Petition for Writ of Certiorari — Wallace v. United States (No. 07-785)

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Supreme Court, U.S.

L-&

Gi) ~FILe0

07-785 DEC 1 2 2007

No.___._ OF OE OF THE OLIBRK

IN THE

Supreme Court of the United States

ERIC WALLAC E,

Petitioner.

Vv.

UNITED STATES OF AMERICA,

Respondent.

Petition for a Writ of Certiorari

to the District of Columbia Court of Appeals

PETITION FOR A WRIT OF CERTIORARI

DAVID A. HANDZO

J. ALEX WARD

IAN HEATH GERSHENGORN*

JENNER & BLOCK LLP

601 Thirteenth Street, N.W.

Washington, DC 20005

(202) 639-6000

December 12, 2007 *Counsel of Record

ican Sac cpeneC mA en I we ae ASE a TT PETG, TET

1

QUESTION PRESENTED

Whether the Due Process Clause requires that

a defendant who has pled guilty nonetheless retains

the right to contest on direct appeal a trial court’s

competency determination.

1]

PARTIES TO THE PROCEEDING

There were no parties to the proceedings

below other than those identified in the caption of

this petition.

ill

TABLE OF CONTENTS

QUESTION PRESENTED

PARTIES TO THE PROCEEDING

TABLE OF CONTENTS

I.

Il.

IV.

There Is A Deep And Acknowledged Split

Over The Question Presented..............00...00..000e 12

The Decision Below Conflicts With This

Court’s Decisions And Betrays The Promises

Of The Right To Due Process. .......................000- 19

. The Conflict Is Recurring And Important........ 22

This Case Presents An Ideal Vehicle To

Se a a ee 27

ROE IO iiecaiscatsicksdencsacacessndceaieumanieummesicneauaesea 30

APPENDIX A

Opinion, United States v. Wallace, Nos. 04-CF-

299, 05-CO-1328, 2007 WL 2669564 (D.C. Sept.

13, 2007)

APPENDIX B

Order Denying Defendant’s Motion To Withdraw

Guilty Plea, United States v. Wallace, Criminal

No. F-7221-02 (D.C. Super. Ct. Oct. 27,

APPENDIX C

Transcript Dated November 10, 2003, Criminal

No. F-7221-02 (D.C. Super. Ct. Nov. 10,

I eaancueticutacci laut tee nixchiadenstedsnansunticibens 71a

APPENDIX D

Neuropsychological Evaluation Report Dated May

Vv

TABLE OF AUTHORITIES

CASES

Adams v. United States ex rel. McCann, 317

oy clea csacieckesnancaacesabansiiatoctpeale 23

Blackledge v. Perry, 417 U.S. 21 (1974)...8, 12,

20,

Brookhart v. Janis, 384 U.S. 1 (1966) ................ 2:

Cooper v. Oklahoma, 517 U.S. 348 (1996)

Drope v. Missouri, 420 U.S. 162 (1975)... 22, 23,

Dusky v. United States, 362 U.S. 402

Godinez v. Moran, 509 U.S. 389 (1993)......... 23,

Johnson v. United States, 631 A.2d 871 (D.C.

III ss icahinnicbiav dcanbanmmeseaee

King v. Cunningham, 442 F. Supp. 2d 171

(S.D.N.Y. 2006)

Menna vv. New York, 423 3

a euiamdintanni 8, 12, 20, :

Mitchell v. Commonwealth, No. 2000-CA-

001236, 2003 WL 1339283 (Ky. Ct. App.

Feb. 21, 2003)

Pate v. Robinson, 383 U.S. 375 (1966)............ 8,

People v. Armlin, 332 N.E.2d 870 (N.Y.

ee ducacagsenaxenasnanadcennsaieit 13,

People v. Frazier, 495 N.Y.S.2d 478 (N.Y. App.

i aiikainihiisdscvcnnsstaxsnrcaisnann«anencnaacabiienl 13

vi

People v. Parney, 253 N.W.2d 698 (Mich. Ct.

App. 1977)

People v. Seaberg, 541 N.E.2d 1022 (N.Y.

People v. White, 308 N.W.2d 128 (Mich. 1981)...

Robinson v. State, 373 So. 2d 898 (Fla. 1979)

Rock v. Arkansas, 483 U.S. 44 (1987)

Southall v. United States, 716 A.2d 183 (D.C.

State v. Augustine, 215 So. 2d 634 (La. 1968)...

State v. Cleary, 824 A.2d 509 (Vt. 2003)

State v. Garfoot, 558 N.W.2d 626 (Wis. 1997)....

State v. Wead, 609 N.W.2d 64 (Neb. Ct. App.

NE ccewubiiuesonen

Thompson v. Commonwealth, 56 S.W.3d 406

(Ky. 2001)

Tillman v. State, 570 S.W.2d 844 (Mo. Ct. App.

1978) 17,

United States v. Broadus, 450 F.2d 639 (D.C.

es 21

Williams v. State, 316 So. 2d 267 (Fla. 1975).....24

STATUTES

28 U.S.C. § 1257(a)

28 U.S.C. § 1257(b)

D.C. Code § 24-531.10

D.C. Super. Ct. Crim. R. 32(e)

MISCELLANEOUS

Richard J. Bonnie, et al, Decision-Making in

Criminal Defense: An Empirical Study of

Insanity Pleas and the Impact of Doubted

Client Competence, 87 J. Crim. L. &

Criminology 48 (1996)

Richard J. Bonnie, Vhe Competence of

Criminal Defendants With Mental

Retardation To Participate In Their Own

Defense, 81 J. Crim. L. & Criminology 419

Henri E. Cauvin, Guilty Plea in Slaying of Hill

Aide, Wash. Post, Jan. 6, 2004, at B1

The Merck Manual (17th ed. 1999)

U.S. Dep't of Justice: Office of Justice

Programs, Sourcebook of Criminal Justice

Statistics 2004 Table 5.46.2004, available

at http://www.albany.edu/sourcebook/

pdf/t5462004. pdf .........cccccscscescsssseseseesesesseeecees

9

ee

oD

PETITION FOR A WRIT OF CERTIORARI

Eric Wallace respectfully petitions for a writ of

certiorari to review the judgment of the District of

Columbia Court of Appeals in this case.

OPINIONS BELOW

The opinion of the Court of Appeals is reported at

2007 WL 2669564 (D.C. Sept. 13, 2007), and is

reprinted in the Appendix to this petition (“Pet.

App.”) at la. The tral court’s competency

determination (Pet. App at 71a) is unpublished. The

trial court’s denial of petitioner’s motion to withdraw

his guilty plea (Pet. App. at 51a) is unpublished.

JURISDICTION

The court of appeals entered its judgment on

September 13, 2007. This Court has jurisdiction

under 28 U.S.C. § 1257(a)-(b).

CONSTITUTIONAL PROVISIONS INVOLVED

The Fifth Amendment to the United States

Constitution provides in relevant part that no person

“shal! be compelled in any criminal case to be a

witness against himself, nor be deprived of life,

liberty, or property, without due process of law.”

The Fourteenth Amendment, Section 1, to the

United States Constitution provides in relevant part

that no State shall “deprive any person of life,

lhberty, or property, without due process of law.”

STATEMENT

The Due Process Clauses of the Fifth and

Fourteenth Amendments unequivocally require that

no individual who is legally incompetent shall be

.

forced to answer a criminal charge. In the

proceedings below, the trial court determined that

petitioner Eric Wallace was legally competent to

stand trial for murder, despite abundant evidence to

the contrary. Unable to help his defense, Mr.

Wallace pled guilty, and then sought to argue on

direct appeal that his conviction violated Due

Process because he was not competent to stand trial

or enter a guilty plea.

In the decision below, the District of Columbia

Court of Appeals held that it could not review Mr.

Wallace’s constitutional claim on direct appeal,

because “the only issues that are appropriately

raised in an appeal from a conviction entered after a

guilty plea are the exercise of jurisdiction by the trial

court and the legality of the sentence imposed.” Pet.

App. 4a-5a (citation omitted). In other words, Mr.

Wallace had waived the right to assert his

constitutional competency claim when he pled guilty.

The court thus dismissed Mr. Wallace's direct

appeal.

The decision below implicates a deep and

acknowledged split among the federal courts and

state courts of last resort — a split that the D.C.

Court of Appeals expressly noted in its opinion. See

Pet. App. 5a-7a. Indeed, courts in Vermont, New

York, Kentucky, Michigan, and several other States

have held, contrary to the D.C. Court of Appeals,

that a guilty plea does not waive a constitutional

challenge to the competency of the defendant. They

have thus allowed such challenges to be raised on

direct appeal.

3

This split warrants this Court’s immediate

attention. The prohibition on trying a defendant who

is incompetent goes to the core of the Due Process

Clause. By denying defendants such as Mr. Wallace

a right to challenge their competence on direct

appeal, the decision below severely limits the ability

of those defendants to obtain review of their

constitutional claims, leaving them only the

opportunity to demonstrate that their conviction

constitutes a “manifest injustice.” For someone like

Mr. Wallace, whose compelling facts presented “a

difficult case” even under the narrow scope of review

employed below, Pet. App. la, that makes all the

difference.

This Court should thus grant review to

determine, consistent with the majority of courts to

have considered the issue, that Due Process requires

that a defendant who pleads guilty nevertheless

must be permitted to challenge his competency

determination on direct appeal.

1. Petitioner Eric Wallace was indicted in May

2003 on the charge of first degree murder in

connection with the stabbing death of Claude

McCants. The murder occurred on October 10, 2002,

just hours after Mr. Wallace was released from St.

Elizabeth’s, a federal mental health hospital in

Washington, D.C. Pet. App. 76a. Mr. Wallace had

been in custody at St. Elizabeth’s for eight months

after having been determined incompetent to stand

trial in connection with earlier misdemeanor

charges. /d. at 74a-76a.

In pre-trial proceedings on the murder charge,

Mr. Wallace asserted (through counsel) that he was

4

incompetent to stand trial, based on his substantial

mental impairments resulting from a lifetime of

diabetic comas and epileptic seizures. Pet. App. 80a,

110a. After conducting a hearing on the matter, the

court found Mr. Wallace competent. See id. at 92a-

93a. On January 5, 2004, Mr. Wallace pled guilty to

second degree murder. /d. at 3a-4a. The trial court

sentenced Mr. Wallace to a term of thirty-five years,

with five years of supervised release. Jd. at la, 52a.

2. Ample evidence supported Mr. Wallace’s claim

that he was not competent to stand trial. Since

childhood, Mr. Wallace has been treated for a

number of debilitating illnesses, which have only

increased over the years, rendering him in his

current severely incapacitated state. At age 9, Mr.

Wallace was diagnosed with Type I Diabetes

Mellitus, otherwise known as juvenile diabetes. Pet.

App. 110a; see also id. at 12a. This disease has

subjected Mr. Wallace to recurring episodes of

hyperglycemia and hypoglycemia — erratic and

abnormal swings in the content of sugar in his blood.

Id. at 12a. On a number of occasions, Mr. Wallace’s

episodes have been so extreme that he has gone into

acoma. Court of Appeals Appendix (“CA App.”) 180

(Letter from Dr. Hyde). This type of recurring

hypoglycemia, when accompanied with insulin shock,

is known to cause irreversible brain damage. /d.

Independent of his diabetes, since age 12, Mr.

Wallace has also experienced repeated epileptic

seizures, which have been resistant to treatment.

Pet. App. 12a, 8la. These seizures result in a loss of

consciousness, falling, and contractions. See The

Merck Manua/ 1403 (17th ed. 1999). In 1998, Mr.

5

Wallace’s condition escalated when he experienced

his first grand mal seizure. CA App. 183 (Letter

from Dr. Pickar).

These relentless health problems have stunted

Mr. Wallace’s ability to function in society. They

have also severely limited his ability to navigate the

judicial system. In fact, just prior to the instant

case, Mr. Wallace was repeatedly found incompetent

to stand trial in relation to several misdemeanor

assault charges stemming from incidents in early

2002. See Pet. App. 13a-14a n.14. Mr. Wallace spent

eight months in St. Elizabeth’s Hospital instead of

facing trial. Jd. Observing Mr. Wallace over that

substantial eight-month period and based on their

familiarity with him, government doctors at St.

Elizabeth’s found Mr. Wallace to be “severely

impaired.” Jd. One physician, Dr. Hugonnet,

determined that Mr. Wallace was “unable to manage

the basic concepts associated with competency to

stand trial.” /d. Another, Dr. Piquet, found that

“cognitive factors substantially impair his capacity to

have a factual and rational understanding of the

proceedings against him, and to properly assist

counsel with preparation of his defense.” ld.

Moreover, they found that it was “unlikely that Mr.

Wallace [would] attain competency in the foreseeable

future.” Jd.

Because Mr. Wallace never attained competency,

the judge in his misdemeanor case ruled that the law

required that Mr. Wallace be released. See Henri E.

Cauvin, Guilty Plea in Slaying of Hill Aide, Wash.

Post, Jan. 6, 2004 at Bl. The judge decided,

however, to hold Mr. Wallace for 72 hours to give

6

prosecutors enough time to appeal the decision. /d.

The U.S. Attorney’s office decided not to appeal, and

the District of Columbia never sought an order

seeking to have Mr. Wallace held until it was

determined whether he should be permanently

committed. Jd. Accordingly, on October 10, 2002,

Mr. Wallace was released from St. Elizabeth’s

hospital. Hours later, Mr. Wallace killed Mr.

McCants.

Returned to the confines of the criminal justice

system, Mr. Wallace again underwent a number of

tests that confirmed his continued incompetence to

stand _ trial. A thorough neuropsychological

evaluation conducted at St. Elizabeth’s after Mr.

Wallace was charged showed that Mr. Wallace

performs “below the cutoff level” on measures of

early dementia. Pet. App. 113a. Other tests

confirmed Mr. Wallace’s severely diminished level of

functionality. On the Wechsler Adult Intelligence

Scale, Mr. Wallace’s aggregate IQ was just 55,

placing him in the “severely impaired range” — below

the first percentile of the entire population. See id.

at 12a, 112a-113a. Electroencephalogram (“EEG”)

tests performed from 2000 to 2003 show increasing

brain deterioration, with a December 2003 EEG

indicating “markedly abnormal brain wave activity,

with slowing over the frontal lobes.” Jd. at 29a.

Through numerous evaluations, government

physicians determined that Mr. Wallace suffers from

core cognitive deficits even on his best days; his

dementia causes him to experience wild mood swings

and aggressive behavior, and renders him incapable

of understanding the core aspects of the judicial

7

process, including the concept of pleading guilty. See

Pet. App. 107a-120a; see also CA App. 180-82 (Letter

from Dr. Hyde); id at 183-85 (Letter from Dr.

Pickar).

3. At the competency hearing in the trial court,

even the prosecution’s own witnesses conceded that

Mr. Wallace’s mental capabilities were “in the

moderate to severely impaired range.” Pet. App. 16a.

Nonetheless, the experts hired by the prosecution

contended that Mr. Wallace was malingering.

That testimony was directly at odds with the

conclusions of the doctors at St. Elizabeth’s, who had

subjected Mr. Wallace to a battery of tests over his

months at the hospital and had found no signs of

malingering. See Pet. App. 112a. Commenting on

just one of these tests, one expert explained, “there’s

no way you can fake or malinger an abnormal EEG.”

CA App. 7 (Oct. 28, 2003 Transcript).

Moreover, the conclusions of the government’s

witnesses were deeply flawed. One of those

witnesses, Dr. Raymond Patterson, based his opinion

on a single interview, at which he did not perform a

test for malingering, or, in fact, any other psychiatric

or psychological tests. See CA App. 19 (Oct. 29, 2003

Transcript); id. at 40 (Oct. 30, 2003 Transcript) (“I

don’t do tests.”). Instead, Dr. Patterson asked Mr.

Wallace a few off-the-cuff questions and determined

that a “you got me” smile from Mr. Wallace — a

response mechanism entirely consistent with

cognitive impairment — was evidence of malingering.

See id. at 22 (Oct. 29, 2003 Transcript). Dr. Lally,

too, testified that Mr. Wallace was malingering even

though the two tests he performed on Wallace

8

showed no. sign of fabrication of cognitive

impairment. See Pet. App. 16a-17a.

Yet, their testimony was not even the most

egregious of that presented at Mr. Wallace’s

competency hearing. Dr. Oliver, a Legal Services

Division psychologist who provided the _ only

“neutral” evidence that Mr. Wallace was competent,

repeatedly contradicted and recanted his own

testimony regarding the testing he performed. Dr.

Oliver claimed at the hearing, for example, that he

had gleaned a great deal of information from Mr.

Wallace during his interview with him, such as the

nature of the charge, his identifying information, and

his mental health history. See CA App. 47, 51a-51b

(Oct. 30, 2003 Transcript). However, cross-

examination revealed that Dr. Oliver had filled in

many sections of his notes before ever speaking with

Mr. Wallace. See id. at 65 (Nov. 4, 2003 Transcript).

Of critical importance to the question of competence,

Dr. Oliver first testified that Mr. Wallace told him

that the three possible outcomes of a criminal] trial

were “guilty, not guilty, not guilty by reason of

insanity.” See id. at 50 (Oct. 30, 2003 Transcript).

But Dr. Oliver soon confessed that he himself had

written those outcomes in his notes before he ever

met Mr. Wallace. See id. at 66 (Nov. 3, 2003

Transcript).

4. Despite the overwhelming evidence that Mr.

Wallace was not competent to stand trial, the trial

judge found that the cognitive defects from which

Mr. Wallace suffers do not “preclude him from the

rational understanding of the charges’ and

proceedings against him.” Pet. App. 18a. The court

9

determined that “the evidence of malingering is far

more powerful than the evidence of significant

progressive deterioration.” Jd. at 24a. The court

thus declared Mr. Wallace competent to stand trial

in the case. /d. at 93a.

