D.C Code §23-110, the main statutory language for ineffective assistance of counsel provides for the judicial officer an authority for reversal of sentence due to “denial or infringement” of the defendant’s constitutional rights.

Specifically, if the court finds that:

(1) The judgment was rendered without jurisdiction,

(2) The sentence imposed was not authorized by law or is otherwise open to collateral attack,

(3) There has been such a denial or infringement of the constitutional rights of the prisoner as to render the judgment vulnerable to collateral attack,

The court may vacate under these circumstances the conviction and set aside the judgment or order a new trial.

The Court of appeals recently in Bertha v. U.S., decided on September 28, 2017, addressed the steps that trial court is required to take upon receiving a motion for ineffective assistance of counsel under §23-110 statute.

There the trial court had denied the defendant §23-110 motion without a hearing while acknowledging that there is a presumption in favor of holding a hearing.

The trial court had identified three narrow categories in which the §23-110 motion does not warrant a hearing on merits.

1) The claims are palpably incredible;

2) They are vague and conclusory; or

3) Even if claims are true, that does not entitle the movant to relief.

In this case the defendant had attached an affidavit from a material witness who would have directly controverted testimony from a key witness as to location in which the crime was observed hence discrediting a key eyewitness.

The Court of Appeals held that the specific affidavit had alleged specific facts that indicated the trial counsel provided ineffective assistance by failing to call a witness who could have directly challenge a testimony by the government’s sole eyewitness to the murder – that the witness could not have seen what she testified she saw.

This was sufficient allegation to grant a hearing on the §23-110 motion and determine via testimony and cross if there was any veracity to the affidavit.

The Court of Appeals thus reversed and remanded the trial’s court’s denial of the §23-110 motion summarily and without a hearing holding that the presumption in favor of the hearing was not rebutted.

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