Petition for Writ of Certiorari — New York v. Williams

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~ Supreme Court, U.S

|) Fil ED

091425 MAY 21 2010

Sn the Supreme Court of the Gnited States

NEW YORK, PETITIONER

{

DARRELL WILLIAMS, EFRAIN HERNANDEZ

CRAIG LEWIS, AND EDWIN RODRIGUEZ

ON PETITION FOR A WRIT OF CERTIORARL TO THE

COURT OF APPEALS OF THE STATE OF NEW YORA

PETITION FOR AWRIT OF CERTIORARI

CYRUS Ro VANCE, JR

hyastrict Attorney

(CAITLIN J. HALLIGAN*

General Counsel

PLiLARY LLASSLER

Chief of Appeal:

DAVED M COHN

Senior Appellate Counsel

MARTIN J. FONCELLO

TIMOTHY ©. STONE

DAVED P. STROMES

Assistant District Attorney

New York County District Attorney s Offices

One Hogan Place

New York Jew York LOOLS

(212) 000-99 10

1} illig mavdany nyc VON

* (founsel of Record tor Petitione.

QUESTION PRESENTED

Does the Double Jeopardy Clause prohibit a court

Irom correcting a Sentence that as originally

Pronouncea lacked a required Component Or Was

( therw rel & illeg@alky len mt?

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES 1\

INTRODUCTION |

OPINIONS BELOW |

STATEMENT OF JURISDICTION

CONSTEPUTIONAL PROVISION INVOLVED 4

STATEMENT OF THE CASE

A. Statutory !'ramework

B Respondents’ Sentencing Proceeding: 6

l The Oneinal Sentence Pronouncement:

and Commencement of Respondents ite

‘Terms ()

Corrected Sentencing Pronouncement st

( The Decisions Below ys

REASONS FOR GRANTING ‘THE WRIT 12

1 Courts natlonwide are divided over whethe.

the Double Jeopardy (olau &. limits a COUT :

authority to correct a sentence that lack: a

required Provision UO) l othe rW ise rile cally

rr nient Ba

PABLE OF AUTHORITIES

PEDERAL CASES

( aE ted Stat mH F949 (Pp t App

194) i

bobby v. £5 Piya ae 140 (2009)

a) 1 { (/nited tale p43) | )60 (1947) | | ) 2G

BY, fv. Llelgemo 19 2d 95 (] C1} 19 78) } { (}

Caille v. United States, 487 F.2d 614 (5% Cir. 1973) Ld

Lepartment of Revenue of Montana t Aurth Rancl

11 U.S. 767 994) AD

Farley vo. Murray, 45) F.3d 7) (29 Cir. 2006) 16-17

Kdpar v. MUTE Corp., 457 U.S 624 (1982) Lia

Hernandez v. Quarterman, 340 Fed. Appx. 210 (58 Ci

’QO9), vacated on reh p sub nom. Hernandez t

haley 2010 Wi, GO8S65 (Hb Chay POLO) Z\)

In Re Bonner, 151 U.s. 242 (1894) yp

ln re Bradley, 318 U.S. 50 (1943) L£o-L0

lones v. Thomas, 491 U.d. 376 (1989) y

Miller v. Aderhold, 288 US. 206 (1933) Ze

Monpe v. California, 024 U.o. 42) (1998) + ee

Jorth Carolina v. Pearce, 395 U.S. 711 (969) oS $ooes

Oksanen vo. United Stati 362 F.2d 74 (8 Cir, 1966) is. ZO

Pennsylvania vo Goldhammer, 474 U.S. 28 (1985) ud

Phillips v. Biddle, 15 F.2d 40 (8 Cir. 1926) 11

Pollard v. United States, 352 U.S. 354 (1957) ap

Southern Pacific Terminal Co. v. Interstate Commerce

Commuission, 219 US. 498 (19171) e

U/nited States ex rel. Marcus v. Hess, 317 U.S. 537

(1943) 26

Unite d otlate » ( Arrellano fave De (99 | 2d 020 (4th | iI

1986) 16, 20

United States v. Bennett, 423 F.3d 271 (34 Cur. 2005) 14

United States v. Cook, 890 F.2d 672 (4% Cir, 1989) “()

United States v. Daddino, 5 F.3d 262 (7 Cir. 1993) 16, 19

United States v. Davis, 112 3d 118 (34 Cir. 997) Li

United States v. DeLuca, 692 F.2d 1277 (9 Cir. 1982) 14

United States v. Diltrancesco, 449 U.S. 117 (1980)

United States v. Harley, 816 F.2d 1428 (0 Cir. 1987) 1G-1 7

United States v. Fogel, 829 F.2d 77 (D.C. Cir. 1987) 12-13

United States v. Hawthorne, 806 F.2d 493 (34 Cir. 1986) is

United States v. Kaye, 1739 F.2d 488 (9™ Cur. 1984) ae

United States v. Kenyon, 519 F.2d 1229 (9 Cir. 1975) lo

United States v. Kinsey, 994 F.2d G99 (GQ Cir. 1993) 1

Uinited States v. Lundien, 769 ¥ 2d GS] (44 Cir. 1985) Lo-1 4, ZU

United States v. Rico, 9OZ F.2d 1065 (24 Cir. 1990) 14-15, 20

United States v. Robinson, 368 F.3d 653 (6 Cir. 2004) 14

United States v. Rlosario, 3866 # bd 166 (24 Cir 2004) 16

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In The

SUPREME COURT OF THE UNITED STATES

NEW YORK,

Petitioner.

