## District of Columbia Court of Appeals

No. 14

- CO

- 1393
RALPH L. CLARK, JR., Appellant,

v. CF3

- 7495

- 10

UNITED STATES, Appellee.

On Appeal from the Superior Court of the District of Columbia

Criminal Division

BEFORE: W ASHINGTON , Chief Judge ; T HOMPSON , Associate Judge , and F ERREN , Senior Judge

.

J U D G M E N T

This case was submitted to the court on the transcript of record and the briefs filed, and without presentation of oral argument. On consideration whereof, and for the reasons set forth in the opinion filed this date, it is now hereby

ORDERED and ADJUDGED that the judgment of the trial court is affirmed.
For the Court:

Dated: April 21, 2016. Opinion by Senior Judge John M. Ferren. APR 21 2016Notice: This opinion is subject to formal revision before publication in the

Atlantic and Maryland Reporters. Users are requested to notify the Clerk of the Court of any formal errors so that corrections may be made before the bound volumes go to press.


### DISTRICT OF COLUMBIA COURT OF APPEALS

No. 14

- CO

- 1 3 93

R ALPH L. C LARK , J R

. , A PPELLANT ,

v.
U NITED S TATES , A PPELLEE

. Appeal from the Superior Court of the District of Columbia ( CF3

- 7495

- 10 ) (Hon. Ann O. Keary , Trial Judge) ( Submitted February 2 , 201 6 Decided April 21 , 2016 )
William T. Morrison w as on the brief for appellant.
Vincent H. Cohen, Jr. , Acting United States Attorney at the time the brief was filed , and Elizabeth Trosman , and Candice C. Wong , Ass istant United States A ttorneys, were on the brief for appellee.
Before W ASHINGTON , Chief Judge , T HOMPSON , Associate Judge , and F ERREN , Senior Judge

. F ERREN , Senior Judge : This is the second time this case has come before
this court , a collateral attack on the conviction we affirmed in Clark I

. 1 Alleging

1 Clark v. United States , 51 A.3d 1266 (D.C. 2012) ( Clark I ). 4/ 21 /162

ineffective assistance of counsel, appellant asks us to reverse the trial court‟s

denial , without a hearing, of his motion to vacate his conviction and sentence pursuant to D.C. Cod e § 23

- 110 (c). After reviewing the record , we agree that appellant‟s representation was constitutionally deficient , but we conclude that he
suffered no prejudice as a result. Accordingly, we must affirm.

I. Facts and Proceedings

Appellant Ralph L. Clark was convicted of committing an armed robbery at Starbucks in the Howard University book store. He accepted the government‟s plea offer, which provided in relevant part that “[a]lthough the [g]overnment reserves the right to alloc u te at [Clark‟s] sentence in this case, it agrees not to allocute for a sentence greater than 10 years incarceration.” 2 In its Memorandum in Aid of Sentencing, however, the government

— in three places

—

r ecommended that Clark receive twenty years of incarceration. 3

2 Id. at 1267.

3 Id

.3

“ At the sentencing, the trial judge, having reviewed the plea agreement,
mentioned the error in the government‟s memorandum . The prosecutor immediately acknowledged the error, explaining that she had forgotten the “cap” and agr eeing that the twenty

- year recommendation was „off the table .‟” 4 Defense counsel responded that she “didn‟t have a chance to talk to Mr. Clark about this

. ” 5

She added that, because the government had filed a document vigorously arguing for a sentence that violates the plea agreement, the government should file another
one with a retraction indicating that “they‟re vigorously arguing for the sentence that they agreed th at they would.” 6 The trial judge agreed with counsel but did not delay the sentencing. She advised counsel , after reviewing the plea agreement, that she had “immediately noticed the error” upon reading the government‟s sentencing
memorandum ; that “everyo ne‟s ready for sentencing today”; and that it would be
“sufficient with the confession of error” if the prosecutor were to file “an amended
document and we vacate the other one.” 7 Defense counsel concurred, “[a]s long as
the error is corrected.” 8

4 Id . at 1268.

5 Id

.
6 Id.

7 Clark , 51 A.3d at 1268 (internal quotation marks omitted). (continued .

. .)4

During allocution, after reviewing Clark‟s “violent criminal history,” the prosecutor concluded by saying that “a ten

- year sentence is very generous in this
case.” 9 Defense counsel asked for leniency but did not object to the prosecutor‟s

allocution. After perm itting Clark to speak, the judge sentenced him to prison for ten years, a sentence, we later observed, that “ was consistent with the prosecutor‟s obligations under the plea agreement.” 10

II. Direct Appeal ( Clark I )

On direct appeal ( Clark I ) , Clark ‟s new counsel argued that the prosecutor had violated the plea agreeme nt not only by recommending a twenty

- year sentence after promising to cap the allocution at ten years, but also by compounding the violation by arguing that a ten year sentence would be “very generous
. ” 11 C ounsel

_________________________________ (.

. . continued) 8 Id. The corrected memorandum was filed the day after sentencing. See id.

