People v Calhoun
Annotate this CaseDecided on April 7, 2003
County Court, Oswego County,
The PEOPLE OF THE STATE OF NEW YORK, Plaintiff,
against
DONALD CALHOUN, Defendant.
IND. NO. 91181
Donald H. Dodd, Esq., District Attorney of Oswego County, Attorney
for the People of the State of New York
Donald Calhoun, Defendant Pro Se.
WALTER HAFNER, JR., J.
On February 4, 1992, the Defendant was found guilty of Burglary in the Third Degree, Possession of Burglar's Tools, and Petit Larceny after a jury trial. On June 19, 1992, the Court held a Persistent Felony Offender hearing and found the Defendant was a Persistent Felony Offender under Penal Law §70.10. The Defendant was sentenced to 15 years to life pursuant to Penal Law §70.10.
The Defendant appealed his conviction and sentence. On appeal, the Defendant alleged, inter alia, that the trial court erred in determining that he was a Persistent Felony Offender, and erred in sentencing the Defendant to 15 years to life pursuant to Penal Law §70.10. The Appellant Division, Fourth Department, affirmed the conviction and sentence, People v. Calhoun, 206 AD2d. 862. The Court of Appeals denied the Defendant leave to appeal, People v. Calhoun, 84 NY2d. 1029.
The Defendant has filed several post-conviction motions, each alleging, inter alia, that Penal Law §70.10 is unconstitutional and/or illegal. All have been denied without a hearing. The Defendant also filed a Petition for a Writ of Habeas Corpus in the United States District Court, Northern District of New York. The Defendant attacked the constitutionality of Penal Law §70.10 in that proceeding as well. That Petition was also denied, Calhoun v. Walker, 1999 WL 33504437, (N.D.N.Y. Feb 26, 1999,) (NO. 97CV0550NAMGLS).
On February 9, 2004, the Defendant filed a Motion to Set Aside the Sentence pursuant to CPL §440.20. The People filed an Affidavit in Opposition to the Motion on February 17, 2004.
On March 1, 2004, the Court received a request from the Defendant for a twenty-eight day adjournment of this matter to allow the Defendant to file a Reply to the People's Affidavit in Opposition. The People consented to that adjournment. The Defendant was given an [*2]opportunity to file a Reply Affidavit, provided the Reply was filed no later that April 1, 2004. Argument was scheduled for April 6, 2004.
On April 5, 2004, the Court received a Affidavit from the Defendant seeking the appointment of counsel in this matter. The Court also received a Notice of Motion for Permission to Proceed as a Poor Person and accompanying affidavit. Neither affidavit was properly sworn to, as the Defendant indicated that no Notary Public was available to him. An Affidavit of Service was also filed by the Defendant. The Affidavit of Service fails to indicate that a copy of the Motion to Proceed as a Poor Persons was served upon the Oswego County Attorney, as required by CPLR §1101(c). The Defendant did not request an adjournment of this matter.
MOTION TO PROCEED AS A POOR PERSON
&
MOTION FOR ASSIGNMENT OF COUNSEL
The Court finds that the Defendant's Motion to Proceed as a Poor Person must be denied. The Defendant failed to serve a copy of his motion on the Oswego County Attorney, as required by CPLR §1100(c). Service upon the District Attorney does not meet this requirement, Stanley v. Property Clerk of Police Department of Town of Ramapo, 63 AD2d. 970. The Court finds, for this reason alone, his motion should be denied, Sebastiano v. State, 92 AD2d. 966.
The Defendant, in addition to exhausting his right to direct appeal, has filed various post-conviction motions with this Court and an Application for a Writ of Habeas Corpus in Federal Court. All have been denied. While the Court has the authority to assign counsel to represent a defendant on a post-conviction motion, the Count finds it unnecessary to do so in this case, since the Defendant's papers fail to establish a proper or possible basis for relief, People v. Darling, 54 Misc.2d. 442.
The Court further finds that, while the People in this case consented to an adjournment of this matter to April 6, 2004 in order to allow the Defendant an opportunity to file a Reply Affidavit, the statute does not require the filing of reply affidavits by defendants, nor does it provide defendants any right to do so. Since the Defendant is not entitled by statute to file a Reply Brief, the Court finds assignment of counsel is not warranted. This is particularly true since the Defendant has repeatedly alleged Penal Law §70.10 is unconstitutional, and on each occasion, the statute has been found to be constitutional, Darling, supra.
