                             District of Columbia
                              Court of Appeals

No. 14-CO-1393
                                                              APR 21 2016
RALPH L. CLARK, JR.,
                                          Appellant,

      v.                                               CF3-7495-10


UNITED STATES,
                                          Appellee.


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

     BEFORE: WASHINGTON, Chief Judge; THOMPSON, Associate Judge, and
FERREN, Senior Judge.


                                  JUDGMENT

               This case was submitted to the court on the transcript of record and the
briefs filed, and without presentation of oral argument. On consideration whereof, and
for the reasons set forth in the opinion filed this date, it is now hereby

             ORDERED and ADJUDGED that the judgment of the trial court is
affirmed.

                                             For the Court:




Dated: April 21, 2016.

Opinion by Senior Judge John M. Ferren.
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
                                                                        4/21/16
                                  No. 14-CO-1393

                         RALPH L. CLARK, JR., APPELLANT,

                                         v.

                             UNITED STATES, APPELLEE.

                             Appeal from the Superior
                          Court of the District of Columbia
                                   (CF3-7495-10)

                          (Hon. Ann O. Keary, Trial Judge)

(Submitted February 2, 2016                                 Decided April 21, 2016)

      William T. Morrison was on the brief for appellant.

      Vincent H. Cohen, Jr., Acting United States Attorney at the time the brief
was filed, and Elizabeth Trosman, and Candice C. Wong, Assistant United States
Attorneys, were on the brief for appellee.

     Before WASHINGTON, Chief Judge, THOMPSON, Associate Judge, and
FERREN, Senior Judge.

      FERREN, Senior Judge: This is the second time this case has come before

this court, a collateral attack on the conviction we affirmed in Clark I.1 Alleging


      1
          Clark v. United States, 51 A.3d 1266 (D.C. 2012) (Clark I).
                                        2

ineffective assistance of counsel, appellant asks us to reverse the trial court‟s

denial, without a hearing, of his motion to vacate his conviction and sentence

pursuant to D.C. Code § 23-110 (c). After reviewing the record, we agree that

appellant‟s representation was constitutionally deficient, but we conclude that he

suffered no prejudice as a result. Accordingly, we must affirm.




                            I. Facts and Proceedings




      Appellant Ralph L. Clark was convicted of committing an armed robbery at

Starbucks in the Howard University book store. He accepted the government‟s

plea offer, which provided in relevant part that “[a]lthough the [g]overnment

reserves the right to allocute at [Clark‟s] sentence in this case, it agrees not to

allocute for a sentence greater than 10 years incarceration.”2 In its Memorandum

in Aid of Sentencing, however, the government — in three places —

recommended that Clark receive twenty years of incarceration.3




      2
          Id. at 1267.
      3
          Id.
                                          3

      “At the sentencing, the trial judge, having reviewed the plea agreement,

mentioned the error in the government‟s memorandum.                    The prosecutor

immediately acknowledged the error, explaining that she had forgotten the “cap”

and agreeing that the twenty-year recommendation was „off the table.‟”4 Defense

counsel responded that she “didn‟t have a chance to talk to Mr. Clark about this.”5

She added that, because the government had filed a document vigorously arguing

for a sentence that violates the plea agreement, the government should file another

one with a retraction indicating that “they‟re vigorously arguing for the sentence

that they agreed that they would.”6 The trial judge agreed with counsel but did not

delay the sentencing. She advised counsel, after reviewing the plea agreement, that

she had “immediately noticed the error” upon reading the government‟s sentencing

memorandum; that “everyone‟s ready for sentencing today”; and that it would be

“sufficient with the confession of error” if the prosecutor were to file “an amended

document and we vacate the other one.”7 Defense counsel concurred, “[a]s long as

the error is corrected.”8


      4
          Id. at 1268.
      5
          Id.
      6
          Id.
      7
          Clark, 51 A.3d at 1268 (internal quotation marks omitted).

                                                              (continued . . .)
                                           4



      During allocution, after reviewing Clark‟s “violent criminal history,” the

prosecutor concluded by saying that “a ten-year sentence is very generous in this

case.”9 Defense counsel asked for leniency but did not object to the prosecutor‟s

allocution. After permitting Clark to speak, the judge sentenced him to prison for

ten years, a sentence, we later observed, that “was consistent with the prosecutor‟s

obligations under the plea agreement.”10




                              II. Direct Appeal (Clark I)




      On direct appeal (Clark I), Clark‟s new counsel argued that the prosecutor

had violated the plea agreement not only by recommending a twenty-year sentence

after promising to cap the allocution at ten years, but also by compounding the

violation by arguing that a ten year sentence would be “very generous.”11 Counsel

