The Sequentiality Rule and Resentencing: Determining Predicate Felony Status At Sentencing
The Sequentiality Rule and Resentencing:
Determining Predicate Felony Status At Sentencing
People v. Thomas
2019 NY Slip Op 01167
New York State Court of Appeals
Decided: February 19, 2019
Author’s Note: The Court of Appeals’ holding in this case is particularly important at sentencing proceedings when determining whether your client is a predicate felony offender. Because a resentencing may sometimes occur years after the original sentence, determining the date of the prior sentence becomes very important when calculating predicate felony status and can mean a drastically different sentence for your client.
Whether a resentence, imposed after an original sentence is vacated, will reset the date of sentencing for the purpose of determining a defendant’s predicate felony status.
The Court held that the date on which sentence was first imposed upon a prior conviction – not the date of any subsequent resentencings on that same conviction – is the relevant date for purposes of determining when sentence upon such prior conviction was imposed.
FACTS OF THE CASE:
Defendant Michael Thomas was convicted, upon a guilty plea, of attempted robbery in the second degree in 1989. Later in 1989, Thomas pleaded to attempted robbery in the first degree. On both convictions, he was mistakenly sentenced as a second felony offender based on two 1988 youthful offender adjudications. In 1993, Thomas was convicted, by a jury, of robbery in the third degree and sentenced as a second felony offender to 3 ½ – 7 years in prison based upon his two 1989 convictions.
Long after Thomas served all of his aforementioned sentences, he moved to set aside his sentences on each of the 1989 convictions, arguing that his status as a second felony offender in both cases was improperly premised on the use of his 1988 youthful offender adjudications. Thomas moved to set aside the sentence on his 1993 conviction and requested that he be resentenced on that conviction as a first-time offender, arguing that his 1989 convictions were no longer predicate felonies within the meaning of Penal Law § 70.06 (1)(b)(ii).
The Lower Court
The Supreme Court, citing People. .Esquiled, 121 A.D.3d 807 (2d Dept. 2014), found that Thomas should be resentenced as a first-time offender. The Appellate Division affirmed explain that Esquiled stated that for purposes of determining whether a prior conviction is a predicate felony, the sentence on the prior conviction must have been imposed before commission of the present felony.
The Court held that the date on which sentence was first imposed upon a prior conviction, not the date of any subsequent resentencing’s on that same conviction, is the relevant date for the purpose of determining when sentence upon such prior conviction was imposed.
Penal Law § 70.06 requires a sentencing court to impose an enhanced sentence where the defendant is a “second felony offender”, a person who stands convicted of a felony other than a class A-I felony, after having previously been subjected to one or more predicate felony convictions.
A prior conviction will not constitute a predicate felony unless it satisfies the sequentiality requirement (the sentence upon the prior conviction must have been imposed before commission of the present felony). The sentence also must have been imposed not more than 10 years before commission of the felony of which the defendant presently stands convicted. The court rejected this interpretation of the predicate felony statutes, because it defies the express language, and would defeat the purpose, of those statutes.
As with any question of statuary interpretation, this court’s main task is to ascertain and give effect to the intention of the Legislature. Since the statutory text plainly outlines the legislative intent, the starting point of interpretation must always be the language itself. The court also considers the spirit and purpose of the act and the objects to be accomplished. Critically, a statute must be constructed as a whole and its various sections must be considered together and with reference to each other.
The Sequentiality Requirement
The sequentiality Requirement is defined in Penal Law § 70.04(1)(b)(ii) as follows: for the purpose of determining whether a prior conviction is a predicate violent felony conviction the following criteria shall apply: (ii) sentence upon such prior conviction must have been imposed before commission of the present felony. In other words, if your client is being sentenced today, he must have been sentenced on the prior conviction before the commission of the present felony in order to be considered a second felony offender. Hence, the importance of the Court of Appeals ruling on resentencing in this case. Because a resentencing can sometimes take place years later, knowing the relevant sentencing date can mean the difference between an enhanced sentence as a second felony offender or a a non-enhanced sentence. The relevant date for sentencing and determining second felony offender status is the first time your client is sentenced, not the resentencing. This is an important distinction because sufficient time may have passed where your client may no longer be considered a second felony offender.
In People v. Thompson, the Court of Appeals determined that the term sentence was not synonymous with the term resentence. For the purpose of sequentiality requirement and 10-year look-back period, section 70.06 defines sentence while making no reference to a resentence. In Thompson, the court explained that the use of the word “sentence” and not the word “resentence” is particularly significant because unlike a sentence of probation, a resentence is not defined as a sentence under the predicate felony statutes.
The CPL, however, directs that the sentence imposed as part of the final judgment is the original sentence imposed on the conviction, not a resentence (see CPL 1.20  [“(a) judgment is comprised of a conviction and the sentence imposed thereon and is completed by imposition and entry of the sentence”]; CPL 450.30  [“the judgment consists of the conviction and the original sentence only.
This case are more analogous to those in People v Boyer (22 NY3d 15 ). Defendant attempts to distinguish Boyer on the ground that it involved a resentencing to correct a trial court’s failure to pronounce the postrelease supervision (PRS) component of a determinate sentence under People v Sparber (10 NY3d 457 ). Boyer held that a Sparber resentencing does not “reset the date of sentence for a felony conviction such that it may no longer serve as a predicate felony conviction in relation to a subsequently committed crime
Sparber resentencings were unlike other resentencings because “correct[ing] the flawed imposition of PRS does not vacate the original sentence and replace it with an entirely new sentence, but instead merely corrects a clerical error and leaves the original sentence, along with the date of that sentence, undisturbed.
The present case present the Court of Appeals with the first opportunity to address this relationship, and the Court concluded that the essential holding in Boyer—that the original sentence determines the sequentiality of the prior offense where there is a subsequent Sparber resentencing—also applies where the resentencing is to correct a sentence that is illegal because the defendant was improperly adjudicated a predicate felony offender.