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DISTRICT OF COLUMBIA COURT OF APPEALS

No s . 14

- CO

- 876 & 14

- CO

- 992
J OS É I. Z ALMER Ó N , A PPELLANT ,

V
. U NITED S TATES , A PPELLEE
. Appeals from the Superior Court of the District of Columbia ( FEL

- 7542

- 93 ) (Hon. Lee Satterfield , Trial Judge) ( Argued May 27 , 201 5 Decided October 29, 2015) Jeffrey Stein , with whom Jaclyn Frankfurt and James Klein were on the brief , for appellant. John Cummings , Assistant United States Attorney , with whom Ronald C. Machen Jr. , United States Attorney at the time the briefs were filed , and Elizabeth Trosman , Assistant United States Attorney , were on the brief, for appellee.
Before T HOMPSON and B ECKWITH , Associate Judges , and B ELSON , Senior Judge

. B ECKWITH , Associate Judge : Appell ant José Zalmerón pleaded guilty to attempted possession with intent to distribute (PWID) a controlled substance in January of 1994. In March of 2014, Mr. Zalmerón moved to vacate his conviction and withdraw his guilty plea pursuant to D.C. Code § 16

- 713 (b) (2012 Repl.)2

because, as he stated in an affidavit, the trial judge never advised him that he could face adverse immigration consequences a s a result of his guilty plea. Before the government‟s time to respond had expired, t he trial judge denied the moti on based on his recollection that the warnings were given. For the reasons explained below, we remand for further proceedings as described in this opinion.

I.

A fter accepting Mr. Zalmerón ‟s guilty plea in January 1994, the trial court sentenced him t o one to three years of inc arceration, suspended all of that sentence, and placed him on probation for eighteen months. In June of 1994, M r. Zalmerón‟s pro bation was revoked and he was sent to prison and subsequently deported b ecause of this conviction. Mr. Zalmerón later returned to the United States

— the record does not say when

— but he was again detained by the federal government and subjected to removal proceedings. At the time of oral argument, h e was being held at an immigration detention facility in Virginia , and the U.S. Court of Appeals for the Fourth Circuit stayed his deportation while his appeal was under advisement in that court.
At some point

— again, the record does not specify when

— Mr. Zalmerón learned that D.C. law required the trial judge in his attempted PWID case to warn3

him of potential adverse immigration consequences be fore he entered a guilty plea. That statute, D.C. Code § 16

- 713 (a) (2012 Repl.) , requires trial judges to advise

non - citizen defendants of the immigration consequences of their conviction s and provides that a defendant may have his conviction vacated and may withdraw his plea if the court fail ed to provide such a warning and the defendant was subsequently deported or suffered other immigration consequences. D.C. Code § 16

- 713 (b).
In February of 2014, Mr. Zalmerón moved to vacate his conviction and withdraw his plea , alleging that the required warnings were not given . The government did not respond to the motion. The trial court denied the motion, noting that Mr. Zal merón‟s motion relied upon part of the Innocence Protection Act of 2001, D.C. Code § 22

- 4135 (2012 Repl.), which requires a petitioner to assert actual innocence , and that Mr. Zalmerón did not do so .
New counsel for Mr. Zalmerón filed a s econd motion in March of 2014, raising the same allegations under D.C. Code § 16

- 713 (b). Mr. Zalmerón also submitted a sworn affidavit indicating that he was not a citizen of the United States, that he faced adverse immigration consequences as a result of his convict ion, and that the trial judge had not provided the required warnings prior to4

accepting his plea. In support of his assertion that the warnings were not given, Mr. Zalmerón pointed out that the jury waiver form that he signed d id not provide the required advisement of potential immigration consequences. The motion noted that the Court Reporting and Recording Division of the Superior Court had informed counsel that transcripts of the plea hearing we re no longer available.
The government did not respond t o this motion either. The trial court denied the motion on April 1, 2014 , stating that “[u]pon review of the chambers file the Court recalls that at the plea hearing it asked the Defendant his place of birth and subsequently advised Defendant of possible immigration consequences, including deportation from the United States, exclusion from the United States, or denial of naturalization by the United States.”
On April 22, 2014, Mr. Zalmerón filed a motion asking the trial court to disclose the chambers fi le refer red to in its order , a rguing that the trial court “made a decision regarding an issue of fact (i.e. whether the Court advised Mr. Zalmerón as to possible immigration consequences at the time [he] entered a plea of guilty in 1994) based on evidence not currently in the record.” Mr. Zalmerón also noted that disclosure of the chambers file was necessary to allow meaningful appellate review.5

