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United States District Court, S.D. New York

July 7, 2004.

ERIC WILSON, Petitioner,
MICHAEL McGINNIS, Superintendent, Southport Correctional Facility, Respondent.

The opinion of the court was delivered by: ALVIN HELLERSTEIN, District Judge


Petitioner Eric Wilson petitions for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner pleaded guilty to Attempted Robbery (N.Y. Penal Law §§ 110/160.10), and was sentenced on December 22, 1998 by the Supreme Court, Bronx County, pursuant to his plea agreement, to a term of twelve years to life. Since, at the time petitioner committed his crime, he was on bail from a previous conviction, waiting to begin a sentence of three to six years for selling narcotics, the sentencing judge was required by law to sentence him consecutively. N.Y. Penal Law § 70.25(2-b). Accordingly, the sentencing judge ordered that petitioner's term of twelve years to life should run consecutively to his term of three to six years.

Petitioner was not advised when he pleaded guilty that his sentences were to run consecutively. He was advised only that his prior convictions required him to be sentenced as a persistent violent felony offender to an enhanced indeterminate term of between twelve and twenty-five years, and life. Petitioner demanded, upon hearing his sentence and the number of years that it was to run, that he be allowed to withdraw his plea; "Why can't I get my cop out back?" he cried. S Tr. at 9.*fn1 The court refused, holding that his plea had been made knowingly and intelligently.

  Petitioner now challenges his conviction on the ground that his guilty plea was not made knowingly and intelligently, because the trial court neglected to inform him that his sentence would run consecutively to a previously ordered sentence. I hold that petitioner's constitutional rights were not violated when the sentencing judge refused to allow petitioner to withdraw his plea. Petitioner knew that his sentence was a life sentence, and that he would be sentenced to an indeterminate term of twelve to twenty-five years minimum, and life. The fact that he could not be considered for parole until after the fifteenth year, rather than the twelfth year, of his term, in the context of what he was told, did not rise to an infringement of his constitutional rights. Furthermore, petitioner's plea agreement related to his offense of attempted robbery, and did not mention the unrelated prior offense of selling narcotics, nor provide whether he should merit concurrent, rather than consecutive, treatment to a previously ordered sentence. Petitioner did not have a constitutional right to withdraw from his plea agreement.

  I. Background.

  On April 28, 1995, petitioner was arrested and charged with selling narcotics to an undercover police officer, a Class E felony. N.Y. Penal L. § 221.45. He pleaded guilty on October 7, 1997 in the Supreme Court, Bronx County, and was sentenced on March 30, 1998 to a term of three to six years in prison. On August 26, 1996, a year and four months after his crime of selling narcotics, petitioner committed a second crime, robbery, by pulling a gold chain from around another man's neck. He committed the crime while he was on recognizance or bail with respect to his crime of selling narcotics, but prior to the imposition of sentence for that crime. Petitioner pleaded guilty to attempted robbery on September 15, 1998.

  The court's allocution of petitioner in connection with his plea of guilty made petitioner aware that he was subject to an indeterminate term of 12 to 25 years, to life, and that the "minimum sentence that I can sentence you to is 12 to life." P Tr. at 60.*fn2 The court advised petitioner that his plea of guilty to attempted robbery, "a violent felony offense," made him a persistent violent felony offender, for he had "previously been subjected to two or more predicate violent felony convictions," N.Y. Penal Law § 70.08(1)(a): attempted robbery in the second degree in 1983, and robbery in the first degree in 1986. The court explained to petitioner, "In your case you have been convicted of two prior violent felony offenses and therefore, this being a violent felony offense the minimum sentence I can give you is 12 years, maximum life. Do you understand that." P Tr. at 64. Petitioner answered "Yes." Id. Petitioner confirmed that he had discussed the plea with his attorney, that no one had forced him to plead guilty, and that no one had told him anything other than that his sentence would be "minimum 12, maximum life."