5. Notwithstanding the trial court’s views, Mr.

Wallace was in fact incapable of assisting his defense

team in mounting an effective defense. Left with

little choice, Mr. Wallace accepted a guilty plea.!

Throughout his plea proceeding, Mr. Wallace

exhibited behavior indicating his confusion about the

meaning of his choice. See CA App. 80-81 Wan. 5,

2004 Transcript). Though the trial court attempted

to lead him to the desired answers, Mr. Wallace

repeatedly expressed his desire to present an

insanity defense and to go to trial. Jd. at 81-82. He

could not understand the difference between a guilty

plea and going to trial, and he could not grasp the

key concept that a guilty plea meant the government

did not have to prove its case against him. Jd. at 84-

85. Despite Mr. Wallace’s confusion, the trial court

accepted his guilty plea. Jd. at 92. Apparently

concerned that the plea proceeding was inadequate,

the court took the unusual step of conducting an

additional hearing to bolster the record. See id. at

95-98 (Jan. 15, 2004 Transcript). Again, Mr. Wallace

demonstrated his confusion and inability to grasp

key concepts involved with the waiver of rights that

a guilty plea entails. See id. Nonetheless, the court

sentenced Mr. Wallace to thirty-five years in prison.

! Notably, Mr. Wallace suffered “a major seizure on December

18, 2003,” just “eighteen days before his plea hearing.” Pet.

App. 29a.

10

See Pet. App. 52a; see also CA App. 99-112 (Feb. 27,

2004 Transcript).

6. Mr. Wallace filed a timely notice of appeal,

arguing that the court erred in finding that he was

competent to stand tyal and to enter a guilty plea.

He then filed a motion to withdraw his guilty plea,

pursuant to District of Columbia Superior Court

Rule 32(e), and his appeal was stayed pending the

resolution of that motion. The trial court eventually

denied Mr. Wallace’s Rule 32(e) motion. Mr. Wallace

filed a timely appeal of the trial judge’s denial of the

Rule 32(e) motion, and the two appeals were

consolidated.

7. In the decision below, the District of Columbia

Court of Appeals denied Mr. Wallace all relief. First,

the Court of Appeals determined that Mr. Wallace

had waived his right to a direct appeal of the trial

court’s competency determination when he pled

guilty. The Court of Appeals acknowledged that

other courts had reached the contrary conclusion, but

it declined to follow those courts, concluding that

appeals of competency determinations are a “great

waste of judicial resources.” Pet. App. 6a.

The court determined that this Court’s decision in

Pate v. Robinson, 383 U.S. 375 (1966), merely

guaranteed that criminal defendants are “entitled to

procedural due process to determine whether [they]

are competent,” and did not create the right to

challenge the outcome of a competency

determination. Pet App. 5a n.5. And it found

unconvincing the argument that this Court’s

holdings in Blackledge v. Perry, 417 U.S. 21 (1974),

and Menna v. New York, 423 U.S. 61 (1975),

11

mandate that competency determinations cannot be

waived by a guilty plea because they go to the “very

power of the state ‘to halle] a defendant into court on

a charge.” Pet. App. 6a-7a n.7 (citing Menna, 423

U.S. at 62; Blackledge, 417 U.S. at 30-31). The court

suggested that while double jeopardy claims go to the

government’s ability to bring any indictment at all, a

competency determination involves “not the

government’s power to indict but the defendant’s

ability to assist in his defense at trial or to enter a

knowing and voluntary plea.” Jd. Thus, the court

refused to consider Mr. Wallace’s direct appeal of his

competency determination.

Instead, the court determined that Wallace and

others similarly situated must advance their claims

in a motion to withdraw the guilty plea. The District

of Columbia permits the withdrawal of a guilty plea

only “to correct manifest injustice.” Pet. App. 7a

(citing D.C. Super. Ct. Crim. R. 32(e)). This

“stringent” test, Pet. App. 7a-8a n.8, places an

onerous burden on the defendant; these motions will

only be granted where the plea is “fundamentally

flawed” such that there has been “a complete

miscarriage of justice.” Jd. at 8a n.9 (citation

omitted). And the trial court’s determinations in this

regard are reviewed only for abuse of discretion.

Even under this severely restricted scope of review,

the Court of Appeals acknowledged that Mr.

Wallace’s facts presented “a difficult case.” Pet. App.

la. Nevertheless, the Court of Appeals affirmed the

trial court’s denial of Mr. Wallace’s motion. See id.

12

REASONS FOR GRANTING THE WRIT

The state courts and the federal courts are

intractably divided over whether a defendant must

be allowed to appeal a competency determination

after he pleads guilty. The bar against trying an

incompetent defendant goes to the heart of the Due

Process Clause of the Fifth and Fourteenth

Amendments. Given the importance of that right

under our criminal justice system, such a conflict is

untenable. Furthermore, the decision below conflicts

with this Court’s clear precedent in Blackledge and

Menna that a guilty plea does not waive the right to

appeal constitutional claims that assert “the right

not to be haled into court at all,” Blackledge, 417

U.S. at 30 — situations in which the State may not

convict an individual “no matter how validly his

factual guilt is established,” Menna, 423 U.S. at 63

n.2. A criminal defendant’s right to appeal a

competency determination is such a right. The

District of Columbia Court of Appeals’ contrary view

— that a criminal defendant loses the right to appeal

a competency determination after he pleads guilty —

denies criminal defendants such as Mr. Wallace their

due process right to be tried only when competent.

Consequently, the District of Columbia’s decision

should be reviewed and reversed by this Court.

I. There Is A Deep And Acknowledged Split Over

The Question Presented.

The state and federal jurisdictions are divided

over whether a defendant may challenge a

competency determination after pleading guilty.

Several courts have held that a defendant may

challenge an unfavorable competency decision after

13

he pleads guilty. These courts have concluded that

while a plea of guilty constitutes a waiver of many

rights of appeal, the special nature of the competency

requirement demands that a defendant cannot forfeit

his right to contest the court’s determination, even if

he pleads guilty to a charge. Other courts have held

that a defendant may not directly appeal a

competency determination following a guilty plea.

Rather, a defendant’s sole avenue of relief is to file a

motion to withdraw the guilty plea and demonstrate

that a “manifest injustice” warrants withdrawal of

the plea, and then to seek appellate review under the

highly deferential standards that apply. The

difference in the two avenues of review is outcome

determinative in many instances, including this case.

1. Several state and federal jurisdictions have

held that a defendant does not waive his right under

the Due Process Clause of the Fifth and Fourteenth

Amendments to appeal directly a competency

determination after pleading guilty.

In People v. Armlin, 332 N.E.2d 870 (N.Y. 1975),

for example, the highest court in New York

determined that “the issue of competency to stand

trial may be raised on appeal,” even after the entry

of a guilty plea. /d. at 874. The New York Court of

Appeals reiterated this holding in People v. Seaberg,

541 N.E.2d 1022 (N.Y. 1989), confirming that a

defendant “may not waive the right to challenge ...

his competency to stand trial,” 7d. at 1025 (citing

Armlin, 332 N.E.2d at 874), even if the defendant

explicitly agreed to a waiver of this exact right of

appeal. See also People v. Frazier, 495 N.Y.S.2d 478,

479 (N.Y. App. Div. 1985) (“A defendant does not

14

waive the right to a competency hearing by pleading

guilty, and may raise for the first time on appeal the

issue of capacity to stand trial.”).

Likewise, as the D.C. Court of Appeals

acknowledged, the Vermont Supreme Court has held

that, it, too, would “treat appeals of competency

determinations as exceptions to the waiver rule.”

State v. Cleary, 824 A.2d 509, 512 (Vt. 2003). Thus,

in Vermont, defendants may seek direct appeal on

the issue of competency notwithstanding a guilty

plea.

Kentucky similarly has determined that a

defendant does not waive this right after he has pled

guilty. See Thompson v. Commonwealth, 56 S.W.3d

406, 408 (Ky. 2001). Recognizing that the “[c]riminal

prosecution of a defendant who is incompetent to

stand trial is a violation of due process of law under

the Fourteenth Amendment,” the Thompson court

found that even where “defense counsel conceded the

issue” of defendant’s competency during the plea

hearing, reviewing courts have the power of direct

review over a defendant’s appeal asserting his

incompetence. /d. (emphasis added): see also

Mitchell v. Commonwealth, No. 2000-CA-001236,

2003 WL 1339283, at *2-*3 (Ky. Ct. App. Feb. 21,

2003) (citing Thompson and _ concluding that

defendant did not waive his right to a competency

determination when he pled guilty).

‘These decisions are consistent with the approach

taken in numerous other States. In People v.

Parney, 253 N.W.2d 698 (Mich. Ct. App. 1977), for

example, a Michigan court asserted that “lilt is clear

that the United States Supreme Court, while

15

recognizing that certain rights of defendants may be

waived by a subsequent plea of guilty, does not say

that is true of all rights.” Jd. at 699 (quotation

marks omitted). Those unwaivable rights include

constitutional claims “which undercut...the state’s

authority or ability to proceed with the trial,” as

those “rights are similar to the jurisdictional

defenses in that their effect is that there should have

been no trial at all.” Jd The court found it

“unquestionablle]” that “the state is powerless to

undertake a criminal prosecution of an incompetent

defendant.” Jd. As a result, under the Due Process

Clause, a “defendant’s later guilty plea dloes] not

waive the alleged error arising from the prior

competency determination.” /d. at 699-700; see also

People v. White, 308 N.W.2d 128, 139 (Mich. 1981)

(noting that “where a claim is one that the state may

not prosecute regardless of defendant’s factual guilt,

a guilty plea does not waive the right to

subsequently raise that claim”).

Likewise, in State v. Wead, 609 N.W.2d 64 (Neb.

Ct. App. 2000), “bearling] in mind the sanctity of

constitutional protections and the need to guard

against constitutionally infirm convictions,” sd. at 68

(citing State v. Johnson, 551 N.W.2d 742, 758 (Neb.

Ct. App. 1996)), the court determined that “a

defendant’s guilty plea...does not preclude the

defendant from raising on direct appeal the issue of

competency to plead or stand trial.” /d The

Nebraska Supreme Court implicitly endorsed this

conclusion, as it considered in State v. Lassek,

without hesitation, a defendant’s competency appeal

L6

after he entered a_ plea of no contest. 723 N.W.2d

320, 324-26 (Neb. 2006).

Federal courts have determined, too, that a

defendant may appeal his competency,

notwithstanding his entry of a guilty plea. The

Southern District of New York remarked that the

notion that a defendant waives “his mental

competency claim upon entry of a guilty plea” is

“fundamentally flawed.” King v. Cunningham, 442

F. Supp. 2d 171, 185 (S.D.N.Y. 2006). The court

explained that “[clompetency’ and ‘knowing and

intelligent’ waiverls] are two separate inquiries, both

necessary components of a valid guilty plea.” Jd.

(citing Godinez v. Moran, 509 U.S. 389, 400 (1993)).

Consequently, appeals directly concerning a

competency determination must be distinct from

those considering a denial of a motion to withdraw a

guilty plea; the latter focuses on the “knowing and

intelligent” inquiry, while the former goes directly to

competency to stand trial.

2. The decision of the D.C. Court of Appeals here

conflicts directly with these decisions. As noted, the

Court of Appeals observed that, with the exception of

issues concerning “the exercise of jurisdiction by the

trial court and the legality of the sentence imposed,”

Pet. App. 5a (citation omitted), “virtually every

possible avenue of appeal is waived by a guilty plea,”

id. Recognizing that some courts have found

competency determinations to be exceptions to the

waiver rule, sd. at 6, the District of Columbia

17

“refused” to do so.2, Jd. Instead, the court held that

the defendant’s only avenue of redress is a “Rule

32(e) motion to withdraw” his guilty plea, which

“attack[s] the voluntary and intelligent nature of the

plea.’ Id. (emphasis added). As the court

acknowledged, relief under Rule 32(e) is severely

constrained. Such relief is available “only ‘to correct

manifest injustice,” id. at 7 (citing D.C. Super. Ct.

Crim. R. 32(e)), and the defendant “must establish

either that there was a fatal defect” in the plea

proceeding or that “justice demands withdrawal.”

Id. (internal citation omitted).

Although the D.C. Court of Appeals’ approach

conflicts with that adopted by most courts to have

expressly considered the issue, it is consistent with

the approach taken in some other jurisdictions. In

Tillman v. State, 570 S.W.2d 844 (Mo. Ct. App.

1978), for example, the Missouri Court of Appeals

considered a defendant’s claim — after he had pled

guilty -— “that the psychiatric reports were

insufficient in that the examining psychiatrist failed

to determine his mental deficiency,” thus placing the

court’s assessment of competency in doubt. Jd. at

2 The court specifically highlighted Vermont and Michigan as

jurisdictions that have found the issue of competency an

exception to the gencral waiver rule. See Pet. App. 6a & n.6.

3 District of Columbia Rule 32(e) reads: “A motion to withdraw

a plea of guilty or of nolo contendere may be made only before

sentence is imposed or imposition of sentence is suspended; but

to correct manifest injustice, the court after sentence may set

aside the judgment of conviction and permit the defendant to

withdraw the plea.” D.C. Super. Ct. Crim. R. 32(e).

18

846. Finding the claim “a mere trial error,” the court

held that the “movant’s plea of guilty waived any and

all alleged procedural infirmities antedating the

plea.” Jd. The court concluded that “[alny

contentions regarding the _ sufficiency of the

psychiatric examinations” should have been made

before the plea, or not at all. Jd.

The Florida Supreme Court has signaled that it,

too, believes that a guilty plea destroys a defendant’s

ability to appeal directly a vast majority of claims,

including a competency determination. In Robinson

v. State, 373 So. 2d 898 (Fla. 1979), the court

recognized that “[t]here is an exclusive and limited

class of issues which occur contemporaneously with

the entry of the plea that may be the proper subject

of an appeal.” /d. at 902 (emphasis added). Notably,

competency determinations were not included on the

court’s exclusive list. Rather, only claims asserting

subject matter jurisdiction, the illegality of a

sentence, the government's failure to adhere to a

plea agreement, and the voluntary and intelligent

character of the plea may form the basis of a direct

appeal after a guilty plea. Jd.

4 Jurisdictions on the other side of the debate show no sign of a

change of heart. The law in Michigan and New York, for

example, has been steady since the 1970s. See Parney, 253

N.W.2d at 699-700; Armlin, 332 N.E.2d at 874. And the

Southern District of New York has remarked that the notion

that one waives this right of appeal after a guilty plea is

“fundamentally flawed.” Cunningham, 442 F. Supp. 2d at 185.

There is little chance that either side will reconsider this

question absent action by this Court.

19

II. The Decision Below Conflicts With This Court’s

Decisions And Betrays The Promises Of The

Right To Due Process.

Certiorari is also warranted because the decision

below conflicts with this Court’s decisions, which

establish that the Due Process Clause requires that

defendants be permitted to appeal directly a

competency determination after a guilty plea.

1. In Pate v. Robinson, this Court held that “the

conviction of an accused person while he is legally

incompetent violates due process.” 383 U.S. 374, 378

(1966). And, to ensure that States guard this right,

“state procedures must be adequate to protect” it. /d.

While a defendant forfeits many important

constitutional rights when he pleads guilty, this

Court’s jurisprudence confirms that the right to be

tried only when competent is not among them. In

Blackledge v. Perry, this Court considered whether a

defendant waives the right to pursue a constitutional

double jeopardy claim after he pleads guilty. 417

U.S. 21, 29 (1974). The Court noted that when a

criminal defendant enters a guilty plea, he forfeits

the right to complain of “antecedent constitutional

Further, there is no recent trend towards a particular view.

Vermont, for example, determined in Cleary in 2003 that it will

“treat appeals of competency determinations as exceptions to

the waiver rule,” 824 A.2d at 512, while the District of

Columbia recently came to the opposite conclusion in the

present matter. Considering these recent, opposing decisions,

there is no benefit to further percolation, as this entrenched

and intractable split will not be settled without this Court’s

review.

20

violations” through direct appeal. Jd. at 30 (citing

Tollett v. Henderson, 411 U.S. 258 (1973)). The

forfeited rights, however, cannot go “to the very

power of the State to bring the defendant into court

to answer the charge brought against him.” /d. at

30. Thus, while a defendant gives up his right to

appeal a coerced confession, for example, see id., he

does not give up the guarantee of an appeal for the

“distinctive” rights barring “[tlhe very initiation of

the proceedings against him.” /d. at 30-31. The due

process prohibition against double jeopardy is one of

those rights, for “its practical result is to prevent a

trial from taking place at all, rather than to

prescribe procedural rules that govern the conduct of

a trial.” Jd. (quotation marks omitted).

This Court’s decision in Menna v. New York, 423

U.S. 61 (1975), in which the Court again held that a

guilty plea does not waive a double jeopardy claim, is

to the same effect. In Menna, this Court explained

that “a counseled plea of guilty is an admission of

factual guilt so reliable that, where voluntary and

intelligent, it quite validly removes the issue of

factual guilt from the case.” /d. at 63 n.2. As a

result, any claim on appeal that would go towards

the factual guilt of the defendant is waived by a

guilty plea. However, where “the claim is that the

State may not convict [the defendant] no matter how

validly his factual guilt is established,” a guilty plea

does not bar direct appeal. Jd. Thus, a guilty plea

does not waive a claim — lke a double jeopardy claim

— that contends that “the charge is one which the

State may not constitutionally prosecute.” Jd.

