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DISTRICT OF COLUMBIA COURT OF APPEALS
Nos. 21-CF-0310 & 23-CO-0288
LARRY WHITE, JR., APPELLANT,
V.
UNITED STATES, APPELLEE.
Appeals from the Superior Court
of the District of Columbia
(2020-CF2-001903)
(Michael K. O’Keefe, Judge)
(Rainey R. Brandt, Judge)
(Submitted September 20, 2024 Decided September 3, 2026)
Tamara Jones for appellant. Ivy Finkenstadt was on the brief for appellant in No. 21-CF-0310 but subsequently withdrew.
Matthew M. Graves, United States Attorney for the District of Columbia at the time the briefs were filed, and Chrisellen R. Kolb, Elizabeth H. Danello, Colin Cloherty, Lauren Galloway, and Kevin Birney, Assistant United States Attorneys, for appellee.
Before BECKWITH, EASTERLY, and MCLEESE, Associate Judges.
PER CURIAM: Appellant Larry White, Jr. was convicted of carrying a pistol
without a license and related firearm offenses after a stipulated trial. Mr. White
argues that (1) the trial court erroneously denied his pretrial motion to suppress
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evidence as the result of an unlawful search, and (2) the trial court erroneously
denied without a hearing Mr. White’s D.C. Code § 23-110 motion to vacate his
convictions on the ground of ineffective assistance of counsel. We affirm the denial
of the suppression motion, but we vacate the trial court’s denial of the Section 23-110
motion and remand the case for further proceedings.
I. Factual Background
The following appears to be undisputed for current purposes. Mr. White was
released into the High Intensity Supervision Program (HISP) operated by the Pretrial
Services Agency (PSA) under 24-hour home confinement with GPS monitoring on
February 10, 2020, after pleading guilty to a firearm offense in another case. Mr.
White had not yet been sentenced in the other case.
The next morning, February 11, 2020, an on-duty Metropolitan Police
Department (MPD) officer familiar with Mr. White saw Mr. White’s live Instagram
feed, which showed Mr. White holding a black handgun. MPD officers on duty at
the time were aware of the location of Mr. White’s residence because they had
previously executed a search warrant there. The officers also knew that Mr. White
had been released under GPS monitoring, so they contacted PSA and asked that PSA
confirm Mr. White’s location. PSA confirmed that Mr. White was located at the
address that the officers knew to be Mr. White’s residence.
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The officers went to Mr. White’s residence and conducted surveillance for
approximately fifteen to thirty minutes. While the officers were watching, an SUV
pulled up to the residence and honked its horn. Mr. White and a woman came out of
the residence. Mr. White was holding a bag and walked towards the back of the
SUV. Then Mr. White turned around and started walking away from the SUV.
The officers approached Mr. White. One of the officers looked underneath the
SUV and saw a black firearm lying on the ground that appeared to be consistent with
the firearm in the Instagram live feed from earlier that morning. The firearm was dry
even though the ground was wet, and only Mr. White was in the vicinity of the SUV
before the officers recovered the firearm. The officers placed Mr. White under arrest.
Mr. White was convicted of carrying a pistol without a license, committed
during release; possession of a large capacity ammunition feeding device; unlawful
possession of an unregistered firearm; and unlawful possession of ammunition.
II. Motion to Suppress
Mr. White argues that the trial court should have granted his motion to
suppress the physical evidence recovered at the scene of Mr. White’s arrest as the
result of an illegal warrantless search of his GPS data by MPD. We disagree and
affirm the denial of the motion to suppress.
4
A. Procedural and Factual Background
The trial court held an evidentiary hearing on Mr. White’s motion to suppress,
the evidence at which included the following. Shortly after 8 a.m. on February 11,
2020, an MPD officer viewed Mr. White’s Instagram live feed and saw Mr. White
holding a firearm. The officer understood that Instagram live videos are broadcast
in real time. The officer contacted PSA shortly thereafter, aware that Mr. White was
on high-intensity supervision at the time. GPS information from PSA confirmed that
Mr. White was at the address on record for him in MPD’s databases. Officers on
duty that morning were familiar with the address. The officer who contacted PSA
did not get a search warrant or judicial authorization to gather information from PSA.
