The People, Respondent,v.Michael E. Prindle, Appellant.

Brief

N.Y.June 1, 2017

RT SCOU OF APPEAL STATE OF NEW YORK THE PEOPLE OF THE STATE OF NEW YORK, Respondent, -against - MICHAEL PRINDLE, Defendant-Appellant. BRIEF FOR AMICUS CURIAE THE LEGAL AID SOCIETY, CRIMINAL APPEALS BUREAU Ursula Bentele, Andrew Fine, Lawrence Hausman, and Richard Joselson, OF COUNSEL Whitney Robinson, ON THE BRIEF 199 WATER STREET NEW YORK, NY 10038 212-577-3956 October, 2016 i TABLE OF CONTENTS TABLE OF AUTHORITIES .................................................................................... ii PRELIMINARY STATEMENT ............................................................................... 1 STATEMENT OF FACTS ........................................................................................ 1 ARGUMENT As Confirmed By The Virtually Unanimous Opinions Of State Courts Throughout The Country, New York’s Persistent Felony Offender Statutes Violate Defendants’ Sixth Amendment Right To A Jury Trial By Imposing Enhanced Sentences Based On Judicial Findings Of Fact Beyond The Simple Fact Of Prior Convictions By A Preponderance Of The Evidence. .......................................................... 1 Introduction ........................................................................................... 1 A. Apprendi v. New Jersey (2000) ........................................................ 4 B. Ring v. Arizona (2002); Blakely v. Washington (2004) .................... 5 C. Cunningham v. California (2007) .................................................. 12 D. The New York Approach ............................................................... 21 CONCLUSION ........................................................................................................ 28 ii TABLE OF AUTHORITIES Page(s) Federal Cases Alleyne v. United States, 133 S. Ct. 2151 (2013)............................................. 2, 9, 20 Almendarez-Torres v. United States, 523 U.S. 224 (1998) ....................................... 3 Apprendi v. New Jersey, 530 U.S. 466 (2000) ..................................................passim Blakely v. Washington, 542 U.S. 296 (2004) ....................................................passim Cunningham v. California, 549 U.S. 270 (2007) .............................................passim Hurst v. Florida, 136 S. Ct. 616 (2016) ............................................................... 2, 28 Kaua v. Frank, 436 F.3d 1057 (9th Cir. 2006) ........................................................ 14 Mathis v. United States, 136 S. Ct. 2243 (2016) ....................................................... 4 Oregon v. Ice, 555 U.S. 160 (2009) ........................................................................... 8 Portalatin v. Graham, 624 F.3d 69 (2d Cir. 2010) .................................................. 25 Ring v. Arizona, 536 U.S. 584 (2002) ...............................................................passim Shepard v. United States, 544 U.S. 13 (2005) ........................................................... 3 Wisconsin v. Mitchell, 508 U.S. 476 (1993) ............................................................ 27 State Cases Com. v. Guilford, 861 A.2d 365 (Pa. Super. 2004) ................................................. 16 Com. v. Lane, 941 A.2d 34 (Pa. Super.), lv. denied, 960 A.2d 837 (Pa. 2008) ............................................................................................................. 16, 17 Krebs v. State, 816 N.E.2d 469 (Ind.Ct.App.2004) ................................................. 11 People v. Battles, 16 N.Y.3d 54 (2010) ................................................................... 25 People v. Black, 113 P.3d 534 (Cal. 2005) .............................................................. 19 iii People v. Chanthaloth, 743 N.E.2d 1043 (Ill. App. 2001) ........................................ 4 People v. Giles, 24 N.Y.3d 1066 (2014) .................................................................. 25 People v. Lockridge, 870 N.W.2d 502 (Mich. 2015) .............................................. 21 People v. McCuller, 739 N.W.2d 563 (Mich. 2007) ............................................... 20 People v. Quinones, 12 N.Y.3d 116 (2009) ....................................................... 24, 25 People v. Rivera, 5 N.Y.3d 61 (2005)...............................................................passim People v. Rosen, 96 N.Y.2d 329 (2001) ................................................ 21, 22, 25, 26 People v. Swift, 781 N.E.2d 292 (Ill. 2002) ............................................................... 5 Smylie v. State, 823 N.E.2d 679 (Ind. 2005) .............................................................. 8 State v. Bell, 931 A.2d 198 (Conn. 2007) .......................................................... 13, 14 State v. Brown, 99 P.3d 15 (Ariz. 2004) .................................................................. 11 State v. Dilts, 103 P.3d 95 (Or. 2004) ........................................................................ 7 State v. Dunbar, 527 A.2d 1346 (N.J. 1987) ........................................................... 17 State v. Fairbanks, 688 N.W.2d 333 (Minn. Ct. App. 2004) .................................... 7 State v. Foster, 845 N.E.2d 470 (Ohio 2006) ...................................................... 8, 11 State v. Frawley, 172 P.3d 144 (N.M. 2007) ..................................................... 19, 20 State v. Gomez, 239 S.W.3d 733 (Tenn. 2007) ........................................................ 20 State v. Gould, 23 P.3d 801 (Kan. 2001) ................................................................... 5 State v. Grossman, 636 N.W.2d 545 (Minn. 2001) ................................................... 4 State v. Guice, 541 S.E.2d 474 (N.C. 2000) .............................................................. 4 State v. Guice, 564 S.E.2d 925 (N.C. App. 2002) ..................................................... 4 State v. Harris, 166 N.C.App. 386, 602 S.E.2d 697 (2004) .................................... 10 State v. Kaua, 72 P.3d 473 (Haw. 2003) .................................................................. 14 iv State v. Lett, 2005 Ohio 2665, 161 Ohio App.3d 274, 829 N.E.2d 1281 (2005) ............................................................................................................ 10, 11 State v. Lopez, 123 P.3d 754 (N.M. 2005) ............................................................... 19 State v. Maugaotega, 168 P.3d 562 (Haw. 2007) .................................................... 14 State v. Moreno, 151 P.3d 480 (Alaska Ct. App. 2006) .......................................... 11 State v. Murrin, 2004 Ohio 6301, 2004 WL 2677454 (Ct.App.2004), app. granted, 105 Ohio St.3d 1515, 826 N.E.2d 314 (2005) ...................................... 