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DISTRICT OF COLUMBIA COURT OF APPEALS

Nos. 12-CM-1211 and 12-CM-1336

LURISA LINDSAY and TERRANCE DEAN DAVIS, APPELLANTS,

V. 

UNITED STATES, APPELLEE.

Appeals from the Superior Court

of the District of Columbia

(DVM-656-12 and DVM-655-12)

(Hon. Brian Holeman, Trial Judge)

(Argued January 9, 2014 Decided January 10, 2014)

(Opinion Issued January 30, 2014)

Joel R. Davidson for appellant Lurisa Lindsay.

David Carey Woll for appellant Terrance Dean Davis.

Kristina L. Ament, Assistant United States Attorney, with whom Ronald C. 

Machen Jr., United States Attorney, and Elizabeth Trosman and John P. 

Mannarino, Assistant United States Attorneys, were on the brief, for appellee.

Before FISHER and BLACKBURNE-RIGSBY, Associate Judges, and KING, 

Senior Judge.

FISHER, Associate Judge: Following a bench trial, appellants Lurisa Lindsay 

and Terrance Dean Davis were found guilty of simple assault, and both were 
2

sentenced to periods of incarceration. They seek resentencing by a different judge, 

complaining that the trial court warned them, prior to trial, that if they rejected the 

deferred sentencing agreements offered by the government and were convicted of 

assault, they would assuredly be sent to jail.1 The government agrees that “these 

cases should be remanded to a different judge for resentencing.”

By a judgment entered on January 10, 2014, we vacated appellants‟ 

sentences and remanded their cases for resentencing, without delay, by a different 

judge. This opinion explains our decision.

I. Factual Background

Appellants, along with codefendant Rose Lindsay (who was acquitted at 

trial), appeared before the trial court on April 13, 2012, for a status hearing. At the 

court‟s request, the government placed its plea offers, which included deferred 

sentencing agreements, on the record. Rose Lindsay‟s counsel promptly rejected 

the offer extended to her, which was “wired” to the offer made to appellant Lurisa 

Lindsay. 

 

1

 Davis was also convicted of one count of destruction of property. Both 

appellants appealed their convictions on sufficiency of the evidence grounds, but 

we rejected those claims in our unpublished judgment.
3

In response, the judge made an announcement:

I want to make sure that everybody‟s clear on this, and 

this would apply to all three defendants. All three of you 

are charged with a count of Simple Assault, as to the 

complaining witness here, and if there is a rejection of 

the plea offer and, therefore, no deferred sentencing 

agreement, and your clients go to trial on the Simple 

Assault and you‟re convicted on that count, there really 

isn‟t a question of whether there will be jail time because 

there will be. The question is how much jail time I will 

impose, and each one of you is exposed to . . . 180 days 

in jail.

The trial court further explained:

I want everybody here who‟s in a position of rejecting a 

deferred sentencing agreement and going forward with a 

trial; people like to sometimes be rather bold in asserting 

that we don‟t want a deferred sentencing agreement. We 

want to go to trial. There‟s a risk involved in that. So 

you should know that as part of your contemplation of 

what‟s been offered here. And if you reject this deferred 

sentencing agreement, go to trial, lose at trial, there‟s 

going to be jail time on these Assault charges. It‟s just a 

question of what the amount is. Okay? So everybody 

knows that.
4

This admonition caused Rose Lindsay‟s attorney to request a moment to confer 

with his client, “based on the new information that‟s been presented this morning.” 

After a break, Rose Lindsay‟s counsel withdrew her rejection of the plea offer and 

she and appellant Lindsay requested, and were granted, two weeks to consider the 

wired plea offers and “make sure our clients understand the Court‟s policy . . . .” 

Appellant Davis rejected the government‟s plea offer without requesting 

additional time. Before setting a trial date, the court addressed Davis personally 

and determined that he “understood this Court when the Court discussed the issue 

of conviction on an Assault charge[.]” 

Two weeks later, the lawyers for appellant Lurisa Lindsay and Rose Lindsay

rejected the government‟s plea offers and announced that their clients wished to 

proceed to trial. The court addressed both women directly to make sure they 

“understood [its] admonition concerning conviction on Assault[.]” 