9 Id. (emphasis omitted).

10 Id. at 1269.

11 Id.5

on appeal therefore asked this court to vacate Clark‟s sentence and arrange for resentencing before a different judge. Counsel also argued that if the new sentence were to exceed ten years, Clark should be permitted to withdraw his plea. 12

This court agreed that the government‟s breach of the plea agreement in the sentencing memorandum “was both grave and inexcusable,” indeed that this
“blatant breach” had “ potentially devastating co nsequences ” for two reasons: the prosecutor initia lly requested t wice the level of incarceration

— “ten more years”

— than the plea agreement allowed , and the prosecutor argu ed at sentencing that even the ten years called for by the agreement was “very generous.” 13 This allocution, we said, “was anything but an emphatic retreat from the impropriety” ; it was an “implied dissatisfaction with that agreement.” 14 We acknowledged no reason to question the judge‟s assurance that she would be guided by the plea agreement, not by the government‟s noncompliance ; but , we stressed : “the judge
had read what she had read and had heard what she had heard, and the combination
of what the prosecutor wrote and what the prosecutor said could hardly have left

12 Clark , 51 A.3d at 1269

.

13 Id. at 1269

- 70.

14 Id. at 1270.6

the judge in doubt that the level of the prosecutor‟s commitment to the plea
agreement was quite modest.” 15

All this said, we noted that when the judge decided to go ahead with sentencing, defense counsel replied, “Okay.” 16 Furthermore, counsel did not object to the judge‟s d ecision to keep the case for sentencing , rather than referring it to another judge ; nor did counsel object to the prosecutor‟s allocution. 17 This left us, we said, no alternative to reviewing the record for “plain error affecting substantial rights,” a review focused exclusively on the actions of the trial judge. 18 This meant that, to prevail, “Clark would have to demonstrate that the judge committed plain error by failing to recuse herself sua sponte , so that the case could be reassigned to another judge who would not be apprised of the recommendation made by the government in its initial sentencing memorandum.” 19

15 Id.

16 Id. at 1271.

17 Id.

18 Id. at 1272.

19 Id.7

We concluded that, on direct appeal, Clark had satisfied none of the four requirements to establish plain error by the trial judge, as prescribed by the Supreme Court in Olano

. 20 Our opinion ended as follows:

In reaching the foregoing conclusion, we do not minimize the gravity of the government‟s initial breach, or the alarming potential of that breach for causing the defendant to serve ten years of unwarranted additional imprisonment, in contravention of the plea agreement. We also emphasize that when such a serious violation of a plea agreement has occurred, it is our obligation to scrutinize the record with appropriate care in order to assure that even where, a s here, the breach has been formally corrected, it will not have continuing consequences that may be contrary to the interests of justice. 21

Having conducted the requisite scrutiny, this court affirmed Clark‟s conviction.

III. § 23

- 110 Collateral Attack ( Clark II )

20 United States v. Olano , 507 U.S. 725, 732

- 36 (1993) (claims of unpreserved error should be reviewed for (1) “an error ,” (2) that is “plain,” (3) that affects “substantial rights, ” and (4) “ seriously affec t[s] the fairness, integrity or public reputation of judicial proceedings .”).

21 Clark I , 51 A.3d at 1272

- 73.8

Two months after this court issued its decision , but before the mandate
issued, counsel in Clark I filed a motion with the sentencing judge pursuant to D.C.
Code § 23

- 110 ( a ) (1) , asking the judge to vacate Clark‟s convictions and sentence

. Counsel alleg ed, fundamentally, that Clark‟s plea attorney had provided constitutionally ineffective assistance of counsel by electing , as a “tactical

decision , ” to continue with sentencing without adequately informing Clark of the government‟s b r each of the plea agreement

. More particularly , to quote the
motion, Clark‟s plea attorney had

fail [ ed ] to consult with him during sentencing about the government‟s violation of the plea agreement or to
ex plain to him what legal options were available to remedy the breach and the risks that each entailed, including the assignment of his case to a different judge for a new sentencing.

These were counseling deficiencies, said the motion , that prejudiced Clark by “realistically eliminating any possibility that he wo ul d receive a sentence of less
than ten years as his plea counsel had allocuted for at sentencing.”

In support of the motion, counsel proffered an affidavit by Clark, who averred that plea counsel had “ stated on the record that she had not had an opportunity to discuss this [plea breach] with me.” And, “without conferring with me about my legal options, she agreed that[] . . . the judge could proceed to9

sentence me

. ” Clark added: “[S]he failed to explain to me that even if I did not wish to withdraw my plea, I was still entitled to have my case assigned to a different judge who would sentence me withou t having a n y personal knowledge of the government‟s recommendation of a 20

- year sentence. She also failed to
discuss the advantages or disadvantages to me of being sentenced by a different judge

. . . .” In sum, Clark a n d his counsel contended that plea counsel had usurp ed from Clark his right, as the defendant, to decide , among available “options,” which

one to pursue.

