Lead Opinion
When a defendant pleads guilty to a crime, he or she generally must move to withdraw the plea or otherwise object to its entry prior to the imposition of sentence to preserve a challenge to the validity of the plea for appellate review (see People v Toxey,
I.
After his arrest and indictment on drug sale charges, defendant Christian Williams entered into a negotiated plea bargain
In the course of the ensuing plea colloquy, the court told defendant about the sentence to be imposed, saying:
“As you came into court today, you were charged with the crime to which you pled guilty but I hear that there is a predicate felony statement, so you theoretically could have received up to 12 years, is it?
“I lost my sentence chart when we transferred courtrooms so I don’t know. I think it is up to 12 years.
“Let’s assume it is up to 12 years based on your prior criminal history.
“You’ve been given a chance to plead guilty and you are going to receive a three-year sentence with two years post-release supervision.
“Do you understand that?”
Defendant answered, “Yes.” The court immediately asked whether defendant “had a chance to speak with” and had, “in fact, spoken with [defense counsel] today and on other days” about his case, such that counsel had “explained to [defendant] various legal rights and [his] options with regard to this case.” Defendant responded in the affirmative.
Later in the plea proceeding, the court delivered the following warning to defendant:
“Listen carefully.
“Predicate felony conviction today.
“If there is a third felony conviction, in theory at least, that would be your third felony conviction and . . . three felony convictions in theory is a big deal problem for anybody in your position.
“Do you understand that?” (Emphasis added.)
Defendant indicated that he understood.
Next, the court informed defendant that, to receive a three-year prison term, he had to meet certain conditions during the period of his release prior to sentencing. Specifically, the court told defendant that he had to truthfully discuss his case with the Department of Probation, refrain from committing new crimes and return to court for sentencing. The court further stated:
“Pay attention. . . .
“If you comply with those three conditions ....
“then you are guaranteed the three years with the two years post-release supervision.
“If you violate any of those conditions, I’ll decide what’s the nature of the violation, whether it is true or not and if I decide that you violated one of the conditions, I don’t have to give you the three years with the two years. I might, but I don’t have to, and I could theoretically sentence you up to 12 years.
“If you violate any of three conditions and I decide that you did violate one of those conditions or all of them or some of them, you will not get your plea back, your plea will remain and I’ll do what I think is appropriate having decided the validity of the supposed violation.”
Defendant responded that he understood this explanation of the conditions of the plea and the consequences of failing to fulfill them.
The court proceeded to arraign defendant on a predicate felony statement which was filed by the People and alleged that he had a predicate felony conviction for attempted criminal possession of a weapon in the second degree. Defendant declined to challenge the validity of that predicate felony conviction, and he was adjudicated a second felony offender
Significantly, though, contrary to the court’s statement, while a three-year prison term is within the lawful sentencing range for a second felony drug offender convicted of third-degree criminal sale of a controlled substance (see Penal Law § 70.70 [3] [b] [i]), it was not a sentence lawfully available to defendant in light of his distinct predicate status. Rather, because defendant was a second felony drug offender previously convicted of a violent felony, he faced a statutory sentencing range of 6 to 15 years in prison on his third-degree drug sale conviction (see Penal Law § 70.70 [4] [b] [i]). But, the court was not informed of this issue and never indicated that it learned of the potential problem on its own.
