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                DISTRICT OF COLUMBIA COURT OF APPEALS

                        Nos. 15-CM-1176 and 16-CO-568

                           CLINTON TURNER, APPELLANT,

                                         v.

                            UNITED STATES, APPELLEE.

                         Appeals from the Superior Court
                           of the District of Columbia
                                 (CMD-8679-13)

                       (Hon. Robert E. Morin, Trial Judge)

(Submitted June 22, 2017                                  Decided August 10, 2017)

      Nigel A. Barrella was on the brief for appellant.

      Channing D. Phillips, United States Attorney, and Elizabeth Trosman, Barry
Wiegand, Angela Buckner, and Cara A. Gardner, Assistant United States
Attorneys, were on the brief, for appellee.

      Before BLACKBURNE-RIGSBY, Chief Judge, MCLEESE, Associate Judge, and
REID, Senior Judge.

      REID, Senior Judge: Appellant, Clinton Turner, challenges the trial court‟s

denial of his motion, filed pursuant to D.C. Code § 23-110 (2012 Repl.); the
                                          2

motion alleged ineffective assistance of counsel during his trial for simple assault. 1

Mr. Turner argues that the trial court erred in declining to extend to his case the

Supreme Court‟s ruling in Padilla v. Kentucky, 559 U.S. 356 (2010), to require a

reasonably competent criminal defense attorney to inform him of collateral

employment consequences. He also contends that under Padilla, the trial judge

incorrectly applied the prejudice prong of the ineffective assistance of counsel

standard. For the reasons stated below, we affirm the trial court‟s judgment.



                             FACTUAL SUMMARY



      In October 2013, during his tenure as a Metropolitan Police Department

(“MPD”) officer, Mr. Turner was convicted of simple assault after a bench trial.

The government‟s evidence showed that his conviction stemmed from an incident

at a shoe store where he and another MPD officer, Lewond Fogle, were conducting

a “business check.” The complainant, Daniel Fox, who was working at the store,


      1
         Mr. Turner also filed a direct appeal of his conviction for assault, pursuant
to D.C. Code § 22-404 (2012 Repl.), which was consolidated with his collateral
appeal, but his appellate brief only addresses the appeal relating to the trial court‟s
denial of his § 23-110 motion. In addition, the government makes no argument
related to Mr. Turner‟s direct appeal and notes that Mr. Turner‟s “sole challenge in
these consolidated appeals relates to the trial court‟s denial of his § 23-110
motion.”
                                         3

made an inappropriate comment to Officer Fogle concerning the female store

manager. Officer Turner told Mr. Fox, “Don‟t do anything that will get you fired

or arrested.” The trial judge found that when Mr. Fox made yet another comment,

Officer Turner “grabbed Mr. Fox, pulling him down from his table or seat, and

slammed him into a wall and then to the ground and eventually arrested him.”

Officer Turner pulled some of Mr. Fox‟s hair out while pulling him down. Mr.

Turner testified on his own behalf, explaining that he believed that he was justified

in using reasonable force in arresting Mr. Fox, who was being disorderly. The trial

court found that Mr. Turner‟s version of the events was “not credible and . . . not

supported by any of the objective evidence,” including a video that captured the

encounter.   The court concluded that Mr. Turner used excessive force while

interacting with Mr. Fox and found him guilty of assault.2


      2
          Subsequently, MPD filed administrative charges against Officer Turner
due to his conviction. Initially, Officer Turner was given notice of two charges
(and three specifications) against him. On July 4, 2014, a panel of MPD officers
found that there was not a preponderance of evidence to support Charge 1,
Specification 1 and Charge 2, Specification 1, both relating to alleged violations of
a General Order. The panel found that there was a preponderance of evidence to
support Charge 1, Specification 2 concerning the guilty assault verdict, but the
panel did not believe there was evidence beyond a reasonable doubt that Officer
Turner assaulted Mr. Fox. The first panel recommended “that [Officer Turner] be
returned to full duty as quickly as possible.” However, on July 23, 2014, the
United States Attorney‟s Office advised MPD that it would no longer sponsor the
testimony of Mr. Turner due to the adverse credibility findings against him by the
trial judge in his criminal case. In response, MPD sent Officer Turner an amended
notice of adverse action, listing three charges against him based on his assault
                                                                       (continued…)
                                           4

      Mr. Turner lodged a pro se Motion to File a Belated Appeal on October 3,

2014, arguing that his trial counsel had been deficient. This court interpreted his

motion as a collateral attack under D.C. Code § 23-110.             Mr. Turner also

eventually filed a direct appeal of his assault conviction on October 23, 2015.



