JACK B. WEINSTEIN, Senior District Judge.
This motion-petition requires reevaluation of David Garcia's ("Garcia," "movant," "petitioner," "applicant," or "defendant") many unsuccessful pro se applications in State and federal courts over some twenty years seeking a ruling that his State sentence of 125 years imprisonment was unconstitutional. It now is apparent to this court that, based upon clear and convincing evidence, on the facts and law, his sentence was unconstitutionally vindictive. But, before that sentence can be set aside so a proper sentence can be imposed, this court must determine whether the petitioner has exhausted his State remedies under 28 U.S.C. § 2254 and has otherwise complied with that statute.
The case lies at the intersection of three questionable aspects of United States' correctional and penological jurisprudence: (1) the penalty for going to trial—a defendant often receives a harsher sentence for choosing to go to trial than he would have if he accepted a plea bargain, in effect forcing him to forgo trial; (2) the diminished force of the writ of habeas corpus because of procedural statutes, rules, and decisions that have been designed or interpreted by the courts to favor state respondents' defenses over individual defendants' complaints of constitutional violations; and (3) the lack of a right to counsel in criminal collateral attack proceedings that can lead to, and compound, difficulties in curing constitutional error.
A special injustice is presented by the instant case, when after some twenty years of pro se litigation by movant, petitioner's newly court appointed counsel is effectively raising a substantial claim to a constitutional sentencing violation. This memorandum addresses the constitutional issue now raised—vindictive sentencing. Courts' failures to fully examine relevant issues earlier is no excuse for persisting in error. "[I]t [is] the duty of every judge and every court to examine its own decisions, and the decisions of other courts without fear, and to revise them without reluctance." Baker v. Lorillard, 4 N.Y. 257, 261 (1850). This is a difficult case: persuasive arguments support a decision both for and against Garcia.
Garcia was convicted in State court after committing a string of robberies in Brooklyn. His guilt and the fairness of his convictions are not in question. That his crimes were serious is uncontestable. But, this court finds that petitioner's sentence to prison was vindictive as a matter of constitutional law; more than 100 years were added to his period of incarceration because he decided to go to trial rather than plead guilty.
There were apparently two plea offers, one of 15 to 30 years in prison by an Assistant District Attorney, and a second of a "flat" 20 years incarceration by the State trial judge. See Sept. 13, 2018 Hr'g Tr. 15:22-16:9. The 20 year offer by the State Court forms the basis of the current memorandum.
Petitioner's sentence of 125 years imprisonment after trial was grossly disproportionate to the sentence of 20 years incarceration he was offered by the State judge if he pled guilty to four separate robberies. The constitutional right to trial was clear: the added time for going to trial—105 years in prison—was impermissible. See U.S. Const. amends. VI (right to trial) & XIV (right to due process). In State court he was warned by "stand-by trial counsel" that his failure to plead guilty would result in his "surely never walk[ing] out of a prison again" because the judge would not accept "defiance." See infra Section II(A)(2).
A "vindictive sentence" is unconstitutional. The principle is that "[t]o punish a person because he has done what the law plainly allows him to do is a due process violation of the most basic sort." Bordenkircher v. Hayes, 434 U.S. 357, 363 (1978). The constitutional framework does not require a finding that the judge imposed the sentence with actual vindictive intent. But, the sentence inequalities must not give rise to an inference of vindictiveness based on circumstances that "shock[] the conscience." Rochin v. California, 342 U.S. 165, 172 (1952) (Frankfurter, J.).
The practice of imposing incarceratory sentences of terms of years that will expire decades after a defendant's death, in circumstances such as exist in the instant case, is assumed to be an inappropriate expression of judicial anger. The punishment is not for the crime alone, but in large part for going to trial.
Habeas corpus procedural rules have increasingly been interpreted by federal courts as favoring state respondents, leaving defendants who have meritorious substantive constitutional claims with no adequate procedural path to relief. Cf. United States v. Hoskins, 905 F.3d 97, 102-03 (2d Cir. 2018) (describing habeas review under 28 United States Code Section 2255 as "narrowly limited," requiring defendants to "hurdle [a] high bar."). As the late-Judge Stephen Reinhardt put it:
Stephen R. Reinhardt, The Demise of Habeas Corpus and the Rise of Qualified Immunity: The Court's Ever Increasing Limitations on the Development and Enforcement of Constitutional Rights and Some Particularly Unfortunate Consequences, 113 Mich. L. Rev. 1219, 1219 (2015).
Rules blocking enforcement of the Great Writ, some of which were created by the Antiterrorism and Effective Death Penalty Act ("AEDPA"), should not be employed to deprive people of constitutionally protected rights. Cf. U.S. Const. art. I, § 9, cl. 2 ("The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it." (emphasis added)).
Garcia unsuccessfully appealed his conviction in State court. His federal habeas petition was denied. He prosecuted dozens of other challenges to the sentence. Many pages are needed to touch upon the extensive procedural history of this litigation repeatedly denying relief. See Declaration of Respondent in Opposition to Fourth Rule 60(b) Motion to Vacate Order Denying Petition for Writ of Habeas Corpus ("Decl. in Opp'n"), ECF No. 114, June 29, 2018; infra Section II(B)(1); Appendix A.
The long delay in coming to grips with petitioner's vindictive sentencing claim is due in large measure to the fact that Garcia has proceeded without counsel. Denial of counsel for him was pursuant to a ruling of this court. See infra Section II(B)(2). Adverse decisions followed from the general rule that defendants making collateral attacks on criminal judgments are not entitled to court-appointed counsel. See Pennsylvania v. Finley, 481 U.S. 551, 555 (1987) ("We have never held that prisoners have a constitutional right to counsel when mounting collateral attacks upon their convictions. . . and we decline to so hold today. . . . [T]he right to appointed counsel extends to the first appeal of right, and no further."). Passive acquiescence by this court in that denial of counsel is largely to blame for the failure to fully consider the writ years ago.
A vindictive sentencing claim, it can be argued, was first raised before the State's intermediate appellate court and then in the New York Court of Appeals. This court's habeas opinion denying the writ did not directly address the substance of the vindictive sentencing claim. See Mem., J. & Order, ECF No. 39, Sept. 25, 2003. An experienced practitioner, such as the attorney appointed on the instant motion—if appointed years ago—would almost certainly have brought this court's attention almost immediately to the serious federal constitutional due process question raised by petitioner's sentence.
Counsel plays an integral role in all criminal cases. An attorney can be particularly helpful in habeas corpus proceedings and other collateral attacks that are governed by complicated procedural and substantive rules of state and federal courts. A growing number of federal judges have called for greater access to counsel in all cases where there is the possibility of injustice. See, e.g., Watson v. United States, 179 F.Supp.3d 251, 257 (E.D.N.Y. 2016) ("There is a clear, unmet need for counsel in immigration cases. Had an attorney been available to him at the outset, plaintiff probably promptly would have been declared a citizen and released almost immediately after he was arrested, if he were arrested at all."), aff'd in part, rev'd in part, 865 F.3d 123, 136 (2d Cir. 2017) (Katzmann, C.J., concurring in part and dissenting in part) ("This case is a striking illustration of the [negative] consequences that stem from the government's broad discretion to initiate detention and removal proceedings, coupled with the sometimes limited ability even a U.S. citizen has to assert a valid claim of citizenship in the absence of the assistance of counsel."); Davis v. Moroney, 857 F.3d 748, 752 (7th Cir. 2017) (Posner, J.) ("Davis needs help—needs it bad—needs a lawyer desperately. He did not have a fair opportunity to prosecute his case."); Jed Rakoff, Only the "Relatively Rich" Can Afford to Hire a Lawyer, N.Y.L.J., May 3, 2018 ("It is a terribly sad fact that our legal system has priced itself out of the reach of most ordinary Americans. . . . [T]he involvement of a lawyer makes a huge difference.").
The present rule of no right to counsel on a collateral attack should be stood on its head. The presumption should be that a defendant is entitled to an attorney in a collateral attack on a sentence unless it has been demonstrated that the claim is duplicitous or clearly meritless. The present rule of law to the contrary should be changed by statute, court rulings, or both. Defendants need counsel in serious collateral attacks on their sentences for unconstitutionality as well as at trial.
The court recognizes that acceptance of this view would place considerable strain on pro bono attorneys and members of the Criminal Justice Act panel. It would cost considerable money. Yet, routine assignment of attorneys would be of considerable assistance to judges faced with collateral attacks and probably result in quicker determination than now takes place in many cases.
In December 1997, petitioner committed three armed robberies in Brooklyn. Decl. in Opp'n ¶¶ 5-7. Garcia and an accomplice entered various establishments armed with handguns and demanded loot. Id. They took jewelry and personal belongings from employees. Id.
On January 12, 1998, Garcia committed a fourth armed robbery at the Canal Jewelry Store; he entered and threatened two employees with a gun. Id. ¶ 8. After forcibly taking jewelry from a case guarded by an employee, defendant aimed two shots at him. Id. Plexiglas stopped the bullets. Id.
Petitioner was charged with attempted murder and multiple counts of armed robbery. See Memorandum of Law in Support of Petitioner's Pro Se Letter Motion, ECF No. 111, May 1, 2018. The counts were severed: the robbery and attempted murder at Canal Jewelry were to be tried first, followed by a separate trial for the other three armed robberies. Id. at 3. David Epstein, Esq. was appointed counsel for defendant. Id. Prior to the first trial, defendant successfully moved to represent himself pro se. Id. But his attorney remained as legal advisor to Garcia throughout both trials. Id.