O n May 20, 2014, the trial court ordered a response from the government. The government‟s one

- page response t ook “no position on defendant‟s request for disclosure of documents from the Court‟s own chambers file,” but it separately noted that “it does not appear that disclosure of documents from the chambers file would cast light on the substance ” of the court‟s order denying Mr. Zalmerón‟s motion because “[a]s stated in the order,” the court‟s “recollection” that it advised Mr. Zalmerón “exists separate and apart from the documents in the chambers file.” The trial court adopted the government‟s reasoning and den ied Mr. Zalmerón‟s motion

. Noting that the trial judge had made a factual determinati on that the warnings were given that was based only on his memory and that was contrary to Mr. Zalmerón‟s sworn affidav it , Mr. Zalmerón moved to vacate the order, recuse the trial judge , and

— because the trial judge was now the Superior Court‟s chief judge 1

— certify the case to a n independent judicial officer outside the Superior Court for an evidentiary hearing on whether the warnings were given, with the trial judge serving as a witness and not as the factfinder. The government did not

1 Chief Judge Lee Satterfield accepted Mr. Zalmerón‟s plea in 1994 when he was still an associate judge. He had become Chief Judge of the Superior Court by the time he denied Mr. Zalmerón‟s plea withdrawal motion in 2014.6

respond. The trial court did not address the merits of Mr. Zalmerón‟s arguments or rule upon the motion. Instead, the court vacated its Apr il 1 order and again denied Mr. Zalmerón‟s initial motion under D.C. Code § 16

- 713 so that Mr. Zalmerón could file a timely notice of appeal. This appeal followed.

II.
The statute at issue in this appeal, D.C. Code § 16

- 713, provides that “[p]rior
to acce ptance of a plea of guilty or nolo contendere to any offense punishable as a crime, the court shall administer the following advisement on the record to the defendant:” If you are not a citizen of the United States, you are

advised that conviction of the o ffense for which you have been charged may have the consequences of deportation, exclusion from admission to the United States, or denial of naturalization pursuant to the laws of the United States. D.C. Code § 16

- 713 (a). Subsection (b) further provides that a defendant may have his conviction vacated and may withdraw his plea if “the court fails to advise the defendant as required by subsection (a) and the defendant shows that [the] conviction . . . may have the consequences for the defendant of deportat ion, exclusion from the United States, or denial of naturalization pursuant to the laws of the United States.” D.C. Code § 16

- 713 (b). Subsection (b) goes on to state that7

“[a]bsent a record that the court provided the advisement required by subsection ( a), the defendant shall be presumed not to have received the required advisement.” Id

.
Mr. Zalmerón contends, as an initial matter, that he is entitled to outright reversal of the trial court‟s denial of his motion to withdraw his plea on the grounds that (1) the trial court‟s memory of events twenty years earlier was insufficient to rebut the presumption under § 16

- 713 (b) that no warnings were given , and (2) that the government waived any right to a remand to supplement the record by failing to proff er its own evidence in the trial court that the warnings were given and by failing to raise the waiver arguments it now says foreclose Mr. Zalmerón ‟s claim. In the alternative, Mr. Zalmerón argues that the trial court erred in refusing to grant him an evidentiary hearing at which a judge who was not also a witness could resolve the contested factual issue, and that this court should remand for such a hearing, order the trial court to provide a copy of all materials relating to the plea proceeding, and direct that the hearing be held before a judge of this court, given the appearance of bias if another Superior Court judge were called upon to evaluate the testimony of a colleague who, as the c ourt‟s chief judge , w ields considerable power over the other judges of th at court

