Third District Court of Appeal creates a “quagmire” regarding Prop 47 sentence reductions

Prop 47

You don’t have to take my word for it. The court uses the word “quagmire” in yesterday’s decision in People v. Scarbrough, case no. C075414 (3d. Dist. Sept. 29, 2015), in which it holds that a trial court lacks jurisdiction to recall and reduce sentences under Proposition 47 when the judgment for those crimes is on appeal.

First, a brief reminder of what the California electorate voted into law last November. Prop 47 reclassifies certain crimes from felonies to misdemeanors and provides that persons convicted of felonies that are now classified as misdemeanors may “petition for a recall of sentence” to request resentencing under the new standards.

You can imagine there are quite a few defendants in line for this process. The Los Angeles Times reported just a few weeks after passage of Prop 47:

Judges expect that tens of thousands of Californians may seek to have their felony convictions reduced. Courts have had to scramble to handle the surge in workload, and some agencies are planning to ask for more public funding to cover the added duties.

Now, on to the quagmire. Defendant Scarbrough appealed her felony convictions. While her appeal was pending, she also filed a Prop 47 petition to be resentenced on the same convictions, and the trial court entered an order reducing her original sentence of 9 years, 4 months to just 6 years. Scarbrough attempted to abandon her appeal, but the Court of Appeal refused to dismiss it and asked for supplemental briefing on “an issue that is likely to recur and to otherwise evade review” — whether the trial court had jurisdiction to rule on a petition for recall and resentencing while appeal from the same convictions was pending.

Because the trial court determined that the trial court lacked such jurisdiction, its order reducing Scarbrough’s sentence is void. The obvious question then becomes: What about other defendants that have already been resentenced while their appeals were pending? Well, the court acknowledges that its ruling creates a mess, but provides no guidance as to how it will be cleaned up:

We do recognize that several people with pending appeals have been resentenced ostensibly pursuant to section 1170.18 while their appeals were pending. This does create a quagmire, especially as regards individuals who have been released as a result of  their resentencing. However, that is an insufficient reason for us to find concurrent jurisdiction where it was not statutorily afforded.

Given the news coverage about the “flood” of Prop 47 petitions — the Sacramento Bee reported last month that 4,347 prisoners had been release under prop 47 through the first week of August, with many thousands more having been resentenced without being released — I was surprised that the court said that several” people had their resentencing petitions granted while their appeals were pending. While it makes sense that the vast majority of the petitions are from prisoners whose appeals are long over, “several” still strikes me as a surprising characterization of the number that have been resentenced or released while their appeals were pending.

Perhaps that makes the term quagmire all the more significant. If “several” void resentencing orders create a quagmire, what would have been created if the number of void resentencing orders numbered in the hundreds or thousands?

Bad news for post-conviction indigent appellants: No right to Wende review

A California criminal defendant entitled to appellate counsel appointed by the state has one trick up his sleeve that defendants who hire their own counsel don’t: Wende review. When an appellant’s appointed counsel provides the Court of Appeal with a brief setting forth the substantive and procedural facts and informing the court that counsel has reviewed the record and can find no basis for challenging the judgment, the Court of Appeal must independently review the record for prejudicial error warranting reversal. This process is required in order to assure that the indigent appellant is not deprived of his constitutional right to counsel.

But is an indigent appellant with appointed counsel entitled to Wende review on appeal from a post-conviction judgment? No, says the court in People v. Serrano, case no. H036373 (6th Dist., Nov. 28, 2012). In this case of first impression, the appeal was from an order denying a motion to vacate the conviction, which the appellant sought in order to avoid deportation. His counsel filed a Wende brief, asking the Court of Appeal to review the record for error. The court notified appellant of his right to file his own argument, received nothing, and commenced its Wende review. During that review, they discovered that appellant had appealed his original conviction (and later dismissed that appeal), which triggered the Court of Appeal to ask for briefing on whether appellant had a right to Wende review in this appeal from a post-conviction judgment.

The first basis for the court’s ruling was the United States Supreme Court decision in Pennsylvania v. Finley (1987) 481 U.S. 551, in which it held that similar review in Pennsylvania was not required in appeals from post-conviction proceedings because the defendant had no constitutional right to counsel in those proceedings. That the state made a decision to provide counsel, even though it was not constitutionally required to do so, did not mean that the defendant was entitled to the court’s independent review. So, there was no federal basis for invoking Wende review in this case.

How about a state basis? Not there, either, says the court. Looking to state court decisions regarding the right to Wende review in other cases of state-appointed counsel (such as juvenile dependency and conservatorship proceedings), the court concluded that the California Supreme Court had relied on Finley “to restrict the availability of [Wende] review in a multitude of contexts.” In those decisions, says the court, the Supremes “held that due process does not mandate extending these procedures beyond the first appeal of right in a criminal prosecution.”

Nonetheless, those decisions were not criminal cases. Rather than rely on those cases without further analysis, the Court of Appeal went through the same three-part test used by the Supremes in the juvenile and conservatorship cases: “ ‘(1) the private interests at stake; (2) the state’s interests involved; and (3) the risk that the absence of the procedures in question will lead to an erroneous resolution of the appeal.’ [Citations.]”

The collateral attack on the judgment in this case came several years after the conviction and after the defendant had served his sentence. Analyzing the three factors, (1) the court found that appellant’s interest in avoiding deportation was very high: (2) the state’s interest in”securing a just appellate resolution, reducing procedural costs and burdens, and concluding the proceedings both fairly and expeditiously” outweighed the appellant’s interests, especially in “these times of decreasing judicial budgets and the resulting overall reduction in public access to justice.” Turning to the third factor, the likelihood of an erroneous resolution of the appeal, the court stated:

[D]efendant‟s conviction has long been final and his sentence served. Although, he chose to dismiss his first appeal of right, he could have obtained a review of his conviction had he so chosen. In each appeal, he has been afforded the right to appointed counsel, and each of those counsel were supervised by this district‟s appellate project. [Citation.] Given the multitude of protections already afforded the defendant, the risk of erroneous appellate resolution without Wende review for a collateral attack on the judgment is minute.

The court set forth a procedure for “all future criminal appeals arising from proceedings other than the first appeal of right, where appointed counsel finds no arguable issues.” (My emphasis.) But I think its analysis leaves wiggle room for arguing that Wende review may be applicable in appeals from certain post-conviction proceedings. After all, its analysis of the 3-pronged test would have been unnecessary if the California Supreme Court cases had established a firm rule. For example, how might this balancing differ if the courts were not in dire financial straits? Or if the appellant’s first appeal had been dismissed because of his counsel’s ineffective assistance?

These considerations may lead to Supreme Court review. After all, as the Court of Appeal noted, “the California Supreme Court has not specifically considered the availability of [Wende] review in a post-conviction collateral attack on a judgment.”