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DISTRICT OF COLUMBIA COURT OF APPEALS

No. 18-CO-73

JAMES EARL BLACKMON, APPELLANT, 

V. 

UNITED STATES, APPELLEE. 

Appeal from the Superior Court

of the District of Columbia

(CF1-21355-08) 

(Hon.Jennifer M. Anderson, Motion Judge)

 (Argued May 7, 2019 Decided September 12, 2019) 

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.*

* Sitting by designation pursuant to D.C. Code § 11-707 (a) (2012 Repl.).
2

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. 

I.

After a trial in March 2009, appellant was convicted of three counts of firstdegree 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 
3

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, 

 

1

 After his first trial, appellant was sentenced to concurrent 25-year 

sentences for each of the first-degree sexual abuse charges, sentences that were 

also concurrent with a five-year sentence for attempted first-degree sexual abuse. 

He was also sentenced to concurrent terms of seven years’ incarceration for 

burglary and kidnapping, which sentences were consecutive to the sentences for 

other charges. He received a two-year sentence for ASBI, which was consecutive 

to the sentences for all other charges. 

When the jury in the second trial acquitted appellant of burglary, the trial 

court followed the same sentencing scheme, but the result was still a 34-year 

sentence. 
4

[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 

 

2 The government’s D.C. App. R. 28(k) letter states that “when . . . trial 

counsel’s mistake was disclosed, appellant had heard (1) the government’s opening 

statement . . . and (2) the testimony of . . . the lead investigator in th[e] case[,]” 

who was a “detective assigned to the sexual assault unit of the Metropolitan Police 

Department[.]” 
5

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 
6

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 about 

 

3

 In its initial remarks, the court credited Mr. Downs’s testimony that when 

he advised appellant about the 25-year plea offer, appellant, who “had already 

done a bit of time,” “was not willing to do much more” and “was not inclined to 

accept 25 years[,]” in part because it was hard “to keep the young guys off of him” 

in prison and because he “was very adamant that the DNA in this case that was 

recovered from the complainant was planted” and that he was innocent. 

At the same time, the court observed that appellant’s credibility “t[ook] a 

hit” from his hearing testimony that was “just simply verifiably untrue.” The court 

highlighted appellant’s testimony that it was only after Mr. Downs acknowledged 

his erroneous advice that appellant heard for “the first time that . . . there was a 

potential of a plea offer of 25 years” and that he previously “didn’t know anything 

about the 25 years . . . .” The court noted that appellant’s testimony in that regard 

was impeached with the transcripts of July 26 and September 4, 2013, status 

hearings, during which the fact of the 25-year plea offer was put on the record. 

The court found it “very clear on the record that,” despite appellant’s hearing 

testimony, “the plea had been discussed . . . [and appellant] had rejected it.” 
7

the remote possibility of a sentence in excess of 34 years, this would have caused 

him to accept the 25-year plea offer.” 

The court then explained that what was “more important[]” in resolving 

appellant’s motion was appellant’s demeanor at the hearing and statements he 

made insisting on his innocence.4

 The court observed that during the hearing, 

appellant had “hemmed and hawed, sighed, [and] took a long time answering some 

of the questions.” The court went on to describe appellant’s insistence at the 

hearing that he “didn’t do this crime”; his lament about “[w]hat happened to the 

truth”; his protest that “you want me to admit something I didn’t do”; his testimony 

that he was “not going to say [he] raped anyone”; his statements that he never 

knew in seeking a hearing on his counsel’s ineffectiveness that he “had to tell [the 

court] [he] did something knowing that [he] didn’t do it” or that “to plead guilty 

[he] had to accept guilt” and “admit guilt in order to get the 25 [years]”; and his 

“continually sa[ying] that he did not do this crime.” The court noted that appellant 

“could not answer the questions” after the prosecutor “read out what would have 

been the proffer”; instead, he was “sigh[ing]” and “breath[ing] deeply” with his 

“eyes . . . closed.” 

