Guilty Plea: Knowing and Voluntary – Failure to Warn of Sex Offender Management and Treatment Act
PEOPLE V. HARNETT
DECIDED FEBRUARY 10, 2011 NEW YORK COURT OF APPEALS
Issue : whether the failure to warn a defendant who pleads guilty to a sex offense that he may be subject to the Sex Offender Management and Treatment Act (SOMTA) invalidates the plea.
Holding : the Court of Appeals held that failing to warn a defendant who pleads guilty to a sex offense that he may be subject to the Sex Offender Management and Treatment Act (SOMTA) does not automatically invalidate the guilty plea.
Facts : Defendant pleaded guilty to sexual abuse in the first degree, consisting of sexual contact with a person under 11 years old (Penal Law § 130.65 ). During the plea allocution, defendant was told that he would be sentenced to seven years in prison, with a period of post-release supervision to be set by the court between 3 years and 10 years; that he would be subject to an order of protection for 15 years; and that he would be required to register as a sex offender. No mention was made of SOMTA (Mental Hygiene Law §§ 10.01 et seq.).
Defendant did not move, either before or after sentence, to withdraw his plea. After being sentenced, however, he appealed to the Appellate Division, arguing that his plea was not knowing, voluntary and intelligent because he had not been warned of its possible consequences under SOMTA. The Appellate Division affirmed, with two Justices dissenting. A Justice of the Appellate Division granted leave to appeal.
Legal Anlaysis : Defendant’s conviction and incarceration made him a "detained sex offender" subject to SOMTA (Mental Hygiene Law § 10.03 [g]). That status becomes significant as the end of an offender’s prison term approaches. When a detained sex offender "is nearing an anticipated release," a notice to that effect is given to the Attorney General and the Commissioner of Mental Health (Mental Hygiene Law § 10.05 [b]). The offender’s case is then reviewed by Office of Mental Health (OMH) staff and, if the staff finds further action appropriate, by a three member "case review team" including qualified professionals (Mental Hygiene Law § 10.05 [a], [d]). The case review team must "consider whether the respondent is a sex offender requiring civil management," and if it finds that he is it gives notice both to the offender and to the Attorney General (Mental Hygiene Law § 10.05 [e], [g]).The Attorney General then decides whether to file a "sex offender civil management petition" in court (Mental Hygiene Law § 10.06 [a]). If he does so, a series of proceedings follows, including a hearing without a jury on whether there is "probable cause to believe" that the person in question is "a sex offender requiring civil management" (Mental Hygiene Law § 10.06 [g]) and a jury trial at which the jury decides whether the offender "suffers from a mental abnormality" (Mental Hygiene Law § 10.07 [a]). A person found to be a detained sex offender who suffers from a mental abnormality must be classified by the court as either "a dangerous sex offender requiring confinement" or "a sex offender requiring strict and intensive supervision" (Mental Hygiene Law § 10.07 [f]). A detained sex offender in the former category "shall be committed to a secure treatment facility . . . until such time as he or she no longer requires confinement".
Defendant argues that the failure to advise him of the SOMTA consequences of his conviction invalidated his plea because (1) they are direct consequences of the plea, and (2) whether direct or collateral, they are so important that their non-disclosure rendered the plea proceedings fundamentally unfair.
The Court of Appeals has drawn a line between the direct and collateral consequences of a plea (see People v Ford, 86 NY2d 397 ; People v Catu, 4 NY3d 242 ; People v Gravino, 14 NY3d 546 ). The importance of the distinction is that a trial court "must advise a defendant of the direct consequences" (Catu, 4 NY3d at 244 [emphasis added]). A court’s failure to comply with that obligation "requires reversal" because harmless error analysis is inapposite. The possibility of supervision or confinement under SOMTA is clearly on the collateral side of the line.
Direct consequences are those that have "a definite, immediate and largely automatic effect on defendant’s punishment" (86 NY2d at 403). Consequences that are "peculiar to the individual’s personal circumstances and . . . not within the control of the court system" have been held to be collateral. The direct consequences of a plea – those whose omission from a plea colloquy makes the plea per se invalid – are essentially the core components of a defendant’s sentence: a term of probation or imprisonment, a term of post-release supervision, a fine.
The Court of Appeals held in Ford and Gravino that consequences that may be quite serious – possible deportation in Ford, Sex Offender Registration Act (SORA) requirements and onerous terms of probation in Gravino – are collateral.
Gravino is indistinguishable here, for all the factors that led us to hold SORA registration a collateral consequence apply equally, or a fortiori, to SOMTA. SOMTA, like SORA, is not a penal statute designed to punish a past crime, but a remedial one designed to prevent a future crime (see Gravino, 14 NY3d at 556); with SOMTA, as with SORA, important decisions and recommendations must be made, after the time of the guilty plea, by administrative agencies not under the court’s control (see id.); and with SOMTA, even more than with SORA, the consequences of a defendant’s plea are far from automatic. Indeed, experience to date indicates that the large majority of people who are "detained sex offenders" as SOMTA defines the term will suffer no consequences from that designation at all.
The Court of Appeals found that the stronger argument made on appeals is that SOMTA consequences, whether collateral or not, are simply too important to be left out of a plea allocution.
The Court found that as in Gravino, where collateral consequences of a plea are an issue, claims that a non-disclosure rendered the plea involuntary are best evaluated on a case by case basis, in the context of a motion by a defendant to withdraw his plea.
The Court compared this case to Gravino and found that "[t]here may be cases in which a defendant can show that he pleaded guilty in ignorance of a consequence that, although collateral for purposes of due process, was of such great importance to him that he would have made a different decision had that consequence been disclosed" (14 NY3d at 559). We observed that such cases would be "rare," because "in the vast majority of plea bargains the overwhelming consideration for the defendant is whether he will be imprisoned and for how long" (id.). But since SOMTA consequences can include extended confinement, a plea made in ignorance of such consequences may sometimes be proved involuntary – if a defendant can show that the prospect of SOMTA confinement was realistic enough that it reasonably could have caused him, and in fact would have caused him, to reject an otherwise acceptable plea bargain. Of course, in such cases the defendant will have to prove that he did not know about SOMTA – i.e., that his lawyer did not tell him about it – before he pleaded guilty. Thus, the issue of whether the plea was voluntary may be closely linked to the question of whether a defendant received the effective assistance of counsel (cf. Padilla v Kentucky, 130 S Ct 1473 ).
This defendant has not moved to withdraw his plea. On this record, we do not know either whether his lawyer told him about SOMTA or whether, considering the facts of defendant’s situation, SOMTA would have been a significant factor in the evaluation of a plea bargain. In short, defendant has not made the factual showing that would justify plea withdrawal. He is therefore not entitled to relief on this appeal.
Accordingly, the order of the Appellate Division should be affirmed.
Because I believe that civil confinement under the Sex Offender Management and Treatment Act (SOMTA) is so grave a deprivation of liberty that a plea should not be considered knowing and voluntary unless the defendant is aware of it, I respectfully dissent.