Opinion
0124219/2007.
March 17, 2008.
DECISION AND JUDGMENT
This proceeding was commenced by the petition for a writ of habeas corpus of Robert Dempsey, verified on April 1, 2007, and stamped as filed in the St. Lawrence County Clerk's Office on April 6, 2007. Petitioner, who was then an inmate at the Riverview Correctional Facility, challenged his continued incarceration in the custody of the New York State Department of Correctional Services (DOCS). The Court issued an Order to Show Cause on April 9, 2007. The respondent's subsequent motion to dismiss was denied by Decision and Order/Amended Order to Show Cause, dated August 1, 2007. The Court has since received and reviewed respondent's Return, verified on August 27, 2007. The Court received no Reply thereto from the petitioner.
On December 27, 2007, the Appellate Division, Third Department, handed down decisions in Dreher v. Goord, 46 AD3d 1261 and Quinones v. New York State Department of Correctional Services, 46 AD3d 1268. By letter order dated January 3, 2008, the Court directed the respondent to submit additional memoranda addressing the potential impacts of the two cases on this proceeding. The Court has since received and reviewed respondent's Supplemental Letter Memorandum dated January 11, 2008, as well as petitioner's Reply to the Supplemental Letter Memorandum, filed in the St. Lawrence County Clerk's office on January 23, 2008. By letter dated February 4, 2008, the petitioner advised chambers of a new address in the community. In response to a subsequent inquiry from the Court, counsel for the respondent has advised chambers that petitioner was conditionally released from DOCS custody to post-release supervision on January 25, 2008.
On December 23, 1999, the petitioner was sentenced in Supreme Court, Rensselaer County, as a second felony offender, to a determinate term of imprisonment of five years upon his conviction of the crime of Burglary 2°. Burglary 2° is a class C violent felony offense under the provisions of Penal Law § 70.02(1)(b). Neither the sentence and commitment order nor the sentencing minutes makes reference to any period of postrelease supervision (Penal Law § 70.45). DOCS nevertheless computed petitioner's sentence as including a five-year post-release supervision and the petitioner was conditionally released from DOCS custody to post-release supervision on February 3, 2006. The petitioner's post-release supervision, however, was revoked following a final parole revocation hearing conducted on October 18, 2006. A delinquency date of July 11, 2006, was sustained and a 16-month delinquent time assessment imposed. The petitioner was returned to DOCS custody, as a post-release supervision violator, on November 3, 2006. This proceeding ensued. Citing Earley v. Murray, 451 F3d 71, rearg den 462 F3d 147, cert den, Behrle v. Earley, 127 S. Ct. 3014, the petitioner argues that DOCS illegally imposed the five-year period of post-release supervision.
Although it is alleged in paragraph 13 of the petition that"[a]t the time of sentencing . . . the Court did not specify that, Petitioner had . . . POST RELEASE SUPERVISION," the petitioner did not annex thereto a copy of his sentencing minutes. The respondent, however, does not contest petitioner's assertion notwithstanding the fact that DOCS has presumably been provided with a certified copy of the sentencing minutes pursuant to CPL § 380.70.
Section 70.45 was added to the Penal Law by L 1998, ch 1, § 15. The legislation provided, and still provides, that "[e]ach determinate sentence also includes, as a part thereof, an additional period of post-release supervision." Penal Law § 70.45(1). The originally enacted version of Penal Law § 70.45(2), which is the version germane to this proceeding, provided that "[t]he period of post-release supervision for a determinate sentence shall be five years, except that such period shall be three years whenever a determinate sentence of imprisonment is imposed pursuant to section 70.02 of this article upon a conviction for a class D or class E violent felony offense; provided, however, that when a determinate sentence is imposed pursuant to section 70.02 of this article, the court, at the time of sentence, may specify a shorter period of post-release supervision of not less than two and one-half years upon a conviction for a class B or class C violent felony offense and a shorter period of post-release supervision of not less than one and one-half years upon a conviction of a class D or a class E violent felony offense." Thus, the period of post-release supervision statutorily deemed to be part of a determinate sentence imposed pursuant to Penal Law § 70.04(second violent felony offense) or Penal Law § 70.06(6) (violent felony offense as a second felony offense) is precisely five years. Since the petitioner is subject to a determinate sentence of imprisonment imposed pursuant to Penal Law § 70.06(6) (violent felony offense as a second felony offense), the period of post-release supervision statutorily deemed to be part of his sentence is precisely five years, with no discretion afforded the sentencing judge to specify a shorter period.