 

4 The court stated that the hearing was “really very stark . . . in affecting the 

[c]ourt’s conclusion that [appellant] would not have accepted a plea.” 
8

The court acknowledged that after a break in the hearing, appellant returned 

and said he “would have pled guilty, even though he wasn’t guilty, to get the 25 

[years,]” but found that testimony “incredible . . . based upon [appellant’s] . . . 

demeanor . . . in court.” Citing its general practice in serious cases of asking the 

defendant “to put into his own words what happened” if the court sees any kind of 

hesitation, the court noted that when it asked this of appellant, he was “stymied” 

and said that he would only “be repeating what [he] heard.” All of this, the court 

reasoned, “prove[d] fatal for the prejudice prong of [appellant’s] Lafler claim.” 

The court concluded that “there is no way [appellant] could have gotten through a 

plea colloquy” and therefore that appellant “was not prejudiced by Mr. Downs’ 

deficient advice.” The court also observed that the “record is clear that [appellant] 

was not extended an Alford5 plea, which would be the only way that he would be 

allowed to plead guilty without admitting guilt . . . .” 

 

This appeal followed. Appellant contends that the trial court “erroneously 

interpreted the Lafler factors.” He argues that Lafler “only requires that the trial 

 

5 North Carolina v. Alford, 400 U.S. 25, 37 (1970) (“An individual accused 

of crime may voluntarily, knowingly, and understandingly consent to the 

imposition of a prison sentence even if he is unwilling or unable to admit his 

participation in the acts constituting the crime.”).
9

court be willing to accept the ‘terms’ of the plea agreement [meaning “the 

reduction in sentence and/or charges that the plea agreement provides”] and “does 

not address” the matter that the trial court deemed important: “whether the trial 

court would accept [appellant’s] proffered plea of guilty.” Appellant argues that 

the court used an “incorrect legal standard” and thus abused its discretion in 

treating “acceptance of guilt as a precondition of a finding of prejudice.” 

II.

“When claiming ineffective assistance of counsel, a defendant must 

establish that his counsel’s performance was deficient and that the deficiency 

resulted in prejudice.” Andrews v. United States, 179 A.3d 279, 293 (D.C. 2018) 

(citing Strickland v. Washington, 466 U.S. 668, 687 (1984)). To show Strickland

prejudice, a defendant must show that there is a “reasonable probability that, but 

for counsel’s unprofessional errors, the result of the proceeding would have been 

different.” Strickland, 466 U.S. at 694. More specifically, and as pertinent here, to 

show prejudice, a defendant who contends that his counsel’s deficient advice 

caused him to reject a plea offer must “show [that] the outcome of the plea process 

would have been different with competent advice.” Lafler, 566 U.S. at 163.
10

This court reviews a trial court’s denial of a § 23-110 motion for abuse of 

discretion. Gardner v. United States, 140 A.3d 1172, 1195 (D.C. 2016). We 

assess the trial court’s findings of fact for clear error and its determinations on 

questions of law de novo. Id. 

III.

As in Lafler, “[t]he instant case comes to the [c]ourt with the concession that 

counsel’s advice with respect to the plea offer fell below the standard of adequate 

assistance of counsel guaranteed by the Sixth Amendment[.]” Lafler, 566 U.S. at 

160. Thus, “it is unnecessary for this [c]ourt to explore” whether the 

representation by appellant’s trial counsel “fell below an objective standard of 

reasonableness.” Id. at 163 (internal quotation marks omitted).6

 

6

 That said, we think it appropriate to observe that there was some basis for 

trial counsel’s advice that appellant would not likely receive a sentence in excess 

of 34 years upon retrial. The Supreme Court held in North Carolina v. Pearce, 

395 U.S. 711 (1969), that “[d]ue process of law . . . requires that vindictiveness 

against a defendant for having successfully attacked his first conviction must play 

no part in the sentence he receives after a new trial.” Id. at 725. “In order to 

assure the absence of [a vindictive] motivation, whenever a judge imposes a more 

severe sentence upon a defendant after a new trial, the reasons for his doing so 

must affirmatively appear” and “must be based upon objective information 

concerning identifiable conduct on the part of the defendant occurring after the 

time of the original sentencing proceeding.” Id. at 726; see also Hammond v. 

District of Columbia Bd. of Parole, 756 A.2d 896, 898 (D.C. 2000). 