Apparently, at some point after the plea proceeding, defendant was arrested for marijuana and trespass offenses. About three weeks after the entry of defendant’s plea, the court held a hearing pursuant to People v Outley (
About a month later on the date of the scheduled sentencing proceeding, the parties appeared in court and discussed the People’s written submissions in support of enhancing defendant’s sentence. Defense counsel informed the court that he had not reviewed those submissions. The court said, “[0]bviously the sentence is going to be enhanced. I announced that the last time.” Nonetheless, the court adjourned the case so that the
Two weeks later, the parties appeared before the court for sentencing. Early in the proceeding, the court reiterated that defendant had violated the terms of his plea deal, and the court noted that, based on the People’s written submissions, it appeared that defendant had tried to arrange for the presentation of false evidence of an alibi in connection with his postplea marijuana offense. After the prosecutor’s argument in favor of an enhanced sentence, the court told defendant and defense counsel that they could “say anything [they] wantfed] on the issue of the appropriate sentence within the range that the law allows, and the circumstances - Counsel interrupted and commenced his argument in opposition to the enhancement of defendant’s sentence, positing that the evidence at the Outley hearing had not revealed misconduct that warranted an enhanced sentence. Defendant declined to make any statement about the proposed sentence enhancement, and after a brief exchange between counsel and the prosecutor, the parties brought their arguments to a close.
The court again summarized the conditions of the plea and reiterated its prior finding that defendant had failed to abide by those conditions when he committed the marijuana offense. Noting that it was discussing an “enhanced sentence,” the court condemned defendant’s efforts to present a false alibi to cover up his violation of the plea conditions. The court stated, “So he’s sentenced to 6 years [in prison], which is an appropriate enhancement in view of all of the things that went on related to this case,” adding that defendant would also serve a two-year term of postrelease supervision. Counsel asked the court to “note [his] exception” without elaborating on the grounds for the objection, and the court so noted it. The court then repeated its pronouncement of the sentence and concluded the proceeding. Subsequently, defendant appealed.
A divided panel of the Appellate Division reversed the judgment, on the law, vacated defendant’s guilty plea and remanded the matter to Supreme Court for further proceedings (see People v Williams,
Two Justices dissented and voted to affirm (see id. at 247-250 [Tom, J.P., dissenting]). In the dissent’s view, defendant had to, and failed to, preserve his challenge to the legality of his guilty plea because the exception to the preservation rule does not apply where, as here, a defendant’s claim implicates only his or her sentencing expectations and not the voluntariness of the plea itself (see id. at 247-248). The dissent further opined that defendant’s claim lacked merit because the court’s imposition of a lawful six-year prison term within the range of punishments promised in the event that defendant violated the terms of the plea agreement met his legitimate sentencing expectations, notwithstanding that the court’s promise of a three-year prison term based on his potential compliance with those terms would have resulted in an illegal sentence for the offense to which he pleaded guilty (see id. at 248-250). One of the Appellate Division dissenters granted the People leave to appeal (
II.
"Preservation — or, more precisely, the lack of preservation— frequently accounts for the disposition of criminal cases in this Court” (People v Hawkins,
The Appellate Division in the instant case relied principally on Louree for its determination that defendant did not need to preserve his claim. In doing so, that Court viewed Louree as holding that a defendant never has to preserve a claim that the court violated due process by accepting a guilty plea without informing the defendant of the direct consequences of the plea (see Williams,
In that regard, in Louree, we excused defendant’s failure to preserve his Catu claim not because the claim implicated due process, but because the defendant had no practical ability to assert that the plea was invalid prior to the imposition of sentence. Specifically, while we stated that, “where a trial judge does not fulfill the obligation to advise a defendant of post-release supervision during the plea allocution, the defendant
Importantly, after Louree was handed down and prior to the Appellate Division’s decision here, we dispelled any notion that Louree establishes such a broad exception to the preservation rule. So it was that, in People v Peque (
Thus, as Louree indicates and Peque crystallizes, if a defect in a plea allocution is clear on the face of the record and implicates due process, the defendant nonetheless must preserve his or her claim that the defect made the plea
It is no wonder, then, that even defendant does not embrace the Appellate Division’s rationale for dispensing with the preservation requirement here, but merely argues that he is entitled to the benefit of the exception to the preservation rule based on the absence of a chance to raise his claim below. In that regard, defendant contends that Supreme Court violated due process and improperly induced his guilty plea because it failed to tell him at the plea proceeding that it could not legally order a three-year prison term, which the court promised him in exchange for his guilty plea and his compliance with the plea conditions, upon defendant’s conviction for third-degree drug sale in light of defendant’s status as a second felony drug offender with a prior violent felony conviction. By defendant’s reckoning, since the court never announced that the promised sentence was illegal and his lawyer did not display any recognition of the unlawfulness of the proposed sentence on the record, neither defendant nor counsel had any practical ability to challenge the voluntariness of the plea on grounds of which they were unaware.
