Opinion
No. 1514/01.
Decided December 1, 2006.
Willie Giles, Pro-Se Defendant.
Charles J. Hynes District Attorney Kings County by: Assistant District Attorney's Leonard Joblove, Esq. and Cynthia Kean, Esq.
The defendant moves pro se, pursuant to CPL 440.20, in a motion dated September 24, 2006, to "correct" his sentence by ordering the removal of the five-year period of post-release supervision (PRS) being imposed pursuant to PL 70.45 by the New York State Department of Correctional Services (DOCS) and ordering the Commissioner of DOCS to discharge the defendant from custody forthwith. The People oppose the motion in an answer dated November 30, 2006.
BACKGROUND
The defendant was indicted for Sodomy in the First Degree (PL 130.50-3), two counts of Sexual Abuse in the First Degree (PL 130.65-3), two counts of Sexual Abuse in the Second Degree (PL 130.60-2) and Endangering the Welfare of a Child (PL 260.10(1) for acts involving oral sodomy and penis to vagina contact with an eight-year old girl on or about February 18, 2001.
The defendant, represented by counsel, pled guilty on August 15, 2001 to the People's plea offer of Sodomy in the First Degree and one count of Sexual Abuse in the First Degree with a negotiated sentence of five-and-one-half years on the Sodomy count to run concurrent with five years on the Sexual Abuse count. Nothing was said about a period of PRS being part of the sentence. The defendant waived his right to appeal.
On September 25, 2001, the defendant who had three prior narcotics-related felony convictions was arraigned as a second felony offender and sentenced as promised. Again, nothing was said about PRS. Neither was a term of PRS noted on the sentence commitment order signed by the court clerk.
On October 1, 2001, the defendant's plea and sentence to Sodomy in the First Degree was vacated, because, based on the defendant's prior felony convictions, the minimum sentence was 8 years. The defendant entered a plea to Attempted Sodomy in the First Degree and was sentenced on the crime to five-and-a-half years, nunc pro tunc, to September 25, 2001 to run concurrent with the five-year sentence previously imposed on the Sexual Abuse plea. Once again, neither the Court nor the amended commitment order mentioned PRS.On September 15, 2005, the defendant was produced in Court for a Sex Offender Risk Assessment (SORA) Hearing and adjudicated a Level II Sexually Violent Offender. On October 28, 2005, the defendant was released by DOCS. Prior to being released from prison, the defendant was informed by DOCS that he was subject to a five-year period of PRS. On or about July 14, 2006 the defendant was returned to the custody of DOCS for violating the terms of his PRS.
The defendant filed an Inmate Grievance with DOCS complaining about being re-incarcerated. In a DOCS Memorandum to the defendant, dated August 24, 2006, the defendant was informed that where the Court is silent regarding PRS at sentencing, "DOCS applies to the determinate sentence the period of post-release supervision required by subdivision 2 of PL 70.45."
DISCUSSION
The Federal Constitutional Question
Effective September 1, 1998, the Legislature eliminated parole for certain crimes designated in PL 70.02 as "violent felony offenses" by establishing determinate sentences for these crimes. Formerly, these crimes were given indeterminate sentences with release on parole possible after serving the minimum term of the sentence
In addition, PL 70.45 was enacted to provide that: "Each determinate sentence also includes, as a part thereof, an additional period of post-release supervision." The period of PRS can be up to five years after release from prison depending on the degree of the crime and the defendant's criminal record. PL 70.45(2). Where a defendant has a prior felony conviction, the period of PRS is five years regardless of the degree of the crime. PL 70.45(2). A violation of a condition of PRS can result in reincarceration for at least six months and up to the balance of the remaining PRS period, not to exceed five years. PL 70.45(1).
It took some time for many trial courts and practitioners to realize that the "additional period" of PRS makes PRS substantively different from the parole associated with indeterminate sentences. Although defendants released on parole and PRS are supervised by parole officers and are subject to being returned to prison if found in violation of the terms of their release, the period of time served on parole does not result in any time added to the maximum term of the indeterminate sentence, whereas PRS time is added to the term of the determinate sentence.
Therefore, the Court of Appeals held, after much litigation involving many defendants who pled guilty without being informed that a period of PRS would be part of their sentences that because "a defendant pleading guilty to a determinate sentence must be aware of the post-release supervision component of that sentence in order to knowingly, voluntarily and intelligently choose among alternative courses of action, the failure of a court to advise of post-release supervision requires reversal of the conviction. " People v. Catu, 4 NY3d 242, 245 (2005).