DARRELL WILLIAMS, EFRAIN HERNANDEZ,

CRAIG LEWIS and EDWIN RODRIGUEZ,

Respondents

PETITION FOR A WRET OF CERTIORARI

The State of New York respectfully petition

for a writ of certiorart to review the yuadement of thi

No W York Court ol Appr al }]) the @?@ CaS

INTRODUCTION

New York law requires that violent felon

serve mandatory terms of post-release supervision

(“PRS”) following their release from prison. In each

of the Cast below Bat tral courts omitted the

required PRS terms from the original sentencing

pronouncements After the trial court subseque ntly

corrected respondent sentence by pronouncing

their mandatory PRS term: abl new sentencing

procecding the New York Court of Appeals held

that the federal Double de pardy Clause barred

tho @ Tew pronouncement and thy i | {hie ePnNirencec!

must stand as originally pronounced, even though

they did not comport with state law

‘The decision below deepens a split on whether

the Double Jeopardy Clause bars correction of a

sentence that lacks a@ required component or 4

otherwise illegally lement. Every federal circuit and

most state courts to consider the question have held

that double jeopardy pose no obstacle to such

resentencing. Indeed, some federal and state court

have held more broadly that the Double Jeopardy

(Clause has no applhecation whatsoever to non-capital

sentencing procecdings, unless the defendant ha

completely served a lawful sentence. ‘To the extent

that, in an extreme case, resentencing might be

inconsistent with fundamental fairness, some court:

have held that due process might operate as an

independent check, but that issue is not presented

here

In sharp contrast, the New York Court of

Appeals joined a number of other state courts in

holding that) correction of an invalid sentence

implicates the Double Jeopardy Clauss W hil

acknowledging that respondents were on notice of

their required PRS terms, the Court of Appeal:

concluded that the Double deopardy Clause har

adjustment of a sentence once a defendant has been

released from prison

A grant of certiorari: 1 independently

warranted because the decision below conflicts with

key precedents of this Court. More than forty year

Avo (his Court held that) the Double Jeopardy

(Clause does not “restrict}] the bmiposilion of an

otherwise lawful single pumshment for the offense

mn question North Carolina vo. Pearce, 8395 U.S. 711

(21 (1969). ‘The Court has specifically declined t

apply the double jeopardy protection as a bar to thi

correction ol «4 SeCNLE NC that lacked Pa | required

component, see Bozza vu. United State 30 US. 160

165-67 (1947) and Lo renewed enlens STS.

proceeding In non-capital cases, see Monge |

Caltfornia, 524 U.S. 721, 726-34 (1998). In addition

(his Court has declared that the Double Jeopardy

(Clause does not render even a lawful sentence final

atl any particular point in lime. See United States

Dikrancesco, 449 U.S. 117, 1837 CAQS8O) ‘th bright

inne Jannat 1Apo ed by the court below cannot be

reconciled with these ruling:

ff deft undisturbed, the decision of the New

York Court of Appeals will threaten public satety

The state has a compelling interest in ensuring that

criminal defendant serve the full punt himent tor

their offense that ha been mandated = by tha

le~eslature Which includ PRS leach of the

respondents committed a violent crime, inchudinys

assault during the course of an attempted robber

(Williams) and home NVasiol bury lari

(Hernandez, Lewis, and Rodrguez). Violent felon

(it ly ra | (he { pPOst i. if cd: ees tore ir i ad brite thas

general population without transitional supervision

In Manhattan alon post-release UperVvision Ol

ipproximately GOO violent felons ha iready been

terminated as a result of the Court of Appeal

decsion and thr New York State ID partment of

(C‘orrectional Services estimate that the PRS ter

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any person be subject for the same olfence to be

Lwice putin jeopardy of life or limb.”!

STATICEMIENT OF Till CASIc

A. Statutory Framework

LJaocler New York law most violent felon

must be sentenced to “determinate” prison term:

that 2 incarceration for a set term of year Set

NY. Penal Law §§ 70.02, ‘70.04. State law further

requires that every determinate prison sentence be

followed by a period of post-release supervision. See

NLY. Penal Law & 10.450] )

Ino odight) of that) unequivocal = statutory

mandate, cach of New York's intermediate appellate

court held that a mandatory PRS term applied

automatically following every “determinate” prison

I‘ [) ily! Jeopal } { | Ul 1} ic pyar Ly] { dye

Liale by the fourteenth Amendment. See Bobby vu. Bu Lag

cid; ZiGo. Biot t2z000;

pond nt Were ntenced, §& (0.45(]) of

this lev York Penal Law provided that lefach determinate

centence al pic Liude isa part thereol an additional period of

t-reiease Ipervision In 2008. that provision Wa ymended

{ rect that when a court mmposes 4a determinate sentence if

halhin each case state not only the term of imprisonment, but

also an additional period of = post- release SUpPErVvIsiION aA

determincd pursuant to this articl The purpose of thi

amendment was to retain the mandatory PR! requirement and

copudorgny thie latute Lo People i oparbel IO N.Y 3d 457 (2008)

tyschy taeda’ thrat tha plencins rh must orally pronoun

mandatory 7] beri

sentence, regardless of whether it had been

separately pronounced see, e.g., Peopte ex rel

Johnson vo. Warden, 16 A.1I).38d 188. 183 (N.Y App

Div. 1s Dept 2000); People v. Miller, 1 A.D.38d 613

G13 (N.Y. App. Div. 2¢ Dept. 2003); People v. Boyce,

12 A.D.3d 728, 729 (N.Y. App. Div. 34 Dept. 2004)

People vo Crump, 302 AW).2d 901, 902 CN-Y. App

Div. 4 Dept. 2008)

