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              DISTRICT OF COLUMBIA COURT OF APPEALS

                                   No. 18-CO-73

                       JAMES EARL BLACKMON, APPELLANT,

                                           V.

                             UNITED STATES, APPELLEE.

                          Appeal from the Superior Court
                           of the District of Columbia
                                 (CF1-21355-08)
                    (Hon. Jennifer M. Anderson, Motion Judge)
(Argued May 7, 2019                                  Decided September 12, 2019)

      Vincent A. Jankoski for appellant.
      Kathleen Gibbons, Assistant United States Attorney, with whom Jessie K.
Liu, United States Attorney, and Elizabeth Trosman, Sitara Witanachchi, and
Nicholas P. Coleman, Assistant United States Attorneys, were on the brief, for
appellee.

      Before GLICKMAN and THOMPSON, Associate Judges, and GREENE, Senior
Judge, Superior Court of the District of Columbia.*




      *
          Sitting by designation pursuant to D.C. Code § 11-707 (a) (2012 Repl.).
                                         2

      THOMPSON, Associate Judge:       Appellant James Blackmon challenges the

trial court’s denial of his “Motion to Vacate, Set-Aside, or Correct The Sentence

Pursuant to D.C. Code § 23-110,” in which he sought relief based on his trial

counsel’s deficient advice regarding a plea offer (specifically, counsel’s erroneous

advice about the maximum sentence appellant could face if he rejected the plea

offer and was convicted after a retrial). Appellant contends that the trial court’s

conclusion that he failed to show prejudice from his trial counsel’s deficient

representation was premised on a misinterpretation of Lafler v. Cooper, 566 U.S.

156 (2012) (addressing what a defendant must establish to show prejudice from

ineffective assistance of counsel if he contends that counsel’s deficient advice

caused him to reject a plea offer). We affirm.




                                          I.



      After a trial in March 2009, appellant was convicted of three counts of first-

degree sexual abuse, one count of attempted first-degree sexual abuse, one count of

first-degree burglary, one count of kidnapping, and one count of assault with

significant bodily injury (“ASBI”). See Blackmon v. United States (“Blackmon I”),

146 A.3d 1074, 1075 (D.C. 2016). Although the government had asked the court

to sentence appellant to life imprisonment without the possibility of parole, the
                                          3

court (the Honorable Geoffrey Alprin) sentenced him to an aggregate term of 34

years of incarceration. In resolving his direct appeal, this court vacated appellant’s

convictions and remanded the case for a new trial because, in violation of

appellant’s Sixth Amendment confrontation rights, the government was allowed to

“present the results of DNA testing through a witness who had neither conducted

nor observed the testing.” Blackmon I, 146 A.3d at 1076. Following a second jury

trial in April of 2014, appellant was acquitted of burglary, but was convicted again

of all other charges. Id. The trial court again sentenced appellant to a total of 34

years of incarceration. 1 Id.



      The instant appeal focuses on what happened during the lead-up to

appellant’s second trial. The government presented a plea offer under which “if

[appellant] pled to First-Degree Sexual Abuse With Aggravating Circumstances,

      1
            After his first trial, appellant was sentenced to concurrent 25-year
sentences for each of the first-degree sexual abuse charges, sentences that were
also concurrent with a five-year sentence for attempted first-degree sexual abuse.
He was also sentenced to concurrent terms of seven years’ incarceration for
burglary and kidnapping, which sentences were consecutive to the sentences for
other charges. He received a two-year sentence for ASBI, which was consecutive
to the sentences for all other charges.

      When the jury in the second trial acquitted appellant of burglary, the trial
court followed the same sentencing scheme, but the result was still a 34-year
sentence.
                                          4

[the government] would agree to [a Super. Ct. Crim. R.] 11(e)(1)(C) plea of 25

years incarceration . . . with credit for time served.” In advising appellant about

the plea offer, appellant’s trial counsel, Jason Downs, informed appellant that if he

rejected the plea offer and was ultimately convicted at the second trial, he would

not receive a sentence of incarceration that was more than the 34 years imposed

following his first trial. Blackmon I, 146 A.3d at 1076. Appellant rejected the plea

offer. Id.



      Shortly after the second trial began, realizing that the advice he had given

appellant was mistaken, Mr. Downs disclosed his mistake to the trial court and

asked the court to appoint independent counsel to speak with appellant. 2 Id.

