Morgan v. NH State Prison 01-468-B 01/24/03

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

James Morgan

v. Civil No. 01-468-B Opinion No.

Jane Coplan, Warden New Hampshire State Prison

MEMORANDUM AND ORDER

James Morgan pled guilty to the crime of felonious sexual

assault, N.H. Rev. Stat. Ann. 632-A:3 (1996 & Supp. 2002). He

was sentenced to a minimum of 3 ^ years and a maximum of life in

prison. The sentencing court suspended all but 7 years of his

maximum sentence upon the conditions that Morgan remain of "good

behavior," have no unsupervised contact with minor males and have

no contact with the victims of his offense. After Morgan had

served his minimum sentence, been released on parole and had his

parole revoked, the court reinstated an additional 13 years of

his suspended life sentence because it determined that he had

violated the conditions under which the sentence had been suspended. Morgan is currently serving a maximum sentence of

life in prison with all but 20 years suspended.

Morgan has filed a habeas corpus petition challenging the

sentencing court's decision to reinstate a portion of his

suspended life sentence. He first argues that the court

improperly used prior convictions to enhance his original

sentence beyond the default statutory maximum in violation of

Apprendi v. New Jersey,

(2000). He

alternatively argues that the court could not lawfully reinstate

the suspended portion of the life sentence because: (1) his

original sentence did not give him adeguate notice of the conduct

that could lead to reinstatement; (2) the reinstatement was an

unconstitutionally excessive punishment because it was based on

noncriminal conduct; (3) the reinstatement was not supported by

sufficient evidence; and (4) he did not receive effective

assistance of counsel at the hearing which led to the

reinstatement.

The matter is before me on cross-motions for summary

judgment. (Doc. Nos. 32, 33, and 36) .

- 2 - I. BACKGROUND

Morgan was released on parole on January 25, 2000. At the

time, he agreed to abide by a number of parole conditions

including the following:

7. I will remain in good conduct, obey all laws, and remain arrest-free. 13C. I will participate in and satisfactorily complete... Summit House Aftercare Program; Sex offender counseling; Depo-provera therapy. 13E. I will not have unsupervised company of (female/male) minors at any time.

A p p . D.

Just over four months later, on May 30, 2000, the Adult

Parole Board issued two warrants for Morgan's arrest. The Board

claimed that Morgan had violated: (1) condition 7 by refusing

to leave a friend's home and causing her to be fearful; (2)

condition 13C by failing to meaningfully participate in sex

offender counseling; and (3) condition 13E by having unsupervised

contact with two minor children. Resp't Objection to Pet'r Mot.

for Summ. J., App. E. Morgan eventually pled guilty to failing

to meaningfully participate in sex offender counseling and having

unsupervised visits with minors. At the same time, the parole

board found him not guilty of violating condition 7 by not

- 3 - leaving his friend's home. The parole board then revoked

Morgan's parole and recommitted him to state prison.

After the Parole Board revoked Morgan's parole, Lance R.

Messenger, the Director of New Hampshire State Prison Sexual

Offender Program, wrote a letter to Kenneth Anderson, the Grafton

County Attorney, recommending "bringing this matter before the

court to allow the judge to reconsider imposing the maximum

sentence of LIFE to allow for lifetime parole."

App. G.

Messenger's letter set out all of Morgan's prior offenses and

stated "I believe James Morgan is a fixated pedophile and poses a

very high risk to reoffend."

On July 10, 2000, the Grafton County Attorney filed a motion

to reimpose the suspended portion of Morgan's original sentence.

Resp't Objection to Pet'r Mot. for Summ. J., App. I. The State

argued that because Morgan "has failed to comply with parole, as

well as this Court's specific order not to have unsupervised

contact with minors," the Court should grant the State's motion

to reimpose Morgan's life sentence.

Morgan reached an agreement with the prosecutor concerning

the motion to reimpose. Based on this agreement, at a hearing on

- 4 - October 19, 2000, Grafton Superior Court Judge Peter Smith

modified Morgan's maximum sentence from suspension of "[a]11 but

7 year(s)" of the life sentence to "[a]ll but 20 year(s)."

