The People, Respondent,v.Daniel Boyer, Appellant.BriefN.Y.October 17, 2013 TO BE ARGUED BY MARK C. DAVISON, ESQ. TIME REQUESTED: 30 MINUTES Appellate Division Nos. 102509, 103138 Albany County Indictment No. 13-2071 ================================================================================= STATE OF NEW YORK COURT OF APPEALS _____________________________________________________________________________________ THE PEOPLE OF THE STATE OF NEW YORK, Respondent, -vs- DANIEL BOYER, Defendant-Appellant. _____________________________________________________________________________________ REPLY BRIEF FOR APPELLANT ________________________________________________________________ BY: MARK C. DAVISON, ESQ DAVISON LAW OFFICE, PLLC P.O. Box 652 Canandaigua, New York 14424 Tel: (585) 394-5222 Fax: (585) 394-5226 Date: April 5, 2013 Table of Contents Table of Authorities…………………………………………………………1 ARGUMENT POINT ONE: MR. BOYER SHOULD NOT HAVE BEEN SENTENCED AS A PERSISTENT VIOLENT FELONY OFFENDER BECAUSE RESENTENCING OF A PREDICATE CONVICTION HAD BEEN SOUGHT BY DOCCS AFTER THE COMMISSION OF THE OFFENSE FOR WHICH HE WAS SENTENCED……………………………………..3 A. When the resentencing was sought by DOCCS, it did alter the date of conviction………………………………………………………4 B. It makes no difference that the resentencing court did not (or later could not) impose a term of postrelease supervision……………...6 C. This Court should not grant the prosecutor leave to file an amended special information……………………………………...8 POINT TWO: BECAUSE THE TRIAL COURT FAILED TO ADVISE MR. BOYER THAT A DIRECT CONSEQUENCE OF HIS PLEA WOULD BE THAT HIS SENTENCE WOULD BE CONSECUTIVE TO AN UNDISCHARGED SENTENCE ON A PRIOR CONVICTION, MR. BOYER’S PLEA CANNOT BE DEEMED KNOWING, VOLUNTARY AND INTELLIGENT, AND MR. BOYER MUST BE GIVEN THE OPPORTUNITY TO WITHDRAW THE PLEA…………………………...9 CONCLUSION……………………………………………………………14 i 1 TABLE OF AUTHORITIES FEDERAL CASES Boykin v Alabama, 395 US 238 [1969]…………………………………………...11 North Carolina v Alford, 400 US 25 [1970]………………………………………11 Puckett v United States, 556 US 129, 137 [2009]………………………………...12 Santobello v New York, 404 US 257, 263 [1971]…………………………………12 NEW YORK STATE CASES People v Acevedo, 17 NY3d 297 [2011]…………………………………………3-5 People v Acevedo, 75 AD3d 255 [1st Dept 2010], rev’d 17 NY3d 297 [2011]….....6 People v Bell, 73 NY2d 153, 165 [1989]…………………………………………..5 People v Belliard (20 NY3d 381 [Feb 12, 2013])………………………………9-13 People v Boyer, 19 AD3d 804 [3d Dept 2005], lv denied 5 NY3d 804 [2005]…….8 People v Butler, 88 AD3d 470 [2011], lv denied 18 NY3d 992 [2012]…………4, 7 People v Cornell, 16 NY3d 801, 802 [2011]……………………………………...13 People v DeValle, 94 NY2d 870, 872 [2000]……………………………………..13 People v Gravino, 14 NY3d 546, 553 [2010]……………………………………..11 People v Harnett, 16 NY3d 200 [2011]…………………………………..............13 People v Harris, 61 NY2d 9 [1983]………………………………………………11 People v Hill, 9 NY3d 189, 191 [2007], cert denied 553 US 1048 [2008]……….12 People v Lingle, 16 NY3d 621, 634-635 [2011]………………………………...5, 8 People v Monroe (___ NY3d ___, 2013 NY Slip Op 2160, 2013 NY Lexis 579 [April 2, 2013])………………………………………………………………..12-13 People v Morse, 62 NY2d 205 [1984], appeal dismissed sub nom. Vega v New York, 469 US 1186 [1985]…………………………………………………….........4 People v Mox, 20 NY3d 926, 938 [2012]…………………………………………11 People v Samms, 95 NY2d 52 [2000]………………………………………………9 People v Sanders, 99 AD3d 575 [1st Dept2012], lv granted ___ AD3d ___ [Dec. 27, 2012] [Sweeny, J.]……………………………………………………………...4 People v Selikoff, 35 NY2d 227, 239 [1974]……………………………………...13 People v Snipes, 101 AD3d 472 [1st Dept 2012]…………………………………..4 People v Sparber, 10 NY3d 457 [2008]………………………………………….3-6 People v Williams, 19 NY3d 100 [2012]…………………………………………...5 2 People v Williams (14 NY3d 198 [2010], cert denied 562 US ___, 131 S Ct 125 [2010])…………………………………………………………………………6-7, 8 NEW YORK STATUTES Correction Law § 601-d…………………………………………………………….3 Criminal Procedure Law 470.20……………………………………………………8 Criminal Procedure Law 470.40 (a)………………………………………………..8 Penal Law § 70.08………………………………………………………………….4 Penal Law § 70.25 (2-a)………………………………………………………...9-12 Penal Law § 70.25 (4)……………………………………………………………..10 Penal Law § 70.85………………………………………………………………3, 7 3 ARGUMENT POINT ONE: MR. BOYER SHOULD NOT HAVE BEEN SENTENCED AS A PERSISTENT VIOLENT FELONY OFFENDER BECAUSE RESENTENCING OF A PREDICATE CONVICTION HAD BEEN SOUGHT BY DOCCS AFTER THE COMMISSION OF THE OFFENSE FOR WHICH HE WAS SENTENCED. In Point One of his main brief, Mr. Boyer argued that, under People v Acevedo (17 NY3d 297 [2011]), when there has been a “bona fide” resentence requested by DOCCS (rather than by a defendant) under Correction Law § 601-d and Penal Law § 70.85 following People v Sparber (10 NY3d 457 [2008]), that resentence rendered a prior conviction useless as a predicate (Acevedo, supra, 17 NY3d at 303). In his responding brief, the prosecutor argues that: (a) the Sparber resentencing does not alter the date of conviction for enhanced sentencing purposes; (b) Mr. Boyer’s Sparber resentencing was a nullity, and (c) if this Court disagrees, it should grant leave to file an amended special information so that Mr. Boyer can be adjudicated as a persistent violent felony offender based on a different predicate conviction. The three arguments will be addressed in that order. 4 A. When the resentencing was sought by DOCCS, it did alter the date of conviction. As the First Department held in People v Sanders (99 AD3d 575, 576 [2012], lv granted ___ AD3d ___ [Dec. 27, 2012] [Sweeny, J.]), when a resentencing is requested by DOCCS rather than by a defendant, “the resentencing date controls whether the conviction meets the sequentiality requirement for sentencing as a persistent violent felony offender” (see also People v Snipes, 101 AD3d 472 [2012]; People v Butler, 88 AD3d 470 [2011], lv denied 18 NY3d 992 [2012]). The reasoning of the First Department follows the holding of this Court in Acevedo. “The more reasonable construction [of the Penal Law] . . . is that under section 70.08 sequentiality applies as between predicate convictions as well as between present and predicate convictions” (People v Morse, 62 NY2d 205, 225 [1984], appeal dismissed sub nom Vega v New York, 469 US 1186 [1985]). When a defendant “did nothing to alter his status” (Butler, supra, 88 AD3d at 473), but the government seeks and obtains the resentencing after commission of the present offense, based on an illegality that was in no way attributable to the defendant, then it is the government that has changed the sequentiality. The prosecutor argues that the resentencing in Sparber was to correct a “procedural error” (10 NY3d at 472]), and a Sparber resentencing thus should not 5 matter in determining whether a prior conviction meets the sequentiality requirements to qualify as a predicate offense. The prosecutor contends that a Sparber resentencing is not a plenary proceeding, but merely corrects a procedural flaw (People v Lingle, 16 NY3d 621, 634-635 [2011]). The prosecutor here argues that this Court agreed with the prosecutor in Sparber that simply striking the term of PRS “would leave defendants with a windfall that [would] greatly exceed any harm that they ha[d] purportedly suffered” (id. at 465-466). Labelling a Sparber resentence as “procedural,” however, misses the point: it makes a difference whether the defendant or the government chose the procedure. Here, it was not Mr. Boyer seeking a “windfall,” or seeking resentencing as a “tactic . . . simply to leapfrog a sentence forward so as to vitiate its utility as a sentencing predicate” (Acevedo, supra, 17 NY3d at 302; cf. also People v Bell, 73 NY2d 153, 165 [1989]). It was DOCCS that chose the tactic here. DOCCS could have left the prior conviction alone and not sought imposition of a term of PRS on Mr. Boyer. Instead, DOCCS chose to seek resentencing of Mr. Boyer on the prior conviction, to add another component to the earlier sentence. In doing so, DOCCS also would have extended the time that Mr. Boyer could be re-confined beyond the time that he could otherwise have been released for good behavior (see People v Williams, 19 NY3d 100, 104 [2012]). DOCCS would