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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. ...

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