10 State v. Natale, 373 N.J.Super. 226, 861 A.2d 148 (App.Div.2004), cert. granted, 182 N.J. 425, 866 A.2d 981 (2005) ...................................................... 10 State v. Natale, 878 A.2d 724 (N.J. 2005) ................................................................. 8 State v. Pennington, 712 A.2d 1133 (N.J. 1998) ..................................................... 17 State v. Pierce, 902 A.2d 1195 (N.J. 2006) ............................................................. 18 State v. Price, 171 P.3d 1223 (Ariz. 2007) (en banc) .............................................. 15 State v. Provost, 896 A.2d 55 (Vt. 2005) ................................................................... 8 State v. Schofield, 895 A.2d 927 (Me. 2005) ..................................................... 10, 11 State v. Thomas, 902 A.2d 1185 (N.J. 2006) ........................................................... 11 Statutes 13 V.S.A. § 2303(a) ................................................................................................... 8 17-A M.R.S.A. § 1252(2)(A) ................................................................................... 10 42 Pa.C.S.A. § 9714 ........................................................................................... 16, 17 Conn. Gen. Stat. § 53a-40(a) and (h) ....................................................................... 13 Conn. Gen. Stat. § 53a-40(h) ................................................................................... 13 C.P.L. § 400.20 .......................................................................................................... 3 C.P.L. § 400.20(1) .................................................................................................... 22 v C.P.L. § 400.20 (1) (b) ............................................................................................. 27 C.P.L. § 470.20 (6) ................................................................................................... 27 Haw. Rev. Stat. § 706-662(4)(a) .............................................................................. 14 M.S.A. § 609.1095(2) ................................................................................................ 7 N.J.S. A. 2C:44-3 ..................................................................................................... 17 N.M.S.A. § 31–18–15(A) ........................................................................................ 19 Ohio Rev. Code Ann. § 2929.14(C) ........................................................................ 10 P.L. § 70.10 ................................................................................................................ 3 Constitutional Provisions Sixth Amendment .............................................................................................passim 1 Preliminary Statement The Legal Aid Society Criminal Appeals Bureau submits this amicus curiae brief in support of appellant’s argument that his sentence as a discretionary persistent felony offender based on factual findings made by a judge on a preponderance of the evidence standard violates the Sixth and Fourteenth Amendments as interpreted by the United States Supreme Court in Apprendi v. New Jersey, 530 U.S. 466 (2000) and its progeny. (Appellant’s brief, Point II). Statement of Facts Appellant Michael Prindle, along with every other New York State inmate serving a discretionary persistent felony offender sentence, had that sentence imposed by a judge who, as required by statute, found facts, by a preponderance of the evidence, beyond those inherent in the jury verdict or plea of guilty. ARGUMENT As Confirmed By The Virtually Unanimous Opinions Of State Courts Throughout The Country, New York’s Persistent Felony Offender Statutes Violate Defendants’ Sixth Amendment Right To A Jury Trial By Imposing Enhanced Sentences Based On Judicial Findings Of Fact Beyond The Simple Fact Of Prior Convictions By A Preponderance Of The Evidence. Introduction The principle announced in Apprendi v. New Jersey, 530 U.S. 466 (2000), was broadly stated: “Other than the fact of a prior conviction, any fact that 2 increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” Id. at 490. Yet the decision left some uncertainty about its application to the various sentencing schemes in place in jurisdictions around the country. If a higher sentence is authorized by statute, but may be imposed only after fact-finding beyond the plea or guilty verdict, can a judge make those findings? If a statute provides a range of sentences, designating one as a presumptive term, may a judge exercise discretion, based on factual findings, to exceed the presumptive sentence? If three possible sentences are authorized for a crime, with the jury verdict or plea requiring the middle sentence, may a judge exercise discretion by imposing the higher sentence upon finding aggravating circumstances listed in the statute as warranting that enhanced sentence? Although Apprendi addressed only the question of increasing a maximum sentence, can its underlying principle be limited so as to exclude enhanced minimum sentences? And finally, if the jury plays some role in the factual determination necessary to increase a sentence, can that save the scheme? In the years following Apprendi, the Supreme Court provided answers to these questions, and in every case, the unequivocal answer was “No.” See Ring v. Arizona, 536 U.S. 584 (2002); Blakely v. Washington, 542 U.S. 296 (2004); Cunningham v. California, 549 U.S. 270 (2007); Alleyne v. United States, 133 S. Ct. 2151 (2013); Hurst v. Florida, 136 S. Ct. 616 (2016). After each decision, state 3 courts, some of which had sought to save their statutes based on putative distinctions with the New Jersey scheme struck down in Apprendi, acknowledged that, with the Supreme Court’s clarifications and refinements, the laws had to be declared unconstitutional. Yet in sharp contrast to the virtually unanimous reactions of states throughout the country, New York has continued to uphold the statutory scheme at issue here, which imposes enhanced penalties based on factual findings by the court, beyond the defendant’s prior convictions, under a preponderance-of-the-evidence standard. As described in Appellant’s main brief (at 16-17; 45-53) and in section D below, this Court has sought to bring the New York statutes, Penal Law § 70.10 and CPL § 400.20, within the exception for findings of prior convictions. Were the findings required by the New York statute simply findings regarding the “fact” of prior convictions, that effort might be tenable, at least until the Supreme Court revisits its holding in Almendarez-Torres v. United States1 permitting judges to make those determinations.2 But, as the Court has itself acknowledged, more than the “fact” of prior convictions must be found before the discretionary persistent 1 523 U.S. 224 (1998). 