(continued...)
11

We therefore turn straight to appellant’s contention that the trial court 

“erroneously interpreted the Lafler factors.” Appellant’s reference to the Lafler 

factors is a reference to the Supreme Court’s statement that in the circumstance 

where counsel’s ineffective advice “led not to an offer’s acceptance but to its 

rejection[,]” Lafler, 566 U.S. at 163, to show Strickland prejudice, “a defendant 

must show that but for the ineffective advice of counsel there is a reasonable 

probability that the plea offer would have been presented to the court (i.e., that the 

defendant would have accepted the plea and the prosecution would not have 

withdrawn it in light of intervening circumstances), that the court would have 

accepted its terms, and that the conviction or sentence, or both, under the offer’s 

terms would have been less severe than under the judgment and sentence that in 

fact were imposed.” Id. at 164. 

 

(...continued)

The record in this case appears to be without objective information that 

would have justified imposition of a sentence more severe than 34 years upon 

appellant’s conviction in his second trial. For that reason, it appears that counsel’s 

advice to appellant about his exposure to at most a 34-year sentence, while 

technically incorrect, was correct as a practical matter. As the trial court 

commented, no evidence was presented to suggest that “a sentence in excess of . . . 

34 years following the second trial would have been anything other than extremely 

unlikely, given the exacting legal standard for the imposition of a sentence.”
12

The trial court implicitly agreed with appellant’s interpretation of what the 

Supreme Court meant by its reference in Lafler to whether the court “would have 

accepted [the] terms” of a plea offer. Id. As noted above, the court began its 

analysis by assuming that it would have accepted the terms of the plea (i.e., the 

specification that it was a Rule 11(e)(1)(C) plea) since the court “typically 

defer[red]” to plea deals negotiated by seasoned counsel. 

After that, the court’s focus was on whether appellant would actually have 

taken the plea — in the words of Lafler, whether “there is a reasonable probability 

. . . that the defendant would have accepted the plea.” Lafler, 566 U.S. at 164. As 

we read the court’s findings, the court understood that question to require 

consideration of whether appellant would have done those things necessary to 

successfully enter a negotiated plea: not merely by saying “yes” to the plea offer, 

but also, through the plea colloquy required by Super. Ct. Crim. R. 11, by doing 

what the court deemed necessary to enable it to meet its obligation to “determine 

that there is a factual basis for the plea.” Super. Ct. Crim. R. 11(b)(3) (2017). As 

our case law demonstrates, this may include, as circumstances warrant, the 

defendant’s confirming, at the court’s request, the accuracy of the government’s 

allocution and/or the defendant’s “tell[ing] what happened in his own words.” 

Taylor v. United States, 366 A.2d 444, 446 (D.C. 1976); see also, e.g., Long v. 
13

United States, 169 A.3d 369, 377 (D.C. 2017) (“[T]he Statement of Offense that 

appellant signed and agreed to, and that the government recited to the trial court for 

its proffer at the Rule 11 hearing, met all three elements of conspiracy to satisfy the 

factual basis for the guilty plea.”); Kyle v. United States, 759 A.2d 192, 199 (D.C. 

2000) (finding “no defect in establishing the factual basis for [the defendant’s] 

plea” where “the government laid out the substance of the charges against him, 

including testimony of the complaining witness” and the defendant “specifically 

agreed with the complaining witness’ version of the facts”); Austin v. United 

States, 356 A.2d 648, 649 (D.C. 1976) (concluding that there was a factual basis 

for the defendant’s guilty plea where he “specifically acknowledged that he was 

outside at the scene knowing that others were going to commit the crime” and 

“admitted that he was ‘assisting and advising’ the other perpetrators”).

To be sure, Lafler does not say specifically that a trial court, in considering a 

claim that the defendant rejected a plea offer because of ineffective assistance of 

counsel, may take into account whether there was a factual basis for the forgone 

plea and whether the court would have accepted the plea. But Lafler was “merely 

an application of the Sixth Amendment right to counsel, as defined in Strickland, 

to a specific factual context.” In re Perez, 682 F.3d 930, 932 (11th Cir. 2012). Its 

holding was not a “new rule[] of constitutional law.” Id. at 934. Decided on the 
14

same day as Missouri v. Frye, 566 U.S. 134 (2012), Lafler cannot reasonably be 

read to establish an exhaustive list of factors that are relevant to a showing of 

prejudice in connection with ineffective-advice-by-plea-counsel claims. 

