State Persistent Felon Law Held Invalid by U.S. Court -
Mixed Federal Rulings Puts Statute in Play

by Mark Hamblett,

August 29, 2007

A second federal judge has found New York state's persistent felony offender statute unconstitutional because it allows judges to find facts that can lead to a sentence beyond the statutory maximum.

Southern District Judge John Koeltl found that N.Y. Penal Law §70.10 violated the Sixth Amendment right to a jury trial because, under the rapidly evolving case law of the U.S. Supreme Court, a jury has to find the facts that the state law leaves to the judge.

Judge Koeltl granted a petition for a writ of habeas corpus to inmate William Washington in Washington v. Poole, 06 Civ. 2415. The decision comes five months after Eastern District Judge John Gleeson made a similar ruling in a habeas case (NYLJ, March 28, 2007) and just one month after Southern District Judge Robert Sweet went the other way and upheld the law.

These three decisions will now join a fourth that is pending in the U.S. Court of Appeals for the Second Circuit, Phillips v. Artuz (WL 1867386).

"The constitutionality of these statutes is obviously still in play," said Jonathan Kirshbaum of The Center for Appellate Litigation, who represented Mr. Washington.

Mr. Washington, who had tried to steal an elderly man's wallet, was convicted in state Supreme Court in October 2002 of fourth-degree grand larceny, a nonviolent, class E felony that calls for a sentencing range of 2 to 4 years.

The prosecution requested a sentence enhancement under §70.10. After holding a hearing, the judge found Mr. Washington's conduct merited extended incarceration and lifetime supervision.

The judge relied on the defendant's extensive prior record - 12 misdemeanor and three felony convictions in New York alone, plus 57 arrests for "every crime imaginable" - the fact that he committed the same kinds of theft crimes at the same location, and the court's conclusion that he would continue to steal "as long as he was physically able."

Mr. Washington was sentenced to 20 years to life, a sentence that was later reduced to 15 years to life.

He argued in his habeas petition that his sentence was unconstitutional under a line of cases that began with Apprendi v. New Jersey, 530 U.S. 466 (2000), and Ring v. Arizona, 536 U.S. 584 (2002).

Apprendi held that "[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt."

The New York Court of Appeals upheld the state's persistent felony offender statute in People v. Rosen, 752 N.E.2d 844 (N.Y. 2001), holding that it did not violate Apprendi.

By 2005, when the Appellate Division, First Department, affirmed Mr. Washington's conviction, however, the U.S. Supreme Court had decided Blakely v. Washington, 542 U.S. 296 (2004), which found that additional fact-finding by a judge required to impose an enhanced sentence was unconstitutional, as well as United States v. Booker, 543 U.S. 220 (2005), which rendered the U.S. Sentencing Guidelines advisory rather than mandatory.

Judge Koeltl described Booker as eliminating "the requirement that a judge rather than a jury find the facts required to trigger Guidelines ranges within broader maxima and minima that were specified by statute."

When New York's highest court revisited its Rosen ruling in 2005, it found the persistent felony offender statute still passed constitutional muster.

In People v. Rivera, 833 N.E. 2d 194 (N.Y. 2005), the Court of Appeals said, "Under our interpretation of the relevant statutes, defendants are eligible for persistent felony offender sentencing based solely on whether they had two prior felony convictions. Thus, as we held in Rosen, no further findings are required."

'Not Immune from Review'

But Judge Koeltl wrote that "the highest state court's determination whether a statute (as construed) complies with the federal constitution is not immune from review; this court examines the state court's view of federal constitutional law through the deferential lens provided by AEDPA [Antiterrorism and Effective Death Penalty Act of 1996]."

He also noted that the U.S. Court of Appeals for the Second Circuit in Brown v. Greiner, 409 F.3d 523 (2005), and Brown v. Miller, 451 F.3d 54 (2006), found that "New York's persistent felony offender statute was neither contrary to nor an unreasonable application of clearly established federal law as it existed after the Ring case was decided, but they did not address whether Blakely or Booker further clarified federal law in a way that would change this conclusion."

And neither Brown I nor Brown II, he said, considered the "gloss" given by the Court of Appeals decision in Rivera.

But in their earlier rulings, Judge Gleeson and Judge Sweet had.

Judge Gleeson found in Portalatin v. Graham, 478 F.Supp.2d 385 (2007), that Rivera failed to remove the judicial fact-finding and was contrary to clearly established law and an "unreasonable application of the Apprendi rule" in light of Blakely and Booker.

Aggravating Facts

Judge Sweet went the other way when he denied habeas relief in Morris v. Artus, 06 Civ. 4095, 2007 WL 2200699 (July 30, 2007).

He said Rivera took the statute "out of the zone of the Sixth Amendment because once the defendant meets the definition of a persistent felony offender, the prescribed statutory maximum for Apprendi purposes becomes life imprisonment."

Judge Koeltl, however, said the statutory scheme calls for "generalized finding of aggravating facts and circumstances that the New York persistent felony offender law requires the judge, rather than a jury, to perform before imposing an enhanced sentence."

Even after Rivera, Judge Koeltl said, a court must do two things: first find a defendant has been convicted of a felony with two felonies already on his record and then "must find that the sentencing court is of the opinion that the history and character and the nature and circumstance of his criminal conduct indicate that extended incarceration and life-time supervision will best serve the public interest."

In Mr. Washington's case, he said, "the sentencing court would have been forbidden under the Penal Law to impose a sentence in excess of four years unless the court found both the two prior convictions and the findings with respect to the defendant and his criminal conduct."

The latter finding, Judge Koeltl said, "is precisely what the Supreme Court has determined the sentencing court cannot make in the absence of a jury finding or an admission by the defendant."

Assistant Attorney General Malanda Chanda defended the statute for the state, which declined to comment on the ruling.