  At petitioner's sentencing, on December 22, 1998, the prosecutor advised the court the sentence for attempted robbery of twelve years to life was required to run consecutively to petitioner's unexecuted sentence for selling narcotics of three to six years. N.Y. Penal Law § 70.25(2-b). Petitioner, upon hearing the sentence, complained vehemently that the prison term was too long:

I don't feel I should just cop out to 12 years to life. I'm 32 years old. I'll be 40 something when I come home. I want a fair trial. I want a fair trial so I can have my part. I have a fighting part in this. I don't feel its right just to give me 12 to life for a chain snatching that never took place. Never got no chain or nothing like that. . . . There is no way I will take 12 years to my life, you know what I'm saying, for something I know I could fight and got a possible chance of beating. I'm asking the mercy on the Court and everybody else, that they please let me go to trial. Please let me take this plea back. I did not do this.
S Tr. at 3-5.

  Petitioner argued that there was little evidence of his guilt, that he had repeatedly asserted his innocence, and that he was pressured to plead guilty by his attorney. The court denied the motion, pointing out that petitioner's asserted alibi was demonstrably false, and that he clearly knew what he was doing when he pleaded guilty. Petitioner did not mention the consecutive aspect of the sentence in his argument to the court.

  Petitioner appealed to the Appellate Division, First Department, presenting two arguments: (1) that his plea was not intelligent and knowing since the court failed to advise him that the sentence would run consecutively to the earlier imposed sentence; and (2) that his plea was involuntary based on his assertions of innocence and impaired judgment. The Appellate Division unanimously affirmed petitioner's conviction on the merits, rejecting his argument that his plea was not voluntary. People v. Wilson, 749 N.Y.S.2d 409 (App. Div., 1st Dept. 2002). Leave to appeal to the Court of Appeals was denied. People v. Wilson, 99 N.Y.2d 566, 784 N.E.2d 92 (N.Y. 2002).

  In his petition to this court for a writ of habeas corpus, petitioner claims that his guilty plea was not knowing and intelligent because he was not informed that his sentence was to run consecutively to his sentence for selling narcotics. II. Discussion.

  A. Standard of Review

  The standard of review of a state court decision on a habeas petition is to consider if the decision (1) "was contrary to or involved an unreasonable application of clearly established federal law, as determined by the Supreme Court of the United States;" or (2) "was based on an unreasonable determination of the facts in light of the evidence presented." 28 U.S.C. § 2254(d); see also Williams v. Taylor, 529 U.S. 362, 412-13 (2000).

  The petitioner must have exhausted the remedies available in the state courts, unless "there is an absence of available State corrective process," or "circumstances exist that render such process ineffective to protect the rights of the applicant." 28 U.S.C. § 2254(b)(1)(A), (B). The petitioner must have "utilized all available mechanisms to secure [state] appellate review of the denial" of his claims, having made the state courts aware that the United States Constitution was a basis for the requested relief. Klein v. Harris, 667 F.2d 274, 282 (2d Cir. 1981). Factual determinations "shall be presumed to be correct[,]" 28 U.S.C. § 2254(e)(1), subject to rebuttal by "clear and convincing evidence." Id.

  Petitioner has exhausted all available mechanisms of review by the New York State courts. Accordingly, I review the merits of his claim.

  B. Petitioner's Guilty Plea was Knowing and Intelligent

  Petitioner contends that his plea was not intelligently made since the court did not inform him when he pleaded guilty to attempted robbery that his sentence would run consecutively to the sentence he previously had been given for selling narcotics. The Appellate Division rejected his argument. The court held:

The fact that defendant was not informed that his bargained-for term would run consecutively with the undischarged sentence on a previous conviction did not impair the voluntariness of the plea, since the requirement that the sentences run consecutively was a statutory mandate and not a part of the plea agreement.
People v. Wilson, 749 N.Y.S.2d at 409.

  Whether a guilty plea was knowing and intelligent is a question of federal constitutional law, Boykin v. Alabama, 395 U.S. 238, 242-43 (1969), and a knowing and intelligent plea is a requirement of due process. Brady v. United States, 397 U.S. 742, 748 (1970). A plea of guilty waives a defendant's constitutional right to trial by jury, and "[w]aivers of constitutional rights . . . must be knowing, intelligent acts done with sufficient awareness of the relevant circumstances and likely consequences." Id. A court cannot accept a plea of guilty without an affirmative showing that it was intelligent. Boykin, 395 U.S. at 242.