Before his first trial, Garcia received an offer from the prosecution of 15-30 years incarceration in exchange for a guilty plea to all four robberies. See Sept. 13, 2018 Hr'g Tr. 15:22-16:2. Although the offer was made by the prosecution, not the court, it was communicated to defendant by the State trial judge on the record. Id. Garcia rejected this offer.
Defendant was convicted of attempted murder and robbery by the jury at the first trial. Dec. in Opp'n ¶ 12. Following this trial, petitioner received a letter from his stand-by counsel informing him of a plea offer by the judge. Counsel urged him to plead guilty to the remaining charges in exchange for the reduced sentence. The full text of the letter is set out below. It accurately indicates by clear and convincing evidence an offer of a "flat" twenty years to cover all crimes:
Letter from David B. Epstein, Esq. to David Garcia, ECF No. 140-1 at 3, Oct. 14, 1998 ("Epstein Ltr."). Petitioner refused to accept the offer. The contemporaneous circumstances prove by clear and convincing evidence that the trial judge made the offer to defendant's stand-by counsel at an off the record sidebar, intending it to be delivered to Garcia. See infra Section II(C)(3).
On October 26, 1998, a sentencing hearing was held for the convictions following the first trial. See Oct. 26, 1998 Sent. Hr'g Tr., ECF No. 111, Ex. A. Petitioner complained of stomach pains and requested that the hearing be adjourned. Id. at 3:21-23. The request was denied. Id. at 5:3-16.
Garcia expressed concern about the letter he received from Epstein:
Id. at 8:23-9:9.
The prosecution requested the "maximum time in prison allowed under the law." Id. at 5:18-7:15. The trial judge followed the prosecution's sentencing recommendation, imposing two consecutive terms of 25 years imprisonment. Id. at 11:11-22.
Trial on the remaining counts resulted in additional convictions of eight counts of robbery in the first degree. See Jan. 21, 1999 Sent. Hr'g Tr., ECF No. 111, Ex. B.
A second sentencing hearing was held following the second trial on January 21, 1999. The government again sought the maximum sentence: "[S]entence him to the maximum amount of time possible, which would be the 75 years to run consecutive with the 50 years he is presently doing." Id. at 4:3-6. Three 25 year sentences were then imposed, each to run consecutive with each other and the 50 year sentence previously imposed. Id. at 6:11-8:24. The total term of imprisonment for Garcia was 125 years, 105 years longer than the "flat 20" years the court offered if he pled guilty to avoid the second trial.
3. Timing of Events Leading to and Including Sentencing A partial chronological record is as follows:
In the 19 years following his convictions, petitioner has filed a substantial number of appeals, post-trial motions, and collateral attacks in State and federal courts aimed at sentencing and other issues. The procedural history and characterizations of all motions set forth below are based on the respondent's declaration dated June 29, 2018:
Garcia, represented by counsel, Ms. Katheryn Martone of Legal Aid, raised the following non constitutional issue, among others, on his direct appeal from his sentences, before the New York Appellate Division, Second Department: "Appellant's aggregate sentence of 125 years should be modified in the interest of justice given its disparity with the plea offer. U.S. Const., Amends. V, XIV; N.Y. Const., Art. I, §6; P.L. §70.25(2)." Relevant Portions of Petitioner's State Appellate Division Brief, Dec. 2000, Appendix B (emphasis added). It also argued directly that the defendant was punished for going to trial—a due process, constitutional vindictive claim:
Id. at 31 (emphasis added; page number in original). This claim was based on prosecution's pre-trial plea offer of 15-30 years, not the trial court's offer of 20 years for a guilty plea on all counts made after the verdict in the first trial. Ms. Martone explained her rationale for this decision in a letter to Garcia. She wrote: "We cannot refer to the letter that Mr. Epstein wrote you regarding the plea offer because it is not part of the record on appeal. However, the prosecutor's pre-trial plea offer was made on the record prior to commencement of the suppression hearings. We will be able to use that fact in our briefs." Ct. Ex. 3, Oct. 29, 2018 Hr'g at 20.
The Appellate Division ruled that the Sentence was not excessive. People v. Garcia, 284 A.D.2d 481 (2001).
An application for leave to appeal to the New York Court of Appeals was filed by Ms. Martone. It was made in three stages: first, on July 16, 2001, counsel filed a two-page letter enclosing copies of the briefs filed in the Appellate Division and requesting review of "all issues outlined in defendant-appellant's briefs." Petitioner's Initial Application for Leave to the New York Court of Appeals, July 16, 2001, Appendix C (emphasis in original).
A second letter, dated August 7, 2001, was filed "to augment the arguments contained in the Appellate Division briefs." See Supplemental Application for Leave, People v. Garcia, ECF No. 117, Ex. A, Aug. 7, 2001. It discussed one issue at length: use of the "fellow officer" rule to justify petitioner's arrest. Id. In a footnote on the last page of the brief, the issues of denial to the right of counsel and an unduly suggestive lineup were also raised. Id. Issues related to sentencing, including the disparity between the plea offer and sentence imposed were not raised. Id.
The District Attorney's Office opposed leave by the New York Court of Appeals in a letter dated August 17, 2001. See Opposition to Leave, ECF No. 117, Ex. B. The opposition addressed several issues raised before the Appellate Division, including an excessive sentencing issue. Id.
A brief reply was submitted by petitioner's counsel. See Reply in Support of Application for Leave, ECF No. 117, Ex. C, Aug. 21, 2001. No unconstitutional sentencing issue was suggested in that reply. Id.
After the New York Court of Appeals denied Garcia's application, see Certificate Denying Leave, ECF No. 117, Ex. D, Jan. 28, 2002, he filed a pro se petition for habeas corpus in the United States District Court for the Eastern District of New York. See Petition for
The initial habeas petition in this court did not raise a claim related to the disparity between the plea offer and sentence imposed, but by application dated June 18, 2003 petitioner sought to add the following claim to his petition: "Defendant's aggregated sentence of 125 years should be modified in the interest of justice given its disparity with the plea offer." Decl. in Opp'n ¶ 36 (emphasis added). The application to amend the petition was granted, and the amendment is deemed made. See Order, ECF No. 37, June 30, 2003. A month later, Garcia, pro se, attached the Epstein Letter in a submission filed in support of his motion amend his petition. Ltr. from D. Garcia, ECF No. 140-1, July 24, 2003. Citing United States Constitutional Amendments V and XIV, as well as the Epstein Letter, he argued: "As a result of petitioner's conviction for both trials the petitioner received a total of 125 years. A sentence that should be modified in the interest of justice, given its disparity with the plea offer. U.S. Const., Amends. V, XIV; N.Y. Const., Art. I, §6; P.L. §70.25(2).
The habeas petition in this court was denied. See Mem., J. & Order, ECF No. 39, Sept. 25, 2003. By Mandate, the Court of Appeals for the Second Circuit denied petitioner's motion for a certificate of appealability and dismissed the appeal because no "substantial showing of the denial of a constitutional right" was made. See Mandate, ECF No. 52, Apr. 13, 2004. A motion for reconsideration and three motions under Rule 60(b) were denied over the course of the next decade. See Appendix A; supra Section II(B)(1).
The instant motion to declare unconstitutional defendant's 125 years sentence on the ground of vindictiveness was filed on October 17, 2017. See Motion to Vacate, ECF No. 101. At this court's direction, counsel was appointed. Order, ECF No. 102, Nov. 2, 2017; CJA Appointment, ECF No. 103, Nov. 15, 2017.
The court held an evidentiary hearing, arguably in contradiction of 28 U.S.C. § 2254(e)(2) requiring the first evidentiary hearing to be held in State court.
The State court sentencing judge and stand-by trial counsel, two key witnesses, are deceased. Petitioner's counsel on direct appeal, Katheryn Martone, testified. The lead prosecutor in petitioner's trials and sentencings, ex-Assistant District Attorney Deanna Rodriguez, also testified.
Martone testified that she intended to raise the issue of vindictive sentencing—and had raised it—on Garcia's direct appeal to both the Appellate Division and New York Court of Appeals. About the Appellate Division brief, she stated:
Ms. Martone then testified about raising the vindictiveness issue in the New York Court of Appeals.
Id. at 8:22-11:15.
Based on this testimony and the record, respondent conceded that if vindictive sentencing issue was properly presented to the Appellate Division, then it was also presented to the New York Court of Appeals. Id. at 11:22-25 (Respondent: "I just want to say, I said this in my brief, that if the claim was presented to the Appellate Division, I'm not contesting that it was exhausted by Ms. Martone's initial letter to the Court of Appeals. . . .").
The Epstein Letter of October 14, 1998 reflecting the offer of 20 years, see supra Section II(A)(2), was authenticated by Martone. During her representation of Garcia, he provided her with the letter. Id. at 22:3-14. Years later, Garcia requested its return. Id. Martone retrieved the case file and returned a full, correct copy of the letter to Garcia, with a covering letter dated December 2, 2009. Id. at 40:3-15; Ct. Ex. 1, Sept. 13, 2018 Hr'g.
Respondent requested time to submit evidence—though he claimed that an evidentiary hearing was not permissible. After an adjournment, the parties reconvened to complete the evidentiary hearing. The veracity of the Epstein Letter and petitioner's claim that a 20 year flat offer was made by the trial court was contested.