Bb. Respondents’ sentencing Proceedings

1. The Original Sentence Pronouncements and

Commencement of Respondents’ PRS Terms

In each of the case; below, the sentencing

court pronounced the respondents prison term but

did not separately pronounce the legally-required

penod of PRS. None of the respondents complained

mnitially about the lack of an oral pronouncement

Yo the contrary, both of the respondents who

pursued direct appeals after the onginal sentence

was imposed forthrightly acknowledged their PRS

term

luach of the respondents obtained conditional

(1.e., carly) release for good behavior after serving

srx-sevenths of his prison term, and each began

serving PRS immediately upon release. Under New

i

1 See People v. Darrell Williams, Appellants Brief to the

1EV 1 Ok Appellate Division, Furst Department p. J (filed

October ZOUDd). People r Craig Lew Notice of Appe al (dated

April 28, 2002) The above-referenced document wert

included in the state court record in each appeal

York law, an inmate who obtains conditional release

is placed on PRS immediately thereafter, and state

law requires the New York State Department of

Correctional Services (DOCS”) to inform all

defendants about the intertwined concepts of

conditional release and PRS upon their intake into

state prison.?

In order to gain conditional release, each

defendant accepted, in writing, the terms and

conditions of PRS, as they were required to do under

State law. None of the respondents either

(The New York Correction Law provides that an

Inmate becomes eliyible for conditional release upon completing

six-sevenths of Ms prson term, see N-Y. Correction Law §

SO%(1)(a), (ce), after which he is placed on PRS, with the

remaiming one-seventh of the prison term “held in abeyance,

see N.Y Penal law § 70.45(5)(a)-(b) The Departme nt of

Corrections is required, “[uJpon commencement.’ of a sentence,

to provide each wimate with a copy of Sectson 803 and to “fully

explain{}’ its import. NY. Correction law § 803(6)

NY. Penal Law § 70.45(3) provides that, “[ujpon

release from the underlying term of imprisonment, the person

shall be furnished with a written statement setting forth the

condition ol igieey in suffiqent detail to provide for the

persons couduct and supervision.” Similarly, N-Y. Executive

Law § 259-¢(2) states that “[nJo person shall be

conditionally released unless the appheant has agreed in

Vvritunp to the conditions of release.”” DOCS and Probation

Mepartment regulations reiterate those requirement: see 9

NY CER R. §& 361.4 (probation officer must “make every effort to

ensure the individual understands the order of conditions of

release,” “has been provided with a copy of his order,” and “has

agreed to the conditions and has signed the order’); 9

NOY CR ER. § &O03. 1c) ( conditional release will not be franted

(Continued )

complained at the time about being released to PRS

or alleged that his mandatory PRS term had come as

a Surprise

2. The Corrected Sentencing Pronouncements

In 2008, the New York Court of Appeals held

that under a_estate procedural rule requiring

pronouncement of sentence, see N.Y. Crim. Proc

Law §& 380.26, a PRS term could not be enforced if

the tral judge had failed to pronounce the term

orally at the defendant's sentencing hearing. See

People v. Sparber, 10 N.Y.3d 457, 469-72 (2008); see

also Garner v. New York State Dept. of Correctional

Services, 10 N.Y.3d 358, 362-63 (2008). The Court of

Appeals noted, however, that the lack of an oral

pronouncement amounted to nothing more than a

clerical or procedural error, which could be easily

remedied by resentencing. See Sparber, 10 N.Y 3d

472: cf. Garner, 10 N-Y.3d at 363 n.4

Sparber and Garner had widespread effect

Because the intermediate appellate courts had not

previously required an oral pronouncement of PRS,

thousands of violent offenders had to be resentenced

‘Two months after Sparber and Garner issued, the

New York lepislature enacted a new. statute to

provide for the identification and — orderly

{ (Continued)

to any individual unl he states in writing, in the presence of

a witness, that he has read and understood the conditions of

release )

a4

resentencing of all defendants whose PRS terms had

not been PPFOMOUTM ed orally Le NUY (Correction

law § 601-d. ‘This provision designated as person:

ehgible for resentencing any inmates currently in

prison, and any releasce: currently under

supervision, whose PRS terms had not been imposed

Ina procedurally appropriate manner. See id. § GO]

d(2)

In accordance with Sparber and & 6GO1-d of the

Correction Law, alJ four respondents -- cach of whom

was serving PRS at the time were returned to

court for correction of their sentences. At the new

hearings the trial judges orally pronounced

respondents. PRS terms, rejecting, alone othe:

clams, double jeopardy challenges to resentencing

See App. 54a-83a Significantly, none of the

respondents alleged at resentencing that he had

been unaware of the PRS requirement at the time of

the onginal sentencing Hee App 30a. 40a-4la. 54a

3a

(Cc. The Decisions Below

Respondents appealed from their

resentencings, and the intermediate state appellate

court reyected their double jeopardy claims. In each

case, the appellate court focused on the fact that

respondents had no legitimate expectation of finality

6 Williams was resentenced after Sparber and prior to

the enactment of & G6Ol1-d The other respondents were

resentenced shortly after the enactment of § GO1-d

in sentences without PRS. See People vo. Hernandez,

App. 49a (defendant had no legitimate expectation

of finality’ in a sentence without the mandatory PRS

component, as a sentence without PRS was

“manifestly contrary to law’; defendant “[cjlearly

understood that PRS was a component of his

sentence’); People vo. Lewis, App Sta (rejecting

double jeopardy claim for reasons’ stated in

Hernandez); People v. Williams, App. 45a (same);

