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Blackmon v. United States

Court of Appeals of The District of Columbia

September 12, 2019

James Earl Blackmon, Appellant,
United States, Appellee.

          Argued May 7, 2019

          Appeal 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.

          Before Glickman and Thompson, Associate Judges, and Greene, Senior Judge, Superior Court of the District of Columbia. [*]

          Thompson, Associate Judge.

         Appellant 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.


         After a 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 incarceration.[1] Id.

         The 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.

         Shortly 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.[2] 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.

         On 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 advice."

         Announcing 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 plea."[3]

         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 advised ...

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