People v. Lingle

949 N.E.2d 952, 16 N.Y.3d 621, 926 N.Y.S.2d 4

Opinions

OPINION OF THE COURT

Read, J.

In People v Sparber (10 NY3d 457 [2008]), we held that defendants subject to postrelease supervision (PRS) have a statutory right under CPL 380.20 and 380.40 for a judge to pronounce the PRS sentence in their presence in open court, and that the remedy when a judge neglects to do this is resentencing to correct the error. Although the facts in these six cases vary, they share two essential features: the judges who sentenced defendants did not pronounce PRS (i.e., they committed a Sparber error), and defendants were resentenced to PRS before completion of their originally-imposed sentences of imprisonment. Specifically, defendants John Lingle, John Parisi, Dominique Murrell, John Prendergast and Manuel Rodriguez were still incarcerated when resentenced; defendant Darryl Shadow was conditionally released from prison after having served six sevenths of his originally-imposed sentence.

Defendants Lingle, Parisi, Murrell, Prendergast, Rodriguez and Shadow seek upon resentencing to be relieved of their statutory obligation to serve PRS on grounds of double jeopardy and/or due process. Alternatively, defendants Lingle, Prendergast and Rodriguez maintain that resentencing courts have discretion to reconsider the propriety of their sentences as a whole (i.e., both the incarceratory and the PRS components). Defendants Lingle and Rodriguez contend, in addition, that the Appellate Division possesses plenary power to modify their sentences after resentencing in the interest of justice. We reject all these arguments, and thus affirm in Lingle, Parisi, Murrell, Prendergast and Rodriguez, and reverse in People v Sharlow.

Double Jeopardy

Defendants contend that because they served “significant” or “substantial” portions of their originally-imposed sentences before resentencing, they acquired a legitimate expectation of finality, and, as a result, their cases are not comparable to those where the Double Jeopardy Clause did not bar a greater sentence (see e.g. Bozza v United States, 330 US 160 [1947] [defendant resentenced five hours after original sentence imposed]; Williams v Travis, 143 F3d 98 [2d Cir 1998] [one week]; People v Williams, 87 NY2d 1014 [1996] [one week]). In order to avoid a double jeopardy violation, they continue, resentencing courts may only impose PRS by reducing the incarceratory portion of their sentences such that the incarceratory and PRS components of the resentences, when added together, do not exceed the length of their originally-imposed sentences of imprisonment.

Our decision in People v Williams (14 NY3d 198 [2010], cert denied 562 US —, 131 S Ct 125 [2010]) defeats defendants’ double jeopardy argument. We pointed out in Williams that defendants are “presumed to be aware that a determinate prison sentence without a term of PRS is illegal” and subject to correction, and therefore “cannot claim a legitimate expectation that the originally-imposed, improper sentence is final for all purposes” (id. at 217). Nonetheless, “there must be a temporal limitation on a court’s ability to resentence a defendant . . . since criminal courts do not have perpetual jurisdiction over all persons who were once sentenced for criminal acts” (id.). Citing federal precedent that we found to be persuasive, we held in Williams that an expectation of finality arises for purposes of double jeopardy when a defendant completes the lawful portion of an illegal sentence and exhausts any appeal taken (id. [“(T)here is a legitimate expectation of finality once the initial sentence has been served and the direct appeal has been completed (or the time to appeal has expired)”]; see also id. at 227 [Pigott, J, dissenting] [characterizing majority’s “holding” as requiring two conditions for a legitimate expectation of finality to “attach”: “the completion of the initial sentence and the completion of the direct appeal or time to appeal” (internal quotation marks omitted)]). The defendants in Williams and the cases decided along with it had all completed their sentences (including any discharge on conditional release) before being resentenced. By contrast, the six defendants in these cases had not yet completed their originally-imposed sentences of imprisonment when they were resentenced to add PRS.¹

To counter Williams, defendants highlight the Second Circuit’s decision in Stewart v Scully (925 F2d 58 [2d Cir 1991]). Focusing on the “substantial portion” of the originally-imposed indeterminate sentence already served, the court in Stewart decided that the petitioner possessed a “legitimate expectation in the finality of his sentence, thus violating the protection against multiple punishments guaranteed by the double jeopardy clause” (id. at 58). But Stewart pleaded guilty in exchange for a maximum sentencing exposure of 20 years. Upon subsequently learning that the minimum sentence had to be one third (as opposed to one half) the maximum, the sentencing court increased Stewart’s maximum sentence to 24 years. By contrast, these defendants were not caught unaware when a sentencing agreement was changed: defendants Lingle, Parisi, Murrell, Prendergast and Rodriguez were sentenced after trials; defendant Sharlow was sentenced, “as promised, to seven years” (dissenting op at 636 [emphasis added]).

