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             DISTRICT OF COLUMBIA COURT OF APPEALS

                 Nos. 98-CF-1088, 98-CF-1425 and 04-CO-1503

                           COLIE L. LONG, APPELLANTS,

                                          V.

                            UNITED STATES, APPELLEE.

                     Appeals from the Superior Court of the
                              District of Columbia
                                 (Fel-2346-96)

                         (Hon. Nan R. Shuker, Trial Judge)

(Argued April 24, 2013                              Decided October 24, 2013)

                          (Amended January 23, 2014)1

      Sydney J. Hoffmann for appellant.

       Suzanne C. Nyland, Assistant United States Attorney, with whom Ronald C.
Machen Jr., United States Attorney, and Roy W. McLeese III, Assistant United
States Attorney at the time the motion was filed, for the appellee.


      1
          After initial publication of this opinion, counsel for appellant, Ms.
Hoffmann, filed a motion asking that the opinion be amended in such fashion that
it would not suggest that her representation of appellant had been ineffective.
Public Defender Service moved to file a brief as amicus curiae in support of
counsel‟s motion. We grant both motions and have amended the opinion for that
purpose by adding footnote 12, and modifying some of the language in Part I of the
opinion.
                                          2

     Before GLICKMAN, Associate Judge, and BELSON and SCHWELB, Senior
Judges.

      BELSON, Senior Judge: Appellant, Colie L. Long, asks this court to recall the

mandate it issued in 2006 after the resolution of his direct appeal in Long v. United

States, 910 A.2d 298 (D.C. 2006) (Long I) and to reconsider our holding in that

case. After evaluating appellant‟s claims, we grant the motion, reconsider our

earlier decision, vacate appellant‟s sentences but not his convictions, and remand

for resentencing.



       An abridged recitation of the history of this case is necessary to understand

the conclusion we reach here.2 On March 19, 1996, appellant “shot and killed

fourteen-year-old Ronald Williamson.” Long I, 910 A.2d at 301. A grand jury

indicted appellant for first-degree premeditated murder and related charges. At
      2
           A more detailed account of the facts can be found in Long I, 910 A.2d
298, in which this panel of the court affirmed appellant‟s convictions but remanded
for a hearing on his motion filed pursuant to D.C. Code § 23-110 (2001), and Long
v. United States, 36 A.3d 363 (D.C. 2012) (Long II), in which this court affirmed
the denial of appellant‟s D.C. Code § 23-110 motion. The dissenting opinion in
Long II sets forth especially detailed information about the background and facts of
the case. 36 A.3d 363, 380-96 (D.C. 2012). It points out, inter alia, that at Long‟s
first trial, the jury was unable to agree upon a verdict on the murder charge; that
prior to that trial appellant Long had rejected a plea bargain that called for a
substantially lighter sentence (a maximum exposure of 100 months imprisonment,
according to appellant‟s counsel, in stark contrast to the life without possibility of
parole (“LWOP”) sentence he is serving); and that certain exculpatory information
admitted at his first trial was not offered at his second trial, at which he was
convicted of first degree premeditated murder, and sentenced to LWOP.
                                           3

appellant‟s first trial, which took place in March 1998, the jury convicted him only

of “carrying a pistol without a license, and a mistrial was declared on the other

charges.” Id. at 303. The government obtained a superseding indictment, and

appellant‟s second trial began on June 22, 1998. Id. At this trial, appellant was

convicted of first-degree premeditated murder while armed,3 conspiracy to commit

murder,4 assault with a dangerous weapon,5 and possession of a firearm during a

crime of violence.6 Id. at 301. After a subsequent hearing, the trial court issued an

order on September 30, 1998, sentencing appellant to life in prison without parole

(“LWOP”). Following the procedure required at that time by D.C. Code § 22-

2404, the trial judge found, beyond a reasonable doubt, that three of the

aggravating factors listed in D.C. Code § 22-2404.17 existed in this case: “(1) that

the murder was especially heinous, atrocious or cruel; (2) that the murder victim

was especially vulnerable due to age; [and] (3) the murder was committed after




      3
          D.C. Code §§ 22-2401, -3202 (1989).
      4
          D.C. Code § 22-105 (a) (1989).
      5
          D.C. Code § 22-502 (1989).
      6
          D.C. Code § 22-3204 (b) (1989).
      7
          Now set forth at D.C. Code § 22-2104 (2012 Repl.).
                                          4

substantial planning.”8 Appellant filed a timely notice of appeal. He subsequently

filed a motion to vacate his conviction pursuant to D.C. Code § 23-110 (2001) on

grounds of ineffective assistance of trial counsel, the denial of which appellant also

appealed.



      Litigation over appellant‟s D.C. Code § 23-110 motion delayed this court‟s

resolution of his direct appeal until 2006. During that time, the Supreme Court

issued a series of decisions, including Apprendi v. New Jersey, 530 U.S. 466

(2000), Ring v. Arizona, 536 U.S. 584 (2002), Blakely v. Washington, 542 U.S. 296

(2004), and United States v. Booker, 543 U.S. 220 (2005), that expanded

constitutional protections for defendants at sentencing.         This court quickly

recognized in other cases that, in light of the Supreme Court‟s decisions, a

defendant is entitled to trial by jury regarding the aggravating factors that can make

a defendant eligible for a sentence of LWOP. In a series of cases, beginning with

Keels v. United States, 785 A.2d 672 (D.C. 2001), this court applied plain-error

review to sentences of LWOP imposed prior to the issuance of Apprendi. Upon

finding plain error, this court reversed and remanded several cases for re-
      8
         In reaching these conclusions, the trial court explained that it had
considered “the evidence presented at trial; the presentence report; a letter sent by
the defendant‟s godmother; and the government‟s memorandum in aid of
sentencing.” The trial court also considered appellant‟s confession, which had
been suppressed prior to the first trial. See Long I, 910 A.2d at 302.
                                         5

sentencing. See id. at 687, see also Robinson v. United States, 890 A.2d 674, 685

n. 19 (D.C. 2006) (Robinson I); Dockery v. United States, 853 A.2d 687, 691 (D.C.