In this case, the defendant, who has a prior felony conviction, was not advised of the mandatory five-year PRS component of his determinate sentences. Therefore, he would be entitled to withdraw his guilty plea upon making such a motion. People v. VanDeusen, 7 NY3d 744 (2006). However, having already served the prison term imposed, the defendant is not seeking to vacate his guilty plea but only the PRS portion of the sentence now being enforced by DOCS.
Again, much litigation, particularly in recent months, has ensued concerning the question of whether PRS can be enforced by DOCS in cases where the sentencing Court did not mention PRS at the sentence. In Matter of Deal v. Goord, 8 AD3d 769 (3rd Dept. 2004), appeal dismissed, 3 NY3d 737 (2004), reconsideration denied, 4 NY3d 795 (2005), it was held that even though the sentencing court made no mention of PRS at either the time of the guilty plea or sentence, DOCS had the authority to enforce PRS, because, pursuant to PL 70.45, PRS was "automatically included" in a determinate sentence. In its August 24, 2006 Memorandum to the defendant, DOCS relied on Deal for its authority to impose PRS on the defendant.
Although the "automatic" enforcement of PRS by DOCS in all determinate sentences pursuant to PL 70.45 was seemingly settled as a matter of interpretation of State statutory law (see, People v. Crump, 302 AD2d 901 [4th Dept. 2003], lv denied, 100 NY2d 537 [court not required to specify a period of PRS at sentencing]; People v. Bloom, 269 AD2d 838 [4th Dept. 2000], lv denied, 94 NY2d 945 [statutory period of PRS automatically imposed when sentencing court was silent on the amount of PRS time]), the Second Circuit Court of Appeals subsequently held that DOCS does not have the authority as a matter of due process pursuant to federal constitutional law to enforce PRS in the absence of a specific judicial order. Earley v. Murray, 451 F3d 71 (2nd Cir 2006), reh denied, 462 F3d 147 (2006).
In Earley, a case arising in this county, the defendant was sentenced to a six-year prison term for a violent felony offense. As in this case, no mention was made at his guilty plea or sentencing that his conviction also carried a five-year PRS term. Nevertheless, pursuant to PL 70.45, DOCS administratively added the PRS period to his sentence. The defendant unsuccessfully moved in State court to have PRS removed and then brought a federal writ of habeas corpus, claiming a constitutional due process violation. The Second Circuit, relying on Hill v. United States ex rel. Wampler, 298 US 460 (1936) (holding that the court clerk did not have the authority to add to the court's sentence commitment as a condition of the defendant's prison sentence that the defendant not be released until the $5000 fine that was also imposed was paid), found that the enforcement of PRS was not authorized because, "The judgment of the court establishes a defendant's sentence, and that sentence may not be increased by an administrator's amendment. . . . [B]ecause the only cognizable sentence is the one imposed by the judge, . . . [a]ny alteration to that sentence, unless made by a judge in a subsequent proceeding, is of no effect." 451 F3d at 75. The Second Circuit also stated that it is the actual "oral sentence that constitutes the judgment of the court" and that the written sentence commitment is "simply evidence of the oral sentence." Id., citations omitted.
The Second Circuit, citing Bozza v. United States, 330 US 160, 167 (1947), recognized that where a "mandatory component" of a sentence has been omitted, a sentencing court may resentence the defendant to correct the defect without violating the Double Jeopardy Clause. 451 F3d at 75. The Second Circuit noted that, consistent with Bozza, CPL 440.40(1) provides the People with one year to move to set aside a sentence on the ground that it is invalid as a matter of law. 451 F3d at 76. Further, the Second Circuit stated that its ruling "is not intended to preclude the State from moving in the New York Courts to modify Earley's sentence to include the mandatory PRS term," but in a footnote acknowledged that whether such a motion by the People in Earley's case would be timely is a state law question for New York Courts to decide. 451F2d at 77, n 2.
In its decision denying the People's petition for rehearing, the Second Circuit reiterated its view that any change involving a custodial aspect of a sentence must be personally imposed by a judge and that in the absence of PRS expressly being made part of the sentence by the judge, it cannot be deemed by statute to have been imposed at the time of the original sentence. 462 F3d at 149-150.
State Court Responses to Earley
In the aftermath of Earley, DOCS and various New York State courts have taken different approaches to the question of whether PRS can be "automatically" enforced by DOCS. In its August 24, 2006 Memorandum to the defendant, DOCS stated that it would not follow Earley and continue to enforce PRS against the defendant based on the rationale of Deal, because, "When state and federal case law reach different results, the state case law [i.e., Deal] takes precedence over federal case law in state court until the specific issue is addressed by the US Supreme Court," citing People v. Kin Kan, 78 NY2d 54, 60 (1991).
