People v Mills
Annotate this CaseDecided on June 22, 2006
County Court, Onondaga County
THE PEOPLE OF THE STATE OF NEW YORK,
against
Donald Mills, Defendant.
94-2116
PPEARANCES:WILLIAM J. FITZPATRICK, ESQ.,
District Attorney of Onondaga County
MICHAEL E. FERRANTE, ESQ.
Attorney for the People
ERIC B. JESCHKE, ESQ.
Attorney for Defendant
Anthony F. Aloi, J.
The Defendant, Donald Mills, has made application to be re-sentenced pursuant to the Drug Law Reform Act (DLRA) 2005 N.Y.Laws Chapter 643, an act to authorize the re-sentencing of certain A-II felony controlled substance offenders, promulgated on August 30, 2005 and effective on October 29, 2005. The Court having heard oral arguments regarding the defendant's application for re-sentencing on June 2, 2006 makes the following decision.
The Defendant, Donald Mills, on April 20, 1995, plead guilty to the A-II felony of CRIMINAL POSSESSION OF A CONTROLLED SUBSTANCE IN THE SECOND DEGREE in violation of Penal Law Section 220.18. On July 26, 1995, the defendant was sentenced to the minimum sentence that could be imposed, namely; an indeterminate sentence of imprisonment of 3 years to live, concurrent with a sentence of 3 to 9 years imposed upon the defendant's additional plea to the non-violet offense of CRIMINAL POSSESSION OF A WEAPON IN THE THIRD DEGREE. This latter sentence was subsequently vacated and the defendant was re-sentenced on October 22, 1996 to 2 to 6 years concurrent with the 3 to life sentence previously imposed as a result of the defendant's plea to CRIMINAL POSSESSION OF A CONTROLLED SUBSTANCE IN THE SECOND DEGREE on April 20, 1995.
The Court finds, based upon submissions made to the Court, that the Defendant, Donald Mills, was issued an inmate earned eligibility certificate on June 9, 1998 indicating that the defendant had completed his minimum sentence (Penal Law [*2]Section 70.40) regarding the A-II drug convictions and that he was then determined to be eligible for parole, based upon the Commissioner's review of the inmate's institutional record. Thus, for the purposes of this decision, the defendant was eligible for parole on June 9, 1998. However, subsequent to that time, the defendant has been denied parole in 1998, 2000, 2002, 2004 and April 12, 2006, each Parole Board Hearing having been set at twenty-four month intervals, with the next Parole Hearing set in 24 months on April 28, 2008.
Initially, the Court denied the defendant's original application to be re-sentenced filed on or about October 29, 2005. However, subsequent to the denial, this Court granted defendant leave to renew that application following the Parole Board's denial of his release on April 12, 2006.
The People's position that the defendant is not eligible to be re-sentenced is predicated upon their interpretation that the holding in People v Bautista, 26 AD3d 230 is controlling, by quoting the court's decision which provided "that in order to be eligible for re-sentencing, an A-II offender may not be eligible for parole within three years." This position is predicated upon the fact that since the defendant's next Parole Board Hearing is set for April 28, 2008, the defendant is not eligible to be re-sentenced under the Drug Law Reform Act because the defendant is eligible for parole within the three year period provided for in Bautista. If this Court were to accept this position, the defendant, who has already served over 11 years of a 3 to life sentence, would never be eligible to be re-sentenced, per the Drug Law Reform Act as interpreted in People v. Bautista, supra, since the Parole Board Hearings are set at 24 month intervals. Therefore, the People state that the defendant is not eligible to be re-sentenced because he would be eligible for Parole within three years.
The Defendant, Donald Mills, has already served a period of incarceration beyond that which is provided in the DLRA II and Penal Law Section 70.71; namely, a determinate sentence of between 3 years and 10 years with a 5 year post release supervision period. The Court believes not only is Bautista factually distinguishable from the facts in the instant case, the Court is of the opinion that the People confuse being "eligible for parole" and "being granted release on parole." The Defendant, Donald Mills, is and has been "eligible for parole" since June 9, 1998, upon the service of his minimum sentence and has been granted an earned parole eligible certificate.
