District of Columbia

Court of Appeals

No. 15-CF-214 

MICHAEL T. MARSHALL,

Appellant, 

v.

CF1-17177-12

 

UNITED STATES, 

Appellee.

On Appeal from the Superior Court of the District of Columbia

Criminal Division

BEFORE: FISHER and BLACKBURNE-RIGSBY, Associate Judges; and NEBEKER, 

Senior Judge.

J U D G M E N T 

 

 This case came to be heard on the transcript of record and the briefs filed, 

and was argued by counsel. On consideration whereof, and as set forth in the opinion 

filed this date, it is now hereby 

 ORDERED and ADJUDGED that the judgment of conviction is affirmed

.

For the Court:

 

Dated: August 25, 2016.

Opinion by Senior Judge Frank Q. Nebeker.

AUG 25 2016
Notice: 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. 15-CF-214

MICHAEL T. MARSHALL, APPELLANT,

V.

UNITED STATES, APPELLEE.

Appeal from the Superior Court

of the District of Columbia

(CF1-17177-12)

(Hon. Rhonda Reid Winston, Trial Judge)

(Argued May 10, 2016 Decided August 25, 2016)

Daniel S. Harawa, Public Defender Service, with whom James Klein and

Jonathan W. Anderson, Public Defender Service, were on the brief, for appellant.

Sharon A. Sprague, Assistant United States Attorney, with whom Channing 

D. Phillips, United States Attorney, and Elizabeth Trosman, Elizabeth H. Danello,

and Richard DiZinno, Assistant United States Attorneys, were on the brief, for 

appellee.

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

Senior Judge.

NEBEKER, Senior Judge: This case presents an appeal from a trial court‘s 

reconsideration of a prematurely granted order allowing appellant to withdraw his 

original valid plea of guilty (before sentence). The withdrawal motion was filed 

8/25/16
2

nearly two months after the plea was entered. The trial court judge granted 

withdrawal without the benefit of an evidentiary hearing to enquire into the basis 

for the motion. The trial court judge granted the government‘s subsequent motion 

to reconsider and hold a hearing. It then vacated the order granting the withdrawal, 

reinstated the guilty plea and imposed sentence. The guilty plea was for a 

negotiated sentence to second-degree murder while armed on an indictment for 

first-degree murder. The appellant now asserts that the grant of withdrawal was 

irrevocable. The court rejects that contention and adopts the Third Circuit‘s 

reasoning in United States v. Jerry, 487 F2d. 600, 604-05 (3d Cir. 1973), with an 

acknowledgment that the general jurisdiction of the Superior Court as compared to 

the limited jurisdiction of the Article III district court makes no difference to the 

inherent power of our trial court. Accordingly, the judgment of conviction is 

affirmed.

1

I.

 

1 Appellant does not argue that the trial court abused discretion in reviewing 

the facts and applying the law when it reconsidered its original order. He does 

contend the court did not apply the correct law. 
3

On entering his plea of guilty to second-degree murder—a lesser included 

offense of the indicted charge of first-degree murder—appellant affirmed that he 

was pleading guilty of his own free will, and not as the result of any coercion. 

The trial court ensured he understood that if he decided to plead not guilty, the 

government would be required to prove his guilt with legally competent evidence, 

which he would be entitled to challenge with the aid of counsel, and set forth his

own evidence and a defense, if he so chose. The trial court also explained that he 

would be entitled to all of his constitutional privileges, as well as the right to seek 

appellate review before this court. Appellant stated that he understood his rights 

and still desired to plead guilty. 

The government proffered that had the case gone to trial, it would have 

presented evidence that on October 17, 2011, appellant shot the victim at least 

thirteen times with a .40 caliber Glock pistol—that was soon recovered at his 

girlfriend‘s grandmother‘s house—and fled the scene. Appellant agreed that all of 

these facts were true, and pleaded guilty to the charge of second-degree murder

while armed. The trial court accepted his plea and set the case for sentencing. 

