Spence v. Superintendent, Docket No. 97-2945

CourtUnited States Courts of Appeals. United States Court of Appeals (2nd Circuit)
Writing for the CourtCARDAMONE
Citation219 F.3d 162
Decision Date01 August 1998
Docket NumberDocket No. 97-2945
Parties(2nd Cir. 2000) DONOVAN SPENCE, Petitioner-Appellant, v. SUPERINTENDENT, Great Meadow Correctional Facility, and COMMISSIONER, New York State Department of Correctional Services, Respondents-Appellees

Page 162

219 F.3d 162 (2nd Cir. 2000)
DONOVAN SPENCE, Petitioner-Appellant,
SUPERINTENDENT, Great Meadow Correctional Facility, and COMMISSIONER, New York State Department of Correctional Services, Respondents-Appellees.
Docket No. 97-2945
August Term, 1998
(Argued: February 8, 1999)
(Decided: July 18, 2000)

Petitioner Donovan Spence appeals from an order entered November 26, 1997 in the United States District Court for the Eastern District of New York (Raggi, J.) denying his petition for a writ of habeas corpus.

Reversed and remanded.

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MALVINA NATHANSON, New York, New York, for Petitioner-Appellant.

AMY APPELBAUM, Assistant District Attorney, Kings County, Brooklyn, New York (Charles J. Hynes, District Attorney, Roseann B. MacKechnie, Assistant District Attorney, Kings County, Brooklyn, New York, of counsel), for Respondents-Appellees.

Before: WINTER, Chief Judge, CARDAMONE, and PARKER, Circuit Judges.

CARDAMONE, Circuit Judge:

In September 1992 a New York Supreme Court Justice having defendant Donovan Spence before him on a robbery charge, offered the promise of youthful offender treatment to Spence on the condition that he not engage in any further misconduct or get rearrested. If Spence broke that condition, the judge warned, he would impose a sentence of eight and one-third to 25 years. He then deferred sentence until November 1992 to see if the youth could keep out of trouble. This appeal is about what occurred in the interval and the legal ramifications of those events.

Defendant was quickly rearrested and charged with another robbery, which it turns out he did not commit. But before that was determined, the heavy sentence he was warned about had already been imposed and is presently being served. It is time to correct what we perceive to be a miscarriage of justice, to grant the writ of habeas corpus and to release defendant from prison.

Donovan Spence (petitioner, defendant or appellant) appeals from a judgment entered on November 26, 1997 in the United States District Court for the Eastern District of New York (Raggi, J.), which denied his petition for a writ of habeas corpus, but at the same time found an issue that presented a serious legal question and issued a certificate of appealability. See Spence v. Superintendent, 987 F. Supp. 151 (E.D.N.Y. 1997). In her published opinion the district judge thoroughly analyzed the issues of exhaustion of state remedies, petitioner's Eighth Amendment challenge and two due process challenges to the state sentence imposed on him. The first due process challenge, although denied, was found to present a serious legal question; the Eighth Amendment issue was ruled to be without merit; and petitioner's third claim, the other due process challenge, the focus of this opinion, was ruled procedurally barred. From this order of denial petitioner appeals.


Eight years ago, on May 29, 1992, Spence and two others robbed a Brooklyn grocery store, taking money from the cash register. Spence pled guilty on September 30, 1992 to multiple robbery counts arising from this single incident. At the plea proceeding New York State Supreme

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Court Justice Michael Feinberg explained to him that if he successfully complied with a one-year period of supervision, he would be put on probation and probably be granted youthful offender treatment. The state trial court warned him that if he failed to abide by the conditions set at the acceptance of his plea, he would be sentenced to imprisonment for a term of eight and one-third to 25 years.

Several weeks after the plea was entered, Spence was again arrested for robbery and brought back to state court before the same judge. On November 16, 1992 defense counsel requested an adjournment of sentencing on the robbery of the grocery store--the one that was the subject of the September plea--so that he could examine alibi witnesses on the new robbery charge. An adjournment was granted until December 1, 1992 at which time defendant, with different counsel, moved to withdraw his September guilty plea and asked for an adjournment of sentence on the original robbery charge, telling the court that he had five alibi witnesses: two City Probation employees, a registered nurse, a student, and an employee of the New York Telephone Company, all of whom would testify that defendant was at home, not at the location where the robbery occurred. Trial counsel also noted that the officer responsible for Spence's rearrest knew the terms of the judge's warning and knew that a new arrest would result in an enhanced sentence. The state trial judge denied the motion, and imposed the eight and one-third to 25 year sentence he had warned defendant about. Later, when the new robbery charges went to trial, Spence was acquitted.

