                               District of Columbia
                                Court of Appeals
No. 13-CO-1349
                                                                     SEP - 1 2016
JAYVON R. WHITE,
                                         Appellant,

      v.
                                                       FEL-2363-00

UNITED STATES,
                                         Appellee.


             On Appeal from the Superior Court of the District of Columbia
                                  Criminal Division

      BEFORE: THOMPSON and BECKWITH, Associate Judges; and REID, Senior Judge.

                                    JUDGMENT

               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 trial court‟s judgment is vacated, and
the case is remanded to the trial court for an evidentiary hearing, followed by the trial
court‟s statement of factual findings and conclusions of law.

                                         For the Court:




Dated: September 1, 2016.

Opinion by Senior Judge Inez Smith Reid.
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. 13-CO-1349                       9/1/16

                         JAYVON R. WHITE, APPELLANT,

                                        v.

                           UNITED STATES, APPELLEE.

                         Appeal from the Superior Court
                           of the District of Columbia
                                 (FEL-2363-00)

                   (Hon. Jennifer M. Anderson, Motions Judge)

(Argued September 17, 2015                           Decided September 1, 2016)

      Matthew J. Dowd, with whom Wesley E. Weeks, was on the brief, for
appellant.

       Tim Cahill, Assistant United States Attorney, with whom Ronald C. Machen
Jr., United States Attorney at the time the brief was filed, and Elizabeth Trosman,
Suzanne Grealy Curt, James Sweeney, and Lauren R. Bates, Assistant United
States Attorneys, were on the brief, for appellee.

      Before THOMPSON and BECKWITH, Associate Judges, and REID, Senior
Judge.

      REID, Senior Judge: In 2004, this court rejected appellant Jayvon White‟s

challenge to the trial court‟s denial of his motion to withdraw his guilty plea.

White v. United States, 863 A.2d 839 (D.C. 2004) (White I). In the case now
                                           2

before us, Mr. White appeals the trial court‟s denial of his 2012 pro se motion,

filed under D.C. Code § 23-110 (2012 Repl.), to vacate, set aside or correct

sentence and judgment. He primarily claims that (1) during his plea colloquy the

trial court misinformed him about his parole eligibility; and (2) the trial court

abused its discretion by denying his request for an evidentiary hearing on his 2012

motion. He also argues that he is not procedurally barred from asserting his 2012

claims. For the reasons set forth below, we vacate the trial court‟s judgment and

remand this case to the trial court for an evidentiary hearing, followed by the trial

court‟s statement of factual findings and conclusions of law.



                              FACTUAL SUMMARY



      The record reveals that on September 4, 2001, the trial court (the Honorable

Judith Retchin) held a hearing regarding Mr. White‟s decision to accept the

government‟s plea offer. Mr. White agreed to plead guilty to the lesser-included

charge of second-degree murder while armed, and to possession of a firearm

during a crime of violence (“PFCV”). The government agreed to (a) dismiss

another charged robbery case and the remaining counts in the indictment, and (b)

to withdraw the life without parole papers that it had filed.
                                          3

      During the plea colloquy on September 4, 2001, Judge Retchin informed Mr.

White that (a) the penalty for the second-degree murder offense was “20 years to

life with a mandatory sentence of at least five to fifteen years,” and (b) the related

PFCV offense had a mandatory sentence of five to fifteen years. In addition, Judge

Retchin explained that she could impose consecutive sentences, “meaning that

[she] could sentence [Mr. White] to as much as 25 years to life.” The judge stated

that Mr. White would not be affected by the then recently adopted Truth in

Sentencing law, and therefore, he would be eligible for parole, but “that the

mandatory part of the sentence is exempted from the parole, meaning that [Mr.

White] would be required to serve a minimum of five years,” and that if the court

made the sentences consecutive, “it would be a minimum of 10 years before [he

would] even [be] eligible for parole.” Mr. White, who was represented by his trial

counsel (Michael J. McCarthy), said he understood the explanation, and he

acknowledged that no one had told him what his actual sentence would be. 1 Mr.

White entered his guilty plea.




