In People v. Thomas, 2019 N.Y. Slip. Op. 08545 (2019), and its two companion cases, a sharply divided New York Court of Appeals considered the validity of waivers of appellate rights. This essay examines Thomas and the law of appellate waivers. To borrow Judge Rowan Wilson's words, the law has become a "Daedalean maze"—a labyrinth like the one that Daedalus is said to have designed for King Minos to hold Minotaur.

Background

Victor Thomas was charged with the class B violent felonies of first-degree assault and first-degree gang assault. After a failed attempt to suppress a post-arrest statement ("You got me"), he pleaded guilty to a reduced charge and a five-year prison sentence. As part of his guilty plea, he waived his right to appeal. The written waiver stated that he "waive[d] any and all rights to appeal including the right to file a notice of appeal from the judgment of conviction" with the exception of four claims: (1) that his constitutional right to a speedy trial was violated; (2) that he was not competent to stand trial; (3) that his sentence was illegal; and (4) that his plea and appeal waiver were involuntary. (The excepted claims cannot be waived under settled New York law.) Orally, the court asked him if he understood that he was waiving his right "to challenge to a higher court" his plea and sentence and if he had a sufficient opportunity to consult with counsel about the rights he was surrendering. Thomas appealed, seeking review of the validity of the appeal waiver and the adverse suppression ruling. The First Department upheld the waiver and, in the alternative, found that the suppression ruling was sound.

Nicole Green was charged with three counts of burglary in the second degree and pleaded guilty to one count of attempted burglary in exchange for a six-year prison term. The court left open the possibility that her sentence could run consecutive to a nine-year prison term that she was already serving. A waiver of the right to appeal was a condition of the bargain. In describing the waiver to Green, the court said this: "there will be no review by any other court" and that as to "almost all issues of conviction and sentence, including the terms and length of your sentence, whether your sentence is excessive, you won't be able to hire an attorney to file an appeal for you, you won't get an assigned attorney to file an appeal, you won't be able to file your own appeal, you won't get waived filing fees. There is just going to be no review by any other court." Green then signed a waiver form, waiving "all rights to appeal" except the same four claims that were excluded in Thomas' form. She was sentenced to six years' imprisonment, which the court determined would run consecutive to her nine-year term. Despite the waiver, Green appealed her sentence as excessive, but the Fourth Department found that waiver was valid and declined to hear the claim.

The case of the third appellant, Storm Lang, was like that of Green. The appellate waiver, oral and written, took much the same form. Arguing that the waiver was invalid, Lang sought review of the court's decision to deny him youthful offender status. The Fourth Department enforced the waiver and declined to review the "YO" determination.

Court of Appeals

The Court of Appeals split three ways in resolving the three appeals. Writing for the majority, Chief Judge Janet DiFiore held that Thomas' waiver was valid but that Green's and Lang's were not. Acknowledging that some of the language in Thomas' waiver was "incorrect," the majority concluded that Thomas understood that a limited right to appeal was retained. For Green and Lang, however, the best that could be said was that the waiver advisements were "muddled" and "confused." Both defendants could have been left with the mistaken impression that their waivers barred any review.

Judge Garcia dissented in Green and Lang. As he saw it, although some of what both defendants were told about their appeal waivers was "overbroad," that was not a reason to invalidate them. An otherwise valid waiver, Judge Garcia argued, should not be rendered involuntary "simply because the defendant was willing to waive more rights than required." Because neither Thomas nor Green sought to raise claims that fell outside the scope of a permissible waiver, their appeals should not have been heard.

Judge Wilson, joined by Judge Rivera, dissented in Thomas. Appellate waivers, he argued, should be invalid per se. Such waivers "insulate courts from error review"; if overbroad, "prevent defendants from effectuating their rights, even when their rights are legally unwaivable"; and have become a "pathway to future litigation." Designed to promote finality, they "create more litigation than they avoid."

Observations

What should one make of all of this? Some thoughts:

(1) It has been 30 years since the New York Court of Appeals first held that a defendant may validly waive his "right to appeal." People v. Seaberg, 74 N.Y.2d 1 (1989). As the court observed, appeal waivers conserve prosecutorial and judicial resources and provide finality in criminal proceedings. The most obvious example is the waiver of the right to appeal a sentence as excessive, which the court upheld in People v. Lopez, 6 N.Y.3d 248 (2006). Do we really "diminish the right to appeal," to use Judge Wilson's phrase, when we allow prosecutors to require such a waiver as a condition of the bargain? For a prosecutor to agree to a lesser sentence than would be imposed if the defendant were convicted after trial but only if the defendant agrees not challenge the negotiated sentence on appeal does not seem a sharp practice.