21

2. For the very reasons that defendants do not

waive their right to a double jeopardy claim after a

guilty plea, the Due Process Clause does not permit

such a waiver of claims concerning competency

determinations. Competency determinations, like

double jeopardy, go to the very power of the

government to force a defendant to answer to a

charge. When a defendant is deemed incompetent,

the determination “preventls] a trial from taking

place at all,” just as a valid double jeopardy claim

bars initiation of proceedings. Blackledge, 417 U.S.

at 30-31 (quotation marks omitted).5

In addition, whether a defendant is competent

to stand trial is entirely separate from the question

of his factual guilt. Even if there is incontrovertible

evidence that a defendant is guilty, the government

may not initiate proceedings against him if he is

incompetent. Thus, because a guilty plea “simply

renders irrelevant those constitutional violations not

logically inconsistent with the valid establishment of

factual guilt and which do not stand in the way of

conviction if factual guilt is validly established,”

Menna, 423 U.S. at 62-63 n.2, the mght to claim

incompetence to stand trial — like the right to assert

a double jeopardy violation — survives a guilty plea.

The D.C. Court of Appeals’ contrary conclusion

cannot be squared with this Court’s clear directives

5 See also United States v. Broadus, 450 F.2d 639, 641 (D.C.

Cir. 1971) (permitting a defendant who had entered a guilty

plea but later asserted that the statute under which he was

prosecuted had been found unconstitutional prior to his plea to

raise that contention on appeal because “the guilty plea should

not be allowed to accomplish what the Government could not

constitutionally accomplish”).

22

and with the guarantees of the Due Process Clause of

the Fifth and Fourteenth Amendments.®

Ill. The Conflict Is Recurring And Important.

There can be no question that this conflict

matters to criminal defendants like Wallace and to

the integrity of our judicial system at large.

1. This Court’s decision in Drope v. Missouri, 420

U.S. 162 (1975), makes clear that the prohibition on

trying an incompetent person is fundamental to an

adversarial system. /d. at 171-72. The trial of an

incompetent person is akin to the repugnance of a

trial in absentia; an incompetent person, for all

intents and purposes, is not present in the courtroom

in a legally meaningful sense, for he “is in reality

afforded no opportunity to defend himself.” Jd. at

171. He cannot understand the meaning of the

proceedings against him. He is unable to assist his

lawyer in the preparation of his defense — a disability

that inevitably taints the reliability of the outcome.

See Richard J. Bonnie, The Competence of Criminal

Defendants With Mental Retardation To Participate

In Their Own Defense, 81 J. Crim. L. & Criminology,

6 The D.C. court attempted to distinguish Menna and

Blackledge by claiming that those cases involved the

government's very power to indict, while the question presented

herein involved a different matter — “the defendant’s ability to

assist in his defense at trial or to enter a knowing and

voluntary plea.” See Pet. App. 7a n.7. But that description

trivializes and misconstrues the right at issue. As this Court

made clear in Pate, Due Process deprives the State of the power

to try one who is incompetent, and thus, for purposes of

determining whether a guilty plea waives the right to appeal,

competency claims and double jeopardy claims stand on the

same footing.

23

419, 427 (1990). And finally, he is unable to exercise

the judgment needed to make the decisions that this

Court has held must be made by the defendant

himself in a criminal proceeding. See e.g., Rock v.

Arkansas, 483 U.S. 44, 51-53 (1987) (whether to

testify); Breokhart v. Janis, 384 U.S. 1, 7-8 (1966)

(whether to plead guilty); Adams v. United States ex

rel. McCann, 317 U.S. 269, 275-77 (1942) (whether to

waive a jury trial). When a defendant’s competency

is in question, such that he cannot reliably be said to

possess the ability to play these roles within the

proceeding against him, our adversarial system fails.

2. Requiring a defendant to proceed through a

motion to withdraw a guilty plea, rather than a

direct appeal has a real and substantial effect on the

defendant’s ability to vindicate this fundamental

night.

The root of the defendant’s burden lies in the

decision forming the basis of the court’s review on

appeal; in the jurisdictions that permit direct appeal,

the initial competency determination — and not the

guilty plea — forms the basis of review. The initial

competency inquiry is governed by the standard

announced by this Court in Dusky v. United States,

362 U.S. 402 (1960). For a criminal defendant to be

competent to stand trial or plead guilty, he must

possess a “rational as well as a_ factual

understanding of the proceedings against him,” 7d. at

402, a “sufficient present ability to consult with his

lawyer with a _ reasonable degree of rational

understanding,” id., and the ability “to assist in

preparing his defense.” Drope, 420 U.S. at 171; see

24

competency standard for pleading guilty is the same

as the competency standard for standing trial). The

competency question is resolved by a_ simple

preponderance of the evidence. See Cooper v.

Oklahoma, 517 U.S. 348, 355 (1996) (holding that a

defendant may not be required to stand trial where

he has shown it is more likely than not that he is

incompetent to stand trial).

In contrast, in jurisdictions such as the District of

Columbia that preclude direct appeal, it is the

motion to withdraw a guilty plea that is under

review. The defendant’s burden in such a motion is

severe. In the District of Columbia, for example, “[a]

guilty plea may be withdrawn after sentencing only

if the defendant affirmatively establishes that the

trial court's acceptance of her plea was manifestly

unjust, and that the plea _ proceeding was

fundamentally flawed such that there was a

complete miscarriage of justice.” Johnson v. United

States, 631 A.2d 871, 874 (D.C. 1993) (emphasis

added). District of Columbia courts acknowledge

that this is a “high standard.” See Southall v. United

States, 716 A.2d 183, 188 (D.C. 1998); see also Pet.

App. 7a n.8 (describing the manifest injustice

standard as “stringent”).’

Thus, the defendant proceeds to appeal in each

instance with a very different sort of determination

under review. On direct appeal, the question is

whether the defendant was competent; on review of

7 Missouri and Florida, too, permit a defendant to withdraw his

guilty plea only upon a showing of “manifest injustice.” See,

e.g., Elam v. State, 210 S.W.3d 216, 217 & n.1 (2006) (citing Mo.

_:R. 29.07(d)); Williams v, State,.316 So. 2d 267,.273 (Fla. 1975). . --

25

denial of the Rule 32(e) motion, the question is

whether there was a manifest injustice. And because

the trial court considers a Rule 32(e) motion with a

strong presumption against granting it, individuals

such as Mr. Wallace face a double hurdle on appeal

that all but forecloses the possibility of prevailing,

even in cases such as Mr. Wallace’s in which there is

strong evidence of incompetence. In short, review of

a denial of a Rule 32(e) motion is not an adequate

replacement for direct review.

3. Not only is this right important, its denial has

potentially great reach. A vast majority of criminal

defendants choose to plead guilty, rather than face a

trial. In 2004, for example, 95% of felony convictions

in state courts resulted from a guilty plea. See U.S.

Dep't of Justice: Office of Justice Programs,

Sourcebook of Criminal Justice Statistics 2004 Table

5.46.2004, available at

http://www.albany.edu/sourcebook/pdf/t5462004. pdf.

It follows that a high number of defendants whose

competency is in question ultimately will face the

choice of whether to plead guilty, and statistics

support the conclusion that many will “choose” this

option. Thus, whether a defendant may directly

appeal his competency determination after a plea of

guilty is a question that has the potential to affect in

a serious way a large number of criminal defendants.

Finally, this issue critically affects not only the

defendants themselves, but also their attorneys. Ifa

lawyer believes her client to be incompetent,

regardless of the trial court’s determination on the

issue, she is presented with an impossible dilemma

-::‘In- jurisdictions. foHowing- the: District: ef -Columibia--*-:--°: +>

26

rule.8 An attorney may be tempted to advise her

client to accept a plea bargain where the attorney

doubts that the client will be able to adequately

assist in his defense at trial. Yet, the attorney must

do so knowing that a guilty plea will destroy the

defendant’s right to appeal the competency

determination — a particularly vexing situation when

the attorney believes the decision was erroneous.?

8 According to one study, “attorneys have some doubt about the

mental capacity of their clients in eight to fifteen percent of

felony cases.” See Richard J. Bonnie, et al., Decision-Making in

Criminal Defense: An Empirical Study of Insanity Pleas and

the Impact of Doubted Client Competence, 87 J. Crim. L. &

Criminology 48, 49-50 (1996). This statistic is even higher

when considering criminal proceedings in which the defendant’s

competency has been formally put into question: In a study of

the cases of 139 criminal defendants — 89% of whom were sent

for pre-trial evaluation for competence to stand trial — almost

three-quarters of the trial attorneys reported that they had

doubts about their clients’ ability to participate in his own

defense, regardless of the official determination of competency.

Id. at 52-53. Thus, the dilemma attorneys may face is a real,

substantiated problem.

® Particular concerns with potentially incompetent defendants

pleading guilty include the distinct possibility that admissions

made in the course of the plea may not be reliable and that the

defendant may not be capable of making “sufficiently

autonomous” decisions. Bonnie, Competence of Criminal

Defendants, 81 J. Crim. L. & Criminology at 436-37. A defense

lawyer's decision whether to recommend acceptance of a plea is

further complicated by the fact that, after a defendant is found

competent, his statements during interviews by the

government's mental health a may be. used against him as

-*-at trial. See; e.2.. ‘D.C -Cude’$ 24-531. 10. -

27

On the other hand, the attorney may advise her

chent to proceed to trial, with a defendant she

believes to be minimally competent, in large part to

preserve her client’s right to a direct appeal of the

competency determination. In this scenario, the

defendant’s right of appeal is secure. Yet, because

the client’s ability to assist in his defense is

impaired, the attorney will be severely limited in her

ability to conduct an adequate defense. The

possibility of an unfavorable result is_ real,

particularly when compared to the potentially more

lenient plea offer the defendant has foregone.

In short, a rule barring direct appeal of

competency determinations forces criminal attorneys

to walk a fine line that has immeasurable

implications for defendants’ rights — a situation this

Court should not condone.

IV. This Case Presents An Ideal Vehicle To Resolve

The Issue.

This case presents an ideal vehicle to resolve this

split and to correct the erroneous position held by the

court below. The issue was squarely presented below

and decided by the District of Columbia courts.

Further, the evidence of incompetence was strong,

indeed overwhelming. See e.g., Pet. App. la (noting

that this is a “difficult case”). Thus, Mr. Wallace’s

ability to appeal directly his competency

determination was critical, and, in fact, outcome

determinative. Had Mr. Wallace pled guilty in

Vermont or Michigan, for example, he would have

received a _ direct review of his competency

. determination. ..And in. that direct. review, the-court..

28

would have considered whether the vast evidence of

his mental deficits demonstrated that Mr. Wallace

was, in fact, incompetent to stand trial. See Godinez,

509 U.S. at 400-01; Drope, 420 U.S. at 171; Dusky,

362 U.S. at 402.

As overwhelming evidence demonstrates, Mr.

Wallace is incompetent under the Dusky standard

due to a lifetime of diabetic comas and epileptic

seizures that have damaged his brain to the point

where he cannot rationally or factually understand a

criminal proceeding against him, or assist in his own

defense in a meaningful way. His results on the

Wechsler Adult Intelligence Scale, 3d Edition, a test

of general intellectual functioning, are telling. The

test was administered under the supervision of Dr.

Sidney Binks, a government neuropsychologist with

no stake in the trial and no incentive to distort the

outcome in either way. See Pet. App. 112a°13a. Mr.

Wallace’s IQ, was only 55 — in the “severely impaired

range.” /d. This result means that Mr. Wallace does

not even rank in the first percentile of all

individuals.!° Jd. Sub-tests found that Mr. Wallace

is largely incapable of listening to a spoken word,

understanding what it means, remembering it, and

developing a meaningful response. See id. This

disability prevents Mr. Wallace from developing a

“rational as well as factual understanding of the

10 Numerous courts have concluded that defendants with scores

higher than Mr. Wallace’s are incompetent. See, e.g., State v.

Garfoot, 558 N.W.2d 626 (Wis. 1997) (defendant with IQ of 64

found incompetent to stand trial); State v. Augustine, 215 So.

-; , 2d-634; 637 (La. 1968) (defendant: had “actual brain damage”: 2--2-: 02050"

and an IQ of 57).

29

proceedings’ and from assisting counsel in a

meaningful manner. Dusky, 362 U.S. at 402.

In addition to Dr. Binks and two experts retained

by Mr. Wallace, no fewer than five neutral

government experts independently found Mr.

Wallace incompetent to stand trial. See CA App.

113-15 (Letter from Dr. Boss); id. at 116-119 (Letter

from Dr. Piquet); 7d. at 120-21 (Letter from Mr.

Henneberry and Dr. Montalbano); id. at 131-32

(Certificate from Dr. Hugonnet). Further, the

prosecution's own experts conceded that Mr. Wallace

suffers from cognitive impairments. Dr. Stephen

Lally, for example, performed a test on Mr. Wallace

that “showed he was performing in the moderate to

severely impaired range.” Pet. App. 16a. Another

conceded that Mr. Wallace’s debilitating conditions

could have caused brain damage and that Mr.

Wallace “has a dementia.” CA App. 41 (Oct. 30, 2003

Transcript).

The trial court, however, looked past this

substantial evidence and determined instead that

Mr. Wallace was malingering. See Pet. App. 92a-

93a. This determination flies in the face of the

analysis of trained medical professionals and reliable

scientific tests. Mr. Wallace’s EEG, for example,

confirmed that Mr. Wallace exhibits “markedly

abnormal brain wave activity, with slowing over the

frontal lobes,” CA App. 181 (Letter from Dr. Hyde),

and “[gleneralized slowing consistent with a diffuse

disorder or cerebral dysfunction or encephalopathy

related to a toxic metabolic, degenerative, infectious,

inflammatory or other system process.” /d. at 190 |

(Transfer Summary Update by Dr. Shine). As one’

30

expert explained, “there’s no way you can fake or

malinger an abnormal EEG.” Jd. at 7 (October 28,

2003 Transcript). Tests administered by the

government’s own witnesses confirmed the real

nature of Mr. Wallace’s significant impairment and

the conclusion that he was not malingering. See Pet.

App. 88a-89a.

Had the reviewing court been able to examine the

undisputed scientific evidence of Mr. Wallace’s brain

damage and severely impaired cognitive functioning

and the preponderance of expert opinion that Mr.

Wallace was incompetent on a direct appeal of the

competency determination itself, rather than a

review of the trial court’s denial of Mr. Wallace’s

motion to withdraw his guilty plea, it hkely would

have found Mr. Wallace incompetent. The law of the

District of Columbia, however, prevents this review

from ever occurring. This practice, contrary to the

law of several other jurisdictions and to this Court’s

precedent, betrays the promise of Due Process and

strips Mr. Wallace of his right to be tried only when

competent.

CONCLUSION

The petition for a writ of certiorari should be

granted.

31

Respectfully submitted,

DAVID A. HANDZO

J. ALEX WARD

LAN HEATH GERSHENGORN*

JENNER & BLOCK LLP

601 Thirteenth Street, N.W.

Washington, D.C. 20005

(202) 639-6000

December 12, 2007 * Counse/l of Record

APPENDIX A

District Columbia Court of Appeals

Eric R. WALLACE, Appellant,

Vv

UNITED STATES, Appellee.

Nos. 04-CF-29%. 05-CO-1328

Before FARRELL, RUIZ ars THOMPSON, Associate

Judges.

Thompson, Associate Judge:

After accepting a guilty plea from appellant Eric

R. Wallace, the trial court found Wallace guilty of

second-degree murder and sentenced him to thirty-

five years in prison, to be followed by five years of

supervised release. Wallace contends that the court

erred in finding that he was competent to stand trial

and to enter a guilty plea, and that the trial judge

abused her discretion in denying his motion to

withdraw his guilty plea. He argues in the

alternative that his sentence must be vacated

because it was based on uncorroborated and

unreliable information.

We agree with the trial judge that this is a

difficult case. However, finding no clear error or

abuse of discretion in the court's rulings, we affirm

Wallace's conviction and deny the requested relief.

2a

Background

During early 2002, doctors at St. Elizabeths

Hospital found appellant incompetent to stand trial

in three misdemeanor assault cases that were then

pending. The government thereafter petitioned to

have appellant civilly committed. Appellant opposed

the government’s request that he be held at St.

Elizabeths pending resolution of the commitment

petition, and he was released on October 10, 2002.

Later that same day, appellant encountered Claude

McCants at 1108 4th Street, N.E., stabbed McCants

in the neck, and drove away in McCants’ vehicle,

leaving McCants to bleed to death.

Relying on a court-ordered competency screening

completed in November 2002, the court found

appellant competent to stand trial for the murder of

McCants. The court also ordered a_ criminal

responsibility study, the results of which were

summarized in a June 2003 report that concluded

that “on or about October 10, 2002, ... [appellant] was

not suffering from a mental disease or defect that

substantially impaired his ability to appreciate the

wrongfulness of his conduct or his ability to conform

his conduct to the requirements of the law.”

Notwithstanding, on August 12, 2003, appellant filed

a motion asking the court to find him incompetent to

stand trial and a notice of intent to rely on the

insanity defense. In response, the court ordered the

Legal Services Division of the Forensic Services

Administration! to render an opinion as to the

' As explained by Dr. Lawrence Oliver, a clinical psychologist

employed by the Legal Services Division, the Division is “an

3a

“present mental competency of [appellant] to stand

trial.”

Dr. Oliver performed the competency

examination. In a letter dated September 29, 2003,

he reported that although appellant “claimed to have

no knowledge whatsoever of the judicial process and

the roles of various court officials,” his “presentation

today appeared to be completely volitional.” Dr.

Oliver concluded that appellant was malingering.?

After receiving his report, the court scheduled a

competency hearing, which was conducted over a

five-day period between October 28 and November 4,

2003. Having heard the testimony of five expert

witnesses and reviewed numerous written reports

about appellant’s mental status, the court ruled on

November 10, 2003 that appellant was competent to

stand trial.

When the parties were before the court again on

January 5, 2004 — the date set for commencement of

trial-defense counsel informed the court that

appellant “indicated again last night that he would

agency that was established by an order of Congress to assist

the court in issues of competency [and] criminal responsibility.”

? Malingering is “the willful, deliberate, and fraudulent feigning

or exaggeration of the symptoms of illness or injury, done for

the purpose of a consciously desired end.” DORLAMD’S

ILLUSTRATED MEDICAL DICTIONARY 771-72 (26t ed.