      1
          When Judge Retchin asked why Mr. White had decided to plead guilty
rather than go to trial, Mr. White responded, “Because if I go to trial, I‟m go[i]n[g]
[to] be found guilty. I‟m going to get life without parole.” To the judge‟s follow
up question as to whether he was pleading guilty because he is guilty, Mr. White
said, “Yes, ma‟am.”
                                           4

      Prior to sentencing and through new trial counsel (Lexi Negin Christ), Mr.

White filed a motion on December 7, 2001, to withdraw his guilty plea. He

submitted an affidavit in support of his motion on January 14, 2002. The affidavit

summarized his alleged understanding as to what his trial counsel had told him

about the effect of a guilty plea.2 The trial court held an evidentiary hearing on the

motion on February 8, 2002, during which Mr. White testified. He stated his belief

that if he lost at trial he would be sentenced to life without parole, and further, that

defense counsel had informed him that if he took the government‟s plea offer, “he

would see the parole board after 5 years” and he would “probably do about fifteen

years.” Subsequently, on February 13, 2002, the trial court denied Mr. White‟s

motion, rejecting (1) his assertion of legal innocence; (2) his contention that he

promptly moved to withdraw his guilty plea; (3) his argument that he was

“deprived of the full benefit of competent counsel” with respect to his plea offer;




      2
          Mr. White declared that he was in the hospital with a stomach problem
(accompanied by internal bleeding) when his trial attorney (Mr. McCarthy)
appeared to explain the government‟s plea offer. He understood from counsel that
if he “went to trial and lost [he] would get sentenced to life without parole”; but
that if he entered a guilty plea, he “would probably be sentenced to fifteen years or
less,” and that he “would be eligible for parole after serving the mandatory five
years, [and] if the sentences were consecutive, a mandatory ten years.” He claimed
that his counsel advised him that if he “told the [c]ourt what had happened, the
judge would not accept the plea because [his] version of what happened could be a
self-defense defense.”
                                          5

(4) his claim that his medical condition “distracted him” in his consideration of his

plea offer; and (5) his claim that “he had no confidence in his trial counsel.”



      The trial court‟s judgment and commitment order, following Mr. White‟s

sentencing, shows that on June 28, 2002, Judge Retchin sentenced Mr. White to 20

years to life on the second-degree murder offense and 5 to 15 years on the PFCV

offense, and made the sentences consecutive. Judge Retchin indicated that Mr.

White was committed to prison for “25 years,” and that a “mandatory minimum

term of 10 years applies.” The judge amended the judgment and commitment

order on March 12, 2004, nunc pro tunc to June 28, 2002, by deleting “25 years”

but leaving “mandatory minimum term of 10 years applies.” Mr. White noticed an

appeal of the trial court‟s denial of his motion to withdraw his guilty plea; we

resolved that appeal in White I.



      Mr. White made other efforts to alter or clarify his sentences. He sent a

letter to Judge Retchin on August 4, 2006, asking that his sentences be changed to

run concurrently. He sent another letter on October 26, 2006, which the court

treated as a pro se motion to reduce sentence. The trial court denied the motion on

the ground of lack of authority to reduce Mr. White‟s sentence. Judge Retchin

received yet another letter from Mr. White on March 16, 2007, which she
                                         6

interpreted as a pro se motion to reduce sentence. In response to the motion, Judge

Retchin asserted on June 7, 2007, that even if the court had authority to reduce Mr.

White‟s sentences, it would not do so because of its belief that “the sentence

imposed was just and appropriate in light of the conduct that gave rise to the

conviction.”



       Approximately two years later, in a letter dated June 1, 2009, Mr. White

requested Judge Retchin‟s assistance with his parole eligibility.      The judge‟s

administrative assistant responded on June 3, 2009, that “[t]he [c]ourt does not

intercede in parole determinations.” The assistant included the name of the Chief

of the Parole Division at the Public Defender Service. Later, on September 13,

2010, Mr. White lodged a pro se motion “seeking clarification of exactly when he

is eligible for parole consideration.” The first document attached to the motion

was a 10/23/2008 program review of an “Inmate Skills Development Plan”

containing basic data, including an entry stating “10 years – DC Omnibus Adult

Sentence” – and a box labeled “Parole Status” showing an initial hearing date of

“04-01-2013.”     The second document was labeled, “Sentence Monitoring

Computation Data as of 09-09-2009,” and it showed “Parole Eligibility” as “03-08-