_________________________________
(. . . continued)
         8
           Id. The corrected memorandum was filed the day after sentencing. See id.
      9
           Id. (emphasis omitted).
      10
           Id. at 1269.
      11
           Id.
                                         5

on appeal therefore asked this court to vacate Clark‟s sentence and arrange for

resentencing before a different judge. Counsel also argued that if the new sentence

were to exceed ten years, Clark should be permitted to withdraw his plea.12




      This court agreed that the government‟s breach of the plea agreement in the

sentencing memorandum “was both grave and inexcusable,” indeed that this

“blatant breach” had “potentially devastating consequences” for two reasons: the

prosecutor initially requested twice the level of incarceration — “ten more years”

— than the plea agreement allowed, and the prosecutor argued at sentencing that

even the ten years called for by the agreement was “very generous.”13          This

allocution, we said, “was anything but an emphatic retreat from the impropriety”; it

was an “implied dissatisfaction with that agreement.”14 We acknowledged no

reason to question the judge‟s assurance that she would be guided by the plea

agreement, not by the government‟s noncompliance; but, we stressed: “the judge

had read what she had read and had heard what she had heard, and the combination

of what the prosecutor wrote and what the prosecutor said could hardly have left


      12
           Clark, 51 A.3d at 1269.
      13
           Id. at 1269-70.
      14
           Id. at 1270.
                                          6

the judge in doubt that the level of the prosecutor‟s commitment to the plea

agreement was quite modest.”15




      All this said, we noted that when the judge decided to go ahead with

sentencing, defense counsel replied, “Okay.”16 Furthermore, counsel did not object

to the judge‟s decision to keep the case for sentencing, rather than referring it to

another judge; nor did counsel object to the prosecutor‟s allocution.17 This left us,

we said, no alternative to reviewing the record for “plain error affecting substantial

rights,” a review focused exclusively on the actions of the trial judge.18 This meant

that, to prevail, “Clark would have to demonstrate that the judge committed plain

error by failing to recuse herself sua sponte, so that the case could be reassigned to

another judge who would not be apprised of the recommendation made by the

government in its initial sentencing memorandum.” 19




      15
           Id.
      16
           Id. at 1271.
      17
           Id.
      18
           Id. at 1272.
      19
           Id.
                                          7

      We concluded that, on direct appeal, Clark had satisfied none of the four

requirements to establish plain error by the trial judge, as prescribed by the

Supreme Court in Olano.20 Our opinion ended as follows:



              In reaching the foregoing conclusion, we do not
              minimize the gravity of the government‟s initial breach,
              or the alarming potential of that breach for causing the
              defendant to serve ten years of unwarranted additional
              imprisonment, in contravention of the plea agreement.
              We also emphasize that when such a serious violation of
              a plea agreement has occurred, it is our obligation to
              scrutinize the record with appropriate care in order to
              assure that even where, as here, the breach has been
              formally corrected, it will not have continuing
              consequences that may be contrary to the interests of
              justice.21


Having conducted the requisite scrutiny, this court affirmed Clark‟s conviction.



                     III. § 23-110 Collateral Attack (Clark II)




      20
           United States v. Olano, 507 U.S. 725, 732-36 (1993) (claims of
unpreserved error should be reviewed for (1) “an error,” (2) that is “plain,” (3) that
affects “substantial rights,” and (4) “seriously affect[s] the fairness, integrity or
public reputation of judicial proceedings.”).
      21
           Clark I, 51 A.3d at 1272-73.
                                          8

      Two months after this court issued its decision, but before the mandate

issued, counsel in Clark I filed a motion with the sentencing judge pursuant to D.C.

Code § 23-110 (a)(1), asking the judge to vacate Clark‟s convictions and sentence.

Counsel alleged, fundamentally, that Clark‟s plea attorney had provided

constitutionally ineffective assistance of counsel by electing, as a “tactical

decision,” to continue with sentencing without adequately informing Clark of the

government‟s breach of the plea agreement.         More particularly, to quote the

motion, Clark‟s plea attorney had


             fail[ed] to consult with him during sentencing about the
             government‟s violation of the plea agreement or to
             explain to him what legal options were available to
             remedy the breach and the risks that each entailed,
             including the assignment of his case to a different judge
             for a new sentencing.


These were counseling deficiencies, said the motion, that prejudiced Clark by

“realistically eliminating any possibility that he would receive a sentence of less

than ten years as his plea counsel had allocuted for at sentencing.”




      In support of the motion, counsel proffered an affidavit by Clark, who

averred that plea counsel had “stated on the record that she had not had an

opportunity to discuss this [plea breach] with me.” And, “without conferring with

me about my legal options, she agreed that[] . . . the judge could proceed to
                                         9

sentence me.” Clark added: “[S]he failed to explain to me that even if I did not

wish to withdraw my plea, I was still entitled to have my case assigned to a

different judge who would sentence me without having any personal knowledge of

the government‟s recommendation of a 20-year sentence.          She also failed to

discuss the advantages or disadvantages to me of being sentenced by a different

judge. . . .” In sum, Clark and his counsel contended that plea counsel had usurped

from Clark his right, as the defendant, to decide, among available “options,” which

one to pursue.




