Opinion
Civil No. 96-CV-1626 (NAM/GLS).
March 5, 1999
ROBERT E. STEVENS, Petitioner, Pro Se, Fishkill Correctional Facility, Beacon, New York.
HON. ELIOT SPITZER, Attorney General of the State of New York, Attorney for Respondent, Department of Law, Of Counsel, DARREN O'CONNOR, Asst. Attorney General, Albany, New York.
REPORT-RECOMMENDATION
This matter has been referred to the undersigned by the Hon. Norman A. Mordue, United States District Judge, pursuant to 28 U.S.C. § 636(b) and Local Rules N.D.N.Y. 72.3(c).
Petitioner filed his habeas corpus petition on October 7, 1996. This court issued an Order pursuant to the Rules Governing § 2254 Cases in the United States District Courts, 28 U.S.C. fol. § 2254, granting petitioner leave to proceed in forma pauperis, ordering service of the petition on respondent, and requiring service of an answer or other pleading by respondent. Respondent filed an answer, together with the pertinent state court records and a memorandum of law. Petitioner's motion for assignment of counsel was denied.
The state court records submitted by respondent are listed in the first paragraph of the answer. (Dkt. #6).
Petitioner complains of a judgment of conviction rendered against him on December 17, 1990, following a jury trial in Tioga County Court, wherein he was convicted of sodomy in the First Degree (New York Penal Law § 130.50(3)), sexual abuse in the First Degree (New York Penal Law § 130.65(3)), and endangering the welfare of a child (New York Penal Law § 260.10). He was sentenced to three concurrent indeterminate terms of six to eighteen years, two to six years and one year imprisonment.
Pursuant to New York State Criminal Procedure Law § 440.10(1)(g), petitioner moved to vacate his judgment. County Court denied the motion on April 30, 1992.
Petitioner's grounds for relief were: 1) newly discovered evidence; 2) ineffective assistance of counsel; and, 3) the People's failure to provide Rosario and Brady material.
On June 15, 1995, the Appellate Division, Third Department affirmed petitioner's conviction. People v. Stevens, 216 A.D.2d 676, 628 N.Y.S.2d 217 (3 Dep't 1995). The New York Court of Appeals denied leave to appeal on December 7, 1995. People v. Stevens, 87 N.Y.2d 908, 641 N.Y.S.2d 237 (1995).
Petitioner raises three grounds for relief in the instant habeas corpus petition. He alleges the following: 1) the County Court committed reversible error by responding improperly or by failing to respond to a jury request for three exhibits; 2) the People's violation of their Rosario and Brady obligations require that a new trial be granted; and, 3) the County Court erred in permitting the People to amend Count I of the Indictment.
People v. Rosario, 9 N.Y.2d 286, 213 N.Y.S.2d 448, cert. denied 368 U.S. 866 (1961).
Brady v. Maryland, 373 U.S. 89, 83 S.Ct. 1194 (1963).
Respondent seeks dismissal of the petition on the grounds that petitioner has procedurally defaulted on the claims raised in grounds one and three of the petition. With respect to ground two, respondent argues that petitioner's Rosario claim is not cognizable for habeas corpus review as it involves solely a question of state law, and alternatively, that there was no Rosario violation. Respondent argues that petitioner's Brady claim fails on the merits. For the following reasons, this court agrees with the respondent and recommends that the petition be denied and dismissed.
1. Facts
Petitioner's conviction resulted from an incident of sodomy and sexual abuse involving a ten year old boy that occurred in Tioga County, New York, in late July of 1998. The victim, Jason Talada, is the son of petitioner's ex-girlfriend, Mary Talada.
Petitioner lived with Mary Talada, her three children and his own son on and off for approximately six years. (T. 72, 74). At the time of trial, however, petitioner was no longer involved with Mary Talada and was married to her daughter, Stacey Jo. Petitioner's post-conviction motions reveal that he and Stacey Jo are no longer together, and that he is again involved with Mary Talada.
At the trial, the victim testified to one act of sexual abuse and one act of sodomy committed by petitioner just before the victim's eleventh birthday. While the victim was using the bathroom, petitioner came in and fondled his [the victim's] penis. (T. 176). The victim told petitioner to stop, but petitioner ignored him. Petitioner told the victim to go to the bedroom, where he committed the act of sodomy. (T. 179-180). The victim testified that petitioner threatened to hit and kill him if he did not cooperate, and that he was scared because petitioner regularly beat him. (T. 178; 186).