Appellant, in an ex parte hearing at the bench, told the court, “If you can get the

original . . . plea back[,] I[’]ll take it[.]” Id. The prosecutor stated in open court,

however, that the original 25-year plea offer “was no longer on the table.” Id. The

government instead offered appellant a plea agreement with a government

sentencing recommendation of 34 years, an offer appellant rejected. Id. at 1076-

77. The government then “agreed to cap its allocution at 34 years,” asserting that

      2
          The government’s D.C. App. R. 28(k) letter states that “when . . . trial
counsel’s mistake was disclosed, appellant had heard (1) the government’s opening
statement . . . and (2) the testimony of . . . the lead investigator in th[e] case[,]”
who was a “detective assigned to the sexual assault unit of the Metropolitan Police
Department[.]”
                                         5

this would “restore [appellant] to where he was” when he rejected the 25-year plea

offer. Id. at 1077. The court (the Honorable Jennifer Anderson) “agreed to be

bound by the 34-year sentence and not impose a sentence greater than that.” The

case proceeded to trial, and, as already noted, the jury acquitted appellant of

burglary but found him guilty of all the remaining charges, and the court sentenced

him to 34 years’ imprisonment. Blackmon I, 146 A.3d at 1077.



      On January 10, 2017, appellant filed his § 23-110 motion, asserting that he

received ineffective assistance of counsel from Mr. Downs. On November 17,

2017, Judge Anderson held an evidentiary hearing on the motion. The court

denied the motion on January 11, 2018, concluding that appellant “was not

prejudiced by Mr. Downs’ deficient advice.”



      Announcing its ruling from the bench, the court explained that it was “hard

. . . to say” whether it would have accepted a Super. Ct. Crim. R. 11(e)(1)(C) plea,

but “assume[d], for the purposes of [appellant’s] motion, that [it] would have”

done so given that it “typically defers to seasoned prosecutors and . . . defense
                                          6

lawyers who have negotiated a plea.” The court viewed the issue as whether

appellant “would have taken the plea.”3



      The court began its analysis by recognizing that “a higher sentence [after a

second trial] gives rise to a presumption of vindictiveness for having exercised

appellate rights . . . .” See infra n.6. Stating that it was not aware of any new

information that would have justified a more severe sentence than was imposed

after appellant’s first trial, the court found that appellant faced only a “remote

possibility” of a sentence exceeding 34 years. The court found that appellant had

not established “a reasonable probability that had he been correctly advised about



      3
         In its initial remarks, the court credited Mr. Downs’s testimony that when
he advised appellant about the 25-year plea offer, appellant, who “had already
done a bit of time,” “was not willing to do much more” and “was not inclined to
accept 25 years[,]” in part because it was hard “to keep the young guys off of him”
in prison and because he “was very adamant that the DNA in this case that was
recovered from the complainant was planted” and that he was innocent.

       At the same time, the court observed that appellant’s credibility “t[ook] a
hit” from his hearing testimony that was “just simply verifiably untrue.” The court
highlighted appellant’s testimony that it was only after Mr. Downs acknowledged
his erroneous advice that appellant heard for “the first time that . . . there was a
potential of a plea offer of 25 years” and that he previously “didn’t know anything
about the 25 years . . . .” The court noted that appellant’s testimony in that regard
was impeached with the transcripts of July 26 and September 4, 2013, status
hearings, during which the fact of the 25-year plea offer was put on the record.
The court found it “very clear on the record that,” despite appellant’s hearing
testimony, “the plea had been discussed . . . [and appellant] had rejected it.”
                                           7

the remote possibility of a sentence in excess of 34 years, this would have caused

him to accept the 25-year plea offer.”



       The court then explained that what was “more important[]” in resolving

appellant’s motion was appellant’s demeanor at the hearing and statements he

made insisting on his innocence. 4 The court observed that during the hearing,

appellant had “hemmed and hawed, sighed, [and] took a long time answering some

of the questions.” The court went on to describe appellant’s insistence at the

hearing that he “didn’t do this crime”; his lament about “[w]hat happened to the

truth”; his protest that “you want me to admit something I didn’t do”; his testimony

that he was “not going to say [he] raped anyone”; his statements that he never

knew in seeking a hearing on his counsel’s ineffectiveness that he “had to tell [the

court] [he] did something knowing that [he] didn’t do it” or that “to plead guilty

[he] had to accept guilt” and “admit guilt in order to get the 25 [years]”; and his

“continually sa[ying] that he did not do this crime.” The court noted that appellant

“could not answer the questions” after the prosecutor “read out what would have

been the proffer”; instead, he was “sigh[ing]” and “breath[ing] deeply” with his

“eyes . . . closed.”