People v. Rodriguez, App. 52a-53a (rejecting double

jeopardy claim for lack of preservation and_ for

reasons stated in Hernandez)

The New York Court of Appeals reversed, on

the sole ground that the federal Double Jeopardy

Clause barred correction of respondents’ sentences

The court recognized that state law permitted an

adjustment of respondents’ sentences. See App. Ida

IGa ft also acknowledged that defendants “are

presumed fo be aware that a determinate prison

sentence without a term of PRS is illegal and, thus

may be corrected by the sentencing court at some

point in the future.” App. 22a. And the court noted

that at the time of their conditional release from

prison, respondents had executed “written

acknowledgments regarding [the] PRS

requirements.” App. 24a (eitiung N.Y. Penal Law &

70.45(3); N.Y. Executive Law &§& 259-p(2): 9

NEY CLR ER. § 8003. 1(c))

‘The Court of Appeals nonetheless concluded

that “there must be a temporal limitation on a

court's ability to resentence a defendant.” App. 23a

Mven when a sentence is “illegal under the Penal

10

Law, the court declared, it becomes “final for

purposes of the federal] Double Jeopardy Clause once

the defendant “is released from custody and returns

to the community and the time to appeal the

sentence has expired or the appeal has been finally

determined.” App. 2Ga-27a

Two of the court’s seven judges dissented,

pointing out that the majority had misunderstood

and misapphed U.S. Supreme Court precedent. One

of the dissenters explained that this Court had

identified only one double jeopardy limitation on

sentences: “a defendant may not receive a greater

sentence than the legislature has authorized.” App.

33a (quoting Dilfrancesco, 449 U.S. at 139). While

acknowledging that due process may constrain a

court's resentencing power, the first dissenter

concluded that these cases were “casy” under a due

process standard, as respondents had expected to

serve PRS all along. App. 34a-35a. The second

dissent underscored that “a defendant has no

legitimate expectation of finality in an unlawtiul

sentence,” App. 87a (citing Bozza, 480 US. at 167),

and reiterated that defendants are “charged with

knowledge that their sentences, if illegally imposed,

are subject to correction. App. 39a (citing

Diltrancesco, 449 US. at 136, 149).7

Although respondent Wilhams completed his PRS

term during the pendency of the proceeding before the New

York Court of Appeals, the state’s certiorars petition is mot moot

as to him. Given the length of the appellate process, which

sometimes takes years, and the relatively brief duration of

(Continued...)

| |

REASONS FOR GRANTING THE WRIT

I. Courts nationwide are divided over whether

the Double Jeopardy Clause limits a court’s

authority to correct a sentence that lacks a

required provision or is otherwise illegally

lenient.

A split of authority exists over whether the

Double Jeopardy Clause limits a court's power to

correct a sentence that lacks a required provision or

is otherwise illegally lenient This Court should

grant certiorart to clear up the “varied and

conflicting interpretations’ in this important area of

law United States v. logel, 829 F.2d 77, 8G n.10

(D.C. Cir. 1987)

(... Continued)

PRS, a challenpe to the Court of Appeals’ bright-line rule 1

capable of repetition and can evade review See generally

Southern Pacific Terminal Co. | Interstate Commerce

Commussian, 219 1IS. 498, 515 (1911). In addition, the decision

below Wf left antact, as hkely to have eimil litigation

consequences. See Edgar vu. MITT: Corp., 457 USS. 624, 630

(19%?) (constitutional claim not moot in light of potential for

civil and criminal hability)

In any event hive controversit remain a to

respondents Hernandez, Lewis and Rodnguez. Those three

individuals were released from PRS prior to the completion of

their terms, following the decision of the Court of Appeals and

this Court’s denial of a stay. Thear remaining PRS tame wall be

rennstated uf this Court reverses the decision of the Court of

Appt al:

A. Majority view: the Double Jeopardy Clause

does not bar correction of an illegally-lenient

sentence

Applying this Court's decisions in Bozza

Dikrancesco and Pearce, the majority of jurisdiction:

recognize that the Double Jeopardy Clause does not

prevent the correction of sentences’ that lack

required provisions or are otherwise legally lement

Those jurisdictions include the Furst, Third, Fifth

Sixth, Ninth, and District of Columbia Circuits; the

highest courts of Arizona, Calhfornia, Hawaii,

IWlinois, Jlowa, Louisiana, Minnesota, Nebraska,

North Dakota, Oklahoma, Oregon, Pennsylvania,

Utah and the District of Columbia: and = state

intermediate appellate courts in Alabama, Georgia

and Michigan See, ep., Breest v. Helpemoe, 579

RioYd 95, 98-100 (1st Cir. 1978); United States ¢

Hlawthorne, 806 F.2d 4938, 501 (84 Cir. 1986): Carlle

v. United States, 487 F.2d G14, 615-16 (5 Cir. 19738):

(/nited States v. Strozier, 940 F.2d 985, 987 (6™ Cir

1991): United States vo. Kenyon, 519 F.2d 1229, 1282

33 (9 Cir. 1975); United States v. kogel, 829 F.2d

77. 90 (D.C. Cir. 1987):8 State v. Powers, 742 P.2d

|

192, 796 (Ariz. 1987); People v. Hernandez, 968

8 In Fopel, the Ihyistnet of Columbia Cirewuit held that

after the delendant had begun serving an illepally-lenient

entence, correction of the sentence was permissible, but only to

the extent nec ary to conform it to the law Mee hogel, OLd

lk’ 29d at 90° see also Miranda colale O56 P.2a 1377. 1377-78

(Nev. 199%) (correction improperly went beyond conlorming the

entence to legal requirements)

