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Persistent felony law stays

New York’s persistent felony offender sentencing law is constitutional according to the U.S. Court of Appeals for the Second Circuit, which on Monday overturned a June ruling by one of its own panels.

The Second Circuit on July 9 reviewed the panel’s June decision in a en banc rehearing and determined the state courts reasonably applied clearly established Supreme Court precedent when it affirmed the convictions of three men who claimed their harsh sentences as prior felons violated the Sixth Amendment with respect to having facts reviewed by a jury.

The state’s sentencing statute authorizes lengthy terms of imprisonment for certain recidivist offenders, punishing repeat offenders more harshly than first-time offenders.

A persistent felony offender is defined as a “person, other than a persistent violent felony offender … who stands convicted of a felony after having previously been convicted of two or more felonies.”

It allows judges the discretion to impose a Class A-I sentence of 15 years to life for crimes that, standing alone, without prior convictions, would receive lesser sentences. First, the prosecution must prove the prior felony convictions. Then the court considers the “history and character” of the defendant and “nature and circumstances” of the criminal conduct.

“This is obviously a significant decision affecting New York practice,” Monroe County Public Defender Timothy P. Donaher said. “I’m disappointed. I agree with the dissenters and the petitioners in this case.”

The petitioners were three men — Carlos Portalatin, William Phillips and Vance Morris — separately convicted in state court and sentenced under the persistent felony offender statute. Each petitioned for a writ of habeas corpus. Portalatin’s request was granted while the others’ were denied.

Each cited protection under Apprendi v. New Jersey, 530 U.S. 466 (2000), which held that any fact other than a prior conviction that increases a penalty beyond the prescribed statutory maximum must be submitted to a jury.

The three-judge panel, which heard the consolidated cases, found the state law unconstitutional. The full panel, in a 9-3 decision, disagreed. The decision cites later cases, most notably Blakely v. Washington, 542 U.S. 296 (2004), which clarified that the relevant “statutory maximum” may not necessarily coincide with the maximum penalty prescribed by the penal code, and Cunningham v. California, 549 U.S. 270 (2007), which held that a judge may choose one of three sentences for a crime — a low, middle or high term — under specific aggravating factors.

The petitioners argued the step two determination under the persistent felony offender law violated the Sixth Amendment because it allows a sentencing judge to make factual findings beyond the predicate felony convictions before imposing a Class A-I sentence.

Because the “New York Court of Appeals has interpreted step two of the (persistent felony offender) sentencing scheme as a procedural requirement that informs only the sentencing court’s discretion, the New York courts were not unreasonable to conclude that this consideration is unlike the fact-finding requirements invalidated in Blakely,” the majority wrote.

Monroe County District Attorney Michael C. Green said the state Court of Appeals on three previous occasions had interpreted the language as telling a judge to exercise discretion and weigh all factors involved, as they would in any case. He said the June decision created a potential conflict between state and federal courts, but the en banc opinion may eliminate that.

“As of right now, it’s the law in this circuit,” Green said. “Absent some ruling from the U.S. Supreme Court on this issue, I think that should settle it. I thought it was a very well-thought out and well-written decision by Judge Wesley.”

A higher review may be forthcoming.

Martin M. Lucente and Andrew C. Fine of The Legal Aid Society, Criminal Appeals Bureau, in New York City, plan to petition the U.S. Supreme Court for a writ of certiorari. They represent Phillips and Morris, respectively.

“What this really gets down to is the federal court is saying they’re bound by the New York Court of Appeals’ interpretation of the persistent felony offender statute,” Monroe County’s Donaher said, adding that it runs afoul of Blakely, Apprendi and Cunningham.

“[H]owever characterized, the second step with regard to the present petitioners involved the presentation of evidence upon which the sentencing judge found facts and chose between sentencing ranges with different maximum sentences,” Justice Ralph Winter wrote in his dissent. “Except for the argument made with regard to maximum sentences for Apprendi purposes, which has been specifically rejected by the Supreme Court, nothing in my colleagues’ opinion identifies a constitutional argument that even arguably disposes of Portalatin’s and Morris’s claims regarding factfindings altering their maximum sentences.”

Portalatin v. Graham, No. 07-1599-pr., Oct. 18.

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