The information from PSA “reinforced information that [MPD] already had access
to,” and the officers would have thought that Mr. White was at his address on record
even if they had not consulted with PSA.
The officers knew that Mr. White was scheduled to be in court that morning
and would be leaving his house shortly, around 9 or 9:30 a.m., so they went to set
up surveillance at Mr. White’s address. Shortly thereafter, the officers recovered a
firearm and arrested Mr. White.
Mr. White testified at the hearing. The day before Mr. White was arrested,
the trial court released Mr. White from jail and put him under supervision in a
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pending case in which he had pleaded guilty to a firearm offense. At the hearing, the
trial court took judicial notice of the earlier case and noted that Mr. White had been
on high-intensity supervision in that case between October 2019 and January 29,
2020, at which point he was taken into custody until his guilty plea eleven days later,
on February 10, 2020.
Mr. White argued at the suppression hearing that MPD needed to get a search
warrant to access Mr. White’s location as monitored by PSA. The United States
noted that Mr. White had raised the issue of the GPS data for the first time at the
hearing and asked to file a supplemental brief on the issue. The trial court granted
the request.
In its supplemental filing, the United States argued in relevant part that the
officers did not violate Mr. White’s Fourth Amendment rights by accessing his GPS
data from PSA because Mr. White did not have a reasonable expectation of privacy
in the GPS data. The United States argued, relying on the analysis in United States
v. Jackson, 214 A.3d 464, 481-86 (D.C. 2019), that Mr. White’s reasonable
expectation of privacy was diminished by his status as a releasee under supervision
by PSA and his notice of and agreement to the condition of GPS monitoring. Cf.
Jackson, 214 A.3d at 486 (holding that sharing GPS data of probationer with police
6
by Court Services and Offender Supervision Agency (CSOSA) did not invade
probationer’s reasonable expectation of privacy).
The United States appended to its memorandum the release order that Mr.
White signed on February 10, 2020, which notified Mr. White that he would be
“supervised by a type of electronic monitoring device.” The release order stated that
Mr. White was to return for HISP orientation the next morning. The United States
noted in its memorandum that Mr. White had previously signed two additional HISP
release orders in October 2019 that notified him that GPS monitoring was a
condition of release under HISP. Further, in October 2019, as part of his HISP
orientation at that time, Mr. White signed a GPS monitoring agreement that
acknowledged that “PSA can provide [] tracking information to law enforcement for
investigative purposes.” Finally, the United States noted that Mr. White asked to be
placed on 24-hour home confinement at his plea hearing in the earlier case, knowing
from prior experience that home confinement would entail GPS monitoring and
information sharing.
In his supplemental response, Mr. White argued in relevant part that he did
have a reasonable expectation of privacy in his GPS data monitored by PSA. Mr.
White contended that he had not agreed to his GPS data being shared with law
enforcement at the time of his arrest because he had not yet attended HISP
7
orientation or signed a HISP contract, and his prior GPS monitoring agreement
expired on January 29, 2020, when he was taken into custody. Further, Mr. White
argued that Jackson did not apply to his case, because Jackson related to “convicted
individuals after being sentenced and on probation or parole,” and Mr. White was
on release pending sentencing.
The trial court denied the motion to suppress. The trial court found, among
other things, that (1) the officer who first viewed the Instagram live video knew
where Mr. White lived and was aware that Mr. White was on court-ordered highintensity supervision; (2) that officer contacted PSA to confirm that Mr. White was
in fact at home; (3) the day before his arrest in the present case, Mr. White asked to
be, and was, released on HISP, which Mr. White was aware included GPS
monitoring; (4) Mr. White, in his prior case, had been released on HISP in October
2019; and (5) as part of his participation in HISP in 2019, Mr. White expressly
consented to his tracking information being shared with law enforcement for
investigative purposes.