2 A majority of the Court has now signaled that the case was wrongly decided. See Shepard v. United States, 544 U.S. 13, 26 n.5 (2005); id. at 27-28 (Thomas, J., concurring). 4 felony offender sentence may be imposed. Accordingly, under the clear mandate of Apprendi and its progeny,3 New York’s statute violates the Sixth Amendment. A. Apprendi v. New Jersey (2000) While sentencing schemes throughout the country differ significantly in detail, before Apprendi, many contained provisions allowing the court to impose a greater sentence than that authorized by the conviction alone based on its own factual findings that aggravated the offense. Immediately after the Apprendi ruling, states began to strike down provisions similar to the New Jersey hate crime law. See, e.g., State v. Guice, 541 S.E.2d 474, 480 (N.C. 2000) (declaring provision for 60 month firearm enhancement facially unconstitutional); modified by State v. Guice, 564 S.E.2d 925, 925-26 (N.C. App. 2002) (vacating enhancement because it had not been charged in the indictment or submitted to the jury); People v. Chanthaloth, 743 N.E.2d 1043, 1050 (Ill. App. 2001) (reversing extended sentence imposed by judge after finding statutory aggravating factors); State v. Grossman, 636 N.W.2d 545, 551 (Minn. 2001) (enhanced sentence based on court’s finding that defendant was a patterned sex offender violates due process and the holding in Apprendi). 3 The narrowness of the prior crimes exception was strongly confirmed in Mathis v. United States, 136 S. Ct. 2243, 2252 (2016) (“This Court has held that only a jury, and not a judge, may find facts that increase a maximum penalty, except for the simple fact of a prior conviction.” (emphasis added)). 5 Even statutes not as closely modeled on the hate crime law struck down in Apprendi were found to come within its fundamental principle. See, e.g., People v. Swift, 781 N.E.2d 292, 300 (Ill. 2002) (extended term based on judge’s finding that crime was brutal and heinous violated Apprendi); State v. Gould, 23 P.3d 801, 814 (Kan. 2001) (declaring statute permitting upward departure based on judge’s finding of aggravating factors by a preponderance of the evidence unconstitutional on its face in light of Apprendi; court anticipated the Supreme Court’s ruling in Blakely). B. Ring v. Arizona (2002); Blakely v. Washington (2004) When the Supreme Court clarified the import of the Apprendi principle, in Ring and Blakely, provisions that were distinguishable in significant ways, and relied on heavily by states seeking to save their statutes despite the ruling in Apprendi, were also struck down. In Ring, the Court rejected the argument that, because the statute defining the offense authorized the increased sentence (there, the death penalty), the defendant was exposed to that sentence through the jury’s verdict, even though the judge had to find at least one aggravating factor in order actually to impose that sentence. The Court held that the Sixth Amendment was violated if any additional factual findings were required, beyond those found beyond a reasonable doubt by the jury, before the higher sentence could be imposed. Ring, 536 U.S. at 589, 604-05. Accordingly, the Court made clear that a 6 state could not justify a scheme on the basis that the jury found the facts making a defendant eligible for a higher sentence, if additional facts were required in order actually to impose an enhanced sentence. Moreover, it mattered not what kind of a “fact” operated to enhance the sentence; even a so-called traditional “sentencing factor,” if it served the function of increasing the penalty that could be imposed, must be found by a jury beyond a reasonable doubt. Id. Two years later, in Blakely, the Court reiterated that the relevant maximum sentence is the sentence the judge may impose without any additional findings of fact beyond the jury’s verdict or the defendant’s admissions, not the statutory maximum allowed after making additional findings. The Court rejected Washington’s attempt to distinguish Apprendi and Ring on the basis of the kind of facts necessary to enhance a sentence. “Whether the judge’s authority to impose an enhanced sentence depends on finding a specified fact (as in Apprendi), one of several specified facts (as in Ring), or any aggravating fact (as here), it remains the case that the jury’s verdict alone does not authorize the sentence. The judge acquires that authority only upon finding some additional fact.” Blakely, 542 U.S. at 305. Moreover, the Court applied the jury requirement to facts that served to authorize the judge to exercise discretion in departing from a presumptive sentence, even if the higher term still fell within the statutory maximum. Id. 7 Several state sentencing schemes were declared unconstitutional based on these refinements of the Apprendi ruling. Most comparable to New York’s recidivism statute, Minnesota law contained provisions for increased sentences for dangerous and repeat felony offenders. Judges were authorized to depart upward from presumptive sentences of imprisonment if a defendant had two or more prior convictions for violent crimes, and if the judge determined “that the offender is a danger to public safety.” M.S.A. § 609.1095(2). The Minnesota appellate court struck down that provision, concluding that the increased sentences violated the Sixth Amendment as interpreted by Blakely. State v. Fairbanks, 688 N.W.2d 333, 335-37 (Minn. Ct. App. 2004). Other states reevaluated their sentencing schemes in light of Ring and Blakely, acknowledging that even if the sentence imposed fell within the statutory maximum, and was based on traditional exercise of sentencing discretion, it could not stand. The Oregon Supreme Court had initially rejected a challenge on the ground that the defendant’s sentence, enhanced based on judicial fact-finding, remained within the maximum authorized for the crime of which he was convicted. After Blakely, however, the court declared the increased sentence to be unconstitutional, as it was higher than the presumptive sentence. State v. Dilts, 103 P.3d 95, 98-99 (Or. 2004). The Ohio Supreme Court, which had not previously addressed the effects of Apprendi on its sentencing schemes, also concluded, after 8 Blakely, that several of its enhanced sentencing provisions could not survive scrutiny, even though sentences increased by judicial fact-findings remained below the authorized statutory maximums. State v. Foster, 845 N.E.2d 470 (Ohio 2006).4 The court rejected the prosecution’s attempt to distinguish Blakely, noting that the statute did not authorize unlimited sentencing discretion within the statutory range. “If required judicial facts are not found, certain sentences may not be imposed.” Id. at 488. Accordingly, for one of the defendants, the jury’s verdict alone did not authorize an enhanced sentence on a repeat-violent-offender specification; that sentence required specific additional fact findings. Id.5 Similarly, the Vermont Supreme Court declared a statutory provision permitting a judge to impose a sentence of life imprisonment without parole based on weighing aggravating against mitigating factors to violate the Apprendi principle. See State v. Provost, 896 A.2d 55, 65 (Vt. 2005) (“We hold that 13 V.S.A. § 2303(a) violates the rule in Apprendi and Blakely because it requires the sentencing court to weigh specific aggravating and mitigating factors not found by 4 The court’s determination that facts calling for consecutive sentences fall under Apprendi was abrogated by Oregon v. Ice, 555 U.S. 160, 167 n.7 (2009). 