2004).



      Appellant himself took note of the applicability of the Apprendi line of cases

to his own situation. In April 2001, he wrote to his attorney on direct appeal,

Richard Stolker, suggesting that “due to Apprendi v. New Jersey my sentencing to

life in prison without parole is not right (or shall we say unconstitutional). Simply

because the enhancement papers (which were the reasons for my life without

parole sentence in accordance with § 22-2404.1), were not brought before a grand

jury and that all of the aggravating circumstances (especially while attempting to

commit a robbery) were never substantially proven.”9 But counsel did not take any

steps to raise appellant‟s Apprendi issue. Three years later, on July 16, 2004,

appellant filed a pro se Rule 35 (a) motion to correct his sentence, citing both

Apprendi and Blakely.     Appellant argued that, at his sentencing hearing, “the

government presented 4 aggravating factors to the court, which warranted the

imposed sentence of life imprisonment without the possibility of parole. The jury

      9
          Although the government initially noticed before trial that it would seek
life without parole on the grounds that appellant had committed the murder while
attempting to commit a robbery, it did not proceed on that theory after trial and the
trial court did not rely on that factor in reaching its sentencing decision.
                                          6

which deliberated my case held no knowledge of these aggravating factors.” On

August 9, 2004, Appellant‟s Rule 35 motion was denied by the trial court in an

order that did not cite Keels, which this court had decided in 2001. The trial court

sent notice of its denial to appellant‟s counsel on direct appeal. No appeal from

that order was noticed.



      On May 5, 2005, after appellant‟s D.C. Code § 23-110 motion was denied

without a hearing, Mr. Stolker filed a brief on appellant‟s behalf in this court. The

brief cited neither Apprendi nor Keels. Nonetheless, counsel did obtain some relief

for appellant, as this court remanded for a hearing on the D.C. Code § 23-110

motion. Long I, 910 A.2d at 310-11. On remand, Mr. Stolker was replaced as

appellant‟s attorney by Thomas Heslep, on February 2, 2007.              Mr. Heslep

eventually filed a “Renewed Motion for Correction of Sentence” in April 2008.

Referring back to appellant‟s initial pro se filing in 2004, Mr. Heslep cited

Apprendi, Blakely, Keels, and another LWOP case, Robinson v. United States, 946

A.2d 334 (D.C. 2008) (Robinson II). In Mr. Heslep‟s motion, he noted that “Mr.

Long‟s appellate counsel did not raise this issue . . . , although he should have done

so. Nevertheless Mr. Long raised it during the pendency of his appeal.” In its

opposition to Mr. Heslep‟s motion, filed on June 24, 2008, the government pointed
                                          7

out that any claim of deficient representation by appellant‟s counsel on direct

appeal could be litigated in this court only through a motion to recall the mandate.



      Following further procedural steps not pertinent here, see Long II, 36 A.3d at

377-78, the trial court denied Mr. Heslep‟s motion as procedurally barred. In

2012, a divided panel of this court affirmed, holding that Mr. Heslep‟s motion was

procedurally barred by appellant‟s failure to appeal the denial of his pro se motion

in 2004 but, more important, concluding also that Apprendi did not apply

retroactively to collateral attacks because it was neither “a substantive rule nor a

watershed rule of criminal procedure.” Id. at 379. This court did note, however,

that appellant could have pursued his Apprendi claim on direct appeal, “as the

appellant did in Keels v. United States.” Id. at 379 n.12 (citation omitted).



      After the trial court‟s decision in Long II, appellant‟s third post-conviction

counsel, Sydney Hoffmann was appointed on January 7, 2009. She filed on March

28, 2012, the motion to recall the mandate currently at issue. The motion requests

that this court recall the mandate issued after Long I because appellant was

deprived of effective assistance of counsel on his direct appeal when his then

counsel failed to present this court with appellant‟s Apprendi claim. However, as

the government points out, appellant‟s motion was filed well after the expiration of
                                         8

the 180-day period established for such motions by D.C. App. R. 41 (f).10

Accordingly, before evaluating the motion on the merits, our first task is to

determine whether we can and should consider this untimely motion.



                          I.    Rule 26 (b) and “Good Cause”




      Anticipating the government‟s objection, appellant has also requested that

this court exercise its power under D.C. App. R. 26 (b) and “extend the time

prescribed by these rules to” file his motion.11 This court may grant such an

extension only upon a showing of “good cause.” In his motion, appellant argues

that his own prompt and timely efforts to have his Apprendi issue adjudicated on

the merits, despite his and his attorneys‟ failure to identify the proper procedural

mechanism, support a finding of “good cause.” The government responds that

since appellant and his attorneys clearly knew of his Apprendi claim for years

before this motion was filed, appellant must advance a more adequate excuse for

the prolonged failure to move to recall the mandate. However, it is clear to us that

      10
           The mandate in Long I issued on December 1, 2006.
      11
          D.C. App. R. 26 (b) allows the court to either “extend the time prescribed
by these rules to perform any act” or “permit an act to be done after that time
expires.” In whichever of those two categories appellant‟s motion falls, he is
required to show “good cause.”
                                          9

the delay in the filing of appellant‟s motion to recall the mandate has been due to

the failure of counsel to do what was necessary to protect appellant‟s rights under

Apprendi.