      At the June 3, 2016, D.C. Code § 23-110 evidentiary hearing, Mr. Turner‟s

trial counsel, Harold Martin, 3 testified regarding his representation of Mr. Turner

during the assault trial.4 Mr. Martin explained that the defense theory at trial was


(…continued)
conviction, his use of excessive force, and the trial court‟s adverse credibility
finding. A new MPD panel of officers heard the charges on October 29, 2014,
found Officer Turner guilty of all of the charges, and recommended that he be
terminated from employment. MPD sent Officer Turner a final notice of adverse
action, removing him from the force, effective February 6, 2015.

      Mr. Turner and the government indicate that Mr. Turner may be reinstated
as an MPD officer based on a recent decision by the Public Employee Relations
Board relating to Mr. Turner‟s administrative appeal of his termination. Mr.
Turner indicates, however, that MPD has challenged this decision in Superior
Court, and that case has not yet been resolved.
      3
          Mr. Martin‟s law firm “has a prepaid legal services contract with the
Fraternal Order of Police,” and he has represented many officers in cases involving
the use of force. His firm is “precluded from providing any advice or consultation
regarding any administrative matters that involve the District of Columbia
[because] [i]t would be viewed to be a conflict of interests since the [District] pays
[the firm] to administer the legal plan.” The prohibition on representation includes
trial boards.
      4
          Mr. Turner did not testify at the evidentiary hearing.
                                        5

that Mr. Turner “used a reasonable amount of force under the circumstances in the

course of making a valid arrest or detainment for legitimate police purposes.” Mr.

Martin understood that Mr. Turner wanted to testify, and he explained to Mr.

Turner that he did not believe he could avoid conviction without testifying. Mr.

Martin practiced Mr. Turner‟s direct examination with him, talked to him about the

principles of cross-examination, and explained how Mr. Turner might be attacked

on cross-examination. He also generally spoke about the importance of being

truthful. Mr. Martin stated that “[t]here never seemed to be any ambiguity about

[Mr. Turner‟s] understanding of what was the truth and what was falsehood or

what was right and what was wrong.” 5



      Mr. Martin “may have informally discussed” how the criminal trial could

affect Mr. Turner‟s employment with MPD and he informed Mr. Turner that

people “have survived a misdemeanor conviction.” However, he did not have a

detailed discussion with Mr. Turner about the potential administrative

consequences of his criminal case because Mr. Martin believed such a discussion

would be a conflict of interest and would involve speculating about results. Mr.

      5
         In addition, since there was other testimony that supported Mr. Turner‟s
side of the story, “[Mr. Martin] did not see any need to go down the road of
advising him about the dangers of perjury based on the nature of the testimony that
[the court] heard.”
                                            6

Martin did not inform Mr. Turner about any consequences he may face regarding

employment and his ability to testify in future criminal cases due to an adverse

credibility finding by the court. The “focus was on trying to win th[e] trial.” 6



      The trial court denied Mr. Turner‟s § 23-110 motion on June 7, 2016. First,

the court found that trial counsel‟s representation of Mr. Turner was not




      6
          After Mr. Martin testified, counsel for Mr. Turner made oral argument as
to why Mr. Martin‟s representation was constitutionally deficient. When the trial
judge interpreted counsel‟s statements as indicating that “Mr. Martin had to advise
his client not only . . . [that] he needed to testify in order to obtain an acquittal, but
[also] . . . to advise him that . . . if you testify in this case and you are convicted
and the [trial] [c]ourt finds you to be incredible, then you will be terminated from
your employment.” Mr. Turner‟s counsel responded, “I don‟t know that I‟m
asking the [c]ourt to draw that bright a line.” She explained her argument as
follows: “[T]he right to effective assistance of counsel includes th[e] right to give
sound and adequate advice about the decision to testify or not testify, and that . . .
requires a meaningful and thoughtful discussion of some type,” including collateral
consequences. Specifically, Mr. Martin should have advised Mr. Turner “that if he
elected to testify[,] . . . he would automatically be terminated from his job,” and
Mr. Martin should have “explored or investigated” whether the complaining
witness had “an extreme bias or monetary bias or [received] financial gain.” The
government argued that “the employment termination was not automatic, as best
demonstrated by the fact that there were administrative proceedings on the
employment side which resulted in a finding of termination for Mr. Turner.”