A different conclusion was reached by the Court in Waters v. Dennison, ___ Misc 3d___, 2006 NY Slip Op. 26448, 2006 WL 3228359 (Supreme Court, Bronx Cty., Nov. 3, 2006), an Article 78 proceeding against DOCS which was "automatically"enforcing PRS against a defendant convicted (in New York County) of a violent felony. The Court in Waters chose to follow Earley and ordered the defendant released.
The same Court, this time reviewing a writ of habeas corpus, again followed Earley and ordered the defendant (convicted in Kings County) released, noting that neither the record nor the written sentence commitment mentioned PRS. Lewis v. Warden, ___ Misc 3d ___, 2006 NY Slip Op 26464, 2006 WL 3391221(Supreme Court, Bronx Cty., Nov. 24, 2006).
In People v. Ryan, 13 Misc 3d 451 (Supreme Court, Queens Cty., July 28, 2006), the Court also barred DOCS from automatically applying the statutorily mandated PRS but based its decision on New York State law rather than on the principles articulated in Earley. In Ryan, the defendant, who had a prior felony conviction, was erroneously sentenced to two-and-a-half years' PRS rather than the mandatory five-year period. Because the written sentence commitment did not specify any PRS period, DOCS applied the statutorily mandated five-year period. After serving his sentence and then being reincarcerated for violating PRS, the defendant moved to vacate the imposition by DOCS of five years' PRS.
The Court held that because more than one year had passed from the time of the illegal sentence, the Court did not have the authority to grant the People's CPL 440.40(1) motion to correct the illegal sentence. Further, the Court did not have the inherent power to correct an illegal sentence more than one year after its imposition unless it was clear that the judge misspoke when imposing sentence or that there was a clerical error, People v. Moss, 234 AD2d 610 (2nd Dept. 1996), lv denied, 89 NY2d 1014 (1997), or the illegality was procured by the defendant's fraud or misrepresentation. People v. Moquin, 77 NY2d 449, 452 (1991), rearg denied, 78 NY2d 952 (1991). Therefore, the Court vacated the enforcement of the five-year PRS period by DOCS. However, the Court held that the two-and-a-half year PRS period could be enforced, because the defendant agreed to that when he pled guilty. The Court limited its decision to the specific facts of the case, recognizing that those facts did not resolve "the legal conundrum that exists as to the consequences of a complete failure to advise a defendant of PRS. . . ."
In People v. Cephus, 13 Misc 3d 1211 (A) (Sup Ct, Kings County, June 28, 2006), such a conundrum existed, because the Court had made no mention of PRS at the time of sentence. The Court, citing Earley, ordered the defendant, who was convicted after trial and still serving the original sentence but who was informed by DOCS that PRS would be added, to be produced for resentencing to include PRS. The decision did not discuss whether the addition of PRS more than one year after the original sentence would violate the one-year limitation of CPL 440.40(1) or New York State case law.
Similarly, in People v. Keile, 13 Misc 3d 1204 (A) (Sup Ct, New York Cty., September 5, 2006), the Court stated that pursuant to Earley it would resentence the defendant who was still serving the original sentence imposed more than two years previously. Although the defendant had pled guilty and had not been informed of the PRS requirement, the defendant did not wish to withdraw his guilty plea but did wish to bar enforcement of PRS by DOCS. The Court stated its "understanding of the law" was that it did not have the inherent power at this point to correct an illegal sentence, citing People v. Riggins, 164 AD2d 797 (1st Dept. 1990). Nevertheless, the Court wished to expedite appellate review of the question and provide New York appellate courts "an opportunity to decide whether to follow Earley" and "provide [lower courts with] guidance about how to proceed in this situation."
In Quinones v. State of New York Department of Corrections, ___ Misc 3d ___, 2006,
2006 NY Slip Op 26458, WL 3350582 (Sup Ct, Albany Cty., November 16, 2006), an Article 78 proceeding brought by an inmate to review a decision by DOCS to add a five-year PRS term to his sentence where no mention of it was made at sentencing or in the written sentence commitment, the Court decided not to follow Earley. The decision upheld the enforcement of PRS against the defendant without the necessity of any further judicial action. However, the decision does not discuss how, in the absence of any oral or written PRS order from the sentencing court, PRS could be sustained in federal court should the defendant relying on Earley seek a writ of habeas corpus.