      That appellant has not received, overall, effective representation by his first

two post-conviction counsel regarding his Apprendi claim cannot be seriously

disputed. The failure of appellant‟s original counsel on direct appeal to make an

Apprendi argument on that appeal after appellant had requested in writing that he

do so fell below the standards for effective representation articulated in Strickland

v. Washington, 466 U.S. 668 (1984), and its progeny. He also failed to move to

recall the mandate on the ground that he should have advanced appellant‟s

Apprendi claim on direct appeal. This failure is understandable because attorneys

generally cannot be expected to argue their own ineffectiveness. See Hardy v.

United States, 988 A.2d 950, 960 (D.C. 2010).           However, Mr. Heslep, who

succeeded as appellant‟s original counsel while the 180-day window to recall the

mandate was still open, was free to argue the ineffectiveness of previous counsel.

Mr. Heslep‟s motion of April 15, 2008, renewing appellant‟s 2004 pro se Rule 35

(a) challenge, demonstrates that he understood appellant‟s Apprendi claim, was

familiar with this court‟s case law indicating that the claim of ineffective assistance

would have succeeded had it been raised, and recognized that previous counsel
                                        10

ought to have raised the claim on direct appeal. He did not, however, file a motion

to recall mandate within the 180-day period, as required by the rule. Mr. Heslep

later had the benefit of the government‟s response to his motion, which correctly

identified the proper procedural remedy for ineffective appellate counsel: a motion

to recall the mandate. Clearly, after that response, counsel ought to have filed a

motion to recall mandate.



      We therefore confront this question: do appellant‟s extraordinary personal

efforts to assert his Apprendi claim constitute good cause sufficient to warrant the

granting of the requested lengthy extension of time under Rule 26 (b)? Initially,

we note that this court has not yet rendered an opinion explaining what constitutes

“good cause” in the context of our Rule 26 (b). However, we have interpreted a

variety of rules that require a showing of “good cause,” or its cousin, “excusable

neglect,” to forgive a party‟s delay in acting. See, e.g., Restaurant Equip. &

Supply Depot v. Gutierrez, 852 A.2d 951 (D.C. 2004) (discussing “good cause” in

Super. Ct. Civ. R. 55 (c)); Mizrahi v. Schwarzmann, 741 A.2d 399 (D.C. 1999)

(“good cause” in Super. Ct. Civ. R. 16 (b)(6), 26 (e), (g)); Wagshal v. Rigler, 711

A.2d 112 (D.C. 1998) (discussing “good cause” in Super. Ct. R. Civ. 41 (b));

Lynch v. Meridian Hill Studio Apts., 491 A.2d 515 (D.C. 1985) (analyzing what

constitutes “excusable neglect” under Super. Ct. Civ. R. 60 (b)(1)); Railway Exp.
                                          11

Agency, Inc. v. Hill, 250 A.2d 923 (D.C. 1969) (same). We also have the benefit

of several cases from the United States Courts of Appeals, some of which we cite

below, interpreting the “good cause” standard of Federal Rule of Appellate

Procedure 26 (b), which is similar to our own. Accordingly, we look to the

concepts articulated in those cases when determining what standard to apply in

analyzing Rule 26 (b).



      “Although we have not squarely defined „good cause,‟ our cases establish

that good cause is to be determined „in the light of the circumstances of each

case.‟” Restaurant Equip., 852 A.2d at 956 (citation omitted). “In making that

determination, this court has always found the moving party‟s reasons for failing”

to comply with the applicable rule “to be a key consideration.” Id. at 956-57. In

general, mere “inattendance to office chores and good faith mistakes are not

sufficient to show good cause.” Mollura v. Miller, 621 F.2d 334, 335 (9th Cir.

1980); see also Restaurant Equip., 852 A.2d at 956-57 (no “good cause” where

party claimed it “inadvertently „forgot‟ to file” answer). It is especially significant

here that our cases also require consideration of the prejudice that would result to

either party from the grant or denial of the extension, and a “balanc[ing of the]

efficiency of the court system” with “our preference for decisions” on the merits.

Mizrahi, 741 A.2d at 404.
                                         12



      Generally, an attorney‟s mistake of law or lack of “due diligence” will not

excuse a failure to comply with court rules.         See Lynch, 491 A.2d at 518.

However, this court has granted relief in exceptional cases where an attorney‟s

conduct was so plainly contrary to “his express instructions or his implicit duty to

devote reasonable efforts in representing his client, provided that the client himself

is diligent in pursuing the claim.” Id. at 519 (internal quotation marks and citation

omitted). We think such an exception is most appropriate in this case. Appellant

brought his Apprendi claim to the attention of his counsel on direct appeal over a

decade ago, and has attempted to litigate it, with and without the assistance of

counsel, ever since. See Citizens Bldg. & Loan Ass’n of Montgomery Cnty. v.