       4
          The court stated that the hearing was “really very stark . . . in affecting the
[c]ourt’s conclusion that [appellant] would not have accepted a plea.”
                                           8



      The court acknowledged that after a break in the hearing, appellant returned

and said he “would have pled guilty, even though he wasn’t guilty, to get the 25

[years,]” but found that testimony “incredible . . . based upon [appellant’s] . . .

demeanor . . . in court.” Citing its general practice in serious cases of asking the

defendant “to put into his own words what happened” if the court sees any kind of

hesitation, the court noted that when it asked this of appellant, he was “stymied”

and said that he would only “be repeating what [he] heard.” All of this, the court

reasoned, “prove[d] fatal for the prejudice prong of [appellant’s] Lafler claim.”

The court concluded that “there is no way [appellant] could have gotten through a

plea colloquy” and therefore that appellant “was not prejudiced by Mr. Downs’

deficient advice.” The court also observed that the “record is clear that [appellant]

was not extended an Alford5 plea, which would be the only way that he would be

allowed to plead guilty without admitting guilt . . . .”



      This appeal followed. Appellant contends that the trial court “erroneously

interpreted the Lafler factors.” He argues that Lafler “only requires that the trial

      5
          North Carolina v. Alford, 400 U.S. 25, 37 (1970) (“An individual accused
of crime may voluntarily, knowingly, and understandingly consent to the
imposition of a prison sentence even if he is unwilling or unable to admit his
participation in the acts constituting the crime.”).
                                          9

court be willing to accept the ‘terms’ of the plea agreement [meaning “the

reduction in sentence and/or charges that the plea agreement provides”] and “does

not address” the matter that the trial court deemed important: “whether the trial

court would accept [appellant’s] proffered plea of guilty.” Appellant argues that

the court used an “incorrect legal standard” and thus abused its discretion in

treating “acceptance of guilt as a precondition of a finding of prejudice.”



                                           II.



       “When claiming ineffective assistance of counsel, a defendant must

establish that his counsel’s performance was deficient and that the deficiency

resulted in prejudice.” Andrews v. United States, 179 A.3d 279, 293 (D.C. 2018)

(citing Strickland v. Washington, 466 U.S. 668, 687 (1984)). To show Strickland

prejudice, a defendant must show that there is a “reasonable probability that, but

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

different.” Strickland, 466 U.S. at 694. More specifically, and as pertinent here, to

show prejudice, a defendant who contends that his counsel’s deficient advice

caused him to reject a plea offer must “show [that] the outcome of the plea process

would have been different with competent advice.” Lafler, 566 U.S. at 163.
                                         10

       This court reviews a trial court’s denial of a § 23-110 motion for abuse of

discretion. Gardner v. United States, 140 A.3d 1172, 1195 (D.C. 2016). We

assess the trial court’s findings of fact for clear error and its determinations on

questions of law de novo. Id.



                                         III.



       As in Lafler, “[t]he instant case comes to the [c]ourt with the concession that

counsel’s advice with respect to the plea offer fell below the standard of adequate

assistance of counsel guaranteed by the Sixth Amendment[.]” Lafler, 566 U.S. at

160.       Thus, “it is unnecessary for this [c]ourt to explore” whether the

representation by appellant’s trial counsel “fell below an objective standard of

reasonableness.” Id. at 163 (internal quotation marks omitted). 6


       6
          That said, we think it appropriate to observe that there was some basis for
trial counsel’s advice that appellant would not likely receive a sentence in excess
of 34 years upon retrial. The Supreme Court held in North Carolina v. Pearce,
395 U.S. 711 (1969), that “[d]ue process of law . . . requires that vindictiveness
against a defendant for having successfully attacked his first conviction must play
no part in the sentence he receives after a new trial.” Id. at 725. “In order to
assure the absence of [a vindictive] motivation, whenever a judge imposes a more
severe sentence upon a defendant after a new trial, the reasons for his doing so
must affirmatively appear” and “must be based upon objective information
concerning identifiable conduct on the part of the defendant occurring after the
time of the original sentencing proceeding.” Id. at 726; see also Hammond v.
District of Columbia Bd. of Parole, 756 A.2d 896, 898 (D.C. 2000).
                                                                        (continued…)
                                         11