2025,” but also specified “Next Parole Hearing Date” as “06-00-2010.” The third

document was a copy of Mr. White‟s August 18, 2010, inquiry to the Federal
                                         7

Bureau of Prisons about his parole eligibility date and the Bureau‟s response,

stating: “Contact with DSCC (DCCOMPS), reported your parole hearing should

not have been June 2010, but 6-9 months prior to your parole eligibility which is

March 8, 2025. The ten-year DC Mandatory Minimum Term, is the least amount

the Judge could sentence you to and would come [in]to play if you[] earned

Educational Good Time, which you cannot. Your minimum term is 25 years and

therefore [you are] eligible for parole March 2025.” Judge Retchin denied the

motion for clarification of sentence, declaring on September 20, 2010, that “[i]t is

the responsibility of the Parole Commission to determine when and if [Mr. White]

will be released on parole,” and that “the mandatory minimum sentence does not

equate to a parole eligibility date.”



      Months later, on June 5, 2012, pursuant to D.C. Code § 23-110, Mr. White

filed a pro se motion to vacate, set aside or correct sentence and judgment. He

claimed, first, that he “entered his plea of guilty under the advi[c]e of counsel and

the [c]ourt, that he would be eligible for parole in ten years when in actuality, it

would take 25 years from the date of [his] sentencing before [he] was eligible for

parole.” He further asserted that he was “[o]nly . . . told [in] July of 2010 that he

had been removed from the [p]arole docket because he was ineligible for parole

until March 8, 2025.” Second, Mr. White argued that he was entitled to an
                                            8

evidentiary hearing because “the [c]ourt gave [him] erroneous advi[c]e,” as

follows: “[I]f I make [the] sentence consecutive, it would be a minimum of 10

years before you‟re even eligible for parole.” Third, Mr. White maintained that the

government breached its agreement with him because he has been incarcerated for

ten years and has been “denied . . . the fruits of his plea deal.”3



      The Honorable Jennifer Anderson denied Mr. White‟s motion on October 9,

2013, finding that Mr. White‟s claims were procedurally barred, and that even if

they were not procedurally barred, he would not be entitled to relief.          Judge

Anderson also concluded that none of Mr. White‟s allegations required an

evidentiary hearing because (1) Judge Retchin denied the “exact claim” about his

counsel in his “initial motion to withdraw his guilty plea, which denial was

affirmed on appeal,” (2) the claim about Judge Retchin misinforming him about his

parole eligibility “is palpably incredible based on the existing record,” and (3) with

regard to his plea agreement with the government, “there was no misinformation

for the government to object to.”




      3
        On July 1, 2013, Judge Anderson denied Mr. White‟s motion requesting
appointment of counsel to reply to the government‟s opposition to his motion.
                                         9

                                   ANALYSIS



      The Procedural Default Issue



      We first consider Mr. White‟s argument that his claims are not procedurally

barred, and the government‟s counter contention that his claims are procedurally

barred. Mr. White argues that the trial court “inadvertently misinformed [him] that

„if I make this sentence consecutive, it would be a minimum of 10 years before

you’re even eligible for parole,‟ even though Mr. White will not be eligible for

parole for 25 years” (emphasis in original). He maintains that “[t]his statement and

the failure of the court, trial counsel and the prosecutor to correct it at the plea

hearing, along with the incorrect advice received by Mr. White from his appellate

counsel that he could not raise the issue on appeal constitutes cause.” Mr. White

further asserts that the government waived the requirement that he show prejudice

by stating in the trial court that “the defendant‟s motion may be summarily denied

without considering prejudice,” and that even if the government did not waive the

prejudice requirement, “he has been prejudiced because he would have gone to

trial had he known that he would not be eligible for parole until after he served 25

years in prison.” The government counters that “the alleged error that [Mr. White]

was misinformed about his parole eligibility date was actually known to [him] well
                                         10

before his direct appeal was filed,” and that because he “has not moved to recall

the mandate, . . . [he] cannot establish that his appellate counsel‟s alleged

„incorrect advice‟ constitutes „cause‟ for his failure to raise his claim during the

pendency of his direct appeal.”