      The potential consequences of an adverse credibility finding include Mr.
Turner‟s placement on what is known as the Lewis list, which consists of a list of
police officers who have credibility issues. The creation of the list stems from
Lewis v. United States, 408 A.2d 303, 309 (D.C. 1979).
                                          7

constitutionally deficient.7 Second, the trial judge declared, “Even if [Mr. Martin]

were deficient, however, I would find that [Mr. Turner] has not demonstrated

sufficient prejudice under Strickland v. Washington, [466 U.S. 668 (1984),]

concerning Mr. Martin‟s purported deficient performance in giving advice.” Mr.

Turner appealed the denial of the § 23-110 motion, and this court consolidated his

direct and collateral appeals.




      7
          After referencing and briefly discussing Padilla, supra, the trial court
declared, in part:

                     I don‟t think the law at this point reaches to the
             extent that [Mr. Turner‟s trial counsel] had an
             independent obligation other than giving advice with
             regard to his strategy in the criminal case before the
             [c]ourt, as opposed to any administrative procedure that
             may follow. It doesn‟t take a rocket scientist to
             understand that, regardless of whether the defendant
             testified or did not testify, he was likely to be subject to
             some administrative process upon his conviction. What
             that was was not knowable at the time. And to go further
             and require counsel to assess not only what would
             happen as a result of a conviction, but also what would
             happen if he testified and was convicted, seems to be not
             within the realm of what competent counsel would be
             expected to do.
                                         8

           STANDARD OF REVIEW AND LEGAL PRINCIPLES



      “For purposes of appellate review, the trial court‟s determination of whether

counsel was ineffective presents a mixed question of both law and fact. Otts v.

United States, 952 A.2d 156, 163 (D.C. 2008). “[W]e must accept the trial court‟s

factual findings unless they lack evidentiary support in the record, but we review

the trial court‟s legal determinations de novo.” Id. (citation omitted).8 “Under

Strickland, we first determine whether counsel‟s representation „fell below an

objective standard of reasonableness.‟ Then we ask whether „there is a reasonable

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

proceeding would have been different.‟”9       Hinton, supra, 134 S. Ct. at 1088


      8
        “Strickland recognized that the Sixth Amendment‟s guarantee that „[i]n all
criminal prosecutions, the accused shall enjoy the right . . . to have the Assistance
of Counsel for his defen[s]e‟ entails that defendants are entitled to be represented
by an attorney who meets at least a minimal standard of competence.” Hinton v.
Alabama, 134 S. Ct. 1081, 1087-88 (2014) (per curiam) (citing Strickland, supra,
466 U.S. at 685-87).
      9
          In Padilla, supra, the Supreme Court considered a threshold question
before addressing the Strickland test – “Was advice about deportation
„categorically removed‟ from the scope of the Sixth Amendment right to counsel
because it involved only a „collateral consequence‟ of a conviction, rather than a
component of the criminal sentence?” Chaidez v. United States, 568 U.S. 342, 349
(2013) (quoting Padilla, supra, 599 U.S. at 366). Generally, an attorney must
inform his or her client of the direct consequences of a criminal proceeding, but not
the collateral consequences. With respect to the threshold question, the Padilla
Court concluded that “a lawyer‟s advice (or non-advice) about [a defendant‟s
                                                                       (continued…)
                                           9

(quoting Padilla, supra, 599 U.S. at 366). “[T]he performance inquiry must be

whether counsel‟s assistance was reasonable considering all the circumstances.”

Id. (internal quotation marks omitted). “Judicial scrutiny of counsel‟s performance

must be highly deferential,” and “a court must indulge a strong presumption that

counsel‟s conduct falls within the wide range of reasonable professional

assistance.” Strickland, supra, 466 U.S. at 689. Under the second prong of the

Strickland test, “[a] reasonable probability [of a different result] is a probability

sufficient to undermine confidence in the outcome.” Hinton, supra, 134 S. Ct. at

1089 (internal quotation marks omitted).