      We therefore turn straight to appellant’s contention that the trial court

“erroneously interpreted the Lafler factors.” Appellant’s reference to the Lafler

factors is a reference to the Supreme Court’s statement that in the circumstance

where counsel’s ineffective advice “led not to an offer’s acceptance but to its

rejection[,]” Lafler, 566 U.S. at 163, to show Strickland prejudice, “a defendant

must show that but for the ineffective advice of counsel there is a reasonable

probability that the plea offer would have been presented to the court (i.e., that the

defendant would have accepted the plea and the prosecution would not have

withdrawn it in light of intervening circumstances), that the court would have

accepted its terms, and that the conviction or sentence, or both, under the offer’s

terms would have been less severe than under the judgment and sentence that in

fact were imposed.” Id. at 164.




(…continued)

      The record in this case appears to be without objective information that
would have justified imposition of a sentence more severe than 34 years upon
appellant’s conviction in his second trial. For that reason, it appears that counsel’s
advice to appellant about his exposure to at most a 34-year sentence, while
technically incorrect, was correct as a practical matter. As the trial court
commented, no evidence was presented to suggest that “a sentence in excess of . . .
34 years following the second trial would have been anything other than extremely
unlikely, given the exacting legal standard for the imposition of a sentence.”
                                        12

      The trial court implicitly agreed with appellant’s interpretation of what the

Supreme Court meant by its reference in Lafler to whether the court “would have

accepted [the] terms” of a plea offer. Id. As noted above, the court began its

analysis by assuming that it would have accepted the terms of the plea (i.e., the

specification that it was a Rule 11(e)(1)(C) plea) since the court “typically

defer[red]” to plea deals negotiated by seasoned counsel.



      After that, the court’s focus was on whether appellant would actually have

taken the plea — in the words of Lafler, whether “there is a reasonable probability

. . . that the defendant would have accepted the plea.” Lafler, 566 U.S. at 164. As

we read the court’s findings, the court understood that question to require

consideration of whether appellant would have done those things necessary to

successfully enter a negotiated plea: not merely by saying “yes” to the plea offer,

but also, through the plea colloquy required by Super. Ct. Crim. R. 11, by doing

what the court deemed necessary to enable it to meet its obligation to “determine

that there is a factual basis for the plea.” Super. Ct. Crim. R. 11(b)(3) (2017). As

our case law demonstrates, this may include, as circumstances warrant, the

defendant’s confirming, at the court’s request, the accuracy of the government’s

allocution and/or the defendant’s “tell[ing] what happened in his own words.”

Taylor v. United States, 366 A.2d 444, 446 (D.C. 1976); see also, e.g., Long v.
                                          13

United States, 169 A.3d 369, 377 (D.C. 2017) (“[T]he Statement of Offense that

appellant signed and agreed to, and that the government recited to the trial court for

its proffer at the Rule 11 hearing, met all three elements of conspiracy to satisfy the

factual basis for the guilty plea.”); Kyle v. United States, 759 A.2d 192, 199 (D.C.

2000) (finding “no defect in establishing the factual basis for [the defendant’s]

plea” where “the government laid out the substance of the charges against him,

including testimony of the complaining witness” and the defendant “specifically

agreed with the complaining witness’ version of the facts”); Austin v. United

States, 356 A.2d 648, 649 (D.C. 1976) (concluding that there was a factual basis

for the defendant’s guilty plea where he “specifically acknowledged that he was

outside at the scene knowing that others were going to commit the crime” and

“admitted that he was ‘assisting and advising’ the other perpetrators”).



      To be sure, Lafler does not say specifically that a trial court, in considering a

claim that the defendant rejected a plea offer because of ineffective assistance of

counsel, may take into account whether there was a factual basis for the forgone

plea and whether the court would have accepted the plea. But Lafler was “merely

an application of the Sixth Amendment right to counsel, as defined in Strickland,

to a specific factual context.” In re Perez, 682 F.3d 930, 932 (11th Cir. 2012). Its

holding was not a “new rule[] of constitutional law.” Id. at 934. Decided on the
                                          14

same day as Missouri v. Frye, 566 U.S. 134 (2012), Lafler cannot reasonably be

read to establish an exhaustive list of factors that are relevant to a showing of

prejudice in connection with ineffective-advice-by-plea-counsel claims.