      In resolving the procedural default issue, we are guided by the following

legal principles. “[I]f an appellant does not raise a claim of ineffective assistance

of counsel during the pendency of the direct appeal, when at that time appellant

demonstrably knew or should have known of the grounds for alleging counsel‟s

ineffectiveness, that procedural default will be a barrier to this court‟s

consideration of appellant‟s claim.” Washington v. United States, 834 A.2d 899,

902 (D.C. 2003) (internal quotation marks omitted) (quoting Shepard v. United

States, 533 A.2d 1278, 1280 (D.C. 1987)). “Where a defendant has failed to raise

an available challenge to his conviction on direct appeal, he may not raise that

issue on collateral attack unless he shows both cause for his failure to do so and

prejudice as a result of his failure.” Id. (internal quotation marks omitted) (quoting

Head v. United States, 489 A.2d 450, 451 (D.C. 1985)). “Relief under § 23-110 is

appropriate only for serious defects in the trial which were not correctible on direct

appeal or which appellant was prevented by exceptional circumstances from

raising on direct appeal.” Head, supra, 498 A.2d at 451.
                                         11

      Here, we are presented with a rather unique and exceptional factual and

procedural context on which to determine whether Mr. White failed to raise a

challenge to his guilty plea on direct appeal that was “available” to him during the

pendency of his direct appeal, Washington, supra, 834 A.2d at 902, and if so,

whether Mr. White has satisfied his burden to show “cause” and “prejudice” for

the failure. That is, we must decide whether relief under § 23-110 is appropriate

because “serious defects” marked Mr. White‟s plea process, and these defects

“were not correctible on direct appeal” because “exceptional circumstances”

prevented Mr. White from raising them before this court resolved White I.



      At the outset of our analysis, we recognize that “a plea of guilty is not

rendered involuntary in a constitutional sense if the defendant is not informed of all

of the possible indirect and collateral consequences,” and that “[o]rdinarily, parole

eligibility is such an indirect and collateral consequence, of which a defendant

need not be specifically advised by the court or counsel before entering a plea of

guilty.” Strader v. Garrison, 611 F.2d 61, 63 (4th Cir. 1979). However, a trial

court‟s misinformation about a defendant‟s parole eligibility during a plea

proceeding may be deemed so prejudicial as to require reversal of a conviction and

a new opportunity for the defendant to decide whether or not to enter a guilty plea.

See Spradley v. United States, 421 F.2d 1043, 1047-48 (5th Cir. 1970) (where trial
                                         12

court misled or inadvertently misinformed defendant about the time of his parole

eligibility, error “was prejudicial enough to require a reversal of the conviction”

and an opportunity for defendant to decide whether to stand trial or to again enter a

guilty plea); Gates v. United States, 515 F.2d 73, 80-81 (7th Cir. 1975) (where trial

court “not only fails to inform [defendant] prior to his plea of his ineligibility for

parole, but also incorrectly informs him at the time of sentencing that he will be

eligible[,] [t]hese compound errors present „exceptional circumstances,‟” requiring

reversal of conviction and an opportunity to “plead anew”).



       Significantly, the record before us reveals that even though the trial court

had no obligation to inform Mr. White about his parole eligibility, (1) the trial

court may have made misleading and confusing or ambiguous statements regarding

the timing of Mr. White‟s parole eligibility; and (2) Mr. White, acting pro se from

around 2006 to the time of his November 16, 2013, notice of appeal in this case,

sought clarification from the trial court and the Bureau of Prisons about the date of

his parole eligibility.



       After telling Mr. White at his September 4, 2001, hearing that she “could

sentence [him] to as much as 25 years to life,” Judge Retchin informed him that if

she made his sentence consecutive, he would be eligible for parole, but that “it
                                       13

would be a minimum of 10 years before [he would] even [be] eligible for parole.”

With respect to the June 28, 2002, judgment and commitment order, Judge Retchin

indicated that Mr. White was sentenced to prison for “25 years,” and that a

“mandatory minimum term of 10 years applies,” but then on March 12, 2004, the

judge amended the commitment order nunc pro tunc to June 28, 2002, by deleting

“25 years” but leaving “mandatory minimum term of 10 years applies.”



