New York's persistent felony offender statute does not violate the Sixth Amendment of the U.S. Constitution, the 2nd U.S. Circuit Court of Appeals ruled Monday.
Sitting en banc, an easy majority of circuit judges said that judicial findings in applying an enhanced sentencing range for defendants under the statute do not violate the right to trial by jury.
The decision came after the full court heard two hours of arguments on the constitutionality of the statute, N.Y. Penal Law §70.10, in July, on three cases brought by habeas petitioners: Phillips v. Artus, 06-3550-pr, Portalatin v. Graham, 07-1599 pr, and Morris v. Artus, 07-3588-pr.
The circuit's decision reversed the grant of Carlos Portalatin and affirmed the denials of William Phillips' and Vance Morris' petitions.
On March 31, a three-judge 2nd Circuit panel had ruled unanimously that the Sixth Amendment "prohibits the type of judicial fact-finding resulting in enhanced sentences" under the statute.
But on Monday, that panel was reversed by Judges Richard C. Wesley, who wrote the majority's opinion, and eight other judges: Dennis Jacobs, Jose A. Cabranes, Robert N. Katzmann, Reena Raggi, Peter W. Hall, Debra Ann Livingston, Gerard E. Lynch and Denny Chin. In the minority were two judges who were on the March 31 panel, Judge Ralph K. Winter and Robert D. Sack, who were joined in dissent by Judge Rosemary S. Pooler. (The third member of the March panel was Judge J. Garvan Murtha of the U.S. District Court for the District of Vermont, sitting by designation.)
The March panel had found that, under a series of U.S. Supreme Court rulings, including Blakely v. Washington, 542 U.S. 296 (2004), the statute vests unconstitutionally broad discretion in judges to set sentences of up to life for offenders deemed to be persistent felons.
Under the statute, a person who is a persistent violent felony offender -- someone who stands convicted of a violent felony and has two prior violent felony convictions -- is subject to an enhanced sentencing range, with a minimum term of 12 to 25 years and a maximum of life.
A persistent felony offender on his third strike may get a sentence corresponding to that of a class A-I felony, with the same minimum and maximum of the persistent violent offender, but with the distinction that the judge has more discretion and does not have to impose a sentence within that higher range.
A sentence within the enhanced range may be applied once the judge has found it merited by the defendant's background and the nature of his criminal conduct. As of March 31, there were 2,467 inmates serving prison sentences as persistent felony offenders.
The more specific question before the circuit was whether the application by New York state courts of the repeat felony offender law runs afoul of clearly established law as interpreted by the U.S. Supreme Court because it calls for judges to find an aggravating factor that increases a sentence beyond the maximum called for by statute -- a violation of Blakely, Apprendi v. New Jersey, 530 U.S. 466 (2000), and Cunningham v. California, 549 U.S. 270 (2007), which say any factor that increases a sentence past the statutory maximum must be determined beyond a reasonable doubt.
The March panel said it does, putting the 2nd Circuit temporarily at odds with the New York Court of Appeals, which has upheld the law in People v. Rivera, 5 NY3d 61 (2005), and other cases.
But Wesley said Monday that "judicial factfinding that is undertaken to select an appropriate sentence within an authorized range -- up to and including the Apprendi maximum -- does not offend the Sixth Amendment."
He said the court's assessment was guided by the construction by the New York Court of Appeals in Rivera and other cases in which the state court "has interpreted the statute to authorize a class A-I sentence based on the defendant's predicate felony convictions alone." "In essence, Rivera construed the statutory directive that a sentencing judge articulate the reasons for imposing a class A-I sentence as one of procedure: the explanation itself satisfies the statutory requirement, regardless of whether it contains any facts beyond those respecting the defendants' predicate felonies," he said. "Accordingly, any other facts upon which the sentencing judge chooses to rely cannot properly be understood as 'elements' of the underlying offense in terms of Apprendi, because they are not necessary factual predicates to the imposition of the sentence."
Instead, he said, "they simply inform the judge's discretion to select an appropriate sentence within those ranges authorized by statute."
Winter in dissent said the majority had undertaken an "abstract discussion" showing only that the law "can be applied" in a constitutional manner.
"[M]y colleagues have successfully defended the [statute] against a facial attack by showing that the predicate felonies may alone justify a Class A-I sentence, while not addressing the claims before us that factfinding beyond the predicate felonies actually occurred and enhanced the sentences of the petitioners," Winter said.
The law was defended by Brooklyn Assistant District Attorney Leonard Joblove and New York Solicitor General Barbara Underwood.
Brooklyn District Attorney Charles J. Hynes said in a statement, "I'm very pleased with the great work of my Appeals Bureau, their briefing and oral argument and the collaborative effort we had with the Office of Attorney General Cuomo. I am also pleased as a member of the New York State District Attorneys Association that the Office of New York County District Attorney [Cyrus R.] Vance [Jr.] wrote an amicus on behalf of the association. The decision restores just punishment for a category of dangerous convicted felons. "
The habeas petitioners were represented at oral argument by Andrew Fine and Martin Lucente of the Legal Aid Society and Joshua Levine of Appellate Advocates.
Fine said Monday he intends to seek a writ of certiorari from the U.S. Supreme Court.
"We believe the statute is unconstitutional and we believe the Second Circuit was wrong in concluding that the decisions of the New York Court of Appeals were not unreasonable," Fine said. "We believe they were unreasonable applications of Supreme Court precedent and were contradictory to Supreme Court precedent."