Opinion
75087-06.
Decided March 12, 2007.
New York State courts have a long and proud tradition of exceptional legal scholarship, of independent responsibility and, most importantly, of protecting constitutional rights. It is troublesome, however, to observe the ways in which some of our State courts have recently addressed constitutional issues arising from Penal Law section 70.45, and some of the ways these courts have been providing less constitutional protection than deemed acceptable by Federal courts.
The petitioner seeks a writ of habeas corpus, as he is being detained for violating post-release supervision ("PRS") that was, he contends, improperly imposed. The petitioner contends that because the sentencing court failed to inform him of the PRS component of his sentence, this component is null and void.
PRS is a direct consequence of a conviction ( People v Catu, 4 NY3d 242), and a court's failure to advise a defendant of the PRS component of a sentence can therefore be grounds to vacate a plea ( People v Van Deusen, 7 NY3d 744). The petitioner here, however, does not seek to vacate his plea. Instead, he seeks to vacate the period of PRS; vacate the parole violation warrant; vacate the declaration of delinquency; and vacate the time assessment. For the reasons set forth below, the petitioner's writ of habeas corpus is sustained and, pursuant to CPLR 7010(a), it is directed that the petitioner be discharged from detention on this matter.
"While a trial court has no obligation to explain to defendants who plead guilty the possibility that collateral consequences may attach to their criminal convictions, the court must advise a defendant of the direct consequences of the plea (see v Ford, 86 NY2d 397 [1995])" ( People v Catu, 4 NY3d 242 [2005]).
Procedural History
After a negotiated plea to the crime of Attempted Robbery in the First Degree, the defendant was sentenced, on January 28, 2002, to a determinate sentence of 5 1/2 years incarceration. On December 15, 2005, he signed a Certificate of Release to Parole Supervision, which stated that he is subject to five years PRS. On January 25, 2006, he was released to PRS.
The petitioner's PRS was neither pronounced by the sentencing judge, nor recorded on the sentencing commitment sheet. Further, apparently, the petitioner was not, during any point of the trail court proceeding, informed of the PRS.
Neither the petitioner nor the respondent allege that the petitioner was, during any point of the trail court proceeding, informed of PRS. Nor have the parties submitted to the court a copy of the plea minutes.
On June 16, 2006, while released on PRS, the petitioner was arrested on a new matter, which resulted in the execution, on July 31, 2006, of a parole violation warrant charging him with violating the terms of PRS. A preliminary parole revocation hearing was held on August 15, 2006, at which the hearing officer made a finding of probable cause. A final revocation hearing is pending.
Legal Arguments
The petitioner, pointing to Earley v Murray, 451 F.3d 71 (2d Cir, 2006) and related cases, alleges that the PRS was imposed improperly, as it was imposed not by the court, but by the New York State Department of Correctional Services ("DOCS"), and that his resulting detention is therefore improper.
The office of the New York State Attorney General, in response, relies on People v Sparber, 34 AD3d 265 (1st Dept, 2006) and its progeny, to assert that the post-release supervision was not imposed by DOCS, but was automatically imposed by Penal Law 70.45(1). The Second Circuit's decision in Earley v Murray, supra, the respondent contends, is not controlling.
Penal Law 70.45 and the Imposing of PRS
Penal Law 70.45 was enacted in 1998 to eliminate parole for certain crimes designated as "violent felony offenses," to establish determinate sentences for those crimes, and to include, as a part of the sentence, an additional period of PRS.
As noted above, the New York Court of Appeals has held, in the context of a motion to vacate, that a defendant must be advised of PRS, as it is a direct consequence of a conviction ( People v Catu, supra at 244). Regarding PRS habeas corpus issues, however, our appellate courts have provided less guidance. Thus, when New York trial courts have been confronted with habeas corpus petitions showing PRS was imposed by DOCS, but was not pronounced in court, the resulting decisions expose some division.
However, where there is no record of PRS neither in the sentence nor in the order of commitment a defendant apparently has no standing for review of the PRS pursuant to a CPL 440.10 motion to vacate a judgment ( People v Tony Wilson, ___ AD3d ___ [2nd Dept, 2007], 829 NYS2d 917; People v Rakim Smith, ___ AD3d ___ [2nd Dept, 2007]) 829 NYS2d 226). Thus, if the imposition of PRS is delayed until a defendant is nearing the completion of his sentence of incarceration which apparently happens when both the sentencing judge and the order of commitment fail to impose PRS a CPL 440.10 motion to vacate a judgement could be fruitless, as there would likely be, at the time the motion is made, no record of PRS having been imposed.