      In response to Mr. White‟s pro se efforts (via a letter in 2009 and a later

motion), Judge Retchin initially declared that “the [c]ourt does not intercede in

parole determinations,” but after receiving Mr. White‟s 2010 motion and attached

documents from the Bureau of Prisons – reflecting parole hearing dates in 2013

and 2010, and a parole eligibility date of “03-08-25,” as well as including the

statement that Mr. White would be “eligible for parole March 2025” – Judge

Retchin wrote a response to Mr. White on September 20, 2010, denying his motion

for clarification and stating that the Parole Commission had to determine “when

and if [Mr. White] will be released on parole.” However, the judge added that “the

mandatory minimum sentence does not equate to a parole eligibility date.”



      In light of the record before us, we cannot agree with the government‟s

argument that Mr. White‟s January 14, 2002, affidavit (submitted as a supplement
                                        14

to his December 7, 2001, motion to withdraw his guilty plea) forecloses Mr.

White‟s contention that he remained confused about his parole date. We are

satisfied that subsequent events belie the government‟s isolated reading of the

affidavit. These events include Mr. White‟s continued pro se pursuit of

clarification, Judge Retchin‟s 2002 and 2004 (nunc pro tunc 2002) statements

about a possible sentence and her commitment orders, and the Bureau of Prisons‟

records about Mr. White‟s parole eligibility and parole hearing dates.



      Given the record evidence of Judge Retchin‟s statements about a possible

sentence, her commitment orders, her communications with Mr. White, and in light

of the alleged records of the Bureau of Prisons that Mr. White sent to Judge

Retchin with his 2010 motion, individuals who possessed education beyond Mr.

White‟s GED level might well be misled into believing that they would be eligible

for a parole hearing in 2010, or they may have become quite confused about the

reason for the different and even conflicting parole eligibility dates stated by the

court and the Bureau of Prisons. In short, we are unable to conclude that the

claims Mr. White made in his 2012 § 23-110 motion, were “available” to him

before our resolution of White I. Rather, we hold that because Mr. White did not

know and should not have known (during the pendency of his direct appeal) of the

claims presented on appeal, he need not demonstrate cause and prejudice in
                                         15

accordance with Shepard.      See Washington, supra, 834 A.2d at 902 (quoting

Shepard, 533 A.2d at 1280).



      The Evidentiary Hearing Issue



      Mr. White contends that the trial court abused its discretion by denying his

§ 23-110 motion without a hearing, despite the fact that there is a strong

presumption in favor of a hearing. He argues that “[a]t a minimum, . . . the [c]ourt

should remand for a hearing.” The government supports the trial court‟s summary

denial of Mr. White‟s motion, but notes that a remand for an evidentiary hearing

would be proper if this court believes that Mr. White could establish his claim

concerning the trial court‟s alleged “materially erroneous information regarding the

parole consequences of a plea.”



      We are guided by the following legal principles.         “While the decision

whether to hold an evidentiary hearing on a § 23-110 collateral challenge to the

constitutionality of a conviction is committed to the trial court‟s discretion, the

extent of that discretion is quite narrow.” Bellinger v. United States, 127 A.3d 505,

514-15 (D.C. 2015) (internal quotation marks omitted). Moreover, “any question

regarding the appropriateness of a hearing on a § 23-110 motion should be
                                        16

resolved in favor of holding a hearing.” Id. at 515 (internal alterations omitted).

“We will affirm the trial court‟s denial of a § 23-110 motion without a hearing only

if the claims (1) are palpably incredible; (2) are vague and conclusory; or (3) even

if true, do not entitle the movant to relief.” Hardy v. United States, 988 A.2d 950,

961 (D.C. 2010) (internal quotation marks omitted). “In order to uphold the denial

of a § 23-110 motion without a hearing, we must be satisfied that under no

circumstances could the petitioner establish facts warranting relief.” Hilliard v.

United States, 879 A.2d 669, 671 (D.C. 2005) (per curiam); see also Bellinger,

supra, 127 A.3d at 515.       “Where this issue turns on questions of witness

credibility, we have consistently held that credibility determinations cannot be

based on affidavits or countered by conclusory statements but may be resolved

only by recourse to a full evidentiary hearing.” Id. (internal quotation marks

omitted) (quoting Newman v. United States, 705 A.2d 246, 261 (D.C. 1997)).