1981). The desired end can be “avoiding military duty, avoiding

work, obtaining financial compensation, evading criminal

prosecution, or obtaining drugs.” DIAGNOSTIC AND

STATISTICAL MANUAL OF MENTAL DISORDERS 739 (4t

ed. 2000).

4a

like to accept the Government’s plea offer.” After a

colloquy that resulted in the court’s finding that

appellant “understands the proceedings and is

competent to proceed,” the court accepted appellant’s

unconditional plea of guilty to one count of Second

Degree Murder While Armed. At a Frendak hearing

on January 15, 2004, the court also found that

appellant “understands the consequences of the

choice to waive the [insanity] defense” and that his

“waiver is voluntary and intelligent.” The court

sentenced appellant on February 27, 2004, and

appellant filed his notice of appeal on March 26,

2004. On August 19, 2004, he also moved to

withdraw his guilty plea, and his appeal was stayed

pending resolution of that motion. By order dated

October 27, 2005, the trial court denied the motion to

withdraw and appellant noted an appeal from the

denial order. We consolidated the two appeals.

Analysis

I.

The government urges that we must dismiss

appellant’s direct appeal. We agree that our case law

requires this result. We have said that “as a practical

matter virtually every possible avenue of appeal is

waived by a guilty plea,” Bettis v. United States, 325

* See Frendak v. United States, 408 A.2d 364 (D.C. 1979).

Through a Frendak inquiry, the trial court must assure itself

that the detendant understands the consequences of failing to

assert the insanity defense, is fully informed of the alternatives

available, and freely chooses to waive the insanity defense. See

Id. at 380.

5a

A.2d 190, 194 (D.C. 1974), and that “the only issues

that are appropriately raised in an appeal from a

conviction entered after a guilty plea are the exercise

of jurisdiction by the trial court and the legality of

the sentence imposed.” Carmichael v. United States,

479 A.2d 325, 326 n.1 (D.C. 1984) (citing Lorimer v.

United States, 425 A.2d 1306, 1308 (D.C. 1981) (per

curiam)). We have recognized that “a defendant who

is sentenced after pleading guilty may later attack

the voluntary and intelligent character of the plea,”

McClurkin v. United States, 472 A.2d 1348, 1352

(D.C. 1984), but have held that “the appropriate

method for challenging the voluntary and intelligent

character of a guilty plea is by a Rule 32(e) motion to

withdraw.”4 Lorimer, 425 A.2d at 1309.5

* Super. Ct. Crim. R. 32(e) provides that: A motion to withdraw a plea of

guilty or of nolo contendere may be made only before sentence ts

imposed or imposition of sentence is suspended; but to correct manifest

injustice, the Court after sentence may sct aside the judgment of

conviction and permit the defendant to withdraw the plea. /d.

5 Appellant argues that the preclusion of his direct appeal

amounts to a holding that he waived the issue of competence, a

result that he contends conflicts with the Supreme Court’s

admonition, in Pate v. Robinson, 383 U.S. 375, 86 S. Ct. 836, 15

L. Ed. 2d 815 (1966), that “it is contradictory to argue that a

defendant may be incompetent, and yet knowingly or

intelligently ‘waive’ his right to have the court determine his

[competencel.”/d. at 384. In Pate, however, the Supreme Court

was concerned with “the failure to observe procedures adequate

to protect a defendant’s right not to be tried or convicted while

incompetent to stand trial,” a deprivation of due process. Jn re

W.A.F., 573 A.2d 1264, 1266 (D.C. 1990). In other words, Pate

established that a defendant is entitled to procedural due

process to determine whether he is competent. Here, appellant

does not assert that procedural protections were lacking: we

6a

As appellant points out, some jurisdictions have

determined to “treat appeals of competency

determinations as an exception to the ... rule” that “a

voluntary guilty plea waives all nonjurisdictional

defects in the proceedings leading up to the plea.”

State v. Cleary, 175 Vt. 142, 824 A.2d 509, 512 (Vt.

2003).6 This court, by contrast, has “refusled] to

exercise our jurisdiction to hear a challenge to a

guilty plea” outside the context of an appeal from

denial of a motion to withdraw a guilty plea,

Lorimer, 425 A.2d at 1809 n.6, with the objective of

“reducling] the great waste of judicial resources

required to process frivolous attacks on guilty plea

convictions.” /d. (internal quotation and citation

omitted).7 Even were we free to depart from that

think he could not legitimately do so, as the court ordered two

competency assessments and conducted an_ extended

competency hearing, at which the trial judge repeatedly gave

counsel latitude to pursue questioning and took pains not to

“squeeze anybody out.” Appellant’s challenge is rather to the

outcome of the competency determination. Nothing in Pate

compels a holding that a defendant who has received the

benefit of such proceedings must be allowed to challenge his

competency again on direct appeal following a guilty plea.

© Other courts have reasoned that because a defendant’s mental

incompetence undercuts a state’s authority to proceed to trial, a

claim that the defendant was incompetent is a claimed

jurisdictional defect that is not waived by a guilty plea. See,

e.g. People v. Parney, 74 Mich. App. 173, 253 N.W.2d 698, 699-

700 (Mich. Ct. App. 1977) (“[Dlefendant’s later guilty plea did

not waive the alleged error arising from the prior competency

determination.”).

’ Appellant suggests that this court’s approach is inconsistent

with Menna v. New York, 423 U.S. 61, 96S. Ct. 241, 46 L. Ed.

7a

practice in this case, we would have no reason to do

so, because, as noted, appellant did in fact move in

the trial court for leave to withdraw his plea, and we

have before us his appeal from the trial court’s

decision denying that motion.

After the imposition of sentence, as in this case, a

court will allow the withdrawal of a guilty plea only

“to correct manifest injustice....” Super Ct. Crim. R.

32(e).8 To meet this burden, appellant must

2d 195 (1975). Menna was indicted for and pled guilty to

refusing to answer questions before a grand jury after he had

already been sentenced to a jail term for civil contempt for the

same refusal to testify. The Supreme Court reversed his

conviction, reasoning that where “the claim is that the State

may not convict petitioner no matter how validly his factual

guilt is established,” a “guilty plea ... does not bar the claim,” zd.

at 63, and admonishing that “[wlhere the State is precluded by

the [double jeopardy clause of the] United States Constitution

from haling a defendant into court on a charge, federal law

requires that a conviction on that charge be set aside even if the

conviction was entered pursuant to a counseled plea of guilty.”

Id. at 62. However, Menna involved the very power of the state

to “halle] a defendant into court on a charge.” Menna, 423 U.S.

at 62; see also Blackledge v. Perry, 417 U.S. 21, 94S. Ct. 2098,

40 L. Ed. 2d 628 (1974), a case where “the constitutional

infirmity in the proceedings lay in the State’s power to bring

any indictment at all” and the “very initiation of proceedings

against [the defendant] ... operated to deny him due process of

law.” Jd. at 30-31. By contrast, when a defendant’s compctency

is in issue, the issue is not the government’s power to indict but

the defendant’s ability to assist in his defense at trial or to

enter a knowing and voluntary plea. Menna and Blackledge do

not dictate that in this circumstance the defendant must be

able to bring a freestanding appeal of the competency

determination as though he had never pled guilty.

8 See Edwards v. United States, 766 A.2d 981, 988 n.10 (D.C.

8a

establish either that “there was a fatal defect in the

Rule 11 [plea] proceeding when the guilty plea was

taken,” or that “justice demands withdrawal under

the circumstances of the case.” Pierce v. United

States, 705 A.2d 1086, 1089 (D.C. 1997).2 We review

a trial court order denying a Rule 32(e) motion to

withdraw a guilty plea for abuse of discretion. See

Carmichael, 479 A.2d at 327. In lght of the

procedural history of this case, our review here will

2001) (noting that a post-sentencing motion to withdraw a

guilty plea is reviewed under the stringent “manifest injustice”

standard rather than under the more liberal] “if for any reason

the granting of the privilege seems fair and just” standard

applicable to a pre-sentencing motion to withdraw a plea);

Binion v. United States, 658 A.2d 187, 191 (D.C. 1995) (same).

We have held that “lilf it appears that a defendant [who has

filed a Rule 32(e) motion] ... did not knowingly plead, then

‘manifest injustice’ warranting withdrawal of the plea will

generally be found.” Carmichael, 479 A.2d at 327. We have also

recognized that “({a] defendant’s mental competency,” one of the

issues that appellant raises here, is “closely related to his

ability knowingly to enter a plea.” Jd.

9 Elsewhere we have said that both prongs of this test must be

met: “In order to withdraw a plea, the movant must not only

demonstrate that the plea was manifestly unjust, but must also

show that ‘the plea proceeding was fundamentally flawed such

that there was a complete miscarriage of justice.” Edwards, 766

A.2d at 987 (emphasis added) (quoting Williams v. United

States, 656 A.2d 288, 293 (D.C. 1995). We need not resolve

which articulation is the more accurate statement of the law

because, as explained infra, we conclude (with some difficulty)

that appellant has not met either prong of the test.

9a

largely entail application of a “clear error” standard,

as we now explain.!°

Appellant first attempts to meet the burden of

establishing that “justice demands withdrawal” of

his guilty plea by showing that he was mentally

incompetent at the time of the plea. See Willis v.

United States, 468 A.2d 1320, 1323 (D.C. 1983)

(“Having failed to show that he was mentally

incompetent, [appellant] has also failed to meet his

burden of proving manifest injustice.”). He attempts

to make that showing by challenging the validity of

the trial courts determination that he was

competent to stand trial. See Godinez v. Moran, 509

U.S. 389, 400-01, 113 S. Ct. 2680, 125 L. Ed. 2d 321

(1993) (holding that the competency required to

plead guilty is the same as the competency required

for standing trial). Accordingly, we are compelled to

consider whether the trial court’s November 10, 2003

competency determination is “supported by the

record,” Bennett v. United States, 400 A.2d 322, 325

(D.C. 1979), or whether the trial court clearly erred

when it determined on November 10, 2003 that

appellant was competent to stand trial!! (or when it

'° See Cooter & Gell v. Hartmarx Corp., 496 U.S. 384, 405, 110

S. Ct. 2447, 110 L. Ed. 2d 359 (1990) (noting that a court “would

necessarily abuse its discretion if it based its ruling on... a

clearly erroneous assessment of the evidence”).

Mt ay finding of competency will not be set aside upon review

unless it is clearly arbitrary or erroneous.” Bennett, 400 A.2d

at 325 (internal quotation marks and citation omitted). The

“clearly erroneous” standard applies because a trial court’s

competency determination is largely a factual determination,

see United States v. Izquierdo, 448 F.3d 1269, 1278 (11th Cir.

10a

relied on that conclusion in accepting Wallace’s

guilty plea on January 5, 2004, without any further

hearing on competency).

Appellant next argues that the Rule 11 plea

proceeding was defective because, regardless of his

mental competency, he did not actually understand

the significance of the proceeding and the rights he

was waiving. We therefore have the task of

determining whether the trial court clearly erred in

finding that appellant made his guilty plea

knowingly.'!2 See Johnson v. United States, 631 A.2d

871, 878-79 (D.C. 1993) (Farrell, J., concurring)

(noting that the clear error standard prescribed by

D.C. Code § 17-305(a) applies to review of the trial

2006) (“A [trial] court’s competency determination is primarily

factual in nature.”) and United States v. Villegas, 899 F.2d

1324, 1341 (2d Cir. 1990) (“A defendant’s competence to stand

trial is a question of fact ....”), which must be accorded “great

deference.” Bennett, 400 A.2d at 325.

12 As appellant notes, “(t]he focus of a competency inquiry is the

defendant’s mental capacity [e.,] whether he has the ability to

understand the proceedings.” Godinez, 509 U.S. at 401 n.12

(emphasis removed). The focus of a Rule 11 “ ‘knowing and

voluntary’ inquiry, by contrast, is to determine whether the

defendant actually does understand...."/d. (emphasis in

original): see also id. at 400-01 (“In addition to determining that

a defendant who seeks to plead guilty ... is competent, a trial

court must satisfy itself that the waiver of his constitutional

rights is knowing and voluntary.... In this sense there is a

‘heightened’ standard for pleading guilty ..., but it is not a

heightened standard of competence.’(internal citations and

emphasis omitted)).

lla

judge’s findings based on a defendant’s statements

during a plea inquiry).

II.

As already noted, appellant contends that “justice

demands withdrawal” of his guilty plea because of

his lack of mental competency. He argues that the

evidence presented at his competency hearing-his

diagnoses of cognitive impairment and “dementia

due to seizure disorder and _ insulin-dependent

diabetes,” and the fact that “six different doctors

independently determined that [he] was not

competent to stand trial” — either taken alone or

viewed in conjunction with post-competency-hearing

evidence presented with his motion to withdraw,

compels a conclusion that he was incompetent to

stand trial and to plead. We consider these

arguments in section II .A. infra.

Appellant also asserts that he “was obviously

confused throughout the plea proceedings” and that

the trial judge abused her discretion, both in

accepting his guilty plea and in denying his motion

to withdraw the plea, in the face of his repeated

assertions about self-defense, lack of excessive force,

and the insanity defense. We address. these

arguments in section II:B. infra.

A. Appellant’s Competence to Stand Trial or

Plead Guilty

“Constitutional due process requires that a

criminal defendant be mentally competent for a trial

to proceed.” Higgenbottom v. United States, 923 A.2d

891, 897 (D.C. 2007) (citation omitted). In a

12a

competency proceeding, the relevant inquiry is

whether a defendant has a rational and factual

understanding of the proceedings against him and

whether he can consult with his lawyer and assist in

preparing his defense. See id., see also Dusky v.

United States, 362 U.S. 402, 80 S. Ct. 788, 4 L. Ed.

2d 824 (1960) (per curiam) (establishing the

requirements of rational and factual understanding

and competent consultation with a lawyer) and

Drope v. Missouri, 420 U.S. 162, 171, 95 S. Ct. 896,

43 L. Ed. 2d 103 (1975) (requiring a defendant to be

able to “assist in preparing his defense”).

a. Evidence Presented at the

Competency Hearing

At the competency hearing in this case, appellant

presented evidence that he had long suffered from

Type I diabetes, causing him to experience erratic

and abnormal swings in his blood sugar, and that he

also had a long history of epileptic seizures. Dr.

Thomas Hyde, a board-certified neurologist who

examined and tested appellant on April 23, 2002,

and October 6, 2003, testified that “due to poorly

controlled seizures and repeated hypoglycemic

insults to the brain over the years,” appellant was in

a “cognitively impaired state” and had “significant

impairment in neurological function, especially in

domains of attention and memory” that “would

impair his ability to understand the proceedings that

he would be involved with, and to participate and

work with his counsel in an effective manner” and

that “render him incompetent from the medicallegal

standpoint.” Dr. Hyde also testified that appellant's

13a

“Full Scale IQ was found to be 55” and that “people

who are below 60 are really quite significantly

impaired.”

Dr. David Pickar, a _ psychiatrist,!3 met with

appellant on three different occasions-January,

April, and September of 2003. He testified that

appellant demonstrated perseveration, a symptom of

frontal lobe dysfunction. Dr. Pickar also testified that

during his September 2003 evaluation of appellant,

he explored at some length appellant’s

understanding of the legal process. He found

appellant “unable to understand the fundamental

nature of the defense-prosecution, defendant

relationship” and ‘luJnable to understand

relationship with defense attorney.” Dr. Pickar did

not think that appellant “got [i.e., comprehended] the

idea of pleading guilty.” Dr. Pickar concluded that

appellant “does not have sufficient understanding of

the legal process, or the ability to work appropriately

with counsel in the context of a central nervous

system disorder that involves dementia, probably

secondary to epilepsy; and that he is not competent

to stand trial, and that the deficits that are germane

to this conclusion are not related to malingering.”!4

'* Dr. Pickar also spoke with appellant’s family, interviewed

doctors that treated appellant at St. Elizabeths, and reviewed

appellant’s medical records.

'4 The court also had before it the opinions of doctors who had

performed the criminal responsibility examination during the

spring of 2003 and doctors who had examined appellant during

the time that he was evaluated at St. Elizabeths Hospital for

the purpose of determining whether he was competent to stand

14a

The government’s experts did not dispute that

appellant had some degree of cognitive impairment.

Dr. Raymond Patterson,!®> a forensic psychiatrist who

trial in his misdemeanor cases. On May 5, 2003, Dr. Sidney

Binks, a neuropsychologist, reported that appellant’s test scores

“suggested significantly impaired cognitive functioning

comparable to those of a group of elderly individuals with

dementia” and concluded that appellant “did not malinger.” On

January 2, 2002, psychologist Dr. Anita Boss stated that

appellant was “unable to participate in court proceedings at

this time” and that “it is unclear if his condition will

significantly improve and a minimum of 30 to 45 days is

recommended before re-evaluation.” On January 30, 2002, Dr.

Michele Piquet stated that appellant was “not competent to

stand trial because cognitive factors substantially impair his

capacity to have a factual and rational understanding of the

proceedings against him, and to properly assist counsel with

preparation of his defense.” In a letter dated March 27, 2002,

the Forensic Inpatient Services Division (“FISD”) of the District

of Columbia Department of Mental Health reported that it was

“too early in treatment program to determine the likelihood of

Mr. Wallace attaining competency in the foreseeable future.”

On May 24, 2002, FISD reported that it was “unlikely that Mr.

Wallace will attain competency in the foreseeable future.” On

June 26, 2002, psychologist Dr. Mitchell Hugonnet stated that

appellant’s “judgment was severely impaired,” that he was

diagnosed with dementia due to diabetes and epilepsy, and that

he was “unable to manage the basic concepts associated with

competency to stand trial.”