The Court finds the Defendant is not entitled to the assignment of counsel to file a Reply
Affidavit. The Defendant's Motion to Proceed as a Poor Person and Motion for Assignment of Counsel is DENIED.
MOTION TO SET ASIDE SENTENCE
The Court further finds the Defendant's Motion to Set Aside his Sentence must be denied without a hearing. The Court has reviewed the Defendant's Motion and the People's Answering Affidavit. The Defendant alleges that his sentence was illegal, since the Indictment failed to contain facts of his character and history. The Defendant further alleges the Supreme Court of [*3]the United States's decision in Apprendi v. New Jersey, 530 U.S. 466, the decision of the United States District Court, Eastern District of New York in Brown v. Greiner, 258 F.Supp.2d. 68, and the recent unpublished oral decision of United States District Court, Southern District of New York in Rosen v. Walsh, 02-7782 (S.D.NY) render his sentence illegal.
The Defendant alleges that New York's Persistent Felony Statute is unconstitutional, since it allows a sentencing court to sentence a Persistent Felony Offender to a sentence authorized for a conviction for a class A-I felony, "...when it is of the opinion that the history and character of the defendant and nature and circumstances of his criminal conduct indicate that extended incarceration and life-time supervision will best serve the public interest..," Penal Law §70.15. The Defendant alleges that the holdings in Apprendi requires those issues be litigated at trial and decided by a jury.
The People allege that Apprendi should not be applied retroactively. The People allege the Defendant's conviction was finalized over five years prior to the Supreme Court's ruling in Apprendi. The People allege the rule adopted in Apprendi should not be applied to the Defendant's case in a collateral appeal, unless the holding in Apprendi meets the requirements of Teague v. Lane, 489 U.S. 288.
In Teague, the Supreme Court held that its ruling in Batson v. Kentucky, 476 U.S. 79, was not retroactive as applied to a defendant, since his conviction became final two and a half years prior to the issuance of the Batson decision. The Court held, "application of constitutional rules not in existence at the time a conviction became final seriously undermines the principle of finality which is essential to the operation of our criminal justice system. Without finality, the criminal law is deprived of much of its deterrent effect," Teague, supra. at 309.
The People further allege that several courts have held that Apprendi should not be applied retroactively, Coleman v. United States, 329 F.3d. 77; Gonzales v. United States, no. 02 Civ. 2733 (SAS), 2002 WL 31512728, since it does not meet the rule set forth in Teague. The People further allege that application of the rule in Apprendi to the Defendant's sentence would be contrary to the rule set forth in Teague.
The Court finds the Defendant's motion must be denied without a hearing. The Defendant's conviction and sentence became final on January 3, 1995, when the Court of Appeals denied the Defendant leave to appeal. The rule in Apprendi was adopted on June 26, 2000. Even if this Court were to find that Apprendi renders Penal Law §70.10 unconstitutional, the fact remains said rule was not in effect at the time of the Defendant's conviction and sentence became final. The Court further finds that Apprendi should not be applied retroactively, since it fails to meet the exceptions set forth in Teague v. Lane, 489 U.S. 288. (See, Coleman v. United States, 329 F.3d. 77; Gonzales v. United States, no. 02 Civ. 2733 (SAS), 2002 WL 31512728).
The Court notes that the convictions and sentences of the defendants' in both federal habeas corpus decisions in Brown and Rosen v. Walsh were not final prior to the Supreme Court's decision in Apprendi . For that reason, those defendants did not have to establish that Apprendi should be applied retroactively.
The Court further finds that Penal Law §70.10 is constitutional. In People v. Rosen, 96 NY2d. 329, the Court of Appeals found Penal Law §70.10 does not violate the rule in Apprendi, since a defendant's prior convictions, "...are the sole determinate of whether a defendant is subject to enhanced sentencing as a persistent felony offender," Rosen, supra., at 335. [*4]
Under the statute, if it is proven that a defendant has the requisite convictions, he is a Persistent Felony Offender, under the statute. Under the statute, after a Court determines a defendant to be a Persistent Felony Offender, the Court has the power and the discretion to impose a sentence equal to that of a defendant convicted of a Class A-1 felony, if it is, ".. of the opinion that the history and character of the defendant and nature and circumstances of his criminal conduct indicate that extended incarceration and life-time supervision will best serve the public interest.., Penal Law §70.10(2).