However, even assuming that the error alleged by defendant impacts the voluntariness of the plea as opposed to his sentencing expectations — an issue hotly contested by the parties and unaddressed by our decision today — defendant could have raised his current claim prior to the final imposition of sentence in Supreme Court, and therefore, he was obligated to, and failed to, preserve his claim.
As our previous summary of the record shows, and contrary to the assertions of our dissenting colleagues (see dissenting op at 232), the defense had multiple opportunities to preserve de
Finally, given defendant’s failure to preserve his present claim that his plea must be vacated, we express no opinion on the merits of the claim, and we remit the case to the Appellate Division, which may decide whether to review defendant’s un-preserved challenge to the validity of his plea as a matter of discretion in the interest of justice. As a result, just as our decision on procedural grounds should not be read to suggest that defendant would have been entitled to vacatur of his plea had he preserved his current claim, it also should not be taken as an endorsement of Supreme Court’s handling of the proceed
III.
Because defendant, via counsel, could have raised his current challenge to the propriety of his guilty plea prior to the imposition of sentence, he was obligated to preserve his claim, and his failure to object to the plea in the court of first instance precludes our review of his present contention. Accordingly, the order of the Appellate Division should be reversed and the case remitted to that Court for consideration of the facts and issues raised but not determined on the appeal to that Court.
Notes
. Notably, if, as the People maintain, defendant’s claim raises an issue pertaining to his sentencing expectations and not the voluntariness of his plea, it is undisputed that such a claim would have to be preserved to at least the same extent as a challenge that genuinely relates to the voluntariness of the plea.
. Our dissenting colleagues contend that “ [i] t is particularly unjust to require preservation in a case such as the one before us, where the error escaped discovery of all those involved and trained in the law — -the judge, prosecutor and defense counsel” (dissenting op at 231). This comment appears to be a mere rephrasing of the dissent’s argument that defendant lacked a practical opportunity to raise his current claim before the court of first instance. We simply disagree because the record discloses several instances where, in light of the court’s comments and the course of the proceedings, the defense could have made an objection based on, or sought clarification of, the legality of a three-year prison term upon his conviction. If the dissent means to suggest that defendant did not have to preserve his claim, regardless of any opportunity to do so, because the record does not affirmatively reveal that he and his attorney had actual knowledge that the court committed an alleged error, such an assertion is untenable. Although we have excused the failure to use the objection method of preservation to preserve a claim of a fundamental defect in a plea based in part on the lack of an opportunity for the defendant to have discovered the error, we have never held, either in the
. Notably, the legislature is aware that illegal sentences may sometimes be imposed and has created a mechanism to address this problem. That mechanism, CPL 440.40, authorizes the court, upon the People’s motion, to vacate an illegal sentence within one year of imposition. Had defendant received the illegal sentence that was to his benefit on his third-degree drug sale conviction, the People would have had only one year to move to vacate the illegal sentence (see Matter of Campbell v Pesce,
Dissenting Opinion
(dissenting). On this appeal, we are presented with a bargained-for plea based on an illegal minimum incar-ceratory sentence, offered as an inducement for defendant’s waiver of his constitutionally protected right to liberty and the guarantees afforded by his right to trial. In violation of defendant’s due process rights, the Judge at the plea hearing failed to ensure the defendant understood the direct sentencing consequences of the plea, and wrongly informed defendant that the offer was a legal minimum rather than one precluded by law. Thus, since defendant’s plea was not knowing, voluntary and intelligent, the plea must be vacated. No less important to my determination that this plea cannot stand is the indisputable fact that the judicial practice employed in defendant’s case jeopardizes the public confidence in plea bargaining and the criminal justice system as a whole.