  State courts have the obligation of "canvassing the matter with the accused to make sure he has a full understanding of what the plea connotes and of its consequences." Id. at 243-44. That is, "[t]he election to plead guilty requires notification of certain consequences in order to assure that the relinquishment of significant rights at the time of the plea is knowing and voluntary." Cucciniello v. Keller, 137 F.3d 721, 724 (2d Cir. 1998).*fn3 A guilty plea must represent "a voluntary and intelligent choice among the alternative courses of action open to the defendant." North Carolina v. Alford, 400 U.S. 25, 31 (1970).

  A court does not have to inform a defendant of all consequences of a guilty plea; "[c]ertain possible consequences of a guilty plea are `collateral' rather than direct and need not be explained to the defendant in order to ensure that the plea is voluntary." United States v. United States Currency in the Amount of $228,536, 895 F.2d 908, 915 (2d Cir. 1990). Deportation is an example of a "collateral" consequence that courts are usually not required to disclose to a defendant at a plea allocution.*fn4 Michel v. United States, 507 F.2d 461, 465-66 (2d Cir. 1974); see also United States Currency, 895 F.2d at 915-16 (civil tax liability "does not follow directly from a guilty plea to a charge of filing a false and fraudulent tax return"; and mentioning other examples of collateral effects: "parole eligibility or revocation, the likelihood of an undesirable military discharge, [or] the potential for civil commitment proceedings").

  In Parry v. Rosemeyer, 64 F.3d 110, 114 (3d Cir. 1995), the trial court did not inform the defendant that his sentence could be increased if he violated his probation. The Court of Appeals held that the possibility was collateral, and that defendant's constitutional right to due process was not violated by enforcing the plea of guilty. The Court of Appeals held that a revocation of probation "is not generated by the plea but by the defendant's own unwillingness or inability to conform to the restrictions imposed as part of probation." Id.

  Cucciniello v. Keller, 137 F.3d 721, 724 (2d Cir. 1998), a habeas corpus case arising from two federal convictions, presented essentially the same issue as that in the case before me. Cucciniello was arrested for unlawfully possessing a firearm, and was released on bail. Subsequently, he pleaded guilty, with bail being continued pending sentencing. He then committed a second crime — gambling and racketeering — prior to his sentencing on the gun charge, and was again released on bail, subject to a special condition of home confinement. Subsequently, Cucciniello was sentenced, first on the firearms conviction to a fine and probation, including six months of home detention, and second, on the racketeering charge, to 57 months of imprisonment.

  The issue in Cucciniello was whether or not he was entitled to credit for his home confinement, in connection with his sentence of probation on the firearms charge and in connection with his bail on the gambling and racketeering charges, amounting to almost two years in all. The Court of Appeals held that Cucciniello was not entitled to credit. His two sentences were independent and, by operation of law, consecutive, unless the court ordered the two terms to run concurrently. 18 U.S.C. § 3584(a). Consequently, his sentence of 57 months imprisonment was not reduced.

  Cucciniello argued also that his sentence was constitutionally invalid, denying him his right to due process of law, because he had not been advised that his home detention could not be credited against a term of imprisonment. The Court of Appeals, analogizing the issue to the advice that a judge is required to give upon a plea allocution, Rule 11, Fed.R. Crim. P., rejected the argument, holding in line with its earlier precedent:

We have even gone so far as to hold that a defendant pleading guilty need not be informed that any federal sentence, when required by statute, will be imposed consecutively to a state sentence, because the requirement of consecutiveness does not `lengthen' or `directly affect' the federal sentence.
137 F.3d at 725 (citing United States v. Parkins, 25 F.3d 114, 119 (2d Cir. 1994)).

  Parkins, in connection with his federal plea of guilty to misrepresentation of his citizenship, was not advised that his sentence would run consecutively to a state sentence that he was currently serving for violating a condition of his parole. The Court of Appeals held that the trial court's neglect to advise him that his sentence would begin to run after he was received in federal custody, that is, consecutive to the completion of his state sentence, see 18 U.S.C. § 3585 (a), did not violate any constitutional right, for the consequence was "collateral," not "direct."


