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DISTRICT OF COLUMBIA COURT OF APPEALS

No s

. 12

- CM

- 1211 and 12

- CM

- 1336

L URISA L INDSAY and T ERRANCE D EAN D AVIS , A PPELLANT S ,

V

.
U NITED S TATES , A PPELLEE

. Appeal s 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 F ISHER and B LACKBURNE

- R IGSBY , Asso ciate Judge s , and K ING , Senior Judge

.
F ISHER , Associate Judge : Following a bench trial, appellants Lurisa Lindsay

and Terrance Dean Davis were found guilty of simple assault
, and both were2

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 agr ees 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 explain s our decision

.

I. Factual Background

Appellants, along with co defendant Rose Lindsay ( who was acquitted at

trial )
, appeared before the trial court on April 13, 2012
, for a status he aring. At the
court‟s request, t he government placed its plea offers, which included deferred
sentencing agreements
, on the record

. Rose Lindsay‟s counsel promptly rejected

t he 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Both appellants appealed their convictions on sufficiency of the evidence grounds, but we rejected those claims in our unpublished judgment.3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 announ cement:

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 im pose , and each one of you is exposed to

. . . 180 days in jail.

The trial court further explain ed :

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 sentencin g 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

w ith 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 offer s 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 offer s and announced that their clients wi shed to
proceed to trial

. T he court addressed both women directly to make sure they

“ understood [its] admonition concerning conviction on Assault[

. ]”

After appellants were found guilty , t he 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 ...)5

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
reject ing her request for probation

. “ This is a case that compels j ail time and you
should have recognized that.”

II. Discussion

The trial court‟s statements raise at least three fundamental concerns. First,
they could be perceive d as judicial participation in plea negotiations in violation of
Super. Ct. Crim. R. 11 (e). In deed , the judge‟s comments appeared to encourage
acceptance of the plea offer s

. 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 1 1 (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 )

.

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

sentence s were enhanced because they reject ed the plea offer s

. See Thorne v.

United States , 46 A.3d 1085, 1092

- 9 3 (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 gov ernment to prove his guilt beyond a

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

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

factors informi ng appellants‟ sentences demonstrate judi cia l impartiality and

deliberation. Despite this
, the judge‟s comments dur ing sentencing reinforce d the

pre trial impression that appellant s ‟ request s for probation

- only sentences would be
futile. Thus, even if appellants‟ sentences were ultimately appropriate, it is not7

clear from this record whether they are the result of the trial court‟s individuated
judgment or are punishment for reject ing a deferred sentencing agreement. This is

fund amental error.

I t 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 convi ction 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 appel lants‟ 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 j ustice‟ 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.