea offer and would have taken it had he not been given erroneous advice at the time." The government instead offered appellant a plea agreement with a government sentencing ...


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