The government, in reply, submitted a declaration by plea counsel, who noted that she had requested a seven
- year sentence, the “bottom of the sentencing guidelines”; had advised Clark that “a ten

- year sentence would not be unexpected”;

had decided to “wait to see the Court‟s reaction to the breach of the plea agreement” before deciding on a „course of action”‟ ; had seen how “very upset” the judge was about the government‟s breach; had thus made a “tactical decision” not to ask for the judge‟s recusal, be cause the judge “was upset with the

governmen t‟s actions ” and had said that the “sentencing memorandum would not affect” the judge‟s decision; that there was a “significant risk that another judge, not as familiar with Mr. Clark and the progress he had recently made, might
sentence Mr. Clark to more than ten years‟ imprisonment” ; a nd that counsel‟s10

“professional opinion ,” based on the judge‟s actions in this case and others, had led
counsel to believe that the risk of Clark‟s receiving a sentence longer than ten years before a different judge was grea ter than the chance of his receiving a lesser

sentence from the present judge.

Plea counsel‟s declaration did no t dispute Clark‟s affidavit. She had no recollection as to whether she had spoken to her client before the sentencing proceeding began, altho ugh she was “confident” that she had advised Clark of the plea breach “at least during” that proceeding. She then had advised Clark that “we

should proceed with sentencing” because of the judge‟s displeasure with the government and the judge‟s indication that she would not be influenced by the

breach. Nowhere in counsel‟s declaration did she say she had told Clark that sentencing before another judg e might be an option or that, alternatively, he could attempt to withdraw his plea.

The sentencing judge , applying Strickland criteria, 22 denied Clark‟s motion. The judge accepted plea counsel‟s reasoning, and justified counsel‟s judgment as a legitimate “tactical decision,” not a deficiency in performance. Nor was Clark

22 S ee S trickland v. Washington , 466 U.S. 668 (1984).11

prejudiced by counsel‟s actions, concluded the judge, because this court had ruled

in Clark I that “the government‟s breach did not affect [Clark‟s] substantial rights ,” thereby equating the absence of Strickland “prejudice” with a ruling of “no plain
error.”

IV. Appeal of Clark II : Procedural Matters

I n this second appeal ( Clark II ), Clark argues that , in denying his motion alleging ineffective assistance of counsel, the sentencing judge abused her
discretion by refusing to hold a hearing , which Clark contends the judge was required to conduct under D.C. Code § 23

- 110 (c) and related case law

. This appeal , more specifically, is premised on plea counsel‟s alleged failure , upon becoming fully informed about the breach, to ask the judge for time , before sentencing, (1) to thoroughly inform Clark about the government‟s actions in breach of the plea agreement , and (2) to “explain to Clark his legal options,” including a request to withdraw of his guilty plea

. 23

23 See Santobello v. New York , 404 U.S. 257, 262 (1971) ; White v. United States , 425 A.2d 616, 618 (D.C. 1980).12

Having lost on direct appeal in Clark I , based on our plain error review of the trial judge‟s actions, the same appellate counsel now asks us to review Clark‟s

sentence again, this time on collateral attack , focus ed on the actions of plea
counsel , not the trial judge, in response to the prosecutor‟s undisputed violations of the plea agreement. Acknowledging that Clark I forecloses a seco n d challenge to the court‟s failure to reassign the case for resentencing by a different judge, Clark

li m its his contention to counsel‟s failure to advise him of the possibility of seeking withdrawal of his guilty plea.

A. Shepard Issue

Before we address the merits, there is a procedural matter we should acknowledge. In our Shepard decision, we held:

[I]f an appellant does not raise a claim of ineffective assistance of counsel during the pendency of the direct appeal, when at that time appellant demonstrably knew or should have known of the grounds for alleging counsel‟s ineffectiveness, that procedura l default will be a barrier to this court‟s consideration of appellant‟s claim. [ 24 ]

24 Shepard v. United States , 533 A.2d 1278, 1280 (D.C. 1987).13

We added that “an appellant may surmount the barrier created by the procedural default” by showing both “cause” for the failure to bring a timely collateral challenge and “prejudice” to his claim as a result of that failure. 25

In this case, Clark filed his § 23

- 110 motion after we had announced our
decision in Clark I but before we issued the mandate. Neither the government nor
the court raised a timeliness issue when the motion was filed , nor does the government do so in this appeal. More specifically, the government does not challenge Clark‟s failure to ask for a stay of the mandate in Clark I so that, if the
§ 23

- 110 motion were denied, the appeal from that denial could be consolidated with the direct appeal. 26 Accordingly, we do not recognize a Shepard barrier here.

