Searching over 5,500,000 cases.

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Besser v. Walsh

March 31, 2010



Five New York prisoners, sentenced under New York's persistent offender statute, petitioned for a writ of habeas corpus. We hold principally that the New York courts' upholding of the constitutionality of the New York state persistent felony offender statute after the United States Supreme Court's decision in Blakely v. Washington, The opinion of the court was delivered by: Winter, Circuit Judge

Argued in Tandem: April 16, 2008

Before: WINTER, SACK, Circuit Judges and MURTHA, District Judge.*fn4

The principal question on appeal is whether New York state court decisions affirming sentences enhanced under New York's persistent felony offender ("PFO") statute, N.Y. Penal Law § 70.10, unreasonably applied clearly established federal law. 28 U.S.C. § 2254(d).

The district court issued a writ of habeas corpus in the petitions of Carlos Portalatin and William Washington and the relevant state authorities brought this appeal.*fn5 See Washington v. Poole, 507 F. Supp. 2d 342, 344 (S.D.N.Y. 2007) (Koeltl, J.); Portalatin v. Graham, 478 F. Supp. 2d 385, 386 (E.D.N.Y. 2007) (Gleeson, J.). The district court declined to issue the writ in the petitions of James Besser, William Phillips, and Vance Morris, who then appealed. See Morris v. Artus, No. 06 Civ. 4095(RKS), 2007 WL 2200699, at *1 (S.D.N.Y. July 30, 2007) (Sweet, J.); Phillips v. Artus, No. 05 Civ. 7974(PAC), 2006 WL 1867386, at *1 (S.D.N.Y. June 30, 2006) (Crotty, J.); Besser v. Walsh, No. 02 Civ. 6775(LAK), 2005 WL 1489141, at *1 (S.D.N.Y. June 22, 2005) (Kaplan, J.). Because these five appeals presented substantially similar or overlapping issues, we heard them together.

We hold that the Sixth Amendment right to a jury trial, applicable to the states as incorporated by the Fourteenth Amendment, prohibits the type of judicial fact-finding resulting in enhanced sentences under New York's PFO statute. We also hold that this prohibition was not clearly established until Blakely v. Washington, 542 U.S. 296 (2004). Because Besser's conviction became final before Blakely issued, the state court decisions upholding his conviction were neither contrary to nor an unreasonable application of clearly established federal law. We therefore affirm the denial of the writ as to Besser. However, because the relevant state court decisions upholding enhanced sentences for Phillips, Morris, Portalatin, and Washington were issued after Blakely, those decisions were not reasonable applications of clearly established law. Nevertheless, we remand these cases to the district court for a determination of whether the error was harmless.


a) The Persistent Felony Offender Statute

There are three increasingly harsh levels of sentencing applicable to felony offenders under Article 70 of New York's penal laws pertinent to this appeal. First-time felony offenders are generally sentenced according to indeterminate ranges based on the class of offense. See N.Y. Penal Law § 70.00.*fn6 Second felony offenders are subject to enhanced sentences, based solely upon the finding of one qualifying prior felony conviction, again according to the class of offense. See id. § 70.06. Under the PFO statute, a defendant who has been previously convicted of two felonies is a "persistent felony offender" (sometimes "PFO"). See id. § 70.10(1)(a). PFO's may be sentenced to an indeterminate sentence in the range authorized for Class A-I felony offenders rather than the range authorized for the class of the defendant's actual offense. See id. § 70.10(2);*fn7 see also N.Y. Crim. Proc. Law § 400.20(1)(b). Class A-I felonies carry a minimum sentence of 15 years and a maximum of life.*fn8 See N.Y. Penal Law §§ 70.00(2)(a), 70.00(3)(a)(i).*fn9

The difference in a defendant's sentencing exposure depends heavily upon which level's range is applicable. Once classified as a PFO, a defendant may be subject to a minimum sentence exceeding the maximum sentence for second felony offenders applicable to the crime committed. For example, a first-time offender convicted of a Class E felony would be subject to a term of 1 1/3 to 4 years. See id. § 70.00(2)-(3). Were the defendant sentenced for a Class E felony as a second felony offender, he or she would be subject to a term of 1.5 to 4 years. See id. § 70.06(3)-(4). The same defendant given the enhanced sentence under the PFO statute would be subject to a term of 15 years to life. See id. §§ 70.00(2)-(3), 70.10(2).