(…continued)
guilty] plea‟s deportation risk” is not “exempt from Sixth Amendment scrutiny.”
Id. at 352. It is not exempt because “[d]eportation . . . is unique . . ., a particularly
severe penalty, and one intimately related to the criminal process” in the sense that
“immigration statutes make [deportation] nearly an automatic result.” Id. (internal
quotation marks and citation omitted). The Court further asserted, “Deportation as
a consequence of a criminal conviction is, because of its close connection to the
criminal process, uniquely difficult to classify as either a direct or a collateral
consequence. The collateral versus direct distinction is thus ill suited to evaluating
a Strickland claim concerning the specific risk of deportation.” Padilla, supra, 599
U.S. at 366.
                                          10

                     MR. TURNER’S MAIN ARGUMENTS



      Mr. Turner recognizes that “[t]he Padilla Court itself did not expressly rule

on the prejudice issue in that case.” 10 Nevertheless, he first argues that “other

courts have clarified the sort of prejudice that Padilla requires: the possibility that

the defendant would have rationally pursued an alternate course to avoid the

collateral consequences, and not whether the ultimate question of the defendant‟s

guilt or innocence would have been answered differently.” Second, Mr. Turner

contends that the trial court erred by ruling that his trial counsel‟s assistance was


      10
          Subsequent to the filing of Mr. Turner‟s main brief and his reply brief, the
Supreme Court addressed the prejudice issue in another deportation case, Lee v.
United States, 137 S. Ct. 1958 (2017). Mr. Lee, a noncitizen who was charged
with “possessing ecstasy with intent to distribute,” “feared that a criminal
conviction might affect his status as a lawful permanent resident.” 137 S. Ct. at
1962. After his attorney assured him that he would not be deported if he entered a
guilty plea, Mr. Lee accepted the government‟s plea offer. Id. Mr. Lee “claim[ed]
that he would not have accepted a plea had he known it would lead to deportation.”
Id. at 1969. The Court reiterated Strickland‟s “high bar” and declared that
“[c]ourts should not upset a plea solely because of post hoc assertions from a
defendant about how he would have pleaded but for his attorney‟s deficiencies.”
Id. at 1967. Rather, “[j]udges should instead look to contemporaneous evidence to
substantiate a defendant‟s expressed preferences.” Id. The Court determined that
Mr. Lee‟s claim was “backed by substantial and uncontroverted evidence,” and the
Court “conclude[d] . . . [that he] ha[d] demonstrated a „reasonable probability that,
but for [his] counsel‟s errors, he would not have pleaded guilty and would have
insisted on going to trial.‟” Id. at 1969 (quoting Hill v. Lockhart, 474 U.S. 52, 59
(1985)).
                                         11

constitutionally effective.   He “asks this [c]ourt to hold . . . that reasonably

competent criminal defense counsel in the District would be expected to inform a

client in Mr. Turner‟s circumstances about the effects of an adverse credibility

finding on his employment.” 11



                                    ANALYSIS



        Defense Counsel’s Representation at Mr. Turner’s Criminal Trial



      Based upon our review of the record, our highly deferential standard, and

our consideration of Padilla, we conclude that Mr. Turner‟s trial counsel‟s

representation was not constitutionally deficient; rather it was reasonable under all


      11
          In his reply brief, Mr. Turner responds to the government‟s argument that
he is barred from arguing that the trial court should have applied a Padilla
prejudice standard because he made a different argument in the trial court. Mr.
Turner claims that his trial “counsel‟s deficient performance regarding collateral
consequences was expressly argued in the trial court . . . and Padilla itself was
discussed by the trial judge in his ruling.” Hence, his “claim that he is entitled to
relief under Padilla was argued and decided [in the trial court], and . . . not
waived.” We are satisfied that Mr. Turner raised a claim under Padilla in the trial
court and that the claim has not been waived. See Tindle v. United States, 778
A.2d 1077, 1082 (D.C. 2001) (“[T]he Supreme Court of the United States and this
court have distinguished between „claims‟ and „arguments,‟ holding that although
„claims‟ not presented in the trial court will be forfeited (and thus subject to plain
error review standard), parties on appeal are not limited to the precise arguments
they made in the trial court.”) (internal quotation marks omitted).
                                          12

of the circumstances of this case.       See Hinton, supra, 134 S. Ct. at 1088;

Strickland, supra, 466 U.S. at 689. The trial court found that Mr. Martin had been

in practice since 1983, and many of his cases have involved the use of force by

police officers. The trial court also found that Mr. Martin met with Mr. Turner

“approximately 20 times over the course of two years,” and after hearing the

government‟s evidence at trial, Mr. Martin informed Officer Turner that he would

not be acquitted without testifying.      As the trial court noted, Mr. Martin‟s

impression was that Mr. Turner wanted to testify, to tell his story.