The petitioner in Deal v. Goord, 8 AD3d 769, app dis 3 NY3d 737, recon den 4 NY3d 795, had been convicted of a class C violent felony offense and sentenced as a second felony offender (Penal Law § 70.06(6)) to a determinate sentence of imprisonment of five years. The sentencing court, however, did not advise Mr. Deal ". . . that an automatic part of his sentence was a five-year period of postrelease supervision and did not explicitly sentence petitioner to such." Id at 769 (citation omitted). After learning that DOCS nonetheless intended to subject him to a period of post-release supervision, Mr. Deal commenced a CPLR Article 78 proceeding seeking to prohibit DOCS from doing so. After observing that the Deal petitioner did not challenge either his judgment of conviction or sentence, the Appellate Division, Third Department, quoting from People v. Lindsey, 302 AD2d 128, 129, lv den 100 NY2d 583, observed that "'a period of postrelease supervision [was] automatically included' in his [Deal's] sentence by statute." Id at 769 (citations omitted). The Deal Court went on to hold that "[s]ince respondents are enforcing a statutorily-required part of petitioner's sentence, they have not performed any judicial function, making prohibition an unavailable remedy." Id at 770 (citations omitted). The Deal decision was issued by the Appellate Division, Third Department, in April of 2004. It should be noted that the Deal court did not address the distinction between determinate sentences imposed pursuant to Penal Law § 70.04 or § 70.06(6) and determinate sentences imposed pursuant to Penal Law § 70.02. In November of 2004, however, the Third Department considered the case of a defendant who had been convicted, following a plea, of the crime of Assault 2°, a class D violent felony offense (Penal Law § 70.02(1)(c)). People v. Boyce, 12 AD3d 728, lv den 4 NY3d 741. The Boyce court noted that the sentencing court did not impose a specific period of post-release supervision at the time of sentencing. Nevertheless, citing, inter alia, Deal, the Appellate Division, Third Department, found that a three-year period of post-release supervision was automatically included in Mr. Boyce's sentence.
The rationale underlying Deal was called into question by the June 9, 2006, decision of the United States Court of Appeals, Second Circuit, in Earley v. Murray, 451 F3d 71, rearg den 462 F3d 147, cert den, Behrle v. Earley, 127 S. Ct. 3014, a federal habeas corpus proceeding. Mr. Earley had been sentenced in Supreme Court, Kings County, to a six-year determinate sentence of imprisonment after pleading guilty to the crime of Attempted Burglary 2°, a class D violent felony offense (Penal Law § 70.02(1)(b) and (c)). As was the case in Deal, however, the sentencing court failed to mention any period of post-release supervision when it pronounced sentence and the court's written sentence and commitment order was likewise silent on this point.
In his federal habeas corpus proceeding Mr. Earley argued that his due process rights were violated when DOCS administratively added a five-year period of post-release supervision to his determinate sentence of imprisonment. The Second Circuit Court of Appeals, relying on Hill v. United States ex rel Wampler, 298 U.S. 460, agreed with Mr. Earley. The defendant in Wampler had been orally sentenced to 18 months in prison and a $5,000.00 fine. In accordance with local custom known to the sentencing court, the clerk of the court added a provision directing that Mr. Wampler remain in custody until his fine was paid. "Justice Cardozo, speaking for a unanimous [Wampler] Court, announced a basic principal of criminal sentencing: 'The only sentence known to the law is the sentence or judgment entered upon the records of the court . . . Until corrected in a direct proceeding, it says what it was meant to say, and this is by an irributtable presumption.' Id at 464 . . . (internal citations omitted). The [Wampler] court went on to write that a 'warrant of commitment' [prepared by the clerk] departing in matter of substance from the judgment back of it is void. . .' Id at 465 . . ." Earley v. Murray, 451 F3d 71, 74. Although the Earley court recognized the fact that the decision whether or not to keep the Wampler defendant in custody pending payment of the fine lay within the discretion of the sentencing court, while state law required Mr. Earley to be sentenced to a period of post-release supervision, it ultimately concluded that the Wampler holding was broad enough to be applicable to the post-release supervision issue before it. According to the Earley court, "[t]he sentence imposed by the court on Earley was six years in prison. The judgment authorized the state to incarcerate him for six years and no more. Any addition to that sentence not imposed by the judge was unlawful . . . If, as in Wampler, an erroneous order of commitment prepared by the clerk of the court with the court's knowledge cannot alter the sentence imposed by the court, then plainly a later addition to the sentence by an employee of the executive branch can not do it." Id at 75. Earley serves as useful and persuasive, though nonbinding, authority for New York courts. See People v. Kan, 78 NY2d 54.