Under the provisions applicable to first and second felony offenders, the existence or non-existence of a prior felony alone determines the applicable range. See id. §§ 70.00-70.06. To sentence under the PFO statute, the sentencing court must make a finding of at least two prior felony convictions, rendering that defendant a PFO and exposing him or her to a Class A-I sentence. See id. § 70.10. After making that finding, the court turns to whether "the history and character of the defendant and the nature and circumstances of his criminal conduct" (sometimes "history/character/criminal conduct"), id. § 70.10(2); N.Y. Crim. Proc. Law § 400.20(1), is such that the PFO should, in the public interest, be given a Class A-I sentence.*fn10 N.Y. Crim. Proc. Law § 400.20(1). In making this finding, the court must conduct a hearing at which the prosecution bears the burden of proof and "[m]atters pertaining to the defendant's history and character and the nature and circumstances of his criminal conduct" must be established by a preponderance of the evidence. Id. § 400.20(5). "Uncontroverted allegations in the statement of the court are deemed evidence in the record." Id. § 400.20(7).

If the sentencing court imposes a Class A-I sentence, "the reasons for the court's opinion shall be set forth in the record." N.Y. Penal Law § 70.10(2). The imposition of that enhanced sentence is then subject to two kinds of appellate review. First, an appellate court has the power, in the "interest[s] of justice," to reduce a Class A-I sentence within the Class A-I range, e.g., from 19 years to life to 15 years to life. See N.Y. Crim. Proc. Law § 470.20(6). Second, an imposition of a Class A-I sentence is subject to an "interest[s] of justice" review and will be "held erroneous as a matter of law, [if] the sentencing court acts arbitrarily or irrationally." People v. Rivera, 833 N.E.2d 194, 199 (N.Y. 2005). Were imposition of a Class A-I sentence under the PFO statute found by an appellate court to be "arbitrary[]" or "irrational[,]" the court must resentence the defendant or remand for resentencing to a "legally authorized lesser sentence," N.Y. Crim. Proc. Law § 470.20; see also People v. LaSalle, 734 N.E.2d 749, 750 (N.Y. 2000) (memorandum decision), usually as a second felony offender or second violent felony offender. See, e.g., People v.

Williams, 658 N.Y.S.2d 264, 265 (App. Div. 1997); see also People v. Greene, 871 N.Y.S.2d 323, 325 (App. Div. 2008) (citing Williams, 658 N.Y.S.2d at 265); People v. Truesdale, 845 N.Y.S.2d 363, 364-65 (App. Div. 2007); cf. People v. Wilsey, 753 N.Y.S.2d 232, 233 (App. Div. 2003); People v. Yale, 373 N.Y.S.2d 901, 904-06 (App. Div. 1975).

Because second felony offender status usually exposes a defendant to maximum sentences below the maximum (and often the minimum) of the Class A-I range, serious constitutional issues arise, as discussed infra, and our interpretation of the PFO statute is critical to the constitutional analysis. In the briefs submitted by state authorities, it was suggested that a finding of two felony convictions alone locks in the Class A-I range, with life as a maximum. We disagree. The history/character/criminal conduct findings, which are subject to appellate review, are necessary to lock in the Class A-I range and, if such findings do not justify a Class A-I sentence, require the sentencing court to sentence the defendant in a lesser range, usually as a second felony (or violent felony) offender.*fn11

The state authorities rely for their argument upon language in Rivera. We therefore quote the pertinent portion of that decision at length:

[D]efendants are eligible for persistent felony offender sentencing based solely on whether they had two prior felony convictions. Thus,... no further findings are required. This conclusion takes defendant's sentence outside the scope of the violations described in Apprendi and its progeny.

The [United States] Supreme Court has held that a judge (as opposed to a jury) may find the fact of a defendant's prior conviction without violating the Sixth Amendment....

After determining defendant's status as a persistent felony offender, the [court that sentenced Rivera] went on to consider other facts in weighing whether to impose the authorized persistent felony offender sentence.... If, based on all it heard, the [sentencing] court's view of the facts surrounding defendant's history and character were different, the court might well have exercised its discretion to impose a less severe sentence.

Nevertheless, the relevant question under the United States Constitution is not whether those facts were essential to the trial court's opinion ([N.Y. Crim. Proc. Law §] 400.20[1][b]), but whether there are any facts other than the predicate convictions that must be found to make recidivist sentencing possible (see Blakely, 542 U.S. at 302-303...). Our answer is no....