465, 466-70 (Cal. 1998); Barrow v. United States, 295

i’. 949, 949 (D.C. Ct. App. 1924); State v. Delmondo,

G96 P.2d 344, 345-46 (Haw. 1985); City of Chicago vu

Flooman, 705 N.i.2d &1, 86 (IL. 1998); State v. Allen,

GO1l N.W.2d 689, 690 (lowa 1999): State v. Williams,

800 So.2d 790, 798-800 (La. 2001); State v. Calmes,

632 N.W.2d 641, 644, 649 (Minn. 2001); State v

Wilcory, 479 N.W 2d 134, 136-37 (Neb. 1992): State

Wika, 574 N.W.2d 831, 8383 (N.D. 1998); Stafford v

State, 8O0O P.2d 738, 740 (Okla. Crim. App. 1990);

lrroembling v. Gladden, 417 P.2d 1020, 1021-22 (Or

1966); Commonwealth v. Jones, 554 A.2d 50, 52 (Pa

198Y)- State uv. Babbel, 813 P.2d 86, 88-89 (Utah

199]): Cline v. State, 571 So.2d 368, 369-70 (Ala.

Crim. App. 1990); Strickland v. State, 687 S..2d

22), 222-23 (Ga. App. 2009): People v. Brown, 2001

WI. 6824389, *2-*5 (Mich App 2001). see also United

States v. Rico, 9O2 F.2d 1065, 1068-69 (24 Cir. 1990)

(rejecting double jeopardy challenge to correction of

Hlegally-lement sentence where government's time

u

to appeal had not expired)

Y tederal Kale of Criminal Procedure 36, which allows a

eourt to correct at any time a clerical’ error in the

imposition Of sentence, or an error arising from an ‘oversight o1

omission, appears to give federal courts authority to correct

sentences where @ mandatory or nepotiated provision has been

inadvertently omitted, but not where a court omitted

discretionary provision. Compare United States v. Bennett, 423

Eogd 271, 277-862 (39 Cir. 2005) (correction of nepotiated

forfeiture order) Strozver G40 I. 2d at YT (omission of

mandatory supervised release term); United Slates v. DeLuca

G92 F 2d 1277, 1286 (9 Cir, 1982) failure to impose sentence

on a count); with United States v. Robinson, 36% 3d 655, 655

(Continued )

14

Significantly everal of these jurisdiction:

have approved the correction of invalid sentence:

even where the defendant has already been released

from custody. See, e.g., Calmes, 632 N.W.2d at 644,

649 (mandatory conditional release term added after

defendant's placement on supervised — release):

Abram v. State, 574 So.2d 986, 987-88 (Ala. Crim

App. 1990) (defendant returned to custody following

correction of invalid “split” sentence); see also Jtico,

9O2 Fo2d at 1068-69 (Gnvalid sentence properly

increased even though defendant had completed

ongimally imposed prison term and was | on

supervised release); State v. Pascal, 736 P.2d 1065

1069-71 (Wash 1987) (state properly appealed

illegal sentence after defendant completed serving

it); Grayczyk vu. State, 666 N.W.2d 472, 474-76 (S.D

2003) (detendant returned to custody atter beimey

prematurely released due to error in calculation of

sentence)

The Fourth Circuit, along with the high court

of Arizona and California, have pone even furthe

The Supreme Courts of Arizona and Califormia have

stated broadly that the Double Jeopardy Clause doc:

not apply to non-capital sentencing determination:

Powers, supra, 742 V.2d at 796; Hernandez, supra

968 P.2d at 466-70; see also State vu. Marshburn, 620

(.. Continued)

57 (6 Cir. 2004) (court unexpressed intention to inpos

discretionary term of supervise release); United States v. Kays

739 F.2d 488, 490-92 (9'" Cir, 1984) (discretionary imposition of

consecutive sentences)

Yd 4Zw&2. 2K4 O(N. App Z0U00) Likewise Lyi

Fourth Cireuit has opined that the Double leopardy

Clause does not apply to sentencing determination

unle: the defendant has fully sullflered a lawful

punishment for his crime See United States |

Lundien, 169 F.2d 981, 984-86 (4 Cir. 19} a

In addition, in casi not involving doubl

jeopardy claim the Second and KMivhth Cuircuat

have declared that sentence can and hould be

corrected to contorm to the law Yer Harley 1%

Murray, 451 F.3d 7) (7 (2% Cir. 2006) (althoug

PRS term could not be enforced because it had not

;, bhis case dor not quare)y present the question

whether the Double de ypardy (Clause set 1 Lemporal limit on

the amendment of a4 laiwfuld sentence Peveral lederal circuit

court have indicated that an ¢ K pe tation of finality arise aite!

