Eye on Eagle

Factual Background: Mr. Ba pleaded guilty to unlicensed general vending for selling handbags in
midtown Manhattan. The court offered him the choice between a sentence of 3 days community
service or a five hundred dollar fine. He chose the fine. On appeal, among other things, he argued
the fine was excessive. The Appellate Term held there was “no basis for reducing” as the
“Defendant received the precise sentence for which he had bargained, which was within the
permissible statutory range.”

Issues Before the Court: Did the Appellate Term treat the bargained-for nature of the sentence as
dispositive on the issue of its excessiveness, and, if so, was that error?

Holding: The Court unanimously agreed to remit to the Appellate Term to determine whether
the sentence is unduly harsh or severe. [On remittal, the Appellate Term held that it was not.]
Two sets of judges wrote concurring opinions. Garcia, joined by Cannataro and Singas, doubted
that, when the Appellate Term held there was no basis to reduce the negotiated sentence, it
believed itself incapable of reducing Mr. Ba’s sentence because it was the result of a negotiated plea.

However, after stating the correct standard and describing the intermediate court's review power as “broad” and “plenary,”

Garcia agreed that remittal was appropriate “in this unique case” for the court to clarify the basis for its decision.

Troutman, joined by Rivera and Wilson, held that the Appellate Term applied an incorrect
standard when it “treat[ed] the bargained-for nature of defendant's sentence as dispositive of his
challenge to the severity of the sentence.” Troutman embraced many of the decisions that postconviction
practitioners regularly rely on in arguing that their clients’ sentences are
excessive—Farrar, Suitte, Delgado — citing the need for appellate correction of sentencing
disparities that are infused with racial bias. Troutman also went on at length about the inherent
power imbalance and harshness reflected in our plea bargaining scheme, citing some strong
language that “the prosecutor has more control over life, liberty, and reputation than any other
person in America,” and “although plea bargaining involves negotiation, the parties to that
negotiation are seldom on equal footing. . . [defendants] have far more to lose than prosecutors
do—liberty, most significantly—which makes them unlikely to risk a lengthier sentence after an
unsuccessful trial.”

CAL Observes: Good news that the Court (at least implicitly) rejected an “extraordinary
circumstances” standard. Members of the Court also endorsed that appellate review is de novo
and plenary. Ba and Baldwin should be included in excessive sentence briefing going forward.
Troutman’s discussion of racial disparities in plea negotiations, especially in who is offered a
reduced charge, may help justify a lesser sentence in above-minimum cases where the client
received a top count disposition. Troutman also highlights the importance of appellate review as
a check on a sentencing court's discretion- a good observation to keep in mind when confronted
with an appellate panel’s resistance at oral argument to second-guessing the sentencing court.

Beyond its use as a good citation in excessive sentence claims, Troutman’s concurrence may be
helpful to post-conviction practitioners considering challenges to their clients’ plea bargains. The
omnipresent and inherently unfair conditions of plea bargaining, along with the pressure a client
feels to accept any plea (even an overly harsh one) rather than risk trial, illustrates just how
important effective negotiation is—and how objectively unreasonable (under Strickland’s first
prong) it is when a lawyer fails to take the steps necessary to argue for a better bargain, say
through an adequate pre-pleading investigation or other negotiation strategies.

Troutman’s concurrence also shows the importance of taking seriously a client’s post-conviction
complaints about feeling forced to take a plea and might offer support for the “prejudice”
argument that must be made to establish certain post-conviction claims, such as ineffective
assistance of counsel - that there must be a reasonable probability that, but for counsel’s errors,
the client would not have accepted the plea. Given the oppressive circumstances that generally
surround plea bargaining to induce a plea, even a single error could push a wavering client over
the edge to take the plea.