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UNITED STATES EX REL. CLEVELAND v. CASSCLES

January 17, 1973

UNITED STATES of America ex rel. Arnold CLEVELAND, Petitioner,
v.
J. Leland CASSCLES, Superintendent of Great Meadow Correctional Facility, Comstock, New York, Respondent


Frankel, District Judge.


The opinion of the court was delivered by: FRANKEL

FRANKEL, District Judge.

Petitioner seeks the federal writ of habeas corpus on the asserted ground that his ten-year state sentence, following a guilty plea, was adjudged under a misapprehension of fact so vital and prejudicially influential -- and so casually accepted, over a protest, from unexamined hearsay -- as to violate his right to the due process of law. For reasons hereinafter stated, this court concludes that petitioner must be resentenced.

 In 1969 a New York grand jury indicted petitioner and a co-defendant on a number of charges arising from the robbery and stabbing of a woman on a New York City street. On October 15, 1970, the co-defendant pled guilty to a Class C felony, for which he was later sentenced to a term of five years. Four days later, having been confined since June 10, 1970, the petitioner entered a plea to a higher crime, the Class B felony of first-degree robbery, "to cover the indictment." On December 8, 1970, after the sentencing of his co-defendant, petitioner was sentenced to ten years' imprisonment.

 Given the huge discretion of sentencing judges and the 25-year maximum petitioner faced upon his guilty plea, there are facts in the state record which, if they stood alone, would wholly insulate against federal (or, probably, any) attack the sentence of which complaint is here made. Petitioner was sentenced for a more serious offense than the one to which his co-defendant had pled. Petitioner's criminal record appears to have been more serious. His plea "covered" an outstanding narcotics charge as well as the robbery. The sentence imposed was well within the maximum.

 Notwithstanding all this, the state record is too flawed to pass the test of the Fourteenth Amendment. The sentencing judge accepted and stressed a hearsay report that petitioner, after taking the victim's property, had needlessly and wantonly stabbed her. This "fact," if it was one, had an obvious and appropriate place in the sentencing decision. However, as was repeatedly indicated to the state judge, petitioner never admitted the stabbing; on the contrary, refusing to tender any such admission, defense counsel made reasonably (if not vividly) clear that petitioner would want to contest any such assertion if it was to be considered against him. In such circumstances, the hearsay report was worthless. It should have been rejected or put to at least some minimal test of its accuracy. However this blot is to be erased, it cannot remain -- the State ought scarcely to wish it to remain -- to deface and impair a judgment of imprisonment for ten years.

 At the time of petitioner's guilty plea on October 19, 1970, the prosecutor described the charges against petitioner as follows:

 
"MR. SCHMUKLER: The defendant in this case, Your Honor, is accused of robbery in the first degree, because, as the indictment charges, on October 9, 1969, while acting in concert with a Hugh Robinson, he robbed a Mrs. Yuet Ling Lee, and during the course of that robbery, this defendant stabbed Mrs. Yuet Ling Lee, and her pocketbook was taken from her." (Emphasis added.)

 Thereafter, in the course of an expeditious voir dire, the judge asked if petitioner was pleading voluntarily, was told "Yes," then proceeded as follows:

 
"THE COURT: And do you admit to the fact that on October 9, 1969, in New York County, you forcibly stole certain property from a lady named Yuet Ling Lee consisting of U.S. currency and personal property having a total value of about $18, and that in the course of the commission of this crime you used a sharp object which, in this case, was a knife, stabbed Mrs. Lee and caused serious physical injury; do you admit this?
 
"MR. CHANCE: Judge, may I approach the Bench just a minute with the district attorney on that point?
 
"(Mr. Schmukler and Mr. Chance approach the Bench and engage the Court in an undertone discussion which is had off the record.)
 
"THE COURT: Do you admit this and that at the time Hugh Robinson, the co-defendant, was present? Do you admit this?
 
"(Mr. Schmukler and Mr. Chance approach the Bench and engage the Court in an undertone discussion which is had off the record.)
 
"THE COURT: All right, I'm going to rephrase it. Don't expunge what I said from the record, however.
 
"After conferring with the assistant district attorney and Mr. Chance, I'm going to ask you this question: Do you admit to the fact that on October 9, 1969, in New York County, you forcibly stole ...

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