holding there was no probable cause and Harris would not apply because a "central" component to establish probable cause was obtained as a result of the illegal entry into the home, i.e., discovery of the suspect's presence in the place where the undercover drug purchase had taken place
How later courts described this case
- holding there was no probable cause and Harris would not apply because a "central" component to establish probable cause was obtained as a result of the illegal entry into the home, i.e., discovery of the suspect's presence in the place where the undercover drug purchase had taken place
- holding that it was error to construe a resentencing motion as a § 23-110 motion because a judgment had not yet been entered; without a judgment, no collateral attack was yet possible
- finding that warrantless entry into a home without *209 probable cause rendered show-up identification evidence suppressible
- finding that warrantless entry into a home without probable cause rendered show-up identification evidence suppressible
Written by the judges who cited it.
The opinion
FERREN, Associate Judge,
concurring:
I concur in the opinion for the court. I write separately to explain why I join in Part II.A
Less than a month after his trial and before he was sentenced, appellant wrote a letter to the trial judge complaining of ineffective assistance of counsel at his trial. The trial judge chose to treat this letter as a motion for a new trial, appointed counsel to represent appellant, and held a hearing on appellant’s allegations. Concluding that trial counsel’s representation was not constitutionally deficient, the trial judge denied the motion and proceeded to sentence appellant. Thereafter, appellant filed both a direct appeal in this court and a motion under D.C.Code § 23-110 (1989) in the trial court collaterally attacking his conviction for ineffective assistance of counsel.
The government argues that the trial court properly dismissed appellant’s § 23-110 motion as “successive.” According to the government, we should view appellant’s initial motion for a new trial as if it were a § 23-110 motion because it constituted a collateral attack on the jury’s verdict. Consequently, the government concludes, we should treat appellant’s first post-sentence § 23-110 motion as if it were already a second, “successive” § 23-110 motion for relief. I cannot agree with that analysis.
The trial court received appellant’s pro se letter complaining about his trial counsel after the applicable deadline for new trial motions had passed. 1 But that fact does not, by itself, transform the letter into a § 23-110 motion; only prisoners “in custody under sentence of the Superior Court” may make such motions, D.C.Code § 23-110(a), and the trial court had not yet sentenced appellant. See Newton v. United States, 613 A.2d 332 , 332 n. 1 (D.C.1992); (Vincent) Johnson v. United States, 585 A.2d 766, 769 n. 3 (D.C.1991). Technically, then, the trial court was acting without discernible authority when it held a hearing on the claims in appellant’s letter, since the letter came too late to be a proper new trial motion and too early to be a proper § 23-110 motion. Under the plain language of the statute, therefore, the post-conviction § 23-110 motion cannot be deemed a “second or successive motion for similar relief’ under § 23-110; it either followed a hearing on a motion that should be deemed a nullity or followed a hearing on a properly entertained motion that could not have been brought under § 23-110.
Assuming that the trial court could properly exercise its discretion to consider appellant’s letter/motion on the merits, I see no reason to call this first motion anything but what the trial court called it: a motion for a new trial. Certainly appellant’s ineffective assistance claim, as such, did not automatically make his letter a § 23-110 motion, since we have said that a criminal defendant may bring an ineffectiveness claim in the trial court through a motion for new trial under Super.Ct.Crim.R. 33, as well as through a motion to vacate sentence under D.C.Code § 23-110. See Godfrey v. United States, 454 A.2d 293, 302 (D.C.1982). Furthermore, our caselaw clearly indicates that, for purposes of distinguishing between a Rule 33 motion and a § 23-110 motion, the true line of demarcation is whether or not appellant has been sentenced and the conviction has become final. 2 Compare Newton, 613 A.2d at 332 n. 1 *422 (pro se letter alleging ineffective assistance of counsel, written after trial but before sentencing, properly treated as filed pursuant to Super.Ct.Crim.R. 33, rather than D.C.Code § 23-110) and (Vincent) Johnson, 585 A.2d at 769 n. 3 (same) with (Jimmy) Johnson v. United States, 385 A.2d 742, 743 (D.C.1978) (post-judgment motion for new trial properly considered as § 23-110 motion). Since appellant’s first motion — and the trial court’s resolution of it — preceded sentencing, there simply is no basis under the statute or court rules for characterizing it as a post-sentence § 23-110 claim.
The government argues, nonetheless, that appellant’s pre-sentence motion should be treated as a collateral attack, effectively brought under § 23-110, because it questions the jury’s verdict. The government’s logic, however, implicates not just the anomalous first motion made by appellant in this case but any motion for a new trial. If we accept this argument, any Rule 33 motion might be deemed a form of collateral attack that bars consideration of even a first § 23-110 motion filed thereafter. This court has never taken such a position. 3 Nor have I been able to locate any case in this jurisdiction or elsewhere suggesting that a first motion for ha-beas corpus relief should ever be treated, and thus denied, as “successive” to a pre-sentence motion for a new trial.
Were we to espouse this view, we would be expanding the limitation on “successive” § 23-110 motions well beyond its statutorily defined scope, arguably usurping the role of the legislature and covertly applying principles of res judicata that we have always rejected in this context. See Kirk v. United States, 510 A.2d 499, 504 (D.C.1986); Pettaway v. United States, 390 A.2d 981, 986 (D.C.1978).