B. Standard of Review

We turn now to the criteria governing our review. Under Strickland , in
order t o obtain a new trial by establish ing constitutionally ineffective assistance of

25 Id . at 1281.

26 See id , at 1280.14

counsel , the defendant must demonstrate , first, that “counsel ‟ s performance was
deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the „counsel‟ guaranteed t he defendant by the Sixth
Amendment. Second, the defendant must show that the deficient performance prejudiced the defense

. ” 27 To demonstrate prejudice, an appellant must show “a reasonable probability that, but for counsel‟s unprofessional errors, the result of the proceeding would have been different.” 28

“ In evaluating counse l ‟ s performance, the reviewing court must indulge a strong presumption that co unsel ‟ s conduct fell within a wide range of reasonable professional assistance. ” 29 T actical decisions at trial “ generally do not result in a finding of ineffective assistance of counsel [;] thus, [a] ppellant bears the burden of overcoming the presumption of counsel ‟ s competence. ” 30 The appellant, however, is entitled to an ample opportunity to challenge that competence. T he statute under
which we review for ineffectiveness, D.C. Code § 23

- 110, “ creates a presumption

27 Strickland , 466 U.S. at 687.

28 Id . at 694. In Harrington v. Richter , 562 U.S. 86, 112 (2011), the Supreme Court characterized Strickland prejudice as a “substantial likelihood of a different result.”

29 Chatmon v. United States , 801 A.2d 92, 10 7 (D.C. 2002) ( internal quotation marks omitted)

.

30 Id.15

that a hearing should be held, especially where the allegations of ineffectiveness
relate to facts outside the trial record. 31 T he statute emphasizes that “[u]nless the

motion and files and records of the case conclusively show that the prisoner is
entitled to no relief, the [trial] court shall c ause notice thereof to be served upon the prosecuting authority, grant a prompt hearing thereon, determine the issues, and make findings of fact and conclusions of law with respect thereto. ” 32

Although the decision whether to hold a hearing is committed to the trial

court ‟ s sound discretion, we have said that “ the scope of that discretion is

. . . quite narrow. Any question regarding the appropriateness of a hearing should be
resolved in favor of holdi ng a hearing. We will affirm the trial court ‟ s denial of a
§ 23

- 110 motion without a hearing ”

— as occurred in this case

— “ only if t he claims (1) are palpably incredible; (2) are vague and conclusory; or (3) even if true,
do not entitle the movant to relief. ” 33 Accordingly , we must remand t his case for a

31 Long v. United States , 910 A.2d 298, 308 (D.C. 2006) (internal quotation marks omitted)

.

32 Id. (quoting D.C. Code § 23

- 110 (c) (emphasis added).

33 Id. (internal quotation marks omitted).16

hearing unless we are “ satisfied that under no circumstances could [Clark] establish facts warranting relief. ” 34

In addressing this matter, we follow our time

- honored standard of review.
“A claim of ineffective assistance of counsel presents mixed questions of law and fact. We defer to any relevant findings of fact if they are supported by the evidence but owe no deference on the ultimate question of law.” 35

V. Appeal of Clark II : The Merits

In this collateral attack on Clark‟s sentence, counsel essentially argues that, if the sentencing judge was not required sua sponte to protect Clark‟s right to remedy a violation of his plea agreement, then assuredly his trial counsel should be
held consti tutionally accountable for withho ld ing relevant considerations from
Clark

.

34 Id

.
35 Chatmon v. United States , 801 A.2d 92, 102 (D.C. 2002) (citations omitted).17

A. Alleged Constitutional Deficiency of Counsel

According to the Supreme C ourt in Florida v. Nixon , “ [a] guilty plea . . . is an event of signal significance in a criminal proceeding.” 36

[C ] ertain decisions regarding the exercise or waiver of basic trial rights are of such moment that they cannot be made for the defendant by a surrogate. A defendant . . . has the ultimate authority to determine whether to plead guilty, waive a jury, testify in his or her own behalf, or take an appeal. . . . Concerning those decisions, an attorney must both consult with the defendant and obtain consent to the recommended co urse of action. [ 37 ]

As to guilty pleas in particular , t he Supreme Court in Santobello , as well as
this court in White , has noted that t wo remedies are commonly available to a defendant when the government breaches a plea agreement: withdrawal of the plea or, at a minimum, sentencing by a judge unaware of the breach. 38 It follows from
this case law that , before sentencing, the defendant must be advised of the breach

36 Florida v. Nixon , 543 U.S. 175, 187 (2004).

37 Id.

38 See Santobello , 404 U.S. 257 at 262 ; see White , 425 A.2d 616 at 618.18

and of all available options, including advice from counsel as to whether the
defendant may wish to withdraw the plea if the trial court were to grant that option.
Otherwise, the defendant will have no informed basis for making a decision crucial
to his liberty interest.

In this case, however, by plea counsel‟s own admission, 39 Clark never received word of the breach until the sentencing proceeding was underway, and
thus he had no opportunity to consider the possibility of sentencing by a different judge (the issue resolved in Clark I ) or of withdrawing his plea (the issue now before us)

. Clark instead was the recipient of his counsel‟s “tactical decision” 40 to proceed to sentencing before Judge Keary, who was aware of the breach and the government‟s lingering , negative views of Clark , in conflict with it s concessions
under the plea agreemen t

.