The victim was born on July 30, 1977. He remembered his birthday party took place one week to ten days after the incident (T. 171; 185), and that it was the summer before he started sixth grade. (T. 172).
The victim testified that he told his mother about the incident sometime around his birthday. (T. 184). His mother, Mary Talada, testified that she did nothing about her son's complaint because she feared petitioner, whom she testified, beat her at least once a week. (T. 78; 106). The victim testified that he also told his older brother Scott, and petitioner's son Bobby, about the incident. (T. 200; 202; 229).
The victim testified that on September 4, 1988, while he and his younger brother were home alone with petitioner, petitioner asked him if he "was ready to do it." When the victim responded that he did not want to, petitioner raised his fist. The victim ran out without a jacket or shoes and fled to a neighbor's house. Mary Talada phoned the Sheriff's Office to report that her son ran away, but he called home before the sheriff arrived. (T. 81; 86). On the phone, the victim told his mother that petitioner "tried it again" and that he did not want to come home. (T. 191). His sister Stacey and petitioner's son Bobby picked him up. (T. 211). The victim testified that he was present when Bobby told his sister Stacey about the sexual assault. (T. 229).
The neighbor, Joe "Curly" Wysocki, confirmed that Jason arrived at his house without a coat and appeared upset. (T. 134-135). Mr. Wysocki and Jason watched television until his wife came home. The boy's mother was called and two people came to pick him up. (T. 135).
The victim, his mother, and his brother Scott each testified that petitioner repeatedly hit and kicked the victim when he arrived home. (T. 84; 148-149; 192-193). Mary and Scott Talada testified that Stacey called the police from Rose Myers' house. (T. 86; 148). The victim and Mary testified that petitioner placed a gun by the door before the police arrived. (T.117; 194). When the victim and Mary left to talk with the police, petitioner stated "[i]f I go, somebody is going with me." (T. 87; 196).
Scott testified that he and Stacey went to a neighbors, and Stacey spoke with the Sheriff's Office. (T. 149). Rose Myers testified that she dialed the State Police and then gave the phone to Stacey. Mrs. Myers testified that she heard Stacey report that her brother had been sexually molested. (T. 497). Mrs. Myers also testified that Stacey later asked her to tell the police that they did not place the call. (T. 500).
The victim testified that he initially denied that petitioner had sexually abused him when the policeman asked because his mother kicked the back of his seat and indicated that he should say no. The victim also saw petitioner looking at them from the window. (T. 196). He thought petitioner would kill him and his family. (T. 202). The victim first told the police about the sexual abuse in May of 1990, after Scott got in trouble at school and had revealed what had happened to the victim. The police then took his statement. (T. 201-202; 230-231).
The victim's sister, Stacey, was called as a defense witness. At the time of trial, she was married to petitioner. Stacey Stevens denied that the victim ever told her that he had been sexually abused by petitioner (T. 279), and denied that she called the police on September 4, 1988. (T. 303). As a result of a mid-trial investigation undertaken in an attempt to impeach this testimony, the prosecutor discovered that Stacey Stevens had called the State Police, not the Tioga County Sheriff's Office. The state police report contained statements indicating that both the victim and his mother denied that any sexual abuse occurred. The investigative report also indicated that Stacey Stevens initially denied reporting the incident, subsequently admitted doing so, and a complaint was filed charging her with falsely reporting an incident. (T. 524-515; 522-523; 533-534; App. 704-705). After discovering these documents, the trial assistant promptly turned them over to the defense. (T. 366; 540-541). Defense counsel's motion for a mistrial on the grounds of Rosario and Brady violations was denied. (T. 380; 542).
The trial assistant explained that he had not previously discovered the report because he had been assuming that both calls had been made to the Tioga County Sheriff's Office. (T. 369).