The trial court concluded that MPD did not violate Mr. White’s constitutional
rights in obtaining GPS information from PSA, because Mr. White did not have a
reasonable expectation of privacy in his GPS data. The trial court saw no “grounds
to deviate from the reasoning” in Jackson. Mr. White agreed to the collection and
8
possible disclosure of his GPS data by asking to be placed on HISP, and Mr. White
knew that his location was being monitored and potentially shared through that
program. The trial court opined that the fact that Mr. White was briefly taken off
HISP “does not negate his knowledge or consent” regarding the substance of the
GPS monitoring agreement he signed in October 2019. Finally, the trial court noted
that MPD’s use of the GPS data was “brief, tailored, and designed only to confirm
[Mr. White’s] whereabouts.”
B. Analysis
Mr. White argues that MPD violated his Fourth Amendment rights by
obtaining GPS data from PSA. We disagree.
In an appeal challenging the trial court’s ruling on a motion to suppress, “we
accept the trial court’s findings of fact unless they are clearly erroneous[,] and we
review the facts and reasonable inferences therefrom in the light most favorable to”
sustaining the ruling. Hooks v. United States, 208 A.3d 741, 745 (D.C. 2019). “[O]ur
review of the trial court’s legal conclusions is de novo.” Id. (citation modified).
The Fourth Amendment “protects the right of the people to be secure against
searches . . . that are ‘unreasonable.’” Jackson, 214 A.3d at 472 (quoting U.S. Const.
amend. IV). Whether a search was reasonable, and thus constitutionally permissible,
9
“depends on the totality of the circumstances, including the nature and purpose of
the search and the extent to which the search intrudes upon reasonable privacy
expectations.” Id. (citation modified). “[T]he reasonableness of a search is
determined by assessing, on the one hand, the degree to which it intrudes upon an
individual’s privacy and, on the other, the degree to which it is needed for the
promotion of legitimate governmental interests.” United States v. Knights, 534 U.S.
112, 118-19 (2001) (citation modified).
We hold that PSA’s sharing of Mr. White’s GPS data with MPD to confirm
Mr. White’s current location was reasonable. To be clear, Mr. White does not
challenge PSA’s monitoring of Mr. White through GPS, instead challenging only
PSA’s sharing of GPS data with MPD without a warrant. Mr. White did not have
“an objectively reasonable expectation” that PSA “would not share his GPS data
with the MPD,” Jackson, 214 A.3d at 482, given the totality of the circumstances in
this case, which included: (1) Mr. White’s diminished expectation of privacy due to
having been adjudicated guilty of a crime and released under high-intensity
supervision; (2) Mr. White’s knowledge of the conditions of the HISP program,
including that PSA would share information with MPD; (3) the limited nature of
MPD’s access to Mr. White’s GPS data; and (4) the usefulness of the GPS data to
MPD’s immediate and legitimate law-enforcement purposes.
10
First, Mr. White’s reasonable expectation of privacy was diminished because
he had been adjudicated guilty of a crime and was released under high-intensity
supervision. Because Mr. White had been adjudicated guilty and was awaiting
sentencing, he had only “conditional liberty.” See, e.g., United States v. Kills Enemy,
3 F.3d 1201, 1203 (8th Cir. 1993) (opining that when person has been adjudicated
and is awaiting sentence “there is a heightened need for close supervision of the
. . . person’s activities to protect society and the releasee himself, and the releasee is
entitled only to a conditional liberty”); Garcia v. Commonwealth, 158 N.E.3d 452,
464 (Mass. 2020) (concluding that individual “released during a stay of sentence”
has diminished privacy interests).