To reiterate our analysis..., a defendant adjudicated as a persistent felony offender has a statutory right to present evidence that might influence the court to exercise its discretion to hand down a sentence as if no recidivism finding existed, while the People retain the burden to show that the defendant deserves the higher sentence. Nevertheless, once a defendant is adjudged a persistent felony offender, a recidivism sentence cannot be held erroneous as a matter of law, unless the sentencing court acts arbitrarily or irrationally.

The court's opinion is, of course, subject to appellate review, as is any exercise of discretion. The Appellate Division, in its own discretion, may conclude that a persistent felony offender sentence is too harsh or otherwise improvident.... A determination of that kind, however, is based not on the law but as an exercise of the Appellate Division's discretion in the interest of justice as reserved uniquely to that Court ([N.Y. Crim. Proc. Law §] 470.20 [6]).*fn12

Rivera, 833 N.E.2d at 198-99.

While Rivera states that two prior convictions alone render a defendant "eligible for," or "subject to," a Class A-I sentence -- or make such a sentence "possible" -- it follows the language of the PFO statute in giving a sentencing court discretion to impose such a sentence but only if the court finds that "the history and character of the defendant and the nature and circumstances of [defendant's] criminal conduct indicate that extended incarceration and life-time supervision will best serve the public interest...." N.Y. Penal Law § 70.10; Rivera, 833 N.E.2d at 197-98. Rivera, therefore, confirms that, while a defendant with two or more felony convictions is, by virtue of that fact alone, "eligible for" and "subject to" a Class A-I sentence, a sentencing court may not impose a Class A-I sentence unless it has found that the history/character/criminal conduct factors justify that enhanced sentence. See Rivera, 833 N.E.2d at 198-99. As Rivera stated, these factors govern "whether to impose the authorized persistent offender sentence" or whether "to hand down a sentence as if no recidivism finding existed." Id. Further, Rivera cited as an example of the proper procedure People v. Williams, 658 N.Y.S.2d 264, a decision that found a Class A-I sentence to be "an improvident exercise of discretion" and ordered the resentencing of the defendant "as a second felony offender." Williams, 658 N.Y.S.2d at 265; see Rivera, 833 N.E.2d at 199 n.7.

Therefore, it is clear from the statute and from Rivera that, absent findings beyond the existence of two or more felony convictions, the Class A-I range may not be imposed, and a defendant must be sentenced within a lesser range, usually as a second felony offender. (Of course, the criminal history may in some cases be sufficient to support such findings.) It is also clear that a Class A-I sentence usually has a statutory maximum above the statutory maximum for second felony offenders. Compare N.Y. Penal Law §§ 70.04(3), 70.06(3), with id. § 70.00(2)(a).

The New York Court of Appeals has repeatedly rejected Sixth Amendment challenges to the sentencing scheme. See People v. Quinones, 906 N.E.2d 1033, 1034 (N.Y. 2009); Rivera, 833 N.E.2d at 195; People v. Rosen, 752 N.E.2d 844, 846 (N.Y. 2001). Before Blakely and Cunningham v. California, 127 S.Ct. 856 (2007), we twice held that Rosen did not unreasonably apply either Apprendi v. New Jersey, 530 U.S. 466 (2000), or the Supreme Court's later decision in Ring v. Arizona, 536 U.S. 584 (2002). See Brown v. Miller ("Brown II"), 451 F.3d 54, 56-57 (2d Cir. 2006) (addressing both Apprendi and Ring); Brown v. Greiner ("Brown I"), 409 F.3d 523, 526 (2d Cir. 2005) (addressing Apprendi). But, as discussed infra, neither Brown decision addresses the effect of the Supreme Court's more recent decisions in Blakely and Cunningham.

b) Prior State Court and Federal Proceedings Concerning the Petitions

1) James Besser

Besser was convicted, following a jury trial, of one count of enterprise corruption, a Class B felony, in violation of New York Penal Law § 460.20. The jury found that he had committed three predicate criminal acts with the intent to participate in the affairs of the Colombo Organized Crime Family.

New York moved to have Besser sentenced as a Class A-I offender pursuant to the PFO statute. Counsel for Besser registered objections to, inter alia, substantial portions of the state's statement of alleged facts regarding his history and character and its supporting exhibits, which included court and police records.

The court found the predicate felony convictions qualified Besser for sentencing pursuant to the PFO statute. The judge then reviewed the evidence submitted by the state that included information relating to Besser's uncharged murder attempts and to a brutal beating for which charges were then pending. It concluded that Besser's "history and character warrant[ed] a sentence of extended incarceration and lifetime supervision...." Besser received a sentence under the PFO statute of 15 years to life imprisonment. Had Besser been sentenced as a second felony ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.