2. Procedurally Barred Claims
Federal habeas review is barred when the last state court rendering a decision in the case rejects federal claims as defaulted pursuant to an independent and adequate state procedural rule, unless the petitioner can demonstrate cause for the default and actual prejudice resulting from the alleged violation of federal law, Coleman v. Thompson, 501 U.S. 722, 750 (1991), or establish that he is "probably . . . actually innocent." Murray v. Carrier, 477 U.S. 478, 496 (1986). If the last state court to render a judgment on the issue "clearly and expressly" stated that its judgment rested on a state procedural bar, federal habeas review is barred. Harris v. Reed, 489 U.S. 255, 262-63 (1989); Levine v. Commissioner of Correctional Services, 44 F.3d 121, 126 (2d Cir. 1995), cert. denied, 520 U.S. 1106 (1997).
In ground one, petitioner claims that the trial court committed reversible error by responding improperly, or failing to respond to, the jury's request for "three statements made to investigators in May 1990." This issue was raised on direct appeal. In its decision, the Appellate Division, Third Department, clearly and expressly stated that the issue was unpreserved for appellate review due to counsel's failure to timely object. People v. Stevens, 216 A.D.2d at 679. The Appellate Division found as follows:
As to County Court's response to the jury's request for the "3 statements made to investigators in May 1990", the record reveals that the court received the request and promptly informed both defendant and his counsel of its intended response. At such time, defense counsel made no request for clarification of the jury's request. Moreover, defense counsel was aware that County Court's response to the jury was in writing, but he lodged no objection concerning the lack of opportunity to view the actual writing or the court's failure to verbally instruct the jury in defendant's presence. Hence, since County Court disclosed the contents of the jury's request to the parties (cf., People v. O'Rama, 78 N.Y.2d 270, 275, 574 N.Y.S.2d 159) and defense counsel had an opportunity to be heard before the court gave its response (see, People v. Lykes, 81 N.Y.2d 767, 768-770, 593 N.Y.S.2d 779; cf. People v. Cook, 85 N.Y.2d 928, 626 N.Y.S.2d 1000; People v. O'Rama, supra; People v. Hewitt, 189 A.D.2d 781, 781-782, 592 N.Y.S.2d 400; People v. Nichols, 163 A.D.2d 904, 904-905, 558 N.Y.S.2d 772), we cannot equate this instance with those where neither the defendant nor defense counsel was present when a jury's request was received and County Court's response was formulated (cf., People v. Mehmedi, 69 N.Y.2d 759, 513 N.Y.S.2d 100; People v. Nichols, supra). "Accordingly, counsel's silence at a time when any error by the court could have been obviated by timely objection renders the claim unpreserved and unreviewable here." People v. Starling, 85 N.Y.2d 509, 516, 626 N.Y.S.2d 729, 733; see, People v. De Rosario, 81 N.Y.2d 801, 802, 595 N.Y.S.2d 372).
People v. Stevens, 216 A.D.2d at 220-221.
Given that the Appellate Division's decision clearly rests upon a state procedural bar, federal habeas corpus review of ground one is barred. Although federal courts may address the merits of a claim procedurally defaulted in state court upon a showing of cause for the default and resulting prejudice, petitioner has failed to make such a showing. Bossett v. Walker, 41 F.3d 825, 829 (2d Cir. 1994), cert. denied, 514 U.S. 1054 (1995). In the present case, petitioner did not attempt to demonstrate cause for his procedural default. Since no cause was demonstrated and the state court records do not suggest that petitioner is actually innocent, it is unnecessary for this court to determine whether he has suffered actual prejudice. Stepney v. Lopes, 760 F.2d 40, 45 (2d. Cir. 1985). Therefore, ground one of the petition should be dismissed.
In order to preserve a question of law for appellate review, New York State law requires that a protest be registered "by the party claiming error, at the time of such ruling or instruction or at any subsequent time when the court had an opportunity of effectively changing the same." (New York Criminal Procedure Law § 470.05(2)). The Appellate Division specifically found that defense counsel had the opportunity to object, but did not, rendering the issue unpreserved.
Cause may be demonstrated with a showing that the procedural default is the result of ineffective assistance of counsel. Bossett v. Walker, 41 F.3d at 829. In his motion pursuant to Criminal Procedure Law § 440.10, petitioner alleged ineffective assistance of counsel on the grounds that his attorney filed a late notice of alibi and was preoccupied with his pending 90 day suspension for failure to pay state taxes. In its written decision/order, the County Court held that petitioner received effective representation and was not in any way prejudiced by his attorney's 90 day suspension. Petitioner did not argue that his attorney's failure to object to the jury note procedure deprived him of effective assistance of counsel. In any event, petitioner did not appeal the denial of that motion and did not raise the issue on direct appeal. It has therefore not been exhausted.