Unlike the majority, I conclude that we are not procedurally foreclosed from addressing the merits of defendant’s claims on direct appeal. Quite simply, the usual rules of preservation do not govern our review because this is far from the usual case. According to the record, the Judge represented to defendant that under the law, in exchange for pleading guilty, he could receive a sentence of three years’ incarceration, followed by two years of postrelease supervision. The Judge failed to indepen
I.
Under our laws, the judge is responsible for accepting a plea after ensuring its validity, and the judge is the sole person authorized to impose a sentence. It is the “trial court [which] has the constitutional duty to ensure that a defendant, before pleading guilty, has a full understanding of what the plea connotes and its consequences” (People v Louree,
Thus, the trial judge must ensure “that the record . . . [is] clear that the plea represents a voluntary and intelligent choice among the alternative courses of action open to the defendant” (People v Belliard,
When a plea fails to comply with the due process requirement that the plea represent a “voluntary [,] [knowing] and intelligent choice among the alternative courses of action”
Furthermore, both the United States Supreme Court and this Court have determined that “a guilty plea induced by an unfulfilled promise either must be vacated or the promise honored” (Selikoff,
The People contend that defendant’s plea was knowing and voluntary because defendant understood that if he breached the plea conditions imposed by the court he faced a maximum sentence of 12 years’ imprisonment, and the court met defendant’s legitimate sentencing expectations by imposing a six-year prison term. The sentence imposed is irrevelant to the matter at hand because “[the] defect lies in the plea itself and not in the resulting sentence” (Hill,
The People further argue that a sentencing court has the inherent power to correct an illegal sentence (People v Williams,
Nevertheless, the People contend that under People v Collier if the original promise could not be imposed, the sentencing court could impose another lawful sentence as long as it “comports with the defendant’s legitimate expectations” (
The People further claim that if defendant had complied with the plea conditions he could have received a three-year sentence by repleading to a lesser offense. Yet for defendant to plead down, the original plea must be vacated — exactly the relief the People oppose and which defendant seeks on this appeal.
To the extent the People argue that defendant could be subjected to a legal sentence greater than the three years’ imprisonment he was promised, we have never held that a court may impose a sentence that exceeds the minimum period expressly offered as an inducement for a guilty plea, and our case law supports the opposite conclusion.
In Williams, this Court rejected a defendant’s challenge to a resentence that imposed an enhanced maximum period of incarceration directly within the period expressly explained to defendant at the time of the plea (
Similarly, the Court held in People v Murray that a judge does not “arbitrarily trifle [ ] with the legitimate expectations of [a] defendant based on the plea” when the defendant is told that the plea is conditional, and advised of the sentence to be imposed should defendant violate the court’s terms (
The decisions in Collier, Williams and Murray presuppose that a defendant who pleads guilty while fully aware of the period of incarceration attached to the plea is making a choice to bargain away freedom for at least the minimum, and up to the maximum, as described by the court. In accordance with
II.