The facts in Bautista are clearly distinguishable from the instant case in that it is clear in Bautista, the defendant had not yet become "eligible" for parole at the time of his application to be re-sentenced pursuant to the DLRA II. The defendant in Bautista was sentenced on February 28, 2003 to an indeterminate term of imprisonment with a maximum life and with a minimum of 6 years. In November of 2005, he applied to be re-sentenced and on November 21st, 2005, the Supreme Court (New York County) denied the defendant's application. The court in Bautista denied the defendant's re-sentence motion pursuant to their interpretation of DLRA II in that Mr. Bautista at the time of the application was eligible for parole in March of 2008.
The court in Bautista, 26 AD2d at page 230, sets forth the basis of it's [*3]decision:
The 2005 version of the Drug Law Reform Act (L 2005, ch 634, Section 1) provides that a defendant convicted of a class A-II felony drug offense, who was sentenced under prior law to an indeterminate term of imprisonment with a minimum period of not less than three years, "Who is more than twelve months from being an eligible inmate as that term is defined in subdivision 2 of Section 851 of the Correction Law", may apply to be re-sentenced in accordance with Section 70.71 of the Penal Law. Correction Law Section 851(2) defines "eligible inmate" as "a person confined in an institution who is eligible for release on parole or who will become eligible for release on parole or conditional release within two years. . ." These statutes, although not a model of clarity, when read together, require that, in order to be eligible for re-sentencing, an A-II offender may not be eligible for parole within three years. We find nothing to the contrary in the legislative history of the 2005 DRLA. Thus, the court correctly denied defendant's motion because he is eligible for parole in March 2008.
While this Court concedes that DRLA II is not a model of clarity, the Court is of the opinion that the Bautista case is factually distinguishable from the instant case and that the holding therein is not controlling here. First of all, in Bautista the defendant had not reached his parole eligibility date and by virtue thereof, the court in Bautista ignored the first criterion of the definition of an eligible inmate as set forth in Section 851(2) of the Corrections Law, i.e., eligible inmate means, "a person confined in an institution who is eligible for release on parole." As the defendant in Bautista was not eligible for parole at the time of the re-sentence application, the court went directly to the second alternative criterion, i.e., "or will become eligible for release on parole or conditional release within two years" and concluded, therefore, by reading DLRA II in conjunction with Section 851(2) that the legislature intended that the courts should add a year to the two years and that by virtue thereof, an inmate must wait three years before becoming an eligible inmate. This reasoning is not consistent with the New York State Senate introducer's memorandum which clearly declares in relevant part only that the offenders who would be permitted to petition are those who at the time of the petition are more than 12 months from being eligible for the temporary release program established pursuant to Section 851 of the Corrections Law. Thus, since an inmate is eligible for temporary release when eligible for parole, the memorandum supports the view that a person who will be eligible for parole in a year and a day is eligible to apply for re-sentencing. Additionally, the holding in Bautista is inconsistent with the Assembly memorandum in support of the legislation which states that offenders eligible for re-sentence include anyone more than 12 months from being eligible for appearance before the Parole Board. There is no reference in the Assembly memorandum which suggests that an inmate must wait three years to be eligible to apply for re-sentencing. The court in People v. Perez, NYLJ, February 3, 2006 (New York County), in commenting upon the prosecutor's contention that the three year eligible period is applicable states:
But the statute does not say that the inmate must be at least two years from parole eligibility. It says that the inmate must become eligible within two years. Reading the [*4]two criteria together, the statute simply provides that to be eligible for temporary release, an inmate must either be eligible for parole or become so within two years and no more. For Chapter 643 purposes, the second criterion is of no relevance whatsoever. Under the first criterion, an inmate must be at least a year and a day from parole eligibility. It does not matter after that how distant parole eligibility may be. The inmate is eligible to apply for re-sentencing.
Any confusion must arise from the fact that a statute (Chapter 643) which is intended to accord its benefits only after a certain period (more than a year) has been linked to a statute (Section 851[2]) which is intended to accord its benefit either immediately or within a certain period (two years). That is, to be eligible for re-sentencing it does not matter how much more than a year it will be before a person is eligible for parole; to be eligible for temporary release it does not matter how much less than two years it will be before a person is eligible for parole. Indeed, it need be no time at all. The two laws pull in opposite directions, one counting up and one counting down. The term of one cannot be added to the term of the other.