Specifically, the trial court was statutorily required to detain Mr. White
pending sentencing unless Mr. White could show by clear and convincing evidence
that he was not a flight risk and was not a danger to any other person or the
community. D.C. Code § 23-1325(b). That statutory requirement reflects the reduced
liberty interests of defendants who have been adjudicated guilty. Cf., e.g., United
States v. Abuhamra, 389 F.3d 309, 318 (2d Cir. 2004) (“[O]nce a jury found
Abuhamra guilty beyond a reasonable doubt of multiple felonies, his reasonable
expectation of continued freedom from government detention was significantly
reduced from that of the average law-abiding citizen, or that of a pre-trial
defendant.”). Moreover, when the trial court released Mr. White pending sentencing,
11
the trial court placed Mr. White on GPS monitoring. See D.C Code § 23-1325(b) (if
trial court finds that defendant who is awaiting sentencing does not pose risk of flight
or dangerousness, trial court shall treat defendant in accordance with D.C. Code
§ 23-1321); D.C. Code § 23-1321(c)(1)(B) (where appropriate, trial court may order
defendant’s release subject to any condition reasonably necessary to assure
appearance of person and safety of any other person and community).
Mr. White does not challenge the lawfulness of his being placed on GPS
monitoring while awaiting sentencing, and being placed on such monitoring clearly
reflects a substantially reduced expectation of privacy. We note that a recently
enacted statute authorizes MPD to request “location . . . data” from PSA with respect
to releasees wearing “detection devices.” D.C. Code § 23-1321(e)(1), (2)(B)(iv). We
place no reliance on that provision, however, which neither party cites and which
was enacted after the police obtained the location data at issue in this case.
Mr. White argues that the fact that he had not yet been sentenced and was still
under the supervision of PSA, not CSOSA, meaningfully distinguishes his
reasonable privacy expectations from those of the defendant in Jackson, because
PSA’s conditions of release were not “on the . . . continuum of state-imposed
punishments” and PSA does not serve the same “law enforcement function” as
CSOSA. As we have just explained, however, punishment is not the only reason that
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persons who have been found guilty of an offense have diminished privacy
expectations.
We need not determine in which contexts and to what extent individuals who
have been charged with but not found guilty of a crime are subject to diminished
privacy expectations while under the supervision of PSA. See, e.g., Maryland v.
King, 569 U.S. 435, 462 (2013) (opining that privacy expectations of individuals
“taken into police custody necessarily are of a diminished scope”) (citation
modified). This case involves a defendant who had been adjudicated guilty, and PSA
was responsible for supervising his compliance with release conditions, which
generally include a prohibition against violating the law and in this case included
GPS monitoring. See D.C. Code § 23-1321(b), (c) (stating that defendants shall be
released only on condition that they “not commit a local, state, or federal crime
during the period of release”); id. § 23-1303(h)(5) (providing that PSA will notify
court and prosecution of violations of conditions of release); cf. Jackson, 214 A.3d
at 482 (describing “routine data sharing arrangements” between CSOSA and MPD
as way “to enhance CSOSA’s ability to prevent supervised offenders from engaging
in criminal activity”) (citation modified). We also need not determine the precise
degree to which Mr. White’s reasonable expectation of privacy was diminished
compared to an individual on parole or probation, given additional circumstances
13
present in this case that further demonstrate that the limited information sharing in
this case was reasonable.
Second, Mr. White’s reasonable expectation of privacy was further
diminished because he knew at the time that he asked to be placed back in the HISP
program that the program entailed the “collection and possible disclosure” of his
GPS data. Mr. White had been on HISP for several months before his arrest in this
case and had only been in detention for eleven days before being released back into
HISP the night before his arrest. As part of his earlier participation in HISP, he
signed a GPS monitoring agreement that informed him that “PSA can provide []
tracking information to law enforcement for investigative purposes.” Mr. White’s
awareness of possible disclosure of his GPS data to law enforcement while on HISP
“significantly diminished” any reasonable expectation that his GPS data would not
be shared with MPD for investigative purposes. Knights, 534 U.S. at 114, 119-20
(privacy interests diminished by defendant being “unambiguously informed” of
search condition in probation order); cf. Samson v. California, 547 U.S. 843, 852
(2006) (concluding that parolee “did not have an expectation of privacy that society
would recognize as legitimate” in search by police officer where parolee signed
order that made him aware of condition authorizing warrantless search by law
enforcement).
