                                                                                                                           Opinions of the United
1999 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


5-13-1999

Baker v. Barbo
Precedential or Non-Precedential:

Docket 97-5687




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Filed May 13, 1999

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

No. 97-5687

JAMES BAKER,

       Appellant

v.

JAMES F. BARBO;
ATTORNEY GENERAL OF
THE STATE OF NEW JERSEY

On Appeal from the United States District Court
for the District of New Jersey
(D.C. Civ. No. 96-01745)
District Judge: Honorable Joseph A. Greenaway, Jr.

Argued March 23, 1999

BEFORE: GREENBERG and ROTH, Circuit Judges,
and POLLAK,* District Judge

(Filed: May 13, 1999)

       Theodore Sliwinski (argued)
       45 River Road
       East Brunswick, NJ 08816

        Attorney for Appellant



_________________________________________________________________

*Honorable Louis H. Pollak, United States District Judge for the Eastern
District of Pennsylvania, sitting by designation.
       Thomas V. Manahan
       Prosecutor of Union County
       Steven J. Kaflowitz (argued)
       Assistant Prosecutor
       Office of Prosecutor of Union County
       Union County Administration
        Building
       Elizabeth, NJ 07207

        Attorneys for Appellee

OPINION OF THE COURT

GREENBERG, Circuit Judge.

I. INTRODUCTION

On this appeal we review the district court's order
denying James Baker's petition for a writ of habeas corpus
filed under 28 U.S.C. S 2254. Baker, who has been
incarcerated since February 12, 1987, contends that he
received ineffective assistance of counsel in violation of his
rights under the Sixth Amendment and that his
resentencing to a greatly enhanced sentence following his
unsuccessful appeal of his convictions violated his right to
due process under the Fourteenth Amendment. We have
jurisdiction under 28 U.S.C. S 1291, and will affirm the
denial of the writ for the reasons which follow.

II. BACKGROUND

On March 19, 1987, a New Jersey grand jury indicted
Baker together with co-defendant Stephen L. Garry for two
sets of crimes committed on the evening of January 7,
1987, in Elizabeth, New Jersey: the robbery and attempted
abduction of Elizabeth Soto and the abduction, kidnaping,
and aggravated sexual assault of M.B., a 15-year old girl.
Together, these incidents constituted second degree robbery
in violation of N.J. Stat. Ann. S 2C:15-1 (West 1995);
attempted kidnaping in violation of N.J. Stat. Ann.S 2C:5-1
(West 1995) and N.J. Stat. Ann. S 2C:13-1b (West 1995);

                                 2
criminal restraint in violation of N.J. Stat. Ann.S 2C:13-2
(West 1995); first degree kidnaping in violation of N.J. Stat.
Ann. S 2C:13-1b; and aggravated sexual assault in violation
of N.J. Stat. Ann. S 2C:14-2a (West Supp. 1998).

Baker and Garry committed the first crime at
approximately 8:00 p.m. on January 7, 1987. At that time
Baker, who was driving a stolen car, and Garry, his
passenger, pulled up alongside Soto, who was leaving a
store. Garry jumped out and chased Soto. A struggle then
ensued after Soto unsuccessfully tried to run away. Garry
dragged Soto into the middle of the road toward the car.
She told Garry to take her purse, but he said, "no, we want
you." Soto then began to hit and kick Garry and called for
help, and, after a ten-minute struggle during which Garry
took Soto's purse, Garry jumped back into the car, and he
and Baker drove off. A witness saw the struggle and the
police were called. They arrived minutes later and began a
search for the car.

Meanwhile, about a mile away, Garry and Baker pulled
up along side 15-year-old M.B. sometime after 8:30 p.m. as
she was walking home from a friend's house. One of the
two men pulled M.B. into the backseat of the car and over
the next two hours Garry raped her twice and Baker forced
her to perform fellatio on him and attempted to rape her.
They then released her onto the street, and she made her
way home. Her mother took her to a police station and then
to a hospital. Subsequently, the police arrested both men
and the grand jury indicted them for the offenses we have
described.