Fundamental to Clark‟s claim of ineffective assistance of counsel, therefore, is the contention that his plea counsel was constitutionally deficient in failing to advise him of the government‟s breach and of all his possible remedies , in time for

39 See supra Part III.

40 See supra Part III.19

Clark to make a considered decision and for counsel to present his position to the court before sentencing. As an abstract proposition, that contention is sound. A lawyer is an agent; the client is the principal. When it comes to electing among options before sentencing that will determine the client‟s prison time, a lawyer cannot ethically or lawfully interdict that choice by acting as the client‟s principal and justifying that preemptive role as a legitimate tactical decision. 41

We have no doubt that plea counsel acted conscientiously in what she considered Clark‟s best interest, but evidence of good faith cannot supplant counsel‟s obligation to consult with the client before acting for him on a plea bargain decision. We also have no reason to doubt that, if counsel had asked the judge for time before sentencing to consul t with Clark about the options available
after the government ‟s breach of a plea agreement, that request would have been granted.

41 See American Bar Association, Standards for Criminal Justice (3d. 1993), “Control and Direction of Case,” 4

- 5.2.; id

. at 4

- 8.1; Nixon , 543 U.S. at 187; Jones v. Barnes , 463 U.S. 745, 751 (1983) (“[T] he accused has the ultimate authority to make certain fundamental decisions regarding the case, as to whether to plead guilty, waive a jury, testify in his or her own behalf, or take an appeal

. . . .”).20

The government , however, embraces th e sentencing judge‟s contrary
conclusion that plea counsel‟s decision to continue with sentencing under all the
circumstances was a sound “tac tical” choice of a sort that traditionally is left to a defendant‟s lawyer. The government , for example, equat es plea counsel‟s decision

with the common, tactical decision not to call a particular witness. We , however,
cannot agree that a mere tactical decision is involved here

. T he government‟s characterization of Clark‟s complaint against plea counsel as “periphe ral” and
“immaterial ” , when compared to the “reasonableness” of counsel‟s tactic al decision to go forward

— without first asking for time to consult with her client about the plea breach

— is just plain wrong. 42 That decision is for a counseled
client, not the lawyer, to make, no matter how improvident a plea withdrawal
would be. 43

In his § 23

- 110 motion, Clark alleged at least five times that counsel had been obliged

— and failed

— to explain “what legal options were available,” and
“the risks that each entailed, including assignment of his case to a different judge.

. . .” ( E mphasis added). M oreover, in plea counsel‟s declar ation filed by the
government, there is clear recognition that Clark was seeking relief from counsel‟s

42 See supra note 41.

43 See supra note 41

.21

failure, prior to sentencing, to “explore Mr. Clark‟s options ” and “consult” with him about them (emphasis added). Because withdrawal of the plea, in addition to resentencing before a different judge , was a traditional option, and further because counsel was obliged to counsel

- in

- full, even if advising that one or more options would be ill advised, we are satisfied that Clark‟s motion sufficiently alleged a constitutional deficiency.

The government maintains , to the contrary , that Clark has waived his argument that “counsel was deficient for failing to advise him about whether to withdraw his plea altogether

. ” 44 It is true, as the government points out, that in
Clark‟s § 23

- 110 motion he emphasized , explicitly, only one option: “ assignment
of his case to a different judge for a new sentencing , ” the same option addressed in
Clark I

. Indeed, Clark did so at least seven times

. (He adverted to plea withdrawal

44 Clark appears to concede, at least for purposes of this appeal (to which we confine the point) that counsel‟s decision as to sentencing

— whether by Judge Keary or a substitute judge

— fell within counsel‟s prerogative of making tactical decisions. “Mr. Clark does not dispute that, had [counsel ] consulted with her client about the full panoply of his legal options, including whether or not he desired to withdraw his guilty plea because of the government‟s breach, she would have retained the authority over the tactical decision as to whether to pr oceed before Judge Keary or to seek the appointment of a different judge

. ” This contention is at odds with Clark‟s contention that, as a fully advised client, he would be entitled to make all final decisions with respect to the breached plea agreement, wi thout a “tactical” override by his lawyer. See supra note 42.22

once , not in the text as part of his argument but in a footnote collecting examples of a counsel‟s ethical duty to consult. ) 45

F rom Clark‟s motion limited in emphasis to only one option ( transfer to a different judge ), we can understand why the government argues waiver of the deficiency issue based on plea withdrawal

. But the issue immediately before us is

not , directly, whether the allegations in Clark‟s motion are insufficient , as a matter of law, to raise the deficiency issue as to plea withdrawal

. In resolving that issue,

we must inquire first whether Clark is entitled to a § 23

- 110 hearing on his motion or has forfeited that opportunity by failing to specify the withdrawal option

.

