Thursday, July 07, 2005

Defendant Need Not Be Told at Plea That His Sentence Will Run Consecutively to an Undischarged Sentence

Wilson v. McGinnis, Docket No. 04-4125 (2d Cir. July 5, 2005) (Feinberg, Cardamone, Sack) (Op. by Feinberg): The Circuit rejects on habeas review a petitioner's claim that his guilty plea was not knowing and voluntary because he was not told by the judge, at the plea proceeding, that the sentence he would receive in that case would run consecutively to another sentence he was already serving. The question turns on whether the consecutiveness of this sentence is a "direct" or merely "collateral" consequence of the defendant's guilty plea, since the Supreme Court has held that a plea of guilty is voluntary and intelligent only if the defendant enters the plea "with full awareness of its 'direct consequences.'" Op. at 7, quoting Brady v. United States, 397 U.S. 742, 748 (1970). The Circuit has defined "direct" consequences as those that have a "definite, immediate and largely automatic effect on the range of the defendant's punishment." United States v. United States Currency, 895 F.2d 908, 915 (2d Cir. 1990).

The Circuit concludes that the consecutiveness of the instant sentence was not a direct consequence of Wilson's guilty plea. This is somewhat surprising, given that under New York law, the judge essentially had to impose a consecutive sentence given the prevailing circumstances. Under N.Y. Penal Las § 70.25(2-b), a sentence imposed after a violent felony conviction "must run consecutively to a sentence imposed on an earlier felony where the violent felony was committed while the defendant was out on bail . . . on the earlier conviction [] but before sentence was imposed for that earlier felony." Op. at 4 (emphasis added). Wilson fell squarely within this provision. And while there is a "limited discretionary exception" to the requirement of consecutiveness, Wilson apparently did not qualify for it. See § 70.25(2-b) (court may run sentence concurrently if there are "either mitigating circumstances that bear directly upon the manner in which the crime was committed or . . . the defefendant's participation was relatively minor"). When Wilson pled guilty, therefore, it was "largely automatic" that he would receive a consecutive sentence. It follows that the consecutiveness of the sentence qualifies as a "direct" consequence of the plea.

The Court rejected this line of reasoning, relying on the fact that New York law gives the sentencing judge some wiggle room in not imposing a consecutive sentence. Op. at 11. However, since there seems to be no dispute that Wilson did not qualify for such largess from the sentencing judge, this rejection appears formalistic.


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