Moreover, Chapter 643 provides that an applicant must have been sentenced to at least three years. Since the many inmates sentenced to the minimum term of 3 years to life could not be eligible for re-sentencing under the people's theory and since the legislature is presumed not to enact a nullity, the people's theory must be incorrect. (See Matter of Roballo v. Smith, 63 NY2d 485, 48 [1984]. ("The courts should strive to avoid an interpretation of a statute where the literal application of one section will nullify the effect of another, especially when this produces an absurd result. . .[The two sections at issue are both integral parts of the Penal Law's comprehensive sentencing scheme and, as such, they be read together and harmonized if possible to achieve a reasonable result giving effect to each one..."citations omitted]); see also Statutes Section 321 (Generally, remedial statutes are liberally construed to carry out the reforms intended and promote justice").
The Court might add, however, like Bautista, the defendant in People v Perez, supra, was not yet eligible for parole at the time of his application to be re-sentenced. The defendant in Perez, plead guilty to CRIMINAL POSSESSION OF A CONTROLLED SUBSTANCE IN THE SECOND DEGREE on May 11, 2005 and was sentenced to 3 years to life on May 26, 2005, filed his motion to be re-sentenced on November 22, 2005 and was eligible for parole on December 10, 2007. The court concluding that the second alternative criterion provided for in Corrections law 851(2) was not applicable to Perez's application and held that since Perez would become eligible for parole within two years and that he was then at least 12 months from his parole eligibility date that he did qualify to be re-sentenced and, therefore, assigned him an attorney.
Since Perez and Bautista, several cases have been published involving the interpretation of Chapter 643 of the Laws of 2005 (DRLA II) and it's reference to Corrections Law 851(2) (see, People v Schulze, 2006 NY Slip Op 503 86U; 11 Misc [*5]3d 1064A; 2006 NY Misc Lexis 506; People v Cuebas, 2006 NY Slip Op 26212; 2006 NY Misc Lexis 1297). The Cuebas case while following the holding in Bautista, again involves a defendant not yet eligible to be release on parole. The defendant in Cuebas was sentenced on February 15, 2001 to an indeterminate term of imprisonment with a maximum of life and a minimum of 9 years as a second felony offender. The defendant having moved to be re-sentenced on January 6, 2006. The court, citing the holding in Bautista, held that since the calculations of the Department of Corrections reflects that the defendant's parole eligibility date was set at February 20, 2009, his application for re-sentencing having been submitted beyond the "three years" from February 20, 2009 that he was, therefore, an eligible inmate to be re-sentenced. The court specifically concluded that since the defendant was more than three years from being eligible to be released on parole or conditional release when he submitted his petition to be re-sentenced. The court found that Mr. Cuebas, "was an eligible inmate" within the meaning of 851(2) of the Corrections Law. Here, again, like Bautista, there is no reference to the statutory interpretation of DLRA II and 851(2) under the circumstances when a defendant is an "eligible inmate" by virtue of being eligible for parole at the time of his application to be re-sentenced; i.e. the defendant having completed the service of his minimum sentence.
Once again, the court in Cuebas, like the court in Bautista, ignored the first part of the definition of an eligible inmate as set out in 851(2); i.e., an eligible inmate also means a person confined to an institution who is eligible for release on parole.
In the present case, Donald Mills is eligible for release on parole and has been an eligible inmate since June 9, 1998. By accepting the holding in Bautista, and making it applicable to the instant case, the Court would have to conclude, therefore, that an inmate who has yet to serve his minimum sentence would be eligible to apply to be re-sentenced because his parole eligibility date is more than three years from the date of the application to be re-sentenced and that a defendant, like Donald Mills, who has served his minimum sentence of 3 years and who has served over 11 years in prison, and who was granted his earned parole eligibility certificate eight years ago would not be qualified to be re-sentenced under DLRA II. The prospect of such an interpretation, under the facts of this case, when considered in light of the intent of the legislature in enacting DLRA II with the professed intent of providing a more humane and realistic sentence for A-II drug felons, would result in an absurd, unjust, and unreasonable determination which would be contrary to the aforesaid stated intent of the legislature.
The Court is of the opinion that If the holding in Bautista, and the People's contentions in this case are applied, the Defendant Donald Mills would never be eligible to be re-sentenced because his Parole Hearings are set at 24 month intervals. Again, this is clearly contrary to the stated intent of the legislature to ameliorate A-II sentences. As this Court suggested, upon the oral arguments of this motion, the Defendant Donald Mills could merely request that the Parole Board Hearing be held 37 months from the last decision of the Board of Parole and that by so doing Mr. Mills would then be immediately entitled to be re-sentenced [*6]in accordance with the Bautista decision.