. See, e.g. , D.C. Code § 11

- 908 (empowering chief judge to “assign and reassign any judge to sit in any8

division or branch); D.C. Code § 11

- 1702 (requiring the chief judge to handle all administrative matters not decided by the Joint Committee on Judicial Administration).
For its part, the government now concede s that under Valdez v. United
States , 906 A.2d 284 (D.C. 2006), Mr. Zalmerón successfully triggered the statute‟s pre sumption of nonadvisement

— and shifted the burden to the government to establish that the warnings were given

— by “set[ting] forth facts, by sworn affidavit, indicating that (1) he did not receive the required warnings, (2) he was an alien at the time he ple aded guilty and his status remained unchanged, and (3) the admissions made during the plea hearing, at least in part, have resulted in one of the enumerated adverse immigration consequences.” Valdez , 906 A.2d at 290. 2

2 The government made this conc ession at oral argument. In its brief it had argued that Mr. Zalmerón‟s affidavit did not trigger the presumption of nonadvisement because he failed to initiate a reconstruction of the record under D.C. Rule App. 10 (c), which provides that the record on appeal may consist of a “statement of the evidence or proceedings from the best available means,” submitted by appellant to the trial judge for approval after other parties have the opportunity to object or propose amendments. Rule 10 (c), however, is a r ule of appellate procedure that clarifies what type of a record is necessary for the D.C. Court of Appeals to provide “meaningful appellate review” of the claims before it. Egbuka v. United States , 968 A.2d 511, 517

- 18 (D.C. 2009). The rule has no bearin g on the showing a petitioner must make to merit relief in the Superior Court or on the quantum of evidence necessary to trigger the presumption of nonadvisement under D.C. Code § 16

- 713.9

T he government does not specifically defend the sufficiency of the evidence upon which the trial court based its denial of Mr. Zalmerón ‟s plea withdrawal motion , but instead disagrees with Mr. Zalmerón ‟s assertion that the government is not entitled to a remand to try to prove the warnings w ere given . The government further acknowledges that if the proceedings on remand advance to a point at which Mr. Zalmerón ‟s statement stands in opposition to that of the trial court on the question whether warnings were given, then the D.C. Circuit‟s opinion in Downey v. United States , 91 F.2d 223 (D.C. Cir. 1937)

— binding on us under M.A.P. v. Ryan , 285 A.2d 310, 312 (D.C. 1 971)

— requires that the contested facts be determined by another judge besides the chief judge, preferably one who is not

on the D.C. Superior Court. See Downey , 91 F.2d at 233 (holding that “where recourse to the memory of the justice who [made the statem ent in question] is necessary to prove the fact [in dispute], he should be heard as witness, but not as judge and witness both” )

. Finally, t h e government also asks us to hold that on remand the trial court may reject Mr. Zalmerón ‟s claim for a different r eason

— namely, that Mr. Zalmerón ‟s lengthy and unexplained delay in seeking relief under D.C. Code § 16

- 713 (b) amounts to a complete waiver of or, in the alternative, an10

important factor that warrants denial of his untimely nonadvisement claim. 3

Th i s appeal thus boils down to two disputed issues: whether Mr. Zalmerón is entitled to reversal

— and to withdrawal of his plea

— because once the burden to prove nonadvisement shifted to the government, the government produced nothing and should not get anothe r chance to meet its burden , and , if not, whether the government should have the opportunity on remand to establish that Mr. Zalmerón waived his claim under § 16

- 713 by failing to raise it until his present detention

. For the reasons explained below, we r eject Mr. Zalmerón ‟s request for an outright reversal, but vacate the trial court‟s denial of his plea withdrawal motion and remand for an evidentiary hearing on whether the warnings were given . We further hold that unexcused delay in filing for relief un der § 16

- 713, if it could be established on remand , would be one factor the trial court may consider when assessing Mr. Zalmerón‟s credibility