App. K. Before he modified Morgan's sentence. Judge Smith

guestioned Morgan, Morgan's counsel, and the prosecutor as

follows:

Court: Mr. Hutchins, have you reviewed this agreement with your client? Mr. Hutchins: I have, your Honor. Court: And do you believe that he understands the agreement? Mr. Hutchins: I believe he does. I compared the agreement with the original sentencing orders of this Court and explained exactly how that original sentence would be modified or amended. Court: Okay. Mr Morgan, what is your understanding of the agreement that was arrived at between you and the State? Morgan: That a plea bargain deal would be three and a half to 20, sir, with the life sentence still suspended. Court: All right. What does that mean about you going back to prison? Morgan: What that means, sir, to me, is that I violated my parole violation, sir. I violated the law. Court: Well, I wasn't asking you that. It means how much longer does the State have control over you? Morgan: Twenty years, sir. Court: From when? Morgan: From the day I was sentenced, when I was originally sentenced. The Court:...You understand, Mr. Morgan, that the State can now opt to keep you in jail for 16 years? Morgan: Yes, your honor, I do.

Resp't Objection to Pet'r Mot. for Summ. J., App. L. The

prosecutor then added that if Morgan were to reoffend during that

- 5 - time "we still have the life sentence hanging over his head, and

we could still move to impose that in the event he reoffends."

Judge Smith then asked Morgan if he understood that, to

which Morgan responded affirmatively.

II. ANALYSIS

I address each of Morgan's claims, in turn, beginning with

his challenge to his original sentence.

A. The Original Sentence

Morgan claims that his original sentence violated his right

to due process because the sentencing court improperly used prior

convictions to give him a sentence that exceeded the statutory

maximum sentence that he would otherwise have faced based on his

felonious sexual assault conviction.1 Morgan bases his argument

1 The felonious sexual assault statute, N.H. Rev. Stat. Ann. 673-A:3, makes the crime a class B felony. Class B felonies carry a maximum prison sentence of 7 years. See N.H. Rev. Stat. Ann. 651:2 11(b) (1996 & Supp. 2002). The maximum sentence for felonious sexual assault is increased to life in prison, however, if the defendant has two prior convictions for felonious sexual assault or aggravated felonious sexual assault. See N.H. Rev. Stat. Ann. 651:6 11(d) (1996 & Supp. 2002). Morgan was subject to a maximum life sentence under these provisions because he had two prior felonious sexual assault convictions from the state of Vermont.

- 6 - on Apprendi, which held that "any fact (other than prior

conviction) that increases the maximum penalty for a crime must

be charged in the indictment, submitted to a jury, and proven

beyond a reasonable doubt."

. The short answer

to Morgan's argument is that, as the above-cited guote reveals,

Apprendi simply does not apply to enhancements based upon prior

convictions.2 See United States v. Moore,

(1st

Cir. 2002)("we have ruled with regularity bordering on the

monotonous that . . . the rationale of Apprendi does not apply to

sentence enhancement provisions based upon prior criminal

convictions").

B. "Adequate Notice"

Morgan alleges that the reinstatement of a portion of his

suspended sentence violates his right to due process because he

did not receive adeguate notice that his behavior could result in

the reinstatement of his suspended sentence. I reject this

argument.

2 Morgan's contention that his original sentence gualifies as cruel and unusual punishment in violation of the Eighth Amendment fares no better. No Supreme Court case has held that it is cruel and unusual punishment to sentence a three-time sex offender to life imprisonment.

- 7 - Morgan's life sentence was partially suspended on the

condition that he have "no unsupervised contact with minor

males." This condition is clear and unambiguous. As Morgan

later admitted both at his parole revocation hearing and at the

hearing on the state's motion to reimpose, he violated this

condition by having unsupervised contact with a three-year- old

boy on multiple occasions. He thus has no basis to complain that

he received inadeguate notice of the kind of conduct that could

lead to the reinstatement of his life sentence.3

C. Proportionality

Morgan claims that the partial reinstatement of his

suspended life sentence is a disproportionate punishment that

violates the Eighth Amendment. Because the state court did not

address this argument, I review it de novo. Fortini v. Murphy,

(1st Cir. 2001). Under Harmelin v. Michigan,

(1991), an individual seeking proportionality

review is reguired to demonstrate, an "initial inference of gross

3 Morgan's argument based on the alleged vagueness of the court's "good behavior" condition, see, e.g.. State v. Budgett,

(2001), is simply irrelevant because Morgan's life sentence was not partially reinstated because he violated this condition. disproportionality" between the "gravity of the criminal conduct

and the severity of the . . . penalty imposed." United States v.

Frisbv,

(1st Cir. 2001) (quoting Tart v.

Massachusetts,

, 503 n. 16 (1st Cir. 1991)); see also

United States v. Cardoza,

(1st Cir. 1997).