Shepard, 289 A.2d 620, 623 (D.C. 1972) (affirming grant of relief, despite delay of

over four years, where “appellees‟ express instructions (to file an answer) were

ignored” and where defaulting parties “„used reasonable and extreme diligence‟ in

attempting to protect their rights”). We conclude that in two instances appellant‟s

attorneys acted in violation of either their “express instructions” or their “implicit

duty to devote reasonable efforts” to appellant‟s representation.12         Appellant


      12
          The conclusion that appellant‟s counsel acted in violation of either their
“express instructions” or their “implicit duty to devote reasonable efforts” to
appellant‟s representation was based upon the entirety of the representation he
received from his first two post-conviction counsel. Specifically, Mr. Stolker,
                                                              (continued . . .)
                                         13

himself, on the other hand, made extraordinary efforts to obtain a resolution of his

Apprendi claim, even writing his counsel on direct appeal advising him of the

applicability of Apprendi, and filing his own motion for relief on that ground.

Accordingly, we conclude that appellant has shown good reason for his failure to

move to recall the mandate at an earlier date.


(. . . continued)
appellant‟s counsel on direct appeal, did not represent appellant in a manner that
satisfied the Strickland standard in that he did not raise the Apprendi issue on
direct appeal, even though appellant had written him a letter in which he asked him
to do so. Appellant‟s next counsel, Mr. Heslep, sought collateral relief in a
generally appropriate way, but failed to file a motion to recall mandate of this court
within 180 days as required by our Rule 41 (f), thus putting appellant in the
position of having first to show good cause under Rule 26 (b) for his failure to do
so in order to be able to demonstrate his entitlement to that relief. This is not to
state any conclusion as to whether appellant‟s representation by Mr. Heslep was
ineffective under Strickland.

        Ms. Hoffmann, upon replacing Mr. Heslep, continued to seek collateral
relief, persuading one member of the panel that considered Long II that appellant‟s
conviction should be set aside. She filed a motion to recall mandate after collateral
relief had been denied, by which time an additional three years had elapsed
following conviction. The government argues that Ms. Hoffmann “cannot allege
her own ineffectiveness to explain that [further] delay,” and is therefore not in a
position to cite the passage of that time without action by counsel as part of
appellant‟s showing of good cause to excuse failure to seek recall of the mandate
in timely fashion. We do not believe that Ms. Hoffmann‟s representation can be
deemed ineffective. Because the time to file a motion to recall had expired well
before Ms. Hoffmann‟s appointment as counsel, the passage of that time while she
pressed the motion for collateral relief in Long II did not add significantly to
appellant‟s burden to show good cause, and no additional prejudice to the
government has been suggested. Her representation in seeking collateral relief was
of a high order, and her success in securing the recall of the mandate in this
complex matter speaks for itself.
                                          14



      In analyzing the remaining considerations, we note that the government has

not identified any prejudice it suffered as a result of appellant‟s untimely filing.

Given that appellant stands sentenced to serve an unconstitutionally-imposed

sentence of LWOP, our weighing of the prejudice to each party in this case clearly

favors appellant. We are also mindful of our preference for decisions on the

merits, and do not think that the efficiency of our court system will be harmed by

our deciding appellant‟s Apprendi claim on the merits.13 Apprendi was decided

thirteen years ago and, given the unique nature of appellant‟s pursuit of his claim

in this case, we see little risk that our decision here will call into question the

finality of mandates in more than a very few other cases. Accordingly, for these

reasons, we conclude that appellant has shown good cause and permit him to press

his motion to recall the mandate after the expiration of the time for bringing such a

motion. We now consider appellant‟s motion to recall the mandate on the merits.




      13
           Although this court considered appellant‟s Apprendi claim to a limited
extent in Long II, the procedural posture of that case, an appeal of the rejection of a
collateral attack, foreclosed a consideration of appellant‟s claim “on the merits.”
36 A.3d at 379. As this court noted in Long II, the proper occasion for appellant‟s
Apprendi argument was his direct appeal. Id. at n.12. Since appellant now
persuades us to revisit his direct appeal, the earlier decision of this court in Long II
does not stand in the way of our application of Apprendi here.
                                         15



              II.    Appellant’s Motion to Recall the Mandate



      The proper procedural vehicle under our case law for presenting this court

with a claim of ineffective assistance of appellate counsel is a motion to recall the

mandate. Watson v. United States, 536 A.2d 1056, 1060 (D.C. 1987) (en banc).

On receiving such a motion, this court will determine whether the movant has

satisfied his or her “heavy initial burden” of “set[ting] forth in detail a persuasive

case for recall of the mandate.” Id. The movant must “give „chapter and verse‟”

and demonstrate with “factual support” a claim of constitutional ineffectiveness, a

standard “quite familiar to the court.” Id.; see Strickland, 466 U.S. at 685-98. In

order to succeed, a movant is required to show not just that “the court‟s opinion on

the first appeal was wrong” but also that the court‟s opinion “would not have been

wrong but for the ineffective assistance of counsel on the first appeal.” Watson,

536 A.2d at 1058.14 Once we determine that the motion has merit, “[t]his court

will pursue a claim of ineffective assistance of appellate counsel . . . by recalling

the mandate and reopening the movant‟s appeal in order to fully explore and then

decide whether there was ineffective assistance of counsel on the first appeal.” Id.