Some courts have upheld the PRS and dismissed the writ ( see Deal v Goord, 8 AD3d 769, [3rd Dept, 2004]; People v Crump, 302 AD2d 901 [4th Dept, 2003], lv denied 100 NY2d 537; People v Thweatt, 300 AD2d 1100 [4th Dept, 2002]; People v Bloom, 269 AD2d 838, lv denied 94 NY2d 945 [4th Dept, 2000]; Hernandez v Warden, 14 Misc 3d 1210 [A], [Sup Ct, Bronx County, 2006]; People ex rel. Johnson v Warden, 4 Misc 3d 535 [Sup Ct, Bronx County, 2004].
Other courts have held that the PRS is improper and have sustained the writ ( see People ex rel. Lewis v Warden, 14 Misc 3d 468 [Sup Ct, Bronx County, 2006]; In the Matter of Ricky Avant v Robert Dennison, index no. 1633/2006 [Sup Ct, Bronx County, Williams, J.]).
Last year, the issue of the failure of a New York sentencing court to impose PRS was brought to the Second Circuit Court of Appeals in Earley v Murray, supra. There, the Second Circuit held that it is improper for PRS to be administratively added where it was not imposed by the sentencing court.
Earley
The Second Circuit, in Earley v Murray, supra, held that, where PRS is not imposed by the sentencing judge, but PRS is added to a sentence by DOCS, this violates due process rights. In Earley, the defendant was sentenced, in Kings County Supreme Court, to six years incarceration pursuant to a plea agreement. Although PL 70.45 had recently been enacted mandating a term of PRS for convictions such as Earley's, PRS was neither included in the sentence announced in court by the judge nor included in the written order of commitment signed by the clerk of the court. DOCS, of its own accord, therefore added the PRS mandated by PL 70.45.
The defendant in Earley moved in state court to have the sentence amended by removing the PRS. After the state courts denied his motion and appeal, the defendant filed a petition for a writ of habeas corpus in the Eastern District of New York. The District Court denied the petition. The Second Circuit granted a certificate of appealability, vacated the District Court's decision, and remanded the case.
The Second Circuit, in Earley, held that the imposition of PRS by an administrative agency DOCS violated the defendant's due process rights. It further held that PRS is not merely a direct consequence of a determinate sentence but is, in fact, part of the sentence itself and, as such, may be imposed only by the sentencing judge, and is a nullity if imposed administratively after sentencing."The question is whether the state court's application of clearly established federal law is objectively unreasonable" ( Early, supra at 74).
"The only cognizable sentence is the one imposed by the judge. Any alteration to that sentence, unless made by a judge in a subsequent proceeding, is of no effect" ( Earley, supra at 75). "The judgment of the court establishes a defendant's sentence, and that sentence may not be increased by an administrator's amendment" ( Early, supra at 75).
In Earley, the Second Circuit relied on Hill v United States ex rel. Wampler, 298 US 460 (1936). Although rendered in 1936, and although partially superceded by Federal statutes ( see U.S. v Joost, ___ F.Supp2d ___ 2007 WL 148729 [SDNY, January 19, 2007]), Wampler is still relevant and authoritative today.
Wampler
We need not go back seventy-one years to learn of the rule requiring that sentences be pronounced by a judge. However, it is informative to do so, as an authoritative decision on this issue was articulated in 1936 by Justice Cardozo in Hill v United States ex rel.Wampler, supra.
For more recent decisions addressing the rule requiring that sentences be pronounced by a judge, see Willett v Berbary, 456 F.Supp.2d 404 (W.D.NY, 2006); Earley v Murray, supra; U.S. ex rel. Speaks v Brierley, 417 F.2d 597 (3rd Cir, 1969).
In Wampler, a clerk of the trial court, pursuant to a customary procedure always followed in that court, and as instructed by the court, added a provision to the defendant's sentence ( supra, at 462). The defendant brought a habeas corpus petition challenging the provision added by the clerk. Issues from the habeas corpus proceeding eventually made their way, as certified questions, to the United States Supreme Court, where the Court held that the clerk did not have the power to alter the sentence imposed by the court. Justice Cardozo, opining for the Court, wrote: "The court speaks through its judgment, and not through any other medium" ( supra at 465).