Ten days before sentencing, appellant filed the motion to withdraw his guilty

plea. In it, he did not contest the sufficiency of the Rule 11 inquiry, but made a 
4

bare-bone assertion of innocence. On June 19, 2014, the government opposed

appellant‘s motion, principally arguing (1) that he failed to set forth any facts that 

would constitute a defense to the charge to which he already pleaded guilty, and 

(2) that his nearly two months of delay in moving to withdraw his plea should 

inure to his detriment in the trial court‘s consideration of the motion. On June 20, 

2014, after hearing argument on the motion, but without conducting a factual 

inquiry, the trial court took the motion under advisement. On June 25, 2014, the 

trial court ruled in appellant‘s favor and informed the parties it believed it would 

be fair to allow appellant to withdraw his plea. 

On July 31, 2014, the government moved for reconsideration of the order 

allowing appellant to withdraw his guilty plea and asked the court, at a minimum, 

to order an evidentiary hearing. On August 15, 2014, the trial court held a status 

hearing on that motion where the government proffered that it discovered a series 

of recorded jailhouse phone calls, many made before the motion to withdraw the

guilty plea, wherein appellant stated he had learned that one of the principal 

witnesses against him was dead.

2

 On that basis, the government reiterated its 

 

2

In a written motion, and at oral argument on that motion, appellant argued 

that he also claimed to be innocent of the charges in other jailhouse phone calls. 

The trial court acknowledged these claims of innocence, but did not credit them in 

its ultimate ruling. See also Austin v. United States, 356 A.2d 648, 649 (D.C. 

(continued...)
5

request for an evidentiary hearing. Appellant‘s objection was that ―the 

Government [already] had a chance to respond.‖ 

On November 24, 2014, the trial court informed counsel:

it appears to the Court that the Court did not focus 

sufficiently on this, whether or not the defendant had 

asserted actual innocence. And so what I‘m inclined to 

do is to schedule an evidentiary hearing for the defendant 

to assert – or so the Court can weigh his claim of legal 

innocence.

The trial court held an evidentiary hearing on January 9 and 23, 2015. On 

February 4, 2015, it delivered its reconsidered ruling denying appellant‘s request to 

withdraw his original plea. It analyzed several factors including the timing of, and 

basis for, the withdrawal, possible prejudice to the government, the competence of 

counsel, and whether withdrawal of the plea was ―fair and just‖ under the 

circumstances.3 The trial court found that: (1) this case was heavily litigated 

 

(...continued)

1976) (trial court permitted to disbelieve claim of factual innocence in motion to 

withdraw guilty plea). 

3

 White v. United States, 863 A.2d 839 (D.C. 2004); Bennett v. United 

States, 726 A.2d 156 (D.C. 1999); Springs v. United States, 614 A.2d 1 (D.C. 

1992); Gooding v. United States, 529 A.2d 301 (D.C. 1987).

(continued...)
6

before appellant elected to plead guilty; (2) that appellant waited several weeks 

before moving to withdraw his guilty plea; (3) that the content of the May 2014 

jailhouse calls revealed he did so only after learning a key witness against him was 

dead; (4) that an earlier April 2014 jailhouse call—made before appellant learned 

of the witness‘s death—showed he originally pleaded guilty to gain a reduced 

sentence from first degree murder; and (5) that he readily admitted culpability 

during the Rule 11 inquiry, which he did not recant in his original motion to 

withdraw the plea or after the trial court granted reconsideration of that order. On 

this basis, the trial court concluded appellant was attempting to manipulate the 

court system and that it would not be fair and just to permit him to withdraw from 

his original plea. The trial court then reinstated his guilty plea and sentenced 

appellant, in accordance with his original plea agreement, to 168 months‘ (fourteen

years) confinement to be followed by five years of supervised release. 

This timely appeal follows.

II. 

 

(...continued)
7

Whether a trial court has the authority to reconsider an order granting a 

criminal defendant‘s motion to withdraw from a guilty plea and then reinstate that 

plea is a matter of first impression before this court. Appellant argues the trial 

court lacked the authority to reconsider its previous order granting withdrawal, and 

that precedent binding on this court compels us to conclude that the order 

permitting the withdrawal of appellant‘s guilty plea was irrevocable. The 

government, on the other hand, argues the order was interlocutory and subject to 

reconsideration so long as the trial court had jurisdiction over appellant‘s case, 

which it had. The government additionally argues that our review is limited to 

plain error since appellant failed to raise this argument in the trial court.

4

 We find 

it unnecessary to conclude that the plain error test applies because, even if the 

question had been presented to the trial court, we are persuaded that the rationale 

of the Jerry decision has the better of the alternative arguments respecting the 

inherent power of a trial court. 