      14
          A court‟s opinion can be deemed “wrong” on the basis of changes in the
law that occurred pending direct appeal.
                                          16

at 1061. In this opinion, we will expedite matters by combining our discussion of

the motion‟s merit with the resolution of appellant‟s claim of ineffective assistance

of appellate counsel.15



                            A. Deficient Performance



      In order for appellant‟s claim of ineffective assistance of appellate counsel to

succeed, appellant must demonstrate (1) that the “performance of counsel fell

below an objective standard of reasonableness” and (2) that appellant suffered

“prejudice, i.e., it must be established that there is a reasonable probability that but

for counsel‟s unprofessional errors, the result of the proceeding would have been

different.” Griffin, 598 A.2d at 1176 (internal citations and quotations omitted).

Here, the deficiency of appellant‟s counsel on direct appeal is clear.          As the

government concedes, “it is unlikely that appellant‟s counsel had strategic reasons


      15
          In other cases, this court has first issued an order granting the motion to
recall the mandate, and then later issued an opinion on the merits of the re-opened
appeal. See Griffin v. United States, 598 A.2d 1174 (D.C. 1991); Streater v.
United States, 478 A.2d 1055 (D.C. 1984). We combine those procedural steps in
this opinion because, in this case, resolution of the question of the motion‟s merit
and resolution of appellant‟s re-opened appeal require an examination of the same
issues, so that a ruling on one is essentially a decision on the other. Since both
parties have presented this court with their preferred remedies should we elect to
remand the direct appeal for resentencing, we perceive no barrier to a streamlined
approach in this case.
                                          17

for not pursuing” the Apprendi issue on direct appeal. We agree and cannot

conceive of any reasonable “professional judgment” which would lead an attorney

to disregard an issue which, at the time of appeal, would likely have resulted in the

vacating of appellant‟s LWOP sentence and the remand of the case for

resentencing. See Dockery, 853 A.2d at 700; Keels, 785 A.2d at 687. As we have

said in other cases, “a single error of counsel may constitute ineffective assistance

of counsel if the error is sufficiently egregious and prejudicial.” Griffin, 598 A.2d

at 1177-78. This is such a case.



                                     B. Prejudice



      Next, we ask whether the failings of appellant‟s counsel on direct appeal

affected this court‟s decision. In other words, we ask whether this court, had it

been briefed on appellant‟s Apprendi issue, would have affirmed the judgment of

conviction, including, as it did, his sentence to LWOP. Since the resolution of this

question will also resolve appellant‟s Apprendi claim on the merits, we will

proceed to apply this court‟s “plain error” analysis to that question.




      III.   Applying “Plain Error” Review to Appellant’s Apprendi Claim
                                          18



      “„[W]here the law at the time of the trial was settled and clearly contrary to

the law at the time of appeal,‟ as in this case, „it is enough that an error be plain at

the time of appellate consideration.‟” Keels, 785 A.2d at 682 n.7 (quoting (Joyce)

Johnson v. United States, 520 U.S. 461, 468 (1997)). Appellant, therefore, must

demonstrate that (1) there was Apprendi error, (2) the error was plain, (3) the

Apprendi error “affect[ed his] substantial rights,” and (4) “the error seriously

affects the fairness, integrity, or public reputation of judicial proceedings.”

Johnson, 520 U.S. at 467 (internal citations, brackets, and quotation marks

omitted). If the first three elements have been established, it is for the appellate

court to decide, in the exercise of discretion, whether to notice the error. Id. In

this case, the trial court made factual findings, beyond those made by the jury, to

determine appellant‟s eligibility for an enhanced sentence of LWOP. There can be

no dispute that, in light of Apprendi, the trial court‟s error is now clear. See Keels,

785 A.2d at 682-84. Appellant has satisfied the first two prongs of plain error

review.


                          A. Appellant’s “Substantial Rights”



      To demonstrate success on the third prong, that the error affected his

substantial rights, appellant has to “show a „reasonable probability‟” that, but for
                                        19

the trial court‟s error, appellant would not have been sentenced to LWOP. Ingram

v. United States, 40 A.3d 887, 899 (D.C. 2012) (quoting United States v.

Dominguez Benitez, 542 U.S. 74, 81-82 (2004)); see also Zanders v. United States,

999 A.2d 149, 161 (D.C. 2010).        Put differently, appellant must “satisfy the

judgment of the reviewing court, informed by the entire record, that the probability

of a different result is „sufficient to undermine confidence in the outcome‟ of the

proceeding.” Dominguez Benitez, 542 U.S. at 83 (citing Strickland, 466 U.S. at

694).




        This court has recognized that the relevant question in this context, as

explained by the Supreme Court in Washington v. Recuenco, 548 U.S. 212 (2006),

is whether it can be “determined . . . that, had the sentencing factor been properly

submitted to the jury, the jury would have found the element proved beyond a

reasonable doubt.” Robinson II, 946 A.2d at 339 n.8. Thus, we engage in inquiry

like that previously used for determining whether or not the omission of an element

of a crime from a jury instruction has prejudiced the defendant. See Neder v.

United States, 527 U.S. 1 (1999). In Recuenco, the Supreme Court analogized to

Neder, explaining that the key question for harmfulness is “whether the jury would

have returned the same verdict absent the error.” Recuenco, 548 U.S. at 221; see

also Kidd v. United States, 940 A.2d 118, 126 (D.C. 2007) (applying Neder, and
                                         20

finding no reversible error where evidence was strong regarding defendant‟s mens

rea, even though mens rea language was erroneously omitted from aiding and

abetting jury instruction).