The heart of this appeal lies in the fact that at the time
of Baker's offenses, indictment, trial, and sentencing a new
law was in effect which required a mandatory minimum
term of incarceration of 25 years in this case. Under N.J.
Stat. Ann. S 2C:13-1c (West 1995) the sentencing range for
first degree kidnaping until one month before Baker's
offenses had been 15 to 30 years without any requirement
for a mandatory period of parole ineligibility. 1979 N.J.
Laws c. 178, S 23. However, on December 8, 1986, the
Legislature amended this section by enacting 1986 N.J.
Laws c. 172, S 2, to provide that a person found guilty of
kidnaping a victim under 16 years of age against whom a

                                3
sexual assault under N.J. Stat. Ann. S 2C:14-2 or N.J. Stat.
Ann. S 2C:14-3a is committed, shall be sentenced to a term
of between 25 years and life imprisonment with 25 years of
parole ineligibility. N.J. Stat. Ann. S 2C:13-1c(2)(a) (West
1995). Inasmuch as M.B. was under 16 and Baker and
Garry sexually assaulted her during the kidnaping, the law
required their sentencing upon conviction to an
imprisonment term of at least 25 years without parole.

Nevertheless, the prosecution, unaware of the
amendment to N.J. Stat. Ann. S 2C:13-1c, offered Garry a
plea bargain under which he would receive an aggregate
custodial sentence of no more than 30 years with 15 years
of parole ineligibility, conditioned upon Garry pleading
guilty and "testifying truthfully" against Baker. Garry
accepted this offer and thus pleaded guilty. The trial court,
also unaware of the amendment, sentenced Garry to an
aggregate custodial term of 30 years with 15 years of parole
ineligibility.

The State offered Baker the same plea bargain: a
maximum term of 30 years with 15 years of parole
ineligibility. Baker declined this offer, however, and chose
to go to trial because his attorney advised him that he had
nothing to gain from accepting the plea: if he went to trial
the maximum sentence he faced was 30 years with 15
years of parole ineligibility -- the very same "deal" the State
was offering. Baker's attorney, like the court and the
prosecutor, was, of course, unaware of the change in the
law.

After a two-day trial, a jury on September 10, 1987,
found Baker guilty of robbery, attempted kidnaping,
kidnaping and aggravated sexual assault. The court
dismissed the charge of criminal restraint. On December 4,
1987, the court, unaware of the change in the law,
sentenced Baker to concurrent nine-year terms of
imprisonment with three-year terms of parole ineligibility
for robbery and attempted kidnaping and a consecutive 18-
year term of imprisonment with an eight-year term of parole
ineligibility for kidnaping. The court merged Baker's
conviction for aggravated sexual assault into his conviction
for kidnaping. Thus, the court sentenced Baker to an
aggregate custodial term of 27 years with 11 years of parole

                               4
ineligibility. Accordingly, both Baker and Garry received
illegal sentences.

Baker filed an untimely notice of appeal from his
conviction on July 18, 1988, but the Appellate Division of
the New Jersey Superior Court, entered an order on
February 22, 1989, authorizing the appeal to befiled nunc
pro tunc. Baker asserted various trial errors on appeal, but
when he filed the appeal he still was unaware of the
sentencing amendment on the kidnaping charge. However,
on August 21, 1989, the State filed a motion for leave to file
a cross-appeal nunc pro tunc, contending that Baker's
sentence for kidnaping was illegal because of the change in
law prior to the commission of the offenses.1 The Appellate
Division granted that motion on September 12, 1989. Then,
in an unpublished per curiam opinion filed on January 2,
1990, the Appellate Division affirmed Baker's convictions
and, inasmuch as it agreed with the State that Baker was
subject to the 25-year parole disqualifier, it remanded the
case to the trial court for reconsideration of the sentence.
State v. Baker, No. A-5384-87T4 (N.J. Super. Ct. App. Div.
Jan. 2, 1990).

Baker moved in the Appellate Division for reconsideration
of the order remanding the case for reconsideration of his
sentence, but the court denied his motion on February 27,
1990, stating that the trial court could address the issues
he raised in the motion when it reconsidered Baker's
sentence. The New Jersey Supreme Court denied Baker's
petition for certification on June 13, 1990. State v. Baker,
584 A.2d 246 (N.J. 1990).