In February 1993 the New York Court of Appeals decided People v. Outley, 80 NY2d 702 (1993). In that case, New York's highest court held it would violate due process principles to make it a condition of probation that defendant not be arrested, where such arrest leads to an enhanced sentence, without affording defendant an opportunity to demonstrate that the arrest is without foundation. See id. at 713.

As a result of that decision, Justice Feinberg held an Outley hearing in April 1993 on Spence's new robbery arrest. At its close, he ruled that Spence had clearly violated the "no arrest" condition by being arrested on October 20, 1992, and that the arrest had a legitimate basis, being supported by probable cause. The court ruled the original sentence of eight and one-third to 25 years would stand as imposed.

Defendants appealed to the state appellate division contending that the hearing held to determine if he had violated the no arrest provision of the plea agreement violated due process and that the enhanced sentence constituted cruel and unusual punishment. Both claims were rejected, see People v. Spence, 203 AD2d 497 (2d Dep't 1994), and leave to appeal to the New York Court of Appeals was denied, see People v. Spence, 84 NY2d 833 (1994). Following these appeals in state court, petitioner filed the instant petition on August 11, 1995 in federal district court. In addition to the two federal claims raised on direct appeal, petitioner added a third claim that his sentence violated due process because a condition of the plea agreement was that petitioner not commit a new crime, not that he not be arrested. The petition was denied in November 1997. The instant appeal to this Court taken on December 8, 1997 was heard on February 8, 1999.

The panel that heard the appeal requested additional briefing that was received in late December 1999. We asked the parties to brief the following issues:

(1) whether it violates due process to sentence Spence for being rearrested when his plea agreement may reasonably be interpreted to require the commission of a future criminal act and not merely rearrest;

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(2) whether petitioner exhausted his state law remedies as to this question;

(3) whether petitioner has procedurally defaulted on this question on direct appeal; and

(4) whether any ground or exception nonetheless applies to permit its consideration on habeas review.

This request was prompted by the colloquy in New York State Supreme Court, Kings County, during the plea proceeding before Justice Feinberg on September 30, 1992. At that time, the sentencing judge put defendant on probation to be supervised by Court Employment, the probation department and by his mother, who was present in the courtroom that day, with the promise that if Spence had "no violations" and is "not rearrested" and did not "get into any other trouble," that he (the judge) would look "very favorably" at sentencing on granting Spence youthful offender status and giving him five years probation. But, Justice Feinberg continued, "[i]f you get rearrested, that's a voluntary choice you made by going out and doing something which you should not have been doing. It rests solely with you. If you get rearrested ... I'm going to sentence you up to the maximum time allowed by law--again, its eight and a third to 25."

We think the court's instruction to Spence was ambiguous, and susceptible to two meanings: Spence would violate the terms of his probation simply by being rearrested; or, Spence would violate probation only if he committed some wrongful act within his control. That is to say, the plea agreement could be understood either as a "no arrest" or as a "no misconduct" agreement.

The district court and state courts that considered this matter concluded it was a no arrest agreement. We think it was a no misconduct agreement because we do not believe a youthful defendant like Spence would understand that a "no arrest" bargain as Justice Feinberg explained it to him included an arrest in circumstances where he had committed absolutely no wrongful act, and that such arrest unilaterally initiated by the police could certainly not be said to be conduct resting solely with defendant. Our reasons are set out in the ensuing discussion.


I The No Misconduct Agreement

A. Defendant's Right to Performance of the Agreement

We first review the merits of Spence's claim because they inform our disposition with respect to the threshold question whether his petition, as the district court held, is procedurally barred. Because a defendant pleading guilty pursuant to a plea agreement waives a number of fundamental constitutional rights, see Boykin v. Alabama, 395 U.S. 238, 243 (1969), the circumstances surrounding the plea agreement must comport with due process to ensure defendant's understanding of its consequences. See Johnson v. Zerbst, 304 U.S. 458, 464 (1938); Innes v. Dalsheim, 864 F.2d 974, 979 (2d Cir. 1988). The notion of fundamental fairness embodied in due process...

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