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Mr. White argues that he “had not consented to the collection of his GPS data
nor its possible disclosure at the time of his arrest” because he had not yet signed a
new HISP contract and GPS monitoring agreement, and his prior contract had ended.
Whether or not Mr. White had an active HISP contract at the time of his arrest does
not determine whether Mr. White knew, as a matter of fact, that the HISP program
entailed GPS monitoring and the possible disclosure of GPS data to law
enforcement. The trial court found that Mr. White did have that knowledge and that
his brief termination from the HISP program did “not negate his knowledge” of the
HISP conditions. We see no clear error in that finding. Cf., e.g., Jabbour v. Bassatne,
673 A.2d 201, 205 (D.C. 1996) (reviewing trial court’s finding as to what party
“knew in fact” for clear error).
Third, the GPS data shared with MPD was extremely limited. MPD confirmed
Mr. White’s location with PSA at a single point in time for a legitimate purpose.
MPD’s access to Mr. White’s GPS data was more limited in this case than it was in
Jackson, where the police monitored the defendant’s movements through a GPS
monitoring device for a short period. Jackson, 214 A.3d at 486. We nevertheless
concluded in Jackson that, given the limited nature and investigative purpose of the
police’s use of GPS data, “any intrusion by the police on Mr. Jackson’s reasonable
expectation of privacy was de minimis.” Id. As in Jackson, MPD’s use of Mr.
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White’s GPS data in this case did not “pry into his intimate or private affairs or the
details of his personal life.” Id. at 485.
Fourth, turning to the nature of the government’s interest, MPD had good
reason to request the limited GPS data it received regarding Mr. White’s
whereabouts because MPD was engaged in a rapidly developing investigation into
potential criminal activity by Mr. White. Within an hour after an MPD officer
viewed Mr. White’s Instagram, MPD set up surveillance at Mr. White’s residence,
knowing that he would shortly leave his residence to attend court. Even though MPD
had other information about Mr. White’s address, confirming Mr. White’s location
with PSA was an effective and efficient way to further MPD’s investigation and
increase the likelihood of recovering physical evidence to corroborate the Instagram
live video. Although the GPS data may not have been necessary to MPD’s
investigation, we weigh the usefulness of the data to MPD against Mr. White’s
significantly diminished privacy interests and the very limited nature of access to the
GPS data. Knights, 534 U.S. 118-19. In that context, we conclude that MPD’s need
for the GPS data was a salient factor in favor of the reasonableness of MPD’s
conduct. (We note, in connection with the nature of the government’s interest, that
Mr. White has not raised any Second Amendment concerns about the police’s
conduct in this case.)
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In sum, Mr. White’s Fourth Amendment rights were not violated because
PSA’s limited sharing of Mr. White’s GPS data with MPD to further MPD’s
immediate law-enforcement purposes did not intrude on Mr. White’s reasonable
expectation of privacy, which was significantly diminished by his having been
adjudicated guilty of a crime and released under supervision with knowledge of the
conditions of GPS monitoring. This conclusion is consistent with our decision in
Jackson and with the decisions of other courts in comparable circumstances.
Jackson, 214 A.3d at 488; cf., e.g., Commonwealth v. Govan, 259 N.E.3d 370,
386-87 (Mass. 2025) (concluding that sharing limited-in-time location data about
pretrial releasee with police in furtherance of ongoing criminal investigation did not
intrude on reasonable expectation of privacy of releasee, who was aware of GPS
monitoring and that pretrial release could be revoked for engaging in criminal
activity); Hawkins v. State, 735 S.W.3d 898, 906-07 (Tex. App. 2026) (same). We
therefore affirm the trial court’s denial of the motion to suppress.
