Division affirmed, holding that "the sentencing court adequately set forth on the record the reasons it was of the opinion that the history and character of the defendant and the nature and circumstances of his criminal conduct demonstrated that extended incarceration and lifetime supervision would best serve the public interest." Brown, 726 N.Y.S.2d at 280.
The state courts' rejection of the Apprendi claim in this case was contrary to clearly established federal law as determined by the Supreme Court in Apprendi. Brown received a sentence that far exceeded the statutory maximum for his offense of conviction based on numerous facts, other than the fact of his prior convictions, that were found by the sentencing court and were not submitted to a jury or proved beyond a reasonable doubt. Of course, the sentencing itself occurred more than two months prior to the Apprendi decision, but "[t]he threshold question under AEDPA is whether [the petitioner] seeks to apply a rule of law that was clearly established at the time his state court conviction became final," Williams, 529 U.S. at 390, 120 S.Ct. 1495, and the Appellate Division rejected Brown's constitutional claim on its merits on June 11, 2001, nearly a year after Apprendi was decided. Brown, 726 N.Y.S.2d at 280.
The Appellate Division denied the Apprendi claim without explanation, and the Court of Appeals denied leave to appeal, also without explanation. See id., leave to appeal denied, 96 N.Y.2d 916, 732 N.Y.S.2d 633, 758 N.E.2d 659 (2001) (table). In another setting, the absence of an explanation might render the inquiry on habeas review more difficult. In determining whether a "state court arrive[d] at a conclusion opposite to that reached by [the Supreme] Court on a question of law," Williams, 529 U.S. at 413, 120 S.Ct. 1495, an explanation of the state court's conclusion is obviously helpful. But here there is no such impediment, for the New York Court of Appeals's decision in People v. Rosen, 96 N.Y.2d 329, 728 N.Y.S.2d 407, 752 N.E.2d 844, cert. denied, 534 U.S. 899, 122 S.Ct. 224, 151 L.Ed.2d 160 (2001), no doubt provides the explanation for the rejection of Brown's claim. Rosen was decided on April 3, 2001, just two months before the Appellate Division rejected Brown's claim, and it flatly rejected an Apprendi challenge to a persistent felony offender sentence. As controlling precedent, Rosen required the rejection of Brown's claim in the Appellate Division, and the leave application explicitly sought review in the Court of Appeals "[n]otwithstanding" Rosen. Amend. Pet., Ex. 0 at 6 n. 4. I therefore have no difficulty concluding that the state courts' "conclusion" in Brown's case was the same as the Court of Appeals's conclusion in Rosen.
I also have no difficulty concluding that Rosen's conclusion is opposite to that reached by the Supreme Court in Apprendi on a question of law. In Rosen, a jury convicted the defendant of first degree sexual abuse, a class D felony with a maximum sentence of seven years, and endangering the welfare of a child, a misdemeanor. The court imposed an enhanced sentence of twenty-five years to life under the persistent felony offender statute. 96 N.Y.2d at 333, 728 N.Y.S.2d 407, 752 N.E.2d 844. On appeal, the defendant argued that his enhanced sentence violated his rights to trial by jury and to an indictment setting forth the charge against him. Id. at 333-34, 728 N.Y.S.2d 407, 752 N.E.2d 844. The New York Court of Appeals rejected the claim, concluding that "[i]t is clear from the . . . statutory framework that the prior felony convictions are the sole determinate of whether a defendant is subject to enhanced sentencing as a persistent felony offender." Id. at 335, 728 N.Y.S.2d 407, 752 N.E.2d 844 (emphasis added). Regarding the factual findings required by the second element of the statute, the Court of Appeals stated that the sentencing court is "only fulfilling its traditional role — giving due consideration to agreed-upon factors — in determining an appropriate sentence within the permissible statutory range." Id.
With respect, the first of those observations is descriptively inaccurate. It could not be clearer that prior felony convictions are not the sole determinant of whether a defendant is sentenced as a discretionary persistent felony offender. No such sentence complies with New York law unless, in addition to finding the prior convictions, the sentencing judge makes findings of fact, after a hearing, that the defendant's history and character also warrant the enhanced sentence. N.Y. Penal Law § 70.10(2); see supra.
Second, Rosen's conclusion that, in finding the facts (other than the fact of prior convictions) that warrant extended incarceration under the persistent felony offender statute, the sentencing court is "only fulfilling its traditional role," is wrong. The Supreme Court reached the opposite conclusion; where, as in Brown's case, an enhanced statutory maximum only exists if the judge makes certain factual findings at sentencing, the judge's role is "novel," not traditional, and the "historic link between verdict and judgment" has been broken. Apprendi, 530 U.S. at 482-83, 120 S.Ct. 2348. To say, as the New York Court of Appeals has in Rosen, that those findings are analogous to "traditional" sentencing considerations elevates form over substance, for the enhanced sentence may not be imposed without them. Apprendi, 530 U.S. at 494, 120 S.Ct. 2348. The question following Apprendi is whether the findings regarding the history and character of the defendant and the nature and circumstances of his criminal conduct exposed Brown to greater punishment than that authorized by the jury's verdict. Id. Because the answer to that question is "yes," Brown's sentence violated his rights under the Due Process Clause of the Fourteenth Amendment. The contrary conclusions of the New York courts violated the clear mandate of Apprendi.