.
We turn first to Mr. Zalmerón ‟s argument that we should direct the trial

3 The government argued in its brief that we should affirm becaus e of the unexplained delay, but at oral argument the government conceded that it did not raise this defense before the trial court, that Mr. Zalmerón had no occasion to establish that his delay was excusable, and that this court could not deem Mr. Zalmerón ‟s claim foreclosed on the basis of delay without first remanding for an evidentiary hearing.11

court to grant his request to withdraw his plea because the government waived its right to a remand by failing to seek to rebut the presumption of nonadvisement with evidence besides the trial judge‟s memory. Though we do not lightly disregard Mr. Zalmerón ‟s arguments that he will be prejudiced by additional delay for proceedings on remand, we are nonetheless unwilling to conclude, on this record, that the government waived its request to present additional evidence on remand. While Mr. Zalmerón argues forcefully that the government should not get another bite at the apple after having failed to present its own evidence once Mr. Zalmerón ‟s affidavit shifted the burden, we are loath to foreclose a remand in this case given the murkiness of the proceedings in the trial co urt

. To begin with, the trial court issued its initial ruling in the government‟s favor before the time to respond had lapsed, and the government asserts , in any event, that its longstanding practice in Superior Court is to respond to § 16

- 713 motions onl y when ordered by the trial court to do so

. 4 When the government did respond to Mr. Zalmerón‟s

4 In Valdez , we took note of a similar representation by the government in that case that “the office of the United States Attorney ordinarily is not require d to respond to a motion to withdraw a guilty plea unless the Superior Court requests such a response.” Valdez v. United States , 906 A.2d 284 , 285 n.1 (D.C. 2006)

. But see Super. Ct. Crim. R. 47

- I (c) (providing that when a motion is filed in a criminal case, “[a] written statement of opposing points and authorities shall be filed within 10 days thereafter and shall be served upon all parties, unless otherwise provided (continued...)12

subsequent motion to disclose the chambers file , it tailored that response narrowly
to address only the question posed by the trial court regarding whether the chambers file should be disclosed. Notwithstanding Mr. Zalmerón‟s contention s that the government‟s response implicitly suggested that the trial court‟s uncorroborated memory was sufficient to meet its burden and that Mr. Zalmerón ‟s motion to disclose the chambers file and his final omnibus pleading clearly signaled Mr. Zalmerón ‟s intent to litigate this matter, we have qualms about characterizing Mr. Zalmerón ‟s subsequent motions as so clearly compelling a response from the government on the merits that a ny failure to fully develop its record was tantamount to waiver. We agree with the government that a remand is in order.
We next address the government‟s argument that Mr. Zalmerón ‟s claim under D.C. Code § 16

- 713 is subject to a time waiver and that the government should be entitled on remand to present evidence that Mr. Zalmerón ‟s delay in

(...continued) by the Court .”). In the context of § 23

- 110 motions, Rule 3 of the Rules Governing Proceedings Under D.C. Code § 23

- 110 explicitly authorizes the practice the government says applies without such explicit authorization in the context of plea withdrawal motions.13

presenting the claim precludes him from winning relief under the statute. 5 Mr. Zalmerón argues that the plain language of the statute forecloses the government‟s
arg ument that courts may rely on any time

- waiver principle to reject motions under § 16

- 713. Indeed , as Mr. Zalmerón notes, the text of § 16

- 713 contains no time limitation at all, in “stark contrast” to other statutes and court rules that explicitly limit the time during which relief may be sought or provide other penalties for delay. See, e.g. , D.C. Code § 22

- 4004 (a)(3) (th ree - year limitation to file for review of determination that person must register as a sex offender); D.C. Code § 16

- 802 (c)

- (d) (motion to seal record based on actual innocence must meet more stringent burden if filed more than four years after terminatio n of prosecution); D.C. Code § 23

- 110 (b)(2) (establishing a laches

- like defense in § 23

- 110 proceedings); Super. Ct. Crim. R. 33 (motion for new trial based on newly discovered evidence must be made within three years after verdict or finding of guilt). We have emphasized that “[t]he intent of the legislature is to be found in the language used ,” that “[t]h e burden on a litigant who seeks to disregard the plain

