Defendant, Sarita Hidalgo, was indicted for first degree assault for her participation in a street fight in which one of her cohorts slashed a woman's face. In accordance with her negotiated plea agreement, defendant pled guilty to first degree attempted assault. The plea agreement left the length of her sentence to the discretion of the trial judge. When she entered her plea, the judge explained to Defendant the range of the court's sentencing options, and Defendant expressly waived her rights to appeal. Thereafter, the judge sentenced Defendant to a prison term of one to three years. Defendant appealed to the Appellate Division, asserting that her sentence was harsh and excessive. The Appellate Division, without opinion, affirmed her conviction.
Whether a defendant who enters a plea bargain that leaves the length of her sentence to the discretion of the judge and, without limitation, waives her right to appeal, loses the right to challenge her sentence.
Yes. A defendant's unrestricted waiver of the right to appeal encompasses her right to review of the sentence, even if she did not know the specific sentence at the time the waiver was made.
A defendant may waive the right to appeal as part of a plea bargain, as long as the waiver is on the record, voluntary, knowing, and intelligent. The scope of the waiver has been found to encompass all appealable issues, including those related to the sentence. However, the waiver must not violate the public policy interest in preserving the integrity of the criminal process. People v. Allen, 82 N.Y.2d 761 (N.Y . 1993); People v. Callahan, 80 N.Y.2d 273 (N.Y. 1992); People v. Karim, 146 AD2d 805; People v. Seaberg, 74 N.Y.2d 1 (N.Y. 1989).
The Departments of the Appellate Division were split over whether an appeal-waiver encompassed issues relating to the sentence where the defendant did not receive a specific sentence promise at the time of the plea and waiver. The Second and Third Departments had held that if the defendant was unaware of the sentence at the time of the appeal-waiver, the defendant did not waive the right to review the sentence. In contrast, the Fourth Department had held that since an appeal-waiver encompasses all issues relating to the sentence, the defendant had no right to seek a later review of the sentence length.
The Hidalgo court settled the split by holding that Defendant's appeal-waiver encompasses the right to appeal Defendant's sentence length, even where Defendant is unaware of the sentence length at the time of the waiver. Hidalgo at para.7, 8.
The court found that the facts of this case demonstrated that Defendant "knowingly," "intelligently" and "voluntarily" waived her right to an appeal. Hidalgo at para. 10. The court cited Defendant's confirmation that she understood the court's sentencing options, that the court had made no "promises or commitments" concerning her sentence, that she knew she could not return to "this Court or to any court" to set aside her conviction, and that she had discussed all of this with counsel. Id.
Following Hidalgo, a defendant's general unrestricted waiver of her right to appeal encompasses the right to challenge the sentence length set by the judge provided the judge does not abuse his discretion with respect to such sentence. Hidalgo at para. 11.
If the trial court does not explicitly inform the defendant of the possible sentence length, has the defendant knowingly and intelligently waived his/her rights without limitation? For example, suppose the defendant did not speak English well, would she held to have knowingly and intelligently waived the right to appeal her sentence length?
Does the court's ruling severely infringe upon the rights of a defendant who agrees to a plea bargain under duress, coercion, or on the advice of counsel? For example, many plea bargainers are indigent defendants who are encouraged by counsel and the prosecution to accept a plea bargain. Are these defendants fully cognizant of their rights.?
A majority of jurisdictions follow the rule that the Court of Appeals adopted in Hidalgo. The Supreme Court of California held in People v. Pannizon, 913 P.2d 1061 (Cal. 1996), that the right to appeal sentencing may be waived as part of a plea bargain, so long as the defendant's waiver is knowing, intelligent and voluntary. However, the defendant always has the right to appeal a sentence based on constitutionally impermissible factors (such as race).
A minority of jurisdictions follow the rule that a defendant's right to appeal cannot be waived. The Supreme Court of Arizona held in State v. Ethington, 592 P.2d 768 (Ariz. 1979) that, as a matter of public policy, the right to appeal is not negotiable in plea bargaining and the defendant is permitted to bring a timely appeal from a conviction, despite an agreement not to appeal. The Supreme Court of Michigan adopted an even stronger view in People v. Butler, 204 N.W.2d 325 (Mich.1972), stating that a defendant's right to appeal a conviction was an absolute right granted by the state constitution. The court adopted a policy to vacate future plea convictions that were based on the requirement that the defendant waive his right to appeal as part of the plea agreement.
The Supreme Court of Washington has found the reasoning in cases such as Ethington and Butler troublesome, and in State v. Perkins, 737 P.2d 250 (Wash. 1987), it agreed with one commentator on the issue saying, "[t]he reasoning of those courts which invalidate pleas conditioned on defendant's agreement to waive his appeal right seems curiously at odds with the widely-accepted theoretical underpinnings of the plea bargaining system. While the right to appeal is an important right, it is no more fundamental than the right to a jury trial or the privilege against self-incrimination. Yet almost all courts have agreed that defendants can waive those rights by pleading guilty, so long as they do so knowingly and voluntarily." Id. at 252, quoting J. Bond, Plea Bargaining and Guilty Pleas, § 5.14, at 5-29 (2d ed. 1983).