Additionally, and perhaps more fundamentally important, the Court is of the opinion that the People confuse the meaning of being "eligible for parole" and "being granted release on parole." The setting of a parole hearing does not alter the defendant's parole eligibility date which will always be June 9, 1998. While a defendant may be denied release on parole, he is still and "eligible inmate" because he has completed the service of his minimum term of incarceration and has been issued an "earned eligibility certificate." The People, in opposition to the defendant's application, cite Bautista and quote therefrom by stating:
that in order to be eligible for re-sentencing, an A II offender may not be eligible for parole within three years ... as the Court is aware, the defendant on or about February 8, 2006 (was denied parole) and defendant's earliest parole date is April 28, 2008. As such, the defendant is not eligible (to be re-sentenced) as he is eligible for parole within the three year period.
The fallacy of this contention as applied to the facts of this case fails to appropriately consider that the defendant is eligible for parole and has been eligible for parole since June 9, 1998 and the setting of another parole hearing has nothing to do with the defendant's eligibility for parole. The People continue to attempt to apply the holding in Bautista, i.e., "eligible for parole within three years" to a case that is factually distinct, and incorrectly equate the date set for a Parole Hearing with the defendant's "eligibility for parole." In doing so, the intent in spirit of DLRA II is frustrated under the facts and circumstances of this case and leads to an unjust and unreasonable result.The struggle to apply DLRA II and the holding in Bautista in all cases involving re-sentence applications, regardless of the facts, will continue until it is acknowledged that in cases like Donald Mills, a defendant who has completed the service of his minimum sentence over eight years ago, is parole eligible at the time of his application to be re-sentenced. The issue before the court, in that instance, should not be whether he is an eligible inmate to be re-sentenced, but rather does substantial justice dictate that he should be granted or denied such requested relief.
The Court is of the opinion under the facts and circumstances of this case that Donald Mills is an eligible inmate to be re-sentenced within the meaning of DLRA.
Pursuant to DLRA II, the Court may, after considering any facts and circumstances relevant to the imposition of a new sentence and the institutional record of confinement, deny the application if substantial justice dictates. The question is whether substantial justice militates against re-sentencing the defendant. As heretofore stated, the defendant entered a plea of guilty to having committed the crime of CRIMINAL POSSESSION OF A CONTROLLED SUBSTANCE IN THE SECOND DEGREE and was sentenced as a first time felony offender to an indeterminate sentence of 3 years to life on April 20, 1995 along with a concurrent sentence of 2 to six years subsequently imposed relating to the defendant's plea of guilty to the crime of CRIMINAL POSSESSION OF A WEAPON IN THE THIRD [*7]DEGREE.
The defendant was 25 years old at the time of the commission of these crimes and based upon the submissions submitted to the Court, the Court is of the opinion that the defendant has accepted responsibility for his conduct. The defendant has maintained a good prison record and the Parole Board, even in denying the defendant release on parole, has acknowledged that Donald Mills continues to accomplish institutional achievements and continues to maintain his compliance with recommended programs and that he has maintained a positive disciplinary record.
Based upon the further submissions to the Court, Donald Mills has earned an ASAT Certificate; Alcohol and Substance Abuse Treatment Certificate and has obtained his GED while incarcerated. Donald Mills has also earned a Vocational Trade Certificate in the masonry field.
Additionally, the Court is of the opinion that based upon the oral arguments of this motion including the submissions made to the Court including the remarks made by the defendant himself that he is remorseful for his past conduct and has learned his lesson and is prepared to live within the law upon his release.
The Court is of the opinion that while not minimizing the seriousness of the defendant's prior conviction involving drugs and weapon possession, based upon the facts of this case, including the positive accomplishments of this defendant during his 11 years of imprisonment that substantial justice dictates that his application to be re-sentenced be granted.
Therefore, it is the Decision and Order of this Court and the Court intends to re-sentence the Defendant Donald Mills to a determinate sentence of eight years with a five year post release supervision period. The defendant is hereby notified that unless he withdraws this application or appeals this Order, the Court will enter and Order vacating the sentence originally imposed and impose the aforesaid determinate sentence of eight years with a five year post release supervision period.The Decision herein constitutes the Order of the Court.
_______________________________
ANTHONY F. ALOI
Judge of County Court
Dated: Syracuse, New York
June 22nd, 2006
AFA/apd
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