The sledgehammer justice of mandatory minimum sentences

12-26-2013 National:

Federal Judge John Gleeson of the Eastern District of New York says documents called “statements of reasons” are an optional way for a judge to express “views that might be of interest.” The one he issued two months ago is still reverberating.

It expresses his dismay that although his vocation is the administration of justice, his function frequently is the infliction of injustice. The policy of mandatory minimum sentences for drug offenses has empowered the government to effectively nullify the constitutional right to a trial. As Lulzim Kupa learned.

Born to Albanian immigrants, he was convicted in 1999 and 2007 of distributing marijuana. Released from prison in 2010, he again engaged in trafficking, this time with enough cocaine to earn him charges involving a sentence of 10 years to life. On March 5, 2013, prosecutors offered this: In exchange for a guilty plea, he would effectively be sentenced within the range of 110 months to 137 months — but the offer would expire the next day. Kupa rejected the offer, so on March 15 prosecutors filed a “prior felony information,” a.k.a. an 851 notice, citing the two marijuana convictions. So, 10 days after saying a sentence of perhaps less than eight years (assuming good time credits) would be appropriate, prosecutors were threatening a sentence of life without parole. This gave him no incentive to plead guilty.

Then, however, they immediately proposed another plea agreement involving about nine years’ imprisonment. Given a day to decide, he acted too slowly, so prosecutors again increased the recommended sentence. Finally, Kupa caved: “I want to plead guilty, your Honor, before things get worse.” If, after the 851 notice, he had insisted on a trial and been found guilty, he would have died in prison for a nonviolent drug offense. He is 37.

Commonwealth v Nash

5-19-2011 Kentucky:

Commonwealth v Nash
No. 2010-SC-000065-DG.

Appellee, Anthony Nash, was convicted, pursuant to a conditional guilty plea, of a first offense violation of Kentucky's Sex Offender Registration Act (a Class D felony), and being a second-degree persistent felony offender. Because Appellee was not required to register as a sex offender, we vacate the opinion of the Court of Appeals, and likewise we vacate the convictions, and remand to the trial court with instructions to dismiss the indictment.

... ... ...

The Court of Appeals reversed Appellee's conviction in 07-CR-00034 in an opinion rendered January 22, 2010, concluding the application of the 2006 SORA amendments (which increased the penalty on those required to register under current or prior law from a Class A misdemeanor to a Class D felony)8 was an ex post facto law as applied to Appellee. On April 22, 2010, this Court rendered Buck v. Commonwealth, 308 S.W.3d 661 (Ky.2010), upholding the constitutionality of the 2006 amendments to SORA. The Commonwealth requested discretionary review, which this Court granted on October 13, 2010. Before this Court, Appellee argues for the first time that he was never required to register for the 1993 conviction under the 1994 SORA or any amendments thereto. Appellee is correct.

... ... ...

Appellee was never required to register under any version of SORA.

ANALYSIS

Appellee entered a conditional guilty plea to the registration violation charge (and PFO II), reserving the right to appeal the trial court's denial of his motion to amend (on ex post facto grounds). His argument that he never had to register was not made below, having first been made to this Court, and hence is not preserved. This Court therefore reviews for manifest injustice. RCr 10.26.

On appeal from a conditional guilty plea, this Court will consider an issue which "involve[s] a claim that the indictment did not charge an offense or the sentence imposed by the trial court was manifestly infirm[.]"31 Appellee was never required to register under any version of SORA. As he was not required to register, he cannot be guilty of the crime of failing to register, and any sentence imposed would be manifestly infirm. Under the facts of this case, the indictment should be dismissed.32 As it stands, the Appellee sits in prison wrongfully convicted.

CONCLUSION

For the foregoing reasons, the opinion of the Court of Appeals is vacated and the judgment of the Fayette Circuit Court is likewise vacated, and the matter remanded directly to the Fayette Circuit Court, with instructions to set aside or vacate the judgment and sentence in the above-styled case, and to dismiss the indictment therein, and to order the release of the Appellee, Anthony Nash, from these charges.