Importantly, defendants’ suggested rule—that resentencing to PRS should be precluded when a “significant” or “substantial” portion of the originally-imposed sentence of imprisonment has been served—supplies no meaningful standard by which to measure a reasonable expectation of finality. Given the thousands of resentencings—past and future—brought about by Sparber errors, our rule in Williams, by contrast, promotes clarity, certainty and fairness.

Finally, defendants offer no principled basis for us to go beyond our recent decision in Williams and interpret the State Constitution’s Double Jeopardy Clause more broadly than its federal counterpart, particularly in light of our other recent decision in Matter of Suarez v Byrne (10 NY3d 523, 534 [2008]). True, the Legislature has enacted certain statutes affording broader double jeopardy protection than the Federal Constitution requires, but these laws have nothing to do with sentencing. Indeed, after we handed down Sparber the Legislature promptly adopted legislation to allow resentencing as many defendants as possible to sentences that include PRS (see L 2008, ch 141).

Due Process

Defendants also argue that substantive due process bars their resentencing to PRS. To support a due process claim, they rely principally on the decisions of the First and Fourth Circuits in Breest v Helgemoe (579 F2d 95 [1st Cir 1978]), United States v Lundien (769 F2d 981 [4th Cir 1985]) and DeWitt v Ventetoulo (6 F3d 32 [1st Cir 1993]). These decisions generally apply a multi-factor test to determine when a defendant’s expectation that his sentence will remain unchanged has “crystallized” such that resentencing would offend substantive due process (see Lundien, 769 F2d at 987). But subsequent decisions by the very same courts have largely abandoned the multi-factor test in favor of a “shocks the conscience” standard (see Gonzalez-Fuentes v Molina, 607 F3d 864, 882 [1st Cir 2010] [applying the “shocks the conscience” standard to evaluate substantive due process claims]; Espinoza v Sabol, 558 F3d 83, 87 [1st Cir 2009] [describing DeWitt as an “extreme case,” as the DeWitt court itself acknowledged (see 6 F3d at 36 [characterizing case as “the very rare exception to the general rule that courts can, after sentence, revise sentences upward to correct errors”])]; Hawkins v Freeman, 195 F3d 732, 749 [4th Cir 1999] [holding that Lundien’s pronouncements on due process were merely dicta and that the court had failed to engage in the “rigorous historical inquiry” mandated in Washington v Glucksberg (521 US 702, 720-721 [1997])]).

The proper substantive due process analysis thus requires a determination, first, as to whether the right at issue is so deeply rooted in this Nation’s history and traditions as to be considered fundamental, and, if so, whether the government’s action is “so egregious, so outrageous, that it may fairly be said to shock the contemporary conscience” (Gonzalez-Fuentes, 607 F3d at 880 [citation omitted]). Negligence alone is insufficient to “shock the conscience,” and in successful due process challenges, there is generally an extreme lack of proportionality inspired by malice or sadism rather than carelessness or excess of zeal (id. at 881).

Even assuming a defendant possesses a fundamental right not to have an illegal sentence revised upward to correct an error, these defendants cannot establish that the government’s conduct shocks the conscience. The resentencings merely imposed statutorily-required sentences. The State was not acting out of malice or sadism, but out of a desire to see that legislatively determined mandatory sentences were actually served. And the State’s action was not subjectively or standardlessly directed at particular individuals; rather, it was aimed at an entire category of defendants whose sentences were improperly pronounced. In sum, judged by the “shock the conscience” standard, defendants cannot make out a substantive due process violation.

While defendants fare marginally better under the DeWitt standard, they still fall short. DeWitt calls for a court to consider multiple factors, including the length of time between the mistake and its attempted correction and whether the defendant contributed to the mistake; the reasonableness of the defendant’s intervening expectations; the prejudice resulting from the change; and the government’s diligence in seeking the change (6 F3d at 35).

In some of these cases, the lapse of time between the Sparber error and its correction at resentencing was several years; in no case did defendants contribute to the mistake. Still, defendants could not have developed a reasonable expectation in a prison sentence without PRS. PRS is statutorily mandated, and defendants are charged with knowledge of the law. They were represented by presumably competent counsel who should have informed them of their exposure to PRS. The Department of Correctional Services informs defendants of the PRS component of their sentences upon their entry into the correctional system (see e.g. Correction Law § 803 [6]). Significantly, defendants do not protest that they were actually unaware that PRS would be a component of their sentences.

In short, there is every reason to believe that defendants did, in fact, know that they were subject to PRS long before efforts to resentence them were undertaken. Because defendants are merely being required to serve a part of their sentences of which they were always cognizant, any prejudice resulting from resentencing is de minimis. Moreover, the government has acted diligently to correct Sparber errors. Finally, defendants suggest no reason for us to interpret substantive due process more broadly in these circumstances as a matter of state constitutional law.

