People v. Maracle
| Decision Date | 27 June 2012 |
| Citation | 973 N.E.2d 1272,19 N.Y.3d 925,950 N.Y.S.2d 498,2012 N.Y. Slip Op. 05121 |
| Parties | The PEOPLE of the State of New York, Respondent, v. Amber MARACLE, Appellant. (Appeal No. 1.). The People of the State of New York, Respondent, v. Amber Maracle, Appellant. (Appeal No. 2.). |
| Court | New York Court of Appeals Court of Appeals |
OPINION TEXT STARTS HERE
Lipsitz Green Scime Cambria, LLP, Buffalo (Timothy P. Murphy of counsel), for appellant in the first and second above-entitled actions.
Frank A. Sedita, III, District Attorney, Buffalo (Matthew B. Powers and Donna A. Milling of counsel), for respondent in the first and second above-entitled actions.
The orders of the Appellate Division should be reversed, and the matter remitted to that Court for further proceedings consistent with this memorandum.
Defendant, a bookkeeper/receptionist for a fence installation business, was indicted on one count of grand larceny in the second degree (Penal Law § 155.40[1] ) and four counts of forgery in the second degree (Penal Law § 170.10[1] ) for stealing money from her employer. She was assigned counsel at her arraignment and entered a plea of not guilty to the charges. On April 20, 2009, a month after her arraignment, defendant, unemployed and pregnant (and mother of three), appeared and, upon counsel's advice, pleaded guilty to the entire indictment.
The court, prior to any presentence investigation, advised defendant that should she come up with one half of the restitution owed—$23,000—by the time of sentencing, it would sentence her to five years' probation during which time she would be required to pay the remaining balance. She was further advised that if she failed to come up with the initial $23,000, there would be no promise as to her sentence but she wouldn't be able to withdraw her plea. The court advised defendant that, by pleading guilty, she was “voluntarily waiving [her] right to appeal [her] conviction in this case” (emphasis supplied). The court scheduled sentencing for September 25, 2009.
In the interim, the probation department interviewed defendant and recommended, based upon its investigation, a period of probation rather than incarceration. In September 2009, defendant appeared at sentencing without having made any restitution payments. Assigned counsel stated that defendant “knows ... she's going to prison ... [and] understands that the Court's commitment was contingent, that the contingency was not met, and that the only alternative is to put her in prison.” But at the earlier plea hearing the court had not stated that prison for defendant was a certainty if she failed to make any payments. Rather, defendant was simply told that if she “fail[ed] to comply with any of these conditions, especially the condition of paying one half restitution by the sentence date, that there will be no promise as to your sentence and you will not be able to withdraw your plea ” (emphasis supplied). Thus, the sentencing court still had the option of imposing a sentence of probation, as recommended in the presentence investigation, with a restitution order. Instead, it (mistakenly) sentenced defendant to the maximum terms of 5 to 15 years for four counts of grand larceny in the second degree, and neglected to sentence her at all relative to the four counts of forgery. At the conclusion of sentencing, the court advised this defendant, who had presumably waived her right to appeal, that she had 30 days within which to file a notice of appeal.
Upon receiving notice from the Department of Corrections and Community Supervision that defendant had been sentenced improperly, the sentencing court recalled defendant from prison and sentenced defendant to the maximum term on each and every count of the indictment—5 to 15 years' imprisonment on the sole grand larceny count and 2 1/3 to 7 years' imprisonment on the second degree forgery counts. The court, again, advised defendant that she had 30 days within which to file a notice of appeal.
In Appeal No. 1, the Appellate Division dismissed the appeal to that Court insofar as it pertained to sentencing on the conviction of four counts of forgery in the second degree and otherwise affirmed the judgment of conviction and sentence. In Appeal No. 2, the Appellate Division affirmed defendant's resentencing on the forgery counts. The Appellate Division concluded that defendant's waiver of her right to appeal encompassed her challenge to the severity of the sentence (85 A.D.3d 1652, 924 N.Y.S.2d 699 [4th Dept.2011]; 85 A.D.3d 1654, 924 N.Y.S.2d 869 [4th Dept.2011] ). A Judge of this Court granted leave from both orders of the Appellate Division.
The plea colloquy fails to establish that defendant knowingly and intelligently waived her right to appeal the severity of her sentence, and, as a result, the matter should be remitted to the Appellate Division so that it may, should it so choose, exercise its interest of justice jurisdiction ( seeCPL 470.15[6][b] ).