When a judge fails “to ensure that defendant understands the nature of the charge and that the plea is intelligently entered” (People v Lopez,
Moreover, the preservation rule imposed by the majority is not unqualifiedly required by our case law under the circumstances presented in this appeal. Preservation serves important purposes. It allows a claim to be brought to the trial court’s attention in order to “provide the opportunity for cure before a verdict is reached and a cure is no longer possible,” “advance [ ] the truth-seeking purpose of the trial” and ensure “the goal of swift and final determinations of the guilt or nonguilt of a defendant” (People v Gray,
Thus, the Court recognized in Lopez that preservation is not required in the “rare case” where the voluntariness of the plea is called into question by a defendant’s factual recitation negating an essential element of the crime, and the court fails to adequately undertake its duty-bound inquiry to ensure the defendant understands the charge and plea (see id.). In such a case “the court’s attention should have been instantly drawn to the problem” (id.). In Louree, the Court employed a pragmatic approach to preservation, and reviewed on direct appeal a Catu violation, because the Court recognized “the actual or practical unavailability” of a motion to challenge a plea which cannot be “knowing, voluntary and intelligent if a defendant is ignorant of a direct consequence because of a deficiently conducted al-locution” (Louree,
Defendant’s case for direct appellate review to our Court, notwithstanding the lack of a postallocution motion, is at least
As for the exception recognized in Louree, here defendant had no genuine reasonable opportunity to present the Judge with a counterview of the inherently defective plea offer. In Louree, the lack of opportunity was due to the timing of the error. The trial judge did not mention postrelease supervision at the allocution, depriving the defendant of information necessary to determine whether to move to withdraw his plea. Nevertheless, this Court did not require that defendant investigate whether the Judge’s description of the sentence was correct. When the trial judge informed the defendant at sentencing about postrelease supervision, it was too late because a motion to withdraw a plea may only be made under CPL 220.60 (3) before the imposition of sentence (Louree,
Here, once the Judge stated at the plea hearing that the minimum was lawful, defendant relied on that statement and had no reason for further inquiry into the legality of the plea offer. Like the defendant in Louree, defendant Williams based his decision to plead guilty on the Judge’s error, and should be viewed as similarly lacking the opportunity to move to withdraw. Moreover, application of the preservation requirement here presupposes defendant’s prior awareness of the very error that the Judge was required to present to the defendant (see People v Peque,
The circumstances of this case further illustrate the inapplicability of preservation to defendant’s claim. The nature of postallocution motion practice presumes that a defense attorney has a reason to question the validity of the plea process and the offer. This makes sense in the context of a plea allocution, which involves a defendant’s responses to questions from the judge, intended to identify a defendant’s lack of understanding and volition, and where defense counsel, acting on behalf of the defendant, has reason to ensure the allocution meets constitutional requirements (see People v Tyrell,
Application of the preservation rule to these facts absolves the court of its constitutional duty to ensure that defendant is informed of the direct consequences of his plea, and limits defendant’s remedial options. The majority states the defendant can request the Appellate Division exercise its interest of justice authority to grant him relief (majority op at 224), but there are no assurances that the Court will be disposed in defendant’s favor. Here, two Justices dissented, finding the plea comports with constitutional requirements. Alternatively, the majority states defendant can proceed with an ineffective assistance of counsel claim. However, as with a Catu violation,
It seems apparent that the salutary purpose of the preservation rule is not furthered by refusing to consider defendant’s claim on direct review to this Court {Lopez,
III.
Defendant’s case is yet another reminder that our criminal justice system depends on the proper administration of plea bargains (Santobello,
The legitimacy of our “bargain-for-sentence” criminal process is based on the assurance that where promises are made to induce a defendant’s guilty plea, they are capable of being
Order reversed and case remitted to the Appellate Division, First Department, for consideration of the facts and issues raised but not determined on the appeal to that Court.
. The correct sentence was a determinate term between 6 and 15 years, followed by a term of postrelease supervision between IV2 and 3 years (see Penal Law § 70.70 [4] [b] [i]).
. It is worth noting that defendant was sentenced in January of 2012. If he had repleaded at that point to the originally agreed on three-year sentence, his sentence would already be complete.
. The Court’s holding in People v DeValle (
. The majority is incorrect in its assertion that allowing defendant to bring a direct claim would “swallow the preservation doctrine whole” (majority op at 224 n 2). Here, defendant should be absolved from the normal preservation rules, not solely because he lacked actual knowledge of the error, as the majority asserts, but because he relied on an assertion of the trial judge that the plea offer was based on a legal minimum sentence. When a court’s statement creates the perception that no further investigation óf a sentence is needed, defendant cannot be held responsible for relying on that statement.