'’ Dr. Patterson examined appellant only once. He also spoke

with two of appellant's treating physicians and_ several

individuals that supervised appellant at both the mental

hospital and the jail, and reviewed “quite a lot of records” from

“every expert [that] has testified....”. In addition, he observed

that “being here in the courtroom and hearing [appellant’s]

capacity to render information when he chooses to [was] also

quite helpful” to him in evaluating appellant's competence.

15a

had completed several hundred competency

examinations, testified that he “had no conflict” with

tests showing that appellant had some degree of

neurological damage and acknowledged that “there

might be some mild dementia,” but stated that this

“does not mean that [appellant] does not have the

ability ... to exaggerate as much as he might think he

should to convince people that he doesn’t know

what’s going on.” Dr. Patterson opined that appellant

“certainly was malingering” and “certainly was ...

exaggerating symptoms ... when they said he had an

IQ of 55, because I simply don’t believe he has an IQ

of 55.” Dr. Patterson cited specific examples of

appellant's malingering: “choosing how [hel

respond[s] based on who [he’s] talking to”;

appellant’s “ridiculous” response to a question about

the colors of the American flag, a question that even

mentally retarded individuals and people with

serious mental illness “don’t miss”; appellant’s claim

to hear voices but his ability to concentrate and his

lack of distraction, which are inconsistent with that

affliction; and his exhibiting “high-level” planned

behavior, such as injecting himself with insulin to

get medical attention in the emergency room faster

than other people.

Dr. Patterson further testified that appellant’s

behaviors inconsistent with an IQ level of 55

included acting as a “predator” while at St.

Elizabeths but not while in jail, where appellant

appeared to be “normal,” lke “any other inmate who

is not receiving mental health services.” Dr.

Patterson agreed with a statement in a discharge

summary, attributed to Dr. William Richie, one of

16a

appellant’s treating psychiatrists at St. Ehzabeths,

that appellant was “capable of dissimulating,

fabricating, prevaricating and malingering cognitive

disabilities in excess of his documented deficits.”

Noting that the issue was “whether or not [appellant]

understands, rationally and _ factually these

proceedings, the charges against him, the

consequences; and can he, does he have the ability to

assist his attorney,” Dr. Patterson stated that “In my

view, he has both of those.” Dr. Patterson thought

that appellant’s case was “not a close call at all,”

explaining that “when [appellant] adheres to his

treatment regime, seems to do pretty well. When he

doesn’t, he runs into problems. The latter, in my

view, are very much and directly related to his

attempts to not have this matter go forward, and in

part because he has been in a position where

precisely that has happened before.”

Dr. Steven Lally, a _ clinical and _ forensic

psychologist who had previously conducted between

200 and 250 competency evaluations,!® spent 7 1/2 to

8 hours with appellant at the D .C. Jail on October

24, 2003. Dr. Lally administered a

neuropsychological screening test that showed that

appellant was “performing in the moderate to

severely impaired _ range.” Dr. Lally also

administered a test for memory malingering that

“did not disclose malingering.” Dr. Lally explained

that the tests showed that appellant was “answering

'° Dr. Lally alsc spoke with Dr. Hugonnet of St. Elizabeths and

with appellant’s long-time girlfriend, and reviewed records from

a number of sources.

17a

in a... sort of careless random fashion,” the reason

for which the test cannot explain. Dr. Lally

concluded that one “should not put a lot of credibility

[sic] in terms of [appellant’s} performance in

psychological tests.” With respect to one of the tests,

Dr. Lally also explained that “if [the] test does not

indicate malingering, it does not mean that the

individual is not malingering. In other words, it’s a

test that’s very effective when it does indicate

malingering. But studies have shown that a number

of malingerers ... don’t necessarily get caught with

the [test].”

On the basis of an interview with appellant, Dr.

Lally concluded that appellant’s behavior was

inconsistent with the degree of impairment that

appellant claimed, but was. consistent with

malingering. Dr. Lally noted that when he would

stop taking notes during a meeting with appellant,

appellant’s speech became more spontaneous and his

answers more accurate. Further, appellant mixed

symptoms of various disorders and failed to

remember details of the crime unless the detail was

exculpatory. Dr. Lally testified that although

appellant reported “hearing voices,” his symptoms

were inconsistent with that condition. The symptoms

that appellant reported were also inconsistent from

one doctor’s visit to the next, which Dr. Lally

explained was a sign of malingering because

malingerers “don’t always know how to respond.” Dr.

Lally concluded that appellant was malingering

“both psychotic symptoms and also some degree of

cognitive impairment.”

18a

Dr. Oliver testified that he found “inexplicable

inconsistencies” between the November 2002 and

September 2003 interviews he conducted with

appellant.1? During both interviews, appellant

exhibited a good memory, was able to recite

telephone and social security numbers, and could

give background details. During the September 2003

interview, however, in contrast with the November

2002 interview, appellant had no knowledge about

the charges and legal issues discussed. Unable to

explain the differences in appellant’s behavior, Dr.

Oliver concluded that appellant was intentionally

producing symptoms.

b. The Trial Court’s Competency

Ruling

Upon this evidence the trial court found that

there was “no doubt that Mr. Wallace suffers some

cognitive deficits,” but that it was “evident from the

record” that these impairments do not “preclude him

from the rational understanding of the charges and

proceedings against him,” “nor do they preclude him

from consulting with his lawyers.” The court

concluded that appellant is “malingering and

remains competent to stand trial in this case.”

'’ Dr. Oliver had performed “somewhere around 4000”

competency evaluations, and had found in more than half the

cases that the person evaluated was incompetent. By contrast,

Dr. Hyde testified that he had previously been retained on only

five or six occasions to examine the issue of competency, always

by the defense, and had testified on competency on two or three

occasions.

19a

Appellant accuses the trial court of “lookling] past

the mountain of scientific evidence showing the

[appellant’s] incompetence” and “seizling] upon a red

herring: the prosecution’s charges of ‘malingering’....”

We are satisfied, however, that the trial judge did

not ignore or overlook appellant’s evidence of

impairment.

First, acknowledging the conflicting evidence, the

court told the parties that “this is a difficult case.”

Second, explaining its finding that appellant was

malingering, the trial court specifically relied on the

testimony that, on one of the tests for malingering,

appellant gave “careless responses which invalidated

the test results,” and that even when an individual

“passes” a malingering test “it does not mean you do

not have malingering. It just means they didn’t

choose to do it in a way that is detected in [the] test.”

Appellant emphasizes the evidence that he “passed”

two tests designed to detect malingering and asserts

that the court’s finding that he was malingering

cannot be squared with the evidence, but the trial

judge’s explanation identified evidence that, we

agree, supports her conclusion.

Third, the trial court’s finding that appellant was

competent to stand trial is not plainly contrary to the

neurological evidence of appellant’s impairment. The

defense and prosecution experts agreed that

cognitive impairment does not necessarily mean

incompetence: Dr. Hyde acknowledged that an

individual with organic brain damage can be

competent, and Dr. Patterson testified that cognitive

impairment and brain damage do not necessarily

20a

render someone incompetent to stand trial and that

a person’s having dementia does not mean that he is

incompetent. Further, there was no consensus, even

among defense experts, that appellant suffered from

psychosis or any other mental illness. 18

18 Appellant exhibited “psychotic symptomatology” during Dr.

Hyde’s visit with him during October 2003, but Dr. Hyde had

“not formed a final opinion about” whether appellant had a

mental illness. Dr. Pickar believed that appellant experienced

auditory hallucinations, but was uncertain as to whether

appellant was suffering from psychosis. Dr. Oliver opined that

appellant was not mentally ill.

We note that in a December 16, 2003 report, the District of

Columbia Commission on Mental Health referred to appellant’s

“mental illness” but appears to have utilized that term

synonymously with the term “dementia.” At one point in its

report, prepared after the Commission heard testimony from St.

Elizabeths staff psychiatrist Dr. William Richie, the

Commission stated that appellant “has difficulty attending to

daily needs without supervision due to his [mild to moderate]

dementia.” At another point in its report, the Commission

summarized Dr. Richie’s views that “one factor that would

cause [appellant] to injury [sic] himself or others is his mental

illness,” which “impairs his ability to care for himself, including

his medical care. The cognitive deficits caused by dementia will

more likely cause respondent to engage in activities that will

injure others.” Elsewhere, dementia has been distinguished

from mental illness. See, e.g, 70 Fed. Reg. 4194, 4216 (2005)

(Department of Health and Human Services Medicare program

rulemaking notice distinguishing “mental illness” from

“cognitive impairments such as Alzheimer’s disease or other

dementias”); 62 Fed. Reg. 67174, 67201 (1997) (Department of

Health and Human Services rulemaking notice stating that “a

person with a primary diagnosis of dementia would not be

considered to have mental illness”).

2la

Appellant suggests that the trial court should

have given more weight to the competency

determinations by doctors who saw appellant over

the course of his several-month-long inpatient stays

at St. Elizabeths than to the views of the doctors who

saw appellant on fewer, more abbreviated occasions.

However, in exercising her discretion, the trial judge

was entitled to credit the view of the government’s

experts that those doctors simply “got it wrong.”!9 Cf

19 It is clear from the record that the trial judge considered

whether to give special weight to the views of St. Elizabeths

doctors who saw appellant regularly while he was housed there.

During the competency hearing, the following exchange took

place between the court and Dr. Patterson:

The Court: In reviewing what records I have been able to see,

there’s a big hole here in the background. I’ve got a year where

[appellant] is at the hospital where their-a sophisticated staff is

working with him, and they are concluding that not only is he

incompetent, but he’s not likely to regain competence.

The Witness: Yes.

The Court: And then bingo, he comes in, in October, like one

day after he’s released under that finding, and he’s suddenly

competent.

The Witness: Yes.

The Court: How do you evaluate that?

The Witness: I think, frankly, that they got it wrong; that the

presentation for Mr. Wallace and the blurring of the lines and

that’s, in part, what makes it difficult, because Mr. Wallace

does have diabetes, and Mr. Wallace does, it appears, to have

had a seizure disorder for some time.

So you take those, and if you are not real careful, you can make

a jump, a leap, in my view, that he’s got such significant brain

damage or impairment that he’s not competent, and won't be

competent. I frankly don’t understand it.

I think it was a mistake. And I think that that mistake is borne

out by his level of functioning that’s seen not just in October

and November, but also scen when he’s interviewed by some of

22a

United States v. Chischilly, 30 F.3d 1144, 1150 (9th

Cir. 1994) (“[tlo the extent that [the trial judge], from

his courtroom observations, assigned more weight to

the Government’s expert than to the contrary, ... he

was acting within his discretion to do so as a part of

his fact-finding and credibility-weighing functions.”).

In some instances, this court accords greater weight

to the opinions and diagnoses of a treating physician

than to the opinions of non-treating physicians who

have been engaged to provide medical evaluations.

See, e.g., Washington Metro. Area Transit Auth. v.

District of Columbia Dep't of Employment Servs.,

926 A.2d 140, 146 (D.C. 2007) (noting that the law

affords the diagnosis of a treating physician more

weight than the conflicting opinion of a non-treating

physician in a worker's compensation

determination); Aralick v. District of Columbia Dep't

of Employment Servs., 842 A.2d 705, 711 (D.C. 2004)

(same, citing case authority). However, with respect

to competency determinations in criminal cases,

neither this court nor others have required deference

to treating physicians or to doctors who saw a

defendant on multiple occasions as an inpatient.?°

the experts in this matter, and the information that he

provides.

?° As the United States Court of Appeals for the Fourth Circuit

has explained:

[A] district judge’s discretion in these matters properly includes

the power to discount [the testimony of the defendant's personal

physician]. He might find a treating physician’s testimony

unpersuasive because he lacks confidence in the physician’s

qualifications or abilities. The trial judge must also weigh,

implicitly or explicitly, a treating physician’s candor and

23a

Moreover, even if the trial court had given special

weight to the views of appellant’s treating

physicians, no different result would have been

required. None of the experts who testified at the

competency hearing were appellant’s “treating

physicians.” But Dr. William Richie was one of

appellant’s treating psychiatrists at St. Elizabeths,

and the St. Elizabeths discharge summary discussed

at the competency hearing attributed to Dr. Richie

the statement that appellant “has [a] selective

memory and is capable of dissimulating, fabricating,

prevaricating and malingering cognitive disabilities

in excess of his documented deficits.”2! And although

other doctors who saw appellant on an inpatient

basis at St. Elizabeths in 2002 and 2003 opined that

he was unable to participate in court proceedings or

to assist counsel with his defense, see supra note 14,

experts appear to agree that an individual who is

mentally incompetent to stand trial at one point in

time may be competent to stand trial at a later time.

For example, while Dr. Boss found appellant

incompetent to participate in court proceedings in

January 2002, she also commented that it “may be

objectivity.... [Rlules developed by appellate courts in limiting

the discretion of administrative law judges and administrative

agencies-rules motivated in part by concerns about agency

independence and bias-have little or no relevance to the

exercise of discretion by a district court.

United States v. Brown, 821 F.2d 986, 990 (4th Cir. 1987)

(internal citation omitted).

*! In addition, Dr. Lally drew his conclusion that appellant was

malingering, in part, from his conversations with Dr. Richie.

24a

useful for Mr. Wallace if defense counsel can spend

even more time with him to go over the details of his

cases and legal strategy. Multiple repetitions, in

addition to frequent discussion, may help [him] recall

what he needs to know in order to better inform his

choices and ability to participate.” See also

Carmichael, 479 A.2d at 327 (noting that a doctor at

St. Elizabeths had confirmed that Carmichael was

incompetent to stand trial, “but three months later

this same doctor reported that the subject’s mental

condition had improved enough so that he was fit to

stand trial”). Notably, the record indicates that

appellant did receive “competency training” while at

St. Elizabeths. All of this is to say that even if the

court had been required to accord special significance

to the views of the St. Elizabeths doctors that

appellant was incompetent to stand trial at the time

the doctors expressed those views, deference to those

doctors’ views did not require the court to find that

appellant was incompetent to stand trial in

November 2008 or to enter a plea in January 2004.

The trial court weighed the evidence and found

that “while ... there is dementia and impairment,”

the “evidence of malingering is far more powerful

than the evidence of significant progressive

deterioration.” In essence, appellant’s disagreement

is with the weight the trial judge accorded to the

conflicting expert opinions about competency.

To disturb the trial court’s findings, however, this

court would have to re-weigh the evidence. That we

may not do.

25a

Our case law is clear that when there is a

plausible explanation presented by two competing

groups of experts, the decision is one for the fact

finder. See Jackson v. Condor Mgmt. Group, Inc., 587

A.2d 222, 225 (D.C. 1991) (“When a case turns on

controverted facts and the credibility of witnesses, as

this one does, it is peculiarly one for the [finder of

fact]. The fact that some of the witnesses may be

experts does not alter this rule.” Gnternal citation

omitted)). This principle applies with respect to

expert medical testimony just as it does to other

expert evidence. See Washington Metro. Area

Transit Auth. v. District of Columbia Dept of

Employment Servs., 770 A.2d 965, 970 (D.C. 2001)

(“In evaluating conflicting medical testimony, as in

weighing evidence generally, the hearing examiner

has wide latitude. The examiner is entitled to draw

reasonable inferences from the evidence presented,

and her decisions are especially weighty when they

involve credibility determinations.”(internal

quotation marks and citation omitted)). And it

applies with respect to competency hearings just as

it does to other proceedings. See, eg., Ray v.

Duckworth, 881 F.2d 512, 516 (7th Cir. 1989)

(holding that “[blecause of the potential for divergent

and often conflicting opinions on the issue of the

defendant’s competency, we must be careful to give

due regard to the trial court’s superior ability to

draw the appropriate inferences from its observation

of the defendant and expert witnesses, as well as the

examination reports before it,” and noting that the

trial court was making a “credibility determination”

26a

when it chose to believe the expert opining that

appellant was malingering).

In this case, the trial court was presented with

“two permissible views of the evidence as to

competency....” Villegas, 899 F.2d at 1341. “[Tl]he

court’s choice between them cannot be deemed

clearly erroneous.” /d.; see also Izquierdo, 448 F.3d

at 1278 (same). We can find no clear error in the

court’s November 2003 determination that appellant

was competent to stand trial. Accordingly, appellant

has not met the “substantial” burden he must meet

to show that withdrawal of his plea was necessary to

correct a manifest injustice. Williams v. United

States, 595 A.2d 1003, 1006 (D.C. 1991); see also

Higgenbottom, 923 A.2d at 897 (“We review a court’s

competency determination ... for abuse of discretion,

the exercise of which we will not lightly

disturb.”(internal quotation marks and citation

omitted)).

c. The Court’s Denial of the Motion to

Withdraw in the Face of Post-

Competency Hearing Evidence

Just before the plea proceedings commenced on

January 5, 2004, the court was advised that

appellant had been hospitalized for twelve days

during December 2003. The court inquired of defense

counsel whether he had “seen any significant

difference in [appellant’s] functioning since this

latest episode in the hospital.” Although defense

27a

counsel responded that he had not,?2 the information

about appellant’s post-competency-hearing

hospitalization arguably raised anew the issue of

appellant's competency. This court has held that

“where the issue of a defendant’s mental competence

[has] been raised on the record, the trial court must

conduct a specialized hearing to determine the

competence of a defendant who seeks to plead

guilty.” Edwards, 766 A.2d at 988 (quoting Hunter v.

United States, 548 A.2d 806 (D.C. 1988)). The trial

judge did not conduct a second competency hearing,

and so we must address the issue of how this bears

on appellant’s motion to withdraw his guilty plea.

The issue is an important one because the record

reveals that appellant suffered a major seizure on

December 18, 2003, and _ while hospitalized

underwent an EEG that showed what Dr. Hyde, ina

letter dated January 8, 2004, called “markedly

abnormal brain activity.”23 And, in her November 10,

*? Specifically, defense counsel responded, “No, Your Honor. My

only visit with him after this episode was last night. As the

Court knows, my view is that there are significant problems

here. I can’t say that I think they’re more significant now that

they have been. I’m not an expert on those things.”