complet ervice ol a luawlul sentence ove, €.pP (/nited Late {

ves 90 I 4d 95, 1O1 (4% Cir. 1996): United Stati Uv Anse

994 I 2d G99, 702-03 (9 Cir. 1993): United States t lrrellano

fii: 199 I 2d 520, 623-24 (9 Cu 1YS6) Cc] CA Sane? Linu

fate 12 bk 2d 74, RO (KB Cyy 1 S965) ; veral other courts

have gone further and deemed lawful sentenc final at sri

eurlier point in time, absent a legislative provision permitting

revieyv ee Snell i Slate 124 0.20 105, 108 (Ala. Crim IY

1998) Gdawful sentence final Iler imposition); ofale Wihiee

198 P. 2d 205, 208% (Ariz. 1972) (same), United State hOsarLo

{hOH k 4d 166. 169-71 (24 Cir. 2004) Gawtul sentence final after

mmen ment): United Stat I ILarley, BIG F.2d 1423 1454

(10 Cir. 1987) (Same): Lthridpe foal 0) a :. 3

(Mi \pp Z0O01) ¢ ime) litte it fiyan i249 A.Zd 332 b5

(NJ 19%1) (same): United Stat { Ljaddtno » id 262. 26

(7 Cir, 99%) Cawtul sentence tinal atter rejJcease from custody)

fate ea vel. Hill oo Parson 16) Sh.2d 194, 19 WV Vi. 199

(sume

been pronounced orally or otherwise entered on thi

court record this did not “preelude the tate from

moving in the New York courts to modify barley

entence to include the mandatory PRS term’ ):?!!

Phillips v. Biddle, 15 F.2d 40, 40 (8 Cir, 1926) Ct

is wrong that where there is statutory authority fon

the total sentence which the court clearly intended

to impose, and where the case can be returned for

resentence, that the prisoner hould « ape part ol

the yust punishment due him through a mistake in

the form of the sentence.”)

peveral court heave ugvested that while the

Double Jeopardy Clause annot render an invalid

entence final, in an extreme case a defendant may

find redre under the Lane Proc (claus to tha

extent that upsetting an illegal sentence would bi

mconsistent with fundamental notions of fairne

PyeWitt Ventetoulo. 6 F.3d 32. 345 (1st Cir. 1993) C4

also, e.g., United State v. Davi 1J2 F.8d 118, ]

(34 Cir. J997): Lundtes (69 F.2d at OSG: Breest, 579

Ke Yd at 10] Vells uo. United Stat SO2 A 2d

() remand , | , t} bistri ( rt f

heal | I ie] permit the fst te] ntenc rt t

roi Its | = nfiorom th to the man {

! } k Ja hear NTurra OU Wi, J O's]

{ ) (07) \'} Dastrict ( tad les] 1}

fact that the pr ri not been informe ee at tl

pl HCarimng / fol Idd at ind 1) { fact

haat I) 1) 1 ¢ np I | ’ pri m tern | L000) vi

O31, * he Dastrict ( rt explained th bin dagedat i}

titioner rime I t aed l i

4-H (D.C. Crt App 2OOZ): Jlanson ¢ slat 1s

\ 2d 572. 5738-74 (Me. 1998): Grajpceyvkh, 666 N W.2d

at 476; Calmes, G82 N.W.2d at 645-49 The Due

Proce Clause 3 not implicated here howeve

because respondents expected to serve PRS all along

and were in fact serving it when their sentence:

were corrected Nothing fundamentally unfan

occurred, as the resentencings merely remedied

procedural error and conformed t hie

pronouncements to the legitimate expectations of all

parties

R. Minority view: the Double Jeopardy Clause

imposes a bright-line temporal limit on the

court’s power to correct an illegally-lenient

sentence

In contrast to the prevailing view, a number of

jurisdictions have squarely held that the Double

Jeopardy Clause renders illegally-lenient sentence:

final at some point in time. See State v. Pina, 440

A 2d 962. 965-67 (Conn I981) (Double Jeopardy

Clause bars correction of an illegal sentence after

tba Late sLatubory Lirie limit to seck review

@xplres) Maybin v. State, 884 So.2d 1174, 1175 (Cela

\Ypp. 2° Dist. 2004) (court may not correct illegal

entence after its completion); Sneed vu. State, (49

So 2d 4h, 546 (la. App. 4% Dist OOO) (same)

\long those same lin the Supreme Courts of Olio

and Washington have suggested that an expectation

of finality might arise following the defendant

completion of an unlawtul sentence See State t

tober . se ] N he | Phe war {e% ({ hae VAUlSla®

(permitting correction ol entence {i mnclude

mandatory period of post-release control, but noting

that correction may not be permissible followimg the

defendant's release from prison); State v. Hardesty,

915 PP. 2d 1080, 1086 (Wash. 1996) (permitting

correction Of sentence procured by fraud, but noting

that a defendant. might acquire a finality mterest in

a merely “erroneous” sentence after fully serving it)

In addition, while not addressing the amendment of

a faqally- invalid sentence, the New Mexico Supreme

Court has held that a tnal court may not seck a

entenany enhancement following a defendant’s

release from custody. See March v. State, 782 P.2d

KY #H-#4 (NM. 1989)

