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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…)
                                            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

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.