Similarly, during the proceedings on January 15, 2004,

appellant’s counsel informed the court that there was “no

change in [appellant’s] condition since we were here on the

competency decision.” The trial court referred to this

information in denying the moticn to withdraw.

** Dr. Hyde’s January 8, 2004 letter, which was initially

presented to the court to support appellant’s sentencing

recommendation, was resubmitted as an exhibit to the motion

to withdraw the guilty plea. In the letter, Dr. Hyde noted that

28a

2003 competency ruling, the trial judge had

specifically noted Dr. Hyde’s testimony that “seizures

can result in loss of consciousness and confusion in

post seizure, as well as an impairment of cognitive

function.”

We addressed a similar situation in Edwards,

where the court conducted a plea proceeding and

accepted Edwards’ guilty plea while “unaware of his

diminished mental capacity,” which was later

documented in an_ evaluation by a_ clinical

psychologist, Dr. Levin. Dr. Levin's evaluation

described the substantial brain damage and marked

changes in cognitive functioning that Edwards had

sustained after a beating by police years earlier. See

766 A.2d at 984, 987. We noted that even though the

trial court had been unaware of this history during

the plea proceeding, the trial judge’s denial of

Edwards’ post-sentencing motion to withdraw his

plea “was informed by Dr. Levin’s evaluation.” /d. at

988.We rejected Edwards’ claim that the court had

erred in denying his motion to withdraw, noting that

the denial was “based primarily on [the trial judge’s]

personal observations of and conversations with

Edwards, factors to which we accord great

appellant “was emergently transported from jail to Greater

Southeast Community Hospital on December .8, 2003. He was

admitted with diabetic ketoacidosis, a severe metabolic

condition produced by out of control diabetes. In addition, he

suffered a major scizure in the emergency room (due in part to

a subtherapeutic blood level of Dilantin, his anticonvulsant

medication). He was admitted to the hospital, where he

remained for twelve days while his multiple metabolic problems

were corrected.”

29a

deference.” Jd. We also noted that Dr. Levin “never

opined that Edwards was incompetent to enter a

plea,” id., and that the trial judge had clearly

considered Dr. Levin’s report but rejected it as

“unpersuasive on the issue of Edwards’ competence

at the time of the plea.” /d. at 988 n.10.

We reason similarly here. It appears that Judge

Broderick was not aware of the details of appellant’s

December 2003 hospitalization and EEG at the time

of the plea proceeding, but information about both

did inform her denial of Wallace’s motion to

withdraw his guilty plea. Judge Broderick noted that

appellants EEG taken on December 24, 2003

“evidenced permanent and _ irreversible’ brain

damage,” that appellant had “a major seizure on

December 18, 2003, eighteen days before his plea

hearing,” and that Dr. Hyde “found that [appellant]

became confused for several days after ‘a bout of

severe seizures.” However, like the trial judge in

Edwards, Judge Broderick found the _ evidence

relating to the December 2003 episode unpersuasive

on the issue of competence, stating that “[nlo

evidence was presented that there was a change in

the Defendant’s [competency] since the time of the

competency findings.” We find no clear error in the

court’s assessment. Even if we discount the lay

opinions of defense counsel that there was no change

in Wallace’s functioning between the time of the

competency hearing in November 2003 and January

2004, the record does not compel a conclusion that

appellant's competency had _ diminished from

November 2003 to January 2004.

30a

As noted, Dr. Hyde’s letter of January 8, 2004,

interpreting appellant’s December 24, 2003 EEG

stated that the EEG showed “markedly abnormal

brain wave activity, with slowing over the frontal

lobes,” consistent with “permanent and irreversible

frontal lobe damage.” But Dr. Hyde did not suggest

in his letter that the new EEG showed that appellant

was incompetent at the time of his plea.?4 Indeed, Dr.

Hyde had earlier testified that an abnormal EEG

does not mean that an individual is incompetent to

stand trial, agreed that an EEG “lookled) at ... in

isolation” does not tell much about competency, and

explained that “it is possible [for an individual] to

have both normal and abnormal studies.” Also of

particular note, Dr. Hyde had explained during the

competency hearing that “you will see a lot of

abnormalities in the post-seizure period.” Taken

together, Dr. Hyde’s statements suggest that it was

to be expected that appellant’s EEG taken six days

after his December 2003 seizure would show

abnormal brain activity, and that no conclusion can

be drawn from that EEG that appellant was less

competent to enter a plea on January 5, 2004

(seventeen days post-seizure) than he had been at

the time of the competency hearing.

Moreover, the December 2003 EEG appears to be

cumulative of evidence already on the record. In his

January 8, 2004 letter, Dr. Hyde referred to the 2003

EEG as providing “additicnal evidence of abnormal

** Rather, Dr. Hyde's letter outlined appellant’s need for

medical supervision while in custody and suggested that

appellant’s brain damage qualified as “statutory mitigation in

the sentencing proceedings.”

3la

slowing over the frontal lobes” (emphasis added).

This had already been shown “by other abnormalities

on neurological examination reflecting his

underlying brain damage,” including “clumsy fine

motor movements with the left hand, bilaterial grasp

reflexes, and poor complex motor sequencing in the

hands bilaterally ."Dr. Hyde testified about these

same abnormalities at the competency hearing,

stating that in April 2003, appellant had “clumsiness

on a number of fine motor movements,” and

“primitive reflexes,” often seen in individuals with

frontal lobe dysfunction,” and noting that “there

hald] been some progressive brain damage” since

appellant’s 2000 EEG (which had also shown

“bilateral slowing over the cerebella hemispheres”).25

Cf Williams, 595 A.2d at 1005 & n.2 (psychological

report introduced at post-plea hearing had no

bearing on defendant’s competency because it added

nothing to what was already known at the time of

the plea).

Dr. Hyde’s January 8, 2004 letter discussed not

only appellant's December 24, 2003 EEG, but also

the facts that appellant’s “mental status fluctuates in

response to his seizure disorder” and that appellant

“often is confused for several days after a bout of

** With this motion to withdraw, appellant also presented a

letter from St. Elizabeths neuropsychologist Dr. Sidney Binks,

who stated that appellant suffers from dementia and severely

diminished ability to act within the confines of the law;” and a

letter from Dr. William Richie, who treated appellant during

December 2003 and who also stated that appellant showed

symptoms of dementia. This evidence, too, was cumulative.

32a

severe seizures.” It is not clear from the record

whether appellant’s December 18, 2003 seizure was

part of a “bout of severe seizures,” or whether, if

appellant was confused after the December 18

seizure, that confusion (perhaps “several days” of

confusion) had resolved or subsided by the end of his

twelve-day hospital stay. However, in denying

appellant’s motion to withdraw, the trial judge

emphasized that “[alll the evidence was considered,”

and one piece of important additional record

evidence was an evaluation by Dr. Lally, setting out

his findings from a 2.75-hour interview of appellant

that Dr. Lally conducted at D.C. Jail on December

31, 2003, 1.e., after appellant had been discharged

from Greater Southeast Community Hospital.6

During this visit with appellant, Dr. Lally observed

that appellant was “alert” and “oriented to person,

place, and time” and that appellant’s speech was

clear and at a normal volume.” Although appellant’s

“speech tended to be slower with lengthy delays in

his response to questions” about court-related

matters, there was “no evidence of a thought disorder

in the form or content of his thinking.” Appellant’s

“expression of affect was somewhat constricted, but

generally appropriate.” In short, this evaluation by

Dr. Lally-the only expert evaluation in the record

that is based on an interview of appellant after his

December 2003 seizure but before his January 5,

2004 guilty plea-contained nothing that required the

“© Dr. Lally’s evaluation was submitted to the court under cover

of the government’s January 5, 2004 “Notice of Expert Report

Issued by Government's Expert.”

33a

trial judge to conclude that appellant’s competence to

stand trial or plead guilty had diminished between

the November 2003 competency hearing and the

January 2004 plea proceedings.

We reach the same conclusion about the other

new evidence that appellant presented with his Rule

32(e) motion. Appellant contends that his Bureau of

Prison medical records generated since his guilty

plea-one dated October 22, 2004, and the other dated

January 7, 2005,-confirm that he is incompetent and

not malingering.?’ The trial judge refused to consider

these records, reasoning that they were not relevant

to appellant’s competency during the plea. The trial

court applied the appropriate standard. As the

Supreme Court instructed in Dusky, it is a

defendant’s “present ability” that should be

evaluated during competency evaluations. 362 U.S.

at 402. The trial judge did not abuse her discretion in

holding that appellant’s mental evaluations on dates

nine and twelve months after the guilty plea have

little if any relevance on the issue of whether

appellant was competent when he entered his guilty

plea. Cf£ United States v. Collins, 430 F.3d 1260,

1267 (10th Cir. 2005) (noting that a defendant’s

competency can change over time) and Aogers v.

Snyder, No. 00-007, 2001 U.S. Dist. LEXIS 8866,

*16-17 (D. Del. 2001) (disallowing new evidence

suggesting that petitioner was not competent to

7 These medical records indicate that appellant has “cognitive

deficiencies,” “adult antisocial behavior,” “Chronic dementia,” and

“episodic delirium,” and state that there was no evidence of “intentional

suppression of his performance (malingering).”

34a

stand trial in March 1996 as it was not relevant to

whether petitioner was competent to enter a guilty

plea in 1993).

Finally, as we did in Edwards, we accord great

deference to Judge Broderick’s personal observations

of and conversations with appellant, which informed

her judgment that appellant was competent to plead

guilty on January 5, 2004. The trial judge noted in

her order denying the motion to withdraw that she

“carefully assessed the Defendant at every question”

during the plea proceeding and that “the Defendant’s

mental state was understood and considered by the

Court at the time of the plea.”

For all the foregoing reasons, we cannot conclude

that the trial court abused its discretion in denying

the Rule 32(e) motion to withdraw on the grounds of

appellant’s (claimed) mental incompetency to enter a

plea.

B. The Rule 11 Proceeding

The Rule 11 plea proceeding in this case was

conducted on January 5, 2004. During a plea

proceeding, the court must make inquiry and satisfy

itself that “the defendant actually does understand

the significance and consequences of a particular

decision and whether the decision is uncoerced.”

Godinez, 509 U.S. at 401 n. 12 (emphasis omitted).

Appellant focuses on a number of exchanges that he

argues evidence his “confusion” during the plea

proceeding:

THE COURT: [Following an explanation of the

insanity defense] All right. Now, do you intend to use

35a

that defense, insanity defense?

DEFENDANT: Yes.

THE COURT: Okay. If you go to trial, you’re going to

use that?

DEFENDANT: Yes.

THE COURT: Do you want to go to trial and use that

defense?

DEFENDANT: Do I want to go to trial?

THE COURT: Yes.

DEFENDANT: I believe, yes. I believe so.

kekK*K*

THE COURT: Okay. Now, you’ve indicated today

that you would like to enter a plea of guilty; is that

correct?

DEFENDANT: Yes.

THE COURT: Now, if you enter a plea of guilty, Mr.

Wallace, do you understand that you would not

actually go to trial?

DEFENDANT: I understand.

THE COURT: All nght. And do you understand that

youd actually be admitting that you did, in fact,

commit a murder?

DEFENDANT: Yes.

THE COURT: Okay. So, therefore, there wouldn’t be

any defense at that time?

DEFENDANT: Right.

THE COURT: So if you did that, if you entered a plea

of guilty, then you wouldn’t be using the insanity

defense. Do you understand that?

DEFENDANT: Right.

THE COURT: Do you want to use the insanity

defense?

35a

that defense, insanity defense?

DEFENDANT: Yes.

THE COURT: Okay. If you go to trial, you’re going to

use that?

DEFENDANT: Yes.

THE COURT: Do you want to go to trial and use that

defense?

DEFENDANT: Do I want to go to trial?

THE COURT: Yes.

DEFENDANT: I believe, yes. I believe so.

kKk*k*

THE COURT: Okay. Now, you've indicated today

that you would like to enter a plea of guilty; is that

correct?

DEFENDANT: Yes.

THE COURT: Now, if you enter a plea of guilty, Mr.

Wallace, do you understand that you would not

actually go to trial?

DEFENDANT: I understand.

THE COURT: All right. And do you understand that

you'd actually be admitting that you did, in fact,

commit a murder?

DEFENDANT: Yes.

THE COURT: Okay. So, therefore, there wouldn’t be

any defense at that time?

DEFENDANT: Right.

THE COURT: So if you did that, if you entered a plea

of guilty, then you wouldn’t be using the insanity

defense. Do you understand that?

DEFENDANT: Right.

THE COURT: Do you want to use the insanity

defense?

36a

DEFENDANT: Yes.

THE COURT: All right. Well, de you want to go to

trial, then, or do you want to plead guilty?

DEFENDANT: Well, I would like to go to trial.

THE COURT: You would like to goto trial? All right.

So you don’t want to plead guilty to second-degree

murder today? )

DEFENDANT: No.

THE COURT: You want to have a trial with a jury?

DEFENDANT: Yes.

THE COURT: And have them decide?

DEFENDANT: Yes.

After a four-minute recess, defense counsel

reported that appellant “again indicated he would

like to take the Government’s plea offer. The

following exchange ensued:

THE COURT: All right. Mr. Wallace here. All parties

who were previously present are present again.

Mr. Handzo?

MR. HANDZO: Your Honor, we explained to Mr.

Wallace again that he has the choice of taking the

government’s plea offer to Murder II or going to trial

on Murder I and that if he accepts the Government's

plea offer of Murder II, there will be no trial and no

insanity defense or alternatively he could reject that

and go to trial on the more serious offense of Murder

I. He has again indicated that he would like to take

the Government’s plea offer.

THE COURT: Okay. All right. Let’s proceed, then.

So, Mr. Wallace, you want to take the Government's

plea offer; is that correct?

DEFENDANT: That’s correct.

36a

DEFENDANT: Yes.

THE COURT: All nght. Well, do you want to go to

trial, then, or do you want to plead guilty?

DEFENDANT: Well, I would like to go to trial.

THE COURT: You would like to go to trial? All right.

So you don’t want to plead guilty to second-degree

murder today?

DEFENDANT: No.

THE COURT: You want to have a trial with a jury?

DEFENDANT: Yes.

THE COURT: And have them decide?

DEFENDANT: Yes.

After a four-minute recess, defense counsel

reported that appellant “again indicated he would

like to take the Government’s plea offer. The

following exchange ensued:

THE COURT: All right. Mr. Wallace here. All parties

who were previously present are present again.

Mr. Handzo?

MR. HANDZO: Your Honor, we explained to Mr.

Wallace again that he has the choice of taking the

government’s plea offer to Murder II or going to trial

on Murder I and that if he accepts the Government’s

plea offer of Murder II, there will be no trial and no

insanity defense or alternatively he could reject that

and go to trial on the more serious offense of Murder

I. He has again indicated that he would like to take

the Government’s plea offer.

THE COURT: Okay. All right. Let’s proceed, then.

So, Mr. Wallace, you want to take the Government's

plea offer; is that correct?

DEFENDANT: That’s correct.

37a

THE COURT: So that means you don’t want to go

and use the insanity defense; is that correct?

DEFENDANT: No.

THE COURT: No, you don’t want to use it or, no,

that’s not correct?

DEFENDANT: No, I don’t want to use it.

THE COURT: Okay. Do you understand that if you

did go to trial, this is just if it did happen that you

went to trial, okay, and you used the insanity

defense, do you understand the Government would

still have to prove first beyond a reasonable doubt

that you committed the crimes that you’ve been

charged with?

DEFENDANT: Yes.

THE COURT: And do you understand that even if

you raise it, you could also raise other defenses, for

example, self-defense.

DEFENDANT: Yes.

THE COURT: Do you understand that if you went to

trial and used the insanity defense that that would

only be considered if the jury found first you were

guilty beyond a reasonable doubt?

DEFENDANT: Yes.

(Pause)

THE COURT: Now, after all we’ve talked about, do

you still not want to raise the insanity defense, but

instead wish to plead guilty?

DEFENDANT: Yes, that’s correct.

THE COURT: All right. Why don’t you tell me why

you want to do that.

DEFENDANT: I guess just being able to see actually

38a

evidence that was supposedly used in this particular

case.

THE COURT: So you're saying the evidence has

convinced you that it’s in your best interest to plead

guilty?

DEFENDANT: I don’t-don’t say it that way. I haven't

seen any evidence myself.

THE COURT: Im sorry then. I’m just trying to

understand your answer. Why do you want to plead

guilty in this case?

DEFENDANT: It’s just-been in courts for quite a

while now, and I just like to-for anyone to actually

show any evidence proving that I am guilty to just

show that evidence.

THE COURT: Okay. Now, do you understand that if

you plead guilty, the Government is going to tell you

what they would have proven, but they’re not going

to be bringing in witnesses and things to testify.

Do you understand that?

DEFENDANT: Correct.

After the government’s proffer of what the

evidence would show, the court asked appellant to

state what happened on the day in question. The

following exchange occurred: THE COURT: So what

you're telling me, Mr. Wallace, is you were defending

yourself? You're telling me you didn’t commit a

murder, you defended yourself? Is that what you're

telling me?

DEFENDANT: I know I used a knife in this

particular case.

THE COURT: Did you stab him in the neck?

DEFENDANT: It was in his neck

39a

THE COURT: And was it a sharp knife?

DEFENDANT: It was a butter knife.

THE COURT: Was it a sharp butter knife?

DEFENDANT: No.

THE COURT: Well, then how did it stab his neck?

DEFENDANT: That’s what I wanted to know also,

and I was-while using the vehicle-

THE COURT: Why did you feel you had to use a

knife, Mr. Wallace?

DEFENDANT: You say why?

THE COURT: Yes. Why didn’t you just punch him

back?

DEFENDANT: Well, I was on the ground myself,

and I know I was suffering from low blood sugars

myself. I was real just-just wanted to eat the-my

hamburgers that I had.

