Submitted June 22, 2017
from the Superior Court of the District of Columbia
(CMD-8679-13) (Hon. Robert E. Morin, Trial Judge)
A. Barrella was on the brief for appellant.
Channing D. Phillips, United States Attorney, and Elizabeth
Trosman, Barry Wiegand, Angela Buckner, and Cara A. Gardner,
Assistant United States Attorneys, were on the brief, for
Blackburne-Rigsby, Chief Judge, McLeese, Associate Judge, and
Reid, Senior Judge.
Clinton Turner, challenges the trial court's denial of
his motion, filed pursuant to D.C. Code § 23-110 (2012
Repl); the motion alleged ineffective assistance of counsel
during his trial for simple assault.Mr. Turner argues that the
trial court erred in declining to extend to his case the
Supreme Court's ruling in Padilla v. Kentucky,
559 U.S. 356 (2010), to require a reasonably competent
criminal defense attorney to inform him of collateral
employment consequences. He also contends that under
Padilla, the trial judge incorrectly applied the
prejudice prong of the ineffective assistance of counsel
standard. For the reasons stated below, we affirm the trial
October 2013, during his tenure as a Metropolitan Police
Department ("MPD") officer, Mr. Turner was
convicted of simple assault after a bench trial. The
government's evidence showed that his conviction stemmed
from an incident at a shoe store where he and another MPD
officer, Lewond Fogle, were conducting a "business
check." The complainant, Daniel Fox, who was working at
the store, made an inappropriate comment to Officer Fogle
concerning the female store manager. Officer Turner told Mr.
Fox, "Don't do anything that will get you fired or
arrested." The trial judge found that when Mr. Fox made
yet another comment, Officer Turner "grabbed Mr. Fox,
pulling him down from his table or seat, and slammed him into
a wall and then to the ground and eventually arrested
him." Officer Turner pulled some of Mr. Fox's hair
out while pulling him down. Mr. Turner testified on his own
behalf, explaining that he believed that he was justified in
using reasonable force in arresting Mr. Fox, who was being
disorderly. The trial court found that Mr. Turner's
version of the events was "not credible and . . . not
supported by any of the objective evidence, " including
a video that captured the encounter. The court concluded that
Mr. Turner used excessive force while interacting with Mr.
Fox and found him guilty of assault.
Turner lodged a pro se Motion to File a Belated
Appeal on October 3, 2014, arguing that his trial counsel had
been deficient. This court interpreted his motion as a
collateral attack under D.C. Code § 23-110. Mr. Turner
also eventually filed a direct appeal of his assault
conviction on October 23, 2015.
June 3, 2016, D.C. Code § 23-110 evidentiary hearing,
Mr. Turner's trial counsel, Harold Martin,  testified
regarding his representation of Mr. Turner during the assault
trial. Mr. Martin explained that the defense
theory at trial was that Mr. Turner "used a reasonable
amount of force under the circumstances in the course of
making a valid arrest or detainment for legitimate police
purposes." Mr. Martin understood that Mr. Turner wanted
to testify, and he explained to Mr. Turner that he did not
believe he could avoid conviction without testifying. Mr.
Martin practiced Mr. Turner's direct examination with
him, talked to him about the principles of cross-examination,
and explained how Mr. Turner might be attacked on
cross-examination. He also generally spoke about the
importance of being truthful. Mr. Martin stated that
"[t]here never seemed to be any ambiguity about [Mr.
Turner's] understanding of what was the truth and what
was falsehood or what was right and what was
Martin "may have informally discussed" how the
criminal trial could affect Mr. Turner's employment with
MPD and he informed Mr. Turner that people "have
survived a misdemeanor conviction." However, he did not
have a detailed discussion with Mr. Turner about the
potential administrative consequences of his criminal case
because Mr. Martin believed such a discussion would be a
conflict of interest and would involve speculating about
results. Mr. Martin did not inform Mr. Turner about any
consequences he may face regarding employment and his ability
to testify in future criminal cases due to an adverse
credibility finding by the court. The "focus was on
trying to win th[e] trial."
trial court denied Mr. Turner's § 23-110 motion on
June 7, 2016. First, the court found that trial counsel's
representation of Mr. Turner was not constitutionally
deficient. Second, the trial judge declared,
"Even if [Mr. Martin] were deficient, however, I would
find that [Mr. Turner] has not demonstrated sufficient
prejudice under Strickland v. Washington, [466 U.S.
668 (1984), ] concerning Mr. Martin's purported deficient
performance in giving advice." Mr. Turner appealed the
denial of the § 23-110 motion, and this court
consolidated his direct and collateral appeals.
OF REVIEW ...