5 “The proper construction of a statute raises a question of law,” Washington v. District of Columbia Dep’t of Pub. Works , 954 A.2d 945, 948 (D.C. 2008), and “this court generally reviews legal conclusions de novo,” District of Columbia Office of Tax & Reven ue v. BAE Sys

. Enter

. Sys

. Inc. , 56 A.3d 477, 480 (D.C. 2012).14

meaning of the statute is a heavy one, ” and that “ this court will look beyond the ordinary mean ing of the words . . . only where there are persuasive reasons for doing so.” Hard Rock Café v. D istrict of Columbia Dep’t of Emp’t Servs. , 911 A.2d 1217, 1219 (D.C. 2006) (citation omitted); see also EEOC v. Abercrombie & Fitch Stores, Inc. , 135 S. Ct. 2 028, 2033 (2015) (refusing to “add words to the law to produce what is thought to be a desirable result” and construing the statute‟s “silence as exactly that: silence”). In that vein , the government‟s claim that a petitioner waives his right to relief if he does not file his motion until after the transcript is destroyed is at odds with the statute‟s express presumption of nonadvisement in cases where the record is no longer available , D.C. Code § 16

- 713 (b) , and with the legislators‟ central concern that the law “ensure notice to aliens of the consequences of a guilty plea.” District of Columbia Sentencing Improvements Act of 1982, Act No. 4

- 286, 30 D.C. Reg. 173 (1983).
The government notes that seven other states have immigration advisement statutes li ke § 16

- 713, but it points to no published decision holding that a lengthy delay in bringing a nonadvisement claim amounts to a complete waiver under these states‟ statutes. T he unpublished opinions on which the government relies are less than helpful

— at least one, for example, appears to be clearly distinguishable, see,
e.g. , Den Van Nguyen v. State , 288 P.3d 129 (Haw. Ct. App. 2012) (table) (relying15

upon a court rule that contained an explicit waiver rule for issues raised for the first time in post

- conviction proceedings, see 2012 WL 4454735, at *2 )

— and do not, in any event, convince us to read our statute in a manner inconsistent with its text and

u nderlying policy.

W e do agree, however, with the government‟s alternative argument that unexplained delay i s a factor that is potentially relevant to the adjudication of the nonadvisement claim on the merits. 6 In Ramsey v. United States , 569 A.2d 142 (D.C . 1990), we addressed a similar claim in the context of a criminal defendant‟s effort to withdraw a guilty plea based on the alleged ineffectiveness of his counsel under D.C. Code § 23

- 110 . There, the government argued that the trial court should “determi ne whether appellant „slept on his rights‟ before assessing the merits of appellant‟s claim” when considering his motion. Id. at 148

- 49. The court rejected the government‟s argument and held that “lapse of time and prejudice to the government cannot, by themselves, bar a § 23

- 110 motion seeking

6 As the government noted at oral argument, the relevant delay is between the time that the petitioner first faces adverse immigration consequences resulting from the plea and the time that h e files his petition to withdraw his plea, not the time between the plea and the motion.16

to withdraw a guilty plea.” 7 Id. at 148. Even so, we stated that “in conducting an evidentiary hearing (if required as it is here), ” the trial court “ may consider the length of delay . . . , any excuses for that delay, and any resulting prejudice to the government as factors bearing on the credibility of appellant‟s claim.” Id. at 148

- 49 ; c f. State v. Francis , 820 N.E.2d 355 , 362 ( Ohio 2004) (rejecting the intermediate appellate court‟s determination , in the cont ext of a claim under Ohio‟s version of § 16

- 713 , “ that, as a matter of law, untimeliness

. . . was a sufficient factor in and of itself to justify the trial court‟s decision to deny the motion” ). We likewise conclude that allowing the trial court to consider delay as one factor when evaluating the credibility of the petitioner‟s claim is sufficient to ensure that justice is properly administered in § 16