THE COURT: Well, this is more than 15 minutes

after you saw him the first time and you still hadn't

eaten your hamburgers?

DEFENDANT: I didn’t get them all. I was just

chewing on them. I didn’t actually finish them.

THE COURT: Mr. Wallace, are you telling me that

this was self-defense? Are you telling me that?

DEFENDANT: The knife was used in this case.

THE COURT: Are you telling me you used more

force than you had to use by using the knife.

DEFENDANT: I guess that didn’t have to be used. I

don’t think-no, I’m not saying that.

THE COURT: You're not saying what?

DEFENDANT: It could have been done, I guess,

getting rmght back up and catching the guy and

punching him back, I guess.

THE COURT: All nght. So you used more force than

40a

you had to use? Is that what you're saying?

DEFENDANT: I guess so....

THE COURT: Are you pleading guilty in this case

because you did, in fact, stab this gentleman with

tlo]o much force?

DEFENDANT: I don’t thirk too much force was

used.

THE COURT: Let’s go back. You said you didn’t have

to do the stabbing, right?

DEFENDANT: I didn’t have to 1:s¢ it.

THE COURT: Right, that’s what I mean. Did you do

that? Did you stab him when you didn’t have to?

DEFENDANT: I guess so.

THE COURT: You guess so or are you sure?

DEFENDANT: Yes. Yes.

THE COURT: Are you sure about that?

DEFENDANT: Yes.

THE COURT: Is that why you pleaded guilty?

DEFENDANT: Yes.

Finally, appellant focuses on the following

portions of the transcript from the January 15, 2004

Frendak hearing:

THE COURT: When you were here last time, Mr.

Wallace, we talked about whether or not you would

give up your right to an insanity defense. Do you

know what I mean by that?

DEFENDANT: Yes.

THE COURT: Do you still want to do that?

DEFENDANT: No.

THE COURT: You don’t want to give up your right?

DEFENDANT: No.

4la

THE COURT: ... Let me ask the question in a

different way okay, Mr. Wallace?

DEFENDANT: Okay.

THE COURT: What I mean by an insanity defense is

that you would go to trial and you would try to

convince the jury that you didn’t-you are not guilty of

this crime because you were insane at the time. Do

you want to go to trial and try to convince the jury

that you were insane at the time?

DEFENDANT: No.

To summarize, in the exchanges that appellant

now highlights, appellant told the trial court that he

wanted both to plead guilty and to pursue an

insanity defense, both to plead guilty and to have a

jury trial, and both to enter a guilty plea and to put

the government to its proof.28 He both pled guilty

and appeared to assert a claim of self-defense and

lack of excessive force. Although he eventually stated

affirmatively that he stabbed McCants when he did

not need to do so, this answer was preceded by the

equivocal response that he “guessled]” he had done

so. In addition, his answers to some of the court’s

questions were non-sequiturs.29 In short, appellant

*® Cf Gooding v. United States, 529 A.2d 301, 311 (D.C. 1987)

(concluding that pre-sentencing withdrawal of appellant’s guilty

plea should have been permitted, in part because “the inherent

ambiguity in appellant’s responses at the time the guilty plea

was entered implies the possibility of some confusion”).

a Appellant also quotes the following portion of the January 15,

2004 transcript as evidence of his “utter lack of understanding”

of the plea proceedings:

THE COURT: Do you want to have the [DNA] testing done or

give up your right to have the testing done?

42a

contends, the portions of the plea colloquy that he

highlights belie the trial judge’s findings that

“defendant understands his rights and.

understands the proceedings and is competent a

proceed.”

In reviewing a guilty plea, however, we must

“examinel[ } the entire plea record and analyzel ] the

totality of the circumstances surrounding the plea.”

Edwards, 766 A.2d at 987. Here, the entire plea

record and the surrounding circumstances leave no

room for doubt that “the trial court engaged in a

careful, probing, patient, and extensive colloquy”

with appellant.®° Jd. at 988. The issue is whether the

DEFENDANT: Yes, I want the testing done.

THE COURT: You want the testing done. What do you want to

have tested?

DEFENDANT: Well, not just the compact discs. Is that, is all I

see here.

The foregoing exchange is further evidence of appellant’s

having gone back and forth about whether to plead guiity or

instead to put the government to its proof, but, taken in

context, the exchange is not as incoherent as it may appear to

be in isolation. The reference to “compact discs” appears to be a

reference to the compact discs that were found in McCants’ car,

from which latent fingerprints were lifted. Thus, they were

among the physical evidence in the case that was available for

DNA testing.

°° The judge noted at the outset that she was “going to be asking

(appellant] a lot of questions ....” and that everyone should sit

“because this might take a while.” At the beginning of the

proceedings, she also invited appellant to “talk to your lawyers

at any time, and she repeatedly insisted that appellant talk to

his attorneys when she sensed that he might be confused.

Before the Rule 11 colloquy and twice during the Frendak

inquiry, the judge reminded appellant he could speak with his

43a

lawyers, and she called breaks so that appellant could do so.

Several times, the trial judge stated that she would not rush

the Rule 11 proceeding, explaining at one point that she was

“willing to take as much time as we need....”

Further, the trial judge asked appellant whether he understood

the charges against him, and required him to explain the

charges to her when he said that he did. She verified that he

was familiar with the insanity defense and asked him to

explain that to her as well. She also verified that appellant had

talked with his doctors about his insanity defense possibilities.

After appellant told the court that he wanted both to plead

guilty and to proceed to trial where he would use the insanity

defense, the trial judge recessed so that appellant could speak

with his attorneys. Although appellant derides the recess as a

“court-ordered break for a coaching session,” we see no basis for

that characterization. Immediately before the break, when

appellant expressed his desire to go to trial, the judge ended her

comments by asking defense counsel “[dlo you want a couple of

minutes to talk to [appellant] and just make sure that I’ve

gotten everything right?” The judge made clear that she had no

pre-disposed view as to what should be the outcome of the

hearing. She said that she was willing to take the time “to

resolve it in either direction,” telling the defense team that

“whatever way you want to go, we'll go.” In addition, before the

proceedings began, the judge warned the government’s attorney

that he may want to escort a possible witness into the hallway

because “we don’t know if this plea will go down.”

Finally, the judge paid careful attention to appellant’s

expressions and demeanor, noting that “when [appellant] has a

tough question, he does that little chew thing and he did that at

the last question. So I may have confused him.” Referring to

this passage, the judge stated in her order denying the motion

to withdraw the guilty plea that she “knew [appellant] so well

that [she] was able to understand his facial expressions and

determine whether or not [hel understood the proceedings. She

further asserted that she “carefully assessed [appellant] at each

44a

court “ensureld] that [appellant] clearly understood

what rights he was giving up by entering the plea

.’ Id. Several aspects of the plea record and several

circumstances persuade us that the trial judge did

not clearly err in finding that appellant did have the

requisite understanding. First, during most of the

plea proceeding, which covers fully thirty pages,

appellant provided answers that responded logically

to the court’s questions. Cf State v. Shopteese, 283

Kan. 331, 153 P.3d 1208, 1215 (Kan. 2007) (holding

that plea was knowing and intelligent where “[t]he

transcript of [the] plea hearing contains 45 pages

land o]n 30 of those 45 pages, the district judge

directly addressed [the defendant], making

painstaking inquiry, to which [the defendant] made

appropriate responses”). Appellant also asked the

court a question about the timing of sentencing that

showed an apparent understanding of the

significance of the plea proceeding.

More than once appellant took exception to the

courts summary or characterization of his

statements, showing that he was mentally engaged

in the proceedings. (e.g., “Court: Are you telling me

you used more force than you had to use by using the

knife. Defendant: ... [Nlo, I’m not saying that” and

“Court: So you’re saying the evidence has convinced

you that it’s in your best interest to plead guilty?

Defendant: I don’t-don’t say it that way .”) Further,

question” nd “was alert to [appellant's] responsiveness.” It is

precisely because the trial court is able to do this that we give

great deference to a trial judge's observations and conversations

with a defendant during a plea hearing. See Edwards, 766 A.2d

at 988

45a

the court did not permit appellant merely to assent

to the government’s proffered account of the crime,

but required him to provide his own factual account.

Appellant did so, thereby “demonstratling] that he

was actively and mentally engaged in the plea

process and understood the nature of the charges he

was facing” when he “disput[ed] a specific portion of

the factual proffer....” Edwards, 766 A.2d at 988.

In addition, appellant was able to provide

detailed answers about matters not related to the

crime. For example, there was the following

exchange:

THE COURT: Now, Mr. Wallace, are you taking any

medication at this time?

DEFENDANT: At this time I am receiving units of

regular insulin along with 22 units of MPH insulin

at the DC Jail.

THE COURT: Okay. Are you taking any other

medication, perhaps, for you mental health?

DEFENDANT: Along with 100 milligram seizure

medications called Dilanta.

Finally, in considering the equivocal and illogical

statements that appellant made during the plea

proceeding, we are constrained to bear in mind the

testimony given by the mental health experts whose

opinions the trial judge credited, to the effect that

appellant was “capable of dissimulating, fabricating,

prevaricating and malingering cognitive disabilities.”

We are mindfu! that, unlike this court, the trial court

was 1n a position to assess whether appellant feigned

confusion or indecision during the Rule 11 hearing

and deliberately gave evasive answers, or instead

46a

was actually confused. Cf People v. Marks, 31 Cal.

4th 197, 2 Cal. Rptr. 3d 252, 72 P.3d 1222, 1237 (Cal.

2003) (deferring to the trial court because “{aln

appellate court is in no position to appraise a

defendant’s conduct in the trial court as indicating

insanity, a calculated attempt to feign insanity and

delay the proceedings, or sheer temper,” and

reasoning that “once a defendant has been found to

be competent, even bizarre statements and actions

are not enough to require a further inquiry” (internal

citations and quotations omitted)). The trial court

was in a position to assess whether appellant

knowingly entered his plea to second-degree murder,

actually understanding and acknowledging that he

“didn’t have to use” a knife.

The trial judge, who noted that she “took special

care to ensure that [appellant] fully under tood the

proceeding” and “knew [appellant] so well that [she]

was able to understand his facial expressions and

determine whether or not [appellant] understood the

proceedings,” found that appellant “has been very

responsive to my questions, and I think he is fully

with us.” We have previously held that when denial

of a motion to withdraw a plea is “based primarily on

[the judge’s] own personal observations of and

conversations with [a defendant], ... we accord great

deference.” Edwards, 766 A.2d at 988. Such

deference is warranted here.

IIT.

Lastly, appellant argues that his' sentence

violated due process as it was based on the

prosecutor's recitation (in the government’s

47va

sentencing memorandum and in argument before the

court) of unsworn evidence, unverified statements by

biased witnesses, and incidents of assault which

appellant denied but had no opportunity to rebut.3!

We are unpersuaded by this argument. A judge has

wide latitude when conducting a sentencing hearing,

Williams v. United States, 427 A.2d 901, 904 (D.C.

1980), and may rely on evidence not admissible

during trial. Caldwell v. United States, 595 A.2d 961,

966-67 (D.C. 1991). However, due process dictates

that a “trial judge may not rely on mistaken

information or baseless assumptions” and must

instead rely only on “reliable evidence.” Harris v.

United States, 612 A.2d 198, 208 (D.C. 1992)

(emphasis in original) (internal quotations and

citations omitted). Nevertheless, when challenging

the information recited during sentencing, appellant

must prove that the sentencing judge actually relied

on the unreliable evidence. See Caldwell, 595 A.2d at

967 (“[T]he judge heard appellant’s explanation of

[the disputed facts alleged during sentencing] and

*! Specifically, appellant takes issue with the government’s

statements that appellant was a “serial car-jacker” and had a

history of knife violence against innocent civilians, the

prosecutor's references to appellant having chased his girlfriend

with a knife, and the prosecutor’s allegation that appellant kept

a “duffel bag of license plates that he collected.” The first three

items were based on statements by appellant’s former girlfriend

that were unsubstantiated by other witnesses. The last

allegation, concerning the license plates, was made in the

context of the prosecutor’s assertion that one of those license

plates ended up on the decedent’s stolen car. Appellant asserts

that the license plate in question was stolen while he was

institutionalized negating any theory that he stole it.

48a

did not purport to rely on them.”). A defendant

claiming that his sentence was based on improperly

considered evidence is not entitled to have his

sentence set aside unless it is shown “(1) that the

challenged evidence is materially false or unreliable,

and (2) that it actually served as the basis for the

sentence.” United States v. Reme, 738 F.2d 1156,

1167 (11th Cir. 1984); see also United States v.

Silverman, 976 F.2d 1502, 1512 (6th Cir. 1992) (en

banc) (quoting United States v. Robinson, 898 F.2d

1111, 1115-16 (6th Cir. 1990)); United States v.

Blade, 811 F.2d 461, 469 (8th Cir. 1987); Jones v.

United States, 783 F.2d 1477, 1480 (9th Cir. 1986);

and Moore v. United States, 571 F.2d 179, 183-84 n.

7 (3d Cir. 1978).

Assuming, arguendo, that the government’s

statements in question were “materially false or

unreliable,” appellant has failed to prove that this

information did “actually serve[ ] as the basis for the

sentence.” Appellant points to the trial judge’s

comments that appellant poses an “extreme danger

... to the community,” that “(t]he sense that I have of

[appellant] is that he is a very violent man,” and that

she “agreels] with a good portion of the government’s

allocution....” These comments do not prove that the

court relied on the government statements with

which appellant takes issue.

There was a substantial amount of uncontested

information and uncontested evidence presented

during the sentencing hearing and during prior

proceedings on which the trial court could draw for

the view that appellant “is a very violent man” and

49a

an “extreme danger ... to the community.” The

government recites several examples: Appellant had

to be brought to court in shackles because he had

scuffled with the United States Marshals. He

assaulted four workers in a halfway home. There

were pictures taken of appellant’s girlfriend after she

had been beaten by appellant. Appellant’s sister had

obtained a stay away order because of his attacks on

her.

In addition, several doctors gave testimony

during the competency hearing that indicated that

appellant was dangerous. Dr. Pickar testified that

his staff at St. Elizabeths “felt [appellant] was

dangerous” and that his “violence wasn't

predictable.” He went on to say that he himself

“think[s] that [appellant] is exceedingly dangerous.”

Dr. Patterson reported that appellant was a

“predator” who would assault smaller men and

women during his stays at St. Elizabeths. Dr. Lally

noted similar behavior, saying that appellant was

violent, hostile, threatened those around him, and

“preyed on people.” For sentencing, Dr. Lally

submitted an affidavit stating that appellant’s

“violence appears to be increasing in its severity and

frequency” and that this “indicatels a] greater risk of

future violence.”

Further, the crime to which appellant pleaded

guilty was a violent crime. As the government

presents the case, appellant came up behind the

decedent, stabbed him in the neck with a knife, and

stole his car. Appellant’s explanation at the plea

proceedings was that the decedent punched him and

50a

that he responded with excessive force. Either way,

appellant’s act was violent. Lastly, appellant’s own

counsel noted that appellant had violent tendencies.

His sentencing memorandum to the court indicated

that appellant’s behavior was “aggressive and

violent.” With all of this information and evidence

which the court could properly consider, we cannot

hold that the court’s explanation at sentencing that

appellant is a “very violent man” or an “extreme

danger ... to the community” reflected an abuse of

discretion or denied appellant due process.°2

CONCLUSION

For the foregoing reasons, appellant’s conviction

and sentence and the trial court’s denial of

appellant’s motion to withdraw his guilty plea are

Affirmed.

? Furthermore, appellant argued during the sentencing hearing

that he disagreed with the four statements of which he now

complains again. The fact that the sentencing judge heard

appellant on these disputed allegations and did not purport to

rely on them during sentencing gives us further assurance that

the judge did not abuse her discretion during sentencing. See

Caldwell, 595 A.2d at 967 (finding no abuse of discretion when

an appellant denied some uncharged conduct and the judge did

not “purport to rely” on that conduct during sentencing).

5la

APPENDIX B

SUPERIOR COURT OF THE

DISTRICT OF COLUMBIA

CRIMINAL DIVISION

UNITED STATES OF AMERICA: Criminal No. F-

7221-02

Vv. : Closed Case

ERIC WALLACE

ORDER DENYING DEFENDANT'S MOTION TO

WITHDRAW PLEA OF GUILTY

This matter comes before the Court on

Defendant’s Motion to Withdraw Plea of Guilty

(hereinafter referred to as “Motion”), the

Government’s Opposition, the Defendant’s Reply

Brief and the Government's Response.

I. Procedural History

On October 10, 2002, the Defendant was arrested

in connection with the fatal stabbing of Claude

McCants Motion § 1. The grand jury indicted the

Defendant on May 28, 2002. Jd. On November 10,

2003, the Court found the Defendant competent to

stand trial. /d@ On January 5, 2004, the Defendant

pled guilty to second-degree murder while armed. /d.

On January 15, 2004, the Court held a follow-up

hearing, in which it completed the Frendak and

52a

Innocence Protection Act inquiries.! Opposition at 4.

On February 27, 2004, the Court sentenced the

Defendant to thirty-five years in prison. /d.

Il. Argument

A. Defendant’s Claims

In his motion, the Defendant argues that his guilty

plea should be withdrawn under Super. Ct. Crim. Rule

32(e) for two reasons (1) because justice requires

withdrawal under the circumstances of this case and

(2) there was a fatal defect in the Rule 11 proceeding

when the guilty plea was taken. Fierce v. United

States, 705 A.2d 1086, 1089 (D.C. 1997) (citing Binon

v. United States, 658 A.2d 187, 189 (D.C. 19985).