5 The Ohio court determined that the provision requiring additional fact-finding for deviation from the presumptive sentence was severable; henceforth, judges would have unlimited discretion to impose any sentence within the statutory range. Foster, 845 N.E.2d at 498. The New Jersey court similarly eliminated presumptive terms and gave judges sentencing discretion within the range. State v. Natale, 878 A.2d 724 (N.J. 2005). In Indiana, upon holding variations based on judicial findings to violate Apprendi/Blakely, court required departure from fixed terms to be made pursuant to jury findings. Smylie v. State, 823 N.E.2d 679, 686 (Ind. 2005). 9 a jury beyond a reasonable doubt before imposing a sentence of life without parole”). The court found the state’s argument that, because the “statutory maximum” for first-degree murder is life imprisonment, a sentence of life without parole by the judge was permissible, to be inconsistent with the Supreme Court’s interpretation of the Sixth Amendment. As the court noted, the Blakely majority explained that the requirement that the jury find any fact other than a prior conviction that “increases the penalty for a crime beyond the prescribed statutory maximum” arises from two longstanding tenets of common-law criminal jurisprudence: that the “truth of every accusation” against a defendant “should afterwards be confirmed by the unanimous suffrage of twelve of his equals and neighbours,” 4 W. Blackstone, Commentaries on the Laws of England 343 (1769), and that “an accusation which lacks any particular fact which the law makes essential to the punishment is ... no accusation within the requirements of the common law, and it is no accusation in reason,” 1 J. Bishop, Criminal Procedure § 87, p. 55 (2d ed. 1872). 542 U.S. at 301–02, quoted in Provost, 896 A.2d at 64-65. Even before the Supreme Court’s ruling in Alleyne applying the rule against judicial fact-finding to increased minimum terms, the Vermont court concluded that “life without parole and life with a minimum term of imprisonment are different sentences for Apprendi purposes.” Id. at 65.6 6 The court noted that its conclusion was consistent with rulings on this issue by other state courts, citing to opinions from Florida and Washington. 10 In like manner, a Maine statute that set a maximum sentence of 40 years, with a minimum of 20 years that could be increased based on the seriousness of the crime alone, or the seriousness of the crime coupled with the defendant’s prior criminal history (17-A M.R.S.A. § 1252(2)(A) (Supp.2001)), was struck down as violative of Blakely. State v. Schofield, 895 A.2d 927 (Me. 2005). The Maine Supreme Judicial Court held that a sentence in excess of 20 years could not be imposed by a judge without a jury finding regarding the seriousness of the crime, defined as one of the most heinous and violent offenses against the person. In response to the state’s argument that a finding of heinousness is different and could, and should, still be made by a judge, despite Apprendi and Blakely, the court referred to numerous other decisions in which that position had been rejected.7 7The court stated: Finally, in states where the determination of the heinousness of a non-capital crime was made by a judge prior to Blakely, courts have recognized that the Sixth Amendment allows defendants to require those findings be proved beyond a reasonable doubt to a jury. For example, Ohio’s sentencing statute allows maximum sentences for “offenders who committed the worst forms of the offense.” Ohio Rev. Code Ann. § 2929.14(C) (West 2005). In State v. Murrin, 2004 Ohio 6301, 2004 WL 2677454 (Ct.App.2004), app. granted, 105 Ohio St.3d 1515, 826 N.E.2d 314 (2005), the Ohio Court of Appeals vacated a sentence imposed under this statute, because it was based upon “judicial factual findings on the record that were neither determined by a jury nor stipulated to by the defendant.” Id. ¶ 26. But see State v. Lett, 2005 Ohio 2665, ¶¶ 23-32, 161 Ohio App.3d 274, 829 N.E.2d 1281 (2005) (holding that the subjective determination of whether a crime is the worst form of the offense is properly left to a judge’s discretion). See also State v. Harris, 166 N.C.App. 386, 602 S.E.2d 697, 702 (2004) (determining that Blakely prohibited the imposition of an enhanced sentence upon a judicial finding that an offense was “‘especially heinous, atrocious or cruel’”); State v. Natale, 373 N.J.Super. 226, 861 A.2d 148, 150-54 11 Indeed, the only case that had reached a different result was subsequently overruled.8 The New Jersey Supreme Court also prohibited sentencing enhancements, beyond those authorized by prior convictions alone, based on a judicial finding of a risk that the defendant would reoffend, even when that assessment arose from consideration of the prior criminal history. State v. Thomas, 902 A.2d 1185, 1194- 95 (N.J. 2006). Similarly, the Arizona Supreme Court struck down, under Blakely, imposition of a sentence greater than the presumptive sentence based on aggravating facts found by a judge on a showing of “reasonable evidence.” State v. Brown, 99 P.3d 15, 18 (Ariz. 2004). See also State v. Moreno, 151 P.3d 480, 483 (Alaska Ct. App. 2006) (presumptive sentences based on judicial findings were unconstitutional under Blakely, but could be imposed if aggravating factors were found by a jury). (App.Div.2004) (determining that a statute allowing an enhanced sentence upon a judge’s finding that an offense was “committed in an especially heinous, cruel, or depraved manner” was unconstitutional in light of Blakely), cert. granted, 182 N.J. 425, 866 A.2d 981 (2005); Krebs v. State, 816 N.E.2d 469, 475-76 (Ind.Ct.App.2004) (remanding for re-sentencing because trial court unconstitutionally enhanced offender’s sentence based on a judicial determination that the crime was “ ‘particular[ly] heinous’ ”). Schofield, 895 A.2d at 934-35. 8 Cited as a But see reference, State v. Lett, 829 N.E.2d 1281 (2005) (holding that the subjective determination of whether a crime is the worst form of the offense is properly left to a judge’s discretion), Lett was overruled in light of State v. Foster, 845 N.E.2d 470 (Ohio 2006), described above (page 7-8). 