III. Ineffective Assistance of Counsel
Mr. White argues that the trial court erred by denying without a hearing his
motion pursuant to D.C. Code § 23-110 claiming ineffective assistance of counsel.
We agree.
17
A. Procedural and Factual Background
Mr. White filed a motion to vacate his convictions on the ground of ineffective
assistance of counsel. In the motion, Mr. White argued that his trial counsel had
rendered deficient performance because trial counsel did not inform him of a plea
offer, and that failure prejudiced Mr. White because he would have accepted the plea
offer, which would have put him in a better position than he was in after the
stipulated trial. See Strickland v. Washington, 466 U.S. 668, 687 (1984) (holding
that establishing ineffective assistance of counsel requires defendant to show both
that counsel was “deficient,” in that “counsel made errors so serious that counsel
was not functioning as the counsel guaranteed the defendant by the Sixth
Amendment,” and that defendant was prejudiced as a result) (citation modified). Mr.
White requested a hearing on his ineffective-assistance-of-counsel claim. See D.C.
Code § 23-110(c) (“Unless the motion and files and records of the case conclusively
show that the prisoner is entitled to no relief, the court shall . . . grant a prompt
hearing thereon . . . .”).
The March 2020 plea offer appended to Mr. White’s Section 23-110 motion
stated that the United States would “[d]ismiss the greater and remaining charges” if
Mr. White pleaded guilty to carrying a pistol without a license. Mr. White submitted
a declaration with his motion stating that he was not advised of the plea offer by his
18
trial counsel and “[h]ad [he] known there was a plea offer [he] would have most
likely taken the plea.”
The United States opposed Mr. White’s Section 23-110 motion. The United
States argued that the motion should be denied without a hearing, because (1) Mr.
White’s trial attorneys did convey the plea offer to Mr. White, but Mr. White was
not interested, and (2) Mr. White could not establish prejudice because he “fail[ed]
to establish that he would have accepted the terms of the plea offer.”
The United States submitted declarations from both of Mr. White’s trial
attorneys. One of the trial attorneys stated that he conveyed the March 2020 plea
offer to Mr. White, but Mr. White “was not interested in entering into a plea
agreement at the time” and was focused on the motion to suppress. The declarations
stated that the United States revoked the March 2020 plea offer in June 2020 but
then reextended the same plea offer in August 2020. Trial counsel negotiated with
the United States over email regarding the plea offer, but the United States did not
modify the terms of the offer. The United States notified trial counsel in mid-October
2020 that the reextended plea offer would expire on October 29, 2020. Trial counsel
subsequently had a telephone call with Mr. White, who was at that time incarcerated,
during which trial counsel “personally conveyed the March [2020] plea offer to
[Mr.] White.” According to trial counsel, during that meeting Mr. White did not
19
express “any desire to accept the . . . plea offer.” Trial counsel stated that they had
advised Mr. White that if he pleaded guilty, then “he would not be able to pursue his
motion to suppress or appeal the denial [of] that motion,” and Mr. White wanted to
pursue the motion to suppress.
The United States acknowledged that trial counsel’s declarations contradicted
Mr. White’s declaration as to whether Mr. White was given the plea offer, which
could create a dispute of fact requiring a hearing to resolve. The United States
contended, however, that the motion failed regardless because Mr. White could not
show prejudice. Specifically, the United States argued that because Mr. White’s
declaration stated not that he would have taken the plea but only that he “would have
most likely taken the plea,” Mr. White “fail[ed] to establish a required prong of
Strickland prejudice” in the context of counsel’s failure to convey a plea offer. See
Missouri v. Frye, 566 U.S. 134, 147 (2012) (explaining that defendants must show
“a reasonable probability they would have accepted the earlier plea offer had they
been afforded effective assistance of counsel,” among other things, to establish
prejudice from failure to convey plea offer). Further, the United States argued that
the record in the case showed that Mr. White wished to litigate the motion to
suppress, which he would have had to forgo had he taken the plea offer. Finally, the
United States argued that Mr. White did not establish that the United States would
not have withdrawn the plea offer before it was accepted or that the court would
20
have accepted the plea offer, although the United States did not contest that taking
the plea offer would have resulted in Mr. White being convicted of fewer charges.