      Mr. Martin met with Mr. Turner, practiced his direct examination, explained

how he might be attacked on cross-examination, and generally discussed the

importance of being truthful but did not focus on the collateral consequences of an

adverse credibility determination. 12 We cannot agree that Padilla dictates a finding

that Mr. Martin was constitutionally deficient in his representation because he did

not explicitly discuss the collateral consequences of an adverse credibility

determination on Mr. Turner‟s employment status as an MPD officer. Padilla is

distinguishable from Mr. Turner‟s case.        The Court described deportation or


      12
          The trial court also conducted an inquiry pursuant to Boyd v. United
States, 586 A.2d 670 (D.C. 1991) to “make sure th[at] [Mr. Turner] wished to
testify.”
                                        13

removal as “unique” because “removal” constitutes a severe “penalty,” is

“intimately related to the criminal process,” and is “nearly an automatic result,”

thereby making it “most difficult to divorce the penalty from the conviction in the

deportation context.” Padilla, supra, 559 U.S. at 365-66 (internal quotation marks

omitted).



      Mr. Turner‟s employment consequences cannot be fairly characterized in the

same way, despite the seriousness of loss of employment. Given that neither Mr.

Turner‟s conviction, nor his adverse credibility finding, mandated termination but

instead subjected him to an administrative proceeding involving an evidentiary

hearing, Mr. Turner‟s employment consequences were not automatic. 13 Unlike

Padilla, where the “consequences of [Mr.] Padilla‟s plea could easily be

determined from reading the removal statute,” 559 U.S. at 369, Mr. Martin would

      13
           First, Mr. Turner argues that Mr. Martin gave him “affirmatively bad
advice” in stating that there have been cases where individuals who are convicted
of a misdemeanor remain police officers. As the government points out, however,
Mr. Turner‟s own evidence shows that Mr. Martin did not provide demonstrably
false information. The panel decision from Mr. Turner‟s second administrative
hearing, which he submitted as evidence for his § 23-110 motion, indicates that
members of MPD have “committed similar offenses [and] have been terminated,
and others have been suspended without pay for like or similar misconduct.”

      Second, testimony from the second panel decision of Mr. Turner‟s
administrative hearing indicates that MPD “currently has officers employed that
the U.S. Attorney has problems with but they are still employed.”
                                           14

have had to jump through several speculative hoops during trial in advising Mr.

Turner of the potential employment consequences of testifying. We agree with the

trial court‟s reasoning, which explained that Mr. Turner‟s request of trial counsel

would have required first predicting the consequences of a conviction where Mr.

Turner had testified and where the court had issued an adverse credibility finding

against him, and then understanding the nature of an administrative process that

might lead to his termination. In short, we agree that Mr. Turner‟s trial counsel

was not obligated to inform Mr. Turner of the potential employment consequences

of a conviction and his decision to testify. 14



        The Prejudice Prong of Padilla/Strickland



      Since we conclude that Mr. Martin‟s representation was not constitutionally

deficient, we need not address Mr. Turner‟s arguments regarding prejudice. 15 See


      14
         Mr. Turner has not brought to the court‟s attention any case affirmatively
extending Padilla to the context of informing defendants of employment
consequences during trial.
      15
          Although we do not address Mr. Turner‟s “prejudice” arguments, we note
that unlike Padilla and Lee, supra, Mr. Turner proceeded to trial on the assault
charge, and he does not suggest that the result might be different following a new
trial at which he did not testify. Moreover, given this court‟s deference to
credibility determinations in the trial court, we see no way in which Mr. Turner
could erase the trial court‟s finding that his testimony was not credible. Nor does
                                                                      (continued…)
                                          15

Strickland, supra, 466 U.S. at 697 (“[T]here is no reason for a court deciding an

ineffective assistance claim to . . . address both components of the inquiry if the

defendant makes an insufficient showing on one.”).



         Accordingly, for the foregoing reasons, we affirm the judgments of the trial

court.



                                               So ordered.




(…continued)
this record – especially Mr. Turner‟s motion of September 2, 2014 (deemed to be a
motion under D.C. Code § 23-110), and his reply to the government‟s opposition
to his motion – contain any evidence supporting a conclusion that he would not
have testified if he had received different advice about the possible employment
consequences of testifying.