      Here, Judge Anderson was not the trial judge who presided over Mr. White‟s

plea proceedings; nor was she the judge who received and responded to Mr.

White‟s post-conviction communications. Hence, she had no firsthand or personal

knowledge about the record prior to her handling of Mr. White‟s 2012 motion.

Under “these circumstances, the lack of a hearing becomes especially significant.”

Gaston v. United States, 535 A.2d 893, 900 (D.C. 1988). Moreover, the posture of
                                         17

the case before Judge Anderson appears to be different than that before Judge

Retchin when she denied Mr. White‟s motion to withdraw his guilty plea. At that

time, Judge Retchin had not yet sentenced Mr. White, and hence, the full context

of Mr. White‟s claim that Judge Retchin misled or misinformed him had not been

established.



      Judge Anderson concluded that no hearing on Mr. White‟s claims was

necessary because Judge Retchin had denied the “exact claim” about his trial

counsel (Mr. McCarthy); Mr. White‟s claim about Judge Retchin‟s misinforming

him about his parole eligibility “is palpably incredible based on the existing

record”; and “there was no misinformation for the government to object to.” We

do not agree that Judge Anderson had before her the “exact claim” presented to

Judge Retchin about Mr. McCarthy, given the factual context of the claim. Mr.

White‟s 2012 motion before Judge Anderson included claims not only about Mr.

McCarthy and the impact of information he acquired in 2010 from the Bureau of

Prisons,4 but also about the trial court‟s allegedly erroneous advice, and the alleged


      4
          The government argues that the Bureau of Prisons‟ documents, around
which Mr. White frames part of his argument, “were not before the trial court, . . .
and, therefore, are not properly before this [c]ourt.” The government also
maintains that we may not take judicial notice of these documents and they “should
be stricken from appellant‟s appendix.” When Mr. White, who was handling his
letters and motions in the trial court pro se, requested that the trial court appoint
                                                                       (continued…)
                                         18

government breach of his plea deal. In sum, based on the record now before us, we

cannot say that Mr. White‟s claim is “palpably incredible.” We conclude that he is

entitled to an evidentiary hearing on his motion.




(…continued)
counsel to assist him with his 2012 motion, Judge Anderson exercised her
discretion to deny the request. That decision may have compounded Mr. White‟s
difficulty in understanding the various iterations of his parole eligibility conveyed
to him through the years by the court and the prison system. Moreover, as a pro se
litigant, he may not have had an appreciation of the need to formally present
documents to the court (such as those obtained from the Bureau of Prisons), or the
procedure for doing so. This court has previously noted that pro se litigants
generally cannot expect “concessions” because of their inexperience or lack of
knowledge about the judicial system, but that there are “special circumstances”
which require “special care” when a pro se litigant prosecutes a court case,
particularly technical matters or the timeliness of pleadings, and consequently, it is
important to “provid[e] pro se litigants with the necessary knowledge to participate
effectively in the trial process.” Padou v. District of Columbia, 998 A.2d 286,
292-93 (D.C. 2010); see also Reade v. Saradji, 994 A.2d 368, 373 (D.C. 2010);
MacLeod v. Georgetown Univ. Med. Ctr., 736 A.2d 977, 979-80 (D.C. 1999).
Nevertheless, given our remand, we do not directly address the judicial notice issue
relating to the Bureau of Prisons‟ documents. However, we note that during oral
argument in this court, the government acknowledged that it reached out to the
Bureau of Prisons about the documents cited by Mr. White; the Bureau of Prisons
reported that there had been an error in the documents that subsequently was
corrected. The Bureau of Prisons‟ response to the government appears to negate
any question about the authenticity of the documents, and confirms Mr. White‟s
argument pertaining to the Bureau of Prisons confusion about his parole eligibility.
                                         19

      Accordingly, for the foregoing reasons, we vacate the trial court‟s judgment

and remand this case to the trial court for an evidentiary hearing, followed by the

trial court‟s statement of factual findings and conclusions of law.



                                              So ordered.