      The government, in reply, submitted a declaration by plea counsel, who

noted that she had requested a seven-year sentence, the “bottom of the sentencing

guidelines”; had advised Clark that “a ten-year sentence would not be unexpected”;

had decided to “wait to see the Court‟s reaction to the breach of the plea

agreement” before deciding on a „course of action”‟; had seen how “very upset”

the judge was about the government‟s breach; had thus made a “tactical decision”

not to ask for the judge‟s recusal, because the judge “was upset with the

government‟s actions” and had said that the “sentencing memorandum would not

affect” the judge‟s decision; that there was a “significant risk that another judge,

not as familiar with Mr. Clark and the progress he had recently made, might

sentence Mr. Clark to more than ten years‟ imprisonment”; and that counsel‟s
                                         10

“professional opinion,” based on the judge‟s actions in this case and others, had led

counsel to believe that the risk of Clark‟s receiving a sentence longer than ten

years before a different judge was greater than the chance of his receiving a lesser

sentence from the present judge.




      Plea counsel‟s declaration did not dispute Clark‟s affidavit. She had no

recollection as to whether she had spoken to her client before the sentencing

proceeding began, although she was “confident” that she had advised Clark of the

plea breach “at least during” that proceeding. She then had advised Clark that “we

should proceed with sentencing” because of the judge‟s displeasure with the

government and the judge‟s indication that she would not be influenced by the

breach. Nowhere in counsel‟s declaration did she say she had told Clark that

sentencing before another judge might be an option or that, alternatively, he could

attempt to withdraw his plea.



      The sentencing judge, applying Strickland criteria,22 denied Clark‟s motion.

The judge accepted plea counsel‟s reasoning, and justified counsel‟s judgment as a

legitimate “tactical decision,” not a deficiency in performance. Nor was Clark

      22
           See Strickland v. Washington, 466 U.S. 668 (1984).
                                         11

prejudiced by counsel‟s actions, concluded the judge, because this court had ruled

in Clark I that “the government‟s breach did not affect [Clark‟s] substantial rights,”

thereby equating the absence of Strickland “prejudice” with a ruling of “no plain

error.”




                   IV. Appeal of Clark II: Procedural Matters




      In this second appeal (Clark II), Clark argues that, in denying his motion

alleging ineffective assistance of counsel, the sentencing judge abused her

discretion by refusing to hold a hearing, which Clark contends the judge was

required to conduct under D.C. Code § 23-110 (c) and related case law. This

appeal, more specifically, is premised on plea counsel‟s alleged failure, upon

becoming fully informed about the breach, to ask the judge for time, before

sentencing, (1) to thoroughly inform Clark about the government‟s actions in

breach of the plea agreement, and (2) to “explain to Clark his legal options,”

including a request to withdraw of his guilty plea.23




      23
          See Santobello v. New York, 404 U.S. 257, 262 (1971); White v. United
States, 425 A.2d 616, 618 (D.C. 1980).
                                         12

      Having lost on direct appeal in Clark I, based on our plain error review of

the trial judge‟s actions, the same appellate counsel now asks us to review Clark‟s

sentence again, this time on collateral attack, focused on the actions of plea

counsel, not the trial judge, in response to the prosecutor‟s undisputed violations of

the plea agreement. Acknowledging that Clark I forecloses a second challenge to

the court‟s failure to reassign the case for resentencing by a different judge, Clark

limits his contention to counsel‟s failure to advise him of the possibility of seeking

withdrawal of his guilty plea.




      A. Shepard Issue



      Before we address the merits, there is a procedural matter we should

acknowledge. In our Shepard decision, we held:



              [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.[24]




      24
           Shepard v. United States, 533 A.2d 1278, 1280 (D.C. 1987).
                                          13


We added that “an appellant may surmount the barrier created by the procedural

default” by showing both “cause” for the failure to bring a timely collateral

challenge and “prejudice” to his claim as a result of that failure.25




      In this case, Clark filed his § 23-110 motion after we had announced our

decision in Clark I but before we issued the mandate. Neither the government nor

the court raised a timeliness issue when the motion was filed, nor does the

government do so in this appeal. More specifically, the government does not

challenge Clark‟s failure to ask for a stay of the mandate in Clark I so that, if the

§ 23-110 motion were denied, the appeal from that denial could be consolidated

with the direct appeal.26 Accordingly, we do not recognize a Shepard barrier here.