Respondent objected to the Epstein Letter on hearsay grounds. The court ruled that the document, which contains hearsay within hearsay, was admissible under the residual hearsay exception. See Fed. R. Evid. 807; Oct. 29, 2018 Hr'g Tr. 2:11-3:22. The statements had circumstantial guarantees of trustworthiness. It is a contemporaneous document reflecting advice of a stand-by lawyer to the equivalent of a client; and the other evidence, both oral and written, buttress its reliability as having been made contemporaneously by the now deceased stand-by lawyer based on what he was told by the trial judge, also now deceased. It is evidence of a material fact and it is more probative on the point offered that any other evidence that can be obtained (especially in light of the fact that both stand-by counsel and the trial judge have since passed away). Admitting the document into evidence will best serve the purposes of the rules in getting at the truth and the interests of justice, particularly in a habeas corpus proceeding. Fed. R. Civ. P. 1 (Rules "should be construed" to "secure the just" "determination"); Fed. R. Evid. 102 (Rules to be "construed" "to the end of ascertaining the truth and securing a just determination").
Respondent challenged the authenticity of the Epstein Letter and requested that petitioner produce the original copy of the letter. Petitioner submitted that he attached the original document to his letter to this court in support of his motion to amend his habeas petition in July 2003. See Oct. 29, 2018 Hr'g Tr. 12:9-12. He explained that the Clerk's Office did not have the original copy and that the original has been ordered from archives. (The letter, which had previously not been viewable on the docket, is now available on the docket. See Ltr. from J. Pittell, ECF No. 140-1, Nov. 19, 2018.) Based on Ms. Martone's testimony, and the documentary evidence, a copy of the Epstein Letter was accepted by the court as the authenticated equivalent of the original. See Oct. 29, 2018 Hr'g Tr. 4:3-4, 14:19-25; Ct. Ex. 1, Oct. 29, 2018 Hr'g.
Several exhibits were admitted into evidence, including transcripts from two relevant hearings that took place contemporaneously to the writing of the Epstein Letter. See infra Section II(C)(2)(a). Ms. Rodriguez testified about her recollections of petitioner's case, the trial judge's reputation, and whether she recalled the trial judge making Garcia an offer of 20 years after the first trial.
On October 9, 1998, following the guilty verdict in the first trial, the trial judge excused the jury and requested Mr. Epstein (representing defendant for this purpose) to come up to the bench. After a sidebar discussion was held off the record, stand-by counsel told the trial court that Garcia is "going to be thinking it over." An excerpted transcript of this hearing was introduced as State Exhibit E-1 at the evidentiary hearing. The relevant exchange is set out below:
Oct. 9, 1998 Hr'g Tr. at 248:16-249:19, State Ex. E-1, Oct. 25, 2018 Hr'g (emphasis added).
Eleven days later, at a hearing on October 20, 1998, petitioner requested an adjournment to "think about the plea offer." The trial court responded that he "[did] not think there was a plea offer, but certainly it was left open." The transcript of the hearing was introduced as State Exhibit E-2. The pertinent exchange is set out below:
Oct. 20, 1998 Hr'g Tr. at 11:21-12:24, State Ex. E-2, Oct. 25, 2018 Hr'g (emphasis added).
Ms. Rodriguez, the Assistant District Attorney who prosecuted defendant in this case, testified that the trial court never made Garcia an offer of 20 years after the first trial.
Oct. 25, 2018 Hr'g Tr. 13:16-19:15, ECF No. 137 (emphasis added).
She was asked about the off the record discussion that took place following the guilty verdict in the first trial. She testified that Garcia did not come up to the bench during this particular sidebar.
Id. at 10:3-12:2 (emphasis added).
Ms. Rodriguez noted that it was the trial court's practice to try to get a defendant to plead out to any remaining charges following a conviction. But, she maintained that the trial judge did not offer Garcia a specific number of years during the private off the record discussion that was held at the end of the first trial.
Id. at 12:3-21 (emphasis added).
Ms. Rodriguez then testified about her recollections of the trial judge and reiterated that he never made the petitioner a 20 year flat plea offer. As the former Chief of the Gang Bureau for the Kings County District Attorney's Office, she had been in front of him on a number of occasions. She described him as a meticulous and by-the-book judge who did not permit ex-parte conversations.
The trustworthiness of these statements was undermined by her other testimony and the transcript from the October 9, 1998 hearing, which appears to reflect an ex-parte bench conference held by the trial judge.
Id. at Hr'g Tr. 29:13-31:21 (emphasis added).
On cross-examination, Ms. Rodriguez testified it was the trial judge's practice to excuse the jury and have the parties argue from the table—and not up at the bench— when holding bench conferences. She stated that while it was Mr. Epstein who mostly handled the defense's legal arguments, Garcia would have been able to hear everything said in these discussions from the table.
Id. at 35:8-40:5 (emphasis added).
Petitioner's counsel confronted the witness with the transcript from the October 9, 1998 hearing. Ms. Rodriguez offered inconsistent and conflicting statements in response to counsel's questions.
Id. at 40:16-52:3 (emphasis added).
Regarding the October 20, 1998 hearing where petitioner requests an adjournment to "think about the plea offer," the witness testified that she did not make the defendant a plea offer following the first trial.
Id. at 54:4-55:3 (emphasis added). She added additional testimony on re-direct.
Id. at 56:22-61:10 (emphasis added).
The Epstein Letter was authenticated by Katheryn Martone, Garcia's lawyer on direct appeal. See supra Section II(C)(1). She was a credible witness.
The court does not rely on the testimony of Deanna Rodriguez, the lead prosecutor at petitioner's trials and sentencings. See supra Section II(C)(2)(b). Ms. Rodriguez was not a credible witness. She provided inconsistent and unreliable testimony regarding her recollections of the trial judge and petitioner's case. The witness was openly hostile, frequently appearing agitated and confused.
The record demonstrates that the trial court conveyed a flat 20 year offer to the defendant through his stand-by counsel after the first trial had ended. An ex-parte off the record conversation took place without the petitioner on October 9, 1998, following the defendant's guilty verdict. The trial judge excused the jury and invited Epstein (acting as stand-by counsel), and not the petitioner (acting as his own attorney), to come up to the bench. Following this sidebar, stand-by counsel told the trial judge that the defendant "will be thinking it over"— highly probably referring to a plea offer made by the trial court during the ex-parte bench conference.
The trial court's 20 year flat offer was memorialized in writing five days later on October 14, 1998 in the Epstein Letter. The letter—which reflects stand-by counsel, having heard the judge's offer, urging, in effect, his client to accept a plea or risk dying in prison—contains circumstantial guarantees of trustworthiness. Then on October 20, 1998, at a hearing on petitioner's 330 motion, Garcia asked the trial court for an adjournment of sentencing to "think about the plea offer." (The trial judge's response—that he "[did] not think there was a plea offer"—is inexplicable and is given no weight.)
Garcia discussed the letter and its contents at his first sentencing hearing. He stated:
Oct. 26, 1998 Sent. Hr'g Tr. at 8:23-9:9 (emphasis added).
Neither the State judge, prosecutor, nor Mr. Epstein clearly disputed the fact that an offer of twenty years had been made by the State trial judge following Garcia's remarks; it is found to be true by clear and convincing evidence. Epstein stated that Garcia was in "great jeopardy" unless he took a plea. Id. at 10:7-15. He continued:
Id. at 10:16-25 (emphasis added).
A decade later, in a 2009 State court motion, the authenticity of the letter and offer were again corroborated by the sentencing judge. Defendant moved in the State court to vacate his sentence, arguing that Epstein was ineffective because of his failure to convince Garcia to accept the plea offer of 20 years. See David Garcia's Affidavit In Support in Of CPL § 440.10, ECF No. 130, Ex. C, Jan. 23, 2009. The sentencing judge's initial ruling on the motion cast doubt on Garcia's account of the plea offer:
Decision & Order on 440.10 Motion, ECF No. 130, Ex C, May 19, 2009 (emphasis added).
In response to the sentencing court's ruling, Garcia filed an addendum to his motion annexing the Epstein Letter. See Addendum to 440.10 Motion, ECF No. 130, Ex D, Dec. 11, 2009. The court then issued an amended order:
Decision & Order on 440.10 Motion, ECF No. 130, Ex. D, June 29, 2010. (emphasis added).
Based on the contemporaneous record, Ms. Martone's testimony, and the subsequent statement of the trial judge, it is found as a matter of fact that the twenty year flat offer was made by the State trial judge, conditioned on the defendant not going to a further trial, and it was accurately conveyed to Garcia through the Epstein Letter. In this court's view, a State court's finding, were an evidentiary hearing conducted in the State, would be the same as this court's— on the evidence on the full record. See infra Section V; but see 28 U.S.C. §§ 2254(d)-(e) (presumption of correctness of State court findings on evidence relevant to habeas corpus hearing).
The availability of a successive habeas petition is limited. "A claim presented in a second or successive habeas corpus application under [28 U.S.C. §] 2254 that was presented in a prior application shall be dismissed." 28 U.S.C. § 2244(b)(1); see also id. § 2244(b)(3)(A) (order from court of appeals needed for a "second or successive application"). If a successive habeas petition raises a new claim, it must be dismissed unless:
Id. § 2244(b)(2) (emphasis added). Based on § 2244, there is a serious question whether the Court of Appeals for the Second Circuit would approve a second petition in the instant case.
Rule 60(b) of the Federal Rules of Civil Procedure provides a method to redress a mistake in the district court on a motion for a writ of habeas corpus. It is not a second petition for the writ. The rule reads:
Fed. R. Civ. P. 60(b) (emphasis added).
A motion filed pursuant to Rule 60(b) for one of the first three enumerated reasons must be filed "no more than a year after the entry of the judgment or order or the date of the proceeding." Id. 60(c)(1). For all other reasons, including the catch-all of subsection six ("any other reason that justifies relief"), a Rule 60(b) motion must be filed "within a reasonable time." Id.