See id. (to establish prejudice from failure to convey plea offer, defendants must also
show reasonable probability that plea would have been entered and that end result
of taking plea would have been “more favorable” by way of lesser charge or lighter
sentence).
The trial court denied Mr. White’s Section 23-110 motion. The trial court
found that “there [was] ample evidence that trial counsel’s performance was not
deficient.” The trial court noted in particular the statements in trial counsel’s
affidavits asserting conveyance of the plea offer and Mr. White’s failure to state he
was unaware of a plea offer during the stipulated trial despite acknowledging the
difference between a stipulated trial and a plea offer. The trial court concluded that
Mr. White failed to show “by a preponderance of the evidence that trial counsel was
deficient. To the contrary, there is strong evidence that Mr. White merely prioritized
his right to appeal over accepting a plea offer.” The trial court stated that a hearing
was not necessary because “Mr. White’s claims are vague and conclusory, and there
is no genuine dispute as to the material facts of the claim.”
The trial court further concluded that Mr. White had not shown prejudice. The
trial court concluded that Mr. White did not show a reasonable probability that he
21
would have accepted the plea offer because his declaration “seem[ed] to imply that
he was grappling [with] whether he should take the plea.” Further, the trial court
stated that the record was “replete” with evidence that Mr. White decided to proceed
with a stipulated trial to preserve his appeal rights. Although the trial court opined
that the evidence was more favorable to Mr. White on the other aspects of the
prejudice showing required by Frye, Mr. White failed to meet the first component
of the Frye test and therefore could not show prejudice.
B. Analysis
Mr. White argues that the trial court (1) erred by concluding that Mr. White
failed to show a reasonable probability that he would have accepted the plea offer;
(2) erred by concluding that trial counsel’s performance was not deficient on the
record before it; and (3) abused its discretion by denying the motion without holding
a hearing. The United States argues that the trial court correctly found that Mr. White
did not show prejudice and therefore correctly denied the motion. The United States
concedes, however, that if “this case turn[s] on deficiency,” “a hearing would be
necessary to resolve the factual dispute over whether [Mr.] White’s attorneys told
him about the plea offer.” We agree with Mr. White that the trial court’s prejudice
analysis was erroneous. We further agree that the trial court erred in deciding Mr.
White’s claim of deficient performance without holding a hearing.
22
We hold that the trial court erred by concluding that Mr. White did not show
a reasonable probability that he would have accepted the plea offer. We review de
novo the trial court’s legal conclusion as to whether the defendant demonstrated
sufficient prejudice to make out a claim of ineffective assistance of counsel. Cosio
v. United States, 927 A.2d 1106, 1123 (D.C. 2007) (en banc). Strickland prejudice
requires the defendant to demonstrate “a reasonable probability that, but for
counsel’s unprofessional errors, the result of the proceeding would have been
different. A reasonable probability is a probability sufficient to undermine
confidence in the outcome.” Strickland, 466 U.S. at 694. When the alleged
deficiency in trial counsel’s performance is the “fail[ure] to inform [the] client of a
plea offer,” the defendant must show (1) “a reasonable probability [the defendant]
would have accepted the plea offer,” (2) “a reasonable probability the plea would
have been entered without the prosecution canceling it,” (3) a reasonable probability
that the trial court would not have “refus[ed] to accept [the plea offer],” and (4) “a
reasonable probability that the end result of the criminal process would have been
more favorable by reason of a plea to a lesser charge or a sentence of less prison
time.” Benitez v. United States, 60 A.3d 1230, 1236-37 (D.C. 2013) (citation
modified; quoting Frye, 566 U.S. at 147).