Morgan incorrectly bases his proportionality argument on the

premise that his current sentence was imposed solely because he

violated the conditions under which his life sentence was

susupended. This is simply incorrect. Instead, his sentence is

the result of his conviction for felonious sexual assault.

Because Morgan could have been sentenced to life in prison based

on this conviction, it does not violate the Eighth Amendment for

the court to partially reinstate a portion of the suspended life

sentence based on Morgan's admitted violations of the conditions

under which the sentence was suspended.

D. Sufficiency of Evidence

Morgan argues that the partial reinstatement of his

suspended sentence violates his right to due process because it

was based on insufficient evidence. The state court did not

address this issue and I therefore review Morgan's claim de novo. Fortini,

. The Supreme Court has held in Tollett

v. Henderson,

(1973), that a

guilty plea represents a break in the chain of events which has preceded it in the criminal process. When a criminal defendant admitted in open court that he in fact guilty of the offense...he may not thereafter raise independent claims relating to the deprivation of constitutional rights that occurred prior to the entry of the guilty plea. He may only attack the voluntary and intelligent character of his guilty plea by showing that the advice he received from counsel was not within the standards set forth [by the Supreme Court].

; see United States v. Valdez-Santana,

(1st Cir. 2002) (guilty plea prevented defendant from a later

Fourth Amendment challenge); United States v. Martinez-Martinez,

(1st Cir. 1995) (a guilty plea waives all

challenges to the actual and legal foundations of the charges);

United States v. Cordero,

(1st Cir. 1994)

(guilty plea acts as a waiver of all non-jurisdictional errors).

A guilty plea renders "irrelevant those constitutional violations

not logically inconsistent with the valid establishment of

factual guilt." Menna v. New York,

, 62-63 n. 2,

(1975); see Tollett,

.

Morgan admitted at the hearing on the state's motion to

reimpose that he had violated the conditions under which his

- 10 - sentence was suspended. Any attack on the sufficiency of the

evidence thus is foreclosed under Tollett and its progeny.

Moreover, even if Morgan's argument were not barred by Tollett,

his admission at both the parole revocation hearing and the

hearing on the motion to reimpose that he had had unsupervised

contact with a minor male provides ample support for the state's

charge that he had violated the conditions under which his life

sentence was suspended.

E. Ineffective Assistance of Counsel

Morgan claims that the state violated his due process rights

because he was denied effective assistance of counsel.4 Because

the state court did not address this issue in response to

Morgan's first motion for a writ of habeas corpus, I review his

claim de novo. Fortini,

.

To maintain a successful ineffective assistance of counsel

claim, Morgan must demonstrate that: (1) his attorney's

representation fell below an objective standard of reasonableness

4 I assume for purposes of analysis that Morgan had a right to counsel at the hearing to reimpose suspended sentence. Cf. Gagnon v. Scarpelli,

(1973) (case-by-case analysis is reguired to determine whether a parolee is entitled to counsel at a parole revocation hearing).

- 11 - and (2) but for counsel's deficiencies, the result of the

proceeding would have been different. Strickland v. Washington,

(1984). Morgan does not fulfill these

reguirements because he has failed to explain how his attorney's

representation fell below the standard of reasonableness. Morgan

faults his attorney for not calling his friend, Sandra Begin, as

a witness. However, given Morgan's decision to plead guilty and

accept a partial reinstatement of his suspended sentence, no

purpose would have been served by calling Ms. Begin. Moreover,

even if Morgan had decided to contest the Motion to Reimpose,

Ms. Begin's testimony would have hurt rather than helped Morgan

because she would have testified that Morgan had unsupervised

contact with her minor son. The possibility, as Morgan claims,

that she also may have testified that she was not afraid of

Morgan would have been irrelevant because the prosecutor was not

seeking to reinstate Morgan's life sentence because he had

threatened Ms. Begin. Accordingly, Morgan has failed to

demonstrate that he was denied the effective assistance of

counsel.

- 12 - IV. CONCLUSION

_____ For the reasons set forth herein, the state court's decision

to partially reinstate Morgan's suspended sentence was not

"contrary to" or an "unreasonable application" of Supreme Court

precedent. See

(d) (2002); Williams v. Tavlor,

(2000). Therefore, I grant the Warden's motion

for summary judgment (Doc. No. 36) and deny Morgan's motions for

summary judgment (Doc. No. 32, 33).

SO ORDERED.

Paul Barbadoro Chief Judge

January 24, 2003

cc: Elizabeth A. Dunn, Esg. Philip McLaughlin, Attorney General James Morgan, pro se

- 13 -