Motion 4} 2. Defendant contends that even if the Court

found the Defendant competent to stand trial, “it must

also determine that the waiver of the nght to trial is

done ‘voluntary, knowingly, and intelligently’ to ensure

a defendant’s due process rights are protected. Pierce,

705 A.2d at 1089; see also Godinez v. Moran, 509 U.S.

389, 400 (1993).” Motion § 3

a. Justice in this Case Requires

Withdrawal

Defendant contends that he continued to assert his

legal innocence, his desire to go to trial, his use of self-

defense, his insanity defense and his failure to use

excessive force. Motion € 13. Defendant admits

these statements were “confused and contradictory”

‘ In Frendak v. United States, 408 A.24 364 (D.C. 1979), the Court of

Appeals held that the Court has a duty, where there is a possibility of an

insanity defense, to determine, among other things, if the defendant can

intelligently waive that defense.

53a

but contends that only further confirms his lack of

competence at the time of the plea. Jd.

Defendant further states that, since the Court’s

competency determination, new evidence has become

available that further proves he is not competent.

Id. 4 4. Defendant argues that his acute diabetes

and epileptic seizures result in severe dementia and

cognitive dysfunction, including deeply impaired

reasoning, memory and judgment. Jd. ¢ 5; Def. Exh. 1-

9. Dr. Hyde reviewed an electroencephalogram

(hereinafter referred to as “EEG”) of the Defendant

taken on December 24, 2003 that evidenced

permanent and irreversible brain damage. Motion {

9; see Def Exh. 5, 15. Dr Hydealso found that the

Defendant became confused for several days after “a

bout of severe seizures” and noted that the

Defendant had a major seizure on December 18,

2003, eighteen days before his plea hearing. Jd.

b. Defect in the Rule 11 Proceeding

Requires Withdrawal

The Defendant argues that the interaction between

the Court and the Defendant during the Rule 11

colloquy demonstrates that the Defendant did not

voluntarily, knowingly, and intelligently waive his

right to a trial. Motion 17.

In order to comply with Rule 11 and ensure

that a defendant voluntarily, knowingly, and

intelligently agrees to the plea, a court must

determine that the defendant has been

apprised of the true nature of the charges

against him and understands the nature of the

charges to which the plea is offered. Motion §

54a

15, Super. Ct. Crim. Rule 11(c) and (d); see also

Johnson v. United States, 631 A.2d 871i, 875

(D.C. 1993), citing Henderson v. Morgan, 426

U.S. 637, 643-44 (1976).

The failure to comply with the requirement set forth in

Rule 11 is sufficient grounds for a court to grant a

motion to withdraw guilty plea. Motion § 15; see

Gooding v. United States, 529 A.2d 301, 305 (D.C.

1987). Defendant contends that this Court failed to

adequately fulfill the heightened responsibility under

Rule 11 placed on it because of the competency issues

raised by the Defendant. Jd. 16-17. The Defendant

believes that repeated contradictory statements at

the time of the Rule 11 colloquial prove the

Defendant's lack of understanding. /d 418. The

Defendant does not suggest what further questioning

the Court should have done to fulfill its heightened

responsibility. The Defendant concludes that the

Court must grant the Motion and permit the

Defendant to withdraw his guilty plea to second-

degree murder. Motion at 8.

B. Government’s Opposition

The government argues that the Defendant has

not presented any new evidence sufficient to support

his claim that the Court’s acceptance of his plea was

“manifestly unjust”. Opposition at 1. The Defendant

pled guilty less then two months after the six-day

competency hearing and the Court’s determination

that the Defendant was competent to stand trial. /d.

at 4. Before accepting the plea, the Court had the

opportunity to make its own observations and sought

the input of counsel who reported that they did not e any

55a

significant changes in the Defendant’s condition since the

competency finding. /d Additionally, the Court asked if

there was any reason not to accept the plea and

Defendant did not point to any additional facts other

then Counsel’s pervious contention that the Defendant

was incompetent. The Government submits that:

[Tlhe totality of the surrounding

circumstances, as well as the record of the

defendant’s plea contradict this allegation. .. .

the record indicates clearly that the Court

conducted the plea proceedings with special

care because of the defendant’s mental health

history, that there were no ‘fatal defects’ in the

Court’s colloquy, and that the defendant’s plea

was knowing, intelligent and voluntary.

Motion at 5.

The Government contends that the only “new’ evidence

presented by the Defendant was evidence not

“available” to the Court at the time of the plea on

January 5, 2004. Opposition at 19. This evidence

includes the Defendant’s hospitalization on December 18,

2003 and an “abnormal” EEG result from December

24, 2003. Jd at 20. The Government submits that

Defense counsel was aware of this information but failed

to ask for a continuance and when the Court specifically

inquired into the incident: “have you seen any

significant difference in functioning since the latest

episode in the hospital” counsel replied “No, Your

Honor. ... I can’t say that I think that theyre more

significant now than they have been.” /d The

Government also points out that Dr. Hyde referenced the

56a

EEG in a letter in aid of sentencing prior to the

January /5, 2004 court date. Opposition at 21.

The Government notes that despite the defendant’s

inconsistent answers at a couple points, he was able to

consult with his attorneys or have clarifications by the

Court each time he evidenced any confusion. Opposition

at 32.

The record fully supports the Court’s finding

that the defendant’s plea was knowing,

intelligent, and voluntary. Therefore, the

defendant has not met his burden of

presenting evidence sufficient to ‘rebut the

strong presumption of verity given to the

statements he made to the court during the

plea proceeding, Adwards v. United States,

766 A.2d 981, 988-989 (D.C. 2001) (borderline

mentally retarded defendant voluntarily

entered plea of guilty), see also Willis v.

United States, 468 A.2d 1320, 1324 (D.C.

1983) (defendant suffering from personality

disorders voluntarily entered plea of guilty); cf

Southall v. United States, 716 A.2d 183, 188

(D.C. 1998) (defendant voluntarily entered

plea, nothing where the “trial judge has done

everything possible to make clear the rights,

implications, and _ voluntary’ nature of

appellant’s plea, the appellant must allege

specific facts which explain away the

presumptive validity of that plea”).

Opposition at 32.

56a

EEG in a letter in aid of sentencing prior to the

January 1/5, 2004 court date. Opposition at 21.

The Government notes that despite the defendant’s

inconsistent answers at a couple points, he was able to

consult with his attorneys or have clarifications by the

Court each time he evidenced any confusion. Opposition

at 32.

The record fully supports the Court’s finding

that the defendant’s plea was knowing,

intelligent, and voluntary. Therefore, the

defendant has not met his burden of

presenting evidence sufficient to ‘rebut the

strong presumption of verity given to the

statements he made to the court during the

plea proceeding, Edwards v. United States,

766 A.2d 981, 988-989 (D.C. 2001) (borderline

mentally retarded defendant voluntarily

entered plea of guilty), see also Willis v.

United States, 468 A.2d 1320, 1324 (D.C.

1983) (defendant suffering from personality

disorders voluntarily entered plea of guilty); cf

Southall v. United States, 716 A.2d 183, 188

(D.C. 1998) (defendant voluntarily entered

plea, nothing where the “trial judge has done

everything possible to make clear the rights,

implications, and voluntary’ nature of

appellant’s plea, the appellant must allege

specific facts which explain away the

presumptive validity of that plea”).

Opposition at 32.

55a

significant changes in the Defendant’s condition since the

competency finding. Jd. Additionally, the Court asked if

there was any reason not to accept the plea and

Defendant did not point to any additional facts other

then Counsel’s pervious contention that the Defendant

was incompetent. The Government submits that:

[Tlhe totality of the surrounding

circumstances, as well as the record of the

defendant’s plea contradict this allegation... .

the record indicates clearly that the Court

conducted the plea proceedings with special

care because of the defendant’s mental health

history, that there were no ‘fatal defects’ in the

Court’s colloquy, and that the defendant’s plea

was knowing, intelligent and voluntary.

Motion at 5.

The Government contends that the only “new’ evidence

presented by (the Defendant was evidence not

“available” to the Court at the time of the plea on

January 5, 2004. Opposition at 19. This evidence

includes the Defendant’s hospitalization on December 18,

2003 and an “abnormal” EEG result from December

24, 2003. Jd at 20. The Government submits that

Defense counsel was aware of this information but failed

to ask for a continuance and when the Court specifically

inquired into the incident: “have you seen any

significant difference in functioning since the latest

episode in the hospital” counsel replied “No, Your

Honor. ... I can't say that I think that they're more

significant now than they have been.” /d The

Government also points out that Dr. Hyde referenced the

57a

The Government concludes that the Defendant

was “both competent to enter his plea, and that his

plea was knowingly, intelligent and voluntary. /d.

C. Defendant’s Reply

In his Reply, the Defendant argues that “ongoing

medical and psychiatric treatment since that time

has continued to generate evidence that refutes the

conclusion that Defendant is malingering.” Reply 4

6. Since under the custody of the Bureau of Prisons

the Defendant has required ongoing medical and

psychiatric treatment and at the request of the

psychology staff at the Federal Correctional Complex

Petersburg, VA, Defendant was transferred to a

Federal Medical Center (hereinafter referred to as

“FMC”) in Rochester, MN due to cognitive and

adjustment difficulties. Id. § 8-9. Based upon

testing conducted at FMC Rochester, Dr. Daniel

Carson, Staff Psychologist concluded that “Mr.

Wallace has quite pronounced cognitive deficits.

There is no evidence of intentional suppression of his

performance (malingering).” Id. § 11. “Those

conclusions are reinforced by similar finding by Dr.

Shrine. Among other indications, Defendants EEG

results continue to show diffuse slowing, consistent

with frontal lobe damage. Id. § 12. While at FMC

Rochester, Defendant was reported for a physical

altercation with another inmate but Dr. Shrine

concluded that he was "not competent and not

responsible for this infraction". Id § 13. Defendant

contends that this is further proof the Defendant was

not competent to enter a plea of guilty and therefore,

withdrawal should be permitted in this case.

58a

D. Government’s Response

The Government maintains that the “defendant's

reply purports to document the defendant’s mental

status while in prison many months after his guilty

plea.” Response at 1. The Government reiterates the

Court’s determination that the legal standard

whether the defendant has a ‘sufficient present

ability to consult with his lawyer with a reasonable

degree of rational understanding and whether he has

a rational as well as factual understanding of the

proceedings against him.’ Response at 4 (citing Dusky

v. United States, 362 U.S. 402 (1960) (11-10-03 at 17-

18) (emphasis added)). ‘The Government, therefore,

concludes that the records provided by Defendant with

regard to his status after his plea “have little of no

bearing on the Court’s determination whether the

defendant has the ‘present ability’ to consult with his

lawyers and understand the plea at the time he pled

guilty many months prior to the observations recorded

in the records.” Jd. ‘citing Dusky, supra, 362 U.S. at

402 (citation omitted)).

The Government further contends that the records

themselves were not drafted for the purpose of aiding

the Court with a competency determination but in fact

were only to be used for placement by the Bureau of

Prisons. /d. at 5. Finally, the Government argues that

the records provided by the Defendant are cumulative

and that there is no new evidence that could permit

the Court to alter its previous ruling.

Ill. Legal Standard

Under Super. Ct. Crim. R. 32(e), a court after

sentencing may set aside the judgment of conviction

59a

and permit the defendant to withdraw the plea, but

this relief is authorized only when it is required to

“correct manifest injustice.” HKdwards v. United

States. 766 A.2d 981, 987 (D.C. 2001). A post-

sentence motion to withdraw a guilty plea is tested

under the manifest injustice standard, which is a

higher standard of review than compared to the “fair

and just” standard used to review a pre-sentence

motion to withdraw a guilty plea. See Williams v.

United States, 656 A.2d 288, 293 (D.C. 1995);

Springs v. United States, 614 A.2d 1, 4(D.C. 1992).

Accordingly, to withdraw a guilty plea after

sentencing a movant must demonstrate that (1) to

allow the plea to stand would be manifestly unjust,

and that (2) the plea proceeding was fundamentally

flawed such that there was a complete miscarriage of

justice. See Edwards v. United States, 766 A.2d at

987 (citation omitted).

To determine whether it would be manifestly

unjust to allow the plea to stand the Court may look,

collectively, at three factors: (1) whether the

defendant asserts his or her legal innocence; (2) the

length of the delay between entry of a guilty plea and

the desire to withdraw it; and (3) whether the accused

has had the full benefit of competent counsel at all

relevant times. While the District of Columbia Court

of Appeals (“DCCA”) has not specifically held that

these three factors must be considered in reviewing a

post-sentence motion to withdraw a guilty plea,

there is controlling authority that suggests these

three factors may be used in determining whether

manifest injustice has occurred. See United States v.

Jackson, 122 Daily Wash. L. Rptr. 1, 5 (D.C. Super.

60a

Ct. January 3, 1994) (finding the three factors used

in reviewing a pre-sentence motion to withdraw a

guilty plea also can be used in reviewing a post-

sentence motion to withdraw a guilty plea); see also

United States v. Russell, 686 F.2d 35, 39 (D.C. Cir.

1982) (citation omitted) (finding a trial court

considering a post-sentence mction to withdraw a

guilty plea should consider three factors: (1) strength

of the defendant’s reason for withdrawing plea,

including whether the defendant asserts his innocence

to the charge; (2) possible prejudice to the government

as result of the defendant’s request; (3) whether the

defendant’s misunderstanding of the _ collateral

consequences of the plea was the result of

government's misleading statements or the

defendant’s own ignorance).

D.C. Code § 23-110(a) provides, in pertinent part,

that “[a] prisoner in custody under sentence of the

Superior Court claiming the right to be released upon

the ground that (1) the sentence was imposed in

violation of the Constitution of the United States or

the laws of the District of Columbia, (2) the court

was without jurisdiction to impose sentence, (3) the

sentence was in excess of the maximum authorized

by law, (4) the sentence is otherwise subject to

collateral attack, may move the court to vacate, set

aside, or correct the sentence.” D.C. Code § 23-

110(a).

When a motion 1s filed pursuant to D.C. Code § 23-

110, the court shall “grant a prompt hearing thereon,

determine the issues, and make findings of fact and

conclusions of law with respect thereto,” unless the

6la

Court finds that the motion, files, and records

conclusively show that the Defendant could not

establish facts warranting relief. D.C. Code § 23-1

10(c); Pettaway v. United States, 390 A.2d 981, 983-

84 (D.C. 1978). Furthermore, “a hearing is

unnecessary when the motion consists of (1) vague

and conclusory allegations, (2) palpably incredible

claims, or (3) allegations that would merit no relief

even if true.” Heady v. United States, 620 A.2d 233,

234 (D.C. 1993) (citation omitted).

IV. Analysis

A. Defendant’s Competency

The Defendant claims that he was not competent

to enter a plea of guilty and that subsequent findings

further prove the Defendant’s incapacity. After a

five-day competency hearing, during which the Court

heard from numerous doctors, the Court, after

considering all the evidence presented, made factual

findings and determined that the Defendant was

competent. At that time, the Court found:

Competency is presumed until a_ judicial

determination of incompetence is made.

Hughes v. United States, 308 A.2d 238. The

test for a defendants competency is set forth in

Dusky v. United States, 362 U.S. 402 (1960).

The test is whether a defendant has a “sufficient

present ability to consult with his lawyer with a

reasonable degree of rational understanding —

and whether he has a rational as well as

factual understanding of the proceedings

against him.” /d at 402.

62a

Of course, the decision as to whether a defendant

is competent to stand trial is a mixed question

of law and fact Weiter v. Settle, 193 F. Supp.

318, 322 (W.D. Mo. 1961). A substantial body

of case law on the issue of competency reflects

the position that a Defendant’s impairment in

one specific function will not per se render a

defendant incompetent to stand trial. There is

no bright-line test, including the myriad of

tests regularly employed in the field of

psychology that either prove or disprove

competency under the /ega/ standard. Rather

courts must rely on the totality of the specific

clinical features of an individual defendant’s

mental condition to properly assess his

competency.

Addressing the complicated factual issue of

whether an individual with proven mental or

psychological deficiencies can be considered

legally competent for trial, courts have noted

that a defendant need not understand “every

legal nuance” of a case in order to be found

competent. State v. Guatney, 299 N.W. 2d

538, 543-44 (Neb. 1980). Similarly, in United

States v. Glover. 596 F.2d 857, 867 (9th Cir.

1979), the Court of Appeals noted that the “fact

that a defendant might not understand the

proceedings unless they are explained to him

in simple language would put an additional

burden upon counsel but certainly does not

establish that the defendant is incompetent to

stand tral.” 5N also People v. Valentino, 356

N_Y.S. 2d 962 (Nassau Ct. 1974).

63a

While there .is no doubt that Mr. Wallace

suffers some cognitive deficits, the sole

question for this court is whether these

impairments preclude him from

understanding the nature of the charges

against him, the nature of the proceedings and

participating in his defense. It is evident from

the record do not.

Here, the evidence of malingering is more

powerful than the evidence of significant

progressive deterioration. The evidence shows

that the Defendant is clearly performing at

times in a manner inconsistent with, contrary

to, and beyond the capabilities of his claimed

medical condition. In sum, based on the

record before it, this court is unable to find

that the Defendant has proven incompetence

pursuant to § 24-301(b).? Therefore, the

Defendant is hereby found to be malingering and

remains competent to stand trial in this case.

Tr. 11-10-03 at 17-19.

Additionally, the Court made specific findings of fact,

which led to the Court’s conclusion. Tr. 11-10-03 at

3-17, Exh. A.

On January 5, 2004, the Defendant plead guilty

to second degree murder while armed. Defendant

asserts there was evidence that the Defendant

became confused for several days after “a bout of severe

* The 2005 version of the D.C. Code is § 24-531.04(b).

’ References to the transcript of the hearing will be cited at “Tr.”

preceded by the transcript date and page number.

64a

seizures” and that because the Defendant had a major

seizure on December 18, 2003, approximately

eighteen days before his plea hearing, that he was

incompetent at the plea hearing. Motion 19. The

Court, however, was aware of the Defendant's

seizure and questioned defense counsel about the

incident.

The Court: And let me ask you this, Mr. Handzo,

have you seen

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