Baker then filed a petition for post-conviction relief in the
_________________________________________________________________

1. The State has not attempted to have the state court correct Garry's
sentence because, as it explained at argument before us, if the court
increased Garry's sentence, he would be entitled to have his guilty plea
vacated and to go to trial. Thus, Garry's position differed from that of
Baker who did go to trial. See State v. Baker, 636 A.2d 553, 565 (N.J.
Super. Ct. App. Div. 1994). The State was not willing to run the risk of
another trial because by the time it discovered the error considerable
time had elapsed from the time of the offenses. Moreover, it did not wish
to require the victims to face the trauma of a second trial. Garry, of
course, has not challenged his illegal sentence.

                               5
trial court on March 27, 1991, alleging that he had been
denied effective assistance of counsel and that he had been
denied due process and equal protection of the law because
the State had entered into a plea bargain with Garry under
which Garry testified against Baker in exchange for an
illegally short sentence. After an evidentiary hearing, the
trial court denied his petition on October 7, 1991.

On February 19, 1992, the trial court resentenced Baker
to a 25-year term of imprisonment without eligibility for
parole for kidnaping and concurrent nine-year terms of
imprisonment with three-year periods of parole ineligibility
for robbery and attempted kidnaping. The court merged
Baker's conviction for aggravated sexual assault into his
conviction for kidnaping. Thus, the court resentenced
Baker to an aggregate custodial term of 25 years without
eligibility for parole, more than doubling the period of
parole ineligibility it had imposed in the original sentence.

Baker filed separate notices of appeal from the denial of
his petition for post-conviction relief and from the judgment
entered on his resentencing. The Appellate Division
consolidated these appeals on December 30, 1992, and
affirmed Baker's convictions on January 21, 1994, over a
dissent. State v. Baker, 636 A.2d 553 (N.J. Super. Ct. App.
Div. 1994). On further appeal, the Supreme Court of New
Jersey, on October 27, 1994, affirmed the decision of the
Appellate Division with one justice dissenting. State v.
Baker, 648 A.2d 1127 (N.J. 1994).

Baker filed a petition for a writ of habeas corpus on April
23, 1996, pursuant to 28 U.S.C. S 2254 in the district court
but the court denied the petition in an order entered
September 24, 1997. Baker then appealed.2 As the district
court relied entirely on the state court record and did not
hold an evidentiary hearing, we exercise plenary review of
_________________________________________________________________

2. We note that the appellees did not argue in the district court that any
of Baker's claims were not exhausted in the state courts and the district
court rejected them on the merits. We are satisfied from our examination
that Baker's claims have been exhausted. Inasmuch as Baker filed his
petition before the enactment of the Antiterrorism and Effective Death
Penalty Act, the provisions of that statute are not applicable here. See
United States v. Skandier, 125 F.3d 178, 182 (3d Cir. 1997).

                               6
the habeas proceeding. 28 U.S.C. S 2254; see, e.g.,
Zettlemoyer v. Fulcomer, 923 F.2d 284, 291 n.5 (3d Cir.
1991).

III. DISCUSSION

A. Denial of Effective Assistance of Counsel

Baker argues that he was denied effective assistance of
counsel in violation of the Sixth Amendment because of his
attorney's ignorance of the statutory sentencing
amendment during the plea negotiations and because his
attorney made various errors during the trial. Baker
contends that his attorney's ignorance of the sentencing
law caused him to pass up the opportunity to plead guilty
and to be sentenced to a 30-year term with a 15-year limit
of parole ineligibility.3 Inasmuch as we find that his
contentions with respect to his representation at trial are
clearly without merit, we confine our discussion to the
significance of his attorney's ignorance of the sentencing
law.