Although the Earley court does not state that Mr. Earley was sentenced either as a second violent felony offender pursuant to Penal Law § 70.04 or a second felony offender pursuant to Penal Law § 70.06(6), a first conviction of a class D violent felony offense such as Attempted Burglary 2° would at most support a three-year period of post-release supervision. The fact that a five-year period of post-release supervision was attributed to Mr. Earley's sentence by DOCS suggests that Mr. Earley was, in fact, sentenced either as a second violent felony offender or second felony offender.
After the Second Circuit enunciated its decision in Earley, splits developed among the various Appellate Divisions of the Supreme Court. The Second Department fully embraced and continues to fully embrace Earley, repeatedly holding that where a defendant is sentenced to a determinate term of incarceration and neither the sentencing minutes nor the court's order of commitment mentions the imposition of any period of post-release supervision, such sentence does not include any period of post-release supervision. See People v. Drummond, 47 AD3d 728, People v. O'Shea, 45 AD3d 701, People v. Guare, 45 AD3d 697, People v. Howell, 40 AD3d 882 and People v. Guerrero, 39 AD3d 878. The Second Department follows Earley even where the defendant had been sentenced as a second felony offender and, thus, the statutorily mandated period of post-release supervision was precisely five years with no sentencing court discretion available. See People v. Martinez, 40 AD3d 1012. Where the sole basis of a detainee's incarceration is the violation of the terms of post-release supervision improperly added to his/her determinate sentence, the Second Department has directed immediate release from custody in the context of a habeas corpus proceeding. See People ex rel Gerard v. Kralik, 44 AD3d 804.
The Appellate Division, First Department, found no constitutional defect where a non-discretionary, five-year period of post-release supervision was reflected in the sentencing court's "worksheet and commitment sheet" even though the period of postrelease supervision was not mentioned during sentencing proceedings. People v. Collado, 849 NYS 2d 558. Where, however, the imposition of a period of post-release supervision was not reflected in either the sentencing court's minutes or commitment order, the First Department tacitly embraced Earley, finding that '". . . the sentence actually imposed by the court never included, and does not now include, any period of post-release supervision.'" People v. Figueroa, 45 AD3d 297, 298, quoting People v. Noble, 37 AD3d 622.
The Appellate Division, Fourth Department, citing Earley, just recently sustained a writ of habeas corpus and directed immediate release from DOCS custody where the sentencing court did not impose a period of post-release supervision and the only basis for the inmate's continued incarceration was his violation of a period of post-release supervision administratively added by DOCS officials. People ex rel Burch v. Goord, AD3d ( 2008 WL 450379).
In the Appellate Division, Third Department, where this Court sits, an initial post Earley pronouncement concerned a defendant sentenced as a second violent felony offender where there was no reference to any period of post-release supervision in the sentencing minutes but where the sentence and commitment order specified a five-year period of post-release supervision. People v. Boyer, 36 AD3d 1084, lv den 8 NY3d 944. Under such circumstances the Third Department discerned ". . . no need for remittal . . . Defendant, having been sentenced to a determinate prison term of seven years, was statutorily mandated to have included in such sentence a period of five years of postrelease supervision as reflected in the sentence and commitment form ( see Penal Law § 70.45(2))." Id at 1085. The Boyer court made no reference to either Deal or Earley.
The next post-Earley, Third Department case addressing the post-release supervision issue was Garner v. New York State Department of Correctional Services, 39 AD2d 1019. Garner involved a defendant who had been sentenced as a second violent felony offender to a determinate sentence of imprisonment. While not stated by the Appellate Division, Third Department, this Court presumes that neither Mr. Garner's sentencing minutes nor his sentence and commitment order contained any reference to a period of post-release supervision. In any event, Mr. Garner unsuccessfully sought to vacate the underlying determinate sentence, arguing that the sentencing court did not inform him that he would be subject to a mandatory five-year period of post-release supervision. See CPL § 440.20(1). After that motion had been denied the petitioner commenced a CPLR Article 78 proceeding to prohibit DOCS from including the five-year period of post-release supervision in its sentence calculations. Citing Deal, the Third Department found that"[a]s respondents [DOCS] are only enforcing, not imposing, a part of petitioner's sentence which was automatically included by statute, they have not performed any judicial function, making prohibition an unavailable remedy." 39 AD2d 1019. The Garner court made no reference to Earley, and this Court presumes that the due process argument underlying in Earley was not advanced, and therefore not considered, in Garner. This Court notes that although Deal, Boyer and Garner all involved multiple violent felony offenders, the Appellate Division, Third Department, had previously applied the Deal rationale (albeit pre-Earley) to the case of the defendant convicted as a first time violent felony offender. See People v. Boyce, 12 AD3d 728, lv den 4 NY3d 741.