After appellants were found guilty, the judge sentenced each of them to a 

period of incarceration.2 During Davis‟s sentencing, the trial court explained:

 

2

 Appellants received 180 days in jail for their assault convictions, with the 

court suspending the execution of all but 45 days of Davis‟s sentence and all but 

(continued...)
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When I am the judge in a case and you beat up on the 

mother of your child, okay, you are going to do jail time. 

You should know that. [Your attorney] has been in my 

courtroom enough times to know that and I‟m sure he 

counseled you on that and the reason for that is that 

anytime there is an offense to the person, that is more 

offensive than an offense to property.

During Lindsay‟s sentencing, the trial judge gave several reasons why he was 

rejecting her request for probation. “This is a case that compels jail time and you 

should have recognized that.” 

II. Discussion

The trial court‟s statements raise at least three fundamental concerns. First, 

they could be perceived as judicial participation in plea negotiations in violation of 

Super. Ct. Crim. R. 11 (e). Indeed, the judge‟s comments appeared to encourage 

acceptance of the plea offers. Although appellants rejected the government‟s offer, 

“[a] defendant in [their] position could well have taken the judge‟s comments as 

coercive and have been concerned about the judge‟s impartiality in the event he 

 

(...continued)

30 days of Lindsay‟s sentence. Both were permitted to serve the time on 

consecutive weekends.
6

chose to go to trial.” Leander v. United States, 65 A.3d 672, 676 (D.C. 2013)

(holding that judge‟s violation of Rule 11 (e) was harmless because plea was 

rejected and there was no evidence that a harsher sentence was imposed because 

defendant exercised his right to go to trial). 

The judge‟s comments also created “an unacceptable risk” that appellants‟

sentences were enhanced because they rejected the plea offers. See Thorne v. 

United States, 46 A.3d 1085, 1092-93 (D.C. 2012). “A trial judge may not punish 

a defendant for exercising his Sixth Amendment right to trial.” Dalton v. United 

States, 58 A.3d 1005, 1015 (D.C. 2013) (citing Thorne, 46 A.3d at 1090). We 

review, de novo, whether “the defendant‟s sentence reflect[s] an individuated 

judgment as to the balance of deterrence and rehabilitation applicable in [his] case 

rather than a categorical approach of using a maximum [or an increased] sentence 

for a defendant who required the government to prove his guilt beyond a 

reasonable doubt.” Thorne, 46 A.3d at 1089 (citations and internal quotation 

marks omitted). In this case, the third defendant‟s acquittal and the enumeration of 

factors informing appellants‟ sentences demonstrate judicial impartiality and 

deliberation. Despite this, the judge‟s comments during sentencing reinforced the 

pretrial impression that appellants‟ requests for probation-only sentences would be

futile. Thus, even if appellants‟ sentences were ultimately appropriate, it is not 
7

clear from this record whether they are the result of the trial court‟s individuated 

judgment or are punishment for rejecting a deferred sentencing agreement. This is 

fundamental error.

It also appears that the trial court automatically incarcerated appellants 

according to a uniform policy. To the extent that a trial judge has discretion in 

sentencing, “[a]dherence to . . . a uniform policy instead of exercising choice is . . . 

an abuse of [that] discretion.” Houston v. United States, 592 A.2d 1066, 1068 

(D.C. 1991) (citations omitted). Throughout appellants‟ cases, the judge assured 

other waiting defendants, the appellants as a group, and then each appellant 

individually, that an assault conviction would result in jail time. In fact, during 

Davis‟s sentencing, the trial court remarked that its simple assault sentencing 

policy is so consistent that counsel should be aware of it from experience. 

In light of these issues, we have vacated appellants‟ sentences and remanded 

their cases for resentencing. “[I]n deciding whether further proceedings should be 

conducted before a different judge, our primary concern must be to „preserve the 

appearance of justice‟ as well as its reality.” Thorne, 46 A.3d at 1093. To this 

end, we have directed that appellants be resentenced by a different judge.