12 C. Cunningham v. California (2007) Any apparent doubts about the reach of the Apprendi principle regarding increased maximum sentences were resolved by the Supreme Court in Cunningham v. California. There, the Court confirmed that, other than the fact of prior convictions, no matter how a state might characterize its scheme, a defendant’s Sixth Amendment rights were violated if any factual findings were necessary to impose the higher sentence. This bright line must be observed, the Court declared, no matter how much discretion judges had to select within a statutory range or what kind of “fact” might be involved. 549 U.S. at 290-91. Indeed, the Court severely chastised the Supreme Court of California for its “remarkable” insistence that no bright line had been drawn: Asking whether a defendant’s basic jury-trial right is preserved, though some facts essential to punishment are reserved for determination by the judge, we have said, is the very inquiry Apprendi’s “bright-line rule” was designed to exclude. See Blakely, 542 U.S., at 307-308, 124 S. Ct. 2531, 159 L. Ed. 2d 403. But see Black, 35 Cal. 4th, at 1260, 113 P. 3d, at 547 (stating, remarkably, that “[t]he high court precedents do not draw a bright line”). Cunningham, 549 U.S. at 291. Heeding this strong reiteration of the “bright line” Apprendi principle, several additional states fell into line. Most significantly, states with recidivist schemes like New York’s, permitting enhanced sentences for defendants with a specified number of prior felony convictions, as long as a 13 judge found that the increased penalty was called for only upon additional findings regarding either the nature of the prior convictions or some other factor making the higher sentence appropriate, were almost unanimously struck down. Connecticut had a statute virtually identical to the New York persistent felony offender statute at issue here. See former Conn. Gen. Stat. § 53a-40(a) and (h). When a defendant was found, by a jury, to be a persistent offender, the judge made the additional finding that the defendant’s “history and character and the nature and circumstances of [his] criminal conduct indicate that extended incarceration and lifetime supervision will best serve the public interest….” Conn. Gen. Stat. § 53a-40(h). Presented with a challenge that the law violated the Sixth Amendment rights as interpreted by Apprendi, Ring, Blakely, and Cunningham, the Supreme Court of Connecticut had no difficulty declaring, unanimously, that the statute was unconstitutional. State v. Bell, 931 A.2d 198, 235 (Conn. 2007). Emphasizing that the statutory language prescribed, by use of the conjunctive “and,” two factual predicates before the enhanced sentence could be imposed, the court concluded that relegating to the judge the second finding (virtually identical to the finding required by the New York statute) violated the Sixth Amendment as interpreted by Apprendi and Cunningham. Id. at 227. The court rejected the state’s contentions that decisions by this Court and the Court of Appeals for the Second 14 Circuit upholding the analogous New York persistent felony offender provision suggested a different result. Id. at 232-34. The Supreme Court of Hawai’i similarly declared its extended sentencing provision for multiple offenders unconstitutional in light of the Cunningham opinion. State v. Maugaotega, 168 P.3d 562 (Haw. 2007). Haw. Rev. Stat. § 706- 662(4)(a) authorized an extended sentence of a “multiple offender whose criminal actions are so extensive that a sentence of imprisonment for an extended term is necessary for the protection of the public.” The Hawai’i courts initially upheld the provision, drawing a distinction between findings that qualified a defendant for an extended term and findings made by the sentencing judge while exercising discretion as to whether to impose such a term. State v. Kaua, 72 P.3d 473, 481-82 (Haw. 2003). As to the second question, the court differentiated between so-called intrinsic and extrinsic facts, with the first category facts inherent in the offense and therefore subject to the jury trial requirement, while the second were traditional sentencing factors that could be found by the judge. After the Supreme Court’s clarification of the Apprendi principle in Cunningham, the Hawai’i court agreed that such a distinction was no longer viable and struck down the statute on its face. Maugaotega, 168 P.3d at 578. See also Kaua v. Frank, 436 F.3d 1057, 1058 (9th Cir. 2006) (affirming grant of federal habeas relief by rejecting extrinsic-intrinsic 15 analysis and finding that facts required to support conclusion that extended sentence was necessary to protect the public should have been found by the jury). Also acceding to the “bright line” drawn in the Cunningham opinion, the Arizona Supreme Court reversed an enhanced sentence based on the judge’s finding that the defendant presented a “danger to the community.” State v. Price, 171 P.3d 1223, 1227 (Ariz. 2007) (en banc). The intermediate appellate court had upheld the sentence on the ground that this finding, based on the defendant’s criminal record, could be made under the prior conviction exception to the Apprendi rule. Id. at 1226. The high court rejected this reasoning: The United States Supreme Court’s recent opinion in Cunningham v. California makes the error clear. 549 U.S. 270, 127 S. Ct. 856, 166 L.Ed.2d 856 (2007). There, the trial court aggravated Cunningham’s sentence based upon, among other things, his “violent conduct, which indicated a serious danger to the community.” 127 S.Ct. at 860. . . . The Court rejected the idea that there is a Sixth Amendment “distinction between facts concerning the offense, where Apprendi would apply, and facts concerning the offender, where it would not.” 127 S. Ct. at 869 n. 14. Accordingly, even if a court could draw the conclusion that the defendant was a danger to the community from his criminal record, this fact “concerning the offender” cannot expose the defendant to an increased sentence unless it is submitted to a jury and proved beyond a reasonable doubt. Price, 171 P.3d at 1226. The only state other than New York of which counsel is aware to have upheld a persistent felony offender statute similar to New York’s against Apprendi 16 challenges, following the Cunningham decision, is Pennsylvania. Com. v. Lane, 941 A.2d 34 (Pa. Super.), lv. denied, 960 A.2d 837 (Pa. 2008). That decision was rendered by Pennsylvania’s intermediate appellate court, by a vote of five to three; the Pennsylvania Supreme Court denied leave to appeal,9 and, as with New York’s, the United States Supreme Court has not reviewed the decision. Pennsylvania law permits sentencing a third-time violent felony offender, who is subject to a mandatory minimum sentence of at least 25 years, to life imprisonment without parole if the judge “determines that 25 years of total confinement is insufficient to protect the public safety.” 