‘| hie dee WSsiodk ot the New York (Court of Appr als

deepened the spht on this significant question of

Criminal Jaw lis determination that an illegally

lement sentence cannot be corrected once’ a

defendant has been released from prison and the

state’s time to appeal has lapsed confirms that thi

issue iw unlikely to resolve itself absent mtervention

by this Court

Contrary to the conclusion of the Court of

Appeals, see App. Z0a-22a, federal circuit courts have

not held that the Double Jeopardy Clause bar:

correction of an illegally-Jement sentence following a

defendant's release from prison ‘The federal] CadSe&%

upon Which the court below reled either addressed

the amendment of facially-valid sentences,!* opined

that a defendant punt hment may not be increased

ee Daddins, 5 3d at 265

following complete service of a lawful sentence,!* or

intimated — that due process might prohibit

amendment of a sentence in an unusual case.!4

None of these issues are presented here.!°

‘The decision below illustrates the unfortunate

results that can flow from the minority view on this

issue of law. First, conditional release, which all of

the respondents obtained, is a benefit given for good

behavior, after which the defendant must complete

PRS. See N.Y. Penal Law § 70.45(5)(a)-(b); cf. NY

Correction Law § &8U3. No pnor precedent suggest:

that double jeopardy prohibits the state from

enforcing the mandatory conditions attached to that

release. Second, New York Court of Appeals’ ruling

yrants respondents a windfall: respondents availed

themselves of a change in the law regarding whether

a PRS term must be orally pronounced, and then

Clammed that double jeopardy barred the state from

secking resentencing to comply with this new rule

is See Silvers, YO F.3d at 101: Arrellano-Ruos, ‘199 F 2d

at 523-24: Oksanen, 362 F.2d at 80

See DeWitt, 6 F.3d at 35. Lundien, 769 I.2d at 986

eres I 4 } 2a at IQ] (U/nited states { Cook 90D h VA 4/2

GidD (4 Cir. 1969)

Phe Court of Appt als also rehed on one case that

reyected a double jeopardy claim, see Feico, YO2Z F.2d at 1068-69

(rejecting double jeopardy challenge to correction of illegally

lement sentence where governments time to appeal had not

expired), and another that was Jater vacated on rehe aring, See

Hernandee uv. Guarterman, 340 led. Appx. 210 (6™ Cir. 2009)

(anpublished opimion), vacated on reh’p sub nom. Hernandez vu

fhaler, 2050 WL 608865 (5 Cir, 2010) Canpublished opinion)

lsnally, the New York Court of Appeals’

decision underscores a fundamental paradox in the

minority view: that a sentence correction might be

legally required and reasonable under the

circumstances yet still be barred by the Double

Jeopardy Clause. That position is incoherent. ‘To

remedy the great confusion on this question, and to

ensure that the double jeopardy protection is not

stretched so far beyond its proper scope, this Court

should grant certiorar)

I]. The decision of the Court of Appeals

conflicts with this Court’s precedents.

Not only does the decision below deepen the

spht) on whether the Double Jeopardy Clause

constrains a courts authority to correct an illegal

sentence, but ait also conflicts with prior rulings of

this Court The New York Court of Appeals’

conclusion that double jeopardy imposes a bright-

line temporal limit on sentence correction cannot be

squared with precedents that define the scope of the

double jeopardy protection

This Court has held that the Double Jeopardy

Clause does not bar correction of an illegal sentence,

even where it increases punishment. See Bozza, 330

U.S. 160. In fozza, the crime for which the

defendant was convicted carnied a minimum penalty

of a $100 fine and imprisonment, but. the judge

mistakenly imposed imprisonment only. See id at

IG5. Several hours later, after the defendant had

already been taken to a detention center, the judge

ordered the defendant back to court and corrected

4

the sentence to include the mandatory fine. See td.

at 165-66 This Court rejected the defendant's

double jeopardy claim, cautioning that “|t}he

Constitution does not require that sentencing should

be a game in which a wrong move by the judge

means immunity for the prisoner Id. at 166-67

Correcting an invalid sentence to make it lawful

“{does}] not twice put petitioner in jeopardy for the

same offense. [d. at 16% lakewise, amending

respondents — sentences here to include their

statutorily-mandated PRS terms did not put them

twice in jeopardy for a single offense.!©

In addition. while this Court need not consider

here whether the Double Jeopardy Clause sets a

temporal limit on a courts authority to amend a

lawful sentence, the Court has indicated that such

an amendment is permissible, provided that it 1:

'’ Other decisions of this Court recognize similar limit

on Uae Double Jeopardy Clau ( See Jones t Thomas 49] ss

$76, 384-85 (1989) Crejecting double jeopardy claim wher

defendants sentence fell within the “plain||” legislative intent)

Pollard | United State: 362 U.S. 654, 357-61 (1957) (where

eourt had neglected to pronounce originals probationary

sentence, court properly substituted prison term two years later

alter defendant was returned to court for alleged violation of

invahd probation order); Miller vo. Aderhold, 288 (J) S. 206, 209

1] (1933) (where court had issued void order permanently

suspending sentence, lawful sentence was properly imposed at

succeeding term); In fte Bonner, J51 US. 242, 254-62 (1894)

(yrantiny writ ol habeas corpus, without prejudice 16

vovcrnments rnght to scck imposition of lawful sentence, wher

court fiad issued void order commutting defendant to state

penitentiary)

authorized by the Jeporslature. In affirming the

increase of a sentence upon a statutorniy-authorized

appeal by the prosecutor, this Court observed that

for purposes of the Double Jeopardy Clause, “a

sentence does not have the qualities of constitutional

finality that attend an acquittal.” United States v

Dikrancesco, 449 U.S. 117, 144 (1980); see also id. at

137-38 (the Double Jeopardy Clause does not

require that a sentence be given a degree of finality

that prevents its later increase’)

