# Petition for Writ of Certiorari — New York v. Williams > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386017_2018%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 2010 - **Citation:** 562 U.S. 947 ## Text Z ~ 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 Commonwealth. t Kthridpe 1 olate } } fy yf MOLLNP | (ald ay) forme ri OU) y aaern M4 4] i P 2d 4a Crim. Ay 2d 50 (Pa hOZUO (Oy 1) 1998 yp. PYG 1 $9599) 1466) Garner v. New York State Dept. of Correctional a 396 (2005) ( A] ‘ 1{) LT Os jt iN Yd i{) j pp) Ue Le }? } OJJALE j Opt 18 be, } (jie aed ple | / eS le { ‘ I Li ' Tad A j { { { { al if if PSF) Hierna Rodrigsue LOOD) } av DIL Oe QOY tle ; Lil f 4 t i¢ Hill EGE tien, OUI 40 f yy a 1( ($4 (> {4 ‘) ¢) ; | ( onn (ATI2Z 4444 i} \/ ( j ( j A { ( , i } i} 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 ft a ried i t) t)) vite fea I Chit rudd hould grant certiorar mar ‘ i] i 1 the j repo (] 14! i . pena» iil pial t la yor} ppp! bheite 1) I reproduced on pa | il re] ried LOhlo \D.3d Li y. App Hlernande Y ALD i AULG be, i i] { Le 1) pol LS be. I’ pple Y. App. D1 bet Dey trial « irl yor} f vA york) rm rey (I penal PATICLMEN'T i} I } an I | L! i () by | 14 1 | I | tf ONS'TITPUTIONAT Jl york ( rch 1 ! Op) Inst 1) } Ti? Dept Lp i rid ( pa RISDI ai rt) rif 1) hil ‘ i ri | reod Apy | du ee L tae | Lt) . roimecnt ippena \ l ys] | of y Ley Y. App. D i i ‘ Ll?) | { irit PION 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 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386017_2018%3A1. Public record. Not legal advice.