      B. Standard of Review



      We turn now to the criteria governing our review. Under Strickland, in

order to obtain a new trial by establishing constitutionally ineffective assistance of


      25
           Id. at 1281.
      26
           See id, at 1280.
                                          14

counsel, the defendant must demonstrate, first, that “counsel‟s performance was

deficient. This requires showing that counsel made errors so serious that counsel

was not functioning as the „counsel‟ guaranteed the defendant by the Sixth

Amendment. Second, the defendant must show that the deficient performance

prejudiced the defense.”27 To demonstrate prejudice, an appellant must show “a

reasonable probability that, but for counsel‟s unprofessional errors, the result of the

proceeding would have been different.”28



      “In evaluating counsel‟s performance, the reviewing court must indulge a

strong presumption that counsel‟s conduct fell within a wide range of reasonable

professional assistance.”29 Tactical decisions at trial “generally do not result in a

finding of ineffective assistance of counsel[;] thus, [a]ppellant bears the burden of

overcoming the presumption of counsel‟s competence.”30 The appellant, however,

is entitled to an ample opportunity to challenge that competence. The statute under

which we review for ineffectiveness, D.C. Code § 23-110, “creates a presumption
      27
           Strickland, 466 U.S. at 687.
      28
           Id. at 694. In Harrington v. Richter, 562 U.S. 86, 112 (2011), the
Supreme Court characterized Strickland prejudice as a “substantial likelihood of a
different result.”
      29
          Chatmon v. United States, 801 A.2d 92, 107 (D.C. 2002) (internal
quotation marks omitted).
      30
           Id.
                                          15

that a hearing should be held, especially where the allegations of ineffectiveness

relate to facts outside the trial record.31 The statute emphasizes that “[u]nless the

motion and files and records of the case conclusively show that the prisoner is

entitled to no relief, the [trial] court shall cause notice thereof to be served upon

the prosecuting authority, grant a prompt hearing thereon, determine the issues,

and make findings of fact and conclusions of law with respect thereto.”32




      Although the decision whether to hold a hearing is committed to the trial

court‟s sound discretion, we have said that “the scope of that discretion is . . . quite

narrow.     Any question regarding the appropriateness of a hearing should be

resolved in favor of holding a hearing. We will affirm the trial court‟s denial of a

§ 23-110 motion without a hearing” — as occurred in this case — “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.”33 Accordingly, we must remand this case for a




      31
        Long v. United States, 910 A.2d 298, 308 (D.C. 2006) (internal quotation
marks omitted).
      32
           Id. (quoting D.C. Code § 23-110 (c) (emphasis added).
      33
           Id. (internal quotation marks omitted).
                                            16

hearing unless we are “satisfied that under no circumstances could [Clark]

establish facts warranting relief.”34




         In addressing this matter, we follow our time-honored standard of review.

“A claim of ineffective assistance of counsel presents mixed questions of law and

fact. We defer to any relevant findings of fact if they are supported by the

evidence but owe no deference on the ultimate question of law.”35




                           V. Appeal of Clark II: The Merits



         In this collateral attack on Clark‟s sentence, counsel essentially argues that,

if the sentencing judge was not required sua sponte to protect Clark‟s right to

remedy a violation of his plea agreement, then assuredly his trial counsel should be

held constitutionally accountable for withholding relevant considerations from

Clark.


         34
              Id.
         35
              Chatmon v. United States, 801 A.2d 92, 102 (D.C. 2002) (citations
omitted).
                                            17



      A. Alleged Constitutional Deficiency of Counsel



      According to the Supreme Court in Florida v. Nixon, “[a] guilty plea . . . is

an event of signal significance in a criminal proceeding.”36



                 [C]ertain decisions regarding the exercise or waiver of
                 basic trial rights are of such moment that they cannot be
                 made for the defendant by a surrogate. A defendant . . .
                 has the ultimate authority to determine whether to plead
                 guilty, waive a jury, testify in his or her own behalf, or
                 take an appeal. . . . Concerning those decisions, an
                 attorney must both consult with the defendant and obtain
                 consent to the recommended course of action.[37]




      As to guilty pleas in particular, the Supreme Court in Santobello, as well as

this court in White, has noted that two remedies are commonly available to a

defendant when the government breaches a plea agreement: withdrawal of the plea

or, at a minimum, sentencing by a judge unaware of the breach. 38 It follows from

this case law that, before sentencing, the defendant must be advised of the breach

      36
           Florida v. Nixon, 543 U.S. 175, 187 (2004).
      37
           Id.
      38
           See Santobello, 404 U.S. 257 at 262; see White, 425 A.2d 616 at 618.
                                         18

and of all available options, including advice from counsel as to whether the

defendant may wish to withdraw the plea if the trial court were to grant that option.

Otherwise, the defendant will have no informed basis for making a decision crucial

to his liberty interest.




       In this case, however, by plea counsel‟s own admission,39 Clark never

received word of the breach until the sentencing proceeding was underway, and

thus he had no opportunity to consider the possibility of sentencing by a different

judge (the issue resolved in Clark I) or of withdrawing his plea (the issue now

before us). Clark instead was the recipient of his counsel‟s “tactical decision”40 to

proceed to sentencing before Judge Keary, who was aware of the breach and the

government‟s lingering, negative views of Clark, in conflict with its concessions

under the plea agreement.