have received those benefits while running the risk that the resentencing 6 would change the sequentiality of the convictions, such that Mr. Boyer would not now be a persistent violent felony offender (although his exposure to being adjudicated a persistent felony offender might be extended in the future (see People v Acevedo, 75 AD3d 255, 259 n * [1st Dept 2010], rev’d 17 NY3d 297 [2011]). When the government chooses to receive the benefits of resentencing, then the government must also accept the consequences of resentencing, including the change in sequentiality. The prosecutor argues that DOCCS did not actually receive a benefit here, because the resentencing court did not impose a period of postrelease supervision, and because (as this Court subsequently held in an unrelated case) a term of postrelease supervision cannot be imposed once a defendant is no longer incarcerated on the underlying conviction. Those arguments are addressed in subpoint (B), below. B. It makes no difference that the resentencing court did not (or later could not) impose a term of postrelease supervision. The prosecutor next argues that Mr. Boyer’s Sparber resentencing is a nullity, both because the resentencing court did not impose a term of postrelease supervision, and because (after Mr. Boyer’s resentencing) this Court held in People v Williams (14 NY3d 198 [2010], cert denied 562 US ___, 131 S Ct 125 [2010]) that a term of postrelease supervision cannot be imposed after a defendant has been 7 released from prison without violating the Double Jeopardy Clause. Neither argument has merit. The fact that the resentencing court does not actually impose a term of postrelease supervision makes no difference. As the First Department held in People v Butler (supra, 88 AD3d at 473), the fact that the resentencing court “chose not to add a term of PRS … does not mean that a new sentence was not imposed.” This is so because Penal Law § 70.85 requires a court to impose a new sentence, even if (as in the Butler case) the District Attorney consents to resentencing without a term of PRS. It does not matter that the resentencing court chose not to go along with the government and impose a term of PRS in Mr. Boyer’s case: the fact remains that he was resentenced at the government’s instigation. For the same reason, this Court’s subsequent holding in the Williams case should make no difference with respect to Mr. Boyer. DOCCS sought and obtained a resentencing here regardless of the fact that Mr. Boyer had been released to parole on the conviction for which he was sentenced in 2002 and resentenced in 2005. The fact that this Court in 2011 held that such a resentencing would have been unconstitutional should not enable the government to escape one of the consequences of the very resentencing that it sought in Mr. Boyer’s case. 8 C. This Court should not grant the prosecutor leave to file an amended special information. The prosecutor next argues that, if this Court agrees with Mr. Boyer’s arguments as set forth above, the Court should grant leave for the prosecutor to file an amended special information, based on a different prior conviction, so that Mr. Boyer can be adjudicated as a persistent violent felony offender once more. The prosecutor argues that, if he cannot use the 2002 conviction as a predicate, then he should be able to use a 1989 conviction of attempted burglary in the second degree as a predicate. Such a remedy does not appear to be contemplated by CPL 470.40 (a), which requires this Court, upon reversing or modifying an order of the Appellate Division affirming a conviction, to “take or direct such corrective action as the intermediate appellate court would, pursuant to section 470.20, have been required or authorized to take or direct had it reversed or modified” the lower court. The proper remedy for the Appellate Division in this case would have been to vacate Mr. Boyer’s sentence as a persistent violent felony offender, so that he could be resentenced as a second felony offender (see People v Boyer, 19 AD3d 804, 806 [3d Dept 2007], lv denied 5 NY3d 804 [2005]). Allowing the remedy proposed by the prosecutor would not only turn the resentencing into a “plenary proceeding” (see Lingle, supra), it would also run afoul of the Double Jeopardy Clause, as in Williams (supra). 