We start our discussion of the Sixth Amendment issues
by pointing out that a defendant's right to effective counsel
includes the period of his representation during a plea
process as well as during a trial. Hill v. Lockhart, 474 U.S.
52, 58, 106 S.Ct. 366, 370 (1985). Accordingly, we judge
this unusual case by applying the ordinary standards for
granting relief when a defendant claims that he received
ineffective assistance of counsel. Thus, to prevail on his
claim Baker must satisfy a two-prong test. First, he must
show that his attorney's performance was "deficient," that
is, "that counsel made errors so serious that counsel was
not functioning as the `counsel' guaranteed the defendant
by the Sixth Amendment . . . ." Strickland v. Washington,
_________________________________________________________________

3. In his brief, Baker contended that he is entitled to be sentenced to a
27-year term with an 11-year period of parole ineligibility. This request
for relief obviously is dependent upon the reimposition of the sentence
the trial court imposed following his conviction at trial and thus is not
consistent with his theory that he never should have stood trial. At oral
argument, his attorney conceded that his claim should be for the
imposition of a 30-year sentence with a 15-year period of parole
ineligibility.

                               7
466 U.S. 668, 687, 104 S.Ct. 2052, 2064 (1984). Next, he
must show "that there is a reasonable probability that, but
for counsel's unprofessional errors, the result of the
proceeding would have been different." Id. at 694, 104 S.Ct.
at 2068. Of course, inasmuch as Baker's contentions
regarding trial error are meritless, a different result can
mean only that in the absence of his attorney's ignorance of
the amendment of the sentencing law, Baker would have
pleaded guilty and the court would have sentenced him to
a shorter sentence than that it ultimately imposed.

We agree with Baker that his trial attorney's error with
respect to his ignorance of the sentencing law has satisfied
the first prong of the Strickland test. Strickland, 466 U.S. at
688, 690, 104 S.Ct. at 2064-65. While we realize that this
case is extraordinary in that the state trial judge 4 and the
prosecutor also did not know of the change in the law even
at the time of Baker's sentencing almost one year after the
enactment of the amendment, still we must hold that an
attorney who does not know the basic sentence for an
offense at the time that his client is contemplating entering
a plea is ineffective.5

Baker, however, has not met the second Strickland prong
-- a showing that there is a "reasonable probability that,
but for" the error there might have been a different result.
The "reasonable probability" test is not a stringent one. See
Nix v. Whiteside, 475 U.S. 157, 175, 106 S.Ct. 988, 998
(1986) (reasonable probability standard less demanding
than preponderance standard). We have recognized that "[a]
reasonable probability is a probability sufficient to
undermine confidence in the outcome." United States v.
Day, 969 F.2d 39, 42 (3d Cir. 1992) (quoting Strickland,
_________________________________________________________________

4. In fact three different Superior Court judges were unaware of the
change in the law, the judge who accepted Garry's plea of guilty, the
judge who sentenced Garry, and the judge who sentenced Baker.

5. Our opinion must not be overread. We recognize that the ascertaining
of a sentence for an offense can be a difficult matter, particularly in
the
federal courts where sentence calculations can be quite complex and can
depend on facts not ascertained when the defendant pleads to the
offense. Here, however, the sentence required for the offense was
straightforward as counsel had only to examine the latest statutory
amendments to determine it.

                               8
466 U.S. at 694, 104 S.Ct. at 2068). But Baker's arguments
as to prejudice are totally speculative and do not meet that
standard.

We have held that an attorney can be ineffective by giving
a defendant false information about sentencing, thereby
inducing the defendant to plead guilty instead of going to
trial. See Meyers v. Gillis, 142 F.3d 664 (3d Cir. 1998). In
Meyers we found that a defense attorney was mistaken in
informing his client that he would be eligible for parole in
a case where the offense to which the defendant pled guilty
carried a mandatory life sentence. We reasoned that there
was prejudice because there was evidence that, but for the
attorney's advice, the defendant would not have pled guilty,
and might have been convicted of a lesser offense. Id. at
664. Similarly, there can be no doubt that an attorney can
be ineffective in giving his client advice which leads him to
turn down a favorable plea agreement if the attorney is not
aware of the applicable basic sentencing law. Here,
however, Baker has not shown that if his attorney had been
aware of the sentencing law he might have obtained a
sentence of 30 years with a 15-year term of parole
ineligibility by pleading guilty or, indeed, obtained a
sentence for any period less than that the court ultimately
imposed.