Our analysis begins with the District of Columbia Rules of Criminal 

Procedure, which ―are closely modeled on the structure and substance of the 

 

4

Lowery v. United States, 3 A.3d 1169, 1172-73 (D.C. 2010) (describing 

plain error review) (citing Simmons v. United States, 940 A.2d 1014, 1022 (D.C. 

2008) (non-constitutional error); Moore v. United States, 927 A.2d 1040, 1060-61 

(D.C. 2007) (constitutional error)). 
8

Federal Rules of Criminal Procedure [wherein] Rules 1-60 are identical to the 

Federal Rules[.]‖ Super. Ct. Crim. R., General Note (Repl. 2012). Moreover, D.C. 

Code § 11-946 (Repl. 2012) provides that: 

[t]he Superior Court shall conduct its business according 

to . . . the Federal Rules of Criminal Procedure . . . unless 

it prescribes or adopts rules which modify those Rules.

Rules which modify the Federal Rules shall be submitted 

for the approval of the District of Columbia Court of 

Appeals, and they shall not take effect until approved by 

that court.

Consistent with this mandate, ― ̳[w]e construe rules that are substantially similar to 

the corresponding federal rule in light of the meaning given to the federal rule.‘‖ 

Potomac Dev. Corp. v. District of Columbia, 28 A.3d 531, 543 (D.C. 2011) 

(following Supreme Court interpretation of Fed. R. Civ. Proc. 8 (a) when 

interpreting Super. Ct. Civ. R. 8 (a)) (quoting Behradrezaee v. Dashtara, 910 A.2d 

349, 356 n.8 (D.C. 2006) (citing Taylor v. Washington Hosp. Ctr., 407 A.2d 585 

(D.C. 1979))). 

Appellant argues the trial court‘s decision to reconsider its order granting his 

motion to withdraw was ―extra-legal[,]‖ because Super. Ct. Crim. R. 11 & 32 (e) 
9

do not specifically authorize reconsideration.

5 But in United States v. Jerry, supra, 

the U.S. Court of Appeals for the Third Circuit ruled that the district court was 

authorized to reconsider an initial order granting appellant‘s motion to withdraw 

from his guilty plea based on the inherent authority of the courts to reconsider 

interlocutory rulings in cases sub judice.

6

 Id. at 604-05. The court determined that 

this power was based on common law principles regarding the district court‘s 

ability to modify or vacate interlocutory orders, id. at 604 (citing United States v. 

Benz, 282 U.S. 304 (1931); John Simmons Co. v. Grier Brothers Co., 258 U.S. 82 

(1922)), and derived statutory support from Fed. R. Crim. Proc. 57 (b), which it

determined gave the district courts the power to proceed in the absence of a 

specifically delineated procedure. Id.; compare Fed. R. Crim. Proc. 57 (b),

7 with 

 

5

 The District‘s Rules of Criminal Procedure were recently modified:

Super. Ct. Crim. R. 32 (e) is now part of R. 11. 

6

In United States v. Jerry, the Third Circuit Court of Appeals took up the 

question of the District Court‘s ability to reconsider its order granting withdrawal 

of a guilty plea sua sponte. 487 F.2d 600, 604 n.7 (3d Cir. 1973). 

7

Fed. R. Crim. Proc. 57 (b) provides, in pertinent part: ―If no procedure is 

specifically prescribed by rule, the court may proceed in any lawful manner not 

inconsistent with these rules or with any applicable statute.‖ See also Holmes v. 

United States, 363 F.2d 281, 283 (D.C. Cir. 1966) (―The power of courts to control 

the order of criminal trial and submission of issues to the jury has its roots in the 

common law, and is in no way inconsistent with the Federal Rules of Criminal 

Procedure.‖).
10

Super. Ct. Crim. R. 57 (b).8Thus Jerry held that ―so long as the district court has 

jurisdiction over the case, it possesses inherent power over interlocutory orders, 

and can reconsider them when it is consonant with justice to do so.‖9 Id. at 605 

(citations omitted); see also Chambers v. NASCO, Inc., 501 U.S. 32, 48-50 (1991) 

(discussing the inherent authority of district court to manage affairs to achieve 

orderly disposition of cases) (quoting Link v. Wabash R.R. Co., 370 U.S. 626, 630-

31 (1962)) (cited with approval in Bredhoft v. Alexander, 686 A.2d 586, 589 (D.C. 