The First Department has also addressed this issue in two reported cases. In People v. Sparber, ___ AD3d ___, 2006 NY Slip Op. 08069, 2006 WL 3231461 (1st Dept. November 9, 2006), the sentencing court did not mention PRS at either the plea or sentence. However, its written sentence commitment reflected that a five-year PRS term was imposed. The defendant did not wish to withdraw his guilty plea but claimed that the PRS provision of his sentence was a nullity, because it was not pronounced orally, in his presence, in open court. The Sparber Court found that a five-year PRS term was "necessarily included" in the sentence pursuant to the provisions of PL 70.45(1) and that the sentencing court, "acting through its court clerk, set forth the PRS provision in the commitment sheet, thereby satisfying any constitutional requirement that a sentence be entered on the records of the court'," citing Hill v. Wampler, 298 US at 464.
In People v. Lingle, ___ AD3d ___, 2006 NY Slip Op. 08172, 2006 WL 3290365 (1st Dept. November 14, 2006), the First Department again denied the request to strike PRS from the sentence imposed on the ground that it was not pronounced orally by the sentencing court, because not only did the written sentence commitment have the PRS provision, the sentencing judge personally signed it. The Court in Lingle found that the PRS term was included by operation of law and saw "no constitutional infirmity in the use of a written document to clarify an aspect of a sentence upon which the court's oral pronouncement was silent." (citations omitted).
This Court's Conclusion
The First Department in Sparber and Lingle has held that a written sentence commitment including PRS satisfies federal constitutional requirements that the terms of a sentence be imposed by a court, and that it is not necessary for the court to orally include PRS as part of a determinate sentence. This Court is required to follow that ruling until the Court of Appeals or the Appellate Division, Second Department pronounces a contrary rule. Mountain View Coach Lines, Inc. V. Storms, 102 AD2d 663, 664-665 (2nd Dept. 1984).
The Second Circuit in Earley has held, contrary to established New York State law, that PRS, where required to be imposed, cannot be deemed to be included in the sentence. This holding, while not binding on state courts, "may be treated as useful and persuasive. " People v. Kin Kan at 59-60. Further, if this Court, as in Quinones, does not vacate the enforcement of PRS and does not itself add PRS to the sentence, the defendant relying on Earley would be able to have the PRS term vacated in federal court.
Earley also stated that its holding did not bar a resentencing to impose PRS which would be subject only to procedural and time limitations set by State law.
State law, as established by PL 70.45(1) and numerous appellate cases interpreting that statute, has deemed PRS to be "automatically" part of a determinate sentence and, although required to be discussed to insure a knowing, intelligent, and voluntary guilty plea, PRS need not be mentioned at sentencing to be deemed included in the sentence.
The limitations, at this juncture, on amending the defendant's written sentence commitment to correct an illegal sentence are purely based on State statutory and case law, not constitutional principles.
Consistent with the above considerations, this Court finds that the defendant's written sentence commitment should be amended to reflect a period of a five-year PRS term. This will satisfy the requirements of Earley as interpreted by Sparber and Lingle. Further, although not necessary, this Court will personally sign that document.
As a matter of State law, this amended sentence commitment does not operate to change the defendant's sentence, because State law has deemed the five-year PRS period to have been included in the original sentence. The Court will amend the commitment to satisfy the requirements of Earley, not State law. Because the defendant's sentence is not being changed, there is no need to produce the defendant in court for this ministerial act.
Also, as a matter of State law, neither the one-year limitation of CPL 440.40(1) nor any New York case law limitation on a court's inherent power to correct a sentence is applicable, because the sentence, insofar as State law is concerned, is not being changed. The five-year PRS term currently being enforced by DOCS has been deemed by State law to have existed as of the date of the original sentence.
Accordingly, the defendant's sentence commitment will be amended and his motion to vacate the term of PRS that is being enforced by DOCS is denied.
SO ORDERED
JOEL M. GOLDBERG Judge
The defendant is hereby advised pursuant to 22 NYCRR § 671.5 of his right to apply to the Appellate Division, Second Department, 45 Monroe Place, Brooklyn, New York 11201 for a certificate granting leave to appeal from this determination. This application must be made within 30 days of service of this decision. Upon proof of financial inability to retain counsel and to pay the costs and expenses of the appeal, the defendant may apply to the Appellate Division for the assignment of counsel and for leave to prosecute the appeal as a poor person and to dispense with printing. Application for poor person relief will be entertained only if and when permission to appeal or a certificate granting leave to appeal is granted.