3. Claims Not Cognizable on Federal Habeas Review
A federal court may entertain a habeas petition only to the extent that it alleges custody in violation of the Constitution, laws, or treaties of the United States. 28 U.S.C. § 2254(a). Thus, claims based on violations of state law are not generally cognizable on federal habeas review. Estelle v. McGuire, 502 U.S. 62, 67 (1991) (citing Lewis v. Jeffers, 497 U.S. 764, 780 (1990)) (additional citation omitted); Hameed v. Jones, 750 F.2d 154, 160 (2d Cir. 1984), cert. denied, 471 U.S. 1136 (1985).
In ground two, petitioner claims that he is entitled to a new trial as a result of the People's violation of their obligations under People v. Rosario, 9 N.Y.2d 286, 213 N.Y.S.2d 448, cert. denied, 368 U.S. 866 (1961), and codified in N.Y. Criminal Procedure Law § 240.45. The Appellate Division held that Stacey Steven's prior statements were not Rosario material since she was called as a witness for the defense, not the People. People v. Stevens, 216 A.D.2d at 678. The Court further found that petitioner was not prejudiced by the delay in turning over the victim's and his mother's prior statements, because both witnesses testified on direct examination that they had initially denied that any sexual abuse took place, and defense counsel had the opportunity to cross-examine on this issue. Id.
A claim of Rosario error is solely a matter of state law and is not subject to review under a petition for a federal writ of habeas corpus charging infringement of federal constitutional rights. United States ex rel. Butler v. Schuben, 376 F. Supp. 1241, 1247 and n. 12 (S.D.N Y 1974), aff'd without opinion, 508 F.2d 837 (2d Cir. 1975); Cruz v. Scully, 716 F. Supp. 766, 769 n. 5 (S.D.N.Y. 1989). Accordingly, this court does not need to address this aspect of petitioner's ground two claim.
4. The Brady claim
Petitioner submits that the state police investigative report, the complaint against Stacey Stevens, and the officer's supporting deposition were within the scope of his pre-trial Brady demand. His claim is not based upon the People's complete failure to disclose, but its failure to do so in a timely fashion. Petitioner submits that he was prejudiced by the delay, in that: 1) he was precluded from effectively using the documents; and, 2) it resulted in his choice of a fatally defective trial strategy.
In his pre-trial omnibus motions, defense counsel moved for production of "any evidence, information, transcripts or statements indicating that any prospective prosecution witness on any occasion gave false, misleading or contradictory information regarding the charges at bar . . . to persons involved in law enforcement." Notably, Stacey Stevens was called as a defense witness.
There is no basis on the record to conclude that the documents were deliberately withheld. The prosecutor had believed that both calls to the police had been made to the Tioga County Sheriff's Department. (T. 369). Indeed, Scott Talada testified that he was with his sister when she called the Sheriff's (T. 149). The People never planned on calling Stacey Stevens as a witness, and were not provided with notice that she would be called as a witness for the defense. (T. 371-372).
To prevail on his Brady claim, petitioner must show that the prosecution suppressed evidence favorable to him and that such evidence was material either to guilt or punishment. Brady, 373 U.S. at 87. "Evidence is material only if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different." United States v. Payne, 63 F.3d 1200, 1209 (2d Cir. 1995), cert. denied, 516 U.S. 1165 (1996), quoting United States v. Bagley, 473 U.S. 667, 682 (1985). A reasonable probability is a probability sufficient to undermine confidence in the outcome of the case. Pennsylvania v. Ritchie, 480 U.S. 39, 57, 107 S.Ct. 989, 1001 (1987). When the issue is late disclosure of Brady material, a new trial is required only when the defendant was deprived of a meaningful opportunity to use the material. Freeman v. Kuhlman, 96 CV 3749, 1998 WL 661469 (E.D.N.Y. Aug. 3 1998), citing People v. Cortijo, 70 N.Y.2d 868, 870, 523 N.Y.S.2d 464, 464 (1987).