1996) (discussing inherent authority of Superior Court to impose sanctions)). 

Though several state appellate courts have declined to adopt Jerry‘s 

rationale on the basis of state law,10 other courts—both state and federal—have 

 

8 D.C. Super. Ct. Crim. R. 57 (b) provides, in pertinent part: ―The court 

may regulate practice in any manner consistent with applicable law and these 

rules.‖

9 Appellant does not contend that the Superior Court lacked jurisdiction 

over the charges following its order allowing him to withdraw from his guilty plea, 

and D.C. Code § 11-923 (2012 Repl.) provides: ―the Superior Court has 

jurisdiction of any criminal case under any law applicable exclusively to the 

District of Columbia.‖

10 See, e.g., State v. York, 252 S.W.3d 245, 248 (Mo. Ct. App. 2008) (no 

basis in Missouri law for trial court to reconsider order granting defendant‘s 

motion to withdraw from guilty plea); State v. Vasquez, 918 So. 2d 1016, 1017 

(Fla. Ct. App. 2006) (same under Florida law); Turner v. Commonwealth, 10 

S.W.3d 136, 139 (Ky. Ct. App. 1999) (same under Kentucky law); State v. 

Beechum, 934 P.2d 151, 153 (Kan. Ct. App. 1997) (same under Kansas law); 

(continued...)
11

embraced it to address the very issue with which we are now faced. See, e.g.,

United States v. Chant, 201 F.3d 445 (9th Cir. 1999) (unpublished) (citing Jerry in 

holding that court has authority to vacate earlier order allowing withdrawal of 

plea); United States v. Farrah, 715 F.2d 1097, 1099 (6th Cir. 1983) (per curiam), 

cert. denied, 466 U.S. 971 (1984) (adopting Jerry to affirm district court‘s

reconsideration of order granting motion to withdraw guilty plea, and then reinstate

original guilty plea, while also analogizing to district court‘s ability to rescind 

orders dismissing full indictments and individual charges) (citing United States v. 

Green, 414 F.2d 1174 (D.C. Cir. 1969)); State v. Riggins, 2016 WL 3610599 

(2016) (citing Jerry to conclude that court‘s reconsideration of order to withdraw 

guilty plea not violation of constitutional rights); People v. Wilkens, 362 N.W.2d 

862, 865 (Mich. Ct. App. 1984).

In considering the Jerry approach, we must note that the inherent powers of 

the Superior Court are different than those of a federal district court. Francis v. 

United States, 715 A.2d 894, 901 (D.C. 1998) (unlike the federal district courts 

 

(...continued)

People v. McGee, 232 Cal. Rptr. 528, 530-31 (Cal. App. 1991) (same under 

California law); People v. Franco, 557 N.Y.S.2d 7, 8 (N.Y. App. Div. 1990) (no 

basis in New York law to set aside plea without defendant‘s consent absent fraud) 

(citations omitted); but see People v. Wilkens, 362 N.W.2d 862, 865-66 (Mich. Ct. 

App. 1984) (finding basis in Michigan law to reconsider order allowing defendant 

to withdraw from guilty plea). 
12

Superior Court is one of general jurisdiction invested with ―full panoply of 

inherent powers possessed by common law courts‖) (citations omitted). We have 

held, however, that trial judges in Superior Court are free to rely on their inherent 

powers where superseding procedural rules and constitutional restraints are absent. 

Siddiq v. Ostheimer, 718 A.2d 145, 148 (D.C. 1998) (inherent power remains 

where rules are silent and there exists no constitutional bar) (citing Francis, supra, 

715 A.2d at 901 & n.20). Likewise, we have noted that while there are no 

procedural rules (civil or criminal) that allow for reconsideration of interlocutory 

orders, nothing prevents a trial court from doing so while it exercises plenary 

jurisdiction over a case. See Williams v. Vel Rey Props., 699 A.2d 416, 419 (D.C. 

1997) (citations omitted); see also Jenkins v. Parker, 428 A.2d 367, 368 (D.C. 