       Fundamental to Clark‟s claim of ineffective assistance of counsel, therefore,

is the contention that his plea counsel was constitutionally deficient in failing to

advise him of the government‟s breach and of all his possible remedies, in time for
       39
            See supra Part III.
       40
            See supra Part III.
                                          19

Clark to make a considered decision and for counsel to present his position to the

court before sentencing. As an abstract proposition, that contention is sound. A

lawyer is an agent; the client is the principal. When it comes to electing among

options before sentencing that will determine the client‟s prison time, a lawyer

cannot ethically or lawfully interdict that choice by acting as the client‟s principal

and justifying that preemptive role as a legitimate tactical decision.41



      We have no doubt that plea counsel acted conscientiously in what she

considered Clark‟s best interest, but evidence of good faith cannot supplant

counsel‟s obligation to consult with the client before acting for him on a plea

bargain decision. We also have no reason to doubt that, if counsel had asked the

judge for time before sentencing to consult with Clark about the options available

after the government‟s breach of a plea agreement, that request would have been

granted.




      41
         See American Bar Association, Standards for Criminal Justice (3d. 1993),
“Control and Direction of Case,” 4-5.2.; id. at 4-8.1; Nixon, 543 U.S. at 187; Jones
v. Barnes, 463 U.S. 745, 751 (1983) (“[T]he accused has the ultimate authority to
make certain fundamental decisions regarding the case, as to whether to plead
guilty, waive a jury, testify in his or her own behalf, or take an appeal. . . .”).
                                         20

      The government, however, embraces the sentencing judge‟s contrary

conclusion that plea counsel‟s decision to continue with sentencing under all the

circumstances was a sound “tactical” choice of a sort that traditionally is left to a

defendant‟s lawyer. The government, for example, equates plea counsel‟s decision

with the common, tactical decision not to call a particular witness. We, however,

cannot agree that a mere tactical decision is involved here. The government‟s

characterization of Clark‟s complaint against plea counsel as “peripheral” and

“immaterial”, when compared to the “reasonableness” of counsel‟s tactical

decision to go forward — without first asking for time to consult with her client

about the plea breach — is just plain wrong.42 That decision is for a counseled

client, not the lawyer, to make, no matter how improvident a plea withdrawal

would be.43



      In his § 23-110 motion, Clark alleged at least five times that counsel had

been obliged — and failed — to explain “what legal options were available,” and

“the risks that each entailed, including assignment of his case to a different

judge. . . .” (Emphasis added). Moreover, in plea counsel‟s declaration filed by the

government, there is clear recognition that Clark was seeking relief from counsel‟s

      42
           See supra note 41.
      43
           See supra note 41.
                                         21

failure, prior to sentencing, to “explore Mr. Clark‟s options” and “consult” with

him about them (emphasis added). Because withdrawal of the plea, in addition to

resentencing before a different judge, was a traditional option, and further because

counsel was obliged to counsel-in-full, even if advising that one or more options

would be ill advised, we are satisfied that Clark‟s motion sufficiently alleged a

constitutional deficiency.




      The government maintains, to the contrary, that Clark has waived his

argument that “counsel was deficient for failing to advise him about whether to

withdraw his plea altogether.”44 It is true, as the government points out, that in

Clark‟s § 23-110 motion he emphasized, explicitly, only one option: “assignment

of his case to a different judge for a new sentencing,” the same option addressed in

Clark I. Indeed, Clark did so at least seven times. (He adverted to plea withdrawal


      44
          Clark appears to concede, at least for purposes of this appeal (to which we
confine the point) that counsel‟s decision as to sentencing — whether by Judge
Keary or a substitute judge — fell within counsel‟s prerogative of making tactical
decisions. “Mr. Clark does not dispute that, had [counsel] consulted with her client
about the full panoply of his legal options, including whether or not he desired to
withdraw his guilty plea because of the government‟s breach, she would have
retained the authority over the tactical decision as to whether to proceed before
Judge Keary or to seek the appointment of a different judge.” This contention is at
odds with Clark‟s contention that, as a fully advised client, he would be entitled to
make all final decisions with respect to the breached plea agreement, without a
“tactical” override by his lawyer. See supra note 42.
                                             22

once, not in the text as part of his argument but in a footnote collecting examples

of a counsel‟s ethical duty to consult.)45



      From Clark‟s motion limited in emphasis to only one option (transfer to a

different judge), we can understand why the government argues waiver of the

deficiency issue based on plea withdrawal. But the issue immediately before us is

not, directly, whether the allegations in Clark‟s motion are insufficient, as a matter

of law, to raise the deficiency issue as to plea withdrawal. In resolving that issue,

we must inquire first whether Clark is entitled to a § 23-110 hearing on his motion

or has forfeited that opportunity by failing to specify the withdrawal option.