The court's 1996 decision in People v. Holman is instructive; it confirms Judge Michael Garcia's observation that disallowing all appellate waivers, as Judge Wilson proposed, would disadvantage some defendants who seek to negotiate favorable pleas. People v. Holman, 89 N.Y.2d 876 (1996). There, the defendant was convicted after trial of criminal possession of stolen property. Following his conviction, he moved to set aside the verdict based on several purported trial errors. Before his motion was decided, however, he agreed to a sentence of one year in jail—the maximum penalty was two and one-third to seven years—on condition that he waive his right to appeal the alleged errors. A unanimous Court of Appeals upheld the waiver, writing this:

It was [the defendant's] choice to accept a lighter sentence rather than risk the delay and outcome of an appeal or a new trial. Having made his choice, there is no reason for this Court to interfere. Avoidance of an appeal of openly explored, arguable issues of law is not concealment of error for these purposes, and in this case does no actual or perceptual damage to the integrity of the judicial process.

Allowing the defendant to waive his right to appeal gave him a bargaining chip in his negotiations with the prosecution.

(2) Why is it that the validity of appellate waivers has bedeviled New York courts but is not an issue in federal court? Under federal law, a defendant who pleads guilty forfeits "all challenges to the prosecution except those going to the court's jurisdiction." United States v. Yousef, 750 F.3d 254 (2014) (There are a few narrow exceptions to this principle. Id. at n.2.) Thus, a federal defendant who loses a suppression motion and then pleads guilty does not need to waive his right to appellate review to lose it; he forfeits the right as a matter of law. (A waiver must be knowing and voluntary; forfeiture means that the right is extinguished by the plea.) New York law is not as clear cut. As the Court of Appeals has observed, "[t]here is no mechanical rule that fixes when a claim is forfeited by a guilty plea." People v. Keizer, 100 N.Y.2d 114, 122 (2003). Under New York law, claims are forfeited if they "bear[] directly on defendant's factual guilt." Id. Thus, these claims do not survive a plea: that the evidence presented to the grand jury was insufficient; that there was not the requisite corroboration for the defendant's confession in the misdemeanor information; and that the criminal court accusatory instrument relied on hearsay to state the crime. Other claims are forfeited as well, including a statute of limitation claim, a statutory double jeopardy claim, and a lack of venue claim. (A full list of forfeited claims can be found in Donnino, New York Court of Appeals on Criminal Law §23.19.) By statute (CPL §710.70(2)), the legislature has chosen to preserve suppression claims for appellate review. Because more claims survive a guilty plea in state court than in federal court, state prosecutors seek to obtain broad appellate waivers, spawning litigation about their validity.

(3) The Court of Appeals has emphasized that it is important for "trial courts to ensure that defendants understand what they are surrendering when they waive the right to appeal." Lopez, 6 N.Y.3d at 256. But that is the rub. If asked, even the best informed defense lawyer would have trouble defining the scope of a general appellate waiver. The lawyer might say that the defendant was not waiving his right to raise the four claims exempted in Thomas' waiver. Those are the most mentioned non-waivable claims, but there are more. Appellate Division cases teach that a general waiver does not prevent a defendant from claiming that the accusatory instrument was jurisdictionally defective; that the court lacked territorial jurisdiction; that the statute under which the defendant was prosecuted was unconstitutional; that federal law preempts the state law under which the defendant was convicted; that there was an unreasonable delay in imposing sentence; and that the restitution award was excessive if the plea agreement did not specify the amount. No doubt there are other nonwaivable rights not on this list. All of which is to say, the precise scope of a general appellate waiver—what is waivable and what is not—is anyone's guess.

(4) Among the new criminal justice reforms that took effect on January 1 is a provision (CPL §30.30(6)) stating: "An order denying a motion to dismiss pursuant to [30.30(1)] shall be reversible upon appeal from an ensuing judgment of conviction, notwithstanding the fact that such judgment is entered upon a guilty plea." What is the provision's likely effect? Under the "old law," a constitutional speedy trial claim was unwaivable, but a statutory speedy trial claim—a §30.30 claim—was forfeited by a guilty plea. People v. Friscia, 51 N.Y.2d 845 (1980). Indeed, the claim did not survive the plea even if the prosecutor stipulated that it would survive and the court endorsed the stipulation. People v. O'Brien, 56 N.Y.2d 1009 (1982). The new law changes that. Section 30.30 claims are no longer forfeited, but presumably they are waivable—i.e., as a condition of a guilty plea, a defendant can agree not to raise a §30.30 claim on appeal. That conclusion can be stated with some confidence, since the language of §30.30(6) closely tracks that of §710.70(2), under which suppression claims are waivable. People v. Williams, 36 N.Y.2d 829 (1975).

