Stewart v. Scully

• Decision Date: 01 February 1991
• Docket Number: D,No. 1556,1556
• Parties: Traver STEWART, Petitioner-Appellant, v. Charles SCULLY, Superintendent of Green Haven Correctional Facility; Robert Abrams, Attorney General of the State of New York; and Charles J. Hynes, District Attorney of Kings County, Respondents-Appellees. ocket 89-2429.
• Court: U.S. Court of Appeals — Second Circuit

Page 58

925 F.2d 58

Traver STEWART, Petitioner-Appellant, v. Charles SCULLY, Superintendent of Green Haven Correctional Facility; Robert Abrams, Attorney General of the State of New York; and Charles J. Hynes, District Attorney of Kings County, Respondents-Appellees.

No. 1556, Docket 89-2429.

United States Court of Appeals Second Circuit.

Argued July 16, 1990.

Decided Feb. 1, 1991.

Michael Young, New York City, for petitioner-appellant.

Randa D. Maher, Asst. Dist. Atty., Kings County, Brooklyn, N.Y. (Charles J. Hynes, Dist. Atty., Jay M. Cohen, Michael Gore, Asst. Dist. Atty., Kings County, Brooklyn, N.Y., of counsel), for respondents-appellees.

Before WINTER, MAHONEY, and WALKER, Circuit Judges.

MAHONEY, Circuit Judge:

This appeal is taken from the denial of a petition for a writ of habeas corpus by the United States District Court for the Eastern District of New York, Mark A. Costantino, Judge. The question presented is whether a New York State prisoner who has served a substantial portion of an indeterminate sentence of ten to twenty years may be resentenced to a term of eight to twenty-four years upon his motion to correct the unlawful relationship (under New York law) between the maximum and minimum terms of his sentence. Under the circumstances here presented, we conclude that such an increase in the prisoner's maximum term disturbs his legitimate expectation in the finality of his sentence, thus violating the protection against multiple punishments guaranteed by the double jeopardy clause.

We accordingly reverse and remand with instructions to grant the writ of habeas corpus unless, within ninety days, petitioner-appellant is resentenced so that his maximum period of imprisonment does not exceed twenty years.

Background

On June 24, 1983, petitioner-appellant Traver Stewart pleaded guilty before Justice Thomas R. Sullivan of Kings County Supreme Court to one count of attempted murder in the second degree. During his plea allocution, Stewart admitted that on September 12, 1982, during the course of a robbery of an acquaintance named Janice Bryant, he had fired a shotgun at her head or neck while she lay wounded from prior bullet wounds inflicted upon her by an accomplice of Stewart. The victim somehow survived.

Attempted murder in the second degree is a class B violent felony calling for an indeterminate prison term with a maximum of twenty-five years. See N.Y. Penal Law Sec. 70.02(1)(a), (2)(a), and 3(a) (McKinney 1987 & Supp.1991); see also id. Sec. 70.00(1)-(3). The minimum period of imprisonment is specified by id. Sec. 70.02(4), see id. Sec. 70.00(3)(b), as follows:

The minimum period of imprisonment under an indeterminate sentence for a violent felony offense must be fixed by the court at one-third of the maximum term imposed and must be specified in the sentence; provided, however, that the court may impose a minimum term which is between one-third the maximum and one-half the maximum term imposed when the sentence is for a conviction of a class B armed felony offense.

Id. Sec. 70.02(4) (emphasis added). "Armed felony" is in turn defined by N.Y.Crim.Proc.Law Sec. 1.20(41) (McKinney 1981) in pertinent part to mean "any violent felony offense defined in section 70.02 of the penal law that includes as an element ... possession, being armed with or causing serious physical injury by means of a deadly weapon" (emphasis added).

A plea agreement, expressly recognized by Justice Sullivan prior to accepting Stewart's plea, provided that Stewart's sentence would be an indeterminate term the minimum range of which would be eight to sixteen years, and the maximum range of which would be ten to twenty years. Opting for the maximum sentence permitted under the plea agreement, Justice Sullivan sentenced Stewart to a term of ten to twenty years on July 25, 1983.

While serving his term, Stewart discovered that he had been illegally sentenced to a minimum term (ten years) that was one-half of his maximum term (twenty years). Such a sentence could be imposed pursuant to N.Y. Penal Law Sec. 70.02(4) (McKinney 1987) only if Stewart had been convicted of "a class B armed felony offense" (emphasis added). However, "[t]he crime of attempted murder in the second degree is a class B violent felony offense (Penal Law Sec. 70.02[a] but it is not an armed offense (CPL 1.20)." People v. Frawley, 117 A.D.2d 613, 615, 497 N.Y.S.2d 955, 957 (2d Dep't) (per curiam), appeal denied, 67 N.Y.2d 883, 501 N.Y.S.2d 1034, 492 N.E.2d 1241 (1986). ¹ This is apparently the case because N.Y.Crim.Proc.Law Sec. 1.20(41) (McKinney 1981) specifies that the requisite possession, use, or display of a deadly weapon must be "include[d] as an element" of a violent felony offense to qualify that offense as an "armed felony." The statutory definition of attempted murder in the second degree does not include such an element. See N.Y.Penal Law Sec. 125.25 (McKinney 1987 & Supp.1991). Thus, even though Stewart in fact committed the violent felony of attempted murder in the second degree by firing a deadly weapon at Janice Bryant, he was not convicted of a "class B armed felony offense" within the meaning of N.Y.Penal Law Sec. 70.02(4) (McKinney 1987).

