Opinion
January 18, 2001.
Appeal from a judgment of the County Court of Broome County (Smith, J.), rendered June 24, 1998, convicting defendant upon his plea of guilty of the crime of criminal sale of a controlled substance in the third degree.
Bruce A. Androphy, Albany, for appellant.
Gerald F. Mollen, District Attorney (Joann Rose Parry of counsel), Binghamton, for respondent.
Before: Cardona, P.J., Spain, Rose and Lahtinen, JJ.
MEMORANDUM AND ORDER
In satisfaction of a superior court information, defendant waived indictment and pleaded guilty to criminal sale of a controlled substance in the third degree with the understanding that County Court would sentence him to 3 to 9 years in prison. After accepting the plea, the court admonished defendant that if he failed to appear on the date scheduled for sentencing the court would be authorized to impose an enhanced sentence of up to 8_ to 25 years in prison. Defendant failed to appear for sentencing and was returned to court on a bench warrant several months later and sentenced to a prison term of 5 to 15 years. On defendant's appeal, defense counsel — following the appropriate procedure — submitted a brief seeking to be relieved of his assignment as counsel on the ground that no nonfrivolous appealable issues exist (see, People v. Cruwys, 113 A.D.2d 979, 980, lv denied 67 N.Y.2d 650; see also, Anders v. California, 386 U.S. 738). The People submitted a letter agreeing with defense counsel's position. Defendant submitted a pro se letter to this Court arguing that his sentence should be reduced in the interest of justice (see, CPL 470.15 [b]) and requesting that new appellate counsel be assigned. For reasons to be explained, we conclude that a decision on this appeal should be withheld, defense counsel's motion to be relieved of counsel should be granted and new appellate counsel should be assigned.
Where, as here, a defendant pleads guilty but did not waive his right to appeal and an enhanced sentence is imposed based upon the trial court's determination that he or she violated a term of the plea agreement, the defendant has a statutory right to argue on appeal to the Appellate Division that the enhanced sentence imposed — though lawful — was harsh and excessive and should be reduced in the interest of justice (see, CPL 470.15 [b]; 470.20 [6]; 450.10 [2]; People v. Thompson, 60 N.Y.2d 513, 518-520; People v. Coleman, 30 N.Y.2d 582; see, e.g., People v. Morton, 275 A.D.2d 865;People v. Coleman, 270 A.D.2d 713; People v. Ramsey, 269 A.D.2d 616, lv denied 94 N.Y.2d 951; People v. Diaz, 264 A.D.2d 879, lv denied 94 N.Y.2d 879; People v. Rogers, 166 A.D.2d 679; People v. Jackson, 130 A.D.2d 510; see also, People v. Delgado, 80 N.Y.2d 780; People v. Pollenz, 67 N.Y.2d 264, 268; People v. Gonzalez, 47 N.Y.2d 606).
To be distinguished, we have repeatedly adhered to the rule that a defendant's valid waiver of appeal executed pursuant to a plea agreement generally precludes our review of a claim that the sentence is harsh and excessive, although the legality of a sentence is never waived (see,People v. Hidalgo, 91 N.Y.2d 733; People v. Allen, 82 N.Y.2d 761; People v. Seaberg, 74 N.Y.2d 1, 7-10; People v. Etkin, ___ A.D.2d ___, 714 N.Y.S.2d 841; People v. Smith, 272 A.D.2d 782, 783, lv denied 95 N.Y.2d 871; People v. Caines, 268 A.D.2d 790, 790-791, lv denied 95 N.Y.2d 833; People v. Johns, 267 A.D.2d 718, lv denied 94 N.Y.2d 949;People v. Young, 253 A.D.2d 982, lv denied 92 N.Y.2d 1055; see also,People v. Ross, 276 A.D.2d 649, 714 N.Y.S.2d 895; People v. Iorio, 276 A.D.2d 564, 714 N.Y.S.2d 245). Thus, in a plethora of appeals wherein the defendant voluntarily, knowingly and intelligently pleaded guilty, waived all appeal rights and received the lawful, negotiated sentence, we affirmed the judgment of conviction and granted defense counsel's application pursuant to People v. Cruwys ( 113 A.D.2d 979, supra) andAnders v. California ( 386 U.S. 738, supra) to withdraw (see, People v. Carney, 276 A.D.2d 920, 716 N.Y.S.2d 611; People v. Mochrie, 276 A.D.2d 831, 714 N.Y.S.2d 702; People v. Villaronga, 272 A.D.2d 641; People v. Carter, 271 A.D.2d 708, lv denied 95 N.Y.2d 794; People v. Haennel, 269 A.D.2d 698; People v. Kwiatkowski, 268 A.D.2d 681, lv denied 94 N.Y.2d 949; People v. Gage, 261 A.D.2d 660; cf., People v. Cobbs, 276 A.D.2d 917, 716 N.Y.S.2d 609). We have also affirmed convictions and granted defense counsel's Anders motions to withdraw in appeals involving defendants who pleaded guilty and were sentenced in accordance with the negotiated plea agreement but who did not waive their right to appeal (see, People v. Jandreau, 276 A.D.2d 925, 715 N.Y.S.2d 921; People v. Goodrich, 276 A.D.2d 832, 714 N.Y.S.2d 702; People v. Cook, 273 A.D.2d 543;People v. Waddell, 272 A.D.2d 639; People v. Roundtree, 261 A.D.2d 715).