The Court of Appeals for the Second Circuit has ruled that Rule 60(b) "confers broad discretion on the trial court to grant relief when appropriate to accomplish justice [and] constitutes a grand reservoir of equitable power to do justice in a particular case." Pichardo v. Ashcroft, 374 F.3d 46, 55 (2d Cir. 2004) (quoting Matarese v. Le Fevre, 801 F.2d 98, 106 (2d Cir. 1986) (quotation marks omitted)). The district court must seek "a balance between serving the ends of justice and preserving the finality of judgments." Nemaizer v. Baker, 793 F.2d 58, 61 (2d Cir. 1986); Rodriguez v. Keane, 2003 WL 21673624, at *1 (S.D.N.Y. July 16, 2003). Granting a Rule 60(b) motion requires a showing of "extraordinary circumstances" to "justify[] the reopening of a final judgment." Gonzalez v. Crosby, 545 U.S. 524, 535 (2005) (citations and quotation marks omitted); see also Mendell in Behalf of Viacom, Inc. v. Gollust, 909 F.2d 724, 731 (2d Cir. 1990), aff'd sub nom. Gollust v. Mendell, 501 U.S. 115 (1991) (finding that relief under Rule 60(b) may be granted "only upon a showing of exceptional circumstances").
In Gonzalez v. Crosby, the Supreme Court addressed "whether a Rule 60(b) motion filed by a habeas petitioner is a `habeas corpus application' as [AEDPA] uses that term." 545 U.S. at 530. The Court held that labeling an application as one for Rule 60(b) relief, rather than a successive petition, is not controlling: "Using Rule 60(b) to present new claims for relief from a state court's judgment of conviction . . . circumvents AEDPA[]." Id. at 531. A Rule 60(b) motion that seeks to bring a new claim or "attacks the federal court's previous resolution of a claim on the merits" should be treated as a successive habeas application. Id. at 532 (emphasis in original).
The Gonzalez Court, nevertheless, wrote that not all Rule 60(b) motions brought by habeas petitioners should be treated as successive petitions for the writ. "When no `claim' is presented, there is no basis for contending that the Rule 60(b) motion should be treated like a habeas corpus application." Id. at 533. Relying on this distinction, the Court held that a motion claiming that "federal courts misapplied the federal statute of limitations" was properly heard as a motion under Rule 60(b). Id.
The United States Constitution provides: "The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it." U.S. Const. art. I, § 9, cl. 2 (emphasis added). The Supreme Court has held that AEDPA's restrictions on successive habeas petitions do not violate the Suspension Clause. See Felker v. Turpin, 518 U.S. 651, 664 (1996) ("The added restrictions which [AEDPA] places on second habeas petitions. . . do not amount to a `suspension' of the writ contrary to Article I, § 9."). The constitutional clause itself implicitly recognizes that availability of the writ is a substantive right predating the founding of the United States and serving to protect liberty.
Present procedural rules governing the writ of habeas corpus effectively limit the substantive right. The core of a habeas proceeding is a continuing constitutional violation—"the right not to be held in custody in violation of the Constitution." Crater v. Galaza, 508 F.3d 1261, 1269 (9th Cir. 2007) (Reinhardt, J., dissenting from the denial of rehearing en banc) (emphasis in original). Taken to its extreme, a general prohibition on successive habeas petitions except on the narrowest of grounds—or under AEDPA—could allow indefinite detention of a prisoner who was convicted and is being held in clear contravention of the United States Constitution.
In limited circumstances, the Supreme Court has eschewed the harsh application of procedural rules that would result in a "fundamental miscarriage of justice." McQuiggin v. Perkins, 569 U.S. 383, 392 (2013) ("[A] credible showing of actual innocence may allow a prisoner to pursue his constitutional claims . . . on the merits notwithstanding the existence of a procedural bar to relief."). "The miscarriage of justice exception . . . survived AEDPA's passage." Id. at 393.
"[T]he Supreme Court has rejected a rigid construction of AEDPA under which a habeas petitioner would be entitled to only one decision on the merits, and thereafter would be subject to AEDPA's gatekeeping provisions in all cases regardless of whether the petitioner could have raised his current claims in the first petition." Villanueva v. United States, 346 F.3d 55, 61 (2d Cir. 2003) (emphasis added).
Inflexible application of successive petition rules can be dispensed with where the "implications for habeas practice would be far reaching and seemingly perverse." Stewart v. Martinez-Villareal, 523 U.S. 637, 644 (1998). In Stewart, the Supreme Court held that the petitioner was entitled to review of his claim in the first instance by the district court, even though the claim had been previously reviewed and rejected by the federal courts as premature. The Court explained: "[t]his may have been the second time that respondent had asked the federal courts to provide relief on his [] claim, but this does not mean that there were two separate applications, the second of which was necessarily subject to § 2244(b)." Id. at 643. The source of authority for the Supreme Court's rulings is unclear. Cf. McQuiggin, 569 U.S. at 401-02 (Scalia, J., dissenting) ("What is the source of the Court's power to fashion what it concedes is an `exception' to this clear statutory command?").
The thrust of the Supreme Court's rulings and the Suspension Clause itself suggest that there is a residual right to the writ of habeas corpus that may, in exceptional cases, operate outside the Congressional limits on authority when necessary to prevent an injustice. Cf. The Federalist No. 84 (Alexander Hamilton) (referring to the writ of habeas corpus as the "the BULWARK of the British constitution" (emphasis in original)); but cf. Ex parte Bollman, 8 U.S. 75, 93-94 (1807) ("[F]or the meaning of the term habeas corpus, resort may unquestionably be had to the common law; but the power to award the writ by any of the courts of the United States, must be given by written law." (emphasis added)).
A written right to habeas relief, commentators have argued, was created by the Fourteenth Amendment. See Jordan Steiker, Incorporating the Suspension Clause: Is There A Constitutional Right to Federal Habeas Corpus for State Prisoners?, 92 Mich. L. Rev. 862 (1994). "When the Thirty-ninth Congress drafted the Fourteenth Amendment, the writ of habeas corpus had a significant history in this country independent of its English origins." Id. at 870. This history and the Supreme Court's later incorporation doctrine suggest that "the Suspension Clause, viewed through the lens of the Fourteenth Amendment, affords state prisoners a constitutional right to federal review of constitutional claims in the lower federal courts." Id. at 911; cf. Stephen R. Reinhardt, The Demise of Habeas Corpus and the Rise of Qualified Immunity: The Court's Ever Increasing Limitations on the Development and Enforcement of Constitutional Rights and Some Particularly Unfortunate Consequences, 113 Mich. L. Rev. 1219 (2015).
The residual right to habeas review of a state conviction provides, at least in some exceptional instances, a path to federal oversight of a state conviction where a miscarriage of justice has occurred. The extreme vindictiveness in the present case can be construed as exceptional enough to support an application for a writ of habeas corpus in the federal court.
"An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted unless it appears that . . . the applicant has exhausted the remedies available in the courts of the State." 28 U.S.C. § 2254 (b)(1)(A). To exhaust, a petitioner must have sought review in the State's highest court with jurisdiction and "fairly presented" the federal constitutional claim to the State courts, including the highest court of the State. See O'Sullivan v. Boerckel, 526 U.S. 838, 848 (1999).
"The state court may be alerted to constitutional claims by reliance on federal and state cases employing constitutional analysis, asserting particulars that highlight a constitutional right, or alleging facts within the mainstream of constitutional litigation." Abdurrahman v. Henderson, 897 F.2d 71, 73 (2d Cir. 1990) (internal quotation marks omitted). "Adherence to exhaustion principles does not require a petitioner to raise his claims `by citing chapter and verse' of hornbook law; it simply mandates that the state be given fair opportunity to hear the claim." Id.
The Court of Appeals for the Second Circuit has recognized several ways that the requirement of State exhaustion can be met:
Jimenez v. Walker, 458 F.3d 130, 149 n.21 (2d Cir. 2006) (citing Daye v. Attorney Gen. of State of N.Y., 696 F.2d 186, 194 (2d Cir. 1982)).
Exhaustion requires the petitioner to have presented in the State court "both the factual and the legal premises of the claim he asserts in federal court." Daye, 696 F.2d at 191 (emphasis added). To meet the exhaustion requirement with respect to the claim's factual premise, the Court of Appeals for the Second Circuit in Davidson v. Keane explained:
107 F.3d 2, *1 (2d Cir. 1997) (citations and internal quotation marks omitted).
1. New York State Court Sentencing Jurisdiction and Avenues of Review A nuanced understanding of the sentencing jurisdiction of the New York Court of Appeals is necessary to appreciate the presentment of federal sentencing issues before that court. The leading commentators on the New York Court of Appeals power explained:
Henry Cohen & Arthur Karger, The Powers of the NY Court of Appeals § 21:8 (2018).
The intermediate appellate courts in New York, the Appellate Divisions of the Supreme Court, have powers to modify or reduce a sentence that the highest court, the New York Court of Appeals, lacks. See People v. Discala, 45 N.Y.2d 38, 44 (1978) ("Finally, contrary to defendant's assertion, it is the Appellate Division, and not [the New York Court of Appeals], which is authorized to reduce a sentence in the exercise of its discretion and in the interest of justice."); People v. Thompson, 60 N.Y.2d 513, 520 (1983) ("The power of the Appellate Division to reduce a sentence, which it finds unduly harsh or severe, in the interest of justice and impose a lesser one has long been recognized in this State.").