                B. The Trial Court’s Findings and the Evidence at Trial



        As noted earlier, the trial court found three aggravating factors present in

appellant‟s case. Following a short sentencing hearing, the trial court issued its

findings of fact. The court found “that the murder of Ronald Williamson was

especially heinous, atrocious and cruel. [Appellant] murdered a youngster who

was his friend. The manner in which he executed Williamson — shooting him;

walking away; re-loading his gun; and walking back to put a final shot into

Williamson‟s head — shocks the conscience of the community.” The court also

concluded that “Ronald Williamson was an especially vulnerable victim, due to his

age.”    Last, the court concluded that appellant “committed this murder after

substantial planning” because he “made repeated statements to his friends

regarding his intent to murder Williamson and he waited outside the apartment
                                         21

door where Williamson stayed that night, waiting for Williamson to leave the

building. [Appellant] then followed Williamson into the alley and shot him.”

Were we reviewing these findings for sufficiency in the light most favorable to the

government, we might affirm. However, because the findings were arrived at

through an unconstitutional procedure, we ask instead whether the evidence so

strongly supported the trial court‟s conclusions “that, had the sentencing factor

been properly submitted to the jury, the jury would have found the element proved

beyond a reasonable doubt.”        Robinson II, 946 A.2d at 339 n.8; see also

Dominguez Benitez, 542 U.S. at 83.



      After reviewing the record as a whole, we cannot comfortably conclude that

there is the requisite degree of probability that, had a jury been asked to decide the

presence of the aggravating factors, it would have reached the same conclusion that

the trial judge reached. In our estimation, reasonable minds could well have

disagreed about whether this murder was “especially heinous, atrocious, or cruel,”

a standard that requires a conclusion that this murder was worse than most first-

degree premeditated murders. See Rider v. United States, 687 A.2d 1348, 1355

(D.C. 1996) (emphasis added).
                                       22

      In this case, the jury heard extensive testimony about an armed feud between

two groups of young men that had been going on for several weeks before Long

shot Williamson. The testimony of several different witnesses established that

although appellant and Williamson had once been friends and roommates, a falling

out between two brothers — James and Tracy Rauch — split Long and Williamson

into rival camps. Williamson, and another man, Macellus Thompson, moved out

of the apartment that they and Tracy Rauch had shared with appellant, James

Rauch, and William Tilghman. Thompson moved in with Tracy Rauch and his

girlfriend, while Williamson began staying with his mother. After moving out of

James‟s apartment, Williamson and Thompson were present on another occasion

when Tracy fought his brother James there. Later that day, James Rauch and one

of his associates, a man called Peanut, came upon Tracy Rauch, Williamson, and

Thompson. Another fight broke out, and James stole Tracy‟s vest and phone.



      The following morning, Tracy Rauch, Thompson, and Williamson, the

murder victim here, went to James Rauch‟s apartment, where appellant and

Tilghman were present. The three intruders took a television and some coats

before “kick[ing] the phone jacks out” and destroying some video games.

Although others disputed his account, appellant would later claim that during the

encounter Tracy Rauch struck him with one gun and Williamson threatened him
                                        23

with another. Thompson testified that his ally Williamson had a baseball bat, but

no other weapons. In any event, bad blood remained between the two groups of

men.    Tilghman testified that “if [Williamson] had a got the chance to get

[appellant], he would have got him.”



       Williamson not only participated in these conflicts, he was also armed in

various ways. There was undisputed evidence that Williamson had with him a

starter pistol he sometimes carried.    Tilghman also testified that Williamson

sometimes carried other “real guns,” including a .38 revolver and “some type of

shotgun . . . something like a .22 or something.” On the day of the murder,

Tilghman saw Williamson with a gun on two occasions, including once, hours

before the murder, in the apartment building where appellant, James Rauch, and

Tilghman lived. The jury also heard testimony from Tilghman suggesting that,

shortly before appellant fired his gun, Williamson began to reach towards his waist

as though going for a weapon.16 After the murder, the police recovered a starter

pistol, which looked like a real gun but was incapable of firing a projectile, near

Williamson‟s body.




       16
          Tilghman did testify that he did not “know what [Williamson] was
reaching for.”
                                         24

         We do not recount these events to suggest some post hoc justification for

appellant‟s actions, but rather to place this particular premeditated murder in

context. This was an escalating feud between two groups of young men, both of

whom had been armed in various ways throughout. The victim had participated in

the conflict; carrying, at least, a baseball bat during a bold and aggressive burglary

and possibly threatening appellant with a gun while committing that crime. The

victim was known to carry weapons, was actually carrying a starter pistol at the

time of his death, and may have attempted to draw it when confronted in the dark

alley.