45 In addition to language referring to options in the plural, appellant Clark, in the affidavit in support of his motion ( quoted above in Part III. ) , expressly complained about counsel‟s fail ure to explain reassignment to a different judge “even if I did not wish to withdraw my plea”

— language the government cites to suggest that Clark actually had no interest in a plea withdrawal. Perhaps not, but, without a hearing, who can be sure? His w ords may have indicated no more than his understanding that plea withdrawal was among the options about which he required advice to compare potential consequences ; the words are not necessarily an implicit admission that he no longer had interest in plea w ithdrawal as a potentially available option.23

Clark has a right to a hearing, in the words of § 23

- 110 (c), “[u]nless the
motion and files and records of the case conclusively show that the prisoner is
entitled to no relief.” 46 Because of the multiple references to “options,” as well as to a “different judge,” there appears to be a disconnect within the motion that requi res resolution, with some language embracing all available remedies, and other language appearing to limit the remedy sought. For purposes of resolving this ambiguity, the statute, § 23

- 110 (c) , requires the reviewing judge to consider not only the motion itself but also the “files and records” of the case

. 47 In doing so, the judge would have noted in Clark‟s handwritten, pro se letter to the trial judge , headed “Notice of Appeal , ” a request to “vacate any and all decisions which

direct ly relate[] to this flawed plea agreement”

— language that arguably embraces vacation of the plea itself. Furthermore, although Clark characterized his letter as a “Notice of Appeal,” he presumably was aware that, in the plea agreement (as this

court not ed in Clark I

), 48 he had waived the right of appeal, suggesting that his letter could just as easily have been construed as a § 23

- 110 motion directed at

46 D.C. Code § 23

- 110 (c) (2012 Repl.) (emphasis added)

.

47 Id

.

48 Clark I , 51 A.3d at 1269.24

undoing his agreement with the government. 49 Under these circumstances, we
would not be comfortable con cluding as a matter of law, without a hearing, that
Clark limited his § 23

- 110 motion to the judicial transfer option.

The government , however, would have us reject any need for a hearing on the scope of the deficiency issue in Clark‟s motion. It argues that plea counsel did “not defy prevailing professional norms by failing to raise for discussion a palpably incredible prospect that would have manifestly increased, not decreased,” Clark‟s chances for “a sentence of greater than 10 years‟ imprisonment.” With that

statement , the government improperly diminishes counsel‟s professional obligation

. Clark contends that his motion claims the unquestionable right to advice from his lawyer about all available options, including plea withdrawal, not just those t hat his lawyer deems prudent

. The government , however, appears to believe that plea counsel‟s professional obligation will be satisfied if that advice is limited to options that would only permit the client to make a decision reflecting
sound, not dubious , judgment. Thus , by allowing counsel to narrow the universe

49 The government argues that, because Clark chose to treat his letter to Judge Keary as a notice of appeal, rather than a § 23

- 110 motion, he cannot have it serve double duty as, potentially, a motion justifying a challenge to his counsel. We do not agree that a convicted defendant, acting pro se at the time, cannot rely on this motion as evidence of his intent as to plea withdrawal.25

of options based solely on counsel‟s own judgment , the government would leave to Clark‟s lawyer a slice of the decision that Clark, the client, is ultimately entitled to
make. It may well be th at after full disclosure to the client of all options required
of effective counsel, one option (including, perhaps, a plea withdrawal) might be
so irrational , if exercised, that the claim to relie f would be “palpably incredible ”
and , despite full disclosure, would not “entitle [Clark] to relief” 50

— thereby justifying denial of a § 23

- 110 hearing. 51 But that possibility is not part of the deficiency analysis; it would go to an alleged failure to show the required prejudice.

B. Alleged Prejudice from Counsel’s Deficiency

We turn, therefore, to prejudice. In denying Clark‟s § 23

- 110 motion, Judge Keary concluded , and the government agrees , that the prejudice analysis was
resolved by our decision in Clark I , where we found no plain error

— no error

50 Long v. United States , 910 A.2d 298, 308 (D.C. 2002) (quoting two of three situations which this court has said will justify denial of a § 23

- 110 (c) motion without a hearing.); see supra Part IV.B.

51 Given the mix of specificity and generalization in Clark‟s motion, we cannot uphold its dismissal as “vague or conclusory,” the third situation we have said that will justify denial of a § 23

- 110 (c) motion without a hearing. See id. The government does not suggest otherwise.26

affecting Clark‟s “substantial rights”

— in the trial judge‟s failure sua sponte to transfer the case to a different judge for sentencing. 52 This conclusion, we are told, has preclusive effect here : absent the loss of substantial rights, there can be no
Strickland prejudice

— no “reasonable probability that, but for counsel‟s

un professional errors, the result of the proceeding would have been different.” 53

This preclusion argument , however, is overstated when bas ed on Clark I , b ecause
Clark I concerned the alleged loss of substantial rights only from failure to reassign the case for sentencing

. W e did not consider in Clark I (because the issue was not presented on direct appeal) whether counsel ‟s alleged deficiency in failing to advise about the possibility of a plea withdraw al prejudiced Clark. That issue is
now before us

.