There is no question that the People had a duty to produce documents indicating that prosecution witnesses had made statements denying allegations of sexual abuse. However, both the victim and his mother testified that they denied that any sexual abuse occurred when they were interviewed on September 4, 1988. Counsel had an opportunity to cross-examine these witnesses on this precise issue. Thus, the state police report was merely confirmatory. With regard to the prior statements of these two witnesses, there is no reasonable probability that the result of the proceedings would have been any different had the evidence been disclosed to the defense prior to trial.
Petitioner's argument regarding Stacey Stevens' prior statements and the complaint charging her with falsely reporting an incident is two-fold. On one hand, petitioner argues that the evidence is favorable in that it tends to prove that no abuse occurred. See Petitioner's Appellate Brief, at p. 32. On the other hand, petitioner suggests that the documents are actually inculpatory, in that they "strongly suggested that [the victim] had complained of sexual abuse on September 4." Petitioner argues that the Peoples' failure to timely disclose the documents led to a fatally defective trial strategy, in which he had attempted to establish that the victim had not reported sexual abuse until twenty one months after the incident. See Petitioner's Appellate Brief at p. 33. Petitioner claims that he would not have called Stacey Stevens as a witness had he been provided with the documents prior to trial. See Petitioner's Appellate Brief, at p. 34.
This court questions how the documents pertaining to Stacey Stevens are "exculpatory" if timely disclosure would have resulted in defense counsel's attempt to keep the information from the jury.
This court finds petitioner's argument problematic for several reasons. First, Stacey Stevens was called as a defense witness. Counsel obviously had the opportunity to interview his own witness, and thus should have known about her initial denial and subsequent conviction for falsely reporting an incident. If defense counsel knew or if he should have known of essential facts permitting him to take advantage of exculpatory evidence, then the evidence is not considered suppressed for Brady purposes. United States v. Zackson, 6 F.3d 911, 918 (2d Cir. 1995).
Second, the People first learned at trial that Stacey Stevens would deny having made the call to the police on September 4, 1998, and that her brother had complained to her about an incident of sexual abuse involving petitioner. The People presented two witnesses who testified that Stacey Stevens made the second call to the police on September 4, 1998. Furthermore, in a statement given to Investigator Jackson, Stacey Stevens previously acknowledged that her brother had informed her that he had been sexually abused. (T. 269). Evidence of impeachment is material if the "witness whose testimony is attacked supplied the only evidence linking [the defendant] to the crime, or where the likely impact on the witnesses credibility would have undermined a critical element in the prosecution's case." United States v. Wong, 78 F.3d 73, 79 (2d Cir. 1996). Here, the material was used to impeach a defense witness, and undermine the defense strategy, not a critical element in the prosecution's case.
At trial, Stacey Stevens attempted to clarify her answer by testifying that her brother had revealed that he had been sexually abused, but had never indicated who had sexually abused him.
In any event, despite the problematic aspects of petitioner's Brady argument regarding Stacey Stevens, this court finds that there is no reasonable probability that the result of this proceeding would have been different had the documents pertaining to Stacey Stevens' been disclosed prior to trial. The evidence was compelling that an incident of sexual abuse had taken place. Scott and Mary Talada both testified that the victim told them that petitioner had sexually assaulted him prior to the incident on September 4, 1988. The victim and his mother explained that they initially denied allegations of sexual abuse because they feared the petitioner and violent reprisals. The three witnesses' testimony was corroborative as to petitioner's violent nature and threats, validating fear as the reason why sexual abuse had initially been denied. Mr. Wysocki corroborated that the victim was clearly upset on September 4 when he appeared at his doorstep without his jacket, on a wet, cold day.
Therefore, ground two should be dismissed.
5. Exhaustion of State Court Remedies
A federal court may not grant a writ of habeas corpus to a state prisoner unless "it appears that the applicant has exhausted the remedies available in the courts of the State or that there is either an absence of available State corrective process or the existence of circumstances rendering such process ineffective to protect the rights of the prisoner." 28 U.S.C. § 2254(b). To fulfill the exhaustion requirement, "a petitioner must have presented the substance of his federal claims `to the highest court of the pertinent state.'" Bossett v. Walker, 41 F.3d at 828, quoting Pesina v. Johnson 913 F.2d 53, 54 (2d Cir. 1990).