The information that petitioner was sentenced as a second violent felony offender is not found in the Third Department's April 12, 2007, decision. That aspect of Mr. Garner's sentencing, however, can be gleaned from the decision of the Appellate Division, First Department, in a subsequent habeas corpus proceeding. See People ex rel Garner v. Warden, Rikers Island Correctional Facility, 40 AD3d 243.
The foregoing represented the judicial landscape in this department up until December 27, 2007, when the Appellate Division, Third Department, fundamentally altered that landscape by the issuance of its decisions in Quinones v. New York State Department of Correctional Services, 46 AD3d 1268 and Dreher v. Goord, 46 AD3d 1261. The defendant in Quinones was a first-time violent felony offender who had been sentenced to a controlling, concurrent, determinate term of imprisonment upon his conviction of the crime of Attempted Murder 2°, a class B violent felony offense. No period of post-release supervision, however, was imposed at sentencing and the written sentence and commitment order was silent with respect to post-release supervision. Mr. Quinones commenced a CPLR Article 78 proceeding seeking to annul the determination of the DOCS commissioner to add a five-year period of post-release supervision. "Inferring from our case law that petitioner's sentence automatically included postrelease supervision by operation of law despite the sentencing court's omission, Supreme Court found no error in the Commissioner's determination and dismissed the petition." 46 AD3d 1268. Citing the availability of a sentencing court's discretion in setting the length of post-release supervision for first-time violent felony offenders, the Third Department found that "[s]ince the sentencing court here could have imposed less than a five-year period [of post-release supervision] if it had determined the issue . . . we cannot agree with respondent that imposition of a five-year period was mandatory or a purely ministerial act on the part of the Commissioner. Rather, we agree that '[t]he 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.'" Id at 1268, quoting People v. Duncan, 42 AD3d 470,471, quoting Earley v. Murray, 451 F3d 71,75 (citations omitted). The Third Department went on to state that to the extent its prior decisions in Deal and Garner reached different conclusions, "they should no longer be followed." 46 AD3d 1268.
The appellate level decision in Quinones merely states that the petitioner was not "explicitly sentenced to a period of postrelease supervision." 46 AD3d 1268. The more specific sentencing information noted above is found in the Supreme Court level decision in Quinones reported at 14 Misc 3d 390.
For reasons that are not altogether clear the Quinones court referenced the 2004 amendment to Penal Law § 70.45(2) set forth in L 2004, ch 738, § 35. Chapter 738, however, was not approved until December 14, 2004. Section 35, moreover, did not take effect until 30 days thereafter and even then only applied to crimes committed on or after such effective date. It does not appear, therefore, that the 2004 statutory amendment to Penal Law § 70.45(2) was applicable to Mr. Quinones case since he was convicted on July 19, 2004. See People v. Quinones, 41 AD3d 868. In any event, the prior version of Penal Law § 70.45(2), while specifying that the period of post-release supervision for determinate sentence "shall" be five years, included a proviso that the sentencing judge may specify a shorter period of post-release supervision of not less than two and one-half years upon a defendant convicted, like Mr. Quinones, of a first class B violent felony offense.
Dreher goes one step beyond Quinones. Mr. Dreher was sentenced as a second felony offender to a determinate term of seven years. According to the Dreher court" [t]he [sentencing] court did not impose any period of postrelease supervision." 46 AD3d 1261. This Court presumes that the commitment order in Dreher likewise included no reference to any period of post-release supervision. After DOCS calculated Mr. Dreher's sentence as including a five-year period of post-release supervision, he commenced a CPLR Article 78 proceeding seeking to preclude DOCS from imposing any period of post-release supervision. While acknowledging the language of Penal Law § 70.45(1) that "[e]ach determinate sentence also includes, as a part thereof, an additional period of post-release supervision," the Dreher court found that ". . . sentencing remains the province of the courts. The Legislature did not authorize DOCS to impose any period of postrelease supervision." Id at 1261. Although noting the role of DOCS in correcting unlawful sentences pursuant to Correction Law § 601-a, the Dreher court found that it was the responsibility of the judiciary to actually impose a correct sentence. According to the Dreher court, "'[t]he 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.'" Id at 1261, quoting Earley v. Murray, 451 F3d 71,75 (citation omitted). As was the case in Quinones, the Third Department in Dreher went on to note that its prior decisions in Garner and Deal should no longer be followed. Thus, in Dreher the Appellate Division, Third Department, applied the Earley rationale notwithstanding the fact that Mr. Dreher, like the petitioner in the case at bar, was a second felony offender and therefore subject by statute to a mandatory period of post-release supervision of precisely five years, with no discretion to impose a lesser period of post-release supervision afforded to the sentencing judge under either the pre or post 2004 versions of Penal Law § 70.45(2).