The difference in powers between the Appellate Divisions and the New York Court of Appeals can lead to circumstances in which a sentencing claim, based upon justice rather than legality, may be raised before the Appellate Division that is not then appealable to the New York Court of Appeals. By contrast, arguing before the Appellate Division that a sentence is unconstitutional gives the New York Court of Appeals the power to review that claim. Henry Cohen & Arthur Karger, supra, § 21:8.
The Appellate Division may use its statutory authority to modify a sentence because it was illegally imposed—i.e., in violation of the federal constitution.
N.Y. Crim. Proc. Law § 470.15 (McKinney) (emphasis added).
The two separate jurisdictional powers of the Appellate Division present a problem for the appellate lawyer who wants to stress the interest of justice argument, in view of a sentence so much longer than a defendant's expected life, but yet does not want to concede the constitutional issue. This is particularly true in a case, like the instant one, where the constitutional claim may include a serious criticism of a distinguished trial judge. A prudent appellate lawyer might well have focused her argument on the justice claim, rather than a constitutional claim such as judicial vindictiveness, to avoid unnecessarily disparaging a trial judge, while, at the same time, making both claims.
Presentment requires a federal constitutional issue to be raised in an application for discretionary review before New York State's highest court. See O'Sullivan, 526 U.S. at 848-49. In New York, this requires a defendant to "first appeal his or her conviction to the Appellate Division, and then [] seek further review of that conviction by applying to the [New York] Court of Appeals for a certificate granting leave to appeal." Galdamez v. Keane, 394 F.3d 68, 74 (2d Cir. 2005).
A line has been drawn by the Court of Appeals for the Second Circuit, based in part on the volume of the application, to determine when a claim is fairly presented. When a substantial application for leave is filed before the New York Court of Appeals, more than passing reference must be made to the question of federal law raised on habeas review. The Court of Appeals for the Second Circuit has "declined to hold that New York's highest court has a duty to look for a needle in a paper haystack." Id. (internal quotations omitted).
Jordan v. Lefevre illustrates this principle:
206 F.3d 196, 198-99 (2d Cir. 2000) (emphasis added).
In a seemingly incongruous, but appropriate decision based upon State law, federal courts have held that supplying the New York Court of Appeals with a lower court brief may be sufficient to raise a claim before the State's high court. As then-judge Sotomayor explained:
Galdamez, 394 F.3d at 76-77 (internal citations removed) (emphasis added).
It is appropriate for federal courts to construe their own exhaustion doctrine to include a reference in a brief filed in the Appellate Division and attached to the application to the New York Court of Appeals for permission to appeal. This is a matter of federal law influenced by State practice.
Galdamez distinguished, but did not overrule, Jordan and the cases upon which that decision relied. The import is that a petitioner who files a short letter seeking review of all of the claims raised in the Appellate Division is better off, for federal habeas presentment purposes, than the person who files a detailed application for leave to the New York high court.
There is a third scenario—do both: first, file a short application raising all claims, and then supplement that application with a more focused, in-depth brief. Leave procedure in the New York Court of Appeals permits a defendant to file an application first with the Chief Judge of the Court, who then may assign the application to another judge. See N.Y. Crim. Proc. Law § 460.20. This allows a defendant to file two requests for leave: one addressed to the Chief Judge and a follow-up letter to the judge assigned to the case. Id.
The effect of using the third path for federal presentment purposes was illustrated by the Court of Appeals for the Second Circuit in Morgan v. Bennett, 204 F.3d 360, 369 (2d Cir. 2000). In that case, a defendant filed an initial leave application with the New York Court of Appeals enclosing copies of his brief before the Appellate Division, and requesting "review [of] all issues outlined in defendant-appellant's brief and pro se supplemental brief." Id. at 369-70 (emphasis in original). He then submitted a detailed letter supporting his leave application that did not address all issues, including a Confrontation Clause claim he sought to raise on habeas review. Id. at 370.
The Court of Appeals for the Second Circuit held that the supplemental brief did not eliminate claims from the review of the New York Court of Appeals and his Confrontation Clause claim was fairly presented. It reasoned:
Id. at 370-71 (emphasis added) (internal citation removed).
The Court of Appeals for the Second Circuit did not "think it appropriate to infer that the New York Court of Appeals would construe counsel's second letter as eliminating issues as to which review had been expressly requested." Id. at 371. The second letter emphasized that it was meant to "supplement," and not replace, the request made by the first letter. Id. A petitioner may thus avoid a harsh result of preclusion of an issue from exhaustion by filing a short letter requesting review of all claims before the appellate division and then submitting a letter that elaborates on some, but not all, of the claims.
Comity—"reduc[ing] friction between the state and federal court systems"—undergirds the exhaustion requirement. O'Sullivan, 526 U.S. at 845. As one commentator notes, comity and federalism are related but distinct concepts: "While comity describes the deference one sovereign is to afford the judgments of another, federalism denotes authority diffused between state and national institutions." Lee Kovarsky, AEDPA'S Wrecks: Comity, Finality, and Federalism, 82 Tul. L. Rev. 443, 456 (2007).
"[F]ederal courts have internalized the idea that [28 United States Code § 2254's (AEDPA)] legislative history supports an interpretive mood disfavoring habeas relief." Id. at 444. This limiting approach is incomplete:
Id. at 455-56.
The current doctrine of presentment to the New York Court of Appeals, which can be seen as favoring State prosecutors, may create unnecessary burdens on the State court system. The practitioner working on an application for leave before the State high court is encouraged by the federal courts' presentment doctrine to raise every conceivable federal claim. This approach is questionable: such an approach is less than helpful to a judge on the State's highest court. Focused advocacy helps a judge determine which issues are important and viable. An overly inclusive brief may cause judicial error if the court fails to focus on the most substantial relevant issues and cases. Good appellate practitioners tell lawyers to go for the jugular, but, unfortunately, that vein is sometimes missed; the lawyer should not be held to have waived what might have been a winning appellate argument by not expanding on it in a case where losing on what turns out to be a critical issue creates a grave injustice.
Overburdened State courts of last resort with discretionary dockets may well seek to hear cases only of unsettled law or those with broad public policy implications for the State. Raising a federal issue in a leave application to the New York Court of Appeals where the law is "clearly established," see infra Section III(C), is an unlikely avenue to a successful application. Cf. Clerk's Office New York Court of Appeals, The New York State Court of Appeals Criminal Leave Application Practice Outline, at 11 (2018), https://www.nycourts.gov/ctapps/forms/claoutline.pdf (suggesting that practitioners focus on novel legal issues or those not well-settled in application for leave to the New York Court of Appeals). A doctrine focused on protecting the State court from "look[ing] for a needle in a paper haystack" may, in fact, do just the opposite, and cause the New York Court of Appeals to sift through issues of federal law raised purely for possible federal preservation purposes.
Comity may be eroded by the very doctrine that seeks to protect it. The Supreme Court of the United States recognized this possibility in the case that established the necessity of raising federal constitutional issues in discretionary applications before a state's high court:
O'Sullivan, 526 U.S. at 847 (internal citations omitted) (emphasis in original).
Congress created a deferential standard of review for federal courts sitting as habeas courts reviewing a state court decision. The standard is as follows:
28 U.S.C. § 2254(d).
Summary disposition of an issue qualifies as "on the merits." Chrysler v. Guiney, 806 F.3d 104, 117 (2d Cir. 2015) ("Although the Second Department ruled on Chrysler's claim in summary fashion, summary dispositions rank as adjudications `on the merits' for AEDPA purposes unless the petitioner provides `reason to think some other explanation for the state court's decision is more likely.'" (quoting Harrington v. Richter, 562 U.S. 86, 99-100 (2011))).
About the "contrary to" clause the Supreme Court has explained:
Williams v. Taylor, 529 U.S. 362, 405-06 (2000).
An "unreasonable application" of constitutional law is an analytically distinct standard of review.
Id. at 409-10. Stated somewhat differently, the Court has explained that "[a] state court's determination that a claim lacks merit precludes federal habeas relief so long as `fair-minded jurists could disagree' on the correctness of the state court's decision." Harrington, 562 U.S. at 101.
"Clearly established Federal law" in 28 U.S.C. § 2254(d) means that the law must have been stated in "holdings, as opposed to the dicta, of [Supreme Court] decisions as of the time of the relevant state-court decision." Williams, 529 U.S. at 412. Courts have held that the doctrine of vindictive sentencing is clearly established. See infra Section III (D)(1).
North Carolina v. Pearce announced the doctrine of vindictive sentencing. 395 U.S. 711 (1969). In Pearce, the Supreme Court held that a defendant could not be penalized with an unduly harsh sentence after his initial conviction was vacated by an appellate court. While noting that a judge was not bound by the prior sentence, the Court stated: "vindictiveness against a defendant for having successfully attacked his first conviction must play no part in the sentence he receives after a new trial." Id. at 725. To prevent vindictiveness, the Court "concluded that whenever a judge imposes a more severe sentence upon a defendant after a new trial, the reasons for his doing so must affirmatively appear." Id. at 726. "The Pearce framework was not limited by the Supreme Court to sentencings after re-trials, but rather has been applied by the Supreme Court to other situations, such as claims of prosecutorial vindictiveness in connection with plea negotiations." Izaguirre v. Lee, 856 F.Supp.2d 551, 572 (E.D.N.Y. 2012).