Kor similar reasons, the Double Jeopardy

Clause does not bar the imposition of a stiffer

sentence following retrial after a § defendant’s

successful appeal. See North Carolina v. Pearce, 395

U.S. 711, 721 (1969) (the Double Jeopardy Clause

“does not restrict{] the imposition of an otherwise

lawful single punishment for the offense in

question’). Applying this “well established part of

our constitutional jurisprudence,” see Diltrancesco,

449 U.S. at 135 (quoting Pearce, 395 U.S. at 720),

this Court held that a lawful increase in a sentence

simply does not constitute a mulliple punishment or

otherwise implicate a defendant's interest in finality

‘If any rule of finality had apphed to the

pronouncement of a sentence, the original sentence

in Pearce would have served as a ceiling on the one

mnposed at retrial, Dil'rancesco 449 U.S. at 130;

see also Pennsylvanta v. Goldhammer, 474 U.S. 28

(1985) (double jeopardy did not bar resentencing on

remaining counts after several other counts were

vacated on appeal)

More recently, 1n Monge v. Caltfornia, 524

U.S. 721 (1998), this Court declared that the Double

Jeopardy Clause does not even “extend|} to

noncapital sentencing proceedings.” See id. at 724

After the state had failed to prove one of the

defendant's prior convictions at an initlial sentencing

proceeding under a “three sirkes” law, — the

California Supreme Court allowed the state a second

opportunity to present its proof at a subsequent

sentencing procecding see id. at 725-27 ‘This

Court affirmed, distinguishing between a sentencing

determination and an acquittal See id. at 729

(citing Diktrancesco, 449 US. at 134). “Historically,”

this Court noted, “we have found double jeopardy

protections inapplicable to sentencing proceedings,

because the determinations at issue do not place a

defendant in jeopardy for an ‘offense la. at (28

Gnternal citation omitted).! +

Indeed, this Court has apphed the Double

Jeopardy Clause to non-capital sentencing in only

one circumstance where the defendant has fully

suffered a fawfal punishment for his crime. In s/s

Parte Lange, 8&5 U.S. 168 (1874), the trial court

sentenced the defendant to umprisonment and a fine,

even though the statute permitted only

imprisonment or a fine. The defendant paid the fine,

which was committed to the treasury and could not

4 Ky contrast, double jeopardy prot etions may attach

in a capital sentencing proceeding, piven the “umque

circumstances of capital cases.” fd. at. 726; see also Bullington

v. Missourr, 451 VS 430, 445-46 (198]1)

be returned. See id. at 174-75. This Court held that

the Double Jeopardy Clause barred subsequent

correction of the sentence to include imprisonment

See wd. at 175 Qnee the defendant “had fully

suffered one of the alternative punishments to which

alone the law subjected him, the power of the court

to punish further was gone.” Id. at. 176; see also In

re Bradley, 318 U.S. 50, 51-52 (1943) (sentence could

not be corrected after defendant fully paid fine,

which by itself constituted a lawful punishment for

the offense)

Critically, the holding of kx Parte Lange 1s

“confineld]|’ to its “specific context” and is “not

susceptible of general appheation.” Diltrancesco, 449

U.S. at 139; see also id. at 138-39 (rejecting dicta

from a prior case suggesting that a sentence might

become final after its commencement). Lange

merely prohibits a court from increasing a sentence

after the defendant has suffered a full and lawful

punishment, not from correcting an illegally-lement

sentence See id. at 139 (“[njo double jeopardy

problem would have been presented in kx arte

Lange Wo Congress had provided that the offense

there Was punishable by both fine and

lnprusonment’); see also Bozza, 330 U.S. at 167 n.Z

(defendant “had not suffered any lawful punishment

until the court had announced the full mandatory

ite

entence )

+ Several dustices of thas Court have criticized even the

lomated rule of Key Parte Lange, arguing that the Double

(Continued )

Minally, this Court’s precedent sugpests that

even aif double jeopardy had some application to

sentence correction, there is no fixed point. at which

a court loses its authority to conform a sentence to

the law “The Double Jeopardy Clause does not

provide the defendant with the right to know at any

specific moment in time what the exact limit of hi:

punishment will turn out to be.” Diltrancesco, 449

Uo, at i3sy.* And, in any event, respondents

themselves knew all along that. heir punishment

included a PRS term; they accepted that obligation

without complaint, 4s a condition of early release

from prison, and they never claimed to have been

unaware of this mandated component of their

sentences. See App. 35a, 40a-4]a, 54a-83a

( { ontinued)

Jeopardy Claus apphes to scntencing only if the state conduct

multiple proceedings to punish the defendant and th

punishment exceeds legislative limit see, egf., Department of

Revenue of Montana v. Kurth PRanch, 5117 US. 767, 798-808

(1994) (Scaha, d., dissenting, yorned by Thomas, J.); Bradley

318 U.S. at 553-54 (Stone, CJ., dissenting), see also Witte ¢

United States, 515 U.S. 3889, 406-08 (1995) (Scaha, J

concurring, joned by Thomas, d.); United States ex rel. Marcu

v. Hess o27 U2 537 V00-906 (1943) (krankfurter, J

concurring)

To the extent that double jeopardy confers some

expectation of finality in a lawful sentence at some undefined

pout ii lime Bozea suppests that a defendant can never jiave

such an expectation of finality in an illegally-lement sentence

CONCLUSION

The petition for a writ of certiorar: should be

granted

Respectfally submitted,

CYRUS R. VANCE, JR

Jyistrict Attorney

New York County, NY

CAITLIN J. HALLIGAN?’

General Counsel

HILARY HASSLIEKR

Chief of Appeals

DAVID M. COHN

Senior Appellate Counsel

MARTIN J. FONCELILO

TIMOTHY C. STONI«

DAVID P. STROMIES

Assistant District Attorney:

‘Counsel of Kecord for Petitioner

May 21, 2010