      45
          In addition to language referring to options in the plural, appellant Clark,
in the affidavit in support of his motion (quoted above in Part III.), expressly
complained about counsel‟s failure to explain reassignment to a different judge
“even if I did not wish to withdraw my plea” — language the government cites to
suggest that Clark actually had no interest in a plea withdrawal. Perhaps not, but,
without a hearing, who can be sure? His words may have indicated no more than
his understanding that plea withdrawal was among the options about which he
required advice to compare potential consequences; the words are not necessarily
an implicit admission that he no longer had interest in plea withdrawal as a
potentially available option.
                                          23

      Clark has a right to a hearing, in the words of § 23-110 (c), “[u]nless the

motion and files and records of the case conclusively show that the prisoner is

entitled to no relief.”46 Because of the multiple references to “options,” as well as

to a “different judge,” there appears to be a disconnect within the motion that

requires resolution, with some language embracing all available remedies, and

other language appearing to limit the remedy sought. For purposes of resolving

this ambiguity, the statute, § 23-110 (c), requires the reviewing judge to consider

not only the motion itself but also the “files and records” of the case.47 In doing so,

the judge would have noted in Clark‟s handwritten, pro se letter to the trial judge,

headed “Notice of Appeal,” a request to “vacate any and all decisions which

directly relate[] to this flawed plea agreement” — language that arguably embraces

vacation of the plea itself. Furthermore, although Clark characterized his letter as

a “Notice of Appeal,” he presumably was aware that, in the plea agreement (as this

court noted in Clark I),48 he had waived the right of appeal, suggesting that his

letter could just as easily have been construed as a § 23-110 motion directed at




      46
           D.C. Code § 23-110 (c) (2012 Repl.) (emphasis added).
      47
           Id.
      48
           Clark I, 51 A.3d at 1269.
                                          24

undoing his agreement with the government.49 Under these circumstances, we

would not be comfortable concluding as a matter of law, without a hearing, that

Clark limited his § 23-110 motion to the judicial transfer option.




      The government, however, would have us reject any need for a hearing on

the scope of the deficiency issue in Clark‟s motion. It argues that plea counsel did

“not defy prevailing professional norms by failing to raise for discussion a

palpably incredible prospect that would have manifestly increased, not decreased,”

Clark‟s chances for “a sentence of greater than 10 years‟ imprisonment.” With that

statement, the government improperly diminishes counsel‟s professional

obligation. Clark contends that his motion claims the unquestionable right to

advice from his lawyer about all available options, including plea withdrawal, not

just those that his lawyer deems prudent. The government, however, appears to

believe that plea counsel‟s professional obligation will be satisfied if that advice is

limited to options that would only permit the client to make a decision reflecting

sound, not dubious, judgment. Thus, by allowing counsel to narrow the universe


      49
          The government argues that, because Clark chose to treat his letter to
Judge Keary as a notice of appeal, rather than a § 23-110 motion, he cannot have it
serve double duty as, potentially, a motion justifying a challenge to his counsel.
We do not agree that a convicted defendant, acting pro se at the time, cannot rely
on this motion as evidence of his intent as to plea withdrawal.
                                          25

of options based solely on counsel‟s own judgment, the government would leave to

Clark‟s lawyer a slice of the decision that Clark, the client, is ultimately entitled to

make. It may well be that after full disclosure to the client of all options required

of effective counsel, one option (including, perhaps, a plea withdrawal) might be

so irrational, if exercised, that the claim to relief would be “palpably incredible”

and, despite full disclosure, would not “entitle [Clark] to relief”50 — thereby

justifying denial of a § 23-110 hearing.51 But that possibility is not part of the

deficiency analysis; it would go to an alleged failure to show the required

prejudice.



      B. Alleged Prejudice from Counsel’s Deficiency



      We turn, therefore, to prejudice. In denying Clark‟s § 23-110 motion, Judge

Keary concluded, and the government agrees, that the prejudice analysis was

resolved by our decision in Clark I, where we found no plain error — no error


      50
          Long v. United States, 910 A.2d 298, 308 (D.C. 2002) (quoting two of
three situations which this court has said will justify denial of a § 23-110 (c)
motion without a hearing.); see supra Part IV.B.
      51
          Given the mix of specificity and generalization in Clark‟s motion, we
cannot uphold its dismissal as “vague or conclusory,” the third situation we have
said that will justify denial of a § 23-110 (c) motion without a hearing. See id.
The government does not suggest otherwise.
                                           26

affecting Clark‟s “substantial rights” — in the trial judge‟s failure sua sponte to

transfer the case to a different judge for sentencing.52 This conclusion, we are told,

has preclusive effect here: absent the loss of substantial rights, there can be no

Strickland prejudice — no “reasonable probability that, but for counsel‟s

unprofessional errors, the result of the proceeding would have been different.”53

This preclusion argument, however, is overstated when based on Clark I, because

Clark I concerned the alleged loss of substantial rights only from failure to reassign

the case for sentencing. We did not consider in Clark I (because the issue was not

presented on direct appeal) whether counsel‟s alleged deficiency in failing to

advise about the possibility of a plea withdrawal prejudiced Clark. That issue is

now before us.