The trial court did not correctly apply the reasonable-probability standard to
the first component of the Frye test. The trial court concluded that Mr. White’s
23
prejudice claim failed because Mr. White’s statement in his declaration “seem[ed]
to imply that he was grappling [with] whether he should take the plea.” Mr. White
was not required to demonstrate, however, that he would have taken the plea offer.
Rather, Mr. White was required to show only that there was a reasonable probability
he would have taken the plea offer. Benitez, 60 A.3d at 1236. Mr. White’s declaration
states that he “would have most likely taken the plea.” “Most likely” evinces a
greater degree of likelihood than is required to meet the reasonable-probability
standard. See, e.g., Cosio, 927 A.2d at 1132 (“The reasonable-probability standard
is not the same as, and should not be confused with, a requirement that a defendant
prove by a preponderance of the evidence that but for error things would have been
different.”) (citation modified).
The trial court suggested but did not conclude that Mr. White established
prejudice on the remaining components of the Frye test. Because we conclude that
the trial court erred in its analysis on the first Frye component, we remand for
reconsideration of Mr. White’s claim of prejudice so that the trial court may hold a
hearing if necessary and make the findings required to determine whether Mr. White
has met the reasonable-probability standard under Frye.
Because we cannot affirm the trial court’s denial of Mr. White’s Section
23-110 motion based on lack of prejudice, we address Mr. White’s challenge to the
24
trial court’s conclusion that trial counsel did not render deficient performance. We
agree with both parties that the trial court should have held a hearing to adjudicate
factual disputes before deciding Mr. White’s claim of deficient performance.
The decision whether to hold a hearing on a Section 23-110 motion “lies
within the sound discretion of the trial court,” but “there is a presumption in favor
of holding a hearing.” Hardy v. United States, 988 A.2d 950, 961 (D.C. 2010)
(citation modified). The trial court must hold a hearing “[u]nless the motion and files
and records of the case conclusively show that the prisoner is entitled to no relief.”
D.C. Code § 23-110(c). See, e.g., Shepherd v. United States, 296 A.3d 389, 392
(D.C. 2023) (explaining that Section 23-110 creates default rule that hearing is
required unless motion raises procedurally defaulted claims or rests on “(1) vague
and conclusory allegations, (2) palpably incredible claims, [or] (3) assertions that
would not merit relief even if true”) (citation modified).
The trial court acted outside of its discretion by concluding that a hearing was
not required on the ground that “there [was] no genuine dispute as to the material
facts.” As the United States acknowledges, there is a factual dispute, demonstrated
by the parties’ conflicting declarations, as to whether trial counsel informed Mr.
White of the plea offer in a timely manner. See, e.g., Benitez, 60 A.3d at 1236 (“If
defense counsel allows the [plea] offer to expire without advising the defendant or
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allowing him to consider it, defense counsel does not render the effective assistance
the Constitution requires.”) (citation modified). The United States’ evidence on this
crucial point does not “conclusively show,” in light of Mr. White’s declaration, that
Mr. White was properly advised of the plea offer, and therefore it was error for the
trial court to deny Mr. White a hearing on his deficiency claim. D.C. Code
§ 23-110(c); cf., e.g., Jones v. United States, 918 A.2d 389, 408 (D.C. 2007) (holding
defendant was entitled to hearing where Section 23-110 motion and supporting
evidence alleged facts which, “if demonstrated, would establish ineffective
assistance of counsel”; contradictions in affidavits and trial record casting doubt on
credibility of supporting evidence did not “conclusively establish[]” defendant was
not entitled to relief).
For the foregoing reasons, we affirm Mr. White’s convictions in the direct
appeal, vacate the trial court’s denial of Mr. White’s Section 23-110 motion, and
remand the case to the trial court for further proceedings.
So ordered.