Petitioner's Due Process Claim
The substance of what took place at sentencing is plain. The sentencing judge concluded that a sentence of five to fifteen years was appropriate for the offense of which petitioner had been convicted. He then imposed a more severe sentence in exchange for the People dropping two pending charges against petitioner -- charges that petitioner denied and on which he expressed the desire to go to trial rather than accept a harsher sentence for the offense of conviction. Whether this is characterized as an ex parte plea bargain or something else, petitioner's sentence includes an enhancement that reflects the other offenses of which he had been accused, but on which he had no trial or other fact finding proceeding and, for that matter, no factual determination. The question is whether this enhancement violated his federal constitutional rights.
The State makes much of the fact that petitioner's sentence was within the statutory maximum for the offense of which he was convicted. To be sure, a federal habeas court's review of a state sentence quite properly is circumscribed, especially when the sentence is within the statutory range. Dorszynski v. United States, 418 U.S. 424, 431-32, 41 L. Ed. 2d 855, 94 S. Ct. 3042 (1974). But a state criminal defendant has a protected right to due process at sentencing.
Deprivation of that right therefore is not merely a matter of state procedural law but is a deprivation of a constitutionally protected liberty interest. See Hicks v. Oklahoma, 447 U.S. 343, 346, 65 L. Ed. 2d 175, 100 S. Ct. 2227 (1980). Hence, a federal court may grant habeas relief setting aside a state court sentence in the rare case in which "an error of law resulted in the improper exercise of the sentencer's discretion and thereby deprived the petitioner of his liberty." Haynes v. Butler, 825 F.2d 921, 924 (5th Cir. 1987), cert. denied, 484 U.S. 1014, 98 L. Ed. 2d 667, 108 S. Ct. 717 (1988).
It is important to be clear at the outset what is not at issue on this petition. It is common ground that a defendant has no right to protest the dismissal of charges against him. Parr v. United States, 351 U.S. 513, 516-17, 100 L. Ed. 1377, 76 S. Ct. 912 (1956); United States v. Reale, 834 F.2d 281, 282 (2d Cir. 1987). It is equally clear that a sentencing court may consider other pending charges
and uncharged but relevant conduct in fixing the sentence.
Nor does petitioner deny that the sentencing judge's traditional discretion is "largely unlimited either as to the kind of information he may consider, or the source from which it may come."
Nonetheless, all of these principles are subject to the overall constraint that the procedure by which these factors come before the court conform to the requirements of due process. And while, at sentencing, due process does not "implicate the entire panoply of criminal trial procedural rights,"
it requires some protection against a defendant being sentenced on the basis of "materially untrue" statements or "misinformation"
and insists also that the state prove disputed conduct upon which a sentence rests "by a preponderance of the evidence." Nichols v. United States, 128 L. Ed. 2d 745, 114 S. Ct. 1921, 1928 (1994) (citing McMillan v. Pennsylvania, 477 U.S. 79, 91, 91 L. Ed. 2d 67, 106 S. Ct. 2411 (1986)); accord, United States v. Shonubi, 998 F.2d 84, 87 (2d Cir. 1993); United States v. Lee, 818 F.2d at 1057 ("the Supreme Court has held that the preponderance of the evidence standard satisfies the Due Process Clause of the Fourteenth Amendment in the context of State sentencing.").
The Constitution does not force state sentencing procedures into a strait jacket of prescribed form. Rather, the role of the federal courts is only to determine whether the procedures employed conformed to minimal due process requirements, which depends on four factors: (1) the nature of the individual interest at stake, (2) the risk of error inherent in the present method of obtaining information, (3) the usefulness of additional procedural safeguards in securing accurate information, and (4) the government's interest in being free of the fiscal and administrative burdens that the provision of additional safeguards would impose. United States v. Pugliese, 805 F.2d 1117, 1122 (2d Cir. 1986) (applying Mathews v. Eldridge, 424 U.S. 319, 335, 47 L. Ed. 2d 18, 96 S. Ct. 893 (1976), in the sentencing context).
Application of this analysis here is straightforward. A criminal defendant's interest in his sentence "could not be greater because his sentence determines in large measure his future liberty." United States v. Lee, 818 F.2d at 1055. The risk of error at sentencing inherent in reliance on unproven prosecutorial representations is apparent.
Some incremental benefit in improved accuracy of information considered by the sentencing court is bound to accrue from procedural safeguards beyond what occurred here. Finally, while the government's interest in avoiding extended "mini-trials" after conviction is significant and legitimate,
there is no reason to believe that procedures cannot be fashioned which would not impose an excessive burden on the State while ensuring that the court relies only on accurate information when sentencing defendants.
Here there is no close question. Cutting through the competing characterizations of what took place, the defendant was sentenced to an additional term of imprisonment of two to six years (the difference between the five to fifteen year term otherwise thought appropriate and the seven to twenty-one years imposed) for offenses of which he was accused, but which he denied, without (i) any evident consideration by the sentencing court of the accuracy of those charges or (ii) any determination as to whether the People had established the petitioner's guilt even by a preponderance of the evidence. While the sentencing judge undeniably could have sentenced the petitioner to a term of seven to twenty-one years purely on the basis of the offense of conviction, without regard to the other charges, the reliance on the disputed conduct in the absence of these safeguards violated petitioner's federal constitutional right to due process of law.
As noted above, the Magistrate Judge recommended denial of this petition. With great respect, this Court disagrees with the Report and Recommendation.
The Magistrate Judge viewed the petition through the lens of petitioner's characterization of the sentencing as reflecting an ex parte plea bargain imposed on petitioner by the court and the People. (Report and Recommendation ["R&R"] at 5-6) The R&R rejected that characterization, noting that petitioner had no right to a trial on the dismissed charges, that the sentence was within the permitted statutory range, and that the sentencing judge could have sentenced petitioner to a longer term had he ignored the prosecutor's promise to drop the pending charges. (Id. at 7) The only reference to petitioner's claim that the sentencing court improperly enhanced his sentence on the basis of the pending charges was its conclusion that "it is permissible for a sentencing court to consider evidence of other crimes for which the defendant was neither tried nor convicted." (Id. at 6)
This Court agrees with both propositions advanced in the R&R. In particular, there is no proper basis for characterizing the sentencing as the imposition on petitioner of a plea bargain. Nevertheless, the crucial point -- that due process forbids reliance on other crimes for which the defendant has not been convicted where the conduct in question is disputed and the sentencing court has made no determination as to whether the conduct has been established even by a preponderance of the evidence -- was not addressed in the R&R.
For the reasons set forth above, the petition for writ of habeas corpus is granted. The petitioner shall be discharged from respondent's custody unless he is resentenced in accordance with the law within sixty days from the date hereof.
Dated: December 29, 1995
Lewis A. Kaplan
United States District Judge