      If Clark had received counsel about plea withdrawal, was there a

“reasonable probability that . . . the result of the proceeding would have been

different”54 — “a substantial likelihood of a different result”?55 Judge Keary did

      52
           See Clark I, 51 A.3d at 1272.
      53
           United States v. Dominguez Benitez, 542 U.S. 74, 82 (2004).
      54
           Strickland, 466 U.S. at 694.
      55
           Harrington, 562 U.S. at 112.
                                         27

not address that question because she understood Clark‟s § 23-110 motion to seek

only one form of relief — a transfer for resentencing — and concluded that

Strickland prejudice, as the government argued in response to Clark‟s motion, was

“equivalent to” the “third prong of the plain error test.”56 As a result, Judge Keary

ruled that Clark‟s claimed prejudice was foreclosed by this court‟s decision in

Clark I finding no loss of “substantial rights” and thus no plain error from the

failure to reassign sentencing.




      On appeal, the government agrees with Judge Keary but insists in its brief

that, even if Clark I does not foreclose a prejudice inquiry here (because only a

sentencing transfer, not a plea withdrawal, was involved), the judge‟s “purported

failure to discuss alternatives” to going ahead with sentencing “had no material

effect on [Clark‟s] rights or the outcome.” The likelihood of Clark‟s withdrawing

his plea, even if offered the opportunity to do so, was “palpably incredible,”57 says

the government in its brief, if only because a trial would have confronted Clark

with a “10-year mandatory minimum [sentence] on the first count (which his plea

cut by half).” By way of comparison, the sentence he received pursuant to his


      56
           See supra note 20.
      57
           Long, 910 A.2d 298 at 308.
                                         28

plea, fully in conformity with the plea agreement, was only three more years of

incarceration than his counsel had asked for.




      The Supreme Court‟s decision in Dominguez Benitez58 affords the

government a compelling argument. When accepting the defendant‟s guilty plea,

the district court judge had given most of the warnings required by Federal

Criminal Rule 11, but “the judge failed to mention that [the defendant] could not

withdraw his plea if the court did not accept the Government‟s recommendation.”59

Without objection, the judge sentenced the defendant to a term that exceeded the

limit in the plea agreement. In rejecting the defendant‟s request to withdraw his

plea, the Supreme Court found no plain error. The Court held that “a defendant

who seeks reversal of his conviction after a guilty plea, on the ground that the

district court committed plain error under Rule 11, must show a reasonable

probability that, but for the error, he would not have entered the plea,”60 the same

standard applicable to ineffectiveness claims in Strickland. To get there the Court



      58
           See supra note 51.
      59
           Id. at 78.
      60
           Id. at 76.
                                         29

first quoted Kotteakos,61 observing that, “[t]o affect „substantial rights,‟ . . . an

error must have a „substantial and injurious effect or influence in determining

the . . . verdict.‟”62 The Court then cited its more recent decision in Bagley,63

which held that when the burden is on the defendant to show prejudice (instead of

on the government to demonstrate harmlessness), the Court “invoke[s] a standard”

somewhat different from, but “with similarities to,” Kotteakos, namely the

Strickland standard.64 In Bagley, the Court applied Strickland‟s prejudice analysis

to Brady65 claims; in Dominguez Benitez, the Court extended that analysis to plea

withdrawals.




      Clark‟s case ostensibly differs from Dominguez Benitez in one significant

respect. Clark‟s claim concerns a deficiently counseled defendant; Dominguez

Benitez did not. Indeed, plea counsel‟s alleged deficiency in advising Clark was

halfway toward constitutional error, whereas the trial judge‟s Rule 11 error in


      61
           Kotteakos v. United States, 328 U.S. 750 (1946).
      62
           Dominguez Benitez, 542 U.S. at 81.
      63
           United States v. Bagley, 473 U.S. 667 (1985).
      64
           Dominguez Benitez, 542 U.S. at 81.
      65
           Brady v. Maryland, 373 U.S. 83 (1963).
                                         30

Dominguez Benitez did not implicate the Constitution.66 Ultimately, however, this

distinction makes no difference. By importing Strickland’s constitutional standard

for prejudice into plain error review of attempted plea withdrawals based on trial

court error, the Supreme Court did no more than equate plain error review with the

standard already applicable when requesting plea withdrawals generated by

constitutionally ineffective assistance of counsel. In Dominguez Benitez, therefore,

prejudice was determined by whether there was a “reasonable probability” that, but

for the trial court‟s Rule 11 error, the defendant would not have entered his guilty

plea.67 Similarly, in this case, prejudice will be determined by whether there was a

“reasonable probability” that, “but for counsel‟s professional errors,” Clark would

have sought to withdraw his plea. Thus comes our specific question: is there a

reasonable probability that, if counsel had fully informed Clark of all possible

options after the breach, would Clark have asked Judge Keary to permit

withdrawal of his guilty plea.