9 Because an out-of-sequence conviction simply cannot be used as a predicate offense (see People v Samms, 95 NY2d 52, 57-58 [2000]), Mr. Boyer’s conviction should be vacated, so that he can be resentenced as a second felony offender. POINT TWO: BECAUSE THE TRIAL COURT FAILED TO ADVISE MR. BOYER THAT A DIRECT CONSEQUENCE OF HIS PLEA WOULD BE THAT HIS SENTENCE WOULD BE CONSECUTIVE TO AN UNDISCHARGED SENTENCE ON A PRIOR CONVICTION, MR. BOYER’S PLEA CANNOT BE DEEMED KNOWING, VOLUNTARY AND INTELLIGENT, AND MR. BOYER MUST BE GIVEN THE OPPORTUNITY TO WITHDRAW THE PLEA In Point Two of his main brief, Mr. Boyer argued that a sentence that must run consecutively to a prior undischarged sentence under Penal Law § 70.25 (2-a) is a “direct consequence” of the plea, and its omission from Mr. Boyer’s plea colloquy renders his plea per se invalid. In his responding brief, the prosecutor argues that this Court has since held to the contrary in People v Belliard (20 NY3d 381, 2013 NY Slip Op 884 [Feb 12, 2013]), and vacatur of Mr. Boyer’s plea is not warranted. Yet Mr. Boyer’s case is different from Mr. Belliard’s case, in two important respects. 10 First, Mr. Belliard was facing both federal and state charges arising out of his possession of cocaine and a loaded firearm, and was negotiating pleas in both federal and state courts. The “sole issue of concern voiced by [Mr. Belliard’s] counsel” during the plea colloquy in state court (2013 NY Slip Op 884 at *13) was that Mr. Belliard’s state court sentence be delayed until after his federal court sentencing, so that the state sentence could be served concurrently with the federal sentence, as permitted by Penal Law § 70.25 (4). The trial court was “silent” on the question whether Mr. Belliard’s state sentence would have to run consecutively to a prior undischarged state sentence, under Penal Law § 70.25 (2-a) (2013 NY Slip Op 884 at *3). Second, as this Court noted in Mr. Belliard’s case, “nothing in the record before us demonstrate[d] that the trial judge knew [Mr. Belliard] had a prior undischarged sentence” (id. at *12). Thus, as this Court also noted, Mr. Belliard “had no reasonable basis to believe that [his new state sentence] would run concurrently with his prior unrelated sentence” (id. at *13). By contrast, in Mr. Boyer’s case, the “sole issue of concern voiced” during the plea colloquy was the minimum term of the sentence. Because the original plea offer was 12 to life, and the prosecutor was offering an alternative plea deal that included a minimum of 14 years, counsel for Mr. Boyer asked for a minimum of 13 years (Appendix [hereafter A.] 19-22). Mr. Boyer pointed out that he had 11 discharged his prior attorney because that attorney had never communicated to him the offer of 12 to life (A. 23), and he wanted to make sure that he was clear on the terms (A. 25). Although the sentence offered at the plea colloquy was 14 to life (A. 26), the sentence actually imposed by the court was 13 ½ to life (A. 7, 40). Moreover, unlike the trial court in the Mr. Belliard’s case, the court in this case was aware that Mr. Boyer had an undischarged sentence. The issue of Mr. Boyer’s parole status was discussed in the court’s decision on a suppression hearing the day before the plea colloquy (A. 44, 46, 48), but its effect on the minimum sentence was never discussed during the plea colloquy. Because the court was aware that Mr. Boyer had a prior undischarged sentence, and because the court was aware that the “sole concern” of the plea negotiations was the minimum sentence, the effect of Penal Law § 70.25 (2-a) on the minimum sentence should have been addressed during the plea colloquy. A plea of guilty cannot be upheld unless it “represents a voluntary and intelligent choice among the alternative courses of action open to the defendant” (North Carolina v Alford, 400 US 25, 31 [1970], citing Boykin v Alabama, 395 US 238, 242 [1969]). “The clear import of Boykin and its progeny is that the Trial Judge has a vital responsibility to make sure [that the accused] has full understanding of what the plea connotes and of its consequence” (People v Harris, 61 NY2d 9, 19 [1983]; see also People v Mox, 20 NY3d 936, 938 [2012]; People v Gravino, 14 12 NY3d 546, 553 [2010]). When the trial judge here did not make sure that Mr. Boyer understood that his actual minimum sentence would be longer (because of the effect of the unexpired sentence), the trial judge failed in that responsibility. As such, Mr. Boyer should be able to withdraw his plea and be returned to his status before the negotiated bargain (see People v Hill, 9 NY3d 189, 191 [2007], cert denied 553 US 1048 [2008]; see also Puckett v United States, 556 US 129, 137 [2009]; Santobello v New York, 404 US 257, 263 [1971]). This Court recognized the problem faced by Mr. Boyer in a case that is even more recent than Belliard. In People v Monroe (___ NY3d ___, 2013 NY Slip Op 2160, 2013 NY Lexis 579 [April 2, 2013]), the defendant had entered a guilty plea to a charge of conspiracy based on a representation by the trial court that the sentence would be made concurrent to a sentence that he was already serving on drug charges, such that it would extend his minimum terms of incarceration by a year and a half only. When he was later resentenced on the drug charges, the gap between the minimum terms of incarceration doubled. On appeal, this Court held that “[i]t simply cannot be said on this record that defendant, who was clearly working toward achieving the earliest release date possible, would have pleaded guilty absent this assurance [about his minimum sentence]. Generally, ‘when a guilty plea has been induced by an unfulfilled promise either the plea must be vacated or the promise honored, but that choice rests in the discretion of the sentencing court’” 13 (2013 NY Slip Op at **3 [citation omitted]). By contrast, in Belliard, the “sole concern” of the parties was that Mr. Belliard’s state sentence (whatever that might be) would be delayed until after the federal sentence was imposed, so that the state and federal sentences could be made to run concurrently, and Mr. Belliard received the concurrent state and federal sentences that he was promised. The ‘sole concern” of the plea negotiations in Mr. Boyer’s case, however, was the minimum sentence, and Mr. Boyer did not end up with the minimum sentence he was promised, because of the mandatory effect of Penal Law § 70.25 (2-a). The term of imprisonment (including the minimum and the maximum) is a direct consequence of a plea (see People v Harnett, 16 NY2d 200, 206 [2011]), and the court had the constitutional duty to advise Mr. Boyer of that direct consequence (People v Cornell, 16 NY3d 801, 802 [2011]). The addition of the unexpired sentence to Mr. Boyer’s minimum made it a “more severe sentence than the sentence originally promised” (People v DeValle, 94 NY2d 870, 872 [2000]; People v Selikoff, 35 NY2d 227, 239 [1974]). As with Mr. Monroe, Mr. Boyer’s plea colloquy makes it clear that, when he was facing a sentence as a persistent violent felony offender, he was “working toward achieving the earliest release date possible.” Accordingly, like Mr. Monroe (who did not receive the minimum sentence he had been promised), and unlike Mr. 14 Belliard (who did receive the concurrent sentences he had been promised), Mr. Boyer must be allowed to withdraw his plea. CONCLUSION For the reasons set forth above, Mr. Boyer’s conviction must be reversed. As set forth in Point One, he was improperly sentenced as a persistent violent felony offender, and that sentence must be vacated. As set forth in Point Two, he must be given the opportunity to withdraw his plea before he can be resentenced, because he was not advised of a direct consequence of his plea. Dated: April 5, 2013 Respectfully submitted, _________________________ Mark C. Davison, Esq. Davison Law Office PLLC P.O. Box 652 Canandaigua, New York 14424 585-394-5222 mcd@davlaw.net