42 Pa.C.S.A. § 9714. When the Pennsylvania Superior Court was first confronted with a Sixth Amendment challenge to this provision, it found as a factual matter that the defendant did not meet the predicate felony requirements, but warned that in light of the Blakely decision, “allowing imposition of a life sentence without parole where the sentencing court determines that ‘25 years of total confinement is insufficient to protect the public safety,’ is called into serious question.” Com. v. Guilford, 861 A.2d 365, 376 n. 3 (Pa. Super. 2004). Subsequently, however, the court ruled that the statute was constitutional. Com. v. Lane, 941 A.2d 9 Two justices of the Supreme Court, Todd, J., and McCaffery, J., did not participate. They had been on the Superior Court that rendered the decision below, one in the majority and one dissenting. Com. v. Lane, 941 A.2d at 34 (opinion by McCaffery, J,); id. at 38 (Todd, J., joining Bender, J., dissenting). 17 34, 38 (Pa. Super. 2008). Adopting an approach similar to New York’s, the court decided that a judge had discretion to impose the life without parole sentence based simply on the finding of two prior violent felonies. Id. at 37. According to the dissent, this interpretation ignored the plain statutory language, which pre- conditioned a life without parole sentence on the judicial finding that 25 years was insufficient to protect the public safety.10 Id. at 41 (Bender, J., dissenting). New Jersey had a similar persistent offender scheme, under which a judge had discretion to impose an extended sentence upon finding that a defendant was a persistent offender based on prior convictions. N.J.S. A. 2C:44-3. Case law had limited judicial discretion, however, by requiring additional fact-finding showing that the longer term was needed to protect the public before an extended sentence could actually be imposed. State v. Dunbar, 527 A.2d 1346 (N.J. 1987); State v. Pennington, 712 A.2d 1133 (N.J. 1998). When a defendant challenged his extended term based on this judicial fact-finding, the New Jersey Supreme Court 10 The dissent concluded: I understand the Majority’s reluctance to impair the operation of an important piece of legislation relating to repeat offenders by labeling a portion of it unconstitutional, and I would admit that, with proper wording, the legislature is empowered to grant sentencing courts discretionary authority to impose life sentences. However, the statute as currently worded is unconstitutional and I am unwilling to reconstruct the plain terms of section 9714 so as to conform to constitutional mandates. Thus, I dissent. Lane, 941 A.2d at 43. 18 rescinded the requirement that judges find that the enhanced sentence was necessary “to protect the public,” noting that authorizing a judge to make this finding “seemingly conflicts” with Sixth Amendment principles. State v. Pierce, 902 A.2d 1195, 1202 (N.J. 2006). Given that the statutory language itself grants discretion to the court to impose an extended sentence based solely on prior convictions, which the defense conceded did not violate the Apprendi principle, the court upheld the provision. Id. at 1200. The difference between the Pennsylvania and New York statutes, on the one hand, and New Jersey’s on the other, is instructive. The New Jersey provision explicitly gives judges discretion, simply upon finding that the defendant had the requisite number of prior felonies, to impose an extended sentence. The Pennsylvania and New York laws, by contrast, by their terms require an additional finding before such an enhanced sentence may be imposed. This difference is determinative, for Apprendi purposes. *** Enhanced sentencing schemes requiring aggravating circumstances other than recidivism were also reevaluated in light of Cunningham. The New Mexico Supreme Court had originally upheld its law, which gave judges discretion to 19 deviate, upon finding aggravating or mitigating circumstances,11 from the definite sentences provided by statute, in reliance on the California courts’ interpretation, in Black I [People v. Black, 113 P.3d 534 (Cal. 2005)], of that state’s similar scheme. See State v. Lopez, 123 P.3d 754, 768 (N.M. 2005). When that interpretation was roundly rejected by the United States Supreme Court in Cunningham, the New Mexico court responded: “We have no choice but to conclude that [defendant’s] sentence was altered upwards in contravention of the Sixth Amendment and that we must overrule Lopez.” State v. Frawley, 172 P.3d 144, 152 (N.M. 2007). Now declaring its statute facially unconstitutional, the court explained: The Supreme Court in Cunningham held that allowing a judge to impose an “upper term” sentence on a finding of aggravating circumstances was unconstitutional because it bypassed the jury’s role as factfinder. In essence, because “aggravating circumstances depend on facts found discretely and solely by the judge ..., the middle term prescribed in California’s statutes, not the upper term, is the relevant statutory maximum.” The Supreme Court reiterated that this was a “bright-line” rule, and thought it “remarkabl[e]” that Black I believed it was not. According to the Court, “ ‘[t]hat should be the end of the matter.’ ” (citations omitted and emphasis added). Frawley, 172 P.3d at 152-53. The court noted that, despite the broad statutory language implying that judges had discretion to increase sentences, discretion was in fact quite limited by the requirement that aggravating circumstances must not 11 New Mexico amended its sentencing statutes in 1979 to provide for definite terms for given offenses, with judges permitted to give above or below that set term (by up to 1/3) by setting forth aggravating or mitigating circumstances. See N.M.S.A. Section 31–18–15(A). 20 only be found, but stated on the record to facilitate appellate review. “Thus, adhering to the Supreme Court’s repeated admonishments in Cunningham regarding the bright-line nature of its rule first established in Apprendi, we recognize that the Sixth Amendment is violated any time a defendant is sentenced above what is authorized solely by the jury’s verdict alone.” Id. at 153. Following the same pattern of revisiting its enhanced sentencing scheme in light of the Cunningham opinion, the Tennessee Supreme Court, which had initially found its provisions, requiring the court to find enhancement factors in order to increase the maximum sentence, to be consistent with Apprendi, now declared them to violate the Sixth Amendment. State v. Gomez, 239 S.W.3d 733, 740 (Tenn. 2007).12 When Michigan revisited its sentencing scheme after Cunningham, on the other hand, the Michigan Supreme Court upheld the state’s law. The court distinguished Michigan’s scheme from California’s because it directed the judge to score certain variables to calculate the minimum portion of the defendant’s sentence – not to arrive at the maximum sentence, which is set by statute. People v. McCuller, 739 N.W.2d 563, 573 (Mich. 2007). After the Court in Alleyne declared that the Apprendi rule applied to mandatory minimums, the Michigan court finally 12 The legislature subsequently eliminated presumptive sentences, giving judges discretion within the statutory range. 