May 7, 2019
from the Superior Court of the District of Columbia
(CF1-21355-08), (Hon. Jennifer M. Anderson, Motion Judge)
Vincent A. Jankoski for appellant.
Gibbons, Assistant United States Attorney, with whom Jessie
K. Liu, United States Attorney, and Elizabeth Trosman, Sitara
Witanachchi, and Nicholas P. Coleman, Assistant United States
Attorneys, were on the brief, for appellee.
Glickman and Thompson, Associate Judges, and Greene, Senior
Judge, Superior Court of the District of
James Blackmon challenges the trial courts denial of his
"Motion to Vacate, Set-Aside, or Correct The Sentence
Pursuant to D.C. Code § 23-110," in which he sought
relief based on his trial counsels deficient advice
regarding a plea offer (specifically, counsels erroneous
advice about the maximum sentence appellant could face if he
rejected the plea offer and was convicted after a retrial).
Appellant contends that the trial courts conclusion that he
failed to show prejudice from his trial counsels deficient
representation was premised on a misinterpretation of
Lafler v. Cooper, 566 U.S. 156, 132 S.Ct. 1376, 182
L.Ed.2d 398 (2012) (addressing what a defendant must
establish to show prejudice from ineffective assistance of
counsel if he contends that counsels deficient advice caused
him to reject a plea offer). We affirm.
trial in March 2009, appellant was convicted of three counts
sexual abuse, one count of attempted first-degree sexual
abuse, one count of first-degree burglary, one count of
kidnapping, and one count of assault with significant bodily
injury ("ASBI"). See Blackmon v. United
States ("Blackmon I"), 146 A.3d 1074, 1075 (D.C.
2016). Although the government had asked the court to
sentence appellant to life imprisonment without the
possibility of parole, the court (the Honorable Geoffrey
Alprin) sentenced him to an aggregate term of 34 years of
incarceration. In resolving his direct appeal, this court
vacated appellants convictions and remanded the case for a
new trial because, in violation of appellants Sixth
Amendment confrontation rights, the government was allowed to
"present the results of DNA testing through a witness
who had neither conducted nor observed the testing."
Blackmon I, 146 A.3d at 1076. Following a second
jury trial in April of 2014, appellant was acquitted of
burglary, but was convicted again of all other charges.
Id. The trial court again sentenced appellant to a
total of 34 years of incarceration. Id.
instant appeal focuses on what happened during the lead-up to
appellants second trial. The government presented a plea
offer under which "if [appellant] pled to First-Degree
Sexual Abuse With Aggravating Circumstances, [the government]
would agree to [a Super. Ct. Crim. R.] 11(e)(1)(C) plea of 25
years incarceration ... with credit for time served." In
advising appellant about the plea offer, appellants trial
counsel, Jason Downs, informed appellant that if he rejected
the plea offer and was ultimately convicted at the second
trial, he would not receive a sentence of incarceration that
was more than the 34 years imposed following his first trial.
Blackmon I, 146 A.3d at 1076. Appellant rejected the
plea offer. Id.
after the second trial began, realizing that the advice he
had given appellant was mistaken, Mr. Downs disclosed his
mistake to the trial court and asked the court to appoint
independent counsel to speak with appellant.Id.
Appellant, in an ex parte hearing at the bench, told
the court, "If you can get the original ... plea back[,]
Ill take it[.]" Id. The prosecutor stated in
open court, however, that the original 25-year plea offer
"was no longer on the table." Id. The
government instead offered appellant a plea agreement with a
government sentencing recommendation of 34 years, an offer
appellant rejected. Id. at 1076-77. The government
then "agreed to cap its allocution at 34 years,"
asserting that this would "restore [appellant] to where
he was" when he rejected the 25-year plea offer.
Id. at 1077. The court (the Honorable Jennifer