In Frye, the Supreme Court instructed that to show prejudice from counsel’s 

deficient assistance in connection with a plea offer, a criminal defendant must (1) 

“demonstrate a reasonable probability they would have accepted the earlier plea 

offer had they been afforded effective assistance of counsel . . .”; (2) “demonstrate 

a reasonable probability the plea would have been entered without the prosecution 

canceling it” or (3) “the trial court refusing to accept it” if the court “had the 

authority to exercise that discretion under state law”; and (4) “show a reasonable 

probability that the end result of the criminal process would have been more 

favorable by reason of a plea to a lesser charge or a sentence of less prison time.” 

Id. at 147; see also id. at 151 (“[I]f the trial court could have refused to accept the 

plea agreement, and if Frye fails to show a reasonable probability the trial court 

would have accepted the plea, there is no Strickland prejudice.”). This court has 

recognized that Frye describes what a defendant must do “[i]n order to complete a 

showing of Strickland prejudice”: demonstrate that “there is a reasonable 

probability [that] neither the prosecution nor the trial court would have prevented 

the offer from being accepted or implemented[.]” Benitez v. United States, 60 
15

A.3d 1230, 1237 n.21 (D.C. 2013) (internal quotation marks omitted; emphasis

added).7

 

Frye and Benitez dictate that we reject appellant’s argument that the trial 

court applied an “incorrect legal standard” when it relied on its finding that “there 

7

 See also United States v. Tarnai, No. 17-1330, 2019 U.S. App. LEXIS 

23964, *7-10 (3d Cir. Aug. 12, 2019), in which the court reasoned:

Tarnai has not shown he was prejudiced by defense 

counsel’s conduct. . . . That Tarnai says he would 

have accepted the . . . offer cannot alone establish 

prejudice under Lafler and Frye. He must also show the 

government and the court would have accepted this 

agreement. We conclude Tarnai falls short on both fronts

. . . [because he] has not established the government 

would have allowed him to take the plea while insisting 

on his innocence. . . . Given Tarnai’s position on his 

innocence, there is no reasonable probability the 

government would have moved forward with the 

agreement. . . . Even assuming the government was 

willing to advance the agreement, Tarnai has failed to 

establish a reasonable probability the court would have 

accepted the agreement, [since] . . . Tarnai’s position 

would have required the trial court to accept a guilty plea 

of a defendant who claimed to be innocent. In certain 

circumstances, a trial court may accept a guilty plea of a 

defendant despite his unwillingness ‘to admit his 

participation in the acts constituting the crime.’ . . . But a 

trial court need not accept such a plea. . . . For these 

reasons, we believe there is no reasonable probability the 

trial court would have accepted Tarnai’s plea under the 

circumstances.
16

is no way [appellant] could have gotten through a plea colloquy” to conclude that 

appellant was not prejudiced by Mr. Downs’s incorrect advice. That finding was 

in essence a finding that the court would have rejected appellant’s plea and thus 

“would have prevented [a guilty plea by appellant pursuant to the plea offer] from 

being accepted or implemented[.]” Benitez, 60 A.3d at 1237 n.21. Because we 

cannot say that the court’s finding was clearly erroneous, we have no basis for 

disturbing the court’s determination that appellant failed to show that he was 

prejudiced by his counsel’s erroneous advice with respect to the plea offer.

A final point: Appellant’s burden was to show that there is a “reasonable 

probability that, but for counsel’s unprofessional errors, the result of the 

proceeding would have been different.” Strickland, 466 U.S. at 694. “A 

reasonable probability is a probability sufficient to undermine confidence in the 

outcome.” Id. Here, appellant rejected the government’s 25-year plea offer upon a 

belief that by proceeding to trial, he risked receiving a sentence of no more than 34 

years. When the trial court agreed to that as the maximum sentence it would 

impose, appellant received the benefit of his counsel’s erroneous advice; in 

essence, the advice was rendered correct, and the prejudice from it was dispelled. 

Given that result, and giving deference to the trial court’s credibility-based factual 

finding that, per Mr. Downs’s credited testimony, appellant was adamant that he 
17

was innocent and “was not inclined to accept 25 years” when the government’s 

plea offer was still on the table, we are confident that appellant has failed to 

demonstrate any Strickland prejudice from his trial counsel’s erroneous advice. 

IV. Conclusion

Wherefore, the judgment of the trial court is 

Affirmed.