Accordingly, in February 1986 Stewart filed a pro se motion pursuant to N.Y.Crim.Proc.Law Sec. 440.20(1) (McKinney 1983) to set aside his sentence on the ground that the relationship between its maximum and minimum terms was unauthorized. Specifically, Stewart "request[ed] that the minimum term of imprisonment permissible by statute be imposed at any scheduled resentencing proceeding." Justice Sullivan granted the motion and ordered that Stewart be produced for resentencing on June 25, 1986.

At the resentencing hearing, Justice Sullivan observed that: "All of us, apparently, [Stewart's] lawyer, the District Attorney and the Court, failed to realize the fact that the minimum had to be one third not fifty percent of the maximum sentence because of the fact that this was not an armed violent felony." Justice Sullivan also specifically recounted that Stewart entered his plea "with the understanding that the range of [his] sentence would be not less than eight, nor more than twenty years." Nevertheless, the court resentenced Stewart to a term of eight to twenty-four years. Stewart's appeal from this new sentence was consolidated with the direct appeal from his conviction, and both were affirmed by the Appellate Division, Second Department. See People v. Stewart, 144 A.D.2d 601, 534 N.Y.S.2d 439 (2d Dep't 1988) (per curiam), appeal denied, 73 N.Y.2d 896, 538 N.Y.S.2d 809, 535 N.E.2d 1349 (1989).

In affirming, the Appellate Division addressed the issue presented here as follows:

Nor do we find that the sentence of 8 to 24 years' imprisonment which was imposed after a sentence of 10 to 20 years' imprisonment was vacated violated the terms of the plea agreement. During the change of plea proceedings the court promised to impose a minimum sentence of 8 to 16 years and a maximum sentence of 10 to 20 years. However, the promised sentences could not legally be imposed because the defendant was neither a second felony offender when sentenced nor was the crime of attempted murder in the second degree an armed felony offense (CPL 1.20; see, People v. Newton, 138 A.D.2d 415, 525 N.Y.S.2d 699). If a court is unable to impose the promised sentence, the defendant must be offered the opportunity to withdraw his plea and proceed to trial (see, People v. Pascal, 103 A.D.2d 757, 477 N.Y.S.2d 229; People v. Wheeler, 91 A.D.2d 647, 456 N.Y.S.2d 832). The defendant did not avail himself of the opportunity to withdraw his plea, and, therefore, may not now complain that his plea bargain was violated. The court imposed less than the original minimum term of imprisonment. Indeed, the defendant was benefited by the reduced minimum term because he became eligible for parole at an earlier date (Penal Law Sec. 70.40. The longer maximum term was required for the sentence to be within legal parameters. (Penal Law Sec. 70.02[a]; see, People v. Garcia, 121 A.D.2d 465, 466, 503 N.Y.S.2d 151, affd., 69 N.Y.2d 903, 516 N.Y.S.2d 194, 508 N.E.2d 929; People v. Gillette, 33 A.D.2d 587, 304 N.Y.S.2d 296; cf., People v. Miller, 65 N.Y.2d 502, 493 N.Y.S.2d 96, 482 N.E.2d 892; People v. Williams, 34 N.Y.2d 657, 355 N.Y.S.2d 578, 311 N.E.2d 650).

144 A.D.2d at 602, 534 N.Y.S.2d at 440.

Stewart thereafter petitioned pursuant to 28 U.S.C. Sec. 2254 (1988) for a writ of habeas corpus. The district court denied the petition, stating:

What the sentencing court did in imposing a longer maximum term with a reduced minimum term does not violate constitutional principles nor does it run afoul of the mandated presumption of vindictiveness in North Carolina v. Pearce, [395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969) ]. See People v. Garcia, 121 A.D.2d 465, 503 N.Y.S.2d 151 (2d Dep't 1986) aff'd., 69 N.Y.2d 903, 516 N.Y.S.2d 194, 508 N.E.2d 929 (1987). A sentencing judge has the latitude to correct an illegal sentence. The specific reasons for the correction were made known to all parties. The judge acted without vindictiveness and solely in the interest of justice.

The district court subsequently issued a certificate of probable cause. This appeal followed.

Discussion

Stewart contends on appeal that his second sentence, which included an increase in his maximum term of imprisonment from twenty to twenty-four years, violated his constitutional rights (1) not to be subjected to a second, more onerous punishment, after his original sentence had been finally imposed and he had begun to serve it; (2) not to be subjected to a more severe punishment than he had been assured in return for his guilty plea; and (3) not to be punished for having exercised his legal right to challenge a defect in his original sentence. Respondents-appellees dispute these contentions, and additionally maintain that we should not reach them because (a) they are...