      66
         In Dominguez Benitez, Justice Souter observed: “[I]n this case . . . [it is]
worth repeating[] that the violation claimed was of Rule 11, not of due process.”
542 U.S. at 83.
      67
           Id. at 82.
                                         31

      Assuredly no one, including an attorney, can properly speak for a defendant

in Clark‟s liberty-deprived situation without consulting him, and thus no one can

be absolutely sure about how Clark would have addressed the situation with all the

facts at hand. Indeed, Justice Souter acknowledged in Dominguez Benitez that a

defendant may make “foolish” choices in going to trial, rather than accepting a

plea bargain, even “absent the error” at issue.68 We cannot tell for sure how Judge

Keary would have reacted to a request for a plea withdrawal if she had believed

that issue was before her,69 but any effort to resolve what her likely decision would

have been would be pointless, for that decision could not stand in the way of

determining the “reasonable probability” of Clark‟s anterior decision whether to

ask for withdrawal.




      68
           Id. at 85.
      69
          See Bennett v. United States, 726 A.2d 156, 165-66 (D.C. 1999)
(explaining the criteria for pre-sentencing plea withdrawal under the “fair and just”
standard; “[T]he factors a trial court must consider when evaluating a motion to
withdraw a guilty plea include: (1) whether the defendant has asserted his or her
legal innocence; (2) the length of the delay between entry of the guilty plea and the
desire to withdraw it; and (3) whether the accused has had the full benefit of
competent counsel at all relevant times. [N]one of these factors is controlling and
the trial court must consider them cumulatively in the context of the individual
case. Moreover, the circumstances of the individual case may reveal other factors
which will affect the calculation . . . under the fair and just standard.) (internal
quotation marks and citations omitted).
                                        32

      In discussing plea counsel‟s alleged deficiency, we have noticed the

possibility from Clark‟s pro se Notice of Appeal that Clark may have been seeking

a plea withdrawal — a matter involving allegedly deficient counsel not raised on

direct appeal in Clark I. And of course we have concluded that, absent a hearing,

we cannot say as a matter of law that Clark had not sufficiently alleged that

deficiency in his § 23-110 motion. At most, however, the evidence suggests a

possibility, not probability, that Clark — if properly counseled — would have

asked to withdraw his plea. We agree with the government that if Clark, before

sentencing, had been counseled about the plusses and minuses of asking to

withdraw his plea, he presumably would have faced a formidable argument by his

lawyer that withdrawal would be irrational, because a trial might well have led to a

ten-year mandatory minimum sentence on the first count (which his plea cut in

half), compared to the sentence he would receive pursuant to the plea agreement

(only three more years of incarceration than his counsel had asked for). Although

plea counsel‟s declaration in response to Clark‟s § 23-110 motion did not address

plea withdrawal, it is difficult to imagine that counsel, advising rationally, would

have supported withdrawal; in fact, counsel‟s moving quickly to retain sentencing

before Judge Keary is evidence that counsel did not favor deep-sixing Clark‟s plea.
                                         33

      All things considered, we conclude that Clark has proffered no reasonable

probability that, but for counsel‟s failure to advise about plea withdrawal, Clark

would have sought to withdraw his plea. Admittedly, we are concluding as a

matter of law, on the record here without a hearing, that Clark presumably would

have followed what his lawyer presumably would have advised: stick with the

guilty plea. On the face of it, reliance on these double presumptions might seem

harsh. But, despite the fact that a defendant is entitled to make foolish judgments

about pleading guilty and going to trial, we are not obliged under § 23-110 to

honor the irrational over the rational. And we can safely say, on this record, that it

is irresistibly clear that no reasonable counsel would have advised Clark to

withdraw his plea.70 Nor does Clark proffer a reasonable argument as to why — in

lieu of sentencing by Judge Keary, as his counsel advised — he would have

wanted to walk away from his plea into the uncertainties of a trial, without an

agreement capping an eventual sentence.71



      70
          We exclude the possibility of a deceased key witness for the prosecution,
for in that case the likelihood of the judge‟s allowing a plea withdrawal would
most likely be nil.
      71
          In Clark I, Clark argued that he should be entitled to withdraw his plea if
— when sentenced by a different judge — “his new sentence exceeds ten years.”
51 A.3d at 1268. Although the thrust of that appeal, as we have indicated above in
Part II., was Clark‟s effort to achieve sentencing before a different judge, not
withdrawal of his plea, this is some evidence that Clark recognized that a plea
                                                               (continued . . .)
                                         34



      Having concluded that Clark has not shown Strickland prejudice from

counsel‟s alleged deficiency, we must say that any need for a hearing on the

deficiency allegations is now moot.


                                       *****


      For the foregoing reasons, the judgment of the trial court is


                                                    Affirmed.




_________________________________
(. . . continued)
withdrawal, without the guarantees built into his plea bargain, would be too
hazardous.
