People v Francis (unanimous decision by Garcia [Feb. 2020]).

 

Issue: If a defendant moves to vacate an illegally low sentence under CPL 440.20, and loses, can he appeal?

Holding: No.

Upshot: You can try to get the 440.20 court to vacate an illegally-low sentence, but if you lose, you cannot appeal.

Facts: In 1988, Francis was illegally sentenced as a first-felony offender when in fact he was a second-felony offender. In exchange for his plea, the court told him that he would not get more than 1 year in prison. This was wrong (he was facing a minimum of 2 to 4 years in prison). Francis ultimately was sentenced to 6 months in jail. This 1988 sentence was later used to obtain a 3-strikes sentence in 1997.

Years later, Francis moved to vacate the illegally-low 1988 sentence under 440.20, hoping to bootstrap that into a 440.10 motion to vacate the 1988 conviction on unknowing/involuntary grounds. The 440.20 court rejected the motion because Francis was not harmed by an illegally low sentence. AD1 held that it lacked jurisdiction to review the 440.20 denial under CPL 470.15(1), which says:

[The AD may review any] question of law or issue of fact involving error or defect in the criminal court proceedings which may have adversely affected the appellant.

 

DECISION

ISSUE 1: Does CPL 470.15(1) Bar the Appeal?

Yes. CPL 470.15(1) says that the AD1 can consider any error or defect that “may have adversely affected the appellant.” Francis tried to argue that CPL 470.15(1) only applies to direct appeals, but the Court, correctly, rejected this view.

                       ISSUE 2: Does a mere loss satisfy CPL 470.15(1)?

Court again says no because that reading would white out the “adversely affected” requirement.

                   ISSUE 3: Does “future harm” in a subsequent proceeding (here the inability to vacate the 1988 conviction and ultimately the 1997 three-strikes sentence) constitute an “adverse” effect under CPL 470.15(1)?

No. But here is where things get dicey.

Obviously, CPL 470.15(1) is a standing statute, designed to codify the rule that you can appeal a decision that injures you in some way. But the Court never even considers this point and instead rewrites CPL 470.15(1). The Court says that a defendant can only appeal “errors that adversely affected the appellant in the criminal court proceedings from which the appeal is sought – here, errors in the CPL 440.20 proceeding – not errors that ‘may adversely affect the appellant’ in some other proceeding not before the appellate court for review.”

But CPL 470.15(1) does not speak to this issue in any specific way, let alone say that future harm is not cognizable. The Court just read that additional language into CPL 470.15(1). If the Court had just asked itself, “what is the purpose of this statute,” it would have obtained an answer it did not like: standing. Certainly, a defendant has standing to challenge a sentence when it is an essential element of a future motion to vacate a conviction.

TAKE AWAY

• The Court’s opinion, with tedious detail, focused on the facts and the defendant’s strategy. Judge Garcia wanted to paint the defendant as a champion of gamesmanship who used aliases to evade correct sentencing classification. But of course, the Court’s broad rule has nothing to do with the specific facts of the case—this no-appeal rule applies whenever a defendant seeks to appeal an illegally-low sentence. So, when the DA (in briefing) and Court (in oral argument) focus on irrelevant facts in order to garner sympathy (e.g., as in Francis, that a case is 30 years old or that the defendant used an alias), call them out! “So what?” (well a less colloquial version) is a good answer some times.

• Hone in on your best argument during oral argument! It seems like the best argument here was that the defendant was aggrieved because this 440.20 motion was an essential element of a motion to vacate. The broader argument that a defendant is aggrieved whenever a motion is denied was a non-starter from the get-go (if that were true, a defendant could appeal the denial of a 440.20 motion to anoint him “King of the American Empire”). But the oral argument was all over the place[1] and never got to the discrete question of whether the statute is essentially a standing statute and, similarly, whether the statute’s language somehow precludes claims based on future harm.

• This decision closes the door on any appeals of illegally-low sentences. But the Court did not foreclose the original 440.20 motion itself. This is still available.

• Perhaps also practitioenrs can try to directly attack the conviction itself under 440.10 without making a 440.20 argument (perhaps?).