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November 18, 1997

DONOVAN SPENCE, Petitioner, against SUPERINTENDENT, Great Meadow Correctional Facility, and COMMISSIONER, New York State Department of Correctional Services, Respondents.

The opinion of the court was delivered by: RAGGI

 RAGGI, District Judge:

 Donovan Spence, who is presently incarcerated for armed robbery and related crimes, petitions this court for a writ of habeas corpus pursuant to 28 U.S.C. ยง 2254 (1994 & Supp. 1997). Spence pleaded guilty to these crimes in 1992 pursuant to an agreement that originally contemplated a probationary sentence on satisfactory completion of various conditions, including one that he not be rearrested. Within a few weeks of his plea, Spence was again arrested and charged with a second robbery. As a result, the sentencing judge in his original case found him to have breached his plea agreement and, accordingly, imposed a jail term of eight and one-third to twenty-five years. Spence was later acquitted of the second robbery charge.

 At issue before this court is the standard of review required by the Due Process Clause to hold a defendant in violation of a plea agreement's no-arrest condition when the defendant denies committing the crime for which he was arrested. Spence contends that, under those circumstances, due process requires a court to be persuaded by at least a preponderance of the evidence that the defendant committed the newly-charged crime. He further submits that, absent such a finding, an incarceratory sentence constitutes cruel and unusual punishment in violation of the Eighth Amendment. Finally, Spence argues that the trial court erred in failing to interpret his plea agreement expressly to bar further criminal conduct and not simply rearrest. Respondents submit that petitioner's claims must be rejected because they are procedurally barred, without merit, or call for the articulation of a new procedural rule that cannot be applied retroactively on habeas corpus review.

 Having carefully reviewed the submissions of the parties and heard oral argument, this court finds that Spence's challenge to the interpretation of his plea agreement is procedurally barred from federal review. As to the other points raised, a writ of habeas corpus must be denied because (1) Spence's due process claim seeks the announcement of a new procedural rule that could not be applied retroactively to his case, see Teague v. Lane, 489 U.S. 288, 103 L. Ed. 2d 334, 109 S. Ct. 1060 (1989), and (2) his Eighth Amendment claim is without merit.

 Factual and Procedural Background

 1. The May 29, 1992 Robbery and Spence's Guilty Plea

 At approximately 11:14 a.m. on May 29, 1992, the petitioner Donovan Spence, his fifteen-year old brother Nathoe Spence, and Kellon Quamina entered a store at 1308 Nostrand Avenue in Brooklyn. The three men pointed loaded firearms at the store occupants and demanded the surrender of any money and valuables. A number of victims were kicked, punched, and beaten until they complied with these demands. See Transcript, September 30, 1992, at 35-37; Transcript, December 1, 1992, at 15.

 On September 30, 1992, all three robbers pleaded guilty to a thirty-five count indictment. *fn1" Before specifically allocuting Donovan Spence, Judge Michael Feinberg reviewed the terms of the plea agreement with Spence's mother in the presence of petitioner and his counsel, Gregory Clarke: *fn2"

Mrs. Spence, regarding Donovan Spence . . . he's going to be put into this Court Employment Project for a period of one year. There are going to be curfews imposed that will not interfere with his school . . . . If those curfews or any other part of the Court Employment Project is violated, your son is going to be brought back to this court, sentencing will be advanced and your son will receive a period of incarceration from me of eight and one third to 25 years.
. . . .
If he gets rearrested -- and that goes for Mr. Quamina -- rearrest is a violation, rearrested, I'm bringing them back and I'm sentencing them. So if he's out with friends, he's going to learn to say no and walk away.
. . . .
If these programs are completed . . . after one year I will impose sentence. Those eligible will receive youthful offender treatment and an additional five years probation.

 Transcript, September 30, 1992, at 6-8. *fn3"

 After allocuting petitioner with respect to his participation in the May robbery, the court again reviewed with him his obligations pursuant to the plea agreement:

You will continue staying out but you will be supervised by Court Employment and your mom . . . .
. . . .
If I get a report back that you're violating any of the terms of Court Employment or any of the terms the Probation Department may put on when you go there, you're going to come back before me, I'm going to conduct a hearing and if I find that you are violating any of those programs, either by curfew violation or any other violation, I'm going to put you in for eight and a third to 25 . . . .
. . . .
I'm telling you now, if you have no violations and you're not rearrested, you don't get into any other trouble and you're honest and truthful with Probation, whatever you have to do, I will look very favorably at the time of sentence on granting youthful offender treatment and putting you on five years probation . . . .
. . . .
And if you get rearrested, I'm not going to be bound by any promise as to Y.O. or probation or anything else. If you get rearrested, that's a voluntary choice you made by going out and doing something which you should not have been doing. It rests solely with you. If you get rearrested and you're brought back before me, you can forget the promise and I'm going to sentence you up to the maximum allowed by law -- again, it's eight and a third to 25.

 Id. at 38-43.

 2. Spence's Arrest for the October 4, 1992 Robbery

 At approximately 12:40 a.m. on October 4, 1992 -- only a few days after Spence's guilty plea -- two young men drew guns on Bonita Bobbitt and Yolanda Carroll and demanded their jewelry. Ms. Carroll managed to flee, but the men stole Ms. Bobbitt's earrings. Ms. Bobbitt reported the crime to the police, identifying the robbers as brothers she knew from the neighborhood named "Kerith" and "Donovan." On October 6, 1992, Police Detective Edward Alonge searched computerized arrest files for brothers with those names. He identified Kerith and Donovan Spence as possible suspects. Detective Alonge secured a photograph of Donovan Spence and placed it with five other photographs in a spread for display to Ms. Bobbitt. On October 15, 1992, Ms. Bobbitt identified the photograph of Donovan Spence as one of the robbers. On October 20, 1992, police arrested Donovan Spence and placed him in a six-person line-up. Again, Ms. Bobbitt identified him as one of the robbers. Ms. Carroll, who was not shown any photographs, failed to make any identification from the post-arrest line-up.

