Tuesday, August 16th, 2005

Make Sure You Check Out Those Old Convictions!

United States v. Jimmy Glen, Docket No. 04-2394-cr (2d Cir. August 10, 2005) (Op. by Winter): This is a great little case that serves as further reminder that counsel must always check out the details of prior convictions used to enhance a current sentence. Here, defendant pled guilty to a 21 USC § 841(b)(1)(A) charge (involving more than 50 grams of cocaine base). The Government also filed a prior felony information, alleging 2 prior drug convictions (in 1977 and 1996). The effect of these priors was a mandatory minimum life sentence on the current charge, which the district judge imposed.

The Circuit vacated the sentence on appeal, finding that the 1977 conviction was not yet “final” as required under § 841. (There were actually two 1977 convictions, but that is of no moment as neither was “final”). This was so because Glen filed timely notices of appeal from the 1977 convictions. And although he never perfected those appeals, “they have not been dismissed and are still pending.” Op. at 9.

Looking to New York State law, and specifically the rules of the Appellate Division, 4th Department, the Circuit pointed out that an appellant in that court has 60 days to perfect an appeal after filing a notice of appeal. If he does not do so, then the state can move to dismiss the appeal. If the state so moves, the appellant still has the opportunity to prevent dismissal by “demonstrating a reasonable excuse for the delay and an intent to perfect the appeal within a reasonable time.” New York R. App. Div. 4th Dept. § 1000.13(e). Here, the state never moved to dismiss Glen’s unperfected appeals.

As a result, “an avenue of direct appeal from [Glen’s] 1977 convictions remain open to him.” Op. at 10. First, “[w]ere the state ever to move to dismiss the appeals, appellant could seek to show a reasonable excuse for the delay; if that excuse were accepted . . . , appellant would then be permitted to perfect his appeals and have them heard.” Id. Second, the Court opined that “[i]t may also be that, absent a motion to dismiss by the state, appellant could perfect his appeals at any time.” Id. (citing a Fourth Department decision considering an appeal that was not perfected until 8 years after filing of notice of appeal). The 1977 convictions were therefore not final.

And because § 841 requires that the prior convictions be final before they could be used as enhancing predicates, the 1977 convictions did not qualify as such predicates. On remand, therefore, the mandatory minimum becomes 20 years rather than life (as a result of Glen’s apparently final and valid 1996 conviction).

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