21 recognized that its scheme was unconstitutional. People v. Lockridge, 870 N.W.2d 502, 506 (Mich. 2015). D. The New York Approach As summarized in Appellant’s main brief (at 16-17 and 45-53), this Court reacted to the Supreme Court’s rulings in Apprendi, and its subsequent line of cases, in a dramatically different fashion from the courts described above. Unlike the other states that tailored their sentencing schemes to conform to the Supreme Court’s decisions, this Court has resisted the plain meaning of the high court’s rulings by upholding the statute, despite its recognition that factual findings are required beyond the prior convictions in order to impose the life sentence authorized by the persistent felony offender provision. Most strikingly, the Court continues to focus on a defendant’s eligibility for the enhanced sentence based solely on prior convictions, disregarding that further fact finding is required for imposition of such a sentence. That distinction may have been defensible under Apprendi, but it does not survive Ring and Blakely. First, the Court attempted to harmonize New York’s persistent felony offender sentencing scheme with Apprendi itself. The Court announced that “the prior felony convictions are the sole determinate of whether a defendant is subject to enhanced sentencing as a persistent felony offender.” People v. Rosen, 96 N.Y.2d 329, 335 (2001). Upon this finding, which falls within the jury trial 22 exception for prior convictions, the sentencing court merely “fulfill[s] its traditional role” in deciding whether the persistent felony offender sentence is warranted. Id. Yet the Court acknowledged that before actually imposing the enhanced sentence, the judge “must consider” the other factors enumerated in the statute based on the preponderance of the evidence. Id. After the Supreme Court’s decisions in Ring and Blakely, the Court revisited the question of the statute’s constitutionality. People v. Rivera, 5 N.Y.3d 61 (2005). The Rivera Court restated the language of Rosen that the defendant’s prior felony convictions are the sole determinant of whether a defendant is subject to the enhanced sentence. Id. at 66. But again it recognized that additional facts must be found in order to sentence the defendant to life imprisonment. It noted that C.P.L. § 400.20(1) provides that “a defendant may not be sentenced as a persistent felony offender until the court has made the requisite judgment as to the defendant’s character and the criminality.” Rivera, 5 N.Y.3d at 66. The Court also emphasized that the statutory provisions require the court to consider the specified factors and explain why they led the court to impose the enhanced sentence. Id. at 69. It declared that “consideration and articulation of these factors” is “mandatory.” Id. The court acknowledged: We could have decided Rosen differently by reading the statutes to require judicial factfinding as to the defendant’s character and criminal acts before he became eligible for a persistent felony 23 offender sentence. If we had construed the statutes to require the court to find additional facts before he became eligible for a persistent felony offender sentence, the statutes would violate Apprendi. But we did not read the law that way. Under our interpretation…defendants are eligible for persistent felony offender sentencing based solely on whether they had two prior felony convictions. Rivera, 5 N.Y.3d at 67. Yet, while insisting that “no additional factfinding beyond the fact of two prior convictions is required,” the Court in fact referred to additional facts: “If, for example, a defendant had an especially long and disturbing history of criminal convictions, a persistent felony offender sentence might well be within the trial justice’s discretion even with no further factual findings.” Id. at 70-71 (emphasis added). In describing how Rivera himself received the enhanced persistent felony offender sentence under the relevant statutes, the court also revealed the flaw with its approach: After determining defendant’s status as a persistent felony offender, the court went on to consider other facts in weighing whether to impose the authorized persistent felony offender sentence…If, based on all it heard, the court’s view of the facts surrounding the defendant’s history and character were different the court might well have exercised its discretion to impose a less severe sentence. Rivera, 5 N.Y.3d at 67 (emphasis added). Yet these “other facts,” whether amounting simply to characterizations of the defendant’s prior criminal record or additional findings about the defendant’s history and character, are necessary for a determination that a persistent felony offender sentence may be imposed. 24 At times, the Court appeared to equate the requirement of considering other factors as mere record-keeping to provide “an airing and explanation,” id. at 68, and to permit appellate review of sentences found legally erroneous because the court acted “arbitrarily or irrationally” or subject to reduction in the interests of justice because the sentence was “too harsh or otherwise improvident.” Id. at 68- 69. Yet even the “record-keeping” process described by the Court violates the Apprendi principle, as some facts beyond bare recidivism must support imposition of the enhanced sentence to avoid arbitrary or irrational imposition of a persistent felony offender sentence. Were a judge to state that she relied on no additional facts in imposing such a sentence, that sentence would be legally erroneous as it would be arbitrary and irrational. Indeed, the very example given by the Court, of a defendant with an “especially long and disturbing history of criminal convictions,” id. at 70-71, demonstrates as much, as the example involves fact-finding. The Court’s attempt to characterize the process as mere record-keeping thus elevates form over substance in a way that the Apprendi line of cases has expressly rejected. The “relevant inquiry is one not of form, but of effect.” Apprendi, 530 U.S. at 494; Ring, 536 U.S. at 604. The Supreme Court’s decision in Cunningham prompted yet another Apprendi challenge of New York’s persistent felony offender sentencing law. People v. Quinones, 12 N.Y.3d 116 (2009). Once again, the Court reiterated its 25 reasoning in Rosen and Rivera and upheld the constitutionality of the statute. The