Likewise, we have held that where a defendant who concomitantly validly pleaded guilty and waived all appeal rights receives an enhanced sentence based upon a violation of the terms of the plea agreement, any claim addressed to the harshness or excessiveness of the enhanced sentence falls within the scope of the waiver of the right to appeal, provided the defendant is informed of the maximum potential sentence for noncompliance with the plea agreement (see, People v. Perham, 263 A.D.2d 766, lv denied 93 N.Y.2d 1045; see also, People v. Lococo, 92 N.Y.2d 825; People v. Hidalgo, 91 N.Y.2d 733, supra [upheld waiver on appeal where no sentence promised at plea]; People v. Burnice, 272 A.D.2d 882, lv denied 95 N.Y.2d 863; People v. Caines, 268 A.D.2d 790, 790-791, supra; People v. Miles, 268 A.D.2d 489, lv denied 95 N.Y.2d 800; cf., People v. Covell, 276 A.D.2d 824, 714 N.Y.S.2d 370 [conditions of plea not clear, therefore appeal waiver did not preclude review of enhanced sentence];People v. Parker, 271 A.D.2d 63 [defendants entitled to challenge enhancements because waiver of appeal did not encompass plea terms which failed to comport with due process]).
However, if a defendant is not advised at the time of the plea of the maximum sentence he or she could face, the appeal waiver does not encompass the right to challenge the sentence as harsh and excessive (see, People v. Shea, 254 A.D.2d 512, 513; cf., People v. Lococo, 92 N.Y.2d 825, supra).
However, where, as here, defendant did not waive his right to appeal as part of the plea agreement and an enhanced sentence was imposed, we cannot conclude that an appeal raising the issue of the harshness and excessiveness of the enhanced sentence would be "wholly frivolous" although, by distinction, it may ultimately be determined to be without merit (see, People v. Vasquez, 70 N.Y.2d 1, 3; People v. Saunders, 52 A.D.2d 833, 834; see also, Anders v. California, 386 U.S. 738, 744,supra; People v. Gonzalez, 47 N.Y.2d 606, 611, supra; People v. Cruwys, 113 A.D.2d 979, 980, supra). Accordingly, since this issue is arguable on its merits, defendant is entitled to assignment of new counsel to argue the appeal (see, People v. Cruwys, supra, at 980; People v. Saunders, supra, at 834), with the Court taking no position on the merits of the appeal.
In withholding a decision and assigning new counsel, we decline to decide the appeal on the record and Anders brief before us, as no immediate decision appears justified or necessary (see, People v. Cruwys, supra, at 980; People v. Crawford, 71 A.D.2d 38, 39; People v. Saunders, supra, at 834; cf., People v. Wasson, 266 A.D.2d 701, 702 n). Although we have on occasion commented that a particular sentence was not harsh and excessive in the context of affirming a conviction and granting defense counsel's application pursuant to Anders to withdraw (see, e.g.,People v. Snow, 273 A.D.2d 549; People v. Phillips, 271 A.D.2d 760;People v. Hastings, 271 A.D.2d 707; People v. Deanne, 270 A.D.2d 515;People v. Ben-Levi, 269 A.D.2d 697), acceptance of an Anders brief and granting defense counsel's motion to be relieved more correctly indicate that the issues are "wholly frivolous" and lack any arguable merit and do not result in a determination on the merits of arguable issues (see,Anders v. California, supra, at 744; People v. Vasquez, supra, at 3;People v. Saunders, supra, at 834). Deciding an arguable issue — such as the fairness of an enhanced sentence — which a defendant is statutorily permitted to raise in this Court in the absence of the "single-minded" advocacy of appellate counsel may, in particular cases, work to deprive a defendant of effective assistance of counsel to which he or she is entitled (see, People v. Casiano, 67 N.Y.2d 906; People v. Gonzalez, supra, at 609-611; People v. Emmett, 25 N.Y.2d 354, 356; see also, Anders v. California, supra, at 743-744).
Recognizing that the courts, prosecutors and the defense bar are increasingly grappling with the burden of frivolous appeals and that there has been an increase in the use of Anders briefs, we take this opportunity to offer some guidance. Where a defendant who pleads guilty but does not execute a waiver of appeal receives an enhanced sentence due to noncompliance with terms of the plea agreement and requests assigned counsel to challenge the severity of the sentence or to raise other arguably meritorious issues on appeal, the proper course is to submit a brief addressing these issues as an advocate rather than to submit anAnders brief. We believe that this practice will most effectively "assure that an indigent criminal appellant receives substantially the same assistance of counsel as one who can afford to retain an attorney of his [or her] choice" (People v. Gonzalez, supra, at 610; see, Douglas v. California, 372 U.S. 353).
ORDERED that the decision is withheld, application to be relieved of assignment granted and new counsel to be assigned.