While § 3585(a) may in effect lengthen Parkins's time in jail, it does not lengthen the federal sentence, or directly affect it in any other way.
25 F.3d at 118. The Court of Appeals observed that its holding was consistent with precedents in the Third, Fourth, Fifth, Eighth, and Tenth Circuits. Id., at 119. Compare United States v. Barbee, 678 F.2d 634 (5th Cir. 1982) (not requiring allocution that sentences for separate crimes will be consecutive), with United States v. Wills, 881 F.2d 823 (9th Cir. 1989) (holding that duty to allocute depends on whether trial judge may or must sentence consecutively; if discretionary, consequence is "collateral" and allocution on subject not required; if mandatory, consequence is "direct" and allocution on subject is required). Cucciniello and Parkins, not Wills, states the rule to be followed in the courts of the Second Circuit. See Cucciniello, 137 F.3d at 725-26 (Calabresi, J., concurring).

  Petitioner's two guilty pleas for the two offenses he committed — selling narcotics and attempted robbery — were entered in two separate proceedings. Each plea was independent of the other, and neither was a condition precedent to, nor a cause of, the other. Similarly, petitioner was sentenced separately for his narcotics offense and for his attempted robbery offense, and neither sentence was a condition of the other. As held in Cucciniello, the two sentences were "collateral" in respect of each other, and one was not a "direct" consequence of the other. The neglect to advise petitioner, when he allocuted to his guilt of attempted robbery, that the sentence for that offense would be consecutive to the sentence he had already been given for selling narcotics, did not vitiate the knowing and intelligent quality of petitioner's guilty plea.

  Typically, a New York trial judge, in connection with procedures following guilty pleas, learns of a defendant's criminal history after his plea and before his sentence. See generally Rosa v. Herbert, 277 F. Supp.2d 342, 354-55 (S.D.N.Y. 2003); People v. Farrar, 419 N.E.2d 864, 865-66 (N.Y. 1981). If the trial judge learns, after a plea agreement but before sentence, that defendant's criminal history does not permit fulfillment of the agreement, the judge should allow the defendant to re-plead. See Rosa v. Herbert, 277 F. Supp.2d at 353. In People v. Fuller, 517 N.Y.S.2d 571 (App. Div., 2d Dept. 1987), the trial court had promised defendant, prior to his plea of guilty, that his sentence would run concurrently with a term of imprisonment imposed on defendant for a violation of parole. However, the court lacked the power to sentence concurrently; the sentence was required to be consecutive. The New York Appellate Division held that, under these circumstances, the defendant's motion to withdraw his plea had to be granted.

  In the case before me, unlike Fuller, petitioner had not been promised a concurrent sentence. Indeed, petitioner acknowledged that no one had told him anything other than that his sentence would be "minimum 12, maximum life." P Tr. at 64. Petitioner cannot complain that his plea was not knowing and intelligent. People v. Davis, 556 N.Y.S.2d 664, 665 (App. Div., 2d Dept. 1990). In Davis, the court promised, at the time that defendant pleaded guilty, that defendant would be sentenced as a second felony offender to three and a half to seven years in jail. The court did not mention if the sentence would run consecutively or concurrently with defendant's undischarged parole time in connection with a prior sentence for a separate and earlier offense, and defendant acknowledged that no other promises had been made to him to induce his guilty plea. Defendant's motion to vacate his guilty plea was denied, for the "defendant's misunderstanding of the agreement or disappointment with his sentence does not suffice as a reason for vacating his guilty plea":

Any off-the-record promise of a concurrent sentence is belied by the defendant's acknowledgment during the plea allocution that no other promises had been made to induce his guilty plea. No inquiry was ever made by the defendant or his attorney as to whether the sentence would run consecutively with the undischarged sentence. Under the circumstances, we can only presume that at the time the plea was entered, both the court and the defendant's attorney were aware that consecutive sentences were required by [section 70.25] and that counsel so advised his client. . . . Since an objective reading of the plea bargain was susceptible to but one interpretation, the defendant's misunderstanding of the agreement or disappointment with his sentence does not suffice as a reason for vacating his guilty plea.
Id. at 665.

  Petitioner argues that the requirement of consecutive sentencing provided by N.Y. Penal Law § 70.25(2-b) should be considered as a "recidivism statute[] that increase[s] the statutory [minimum] penalty," requiring that a defendant be so advised in order to assure that a plea of guilty is knowingly and intelligently made.*fn5 I do not agree. Petitioner's term was not enlarged. He was sentenced to a term of 12 years to life imprisonment, as he was promised. He was told that he was subject, as a persistent violent felony offender, to a term of 12 to 25 years, to life. His status as a persistent violent felony offender was required because his plea of guilty to attempted robbery followed two earlier convictions of robbery and attempted robbery. Petitioner's plea was knowing and intelligent.

