People v. Williams

Smith, J. (dissenting in Williams, Hernandez, Lewis and Rodriguez and concurring in Echevarria).

I agree with Judge Pigott that the addition of postrelease supervision (PRS) terms to defendants’ sentences did not violate either the State or Federal Double Jeopardy Clause (NY Const, art I, § 6 [“No person shall be subject to be twice put in jeopardy for the same offense”]; US Const Amend V [“nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb”]). I disagree with both Judge Pigott and the majority in that I do not think the decisive question is whether defendants had a “legitimate expectation of finality” in the sentences they originally received. That, to me, is a circular question: the prisoners’ expectations were legitimate if protected by the Double Jeopardy Clauses, and not otherwise. I find more useful guidance in the Supreme Court’s leading decision on the application of double jeopardy principles to sentencing, United States v DiFrancesco ( 449 US 117 [1980]), which convinces me that the Double Jeopardy Clauses have no application to the sort of case now before us.

My colleagues take the DiFrancesco decision as creating a “legitimate expectation of finality” test for double jeopardy upon resentencing (majority op at 215; Pigott, J., dissenting op at 227). (They evidently assume, and I join them in assuming, that we should follow DiFrancesco in interpreting both the State and Federal Double Jeopardy Clauses.) I think they read something into the case that is not there. In fact, DiFrancesco never uses the precise phrase “legitimate expectation of finality.” It does say that a sentenced prisoner has no “expectation of finality” *223 when his sentence is, by statute, subject to a prosecutor’s appeal ( 449 US at 136, 139 ), and that his “legitimate expectations are not defeated” when such an appeal results in an increased sentence (id. at 137); but these are observations about the situation the Court faced in DiFrancesco , not formulations of a general rule. DiFrancesco never says or implies that “legitimate expectation of finality” is the test for deciding when a resentencing violates double jeopardy.

Much more important to the DiFrancesco decision than any catchphrase is the Court’s explanation of the very limited effect that the Double Jeopardy Clause has on the power of courts to increase sentences. The essence of the Court’s holding is that sentences and acquittals are different for double jeopardy purposes; the Double Jeopardy Clause does not render a sentence final and unreviewable, as it does an acquittal. “[A] sentence does not have the qualities of constitutional finality that attend an acquittal” (id. at 134). The Double Jeopardy Clause as interpreted in DiFrancesco “does not provide the defendant with the right to know at any specific moment in time what the exact limit of his punishment will turn out to be” (id. at 137 [emphasis added]).

The DiFrancesco Court identified only one double-jeopardy limitation on sentences: “a defendant may not receive a greater sentence than the legislature has authorized” (id. at 139). The Court found this principle to be established by Ex parte Lange (18 Wall [85 US] 163 [1873]). In Lange, the petitioner was granted relief because he had been sentenced to both a fine and imprisonment, though the applicable statute permitted only one or the other. The DiFrancesco Court said the Lange holding is “not susceptible of general application” ( 449 US at 139 ).

Nothing in DiFrancesco suggests that the Double Jeopardy Clause itself has “general application” to sentencing outside of the rare Lange-type situation. Justice Brennan, dissenting in DiFrancesco , seemingly read that case, as I do, nearly to eliminate the applicability of the clause to sentencing proceedings. Indeed, Justice Brennan found implicit in the DiFrancesco majority’s holding a rejection of the idea that completion of a defendant’s originally-imposed sentence is critical for double jeopardy purposes—an idea espoused by the majority here. “Under the Court’s view, there is no double jeopardy bar to imposition of additional punishment by an appellant [sic] court after the defendant has completed service of the sentence imposed by the trial court” (id. at 152 n 15 [Brennan, J., dissenting]).

*224 In short, my colleagues and I read DiFrancesco very differently. There is (nonbinding) precedent for both readings. Some courts have, like today’s majority and Judge Pigott, found a “legitimate expectation of finality” test in DiFrancesco (United States v Silvers, 90 F3d 95, 101 [4th Cir 1996]; United States v Arrellano-Rios, 799 F2d 520, 523-524 [9th Cir 1986]); others have read DiFrancesco as largely eliminating double jeopardy issues in resentencing cases (DeWitt v Ventetoulo, 6 F3d 32, 34 [1st Cir 1993]; United States v Lundien, 769 F2d 981, 986 [4th Cir 1985]). I think the latter cases read DiFrancesco correctly.

In concluding that the Double Jeopardy Clauses are largely irrelevant to a situation like the present one, I do not imply that either the State or Federal Constitution gives courts carte blanche to increase defendants’ sentences whenever they choose, up to the maximum permitted by statute. Rather, I follow the DeWitt and Lundien courts in concluding that due process, not double jeopardy, sets limits—though not narrow or rigid ones—on courts’ resentencing power. The flexible approach that courts customarily use in interpreting Due Process Clauses— avoiding arbitrary cutoffs, but addressing “the familiar due process problem of deciding how much is too much” (DeWitt, 6 F3d at 36 )—is better suited than double jeopardy analysis to identifying and correcting the few cases in which a belated sentencing enhancement is inconsistent with fundamental fairness. Such a case will be “the very rare exception to the general rule that courts can, after sentence, revise sentences upward to correct errors” (id.).

If the issue is understood as one of fundamental fairness, the cases now before us are easy ones. There is nothing fundamentally unfair about what happened to these defendants. Their sentences were enhanced, not by increasing their prison terms, but by adding terms of PRS required by state statute— components of their sentences inadvertently omitted when the sentences were pronounced. Those who did not know before they were originally sentenced that they were supposed to be subject to PRS soon found out, or at least had ample opportunity to do so. As Judge Pigott demonstrates, “[a]ll the evidence suggests that from the moment they entered the prison system, if not before, defendants expected to serve postrelease supervision” (Pigott, J., dissenting op at 228). None of them, so far as the record shows, complained or expressed surprise when they were (illegally) subjected to PRS on their release. None of these defendants is remotely comparable to the petitioner whose due *225 process claim was upheld in DeWitt . DeWitt had been granted a suspension of his life imprisonment sentence, had been released on parole, and had established a business and personal relationships in the community, only to be given the completely unexpected news that the suspension was a mistake and he was subject to a life sentence after all.

Since the resentencings of defendants in People v Williams, People v Hernandez, People v Lewis and People v Rodriguez violated neither their double jeopardy nor their due process rights, I would affirm the orders from which they appeal. In Matter of Echevarria v Marks, I concur in the result.