1981) (per curiam) (citing Moyer v. Moyer, 134 A.2d 649, 650 (D.C. 1957) 

(interlocutory orders do not terminate litigation between parties)) (additional 

citations omitted). Thus, consistent with the Third Circuit‘s treatment of Fed. R. 

Crim. Proc. 57 (b), which is ―substantially identical‖11 to Super. Ct. Crim. R. 57 

(b), Potomac Dev. Corp., supra, 28 A.3d at 543; D.C. Code § 11-946, we discern

no procedural restraint to the trial court‘s reconsideration of its earlier improvident 

 

11 Super. Ct. Crim. R. 57 (b) (comment). 
13

order, so long as it was, in fact, interlocutory, and reconsideration was ―consonant 

with justice[.]‖ Jerry, supra, 487 F.2d at 604 & 605.

12

Next, we disagree with appellant‘s argument that Kercheval v. United States, 

274 U.S. 220 (1927), and Heim v. United States, 47 App. D.C. 485 (1918), 

constitutionally barred the trial court from reconsidering it‘s initial order allowing 

appellant to withdraw from his guilty plea. Those cases stand for the proposition 

that, once withdrawn, neither the fact of an earlier guilty plea, nor statements made 

during the Rule 11 colloquy, can be used as evidence against a criminal defendant 

in a subsequent trial on the merits. Kercheval, supra, 274 U.S. at 223-25 (citing 

Heim, supra, 47 App. D.C. at 492-93). But the question before us is different, and

asks whether, in this specific context, the trial court could correct its ruling. 

Indeed, appellant‘s suggested application of Kercheval and Heim would, in effect,

require us to regard an order such as this with the same inviolability as a judgment

of acquittal. But where an even ―egregiously erroneous‖ judgment of acquittal 

divests a trial court of further jurisdiction over the concerned charges, Fong Foo v. 

 

12 We also note that the trial court was not required to reconsider its 

previous ruling. Rather it was not prohibited from doing so by virtue of the 

applicable rules of procedure. See United States v. Jones, 423 A.2d 193, 196 n.4 

(D.C. 1980) (―Absent a rule permitting a reconsideration motion, a trial court is not 

obliged to entertain or act on such a motion.‖).
14

United States, 369 U.S. 141, 143 (1962) (per curiam), see also Smith v. 

Massachusetts, 543 U.S. 462 (2005),13 a premature order permitting a defendant to 

withdraw from a guilty plea does not. Jerry, supra, 487 F.2d at 604-05. Thus, we 

consider such an order to be interlocutory in nature, and subject to reconsideration.

As such, the only remaining question is whether it was consonant with 

justice for the trial court to reconsider its ruling in appellant‘s case. We conclude 

that it was for the following reasons. First, the record shows the case had not 

proceeded to trial.14 Second, the trial court recognized it‘s failure to conduct a 

factual inquiry and fully to analyze factors15 intended to guide it in its exercise of 

discretion before granting a criminal defendant‘s motion to withdraw a guilty plea. 

See Bennett v. United States, 726 A.2d 156 (D.C. 1999) (discussing inquiry trial 

court must make before granting motion to withdraw guilty plea). Finally, 

 

13 Appellant does not argue his rights under the Double Jeopardy Clause 

were violated by the trial court‘s decision to reconsider its earlier order and 

reinstate his guilty plea, nor do we discern any such error. See United States v. 

Jerry, 487 F.2d 600, 606 (3d Cir. 1973) (no Double Jeopardy violation where there 

is no final judgment or risk of successive prosecutions for same charges). 

14

 Serfass v. United States, 420 U.S. 377, 388 (1975) (jeopardy attaches 

when jury is empaneled and sworn or when trial judge hears evidence) (citations 

omitted).

15

 White, supra, 863 A.2d at 839; Bennett, supra, 726 A.2d at 156; Springs, 

supra, 614 A.2d at 1; Gooding, supra, 529 A.2d at 301.
15

reconsideration was ―consonant with justice‖ in light of the government‘s proffer 

that recorded jailhouse phone calls placed the appellant‘s motive for seeking to 

withdraw his plea into question. Therefore, we hold that, under these 

circumstances, it was within the power of the trial court to reconsider its initial 

ruling on appellant‘s motion. 

Thus, for the foregoing reasons, we affirm the judgment of conviction. 

So ordered.