In ground three, petitioner asserts that the County Court erred by permitting the People to amend Count I of the Indictment, and therefore his conviction under that count must be vacated. While petitioner raised this claim on direct appeal, he submitted a detailed letter application seeking leave to appeal to the New York Court of Appeals that specifically limited the issues presented to those raised in Points One and Two of his Appellate Brief. Failure to present this issue to the State's highest court renders this claim unexhausted. Atkins v. Miller, 98 CIV. 0539, 18 F. Supp.2d 314, 318 (S.D.N.Y. Aug. 26, 1998). Contrast Lopez v. Warden, 97 CIV. 2174, 1998 WL 642725 (S.D.N.Y. Sept. 18, 1998).
Before the trial, petitioner moved to dismiss Count One of the Indictment charging him with sodomy in the First Degree in violation of Penal Law § 130.50(1) or (3). Thereafter, the County Court granted the People's motion to amend count one pursuant to Criminal Procedure law § 200.70 to solely allege that petitioner committed sodomy in the First Degree pursuant to Penal Law § 130.50(3). The Appellate Division, Third Department, held that the amendment was properly granted, as County Court's review of the minutes revealed that the Grand Jury considered each charge independently, found that it was in accordance with the People's theory of the case as presented to the Grand Jury, and that it did not prejudice petitioner on the merits. People v. Stevens, 216 A.D.2d 676.
Petitioner presented the two issues as follows:
The first issue is whether the Trial Judge committed reversible error when, in response to a jury note, he prepared written instructions and caused them to be delivered to the jury, presumably by a court attendant, without first informing defendant and defense counsel that he intended to respond in writing rather than orally in open court.
(Petitioner's letter application at p. 4-5)
This case also presents a second issue, namely, whether the prosecution's failure to timely disclose the state police documents reflecting the September 4, 1988 investigation requires reversal under People v. Vilardi, 76 N.Y.2d 67, 77 (1990), because there was a reasonable possibility that that failure contributed to the verdict.
(Petitioner's letter application at p. 6).
In Lopez, the District Court held that petitioner was not required to raise all issues in the letter application and that he "properly focused on the issues that he felt were most likely to interest the Court of Appeals and preserved all remaining issues through attaching his Appellate Division brief." Id. Unlike the petitioner in Lopez, who referred to the numerous other substantive procedural errors but advised the Court that the letter application was going to focus on one issue, petitioner in the present case specifically argued that the case presented two issues for review. Therefore, under the facts of this case, this court finds that petitioner did not present his third claim merely by attaching copies of his appellate and reply briefs to his leave application.
Generally, if a federal habeas petition contains unexhausted claims, a federal court should dismiss it. Rose v. Lundy, 455 U.S. 509, 510 (1982). When it is clear, however, that the state court would consider the unexhausted claims to be procedurally barred, the claims are deemed exhausted. Grey v. Hoke, 933 F.2d 117, 120-121 (2d Cir. 1991). Here, New York's procedural rules would plainly bar petitioner from raising this claim, as only one application for leave to appeal is permitted. N.Y. Court Rules § 500.10(a). Furthermore, a post-judgment motion is unavailable where an issue has been raised on direct appeal. New York Criminal Procedure Law § 440.10(2)(a). Accordingly, this claim is deemed exhausted as a result of procedural default.
Petitioner has not attempted to demonstrate cause for any such default, nor any prejudice resulting therefrom. Nor has he demonstrated that failure to consider this claim will result in a fundamental miscarriage of justice. Therefore, Ground Three of the petition should be dismissed.
WHEREFORE, based on the findings in the above Report, it is
RECOMMENDED that the petition be DENIED and DISMISSED.
Pursuant to 28 U.S.C. § 636(b)(1) and Local Rule 72.1(c), the parties have ten days within which to file written objections to the foregoing report. Such objections shall be filed with the Clerk of the Court. FAILURE TO OBJECT TO THIS REPORT WITHIN TEN DAYS WILL PRECLUDE APPELLATE REVIEW. Roldan v. Racette, 984 F.2d 85 (2d Cir. 1993) (citing Small v. Secretary of Health and Human Services, 892 F.2d 15 (2d Cir. 1989)); 28 U.S.C. § 636(b)(1); FED. R. CIV. P. 72, 6(a), 6(e), and it is
ORDERED that the state court records herein be returned directly to the office of the Assistant Attorney General at the conclusion of these proceedings. He has agreed to make them available for any appellate review.