Whether a Resentencing Court May Reconsider a Defendant’s Sentence at a Resentencing to Correct a Sparber Error

Defendants read Sparber to direct or empower judges to revisit the propriety of a defendant’s sentence as a whole—both the incarceratory and PRS components—when resentencing to correct a Sparber error. While there is, at least arguably, isolated language in Sparber which lends itself to this interpretation (principally, our single use of the word “vacate” in the body of the opinion), this is clearly not what we meant. If it had, in fact, been what we intended, we surely would have expressed an unambiguous holding to this effect rather than risk creating a situation where thousands of Sparber resentencings might have to be repeated.

We start with the proposition that a Sparber error “amounts only to a procedural error, akin to a misstatement or clerical error, which the sentencing court [can] easily remedy” (Sparber, 10 NY3d at 472 [emphasis added]). In support of this statement, we cited People v DeValle (94 NY2d 870 [2000]), People v Wright (56 NY2d 613, 614 [1982]) and People v Minaya (54 NY2d 360 [1981]). We did not suggest in these cases that the sentencing judge was supposed to do anything at resentencing other than correct the discrete error prompting the resentencing in the first place (see also People v Yannicelli, 40 NY2d 598, 602 [1976] [it was error for the trial court to revisit the defendant’s entire sentence when a procedural mistake in imposing a fine was the sole defect in the original sentencing and thus “the only reason why resentencing was ordered”]; People v Harrington, 21 NY2d 61 [1967] [although the order, in form, was vacated by reason of a ministerial error, the reason for the remand was merely to correct this mistake and therefore the net sentence should not have been changed]).

In Sparber, the defendants urged us to fix the pronouncement mistake, the only harm they alleged, by striking PRS from their sentences. We rejected this proposed remedy, deciding instead to remit their cases to Supreme Court “for resentencing and the proper judicial pronouncement of the relevant PRS terms” (10 NY3d at 465 [emphasis added]). Accordingly, we declared that “[t]he sole remedy for a procedural error such as this is to vacate the sentence and remit for a resentencing hearing so that the trial judge can make the required pronouncement” (id. at 471 [emphasis added]). In the decretal paragraph itself, we directed that “the order of the Appellate Division should be modified by remitting to Supreme Court for a resentencing hearing that will include the proper pronouncement of the relevant PRS term (id. at 473 [emphasis added]).

By contrast, we have explained the required corrective action in far more general language when remitting for a resentencing requiring the exercise of discretion. For example, in People v Yancy (86 NY2d 239, 247 [1995]) the sentencing court mistakenly believed that the defendant was a predicate felon. Accordingly, in the decretal paragraph we modified the Appellate Division’s order by “vacating defendant’s sentence, and . . . remitting the case] to Supreme Court, New York County, for resentencing.” (Id.) Because the sentencing court in Yancy considered inappropriate factors in fashioning the sentence, resentencing logically entailed general, plenary proceedings. But in Sparber, the sentencing court merely failed to articulate properly the altogether appropriate sentence that it intended to impose. As a result, resentencing is limited to remedying this specific procedural error—i.e., to “mak[ing] the required pronouncement” (10 NY3d at 471). Put another way, resentencing to set right the flawed imposition of PRS at the original sentencing is not a plenary proceeding.

Whether the Appellate Division May Reduce a Defendant’s Sentence on Appeal from a Resentencing to Correct a Sparber

Error

Because a trial court lacks discretion to reconsider the incarceratory component of a defendant’s sentence at a resentencing to correct a Sparber error, the Appellate Division may not reduce the prison sentence on appeal in the interest of justice. The defendant’s right to appeal is limited to the correction of errors or the abuse of discretion at the resentencing proceeding (see CPL 470.15 [1]; 470.20). Since the resentencing court is not authorized to lower the prison sentence at a Sparber resentencing, appellate courts are likewise unauthorized to do this—i.e., the resentencing court’s failure to consider a lesser sentence was not an “error or defect” subject to reversal or modification (CPL 470.20).²

Accordingly, the order of the Appellate Division should be affirmed in each case addressed in this opinion except People v Sharlow, where the Appellate Division’s order should be reversed and the resentence imposed by Supreme Court reinstated.

Footnotes

1

. The dissent opines that once Sharlow was conditionally released, he was “entitle[d] ... to a ‘legitimate expectation’ that ... his sentence [was] final for all purposes” (dissenting op at 637). But someone released conditionally knows, almost by definition, that he has not yet paid his full debt to society, whereas someone whose sentence has expired can legitimately think of his punishment as in the past.

2

. The dissenting Judges are hard-pressed to explain why they would reverse in Rodriguez, but not in Lingle. Both Rodriguez and Lingle contend that the Appellate Division has the power to reduce their sentences in the interest of justice, and the dissenting Judges agree. Similarly, both Lingle and Prendergast take the position, also espoused by Rodriguez and endorsed by the dissenting Judges, that resentencing courts are authorized to reconsider the incarceratory portion of a defendant’s sentence at a Sparber resentencing.