The only sentence known to the law is the sentence or judgment entered upon the records of the court. If the entry is inaccurate, there is a remedy by motion to correct it to the end that it may speak the truth. But the judgment imports verity when collaterally assailed. Until corrected in a direct proceeding, it says what it was meant to say, and this by an irrebuttable presumption. In any collateral inquiry, a court will close its ears to a suggestion that the sentence entered in the minutes is something other than the authentic expression or the sentence of the judge ( Wampler, supra at 464). [ internal citations omitted]Wampler thus held that an order of commitment cannot increase the sentence imposed by the sentencing judge. Although Wampler does not identify the source of the rule that it announces, it appears to be based in the due process guarantees of the United States Constitution ( see Earley, supra, at FN 1).
The Second Circuit, in Earley, gave full effect to Wampler's import. As discussed below, New York State appellate courts, however, have interpreted Wampler differently, and have allowed PRS to be imposed administratively where it has not been imposed by the sentencing judge. In compliance with these State appellate decisions, and often in contradiction to the Second Circuit's due process protections posited in Earley, DOCS has continued to impose PRS where the sentencing court has failed to do so.
DOCS' Response to Earley
Despite the Second Circuit's Earley decision declaring the imposition of PRS by DOCS violative of due process rights, and despite the United States Supreme Court decision in Wampler, DOCS has continued to impose PRS where a court has neglected to do so. DOCS apparently bases its rationale for continuing this practice on the premise that, where there is a conflict between State intermediate appellate law and Federal intermediate appellate law, State law takes precedence ( see People v Willie Giles, 13 Misc 3d 1242 [A] [Sup Ct, Kings County, 2006]).
DOCS' response to Earley seems to contradict New York principles that require it to follow the contents of commitment papers. "[P]rison officials are conclusively bound by the contents of commitment papers accompanying a prisoner"( In the Matter of Ricky Murray v Goord, 1 NY3d 29, at 32, quoting Middleton v State of New York, 54 AD2d 450 [3rd Dept, 1976], affd. 43 NY2d 678, [1977]). The First Department, however, in People v Sparber, supra, has found no infirmity in DOCS' practice of adding PRS in PL 70.45 cases where the sentencing judge has failed to impose it.
Sparber
People v Sparber, supra, is the principal Appellate Division, First Department case responding, indirectly, to the Second Circuit's declaration that DOCS' practice of adding PRS is improper. Sparber addresses facts very similar, although distinguishable, to Earley, but concludes differently. In Sparber, the defendant pleaded guilty and, at sentencing, was not informed of the mandatory PRS. Unlike Earley, the commitment sheet in Sparber set forth the PRS. The Sparber court concluded that, because PL 70.45(1) requires that each determinate sentence include PRS, a sentencing judge need not orally pronounce the PRS.
The court wrote: "The Penal Law does not merely direct or require a court to impose PRS when imposing a determinate sentence; instead, it provides that Each determinate sentence also includes, as a part thereof, an additional period of post-release supervision' (Penal Law 70.45). Therefore, even though the court's oral sentence was silent as to PRS, it necessarily included a five-year term thereof" ( Sparber, supra at 265. See also People v Thomas, 35 AD3d 192 [1st Dept, 2006]; People v Lingle, 34 AD3d 287 [1st Dept, 2006]; Matter of Deal v Goord, 8 AD3d 769 [3rd Dept, 2004]).
The Sparber court, in sum, concluded that because PL 70.45(1) provides that each determinate sentence includes PRS, and because PL 70.45(1) does not direct or require the court to impose this statutorily mandated PRS, the inclusion of this PRS is automatic. The mechanism for such automatic inclusion does not require pronouncement by a judge, as it is ministerial. The court further concluded that: "any constitutional requirement that a sentence be entered upon the records of the court'" ( Sparber, supra at 266) is satisfied where the PRS is entered in the order of commitment.
In Wampler, the United States Supreme Court held that an order of commitment cannot add to a sentence imposed by a judge. In Earley, the Second Circuit applied Wampler to a PRS case. Sparber, however, when it suggests that an order of commitment can add to a sentence imposed by a judge, seems to depart from this chain of legal reasoning.
