Second Circuit Upholds Constitutionality of New York State’s Persistent Felony Offender Sentencing Scheme

October 18, 2010 by Marshall A. Mintz · Leave a Comment 

In Portalatin v. Graham, __ F.3d __, 2010 WL 4055571 (2d Cir. Oct. 18, 2010)(en banc), the Second Circuit, in a 9-3 split, held that the New York State courts did not unreasonably apply Supreme Court precedent when finding that the New York State Persistent Felony Offender sentencing statute (PFO) was Constitutional.

The majority relied heavily on the standard of review, noting that Federal Courts are “bound by [the New York State Court of Appeals’s] construction of New York law in conducting our analysis” and that New York courts have “interpreted the statute to authorize [the increased] sentence based on the defendant’s predicate felony convictions alone.”

As summed up by the majority, “the PFO statute — as interpreted by the New York Court of Appeals — creates a recidivist sentencing scheme in which the only factual predicates necessary to impose the enhanced sentence relate to the defendant’s criminal history. Unlike in Blakely and Cunningham, recidivism findings are the touchstone: the predicate felonies alone expand the indeterminate sentencing range within which the judge has the discretion to operate, and that discretion is cabined only by an assessment of defendant’s criminal history.”

The dissent argued that the majority opinion showed “only that the PFO statute can be applied in a constitutional manner,” but not that it actually was (or continues to be). Further, the dissent noted that the arguments relied on by the majority (regarding the maximum sentence for Apprendi purposes) were the same ones rejected in Blakely and Cunningham.

Second Circuit Finds NY Persistent Felon Sentencing Scheme Unconstitutional

March 31, 2010 by Marshall A. Mintz · Leave a Comment 

In a long-awaited decision today (in a case in which I wrote the Amicus brief on behalf of the New York State and National Associations of Criminal Defense Lawyers), the Second Circuit found that New York State’s Persistent Felony Offender Statute (PFO)  is unconstitutional and an unreasonable application of clearly established law.  That decision involves five consolidated cases — Besser v. Walsh, Phillips v. Artus, Portalatin v. Graham, Morris v. Artus, and Washington v. Poole, — all of which involved challenges, pursuant to 28 U.S.C. 2254, to the PFO statute.

The Court began by explaining that “the Sixth Amendment right to a jury trial, applicable to the states as incorporated by the Fourteenth Amendment, prohibits the type of judicial fact-finding resulting in enhanced sentences under New York’s PFO statute. We also hold that this prohibition was not clearly established until Blakely v. Washington, 542 U.S. 296 (2004).”

The New York Sentencing Law

For first and second felony offenders, the existence or non-existence of a prior felony alone 5 determines the applicable sentencing range.  However, under the PFO statute, a defendant who has been previously convicted of two felonies is a “persistent felony offender.”  Under the PFO statute, the sentencing court must make a finding of at least two prior felony convictions, rendering that defendant a PFO and exposing him or her to an enhanced sentence.  After making that finding, the court turns to whether “the history and character of the defendant and the nature and circumstances of his criminal conduct” is such that the PFO should, in the public interest, be given that enhanced sentence.

Prior Judicial Review

The New York Court of Appeals has repeatedly rejected Sixth Amendment challenges to that sentencing scheme, holding that the existence of the prior felonies alone authorizes the enhanced sentence. See People v. Quinones, 906 N.E.2d 1033, 1034 (N.Y. 2009); People v. Rivera, 833 N.E.2d 7 at 195; People v. Rosen, 752 N.E.2d 844, 846 (N.Y. 2001).

For its part, the Second Circuit has twice held that the New York Court of Appeals did not unreasonably apply either Apprendi v. New Jersey, 530 U.S. 466 (2000), or the Supreme Court’s later decision in Ring v. Arizona, 536 U.S. 584 (2002). See Brown v. Miller, 451 F.3d 54, 56-57 (2d Cir. 2006).

The Current Decision

However, today’s decision explains that whatever doubt may have existed about the constitutionality of the NY statute was laid to rest by Blakely.  Blakely, the Court explained, clarified Apprendi by making it unambiguously clear that any fact (other than a prior conviction), no matter how generalized or amorphous, that increases a sentence for a specific crime beyond the statutory maximum must be found by a jury.

In sum, the Court explained, the PFO statute cannot be squared with the statement by Justice Ginsburg in her opinion for the Court in Cunningham v. California, 127 S. Ct. 856 (2007): “If the jury’s verdict alone does not authorize the sentence, if, instead, the judge must find an additional fact to impose the longer term, the Sixth Amendment requirement is not satisfied.”

In setting Blakely as the tipping point, the Court stated that “the legal rule invoked by petitioners was not clearly established until Blakely clarified Apprendi.”  As such, only those convictions which became final after the Blakely decision will be subject to review.

The Remedy

With respect to the petitioners in the consolidated cases which the Court decided, it remanded for hearings to determine whether application of the statute “had [a] substantial and injurious effect or influence” on each sentence.  Brecht v. Abrahamson, 507 U.S. 619 (1993).


The Second Circuit granted the State’s petition for rehearing en banc.  The case will be heard on July 9.

NY Court of Appeals – People v. Quinones

March 30, 2009 by Marshall A. Mintz · Leave a Comment 

In People v. Quinones, which can be found by clicking here, the New York State Court of Appeals again upheld the constitutionality of the discretionary persistent felony offender sentencing scheme.  The Court again explained that under New York’s scheme, a defendant is subject to an enhanced sentence based solely on the existence of two prior felony convictions – which places New York’s scheme outside the scope of Apprendi. Another distinguishing feature of New York’s sentencing scheme is that it is only after a defendant’s eligibility for an enhanced sentence is determined that a judge is given the discretion to choose the appropriate sentence within a sentencing range prescribed by statute.  Notably, the Court made no mention of the recent Federal Court decisions finding the statute unconstitutional.