Court asserted that New York’s law is “fundamentally different” from California’s because “it is only after a defendant’s eligibility for an enhanced sentence is determined that a judge is given the discretion to choose the appropriate sentence within a sentencing range prescribed by statute.” Id. at 129 (emphasis added). Focused solely on the differences between the states’ laws, the court failed to recognize the fundamental similarity that renders them unconstitutional: the requirement that a judge find certain additional facts (besides the fact of defendant’s prior felonies) in order to impose the enhanced sentence. It is the requirement of such fact-finding itself – not when it occurs during the sentencing process – that renders the scheme unconstitutional. Following Quinones, the Court has summarily rejected the two most recent Apprendi challenges, citing its prior cases without further discussion. See People v. Battles, 16 N.Y.3d 54, 59 (2010); People v. Giles, 24 N.Y.3d 1066 (2014). Chief Judge Lippman dissented in Battles, 16 N.Y.3d at 63; Judge Abdus-Salaam and Chief Judge Lippman dissented in Giles, 24 N.Y.3d at 1073, 1078; Judge Smith concurred, noting that it was possible that the court had gone too far, not merely interpreting the statute but rewriting it to save it. Id. at 1073.13 13 In Portalatin v. Graham, 624 F.3d 69, 73 (2d Cir. 2010)(en banc), the Second Circuit, with three judges dissenting, concluded that under the highly deferential federal habeas corpus 26 Significantly, in the case before the Court, Respondent’s description of the New York statute accurately conveys its requirements: “The law provides that a discretionary persistent felony offender sentence may not be imposed unless two prongs are met.” Resp. Br. at 10. Citing to People v. Rosen, Respondent notes that after finding the two prior eligible felony convictions, the sentencing range expands to the maximum as a persistent felony offender. Id. at 11. Respondent continues: Then, in order to sentence Appellant at the recidivist end of the range, the court must find the second prong is met by determining whether “the history and character of the defendant and the nature and circumstances of his criminal conduct are such that extended incarceration and lifetime supervision of the defendant are warranted to best serve the public interest.” Id. (emphasis added) (citation omitted). The inescapable conclusion from this description is that the defendant has been deprived of his Sixth Amendment rights by the court’s second prong factual findings. Conclusion Should this Court once again determine that New York’s law can avoid the dictates of Apprendi and its progeny, based on perceived distinctions between its statute and those deemed unconstitutional, it may well be confronted with a standard, relief was not warranted because the New York courts “did not engage in an unreasonable application of clearly established Supreme Court precedents” in upholding the persistent felony offender sentences. 27 skeptical United States Supreme Court.14 Rejecting the Washington courts’ reliance on the fact that the sentence imposed was within the statutory maximum, the Supreme Court noted that, had the judge imposed the higher sentence solely on the basis of the conviction, he would have been reversed. Blakely, 542 U.S. at 304. Were a New York judge to impose a life sentence on a persistent felony offender without finding that “the history and character of the defendant and the nature and circumstances of his criminal conduct are such that extended incarceration and lifetime supervision of the defendant are warranted to best serve the public interest,” that judge would also be reversed. And in its decision in Cunningham, the Court found unpersuasive the California court’s characterization of the 14 Although the Supreme Court is bound by a state court’s construction of its statutes, it is not bound by state court opinions which, rather than construing a statute, rely on its practical effect to declare it to be consistent with constitutional commands. See Wisconsin v. Mitchell, 508 U.S. 476, 483-84 (1993). That is precisely what this Court has done to uphold the persistent felony offender provision, despite the requirement of judicial fact-finding beyond the prior convictions: In practical terms, the legislative command that sentencing courts consider the defendant’s “history and character” and the “nature and circumstances” of the defendant’s criminal conduct merely makes explicit what sentencing courts have always done in deciding where, within a range, to impose a sentence. The mandatory consideration and articulation of these factors is important in New York because, under Criminal Procedure Law § 470.20 (6), the Appellate Division itself exercises discretion in reviewing sentences and ameliorating harshness, even when those sentences are justified as a matter of law. The components of our statutes that require a sentencing court, in reaching its opinion under Criminal Procedure Law § 400.20 (1) (b), to consider the specified factors and explain why that consideration led the court to impose a recidivist sentence allows more complete review by the Appellate Division in the interest of justice. The practice, however, falls squarely within the most traditional discretionary sentencing role of the judge. People v. Rivera, 5 N.Y.3d at 69 (emphasis added). 28 Apprendi principle to render it consistent with the state’s sentencing scheme. Cunningham, 549 U.S. at 289-93. Moreover, in its recent decision striking down the Florida death penalty statute on Apprendi grounds, only a single dissenter, Justice Alito, credited the differences relied on by the Florida Supreme Court to uphold the statute despite the Supreme Court’s declaration that a comparable Arizona statute was unconstitutional. Hurst v. Florida, 136 S. Ct. at 625-26 (Alito, J., dissenting). The Court is unlikely to conclude that New York’s insistence that its law complies with the Court’s mandates is persuasive while the Washington, California and Florida courts’ was not. October 13, 2016 Respectfully submitted, Ursula Bentele Andrew Fine Lawrence Hausman Richard Joselson, Of Counsel Whitney Robinson, on the Brief Criminal Appeals Bureau The Legal Aid Society 199 Water Street, 5th floor New York, NY 10038 (212) 577-3956 ubentele@legal-aid.org COURT OF APPEALS STATE OF NEW YORK -------------------------------------------------------------X THE PEOPLE OF THE STATE OF NEW YORK, : Respondent, : -against- : MICHAEL PRINDLE, : Defendant-Appellant. : -------------------------------------------------------------X PRINTING SPECIFICATIONS STATEMENT 1. Processing System: Microsoft Word 2010 2. Typeface: Times New Roman 3. Point size: 14-point body text; 12-point footnotes 4. Word count: 6,990 words (excluding Cover Page, Table of Contents, Table of Authorities and Addendum)