  Although not relevant to the situation of this petitioner, I note that the requirement of consecutive sentencing in New York is not absolute, and that the judge is not without discretion. A defendant who is subject to mandatory consecutive sentences may nevertheless, "in the interest of justice," be sentenced concurrently, if there are "mitigating circumstances that bear directly upon the manner in which the crime was committed," or if the defendant was not the "sole participant in the crime" and his participation was "relatively minor." N.Y. Penal Law § 70.25(2-b). The parties may present evidence on the issue, and the judge is authorized to conduct a hearing with respect to any issue that can help the judge's determination. Cf. Wills, 881 F.2d at 825.

  I hold, therefore, that the trial judge's neglect to advise petitioner that his sentence for committing attempted robbery and as a persistent violent felony offender would be consecutive to his sentence for selling narcotics did not violate petitioner's constitutional rights.

  C. The State Court Judgment Was Not Contrary to, Nor Did It Constitute an Unreasonable Application of, Clearly Established Supreme Court Law

  The principle that a guilty plea must be knowing and intelligent is "clearly established" by Supreme Court law. E.g., Bousley v. United States, 523 U.S. 614, 620 (1998); Kercheval v. United States, 274 U.S. 220, 223 (1927) ("Out of just consideration for persons accused of crime, courts are careful that a plea of guilty shall not be accepted unless made voluntarily after proper advice and with full understanding of the consequences"); Brady v. United States, 397 U.S. 742 (1970). But there is no Supreme Court determination that has ruled precisely on the point of this case, and none to which the state court judgment was contrary, or which it unreasonably applied.

  The absence of a precise determination by the United States Supreme Court does not end the analysis. In Cotto v. Herbert, 331 F.3d 217, 249-53 (2d Cir 2003), an eyewitness, because of intimidation by defendant, testified in a manner that contradicted his earlier statement to the prosecutor. The prosecutor then introduced the witness' out-of-court, incriminating statement. The court, allowing it to be admitted under an exception to the hearsay rule, barred defendant from cross-examining the witness, holding that defendant had waived that right by having intimidated the witness from testifying fully and truthfully. I denied defendant's petition for habeas corpus, holding that, in the absence of a determination on point by the United States Supreme Court, the decision of the New York courts was not contrary to, and did not reflect an unreasonable application of, clearly established federal law as determined by the United States Supreme Court. The Court of Appeals reversed, holding, in light of "long-standing principles" in relation to the law of confrontation and the application of those principles by other federal courts of appeals, that the decision of the New York courts constituted an unreasonable application of federal law, notwithstanding the absence of a determination by the Supreme Court precisely on the point at issue. Id. at 250-51. Cotto was followed by Crawford v. Washington, 124 S.Ct. 1354 (2004) (out of court statement, admitted as exception to hearsay rule, nevertheless violates Confrontation Clause).

  Petitioner cannot argue that the same considerations should apply in this case. The judgment of the New York court is consistent with Cucciniello v. Keller, and, as noted by Cucciniello, most other United States courts of appeals. And it is grounded in New York decisional law and practice. People v. Johnson, 584 N.Y.S.2d 5, 6 (App. Div., 1st Dept. 1992); People v. Davis, 556 N.Y.S.2d 664, 665 (App. Div., 2d Dept. 1990).

  III. Conclusion.

  For the reasons stated, the petition for a writ of habeas corpus is denied. I recommend, however, that the issue be accepted for appeal and be reviewed by the Court of Appeals. See 28 U.S.C. § 2253(c). The issue of concurrent, or consecutive, sentencing has practical effect on how long a person has to remain in prison, and one may forcefully argue that the issue is material to the consideration whether the constitutional rights to trial by jury and due process of law should be waived for the benefits to be expected from a plea of guilty. Cf. Cucciniello, 137 F.3d at 725-26 (concurring opinion, Calabresi, J.) (liberty interests suggest that defendants be advised of consequences of guilty pleas, even though decisional law does not require such advice to be given; mentioning deportation, no credits for home confinements against eventual prison time, as examples).

  The Clerk shall mark the case closed.


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