Although the facts of Sparber differ from those of Earley (in Sparber, the order of commitment set forth the PRS while, in Earley, the order of commitment did not), the Sparber court apparently did not base its departure from Earley on its distinguished facts. Any such reading of Sparber one that relies on distinguishing the facts of Sparber from those of Earley is unpersuasive, as the legal rationale behind any such reading that the order of commitment can properly add to the sentence imposed by the court runs counter to the United States Supreme Court's holding in Wampler.
Some trial courts acknowledge, sometimes tacitly, that the Sparber court could not have properly based its departure from Earley on the fact that the order of commitment in Sparber set forth the PRS. Some of these courts interpret Sparber to advance the proposition that PRS may properly be imposed by DOCS even where both the sentencing judge and the order of commitment fail to impose PRS. Their reasoning is based upon the rule set forth in Wampler, which holds that an order of commitment is barred from increasing a sentence imposed by a judge. Sparber's departure from Earley therefore cannot be properly based upon the fact that the order of commitment in Sparber set forth the PRS for, where an order of commitment departs from the sentence imposed by the judge, the order of commitment is "void" and is a "nullity" ( Wampler, supra at 465) ( see People ex rel. Hernandez v Warden, 14 Misc 3d 1210 (A), [Sup Ct, Bronx County, 2006]; see also Quinones v New York Deparment of Corrections, 14 Misc 3d 390 [Sup Ct, Bronx County, 2006]). The Sparber court could not have properly used a nullity to distinguish its case from Earley.
The court in People ex rel. Hernandez v Warden, 14 Misc 3d 1210 (A), (Sup.Ct., Bronx County, 2006), for instance, in concluding that the Sparber court did not base its departure from Earley on its distinguished facts, wrote: "According to Petitioner the only difference between a Sparber claim and an Earley claim is the completed commitment sheet. . . . Contrary to petitioner's interpretation of Sparber, the First Department's holding was predicated upon several decisions from the Fourth Department in which that Court held that PRS is automatically included with a determinate sentence" ( supra at 2-3).
Alternatively, if Sparber is read as approving of the use of an order of commitment to increase the sentence imposed by a sentencing judge, this would be a troubling reading of Wampler, and a troubling view of due process. The problem is fundamental:
[I]n order to comport with the Due Process Clause of the Constitution of the United States and the Constitution of the State of New York, the court in imposing a sentence must be specific as to the components of said sentence and must rest comfortably in the fact that defendant has complete understanding of what his sentence entails ( People ex rel. Lewis v Warden, 14 Misc 3d 468 at 472-473 [Sup. Ct., Bronx County, 2006]).
Discrepancy in Interpreting Wampler There is an apparent discrepancy between the First Department's view of Wampler and the Second Circuit's view. Perhaps appellate law will soon resolve the apparent discrepancy but, until then, New York State trial courts are in a troubling position, as we are faced with inconsistent interpretations of United States Supreme Court precedent.
It is firmly established that the New York Court of Appeals is not bound by the lower Federal courts ( People v Kin Kan, 78 NY2d 54). The New York Court of Appeals has a "long-standing tradition" of "independent responsibility" ( supra, at 60). "On the other hand, the interpretation of a Federal constitutional question by the lower Federal courts may serve as useful and persuasive authority" to the New York Court of Appeals ( supra, at 60).
Similarly, New York lower courts must follow the New York Court of Appeals, even if this conflicts with law established by lower Federal courts. "Where there is a conflict between the decisional law of the Court of Appeals and that of an intermediate Federal appellate court, the ruling of the State Court of Appeals should be followed ( People v Joseph, 85 AD2d 546)" ( People v Brown, 235 AD2d 344, 344-345 [1st Dept, 1997]; see also People v Scott, 6 AD3d 555 [2nd Dept, 2004]).