         All premeditated murders are to some degree heinous, atrocious, and cruel,

but in order to sentence a defendant to LWOP, the murder must be especially

heinous, atrocious, and cruel. Rider, 687 A.2d at 1355. Thus, the law compels an

evaluation of the circumstances of the crime, and an examination of both “the

murderer‟s state of mind” and “society‟s view of the murder as compared with

other murders.”17 Id. Here, we have a crime involving two people who had spent



         17
           We do not address appellant‟s “vagueness” challenge to the
constitutionality of this factor, see Rider, 687 A.2d at 1354 (resolving statute‟s
constitutionality under earlier procedures for imposition of life-without-parole),
because it was raised for the first time at oral argument on appeal. In re
Zdravkovich, 831 A.2d 964, 972 (D.C. 2003) (in bar discipline case, explaining
                                                             (continued . . .)
                                        25

the preceding weeks as members of hostile armed groups. Although appellant‟s

homicide was without legal justification, it was not committed at random against

an unsuspecting member of the community, but rather in revenge against the

perpetrator of an earlier crime who may have acted as though he was armed at the

time of the shooting. Id. (describing “random” killings as among those considered

especially heinous, atrocious and cruel); see also Parker v. United States, 692 A.2d

913, 917 n.6 (D.C. 1997) (affirming finding of “extremely heinous atrocious or

cruel murder” in part because “the attack on [the victim] was unprovoked”).



      Further, appellant‟s crime is not clearly within the class of murders

discussed by the Committee on the Judiciary when the Council of the District of

Columbia enacted its LWOP statute. Rider, 687 A.2d at 1355. Appellant did not

“tie[ ] and gag[ ]” Williamson before killing him, nor was this shooting “just for

the fun of it.” Id. Appellant also did not torture Williamson or inflict gratuitous

suffering. Cf. Parker, 692 A.2d at 917 n.6 (murderer left victim of unprovoked

attack, who was “cognizant of her injuries,” “to die” and suffering “excruciating

pain, physical and mental”); Rider, 687 A.2d at 1350-51, 1356 (affirming trial

court‟s finding on “especially heinous, atrocious, and cruel” where, after striking

(. . . continued)
that an “argument was raised for the first time at oral argument” and therefore
declining to “consider it”).
                                         26

fatal blow with a heavy object, defendant disfigured victim‟s genitalia with a knife

while the victim was still breathing); Henderson v. United States, 678 A.2d 20, 23

(D.C. 1996) (murder committed during burglary “especially heinous atrocious or

cruel” because “the death in this case was a form of torture” as victim was stabbed

repeatedly and had her throat cut before eventually being strangled). Considering

that the courts deal with a significant number of seemingly more inhumane crimes,

we cannot conclude that a jury would have agreed with the conclusion the trial

court reached on this factor, even if we cannot label the trial court‟s decision

“wrong.” After Apprendi, the decision is not the trial court‟s to make, and we can

affirm only if we have confidence that a jury would reach the same outcome. For

the reasons we have given above, we do not.18




      18
           We note the trial court‟s use of appellant‟s suppressed confession in
making its findings of fact and conclusions of law in connection with sentencing.
The trial court used appellant‟s confession, at least in part, to reach its conclusion
that appellant actually was the shooter. We observe that there is now substantial
doubt that a jury charged with deciding whether aggravating factors were present
in this premeditated murder case would be permitted to consider appellant‟s
confession. Some members of the jury had, at one point, given the impression that
they might have decided the specific factual question of whether appellant was the
shooter differently, even though it ultimately had no impact on the verdict because
of the principles of co-conspirator liability. See Long II, 36 A.3d at 393-94
(Schwelb, J. dissenting) (describing trial court‟s affirmative response to jury note
asking if appellant could be convicted upon a finding that either appellant or
Tilghman murdered Williamson).

                                                                (continued . . .)
                                         27



      Having found that appellant would be entitled to vacation of the trial court‟s

findings on one of the aggravating factors, the especially heinous nature of the

crime, we need not examine the quality of the proof underlying the two remaining

aggravating factors that the trial court found present. In Keels, we held that



(. . . continued)
         Although it was admissible at the time, see United States v. Acosta, 303 F.3d
78, 84 (1st Cir. 2002) (noting that “ten other circuits have ruled that in most
circumstances, the Fourth Amendment exclusionary rule does not bar the
introduction of suppressed evidence during sentencing proceedings”), we are not
confident that evidence suppressed for the purposes of determining proof of the
elements of a crime may be admitted when a jury considers proof of sentencing
factors. The Supreme Court has ruled that “elements” and “sentencing factors”
cannot be meaningfully distinguished when proof of either exposes a defendant to
greater punishment. See Ring v. Arizona, 536 U.S. 584, 602-09 (2002) (discussing
the case law on elements and “aggravating factors” before ruling that aggravating
factors which increase the maximum punishment available for a crime are “the
functional equivalent of an element of a greater offense.” (quoting Apprendi, 530
U.S. at 494 n. 19)). Further, in the analogous setting of a death penalty sentencing
trial, the federal courts have excluded evidence on constitutional grounds. See,
e.g., United States v. Fell, 360 F.3d 135, 145 (2d Cir. 2004) (noting that at a
sentencing trial under the Federal Death Penalty Act, “it remains for the court, in
the exercise of its judgment and discretion, to ensure that unconstitutional evidence
otherwise admissible under applicable evidentiary rules is excluded from trial”).

       Accordingly, we are doubtful that the general inapplicability of the
exclusionary rule at sentencing still holds when the sentencing hearing is actually
being conducted to prove defendant‟s guilt of what are, functionally, elements of a
crime. Thus, although the other considerations we have explained are sufficient to
keep us from concluding that the jury would have found the murder especially
heinous, the issues raised by the trial judge‟s consideration of the confession
further undermine our confidence that the jury would have reached the same result
reached by the trial judge.
                                          28

“[b]asic fairness thus requires that the trial judge conduct the sentencing of

[appellant] un-influenced by a misapprehension as to the extent of his eligibility

for a punishment as severe as LWOP.” 785 A.2d at 687. In that case, even though

one of the aggravating factors had been proven to the jury, we remanded for

resentencing after concluding that two other aggravating factors were considered

unconstitutionally by the judge. Id. at 686-87. Here, we follow a similar approach.