While it is evident that defendant waived her right to appeal her conviction, there is no indication in the record that defendant waived the right to appeal the harshness of her sentence. She seeks only the right to appeal the harshness of the sentence that went from one of probation to a maximum sentence of imprisonment on each count of the indictment because she failed to comply with a condition set by the court.
The CPL makes clear the distinction between a conviction and a sentence. A “conviction” is defined as “the entry of a plea of guilty to, or a verdict of guilty upon, an accusatory instrument other than a felony complaint, or to one or more counts of such instrument” (CPL 1.20[13] ). “Sentence” is defined as “the imposition and entry of sentence upon a conviction” (CPL 1.20 [14] ). Both the “conviction” and the “sentence” comprise the “judgment,” which is “completed by the imposition and entry of the sentence” (CPL 1.20 [15] ). As such, although defendant waived her right to appeal the conviction, she never expressly waived her right to appeal the sentence.
Unlike the situation in People v. Hidalgo, 91 N.Y.2d 733, 737, 675 N.Y.S.2d 327, 698 N.E.2d 46 (1998), it is not clear that “the trial court engaged in a full and adequate colloquy, and [that] defendant expressly waived her right to appeal without limitation.” It is evident from the colloquy that the court, at most, apprised defendant that if she did not pay one half of the restitution by sentencing, there would be no promise as to her sentence and that she would not be able to withdraw her plea—something she is not seeking. There was no mention of defendant not being able to appeal the harshness of her sentence.
The most critical error that occurred here, and the one that distinguishes this case from Hidalgo, is that during the plea colloquy in this case, the court did not explain that the appeal waiver would bar defendant from not only challenging the sentence she hoped to receive, i.e., five years' probation, but also any sentence that the court would impose in the event defendant failed to meet the court's condition of paying $23,000 by the date of sentencing. It cannot be said that, at the time of her plea colloquy five months before the imposition of sentence, defendant knowingly and intelligently waived her right to appeal a sentence that, at that point, had not yet been declared by the court. In that respect, this case is more analogous to our holding in People v. Johnson, 14 N.Y.3d 483, 903 N.Y.S.2d 299, 929 N.E.2d 361 (2010).
In Johnson, the court promised the defendant that he would be adjudicated a youthful offender in exchange for his guilty plea (and waiver of his right to appeal), but, after reviewing the presentence report, reconsidered that promise at sentencing, claiming that youthful offender status would have been “inappropriate” given the nature of the offense ( id. at 485, 903 N.Y.S.2d 299, 929 N.E.2d 361). The court denied defendant youthful offender treatment.* We held that because the trial court failed to apprise the defendant that it was reserving its approval of the plea agreement until it reviewed the presentencing report, the defendant could not have knowingly and intelligently waived his right to appeal the court's determination to sentence the defendant as an adult (thereby subjecting defendant to a greater prison sentence). Thus, when the court announced that it was imposing a greater sentence than the defendant had expected, “it was incumbent on the court to elicit defendant's continuing consent to waive his right to appeal,” although it was unnecessary for the court “to reallocute defendant on his decision to plead guilty” ( Johnson, 14 N.Y.3d at 487, 903 N.Y.S.2d 299, 929 N.E.2d 361).
Indeed, it was not necessary here (as it was in Johnson ) to offer plea withdrawal at all. She had conceded her guilt at the plea hearing, the court apprised her that she would not be able to withdraw her plea, and the record supports a conclusion that she knowingly and intelligently pleaded guilty to all counts of the indictment. Absent the knowing waiver of defendant's right to appeal her sentence, the Appellate Division was deprived of its right to review the harshness of that sentence and therefore, the matter is remitted to that Court for that purpose.
We reject defendant's ineffective assistance of counsel claim based on the record before us ( see People v. Baldi, 54 N.Y.2d 137, 147, 444 N.Y.S.2d 893, 429 N.E.2d 400 [1981] ). To the extent that defendant seeks to advance such a claim or to challenge the voluntariness of her plea on matters outside the record, she may do so “by affidavit in support of a CPL 440.10 motion” ( People v. Gravino, 14 N.Y.3d 546, 558, 902 N.Y.S.2d 851, 928 N.E.2d 1048 [2010] ).
I respectfully dissent because the majority's rationale conflicts with the rule established in People v. Hidalgo, 91 N.Y.2d 733, 675 N.Y.S.2d 327, 698 N.E.2d 46 (1998) and there is no compelling justification for eroding that...
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