Independence from lower Federal courts extends not only to New York appellate courts, but also to New York trial courts. We are bound not only by the New York Court of Appeals, but also by lower New York appellate courts. Lower Federal courts, on the other hand, although "useful and persuasive," are not binding on New York trial courts. "[W]hile all courts are bound by United States Supreme Court interpretations of federal constitutional and statutory provisions, the courts of this state are not bound by the interpretation of the U.S. Constitution by lower federal courts, although such decisions may serve as "useful and persuasive authority" ( Brown et al., 9 AD3d 23, FN3 [3rd Dept, 2004]). [ citation omitted]
There is a discrepancy in the way the First Department and the Second Circuit interpret the United States Supreme Court's decision in Wampler. Although the First Department is binding, this court is mindful of Federal constitutional mandates. Indeed, our State courts are compelled to uphold Federal constitutional protections, when these protections are established by the United States Supreme Court, even though our issues arise in the context of State court prosecutions and are controlled by State court decisions ( see 28 U.S.C.A. 2254). This court therefore believes it prudent to examine constitutional issues under well-established Federal standards, as well as our State standards ( see People v De La Cruz, 11 Misc 3d 1069 [A], FN 25 [Sup Ct, Bronx County, 2006]).
To read about additional judicial attempts to come to grips with the Earley/Sparber conflict, see Quinones v New York Deparment of Corrections, 14 Misc 3d 390 (Supreme Court, Bronx County, 2006).
28 USCA 2254 establishes habeas corpus remedies in Federal Court where custody in State court is contrary to "clearly established Federal law, as determined by the Supreme Court of the United States" ( 28 USCA 2254[1]).
Although a petitioner may file a Federal habeas corpus writ, and thus have its case examined under Federal law, it may not do so until it has exhausted the remedies available in the courts of the State ( 28 USCA 2254), which is a time-consuming process.
Holding
New York State appellate law is binding on this court. In addition to examining the matter under New York law, however, it is essential that this court afford the protections guaranteed by the United States Supreme Court ( see People v Kin Kan, supra at 60; see People v De La Cruz, 11 Misc 3d 1069 [A] [Sup Ct, Bronx County, 2006]).
First, examining the matter under New York law, the facts here are distinguished from those in Sparber, because in Sparber the order of commitment set forth the PRS while in the current case the order of commitment did not. Sparber is therefore not controlling.
Further, it appears that the First Department has very recently indicated a sensitivity to an additional facet of this issue. This involves cases where there is judicial discretion as to the amount of PRS to impose.
In People v Hill, ___ NY3d ___, 2007 WL 232496 (1st Dept, 2007), the First Department was presented with issues involving a motion to vacate. The court, in dicta, addressed situations where a sentencing judge has discretion as to the amount of PRS to impose. In analyzing PL 70.45, the court stated that, in situations where a sentencing judge has discretion as to the amount of PRS to impose, if the court fails to specify the amount of PRS, the statute supports the conclusion that "no period of post-release supervision is deemed to have been imposed" ( supra at 7). In discussing PL 70.45, the court wrote:
For all violent felony offenders who are not second felony offenders, however, the statue permits the trial court to choose from within a range of periods of post-release supervision and select the period it deems appropriate in each particular case; no period within the ranges, moreover, enjoys any presumptive status ( supra at 6).
The court in Hill offers support for the conclusion that, where a court has discretion in imposing PRS, "no period of post-release supervision is deemed to have been imposed when a court sentences a defendant . . . and does not specify the period of post-release supervision" ( Hill, supra at 7; see also People ex rel White v Warden, ___ NYS2d ___, 2007 NY Slip Op. 27038, [Sup Ct, Bronx County, 2007]).
An insightful analysis of the issues relating to the failure of a court to impose PRS where there is judicial discretion in the length of the period of PRS, and how this relates to the habeas corpus conundrum discussed herein, can be found in People ex rel White v Warden, ___ NYS2d ___, 2007 NY Slip Op. 27038, [Sup Ct, Bronx County, 2007]).
In the current case, pursuant to PL 70.02 and PL 70.45, the sentencing court was entrusted with discretion in determining the amount of PRS to impose. Therefore, as the sentencing court did not impose a period of PRS, no period of PRS is deemed to have been imposed ( People v Hill, supra at 6, 7; People ex rel. Lewis v Warden, supra; People ex rel White v Warden, supra). Under New York law, the defendant's writ is sustained.
Turning now to Federal constitutional law, as the PRS was imposed administratively by the New York State Department of Correctional Services, and was not imposed by the court, it was imposed improperly ( see Wampler, supra; Earley, supra). Therefore, under Federal law, as under New York State law, the writ must be sustained.
Accordingly, pursuant to New York law, and pursuant to United States constitutional law, the petitioner's writ of habeas corpus is sustained and, pursuant to CPLR 7010(a), it is directed that the petitioner be discharged from detention on this matter. This constitutes the decision and order of this court.