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November 26, 1979

WILLIAM AKINS, Petitioner,
HAROLD SMITH, Superintendent, Attica Correctional Facility, Respondent.

The opinion of the court was delivered by: POLLACK


This habeas corpus petition under 28 U.S.C. § 2254 was filed in the Western District of New York by a state prisoner confined in the Attica Correctional Facility pursuant to a conviction in New York County Supreme Court on a plea of guilty to charges of robbery in the first degree. The petitioner seeks to vacate the plea entered on June 9, 1976 on the ground he was misled by presumably made but unrequited plea-bargained promises that his sentence would be made concurrent with the inception of a prior sentence that he was serving at the time. The effect of the supposed arrangement would have been to enable petitioner to come before the parole board some 23 months earlier than would otherwise be possible. Relying on 28 U.S.C. § 2241(d), Judge Elfvin transferred all proceedings including an evidentiary hearing on the petition to this District. Accordingly, the hearing has been duly held with both sides participating, and due deliberation has been had.

 After hearing the evidence, evaluating the credibility of the testimony, and considering the tangible record of recorded proceedings and legal applications and responses thereto, the Court finds and decides that the petitioner is not entitled to the relief sought for the following decisive reasons: (1) Petitioner's plea was not induced by any unfulfilled promises on the part of the sentencing judge or the prosecutor, (2) Petitioner was not given any sentencing misinformation in relation to his plea of guilty on June 9, 1976, and (3) Petitioner's decision to plead guilty at that time was based on other considerations and totally independent of his own presumed and if so, misplaced, reliance on certain state law provisions relating to parole.

 That part of Akins' criminal record relevant to the present issue begins with his indictment on February 27, 1973 in Bronx County for Burglary in the Third Degree. On September 19, 1973, Akins pled guilty to Attempted Burglary in the Third Degree. On October 15, 1973, he was sentenced to five years' probation by Justice J. DiFede.

 Petitioner was arrested several times during 1974. On May 22, 1975, he pled guilty to violation of probation; the probation sentence of October 15, 1973 was set aside and vacated, and Akins was sentenced to state prison for an indeterminate sentence *fn1" of 0-3 years by Justice Jack Rosenberg.

 Petitioner was received in a state facility on June 6, 1975 and was paroled on November 4, 1975, having served only four months and 28 days there. *fn2" Approximately one month later, by court order dated December 1, 1975 and signed by Justice John G. Dier, Akins was given credit for 652 days of jail time. *fn3" This had the effect of amending the maximum expiration date of the Bronx sentence to August 19, 1976.

 While still on parole, Akins was arrested on April 30, 1976, along with one Larry Moore at 231 Bowery in New York County, for the crime of robbery.

 On May 27, 1976, Akins was arraigned in Supreme Court, New York County, Part 30, before Justice Robert Haft, on an indictment charging Armed Robbery in the First Degree and containing 13 counts, exposing Akins to a potential maximum sentence of well over 100 years of incarceration. At this arraignment Akins himself brought the provisions of New York Penal Law § 70.30 to the attention of his court-appointed attorney, Martin B. Rosner, and of Justice Haft. Akins expressed his belief and interpretation of the law, namely that under § 70.30, any sentence imposed on him could be run concurrently with the inception of the previous Bronx sentence on which Akins had satisfied, by his own calculation, 27 months and 18 days (i. e., 4 months and 18 days actually served in the state facility Plus the 652 days of jail time already credited to his probation sentence.) *fn4"

 Judge Haft dispatched a law clerk to research the point of law raised by Akins. The clerk reported that Akins' reading of the statutes was correct. Nonetheless this all became academic. No plea agreement was reached at this time and no plea was tendered to Judge Haft. Akins rejected Justice Haft's offer of a plea to a Class B felony and a 4 1/2 to 9 year sentence to run concurrently With the inception of the previous Bronx sentence. Akins proposed a plea to a Class C felony and a 3 to 6 year sentence which was unacceptable to the Court. Akins was thereupon held over to appear before a trial court.