New York could, consistent with Apprendi, have a sentence-enhancing provision that subjects all persons convicted of a class D felony who have two prior felony convictions to the possibility of being sentenced as though they had been convicted of an A-1 felony.*fn12 It could also guide the discretion of sentencing courts in those cases, such as by telling them to sentence the defendant more harshly than the maximum authorized by the offense of conviction only when they have the opinion that the history and character of the defendant and the nature and circumstances of his criminal conduct indicate that extended incarceration and life-time supervision will best serve the public interest.*fn13 Further, New York could require that the sentencing court set forth on the record the reasons for its opinion (including any factual findings), to permit appellate review, for example. Such a regime would be permissible because, at the moment of conviction, the defendant faced the possibility of life in prison based on the fact of his prior convictions alone.
Rosen assumes that the foregoing describes the persistent felony offender statute at issue here. But it does not: based solely on the jury's verdict finding Brown guilty of criminal possession of a weapon in the third degree, the maximum sentence he could have received was seven years. This was so because, in New York, a discretionary persistent felony offender may not legally receive an enhanced unless the court makes factual findings that support its "opinion" that an extended sentence is appropriate. In that respect, this case and Ring are identical, with one meaningless exception: whereas the Arizona statute in Ring specifically enumerated (and thus circumscribed) the aggravating factors that would justify the enhanced sentence, see 122 S.Ct. at 2434-37, the New York statute does not. It requires only that they relate to the history and character of the defendant or the nature and circumstances of his criminal conduct. But because both statutes require judicial findings, after a hearing, of at least one aggravating factor before the enhanced sentence is available, both violate Apprendi.
That some of the facts found by the sentencing court in Brown's case relate to his prior convictions does not matter. First, New York law is clear that the fact of the prior convictions, standing alone, is an insufficient basis for the findings required by the second prong of the statute. See, e.g., N.Y. Penal Law § 70.10(2); N.Y. CPL § 400.20; Perry, 555 N.Y.S.2d at 515. More is required to sustain the enhanced sentence, and it is precisely those additional facts (i.e., facts other than the fact of the prior convictions) that bring the sentence into conflict with Apprendi. Second, aggravating facts relating to the prior convictions are no different than any other aggravating facts. For example, the court in Brown's case relied on, inter alia, his attack on a law enforcement officer when he was arrested in connection with his 1992 federal conviction. For purposes of the constitutional inquiry, that aspect of his prior conviction is indistinguishable from the "fact" that contraband was found in the closet of his home, or from the "fact" that his conduct in this case violated his federal supervised release. Apprendi precluded reliance on any of those facts to justify a sentence beyond the unenhanced maximum of seven years because Brown never had a right to a jury determination of them. In short, the rationale of the case explains why the exception to Apprendi's rule is stated as "[o]ther than the fact of a prior conviction." Thus, with the possible exception of facts that constituted an element of the offense, even facts relating to prior convictions fall outside the exception.
For the reasons set forth above, the state courts' assessment of Brown's Apprendi claim constituted a conclusion opposite to that reached by Apprendi itself on the question whether Brown had a right to a jury trial on the facts that enhanced his sentence beyond seven years. I further conclude that the facts in this case are materially indistinguishable from those in Apprendi. Both defendants received sentences of imprisonment that were longer than the sentences they faced when they were found guilty, either by guilty plea or by a jury. Neither could have received his enhanced sentence under the applicable state law unless a judge made a requisite finding (or findings) of fact in the sentencing phase. In sum, in both cases, the legislature removed from the jury the responsibility of determining facts that increased the prescribed range of penalties to which the defendant was exposed. Thus, in both case, the sentences were unconstitutional. Apprendi, 530 U.S. at 490, 120 S.Ct. 2348.
The foregoing assumes that Brown's case (and Rosen) are not "run-of-the-mill state-court decision[s] applying the correct legal rule" of Apprendi to the persistent felony offender statute. Williams, 529 U.S. at 406, 120 S.Ct. 1495. If they are, they do not "fit comfortably within § 2254(d)(1)'s `contrary to' clause, and thus should be assessed under its unreasonable application clause." Id. Viewed from that perspective, the question is whether the New York courts unreasonably applied Apprendi to persistent felony offender sentences. Id. at 413, 120 S.Ct. 1495.
To the extent Apprendi was applied at all in this case and in Rosen, it was applied not just incorrectly, but unreasonably. The rule requires that any fact, other than the fact of a prior conviction, that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to the jury and proved beyond a reasonable doubt. Apprendi, 530 U.S. at 490, 120 S.Ct. 2348. In applying that principle, the New York courts have held that only the fact of the prior convictions — not the additional factfindings required by N.Y. Penal Law § 70.10(2) and CPL § 400.20 — enhances sentences under the persistent felony offender statute. That holding is unreasonable — it is flatly contradicted by both statutes, by New York caselaw, and by the procedural history of this very case.
For the foregoing reasons, Brown's petition is granted. The state court is directed to vacate his sentence and to resentence him in proceedings consistent with this decision. If respondent files a note of appeal, the relief granted herein is stayed pending the outcome of the appeal.