Pearce suggested that a presumption of vindictiveness applies in all cases where a defendant receives a longer sentence following a retrial or plea bargain. Cf. Alabama v. Smith, 490 U.S. 794, 803 (1989) (Marshal, J., dissenting) ("I . . . continue to believe that, if for any reason a new trial is granted and there is a conviction a second time, the second penalty imposed cannot exceed the first penalty." (internal quotation marks omitted)). In Smith, however, the Supreme Court held: "when a greater penalty is imposed after trial than was imposed after a prior guilty plea, the increase in sentence is not more likely than not attributable to the vindictiveness on the part of the sentencing judge." Id. at 801. It overruled its precedent to the extent that it had suggested that all higher sentences following retrial were presumptively unconstitutional. Id. at 802.
The Smith Court synthesized relevant precedents as follows:
Id. at 798-99 (internal citations removed) (emphasis added).
Under circumstances where it was "reasonably likely" that the sentence was vindictive, a presumption of vindictiveness arises. Once the presumption attaches, it may be "overcome only by objective information in the record justifying the increased sentence." United States v. Goodwin, 457 U.S. 368, 374 (1982). The Supreme Court's framework means that in cases where the presumption attaches, a court need not make a determination about the actual motivation of the sentencing judge.
Courts have found that the Pearce standard is "clearly established" for purposes of federal habeas review. See Izaguirre, 856 F. Supp. 2d at 573 ("[F]or purposes of habeas review, this Court concludes that this Pearce standard was clearly established federal law, as articulated by the Supreme Court."); United States v. Mazzaferro, 865 F.2d 450, 458 (1st Cir. 1989) ("One of the fundamental principles of our jurisprudence is that a defendant cannot be punished for exercising a constitutional right and that vindictiveness is to play no role in the sentencing of defendants.").
The vindictive sentencing claim in the instant case is based on Supreme Court law well-developed before petitioner's sentencing. Izaguirre, 856 F. Supp. 2d at 578 ("The rule is based upon holdings, not dicta, of this nation's highest court and its application here does not require an `extension' of that rule; rather, the application here requires reference only to the core, well-established rule itself.").
Vindictive sentencing doctrine protects a defendant from egregious instances of the "trial penalty"—when a defendant receives a harsher sentence because she goes to trial, rejecting a plea offer. Penalties for pressing trial rights have been discussed by courts and academics, with both acknowledging that modern criminal adjudication is "a system of pleas, not a system of trials." Lafler v. Cooper, 566 U.S. 156, 170 (2012). "Ninety-seven percent of federal convictions and ninety-four percent of state convictions are the result of guilty pleas." Id.
As noted by a recent report:
National Association of Criminal Defense Lawyers, The Trial Penalty: The Sixth Amendment Right to Trial on the Verge of Extinction and How to Save It, 5 (2018), www.nacdl.org/trialpenaltyreport; but see David S. Abrams, Putting the Trial Penalty on Trial, 51 Duq. L. Rev. 777, 778 (2013) ("[N]ot only is there no evidence for a trial penalty, there appears to be a trial discount!"); Andrew Chongseh Kim, Underestimating the Trial Penalty: An Empirical Analysis of the Federal Trial Penalty and Critique of the Abrams Study, 84 Miss. L.J. 1195, 1199 (2015) ("This Article exposes significant conceptual and methodological errors that undermine the conclusions of the Abrams study.").
There is a tension between the doctrine of vindictive sentencing and the current reality of our plea driven criminal justice system. See generally Doug Lieb, Vindicating Vindictiveness: Prosecutorial Discretion and Plea Bargaining, Past and Future, 123 Yale L.J. 1014 (2014). In many cases, prosecutors utilize the prospect of higher sentences to induce defendants to plead guilty. The Supreme Court has recognized as much:
Bordenkircher v. Hayes, 434 U.S. 357, 365 (1978).
The friction is obvious in the federal system. The Sentencing Guidelines provide a credit for accepting responsibility, usually by pleading guilty, and adds a credit for pleading guilty early. U.S.S.G. § 3E1.1(a) ("If the defendant clearly demonstrates acceptance of responsibility for his offense, decrease the offense level by 2 levels."); id. § 3E1.1(b) ("If the defendant [accepts responsibility] . . . [and] timely notif[ies] authorities of his intention to enter a plea of guilty, thereby permitting the government to avoid preparing for trial and permitting the government and the court to allocate their resources efficiently, decrease the offense level by 1 additional level."); cf. National Association of Criminal Defense Lawyers, supra, at 12 ("USSG §3E1.1(b) should be amended to authorize courts to award a third point for acceptance of responsibility if the interests of justice dictate without a motion from the government and even after trial.").
Commentators have offered solutions to combat the negative consequences that can arise from the imposition of the trial penalty. See, e.g., Jed S. Rakoff, Why Prosecutors Rule the Criminal Justice System—And What Can Be Done About It, 111 Nw. U. L. Rev. 1429, 1436 (2017) (suggesting that prosecutors be "required to spend six months out of every three years of their term. . . serving as defense counsel for indigent defendants"); James Vorenberg, Decent Restraint of Prosecutorial Power, 94 Harv. L. Rev. 1521, 1523 (1981) (suggesting strict administrative guidance to curb prosecutorial discretion); National Association of Criminal Defense Lawyers, supra, at 12-13 (making ten recommendations to reduce the force of the trial penalty including adopting a principle of "proportionality between pre-trial and post-trial sentencing"); cf. United States v. Holloway, 68 F.Supp.3d 310 (E.D.N.Y. 2014) (lauding the United States Attorney's Office for the Eastern District of New York for using its discretion to have an excessive sentence vacated).
The Supreme Court of the United States has acquiesced in the system leading to pleas rather than trials. See, e.g., Lafler, 566 U.S. at 156 (holding that counsel may be constitutionally ineffective by giving improper advice that causes a defendant to reject a plea offer); Bordenkircher, 434 U.S. at 365 (recognizing that prosecutors maintain broad discretion in plea bargaining). Vindictive sentencing doctrine, nonetheless, remains an important check on the trial penalty. Cf. Izaguirre, 856 F. Supp. 2d at 578 (holding that habeas relief was warranted where a judge sentenced a defendant under circumstances that showed vindictiveness because the defendant refused a plea offer).
The instant motion does not present a new claim and may be heard as a Rule 60(b) motion. Garcia proceeded pro se in his habeas petition after his motion for the appointment of counsel was denied prior to the case being transferred to the present trial judge. Order, ECF No. 24, Oct. 24, 2002. Permission was granted by that judge for movant to amend his habeas petition to add the following claim, movant articulated as: "Defendant's aggregated sentence of 125 years should be modified in the interest of justice given its disparity with the plea offer." Decl. in Opp'n ¶¶ 36-37. Soon after, he submitted the Epstein Letter in support of this claim. Ltr. from D. Garcia, ECF No. 140-1, July 24, 2003.
The argument mirrored some phrasing from petitioner's brief to the New York State Appellate Division, but did not unequivocally raise a federal constitutional issue. Unlike the Appellate Division brief, no federal law was cited accompanying the claim. (He did later supplement his argument to include cites to United States Constitutional Amendments V and XIV. See id.). The thrust of the argument, however, plausibly could have been construed to raise a claim of unconstitutional vindictive sentencing in light of the special "solicitude" owed to a pro se litigant. See Williams v. Kullman, 722 F.2d 1048, 1050 (2d Cir. 1983) ("[D]ue to the pro se petitioner's general lack of expertise, courts should review habeas petitions with a lenient eye, allowing borderline cases to proceed."); Traguth v. Zuck, 710 F.2d 90, 95 (2d Cir. 1983) ("Trial courts have been directed to read pro se papers liberally."). Garcia attempted to base this claim on the same factual allegations underlying the vindictive sentencing claim that he now, with the assistance of counsel, plainly brings before this court—he was penalized for going to trial after rejecting the trial court's flat offer of 20 years on all counts. See Ltr. from D. Garcia, ECF No. 140-1, July 24, 2003.
In the instant case, the substance of the vindictive sentencing claim was not addressed in the memorandum and order denying the federal habeas petition. See Mem., J. & Order, ECF No. 39, Sept. 25, 2003
Defendant's Rule 60(b) motion does not raise a "new" claim. It is a request to revisit the judgment of dismissal because his vindictive sentencing claim was not decided on the merits. It may be heard in the first instance by the district court as a rule 60(b) motion; it is not a successive habeas application. Cf. Gonzalez 545 U.S. at 533 ("When no `claim' is presented, there is no basis for contending that the Rule 60(b) motion should be treated like a habeas corpus application."); Stewart, 523 U.S. at 643 ("Respondent was entitled to an adjudication of all of the claims presented in his earlier, undoubtedly reviewable, application for federal habeas relief."). Any barrier from an objection that the instant motion is a successive habeas petition, see 28 U.S.C. § 2244, is overcome by the fact that he has been trying to raise—primarily pro se—the same constitutional issue since the beginning.
Petitioner's Rule 60(b) motion is timely. The long procedural history of the case paints a complicated picture largely due to the lack of counsel. Compare supra Section II(B)(1)(chart of complete procedural history), with infra Appendix A (timeline of habeas motions).
Garcia's habeas petition was denied by the court in September of 2003; he was not granted a certificate of appealability. See Mem., J. & Order, ECF No. 39, Sept. 25, 2003; Mandate, ECF No. 52, Apr. 13, 2004. He filed a motion for reconsideration of the judgment denying his petition less than a year later and has filed additional "Rule 60(b) motions" in 2008, 2010, and 2013. See Appendix A. Since all prior Rule 60(b) motions were filed and decided without counsel, the motions did not coherently state a claim to relief for vindictive sentencing. Petitioner's current Rule 60(b) motion, supported by appointed counsel, now states in clear terms a federal constitutional issue upon which the court may, and should have, granted relief—for vindictiveness.