D.C.Code § 23-110(e) provides in full: “The court shall not be required to entertain a second or successive motion for similar relief on behalf of the same prisoner.” This language means that the first motion that precludes a “second or successive motion” must itself be a post-conviction motion under § 23-110. There is no room to read § 23-110(e) to permit the first motion to be a pre-sentence motion; the statutory concern is “second or successive” collateral attacks on final judgments of conviction. It follows that, even though a post-conviction § 23-110 motion and pre-sentence Rule 33 motion can both claim ineffective assistance of counsel— and thus appear to be motions for “similar relief’ — they are not motions for “similar relief’ within the meaning of § 23 — 110(e); the first motion, asking for a new trial under Rule 33, is not a post-conviction collateral attack providing the required predicate for a § 23-110(e) “successive motion” bar.
By definition, appellant’s letter/motion was not — indeed, it could not have been — filed under § 23-110, so the ruling on appeal here, the first under § 23-110, cannot be deemed “successive.” Appellant, therefore, is entitled to the hearing that the law, drawn as it is, gives him. If someone wants to construe § 23-110(e) as allowing the trial court to bar a § 23-110 motion as a “second or successive motion for similar relief,” even though the first motion was brought before sentence under Super.Ct.Crim.R. 33, rather than under D.C.Code § 23-110, then the statute should be amended.
I do not believe an appellate court should elect to bend or expand statutory language (here, “successive motion for similar relief 1 ’) in a way that denies, rather than confirms, a prisoner’s access to court to argue a violation of constitutional rights. That approach, advocated by the government, would result in a gratuitous — not a required — appellate court ruling manifestly intended to snuff out any *423 possible use of habeas corpus, after conviction, when the trial court has volunteered a hearing on a new trial motion filed before sentencing. I cannot accept that stingy approach, especially when Fourth and Sixth Amendment rights are implicated, as they are here.
If both motions at issue here had been brought under § 23-110 after sentencing, the case would be different. In that situation, it clearly would have been appropriate for the trial court to consider whether it should disregard the second motion as a “successive motion” under § 23-110(e). 4 In the actual case before us, however, the trial court effectively transmuted a pre-sentence new trial motion — a motion which the trial court gratuitously entertained — into a preclusive result that no statute or court rule authorizes. Appellant wrote a pro se letter, after the deadline for a new trial motion had expired, which the trial court agreed to entertain as a new trial motion filed out of time. The fact that the trial court volunteered to hear the matter should not become an excuse for announcing after the fact, and for the first time, that in legal effect that letter had become, not a new trial motion after all, but really a § 23-110 motion — indeed the only such motion appellant could file, even though he had not been sentenced when he filed it!
This is not to say that the trial court must hold redundant hearings when a defendant raises the very same matter in both a Rule 33 motion and a § 23-110 motion. D.C.Code § 23-110(c) provides that no hearing is required where “the motions and files and records of the case conclusively show that the prisoner is entitled to no relief.” Where a § 23-110 motion raises exactly the same point that has already been resolved in a prior Rule 33 hearing, then the trial court has no obligation to reenact the same scenario. But that is not what happened here. In this case, the § 23-110 motion did repeat the claim of ineffective assistance of counsel already alleged in the new trial motion, including ineffectiveness in failing to file a motion to suppress tangible evidence. But the § 23-110 motion raised the suppression issue on an altogether different basis from the one previously argued. Appellant now claims, for the first time, that trial counsel should have filed a motion to suppress based upon a warrantless entry. Thus, a hearing on this issue, which was not addressed at the hearing on appellant’s new trial motion, will not involve the trial court in pointless repetition.
. "A motion for a new trial based on any other grounds [than newly discovered evidence] shall be made within 7 days after verdict or finding of guilty or within such further timé‘as the Court may fix during the 7-day period." Super.Ct.Crim.R. 33.
. The exception to this rule is a motion based upon newly discovered evidence, which may be filed up to two years after final judgment. See Super.Ct.Crim.R. 33.
. The situation would be different, of course, if appellant had filed his new trial motion after sentencing, see (Jimmy) Johnson, 385 A.2d at 743 , or if appellant had filed his § 23-110 motion after the resolution of his direct appeal, in which case the court could have properly denied appellant's § 23-110 claim if it raised identical issues already resolved or new issues inexcusably omitted on direct appeal, see Moore v. United States, 608 A.2d 144, 146 (D.C.1992), cert. de nied, - U.S. -, 113 S.Ct. 1324 , 122 L.Ed.2d 709 (1993); Head v. United States, 489 A.2d 450, 451 (D.C.1985). In this case, however, appellant filed his new trial motion before sentencing and filed his § 23-110 ineffective assistance claim during the pendency of the direct appeal, simultaneously applying for a stay of appellate proceedings in accord with our directive in Shepard v. United States, 533 A.2d 1278, 1280 (D.C.1987).
. It is important to remember, too, that § 23-110(e) does not necessarily preclude a second or successive § 23-110 motion. See Vaughn v. United States, 600 A.2d 96, 97 (D.C.1991) (noting that consideration of successive motion under § 23-110 may be required to achieve "ends of justice”).