If Clark had received counsel about plea withdrawal, was there a

“ reasonable probability that . . . t he result of the proceeding would have been
different” 54

— “a substantial likelihood of a different result” ? 55 Judge Keary did

52 See Clark I , 51 A.3d at 1272.

53 United States v. Dominguez Benitez , 542 U.S. 74, 82 (2004)

. 54 Strickland , 466 U.S. at 694

.

55 Harrington , 562 U.S. at 112

.27

not address that question because she understood Clark‟s § 23

- 110 motion to seek only one form of relief

— a transfer for resentencing

— and concluded that
Strickland prejudice, as the government argued in response to Clark‟s motion , was “equivalent to” the “third prong of the plain error test. ” 56 As a result, Judge Keary
rule d that Clark‟s claimed prejudice was foreclosed by this court‟s decision in
Clark I finding no loss of “substantial rights” and thus no plain error from the
failure to reassign sentencing.

O n appeal, the government agrees with Judge Keary but insists in its brief
that , even if Clark I does not foreclose a prejudice inquiry here (because only a sentencing transfer, not a plea withdrawal, was involved) , the j udge ‟s “purported

failure to discuss alternatives ” to going ahead with sentenc ing “ had no material
effect on [Clark‟s] rights or the outcome

. ” T he likelihood of Clark‟s withdrawing his plea, even if offered the opportunity to do so, was “palpably incredible , ” 57 says the government in its brief , if only because a trial would have confronted Clark
with a “10

- year mandatory minimum [sentence] on the first count (which his ple a cut by half

)

. ” B y way of comparison, t he sentence he received pursuant to his

56 See supra note 20.

57 Long , 910 A.2d 298 at 308.28

plea, fully in conformity with the plea agreement , was only three more years of
incarceration than his counsel had asked for.

The Supreme Court ‟s decision in Dominguez Benitez 58 affords the government a compelling argument. W hen a ccepting the defendant‟s guilty plea , the district court judge had given most of the warnings required by Federal Criminal Rule 11, but “the judge failed to mention that [the defendant] could no t withdraw his plea if the court did not accept the Government‟s recommendation.” 59
Without objection, the judge sentenced the defendant to a term that exceeded the limit in the plea agreement. In rejecting the defendant‟s request to withdraw his plea, the Supreme Court found no plain error. The Court held that “a defendant who seeks reversal of his conviction after a guilty plea, on the ground that the district court committed plain error under Rule 11, must show a reasonable probability that, but for the error, he would not have entered the plea,” 60 the same standard applicable to ineffectiveness claims in Strickland . To get there the Court

58 See supra note 51.

59 Id . at 78.

60 Id . at 76.29

first quoted Kotteakos , 61 observing that, “[t]o affect „substantial rights,‟ . . . an
error must have a „substantial and injurious effect or influence in determining
the

. . . verdict.‟” 62 The Court then cite d its more recent decision in Bagley , 63

which held that when the burden is on the defendant to show prejudice (instead of on the government to demonstrate harmlessness), the Court “invoke [s] a standard ” somewhat different from, but “with similarities to ,” Kotteakos , namely the
Strickland standard

. 64 In Bagley , the Court applied Strickland‟s prejudice analysis

to Brady 65 claims ; in Dominguez Benitez , the Court extended that analysis to plea
withdrawals

.

Clark‟s case ostensibly differs from Dominguez Benitez in one significant
respect. Clark‟s claim concerns a deficiently counseled defendant; Dominguez
Benitez did not. Indeed, plea counsel‟s alleged deficiency in advising Clark was halfway toward constitutional error, whereas the trial judge‟s Rule 11 error in

61 Kotteakos v. United States , 328 U.S. 750 (1946)

.

62 Dominguez Benitez , 542 U.S. at 81.

63 United States v. Bagley , 473 U.S. 667 (1985).

64 Dominguez Benitez , 542 U.S. at 81.

65 Brady v. Maryland , 373 U.S

. 83 (1963).30

Dominguez Benitez did not implicate the Constitution. 66 Ultimately, however, this
distinction makes no difference. By importing Strickland’s constitutional standard for prejudice into plain error review of attempted plea withdrawals based on trial court error, the Supreme Court did no more tha n equate plain error review with the standard already applicable when requesting plea withdrawals generated by constitutionally ineffective assistance of counsel. In Dominguez Benitez, therefore, prejudice was determined by whether there was a “reasonable probability” that, but for the trial court‟s Rule 11 error, the defendant would not have entered his guilty plea. 67 Similarly, in this case, prejudice will be determined by whether there was a “reasonable probability” that, “but for counsel‟s professional errors,” Clark would have sought to withdraw his plea. Thus comes o u r specific question: is there a reasonable probability that, if counsel had fully informed Clark of all possible options after the breach, would Clark have asked Judge Keary to permit withdrawal of his guilty plea

.

