People v. Thomas
2019 NY Slip Op 08545 [34 NY3d 545]
Decided on November 26, 2019
Appealing a felony conviction? Contact our office to see how we can help.
Issue:
Whether an appeal waiver is valid and enforceable when the oral and/or written language of the waiver mischaracterizes the scope of appellate rights surrendered as part of a defendant’s plea bargain.
Holding:
The Court held that an appeal waiver is valid and enforceable when its mischaracterizations do not impact the defendant entering the agreement intelligently and voluntarily; conversely, an appeal waiver is invalid when the oral or written language of the waiver so mischaracterizes the rights waived that the defendant cannot enter the agreement intelligently and voluntarily.
The Court of Appeals reviewed three different cases, each with a different plea and waiver colloquy performed by the lower court. In each case, there was a written waiver as well as an oral waiver on the record. The Court suggested that the model colloquy should be used to ensure that appellate rights are properly explained and understood by defendants pleading guilty.
Facts:
People v. Thomas
By indictment defendant Victor Thomas was charged with violent felonies of first-degree assault, first-degree gang assault, and related crimes. Police identified him as the man in the surveillance video pointing a gun at people attempting to assist the victim during a gang assault. While in custody at the precinct and prior to Miranda warnings, a detective showed a still photo taken from the video in response to Thomas’ repeated questions as to why he was being detained. Upon viewing the photo, Thomas stated, “You got me.” Supreme Court denied his motion to suppress this oral statement on the ground that it was spontaneously made and not the result of interrogation or its functional equivalent.
Thomas pled guilty as a second-felony offender to a reduced charge of first-degree attempted assault in exchange for the legal minimum of five years in prison to be followed by five years of postrelease supervision (PRS). Thomas waived his right to appeal both orally and in writing as part of the plea bargain, and during the plea colloquy, the trial court elicited from defendant his understanding that “separate and apart” from the constitutional rights he waived, he was being asked to give up the right to appeal. The written waiver stated that the defendant “waives any and all rights to appeal including the right to file a notice of appeal from the judgement of conviction,” with the exception of any constitutional speedy trail claim, the legality of sentence, competency to stand trial and “the voluntariness of the appeal waiver.”
At sentencing, the court imposed the legal minimum term of 5 years. Thomas filed a notice of appeal and, on direct appeal, sought review of the validity of the appeal waiver and the order denying his motion to suppress his oral statement. The Appellate Division affirmed, holding that the valid appeal waiver precluded review of the suppression ruling; in the alternative, the Court agreed with the suppression court that the defendant’s statement was spontaneous and not the product of interrogation (158 AD3d 434 [1st Dept 2018]. A Court of Appeals judge granted Thomas leave to appeal (31 NY3d 1088 [2018]).
People v. Green
After waiving indictment, defendant Nicole Green was charged with three counts of burglary in the second degree, class C felonies. Green pled guilty to one reduced count of attempted second-degree burglary, a class D felony, in exchange for a six-year prison term and five years of PRS. The court left open the possibility that the sentence could run consecutive to a nine-year prison sentence Green was then serving.
As part of the plea bargain, Green agreed to an appeal waiver. The court advised Green that “once you are convicted and sentenced here, there will be no review by any other court…” and that “that waiver goes to almost all issues of conviction and sentence, including the terms and length of your sentence, whether your sentence is excessive, you won’t be able to hire an attorney to file an appeal for you, you won’t get an assigned attorney to file an appeal for you, you won’t be able to file your own appeal, you won’t get waived filing fees. There is just going to be no review by any other court.” Green confirmed that she understood and the court directed her to sign a written form stating that she was waiving “all rights to appeal.” The form listed four issues excepted from the appeal waiver, including the voluntariness of the waiver. The court did not allocute Green to whether she understood the form’s contents.
The court sentenced Green to consecutive prison terms and she challenged the validity of the appeal waiver claiming an excessive sentence. The Appellate Division affirmed, declining to review the sentence claim as precluded by a valid appeal waiver (160 AD3d 1422 [4th Dept 2018]). A court of appeals judge granted defendant leave to appeal (32 NY3d 1004 [2018]).
People v. Lang
Seventeen-year-old defendant Storm Lang was charged with four felony counts and two misdemeanor counts of sexual abuse. Lang agreed to waive prosecution by indictment in open court. Accompanying the indictment waiver form was the SCI, which repeated the factual allegations of the six counts of sexual abuse charged in the felony and misdemeanor complaints, including the place and designated dates of each crime. The waiver of indictment, however, identified the six counts of abuse without listing any date, approximate time or place of the offenses as prescribed by CPL 195.20.
Lang waived his right to appeal and pled guilty to two felony counts and one misdemeanor count of sexual abuse in exchange for a promised cap of four years in prison plus 10 years of PRS. The same judge who took Green’s plea presided over Lang’s plea proceedings and used essentially the same appeal waiver description in its oral colloquy in both cases. Lang signed the identical form that Green did, and the court did not ask Lang if he understood its contents. The court denied Lang youthful offender status, citing the importance of having sex offender registration of the defendant based upon his conduct. The court sentenced Lang to three years in prison and 10 years of PRS. On direct appeal, Lang challenged the validity of the appeal waiver and the court’s denial of youthful offender status. The Appellate Division affirmed (165 AD3d 1584 [4th Dept 2018]). While agreeing with defendant that “the colloquy and written waiver contained improperly over broad language concerning the rights waived,” the Court concluded that the waiver was valid and enforceable. Lang was granted leave to appeal.