The Court of Appeals held that a court's discretion to impose a greater sentence is, "..only fulfilling its traditional role- giving due consideration to agreed upon factors - in determining an appropriate sentence within the permissible statutory range," Rosen, supra., at 335, citing, People v. Farrar , 52 NY2d. 302, 305-306. This Court concurs with this analysis and respectfully disagrees with decisions of the United States District Court, Eastern District of New York in Brown v. Greiner, 258 F.Supp.2d. 68, and the United States District Court, Southern District New York in Rosen v. Walsh, 02-7782 (S.D.N.Y). This Court has serious doubts either decision could survive appellate scrutiny.
As the Court is Brown stated: "Under the AEDPA standard, which applies to habeas petitions filed after AEDPA's enactment in 1996, the reviewing court may grant habeas relief only if the state court's decision, "was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States." 28 U.S.C. § 2254(d)(1). The Supreme Court has interpreted the phrase "clearly established Federal law" to mean "the holdings, as opposed to the dicta, of [the Supreme] Court's decisions as of the time of the relevant state-court decision," Brown v. Greiner, 258 F.Supp.2d. 68, citing, Williams v. Taylor, 529 U.S. 362.
The defendant in Rosen sought leave to appeal the Court of Appeals decision. The United States Supreme Court denied certiorari, Rosen v. New York , 534 U.S. 899. Prior to the decision in Brown v. Greiner, no court had ever ruled that Apprendi rendered Penal Law §70.10 unconstitutional. The Supreme Court certainly did not, since it denied certiorari in Rosen.
Since neither the Court of Appeals nor the United States Supreme Court has overruled Rosen, that decision is binding upon this Court. While denial of certiorari is not a determination of the merits and this Court can draw no inference as to how the Supreme Court would have held had it granted certiorari, the fact remains that the holding in Rosen is still the law in New York State.
The fact that judges of the United States District Court for the Eastern District of New York and the United States District Court for the Southern District of New York disagree with the Court of Appeals is of no consequence to this Court.
While those courts apparently believe the Court of Appeals' decision in Rosen was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States, this Court finds no basis for that conclusion.
In Apprendi, the Supreme Court found that a New Jersey's "hate crime" statute, which provided a "extended term" of imprisonment if the trial judge finds, by a preponderance of the [*5]evidence, that the "defendant in committing the crime acted with a purpose to intimidate an individual or group of individuals because of race, color, gender, handicap, religion, sexual orientation, or ethnicity," Apprendi, supra., at 468-469, citing NJ Stat. Ann §2C:44-3(e). The Court found that this statute was unconstitutional, since it allowed a sentencing court to make factual findings, specifically whether the defendant acted, during the subject crime, with a particular bias, which resulted in a higher penalty that was allowed for the underlying conviction. That is a far cry from the New York statute, which merely gives trial judges discretion to impose higher penalties on those defendants who have been found to be Persistent Felony Offenders, if the trial court is of the opinion that the history and character of the defendant and nature and circumstances of his criminal conduct indicate that extended incarceration and life-time supervision will best serve the public interest. Under the New York statute, the trial court is not making a factual finding regarding an act of the Defendant during the commission of the subject crime, but merely looking into all aspects of the defendant's background, as it does for all defendants prior to sentencing.
Even if the Court were to find that Rosen was not binding upon this Court, the Court would find that the Defendant failed to preserve his contention that his constitutional rights were violated. The Defendant was given a full opportunity to contest his prior convictions and the allegations that were contained in Notice given pursuant to CPL §400. 20. The Defendant expressly waived his right to a hearing during the sentencing proceeding on June 19, 1992. "The Court of Appeals has held that even where, as here, sentencing occurred before Apprendi, "any alleged error [in sentencing based on Apprendi ] required preservation," Green v. Herbert, 2002 WL 1587133, S.D.N.Y., Jul 18, 2002, citing, People v. Rosen, 96 NY2d. 329. The Court finds the Defendant has failed to establish his sentence is illegal or unauthorized.
THEREFORE, for the reasons set forth above, the Defendant's Motion to Set Aside Sentence is DENIED in its entirety. This constitutes the Decision, Order, and Judgment of this Court.
Date: April 7, 2003
ENTER,
HON. WALTER HAFNER, JR.
OSWEGO COUNTY COURT JUDGE
Decision Date: April 07, 2003
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