If Baker's attorney had known of the sentencing
amendment he would have had the professional duty to
alert the State and the court of the amendment because a
defendant cannot bargain for an illegal sentence. See, e.g.,
In re Norton, 608 A.2d 328, 338 (N.J. 1992); State v.
Nemeth, 519 A.2d 367, 368 (N.J. Super. Ct. App. Div. 1986)
("[T]here can be no plea bargain to an illegal sentence.");
see also N.J. Rule of Professional Conduct 3.3(a)(3) ("A
lawyer shall not knowingly fail to disclose to the tribunal
legal authority in the controlling jurisdiction known to the
lawyer to be directly adverse to the position of the client
and not disclosed by opposing counsel."); 3.3(a)(5) ("A
lawyer shall not knowingly fail to disclose to the tribunal a
material fact with the knowledge that the tribunal may tend
to be misled by such failure."). Therefore, if Baker's
attorney had known of the correct sentence for the
kidnaping, and thus had been an effective counsel, Baker

                               9
could not have accepted the plea offer as it required him to
plead guilty to first degree kidnaping in circumstances in
which the applicable statute required a sentence with a 25-
year mandatory period of parole ineligibility.

It therefore follows that, if his attorney had not been
ineffective, Baker could have obtained a 30-year sentence
with a 15-year period of parole ineligibility only if his
attorney could have negotiated for a dismissal of the
kidnaping count. But it is mere speculation to think that he
could have done so. After all, Baker cannot demonstrate
that there was a reasonable probability that the prosecutor
would have negotiated a plea agreement that would
frustrate the Legislature's then recently adopted
requirement for a 25-year period of parole ineligibility in the
circumstances of this case. Furthermore, even if Baker
could have negotiated the agreement with the prosecutor, it
could have been implemented only with the consent of the
trial court because New Jersey state court practice permits
the trial court to reject a guilty plea even when tendered
pursuant to a plea agreement. See N.J. Ct. R. 3:9-2; 3:9-3.
While we never can know whether the trial court would
have accepted the hypothetical plea agreement, the
Appellate Division on Baker's second appeal indicated that
it was unwilling to "frustrate [the] legislative directive" for a
25-year period of parole ineligibility. Thus, for that reason,
among others, it upheld the resentencing. Baker cannot
demonstrate that there is a reasonable probability that a
trial court's attitude would have been any different. State v.
Baker, 636 A.2d at 564.

In considering whether there was a reasonable
probability that Baker would have been able to negotiate for
a dismissal of the kidnaping charge, it is important to
recognize how severe the prosecutor's bargaining position
had been. During the negotiations the parties believed that
the proposed plea agreement which included a 30-year
term with a 15-year period of parole ineligibility was the
maximum sentence for the kidnaping offense. See N.J. Stat.
Ann. S 2C:13-1c; N.J. Stat. Ann. S 2C:43-6b (West 1995).
Indeed, while it was possible that by reason of the
imposition of consecutive sentences on separate counts
that upon Baker's conviction the court could have imposed

                               10
a longer custodial term, see State v. Baker, 636 A.2d at
561, the proposed sentence was so long that Baker's
attorney advised him that he had nothing to lose by going
to trial.

Moreover, the court upon Baker's conviction sentenced
him to a 27-year term with an 11-year period of parole
ineligibility, in a sense vindicating Baker's attorney's
position which, in the absence of the sentencing
amendment, would have been unassailable. It is, of course,
unusual for a court to sentence a defendant upon his
conviction at trial to a shorter sentence than that offered
prior to trial6 and the court's action plainly demonstrates
that the prosecutor in his sentencing offer was not being
lenient with Baker. In view of this attitude, Baker cannot
demonstrate that if the prosecutor had known of the 25-
year mandatory period of parole ineligibility, he would have
been willing to enter into a plea agreement which included
a dismissal of the kidnaping charge. Plainly, the reasonable
inference we draw from the objective evidence is exactly to
the contrary. Thus, Baker cannot demonstrate that there is
a reasonable probability that his attorney's error had any
effect on the outcome of the case.