Analysis:
Appeal Waivers Surrender Specific, Distinct Rights
The Court pointed to its precedents and reiterated that an appeal waiver does not serve as an absolute bar to the taking of a first-tier direct appeal. The Court maintains that several categories of appellate claims remain nonwaivable “because of a larger societal interest in their correct resolution” (Callahan, 80 NY2d at 280). One such claim is the voluntariness of the appeal waiver. The Court explained that Appellate courts have an integral role in reviewing the validity of appeal waivers, as they are vested with “the responsibility to oversee the process and to review the record to ensure that the defendant’s waiver of the right to appeal reflects a knowing and voluntary choice” (80 NY2d at 280).
Imprecision persists in trial courts’ descriptions of the waiver of the right to appeal. The Court has never required a particular litany explaining the distinctions between the “right to appeal” and the right to limited appellate review, and has repeatedly steered clear of “a uniform, mandatory catechism…in favor of broad discretions controlled by flexible standards.” Indeed, while the phrase “waive of the right to appeal” is a “useful shorthand” reference to what is more precisely a narrowing of the issues for appellate review, the term can “misleadingly suggest a monolithic end to all appellate rights [when] in fact…no appeal waiver serves as an absolute bar to all appellate claims” (Garza v Idaho, 586 US 139 S Ct 738, 744 [2019]). Such shorthand pronouncements are enforceable so long as the totality of the circumstances reveals that the defendant understood the nature of the appellate rights being waived.
Appeal Waivers and ‘Misleading Language’
The Court has held appeal waivers unenforceable where a lower court’s advisement as to the rights relinquished was incorrect and irredeemable under the circumstances. When a trial court characterizes an appeal as one of the many rights automatically extinguished upon entry of a guilty plea, a reviewing court cannot be certain that the defendant comprehended the nature of the waiver of appellate rights (People v Billingslea, 6 NY3d at 257). In Billingslea the Court’s disapproval hinged on “misleading language” that confused the discrete concepts of the forfeiture of a right by operation of law and the defendant’s intentional relinquishment of a right by a voluntary waiver.
In determining whether the record demonstrates that a defendant understood an appeal waiver’s consequences, the Court considers the defendant’s consultation with counsel, and on-the-record acknowledgments of understanding, a written appeal waiver that supplements or clarifies the court’s oral advice, and the defendant’s experience with the criminal justice system. As underscored in People v Bradshaw, the court’s oral colloquy with defendant, including the elicitation of an oral acknowledgment that defendant was “forgoing his right to appeal” can cure incorrect language in the written waiver form (18 NY3d at 267).
The Court concludes that the appeal waiver in Thomas was knowingly and voluntarily entered, but it reaches the opposite conclusion in Green and Long. Thomas argues that insertion of “no-notice-of-appeal” language in the written waiver form “voids the entire appeal waiver process.” While that language was incorrect, it was coupled with clarifying language in the same form that appellate review remained available for certain issues. Additionally, the court’s colloquy with Thomas was sufficient to support a knowing and voluntary waiver.
However, in Green and Lang, the trial court’s mischaracterization of appellate rights waived as encompassing not only an absolute bar to the taking of a direct appeal and the loss of attendant rights to counsel and poor person relief but also all post-conviction relief separate from the direct appeal, is, according to the Court, even more serious than the conflated language in Billingslea. Here, as in Billingslea, it is impossible to tell whether the waivers entered by Green and Lang were knowing and voluntary because the trial court so “mischaracterized the nature of the right a defendant was being asked to cede” (6 NY3d at 256-257). The Court held that the waivers cannot be enforced on “the theory that the offending language can be ignored…” Additionally, the “detailed written waivers” in these cases did not cure ambiguities, rather, they repeated the County Court’s errors in the colloquies. The court also failed to confirm that Green and Lang understood the contents of the written waivers. The Court therefore reverses the decisions in Green and Lang.
Model Colloquy Provides More Precision
The Court notes that employment of imprecise appeal waiver colloquies has been criticized as encouraging a pathway to increased appellate litigation over the validity of the waivers, and reiterates that greater precision in the courts’ oral colloquies could provide more clarity on the record as to the issue of voluntariness. The Model Colloquy for the waiver of the right to appeal provides a concise statement conveying the distinction missing in most shorthand colloquies, that, “by waiving your right to appeal, you do not give up your right to take an appeal by filing a notice of appeal…within 30 days of the sentence. But, if you take an appeal, you are by this waiver giving up the right to have the appellate court consider most claims of error, and whether the sentence I impose, whatever it may be, is excessive and should be modified. As a result, the conviction by this plea and sentence will normally be final” (NY Model Colloquies, Waiver of Right to Appeal).