Appeal from an order of the District Court for the Eastern District of New York, Thomas C. Platt, Judge, denying a petition by a New York state prisoner serving an indeterminate sentence of one day to life as a sex offender, which sought a writ of habeas corpus on the ground that sentencing procedures did not satisfy the due process clause of the Fourteenth Amendment. Reversed.
Moore, Friendly and Timbers, Circuit Judges.
This well briefed and well argued habeas appeal raises some difficult questions of the constitutionality of the procedures accorded petitioner David Hollis with respect to his indeterminate sentence of one day to life under a New York statute, former New York Penal Law § 243, now repealed, which permitted such a sentence for sex offenders.
Hollis was indicted in Nassau County, N.Y., in August, 1964 in a three-count indictment charging attempted rape in the first degree and two counts of assault in the second degree including assault with intent to commit rape.*fn1 During trial in September, 1965, Hollis, in satisfaction of the indictment, pleaded guilty to one count of assault in the second degree with intent to commit rape.*fn2 At that time § 243 of the New York Penal Law provided:
Assault in the second degree is punishable by imprisonment in a penitentiary or state prison for a term not exceeding five years, or by a fine of not more than one thousand dollars, or both; provided, however, any person convicted of assault in the second degree for an assault upon another with intent to commit the felony of rape in the first degree, rape in the second degree, sodomy in the first degree, sodomy in the second degree or carnal abuse may be punished by imprisonment for an indeterminate term, the minimum of which shall be one day and the maximum of which shall be the duration of his natural life. As amended L.1950, c. 525, § 10, eff. April 1, 1950.
Section 2189-a specified:
No person convicted of a crime punishable in the discretion of the court with imprisonment for an indeterminate term, having a minimum of one day and a maximum of his natural life, shall be sentenced until a psychiatric examination shall have been made of him and a complete written report thereof shall have been submitted to the court. Such examination shall be made in the manner prescribed by sections six hundred fifty-nine, six hundred sixty, six hundred sixty-one and six hundred sixty-two-e of the code of criminal procedure. Such report shall include all facts and findings necessary to assist the court in imposing sentence. A copy thereof shall be transmitted by the clerk of the court to the warden or superintendent of the correctional institution to which the prisoner is committed. Added L.1950, c. 525, § 23; amended L.1951, c. 166, eff. July 1, 1951.
The reports rendered by the psychiatrists at that time are not before us. On December 8, 1965, Hollis received an indeterminate sentence of one day to life. No appeal was taken.
In 1967 the Supreme Court decided Specht v. Patterson, 386 U.S. 605, 18 L. Ed. 2d 326, 87 S. Ct. 1209. Specht had been convicted for taking indecent liberties, under a Colorado statute that carried a maximum sentence of 10 years. A separate statute, the Sex Offenders Act, provided that if the trial court was "of the opinion that any . . . person [convicted of specified sex offenses], if at large, constitutes a threat of bodily harm to members of the public, or is an habitual offender and mentally ill," he might receive an indeterminate sentence of from one day to life. Like the New York Sex Offenders Law the Colorado statute required an examination by psychiatrists and a report to the judge but, as Mr. Justice Douglas said, "there was no hearing in the normal sense, no right of confrontation and so on." On review of a denial of federal habeas corpus, the Colorado warden relied on the holding in Williams v. New York, 337 U.S. 241, 93 L. Ed. 1337, 69 S. Ct. 1079 (1949), that the due process clause of the Fourteenth Amendment "did not require a judge to have hearings and to give a convicted person an opportunity to participate in those hearings when he came to determine the sentence to be imposed" -- in that instance a sentence of death as against a jury's recommendation of life imprisonment. 386 U.S. at 606. The Court adhered to Williams but "decline[d] the invitation to extend it to this radically different situation." It stressed that the Colorado Sex Offenders Act "does not make the commission of a specified crime the basis for sentencing," as § 243 of New York Penal Law literally did, but rather made one conviction "the basis for commencing another proceeding under another Act to determine whether a person constitutes a threat of bodily harm to the public, or is an habitual offender and mentally ill." After quoting with approval from the opinion of Judge Freedman in United States ex rel. Gerchman v. Maroney, 355 F.2d 302, 312 (3 Cir. 1966), dealing with a comparable Pennsylvania statute, of which more hereafter, the Court characterized invocation of the Colorado Sex Offenders Act as "the making of a new charge leading to criminal punishment" and cited cases under recidivist statutes holding that a defendant "must receive reasonable notice and an opportunity to be heard," Oyler v. Boles, 368 U.S. 448, 452, 7 L. Ed. 2d 446, 82 S. Ct. 501 (1962); Chandler v. Fretag, 348 U.S. 3, 8, 99 L. Ed. 4, 75 S. Ct. 1 (1954). It concluded, 386 U.S. at 610, that under the Colorado Sex Offenders Act due process required that the defendant must "be present with counsel, have an opportunity to be heard, be confronted with witnesses against him, have the right to cross-examine, and to offer evidence of his own. And there must be findings adequate to make meaningful any appeal that is allowed."
As indicated, Specht did not deal expressly with a sex offender indeterminate sentencing provision which, like New York's at the time, did not require proof of a new fact but on its face simply enlarged the court's sentencing discretion without any standards whatever. Had matters rested that way, it would have been arguable that even the items of procedural protection accorded to Specht, much less the additional ones sought by Hollis, were not here required, since the case would have continued to be attracted by Williams. However, that issue is of only academic interest in light of later developments in New York law.
In People v. Bailey, 21 N.Y.2d 588, 289 N.Y.S.2d 943, 237 N.E.2d 205 (1968), a case decided after repeal of the New York sentencing provision here in question, the Court of Appeals had before it appeals from indeterminate sentences by three sex offenders who complained both of lack of the procedure required by Specht and of inadequacy of the psychiatric reports under § 2189-a of the New York Penal Law. Acknowledging that "[a] literal reading of the New York statutory scheme might lend support to the argument advanced by the People and accepted by the Appellate Division that the sentencing court has 'complete discretion' to sentence for one day to life," the court concluded that "an examination of the statutory purpose as well as the weight of judicial authority indicate that the discretion of the sentencing Judge to mete out a one-day-to-life sentence is limited to those cases in which the record indicates some basis for a finding that the defendant is a danger to society or is capable of being benefited by the confinement envisaged under the statutory scheme."*fn3 The need for such an additional finding, the Court said, "clearly brings this case within the ambit of the Specht holding and entitles those sentenced under the statute to a hearing." The court therefore remanded all three cases for resentencing.*fn4
Shortly after the Bailey decision, the Nassau County Court directed a new psychiatric examination of Hollis as a preliminary to a Specht hearing. The two examining psychiatrists apparently did not themselves report to the court; a report, allegedly based on their findings, was made by the chairman of the psychiatry department of Meadowbrook Hospital.*fn5 Later a hearing was held at which Hollis was represented by counsel. At the start of the hearing, counsel demanded a jury trial; the judge denied this. The psychiatrists who had examined Hollis were called by the People and were cross-examined. Hollis also testified. The judge thereafter handed down an opinion in which he found
that the defendant is not capable of being returned to society; that he definitely would present a danger to society, if released at this time, and that in a controlled environment, there is a possibility that he may ...