Garcia's diligence in pursuing this claim is apparent from the litigation history. See supra Section II(B)(1) (table of procedural history); infra Appendix A (timeline of motions). That he did not have an attorney or legal training to assert the Rule 60(b) claim clearly does not mean that he lacked diligence.
Upon appeal of the district court's decision denying the writ and certificate of appealability, the Court of Appeals for the Second Circuit denied a certificate of appealability and dismissed the appeal. The mandate stated in full:
Mandate, ECF No. 52, Apr. 13, 2004 (emphasis added).
The Federal Court of Appeals did not hold that Garcia's constitutional rights were or were not violated. By implication, had he made such a showing of a constitutional violation, relief would have been granted on appeal.
As demonstrated in this memorandum, see infra Section IV(C), Garcia—now represented by counsel—has made an actual showing of a constitutional violation. This court has the authority, pursuant to Rule 60(b), to reopen the judgement and grant the writ. See infra Section V; cf. Gonzalez 545 U.S. at 527, 536 (holding that "[t]he Eleventh Circuit [] erred in holding that. . . Rule 60(b) relief," was unavailable, even though a certificate of appealability was denied by the intermediate appellate court). Gonzalez in effect, as in the present case, approved granting the writ on a Rule 60(b) motion.
Alternatively, the claim is reviewable under the residual right to habeas review. See supra Section III(A)(4). The claim here—of a more than life sentence based on vindictiveness—warrants such a review to avoid a clear injustice. Cf. Stewart, 523 U.S. at 643. ("This may have been the second time that respondent had asked the federal courts to provide relief on his [] claim, but this does not mean that there were two separate applications, the second of which was necessarily subject to § 2244(b).").
Petitioner presented the legal premise of a vindictive sentencing claim in his direct appeal to the Appellate Division. Through counsel he raised the claim under the subheading: "Appellant's aggregate sentence of 125 years should be modified in the interest of justice given its disparity with the plea offer," and citing United States Constitutional Amendments V and XIV. See Relevant Portion of Petitioner's State Appellate Division Brief, Appendix B. The relevant section of the brief alerts the reader to the constitutional issue of vindictive sentencing:
Id. at 31 (emphasis added; page number in original).
A court in the Southern District of New York reached the conclusion of exhaustion in a factual situation nearly identical to the instant case. See Naranjo v. Filion, No. 02-cv-5449WHP-AJP, 2003 WL 1900867 (S.D.N.Y. Apr. 16, 2003). In Naranjo, a petition raised a vindictive sentencing claim in the Appellate Division, stating: "The fact that appellant chose to go to trial, rather than to plead, does not allow for vindictiveness in sentencing." Id. at *4 (emphasis in original). The same federal case, Bordenkircher v. Hayes, was cited with the same parenthetical in both the instant case and in Naranjo. Id. The court concluded: "[c]ontrary to the State's assertions . . . Naranjo has exhausted his vindictive retaliation claim because he cited a Supreme Court case on that issue, with a parenthetical quotation about a `due process violation.'" Id. at *7 (emphasis added).
Garcia's Appellate Division brief similarly cited the federal constitution and a federal case; it asserted a fact pattern—retaliation for going to trial—within the mainstream of constitutional litigation. See Abdurrahman 897 F.2d at 73 ("The State court may be alerted to constitutional claims by reliance on federal and State cases . . . or alleging facts within the mainstream of constitutional litigation.") (internal quotation marks omitted). The Appellate Division was fairly presented with the federal claim of vindictive sentencing. Id. ("Adherence to exhaustion principles does not require a petitioner to raise his claims `by citing chapter and verse' of hornbook law; it simply mandates that the State be given a fair opportunity to hear the claim.").
It bears noting that, although the subjective intent of the attorney drafting the brief is not dispositive of the presentment issue, the experienced State Legal Aid practitioner in this case intended to raise the vindictive sentencing issue in Garcia's Appellate Division brief—and believes she did so. See supra Section II(C)(1). She concluded that by citing the United States Constitution and federal case law on the point, she alerted the Appellate Division to the vindictive sentencing claim—Garcia was penalized for going to trial. Id.
There is a serious question whether petitioner's judicial vindictiveness claim can be held by this federal trial court to have been exhausted in the State Appellate Division. The factual premise of his State claim was based on the prosecution's pre-trial plea offer of 15-30 years, rather than the trial court's 20 year flat offer on which the federal claim is based. The factual allegations underlying the claim in the instant motion cast the vindictive sentencing claim in a "significantly different light" and thus it can be concluded that it was not fairly presented in State court. Davidson 107 F.3d at *12 (internal quotation marks omitted); see also Rodriguez v. Hoke, 928 F.2d 534, 538 (2d Cir.1991) ("state courts should have been given the opportunity to consider all the circumstances and the cumulative effect of all the claims as a whole" (citation and internal quotation marks omitted)); cf. 28 U.S.C. § 2254(e)(1) (presumption of accuracy in State factual conclusion after State evidentiary hearing must be rebutted by "clear and convincing evidence").
After all the delays, to force the defendant to retry this issue and exhaust may appear to be an abuse of the doctrine of exhaustion. But, this court must adhere to the restrictions placed on federal trial courts by 28 U.S.C. §§ 2244, 2254. Much of the difficulty in federal courts' processing of state sentences arises because of "fundamental issues in the administration of our dual court system"; these need to be addressed with more flexibility and an eye on our goal— justice—rather than by restrictions. Cf. Arthur R. Miller, Widening the Lens: Refocusing the Litigation Cost-and-Delay Narrative, 40 Cardozo L. Rev. 57, 71 (Oct. 2018) ("A significant portion of the litigation activities engaged in by courts and counsel involve fundamental issues about our dual court system.").
Garcia's claim of vindictive sentencing based on the prosecutor's pre-trial plea offer was properly raised before the New York Court of Appeals in his application for leave to that court. Respondent conceded at argument that if the issue of vindictive sentencing was raised in the Appellate Division, then it was sufficiently presented to the New York Court of Appeals. See Sept. 13, 2018 Hr'g Tr. 11:22-25. This concession was based on both the facts and law. Cf. Antiterrorism and Effective Death Penalty Act- Habeas Corpus-Scope of Review of State Proceedings-Wilson v. Sellers, 132 Harv. L. Rev. 407, 416 (2018) ("[F]ederal habeas courts should `give appropriate deference to' the applicable state court decision . . . limiting the harsh effects of an unnecessarily strict interpretation of AEDPA." (citing Wilson v. Sellers, 138 S.Ct. 1188, 1192 (2018) ("[T]he federal court should `look through' the unexplained decision to the last related state-court decision that does provide a relevant rationale. It should then presume that the unexplained decision adopted the same reasoning."))).
Garcia's initial two-page letter attached copies of the briefs before the Appellate Division and requested review of "all issues outlined in defendant-appellant's briefs." Petitioner's Initial Application for Leave to the New York Court of Appeals, Appendix C (emphasis in original). This assertion included the claim of vindictive sentencing raised in the Appellate Division. See supra Section IV(B)(1); see also Relevant Portion of Petitioner's State Appellate Division Brief, Appendix B (arguing the constitutional issue of vindictive sentencing). The Appellate Division brief that was presented to the New York Court of Appeals on behalf of defendant argued that Garcia "was improperly penalized for exercising his right to trial," and cited the Supreme Court case Bordenkircher v. Hayes, 434 U.S. 357 (1979), which addressed the federal constitutional issue of vindictive sentencing. See Appendix B.
This succinct letter and accompanying brief should have, and this court finds, based on its own evidentiary hearing, technically sufficiently alerted the Chief Judge of the New York Court of Appeals to the vindictive sentencing issue. See Morgan, 204 F.3d at 370-71 ("Morgan's initial letter to the Court of Appeals expressly `request[ed] this Court to consider and review all issues outlined in defendant-appellant's brief and pro se supplemental brief' submitted to the Appellate Division. . . . That statement was sufficiently specific to alert the Court of Appeals [Chief Judge] that Morgan sought review of all of the issues raised in his pro se supplemental Appellate Division brief." (internal citation omitted) (emphasis added)); Galdamez, 394 F.3d at 76-77 ("[W]e can only conclude that the [New York] Court of Appeals would construe the concise application in this case as a request for review of all of the issues outlined in the [Appellate Division] briefs." (emphasis added)).
The New York Court of Appeals does not have jurisdiction to hear sentencing modification claims on the grounds of a violation of its sense of justice, see supra Section III(B)(2), but it can review the legality of a sentence, including whether it was constitutionally imposed. Henry Cohen & Arthur Karger, Powers of the NY Court of Appeals § 21:8 ("[T]he jurisdiction of the Court of Appeals in relation to the sentence is limited to the review of questions of law affecting the sentence."). The vindictive sentencing claim raised before the Appellate Division—asserting a violation of the Due Process Clause—could have been heard by the New York Court of Appeals. E.g., People v. Van Pelt, 76 N.Y.2d 156, 160 (1990) (New York Court of Appeals addressing a vindictive sentencing claim under the Federal and State Constitutions).