      In Frye, the Supreme Court instructed that to show prejudice from counsel’s

deficient assistance in connection with a plea offer, a criminal defendant must (1)

“demonstrate a reasonable probability they would have accepted the earlier plea

offer had they been afforded effective assistance of counsel . . .”; (2) “demonstrate

a reasonable probability the plea would have been entered without the prosecution

canceling it” or (3) “the trial court refusing to accept it” if the court “had the

authority to exercise that discretion under state law”; and (4) “show a reasonable

probability that the end result of the criminal process would have been more

favorable by reason of a plea to a lesser charge or a sentence of less prison time.”

Id. at 147; see also id. at 151 (“[I]f the trial court could have refused to accept the

plea agreement, and if Frye fails to show a reasonable probability the trial court

would have accepted the plea, there is no Strickland prejudice.”). This court has

recognized that Frye describes what a defendant must do “[i]n order to complete a

showing of Strickland prejudice”: demonstrate that “there is a reasonable

probability [that] neither the prosecution nor the trial court would have prevented

the offer from being accepted or implemented[.]” Benitez v. United States, 60
                                          15

A.3d 1230, 1237 n.21 (D.C. 2013) (internal quotation marks omitted; emphasis

added). 7



      Frye and Benitez dictate that we reject appellant’s argument that the trial

court applied an “incorrect legal standard” when it relied on its finding that “there


      7
         See also United States v. Tarnai, No. 17-1330, 2019 U.S. App. LEXIS
23964, *7-10 (3d Cir. Aug. 12, 2019), in which the court reasoned:

             Tarnai has not shown he was prejudiced by defense
             counsel’s conduct. . . . That Tarnai says he would
             have accepted the . . . offer cannot alone establish
             prejudice under Lafler and Frye. He must also show the
             government and the court would have accepted this
             agreement. We conclude Tarnai falls short on both fronts
             . . . [because he] has not established the government
             would have allowed him to take the plea while insisting
             on his innocence. . . . Given Tarnai’s position on his
             innocence, there is no reasonable probability the
             government would have moved forward with the
             agreement. . . . Even assuming the government was
             willing to advance the agreement, Tarnai has failed to
             establish a reasonable probability the court would have
             accepted the agreement, [since] . . . Tarnai’s position
             would have required the trial court to accept a guilty plea
             of a defendant who claimed to be innocent. In certain
             circumstances, a trial court may accept a guilty plea of a
             defendant despite his unwillingness ‘to admit his
             participation in the acts constituting the crime.’ . . . But a
             trial court need not accept such a plea. . . . For these
             reasons, we believe there is no reasonable probability the
             trial court would have accepted Tarnai’s plea under the
             circumstances.
                                         16

is no way [appellant] could have gotten through a plea colloquy” to conclude that

appellant was not prejudiced by Mr. Downs’s incorrect advice. That finding was

in essence a finding that the court would have rejected appellant’s plea and thus

“would have prevented [a guilty plea by appellant pursuant to the plea offer] from

being accepted or implemented[.]” Benitez, 60 A.3d at 1237 n.21. Because we

cannot say that the court’s finding was clearly erroneous, we have no basis for

disturbing the court’s determination that appellant failed to show that he was

prejudiced by his counsel’s erroneous advice with respect to the plea offer.



      A final point: Appellant’s burden was to show that there is a “reasonable

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

proceeding would have been different.”         Strickland, 466 U.S. at 694.        “A

reasonable probability is a probability sufficient to undermine confidence in the

outcome.” Id. Here, appellant rejected the government’s 25-year plea offer upon a

belief that by proceeding to trial, he risked receiving a sentence of no more than 34

years. When the trial court agreed to that as the maximum sentence it would

impose, appellant received the benefit of his counsel’s erroneous advice; in

essence, the advice was rendered correct, and the prejudice from it was dispelled.

Given that result, and giving deference to the trial court’s credibility-based factual

finding that, per Mr. Downs’s credited testimony, appellant was adamant that he
                                         17

was innocent and “was not inclined to accept 25 years” when the government’s

plea offer was still on the table, we are confident that appellant has failed to

demonstrate any Strickland prejudice from his trial counsel’s erroneous advice.



                                  IV.    Conclusion



      Wherefore, the judgment of the trial court is



                                        Affirmed.