Appellant has demonstrated that he was prejudiced by the trial court‟s actions with

regard to at least one factor under Apprendi and Recuenco. Provided he can satisfy

the fourth prong of the plain error test, he will be entitled to a remand for re-

sentencing.



                      C. The Fourth Prong of the Plain Error Test



      Appellant has established that he was prejudiced by a plain Apprendi error.

If he can also show that “the error seriously affects the fairness, integrity, or public

reputation of judicial proceedings,” then this court may, in the exercise of

discretion, decide to notice the error. Johnson, 520 U.S. at 467 (internal citations
                                         29

and quotation marks omitted).19 Our holding in Keels makes it clear that the fourth

prong should be deemed satisfied here.



      In Keels, as in this case, appellant had been sentenced to LWOP by the trial

judge before the Supreme Court decided Apprendi. We permitted counsel for

appellant in Keels to file a supplemental brief raising the Apprendi issue. In

imposing LWOP, the trial judge had relied on three aggravating factors. We were

satisfied that one of them — that the first degree felony murder had been

“committed while committing or attempting to commit a robbery,” Keels, 785

A.2d at 686 — was coextensive with the jury‟s finding that Keels was guilty of

that charge. The remaining two factors on which the trial judge based the sentence

to LWOP, however, were not matters that the jury had been called upon to decide.

Concluding that the misconception as to the number of aggravating factors

properly before her may have seriously affected the judge‟s exercise of sentencing

discretion, we stated:



      19
          At oral argument, the government conceded that this court could take into
account the entire history of this case, as distinguished from limiting our
consideration to the proceeding in which Long was convicted and sentenced, when
determining whether the fourth factor had been satisfied. As we find it
unnecessary to look beyond the proceeding in question, we will not decide whether
it is appropriate to look beyond that proceeding to determine whether the fourth
element is satisfied.
                                         30



             Basic fairness thus requires that the trial judge conduct
             the sentencing of Keels uninfluenced by a
             misapprehension as to the extent of his eligibility for a
             punishment as severe as LWOP. See generally United
             States v. Tucker, 404 U.S. 443, 448-49 (1972); In re L.L.,
             653 A.2d 873, 889 (D.C. 1995) (“Where a judge, in
             exercising her discretion, has . . . misapprehended the
             applicable legal principles, we often remand the case for
             reconsideration under the correct standards.”); cf.
             (James) Johnson v. United States, 398 A.2d 354, 365
             (D.C. 1979).


Keels, 785 A.2d at 687 (emphasis added). On the basis of our conclusion that the

requirements of basic fairness had not been met, this court rejected the

government‟s contention that Keels had not met the fourth part of the standard for

plain error. Id. at 682, n.7 & 687.



      In the case before us, the lack of fairness is more obvious than in Keels.

Here the jury had not made findings coextensive with any of the three aggravating

factors on which the trial judge based the imposition of LWOP. Accordingly, we

conclude that the public reputation of judicial proceedings would suffer if we

allowed appellant‟s sentence to stand.



                              IV.     Conclusion and Remand
                                         31



      For the foregoing reasons, we grant appellant‟s motion to recall the mandate

as sufficiently meritorious, and after re-opening appellant‟s direct appeal, we

conclude that appellant was prejudiced by the ineffective assistance of his

appellate counsel. Therefore, we remand for resentencing.20 When remanding for

the correction of similar errors in the past, this court has vacated all the sentences

imposed on a defendant in order to afford the trial court “the opportunity to

resentence on all charges as the structure of the entire sentence may have been

affected by the LWOP sentence for first-degree murder.”21 Dockery, 853 A.2d at

701. The government has requested that we take a similar approach in this case.22


      20
            The mandatory minimum for first degree premeditated murder is 30
years. D.C. Code § 22-2104 (2001). While this is far less onerous than LWOP, it
is nevertheless a very substantial sentence. The dissenting opinion in Long II
noted that prior to the first trial Long had been offered a favorable plea agreement.
36 A.3d at 396. Long‟s present counsel informs the court that the proposed
agreement would have exposed Long to a sentence of eight years and four months,
and that he would have been eligible for sentencing under the Youth Corrections
Act. Long preferred to stand trial.
       21
           Under Keels, appellant will have to be resentenced in compliance with
Apprendi. See Keels, 785 A.2d at 687 (remanding for the trial court to “impose
sentence with appreciation of the limits Apprendi imposes on the determination of
eligibility for [life without parole].”).
      22
          At one point in these proceedings, the government requested that, if this
court should decide to remand, we also permit the government to present evidence
of appellant‟s “guilt” of the sentencing factors to a new jury. At oral argument, the
government withdrew this request, and requested that we follow the Dockery
approach described above. We rely on the government‟s affirmative waiver and do
                                                                 (continued . . .)
                                        32

Consistent with our precedent in similar cases, we order all of appellant‟s

sentences associated with this verdict vacated so that the trial court may structure

an appropriate sentence on remand.

                                                   So ordered.




(. . . continued)
not address the issues discussed at oral argument relating to such a jury
proceeding. We offer no opinion regarding issues that might be raised at a second
trial on sentencing factors before a new jury in this case.