That petitioner filed additional letters addressing only certain issues as part of his leave application does not alter the general exhaustion analysis. Morgan, 204 F.3d at 371 ("[W]e do not think it appropriate to infer that the New York Court of Appeals would construe counsel's second letter as eliminating issues as to which review had been expressly requested."). Garcia's counsel's supplemental letter to the New York Court of Appeals expressly purported to "to augment the arguments contained in the Appellate Divisions briefs," not to supplant them. See Supplemental Application for Leave, People v. Garcia, ECF No. 117, Ex. A, Aug. 7, 2001; Morgan, 204 F.3d at 371 ("The reference in the Court Clerk's Letter to `supplemental' arguments appears to indicate that follow-up letters would be considered in addition to, not in lieu of or as a limitation on, the issues raised in counsel's initial letter."). Consistent with this precedent, federal courts in the Second Circuit can rely on the standard practice in the New York Court of Appeals to submit the Appellate Division briefs and a short letter requesting review of all issues raised in the Appellate Division, supplementing the letter with additional filings.
Nonetheless, for the same reasons as stated above in Section IV(B)(1), the vindictiveness claim in Garcia's present motion was probably never clearly and fairly presented in the New York Court of Appeals in the sense that it reasonably would have alerted the Chief Judge. See supra Section IV(B)(1). That court probably never had the opportunity to plainly consider "essential factual allegations"—i.e. the trial court's 20 year flat plea offer—underlying his federal claim. See Daye, 696 F.2d at 191.
That counsel for petitioner thought she was raising the constitutional claim is understandable since she was aware that the "justice" decision of the Appellate Division was not before the State's highest court—only the constitutional excessive sentence claim was.
The evidence shows that Garcia was unconstitutionally vindictively sentenced. The Appellate Division's ruling that the sentence was "not excessive," see People v. Garcia, 284 A.D.2d 481 (2001), was an unreasonable application of "clearly established" federal constitutional law. See supra Sections III(C), (D). Garcia was informed that he would be retaliated against if he went to trial a second time and he was in fact seriously punished for exercising that right.
The disparity between the plea offer—20 years—and the sentence imposed—125 years— is presumptively vindictive. Cf. Balsavage v. Wetzel, 545 F. App'x 151, 155 (3d Cir. 2013) ("[T]hat [petitioner's] current sentence exceeds his original sentence by a factor of seven further shows the reasonable likelihood that it is the product of judicial vindictiveness."). If 20 years could be said to fulfill legitimate penological goals (deterrence, incapacitation, retribution, and rehabilitation), then this sentence six times its promised length is excessive. There is no apparent reason why 105 additional years imprisonment would be necessary to accomplish acceptable correctional goals.
The two sentences differ in kind: a 20 year sentence would likely have allowed Garcia to live a significant portion of his life outside of prison. A sentence of 125 years is a sentence of life—petitioner stands no chance of leaving prison before he dies unless the serious constitutional injustice done to him is corrected. A gubernatorial pardon is unlikely.
The current system of plea bargaining in the United States theoretically allows for some level of incentivizing guilty pleas on the basis of the need to reduce burdens on trial courts. See Bordenkircher, 434 U.S. at 364 ("While confronting a defendant with the risk of more severe punishment clearly may have a discouraging effect on the defendant's assertion of his trial rights, the imposition of these difficult choices [is] an inevitable—and permissible—attribute of any legitimate system which tolerates and encourages the negotiation of pleas." (internal quotation marks omitted)). "[T]he relevant sentencing information available to the judge after the plea will usually be considerably less than that available after a trial," which may lead to an increased sentence. Smith, 490 U.S. at 801. Prosecutors and courts are not limited by pretrial offers. But a disparity of the magnitude in the instant case proves the sentence's illegitimacy.
It is interesting to note in connection with analyzing State practice, that a federal judge "must not participate" in plea discussions. Fed. R. Crim. P. 11(c)(1). The manner in which the plea deal was offered and communicated to Garcia tended to color the offer. The judge offered the defendant "a flat 20 to cover everything." Epstein Ltr. The offer came after petitioner had already been tried and convicted of robbery and attempted murder and was facing additional related charges. The court had observed the defendant at trial and heard full testimony from witnesses and victims. When the court's plea offer was rejected, on the first convictions alone the court sentenced petitioner to 50 years imprisonment. See Oct. 26, 1998 Sent. Hr'g Tr. 11:11-22.
The plea offer was communicated to petitioner's stand-by counsel, who then relayed the message with its implied judicial threat: "It is your decision, but remember you have nothing to gain by going to trial on the other cases, since if the judge sees defiance he will sentence you to more than the 20 years just on this conviction (which is his legal right)." Epstein Ltr. (emphasis added). Pressing a right to trial would mean, "to put it harshly, you will surely never walk out of a prison again." Id. Mr. Epstein's letter was corroborated when the judge followed through with his explicit and implied threat and sentenced petitioner to a term of years much longer than his lifespan. Decision & Order on 440.10 Motion, ECF No. 130, Ex D, June 29, 2010 (Sentencing Judge: "Both the court and standby counsel unequivocally informed the defendant that he was facing an extremely long sentence if convicted of all four robbery incidents after trial." (emphasis added)).
A presumption of vindictiveness exists, "which may be overcome only by objective information in the record justifying the increased sentence." Goodwin, 457 U.S. at 374. No justification was given on the record for the imposition of this harsh sentence. The plea offer was made only 12 days before petitioner's first sentencing (where he received 50 years imprisonment) and no significant intervening event occurred, other than the rejection of the plea offer.
The court makes the following findings of fact based on clear and convincing evidence: One, the court finds that the letter described in the petitioner's motion was authentic and admissible. See Epstein Ltr. Two, it finds that the trial court offered the defendant "20 years flat" for a guilty plea on all counts after the verdict in the first trial. This offer was conveyed by the trial court through Mr. Epstein, acting as stand-by counsel assisting the pro se defendant, in a private off the record sidebar in which Mr. Epstein and the trial court—but not the defendant— were present. The court makes no finding as to whether the Assistant District Attorney was present at this sidebar. And three, it finds that upon the defendant insisting on going to trial on the remaining counts after he was found guilty in the first trial, the trial court vindictively sentenced him on all counts to 125 years.
In the end, were this case to be decided at this time by this court, the petitioner's motion would be granted and the State would be ordered to resentence Garcia non-vindictively. But, it cannot be granted at this time because of the strict limitations on this court under 2254 of Title 28 reasonably construed, i.e.:
This court finds:
In sum, the petition is denied. An application can be made in this court to reopen the case by letter when the defendant has exhausted remedies available, if any, under State law. See infra Section VII.
The analysis of this court that this is a Rule 60(b) claim, rather than a habeas corpus claim, remains in effect. If Garcia were to bring this claim again in federal court, this analysis, in this court's opinion, continues as the law of the case.
The application for a writ of habeas corpus on behalf of David Garcia is denied. See U.S.C. § 2254.
No costs or fees are granted in view of the good faith of applicant and his lack of assets.
Petitioner's claims have merit and there is good cause to grant a stay of this court's final judgment in order to permit exhaustion of the claim of vindictiveness. Upon a final ruling on that claim in the State Courts, the writ will either be granted by the State and a new sentence imposed or not. If granted, the present case should be closed. If denied, the stay should be lifted and the writ granted by this court so it can be appealed by respondent if he wishes to do so.
The case shall remain on this court's calendar, marked "stayed," and kept as an open case in this court in the interim.
This is a case in that limited class of litigations where there was good cause for petitioner's failure to exhaust in State court and there is merit in his claim. It fits exactly in the class of cases where a stay should be issued. As the Supreme Court noted: "[S]tay and abeyance should be available only in limited circumstances. Because granting a stay effectively excuses a petitioner's failure to present his claims first to the state courts, stay and abeyance is only appropriate when the district court determines there was good cause for the petitioner's failure to exhaust his claims first in state court. Moreover, even if a petitioner had good cause for that failure, the district court would abuse its discretion if it were to grant him a stay when his unexhausted claims are plainly meritless." Rhines v. Weber, 544 U.S. 269, 277 (2005).
It is vital that petitioner has the assistance of counsel in the State court.
SO ORDERED.
Therefore, because appellant's request was "seemingly serious," the court was obliged to inquire sufficiently "to ascertain whether there [was] indeed good cause for the substitution,"
This Court has the plenary power to modify a sentence as unduly harsh or excessive. While it is to be expected that a sentence imposed after trial may exceed the plea offer, a disparity with the plea bargain may be a consideration in reducing a defendant's sentence in the interest of justice. Here, the plea offer before trial was fifteen to thirty years. After trial, appellant received an aggregate determinate sentence of 125 years. Given this harsh disparity, appellant's sentence should be modified in the interest of justice.
This Court has the power to reduce a sentence in the interest of justice, even where the sentencing court did not abuse its discretion. C.P . L. §§450.10, 470.15(6) (b);
While it is "anticipated that sentences imposed after trial may be more severe than those proposed in connection with a plea,"
Similarly, here, appellant was improperly penalized for exercising his right to trial. Before trial, the plea offer was fifteen to thirty years in exchange for his guilty plea to the charges contained in the indictment (sic). After trial on all of the charges, appellant received an aggregate sentence of one hundred and twenty-five years — a term of 75 years imposed upon the present convictions to be served consecutively to a term of 50 years imposed upon his October 26, 1998, convictions for the remaining charges in the indictment, Even taking into account the statutory limitation on the length of his sentence,
Although the offered indeterminate sentence was an illegal one, appellant could have received a determinate sentence of a minimum of ten years and a maximum of twenty-five years. P.L. §70.04(3) (a). At the very least, the plea bargain indicates that both the prosecution and the trial court considered a term with parole eligibility at fifteen years, sufficient punishment for appellant's crimes. In extending this offer, the court and prosecutor no doubt considered the fact that none of the complaining witnesses was injured.
Accordingly, appellant's sentence should be modified in the interest of justice.