We recognize that the district court did not conduct an
evidentiary hearing in this case and that sometimes it is
necessary for the court to hold such a hearing to resolve
disputed questions of fact. But this case does not fall
within that category as the nature of Baker's claim is such
that his chances for relief must remain nothing more than
a possibility. Consequently, we will not remand so that the
district court can preside over a charade in which witnesses
testify about hypothetical conduct. In these circumstances,
we cannot hold that there is a reasonable probability that
but for his attorney's error, the result of this case could
have been different.7
_________________________________________________________________

6. This sentencing approach is well known to all attorneys practicing
criminal law and is nothing new. See Comment, The Influence of the
Defendant's Plea on Judicial Determination of Sentence, 66 Yale L.J. 204
(1956).

7. We note that the dissent suggests that on a remand the district court
could inquire into whether the attorney who, on Baker's behalf, filed his

                               11
Some context as to the trial testimony is helpful in
explaining our decision. The first victim, Soto, tentatively
identified Baker as the driver of the car which pulled up
beside her and she positively identified Baker at trial. The
second victim, M.B., testified that Baker attempted to
sexually assault her but that she bit him and that this
deterred his attack. While M.B. immediately after the crime
did not identify Baker from a photo array, she was able to
do so a few weeks later and she identified him at trial.
Garry testified for the State that he and Baker committed
both crimes, but he testified that he, not Baker, drove the
car, and that it was Baker who jumped out to grab Soto
and, later that evening, M.B.8 He also testified that both he
and Baker sexually assaulted M.B. in the car. Further,
Detective Conrad Cheatham of the Elizabeth Police
Department, who arrested Baker, testified that Baker
admitted participating in the assault upon Soto, stating
that Garry drove the car while he attacked Soto. State v.
Baker, 636 A.2d at 558. Given the strength of this evidence,
there is no reasonable probability that in order to
accommodate Baker the State would have dropped thefirst-
degree kidnaping charge if it had been aware of the 25-year
_________________________________________________________________

first appeal, was ineffective because he apparently did not advise Baker
that he faced a longer sentence by appealing. This appellate attorney,
who was an Assistant Deputy Public Defender, had not represented
Baker in the plea negotiations and at the trial. The problem with this
suggestion, quite aside from any ethical considerations that might have
compelled the attorney to share his knowledge of the sentencing error
with the state, if he had any such knowledge, is that Baker never has
raised this issue in either the state or federal courts. For example, in
this court he contends in his brief that his constitutional rights "were
violated because he received ineffective counsel during the plea
negotiations of his case," "trial counsel was ineffective because he
failed
to make sufficient efforts to research the applicable sentencing law," and
his "Sixth Amendment rights were violated because the cumulative effect
of counsel's errors denied him effective assistance of counsel." His brief
makes plain that his reference to the cumulative errors means error at
trial.

8. Of course, if the State had been aware of the mandatory sentence, it
could not have made the plea agreement it did make with Garry and
perhaps his testimony would not have been available in Baker's case.

                               12
mandatory imprisonment term without parole eligibility or
that the court would have approved any such action.

Of course, we cannot replay the events of the pre-trial
proceedings. Yet it is clear enough that the Strickland test
requires a showing that a defendant has been deprived of
a "just result" due to ineffective counsel. Strickland, 466
U.S. at 686, 104 S.Ct. at 2064. The State's cross-appeal to
correct the sentence provided Baker with what he would
have had if he had received effective representation during
the plea stage, the right to be sentenced legally. His
attorney's mistake in no way affected the constitutionality
of the subsequent trial. The mistake deprived Baker only of
the possibility to negotiate for the dismissal of the
kidnaping charge, but as we have indicated, he cannot
show that he was prejudiced by the loss of this speculative
opportunity. Thus, his Sixth Amendment claim must fail.