(5) One of the things that makes Thomas interesting is that Judge Garcia and Judge Wilson agree that the appellate waiver in Thomas was functionally indistinguishable from those in Green and Lang. But that is all they agree on. Judge Garcia concluded that all three waivers were valid, and Judge Wilson concluded that all three were invalid. To be sure, the distinction that the majority drew between the waiver in Thomas ("incorrect" but valid) and those in Green and Lang ("muddled" and invalid) is thin. One cannot help but recall the opening sentences of Judge Read's dissent in Bradshaw, a 2011 appellate waiver case: "Today's decision brings to mind the New York State Lottery slogan: 'Hey, you never know.' Our trial judges might well be forgiven for concluding that the Court has transformed the taking of an appeal waiver into a game of chance." People v. Bradshaw, 18 N.Y.3d 257 (2011).

(6) As noted above, in his separate opinion, Judge Garcia wrote that "an otherwise valid waiver is not rendered involuntary simply because the defendant was willing to waive more rights than required." The point deserves more discussion than his colleagues gave it. The question is this: if a defendant agrees to an overbroad waiver (one that waives rights that cannot be waived), why should he be permitted to challenge a suppression ruling when the right to review that ruling is waivable? An analogy to First Amendment overbreadth doctrine helps answer the question. Under the overbreadth doctrine, we allow persons whose speech may lawfully be restricted to challenge a statute that unlawfully restricts the speech of parties not before the court. We permit the former to assert the rights of the latter for fear that the statute will deter the latter from speaking. Much the same seems true here. As Judge Wilson notes, if an appellate waiver is overbroad, some defendants will not seek to "effectuat[e] their rights, even when their rights are legally unwaivable." Thus, it is to protect the rights of those with unwaivable claims that we allow defendants with waivable claims to seek to invalidate waivers that sweep too broadly.

(7) The most damning fact about New York's appellate waiver jurisprudence is that the appellate departments have invalidated more than 380 waivers in the past five years. (The figure comes from Justice Scheinkman's concurring opinion in People v. Batista, 167 A.D.3d 69 (2d Dept. 2018).) Given that number, it is hardly surprising that appellate waivers do not prevent many appellate lawyers from filing appeals. Waivers that are intended to reduce litigation often breed more. One issue (was the sentence excessive?) becomes two (was the waiver valid and, if not, was the sentence excessive?). Three hundred eighty invalidated waivers is proof that something is wrong in New York.

(8) What has spawned so much waiver litigation is the court's insistence that judges "need not engage in any particular litany" in order to obtain a valid waiver of appellate rights. Lopez, 6 N.Y.3d at 256. As a result, a multitude of litanies have bloomed, and many of them are muddled. (In his practice commentary to CPL §220.10, Judge Donnino writes that "the failure to provide judges at least with a non-binding guideline of a proper colloquy has resulted in unnecessary litigation and the Court's having to strain to determine whether there was a valid waiver.") After Thomas that should change. Although the majority reiterates that no litany is required, it endorses the Model Colloquy for the waiver of the right to appeal drafted by the United Court System's Model Colloquy Committee. The Model Colloquy was apparently drafted on the assumption that saying less is the better course. The recommended language is this:

[B]y waiving your right to appeal, you do not give up your right to take an appeal by filing a notice of appeal … within 30 days of the sentence. But, if you take an appeal, you are by this waiver giving up the right to have the appellate court consider most claims of error,[] and whether the sentence I impose, whatever it may be, is excessive and should be modified. As a result, the conviction by this plea and sentence will normally be final.

Surely, telling a defendant that he is giving up "the right to have the appellate court consider most claims of error" is telling him little.

(9) Notably, after Thomas, the Model Colloquy Committee quickly met and decided to expand its model colloquy on appellate waivers, which now reads as follows:

[I]f you take an appeal, you are by this waiver giving up the right to have the appellate court consider most claims of error, [including a claimed error in the denial of your (specify, e.g., motion to suppress),] and to consider whether the sentence I impose, whatever it may be, is excessive and should be modified. As a result, the conviction by this plea and sentence will normally be final. Do you understand? Among the limited number of claims that will survive the waiver of the right to appeal are: the voluntariness of this plea, the validity and voluntariness of this waiver, the legality of the sentence, [and] the jurisdiction of this Court. [Add if an issue in the case: [and] a defendant's competency to stand trial, [and] a defendant's constitutional right to a speedy trial].

The new colloquy directs judges to specify the claims that the defendant is not waiving whenever specification is possible and to indicate the relevant claims that fall outside the waiver. In most cases, the potential appellate issues are readily identifiable, and therefore a specific waiver should be easy to craft and enforce. The new colloquy does a much better job than the old of informing defendants of what they are surrendering as a condition of the plea. Going forward, judges who do not read it aloud without embellishment, filling in the blank as to the specific issues that are waived, have only themselves to blame if a waiver is invalidated.

In short, the new Model Colloquy is a path out of the Daedalean maze.

Paul Shechtman is a partner at Bracewell in New York and teaches evidence and criminal procedure at Columbia Law School.