 In the normal course of business as cases were processed at the time, Akins' next appearance was before Justice George Roberts on June 9, 1976. At this time Akins again proposed a plea of guilty with the suggestion that any sentence imposed incident to a plea be run concurrently with the inception of the prior sentence (for parole board purposes), as he believed Penal Law § 70.30 permitted. Justice Roberts, however, rejected the interpretation of that section as placed upon it when the parties were before Justice Haft, and Justice Roberts so stated, both at an unrecorded side bar conference with Mr. Rosner, and again on the record, stating his willingness only to run the sentence concurrently with the time to be served on the parole violation. Mr. Rosner reported accordingly to Akins and discussed this with him. Akins then told his lawyer that he agreed to accept a 4 1/2 to 9 year "concurrent" sentence omitting the inception language, "taking his chances", as he told Rosner at the time, that the parole board would read the statutes not as interpreted by Justice Roberts but as had been reported by the law clerk to Justice Haft. A guilty plea was thereupon entered by Akins before Justice Roberts.

 On August 2, 1976, Justice Roberts sentenced Akins as predicate felon *fn5" to an indeterminate sentence of 4 1/2 to 9 years. The sentencing transcript reflects that Justice Roberts imposed the sentence "concurrently with any time he owes on parole." However, he also noted that if the parole board decided to credit Akins with the full 27 months and 18 days (making the sentence concurrent with the part of the underlying Bronx sentence already served and not merely with the unserved period of the parole violation), he would not object. Justice Roberts also expressed his doubts about whether the parole board could or would follow Akins' interpretation of the law. The judgment of conviction correctly conforms to the sentencing understanding and the minutes thereof, reciting that sentence imposed was concurrent with the "violation of parole".

 Akins learned in October 1976 that the parole board would not credit him with the full 27 months and 18 days he sought (which included the 652 days of jail time already credited to the probation sentence, as well as the four months and 18 days of state custody), but only with the four months and 18 days of state custody, plus an additional three months and 8 days of jail time served while awaiting the disposition of the current charges. Akins' contention, and what is at stake in the present case, is that he is entitled to roughly an additional 23 months of credit for parole eligibility purposes. As matters stand now, Akins is eligible for parole board review on May 29, 1980.

 Upon learning that he was not entitled to the 27 months and 18 days of credit that he anticipated, Akins claims to have sought help by talking to jailhouse lawyers and writing to Rosner. In November 1976, Akins filed his first papers in this matter, a Pro se Article 78 proceeding in the Supreme Court of New York, Washington County. The Court appointed an attorney from Prison Legal Services to redo Akins' petition and bring it on as a habeas corpus petition instead. The relief sought, however, was the same credit for 27 months and 18 days. This relief was denied.

 Thereafter Akins made a motion to amend, or in the alternative, to vacate his sentence and withdraw his guilty plea under CPL § 440.20. This motion was denied by Justice Roberts on November 14, 1977, and permission to appeal was denied by the Appellate Division, First Department (Silverman, J.) on April 13, 1978.

 Because the construction of New York Penal Law provisions relating to the computation of sentences is so interwoven with the present controversy, a close examination of those provisions is necessary, as well as an application of the same to petitioner's criminal record as outlined above. This Court's ultimate conclusion is that Justice Roberts and counsel for respondent are correct in their interpretation of the relevant statutes, and that Akins is not entitled to the additional credit because it represents jail time which was previously credited to another sentence (the Bronx probation sentence) and therefore under the clear terms of New York Penal Law § 70.30(3) could not be credited against a subsequent sentence as well. Akins is, however, entitled to the credit he has been given for the "time served" on the Bronx sentence (four months and 18 days) and for the "jail time" served on the present charges (three months and eight days).

 The relevant statutes are:

 Penal Law § 70.25 *fn6" Concurrent and Consecutive Terms of Imprisonment (McKinney's 1975):

1. Except as provided in subdivision two of this section, when multiple sentences of imprisonment are imposed on a person at the same time, or when a person who is subject to any Undischarged term of imprisonment imposed at a previous time by a court of this state is sentenced to an additional term of imprisonment, the sentence or sentences imposed by the court shall run either concurrently or consecutively with respect to each other and the Undischarged term or terms in such manner as the court directs at the time ...

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