This Court finds that the application of the Third Department holdings in Quinones and Dreher inescapably leads to the conclusions that (1) the sentence actually imposed upon the petitioner by the Supreme Court, Rensselaer County, on December 23,1999, never included, and does not now include, any period of post-release supervision; and (2) that DOCS was not authorized to include in petitioner's sentence calculations any period of post-release supervision. Notwithstanding the foregoing, the Court finds that petitioner's January 25, 2008, conditional release from DOCS custody to post-release parole supervision renders habeas corpus relief at this juncture inappropriate. Since the petitioner, however, remains subject to the terms and conditions of release promulgated on the basis of the unlawfully imposed period of post-release supervision, the Court hereby converts this habeas corpus proceeding into a proceeding for judgment pursuant to CPLR Article 78. See CPLR § 103(c), People ex rel Eaddy v. Goord, ___ AD3d ___ ( 2008 WL 450391) and People ex rel McBride v. Alexander, 46 AD3d 849.
The respondent does not take direct issue with the two enumerated conclusions of the Court set forth in the preceding paragraph. Rather, the respondent relies upon a quartet of Court of Appeals cases ( People v. Catu, 4 NY3d 242, People v. VanDuesen, 7 NY3d 744, People v. Louree, 8 NY3d 541 and People v. Hill, 9 NY3d 189) as standing for the proposition that the only remedy available to a plea bargaining violent felony offender for the failure of the sentencing court to advise him/her that a period of post-release supervision would be a part of the determinate sentence ultimately imposed is to have the guilty plea vacated and the conviction reversed. For the reasons set forth below, however, the Court disagrees.
A Catu violation occurs when the sentencing court, at allocution, fails to advise a plea bargaining violent felony offender that the agreed-upon determinate sentence to be imposed includes as a part thereof an additional period of post-release supervision. See People v. Catu, 4 NY3d 242. "Because the defendant pleading guilty to a determinate sentence must be aware of the postrelease 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 postrelease supervision requires reversal of the conviction." Id at 245. This Court would have little difficulty in concluding that the only relief available to an individual seeking to "remedy" a Catu violation is to be afforded an opportunity to withdraw his/her plea. An individual subject to a Catu violation, however, is under no legal compulsion to seek a remedy for the violation. Instead, such individual always has the option of simply accepting the actual sentence that is ultimately imposed. A common element in Catu, VanDuesen, Louree and Hill is that the defendants in those cases, for one reason or another, sought to be relieved of the sentences imposed after the Catu violations. Accordingly, for the defendants in those four cases, the only available remedy was the opportunity to withdraw their pleas. The petitioner in the case at bar, however, does not allege a Catu violation and does not seek to withdraw his underlying plea. Rather, he argues in effect that the sentence actually imposed on December 23, 1999 (5 year determinate term without any period of post-release supervision), has run its course and yet he still remains subject to the period of post-release supervision unlawfully imposed by DOCS. Under such circumstances the Court finds that relief in the nature of prohibition is available. See People ex rel Eaddy v. Goord, ___ AD3d ___ ( 2008 WL 450391) and People ex rel McBride v. Alexander, 46 AD3d 849. In addition, the Court is not persuaded that it would appropriate to stay its judgment so as to provide the appropriate authorities with additional time to seek a re-sentencing of the petitioner.
Based upon all of the above, it is, therefore, the decision of the Court and it is hereby
ADJUDGED, that this habeas corpus proceeding is converted into a CPLR Article 78 proceeding in the nature of prohibition; and it is further
ADJUDGED, that the New York State Department of Correctional Services is prohibited from adding a period of post-release supervision to the petitioner's sentence of imprisonment and, to the extent a period of post-release supervision has already been added, said period of post-release supervision is vacated; and it is further
ADJUDGED, that the New York State Department of Correctional Services shall forthwith advise the appropriate representatives of the New York State Division of Parole to immediately cease enforcement of the terms and conditions of release promulgated on the basis of the unlawfully imposed period of post-release supervision.