- 713 cases. 8
Finally, with respect to Mr. Zalm erón ‟s argument that on remand a different judge from the trial judge who took the plea must act as factfinder in determining

7 The D.C. Council did not establish the laches

- like defense in § 23

- 110 (b)(2) until 2009. See D.C. Law 18

- 88, § 220 (Dec. 10, 2009).
8 Because we have rejected Mr. Zalmerón‟s argument that the government waived its right to present evidence rebutting the presumption of nonadvisement and because we are remanding for an evidentiary hearing on the merits of the nonadvisement claim, we need not consider Mr. Zalmerón‟ s argument that the only evidence of advisement that has thus far been offered

— the judge‟s recollection

— was insufficient to rebut the statutory presumption of nonadvisement.17

whether the required warnings were given , we agree that if the government seeks to present evidence , whether by affidavit or throu gh the judge‟s own testimony, of the trial judge‟s recollection , Downey requires this to take place before a different judge

. 9 See Downey , 91 F.2d at 234 (remanding for an independent judge to take evidence from the government, including testimony from th e sentencing judge as a witness, on the question whether appellant was sentenced concurrently or consecutively); see also United States v. Redondo

- Lemos , 27 F.3d 439, 443 (9th Cir. 1994) (stating that a judge “cannot very well weigh his own credibility” ). Cf. Code of Judicial Conduct, Rule 2.11 (A) (2012) (“A judge shall disqualify himself or herself in any proceeding in which the judge‟s impartiality might reasonably be

9 As noted above, the government conceded at oral argument that under Downey any weighing of the trial court‟s testimony against that of Mr. Zalmerón must be conducted by another judge. Nothing in Valdez indicates that Downey ‟s holding does not likewise govern an assessment of an affidavit as well as testimony by the trial judge. Whi le language in Valdez indicated that “[a]n affidavit from the judge who accepted the plea which contained necessary details would be more than adequate” to establish the government‟s burden of proving advisement, 906 A.2d at 289, it did not state

— and, in l ight of Downey, could not have stated

— that it would be appropriate for the plea judge to consider the veracity of his own affidavit in denying the petitioner‟s claim. According to the government‟s brief in Valdez , the guilty plea was taken in 1989 by a di fferent judge from the two judges who later issued orders denying the § 16

- 713 motion in 2004. Br. for Appellee, 2005 WL 5652807, at *1

- 2. And in the case on which Valdez relies for the idea that the plea judge‟s affidavit would be sufficient

— Commonwealt h v. Ciampa , 747 N.E.2d 185 (Mass. App. Ct. 2001)

— the motion judge considered an affidavit from the plea judge, who had since retired. Id. at 187

- 88.18

questioned, including but not limited to the following circumstance: . . . (6) The jud ge: (c) was a material witness concerning the matter.”). If the government does not seek to rely on the trial judge‟s recollection in seeking to satisfy its burden under § 16

- 713 (b), reassignment to another judge will not be necessary

. 10

III.
For the foregoing reasons, we vacate the trial court‟s order denying Mr. Zalmerón ‟s motion to withdraw his plea and remand to the trial court so that the court may disclose any relevant materials in the chambers file 11 and conduct further proceedings not in consistent with this opinion

.
So ordered.

10 Mr. Zalmeron argues that if recusal is necessary, it would be improper for another Superior Court judg e to be required to evaluate the testimony of the Superior Court‟s chief judge, and we should require appointment of a D.C. Court of Appeals judge to preside over the factfinding hearing. The government suggested at oral argument that it was “the more com mon practice” in such a circumstance to appoint a judge from the U.S. District Court for the District of Columbia. We leave it to the trial court to determine in the first instance which practice is appropriate if such reassignment becomes necessary.

11 The trial court agreed with the government that its recollection was independent of the documents in the chambers file, which may mean there are no relevant materials to disclose. If, however, the trial court determines that the file does contain “writte n materials such as will refresh or confirm recollection , ” they “should be placed in evidence in the usual manner.” Downey , 91 F.2d at 233.