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.
Kathleen 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 Columbia.
Thompson, Associate Judge.
James Blackmon challenges the trial court's 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 counsel's deficient advice
regarding a plea offer (specifically, counsel's 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 court's conclusion that
he failed to show prejudice from his trial counsel's
deficient representation was premised on a misinterpretation
of Lafler v. Cooper, 566 U.S. 156 (2012) (addressing
what a defendant must establish to show prejudice from
ineffective assistance of counsel if he contends that
counsel's deficient advice caused him to reject a plea
offer). We affirm.
trial in March 2009, appellant was convicted of three counts
of first-degree 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 appellant's convictions and
remanded the case for a new trial because, in violation of
appellant's 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
instant appeal focuses on what happened during the lead-up to
appellant's 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, appellant's
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[, ] I[']ll 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 Anderson) "agreed to be bound by the
34-year sentence and not impose a sentence greater than
that." The case proceeded to trial, and, as already
noted, the jury acquitted appellant of burglary but found him
guilty of all the remaining charges, and the court sentenced
him to 34 years' imprisonment. Blackmon I, 146
A.3d at 1077.
January 10, 2017, appellant filed his § 23-110 motion,
asserting that he received ineffective assistance of counsel
from Mr. Downs. On November 17, 2017, Judge Anderson held an
evidentiary hearing on the motion. The court denied the
motion on January 11, 2018, concluding that appellant
"was not prejudiced by Mr. Downs' deficient
its ruling from the bench, the court explained that it was
"hard . . . to say" whether it would have accepted
a Super. Ct. Crim. R. 11(e)(1)(C) plea, but "assume[d],
for the purposes of [appellant's] motion, that [it] would
have" done so given that it "typically defers to
seasoned prosecutors and . . . defense lawyers who have
negotiated a plea." The court viewed the issue as
whether appellant "would have taken the
court began its analysis by recognizing that "a higher
sentence [after a second trial] gives rise to a presumption
of vindictiveness for having exercised appellate rights . . .
." See infra n.6. Stating that it was not aware
of any new information that would have justified a more
severe sentence than was imposed after appellant's first
trial, the court found that appellant faced only a
"remote possibility" of a sentence exceeding 34
years. The court found that appellant had not established
"a reasonable probability that had he been correctly