 3. Spence's Sentencing on the May Robbery

 On November 16, 1992, Spence and his new attorney, Gregory Watts, appeared before Judge Feinberg to address the effect of the recent arrest on petitioner's plea agreement. Counsel acknowledged that the promise of a probationary sentence was contingent on Spence not being rearrested -- "I know a condition of the plea was a mere arrest," Transcript, November 16, 1992, at 4 -- but he submitted that the case presented extraordinary circumstances. Specifically, Spence denied any involvement in the Bobbitt robbery and proffered numerous alibi witnesses to support his position. Counsel noted that Ms. Bobbitt was a drug addict whose credibility might be suspect. He further implied that police may have been overzealous in arresting his client knowing that such action would prompt his incarceration for the May robbery. See id. at 3-4, 9-10. The trial court offered to vacate Spence's guilty plea on the charges relating to the May robbery and to proceed immediately to trial. See id. at 11. When counsel declined the offer, sentencing was set for December 1, 1992. See id.

 On December 1, 1992, Mr. Watts advised the court that Spence wished to withdraw his guilty plea to the May robbery charges. See Transcript, December 1, 1992, at 8-9. In the alternative, counsel sought an adjournment to allow Spence to clear himself at trial of the charges relating to the Bobbitt robbery. See id. at 12. The court denied both requests and sentenced Spence to concurrent terms of incarceration of eight and one-third to twenty-five years for each of the eleven counts of First Degree Robbery, five to fifteen years for each of the six counts of Second Degree Robbery and the three counts of Second Degree Weapon Possession, two and one-third to seven years for each of the three counts of Third Degree Weapon Possession and two counts of Second Degree Assault, one and one-third to four years for each of the five counts of Grand Larceny in the Fourth Degree, and one year for each of the five counts of Fifth Degree Possession of Stolen Property.

 On December 15, 1992, defendant filed a notice of appeal with the Appellate Division, Second Department.

 4. Outley Hearing

 Before Spence's direct appeal was heard, the New York Court of Appeals, on February 16, 1993, decided People v. Outley, 80 N.Y.2d 702, 594 N.Y.S.2d 683, 610 N.E.2d 356 (1993). At issue in that case was the question that Spence presents to this court: "when a court has made a plea bargain containing a no-arrest condition and the defendant is arrested prior to sentencing for an act which is denied, what basis for the arrest must be shown in order for the court to be relieved of its obligation to impose the bargained-for sentence?" Id. at 707, 594 N.Y.S.2d at 685.

 New York's highest court recognized that the question implicated the due process requirement that a sentencing court "assure itself that the information upon which it bases [a] sentence is reliable and accurate." Id. at 712, 594 N.Y.S.2d at 687. Thus, "the mere fact of [an] arrest, without more," would not always suffice to establish breach of a no-arrest clause, since a particular arrest might be "malicious or merely baseless." Id. at 713, 594 N.Y.S.2d at 688 (citing Innes v. Dalsheim, 680 F. Supp. 517 (E.D.N.Y.), rev'd on other grounds, 864 F.2d 974 (2d Cir. 1988), cert. denied, 493 U.S. 809, 107 L. Ed. 2d 19, 110 S. Ct. 50 (1989)). If a defendant were to challenge "the validity of the postplea charge or [deny] any involvement in the underlying crime," due process would require the sentencing court to "conduct an inquiry at which the defendant has an opportunity to show that the arrest is without foundation." Id. The Court of Appeals left "the nature and extent of the inquiry" to the discretion of the sentencing court, but mandated that "the inquiry be of sufficient depth . . . that the [sentencing] court can be satisfied -- not of defendant's guilt of the new criminal charge but of the existence of a legitimate basis for the arrest on that charge." Id. What the Court of Appeals unanimously rejected, however, was a defense argument that due process required a sentencing court "to satisfy itself by a preponderance of the evidence that the defendant has, in fact, committed the crime for which he was arrested." Id. at 712, 594 N.Y.S.2d at 688. It explained that "such a requirement would have the effect of changing the condition of the plea bargain from not being arrested for a crime to not actually committing a crime," with the "undesirable consequence of requiring, in effect, 'a minitrial' of the defendant's guilt or innocence on the new charge." Id. at 712-13, 594 N.Y.S.2d at 688 (emphasis in original).

 Prompted by the decision in Outley, Judge Feinberg sua sponte recalled petitioner's case on April 15, 1993, to conduct an evidentiary hearing into Spence's alleged violation of his no-arrest clause. Adopting the language of Outley, Judge Feinberg explained the nature and purpose of the inquiry:

The Court will reach the ultimate conclusion of whether or not the arrest under 12238 of '92 was either malicious or baseless, and the defendant at this hearing will be given an opportunity to show that the arrest was without foundation.
This Court, obviously, need not reach any conclusion and will not reach a conclusion as to the defendant's guilt under 12238 of '92 for the purposes of this hearing or the new charges. But the Court will only seek to determine whether or not ...

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