66 In Dominguez Benitez , Justice Souter observed: “[I]n this case . . . [it is] worth repeating[] that the violation claimed was of Rule 11, not of due process.” 542 U.S. at 83.

67 Id. at 82.31

Assuredly no one, including an attorney, can properly speak for a defendant in Clark‟s liberty

- deprived situation without consulting him, and thus no one can
be absolutely sure about how Clark would have addressed the situation with all the
facts at hand. Indeed, Justice Souter acknowledged in Dominguez Benitez that a defendant may make “foolish” choices in going to trial, rather than accepting a plea bargain, even “absent the error” at issue. 68 We cannot tell for sure how Judge Keary would have reacted to a request for a plea withdrawal if she had believed
th at issue was before her , 69 but any effort to resolve what her likely decision would
have been would b e pointless, for that decision c ould not stand in the way of determining the “reasonable probability” of Clark‟s anterior decision whether to
ask for withdrawal

.

68 Id . at 85.

69 See Bennett v. United States , 726 A.2d 156, 165

- 66 (D.C. 1999) (explaining the criteria for pre

- sentencing plea withdrawal under the “fair and just” standard; “[T] he factors a trial court must consider when evaluating a motion to withd raw a guilty plea include: (1) whether the defendant has asser ted his or her legal innocence; (2) the length of the delay between entry of the guilty plea and the desire to withdraw it; and (3) whether the accused has had the full benefit of competent counsel at all relevant times. [N]one of thes e factors is controlling and the trial court must consider them cumulatively in the con text of the individual case. Moreover, the circumstances of the individual case may reveal other factors which will affect the calculation . . . under the fair and just standard.) (internal quotation marks and citations omitted).32

In discussing plea counsel‟s alleged deficiency, we have notic ed the possibility from Clark‟s pro se Notice of Appeal that Clark may have been se ek ing a plea withdrawal

— a matter involving allegedly deficient counsel not raise d on direct appeal in Clark I. And of course we have concluded that, absent a hearing,

we ca nnot say as a matter of law that Clark had not sufficiently alleged that deficiency in his § 23

- 110 motion. At most, however, th e evidence suggests a possibility, not probability, that Clark

— if properly counseled

— would have asked to withdraw his plea. We agree with the government that if Clark , before sentencing, had been counseled about the plusses and minuses of asking to withdraw his plea, he presumably would have faced a formidable argument by his lawyer that withdrawal would be irrational, because a t rial might well have led to a

ten

- year mandatory minimum sentence on the first count (which his plea cut in half), compared to the sentence he would receive pursuant to the plea agreement ( only three more ye ars of incarceration than his counsel had asked for )

. Although plea counsel‟s declaration in response to Clark‟s § 23

- 110 motion did not address plea withdrawal, it is difficult to imagine that counsel , advising rationally, would
have supported withdrawal ; in fact, counsel‟s moving quickly to retain sentencing before Judge Keary is evidence that counsel did not favor deep

- sixing Clark‟s plea.33

All things considered, we conclude that Clark has proffered n o reasonable probability that, but for counsel‟s failure to advise about plea withdrawal , Clark would have sought to withdraw his plea. Admittedly, we are concluding as a matter of law, on the record here without a hearing, that Clark presumably would have followed what his lawyer presumably would have advised : stick with the guilty plea

. On the face of it, reliance on these double presumptions might seem
harsh. But , despite th e fact that a defendant is entitled to make foolish judgments about pleading guilty and going to trial, we are not obliged und er § 23

- 110 to
honor the irrational over the rational. And we can safely say, on this record, that it is irresistibly clear that no reasonable counsel would have advised Clark to withdraw his plea

. 70 Nor does Clark proffer a reasonable argument as to why

— in lieu of sentencing by Judge Keary, as his counsel advised

— he would have
wanted to walk away from his plea into the uncertainties of a trial, without an agreement capping an eventual sentence. 71

70 We exclude the possibility of a deceased key witness for the prosecution, for in that case the likelihood of the judge‟s allowing a plea withdrawal would most likely be nil.

71 In Clark I , Clark argued that he should be entitled to withdraw his plea if

— when sentenced by a different judge

— “his new sentence exceeds ten years.” 51 A.3d at 1268. Although the thrust of that appeal, as we have indicated above in Part II., was Clark‟s effort to achieve sentencing before a different judge, not withdrawal of his plea, this is some evidence that Clark recognized that a plea (continued .

. .)34

Having concluded that Clark has not shown Strickland prejudice from counsel‟s alleged deficiency, we must say that any need for a hearing on the deficiency allegations is now moot.

*****

For the foregoing reasons, the judgment of the trial court is

Affirmed

.

_________________________________ (.

. . continued) withdrawal, without the guarantees built into his plea bargain, would be too hazardous.