B. Fundamental Unfairness

Baker argues that his resentencing to the 25-year term of
imprisonment without eligibility for parole mandated by
N.J. Stat. Ann. S 2C:13-1c(2)(a) violated his right to due
process of law. Due process of law comprehends concepts
less rigid and more fluid than those provided in specific and
particular constitutional guarantees. To show a due process
violation, Baker must show that his resentencing was
"fundamentally unfair," Burkett v. Cunningham, 826 F.2d
1208, 1221 (3d Cir. 1987), or was "shocking to the
universal sense of justice." Kinsella v. United States ex rel.
Singleton, 361 U.S. 234, 246, 80 S.Ct. 297, 304 (1960).
Baker claims that the parties' and the court's ignorance of
the sentencing amendment for kidnaping led to his serving
a portion of his sentence before any challenge was made,
and that it is unfair that he now should face a longer
sentence without parole than he had expected. Of course,
Baker's due process argument includes the odd fact that he
is claiming a right to illegal treatment.

On the fundamental fairness issue we first consider
double jeopardy principles for while they are conceptually
distinct from due process principles still to a degree they
are informative even here. In Bozza v. United States, 330
U.S. 160, 67 S.Ct. 645 (1947), the trial court inadvertently

                               13
failed to impose a statutorily mandated fine in sentencing
the defendant, but recalled him to impose the omitted fine.
Rejecting his contention that this resentencing constituted
a violation of the Double Jeopardy Clause, the Court stated:

       This Court has rejected the `doctrine that a prisoner,
       whose guilt is established, by a regular verdict, is to
       escape punishment altogether, because the court
       committed an error in passing the sentence.' The
       Constitution does not require that sentencing should
       be a game in which a wrong move by the judge means
       immunity for the prisoner. In this case the court`only
       set aside what it had no authority to do and
       substitute[d] directions required by the law to be done
       upon the conviction of the offender.' It did not twice
       put petitioner in jeopardy for the same offense. The
       sentence, as corrected, imposes a valid punishment for
       an offense instead of an invalid punishment for that
       offense.

Id. at 166-67, 67 S.Ct. at 649 (citations omitted).

Following Bozza, we have stated that a guilty prisoner
cannot "escape punishment because the court committed
an error in passing sentence." United States v. Busic, 639
F.2d 940, 946 (3d Cir. 1981) (citing Bozza, 330 U.S. at 166,
67 S.Ct. at 648). See also id. at 948 ("Nothing in the history
or policy of the [Double Jeopardy] clause suggests that its
purposes included protecting the finality of a sentence and
thereby barring resentencing to correct a sentence entered
illegally or erroneously."). This principle is true even in
cases like Baker's where the prisoner already has begun to
serve his sentence. Busic, 639 F.2d at 948 n.11.

Baker nevertheless contends that it is a violation of the
Due Process Clause to correct even an illegal sentence
when enough time has passed such that the prisoner has
some real interest in expecting a certain release date or in
fact has been released and faces reincarceration. See
Hawkins v. Freeman, 166 F.3d 267, 273-75 (4th Cir. 1999);
DeWitt v. Venetoulo, 6 F.3d 32 (1st Cir. 1993); Breest v.
Helgemoe, 579 F.2d 95, 101 (1st Cir. 1978). In Breest, the
court noted that the power of a sentencing court to correct
an invalid sentence "must be subject to some temporal

                               14
limit." Breest, 579 F.2d at 101. According to the court, "[a]s
the months and years pass," the expected release date
acquires "a real and psychologically critical importance" to
the inmate. Id. After a "substantial period of time" passes,
"it might be fundamentally unfair . . . to alter even an
illegal sentence in a way which frustrates a prisoner's
expectations [of release]." Id.

Baker's reasonable expectations could not have reached
that "temporal limit" wherever it may be. Baker's reliance
on his sentence could not have lasted even two years as he
was sentenced on December 4, 1987, and the State moved
on August 21, 1989, for leave to cross-appeal from the
sentence. Further, he could not have had a clear
"expectation of finality" when the State cross-appealed as
the direct appeal process had not been concluded by that
time. See United States v. DiFrancesco, 449 U.S. 117, 136,
101 S. Ct. 426, 437 (1980) (defendant "has no expectation
of finality in his sentence until the appeal is concluded or
the time to appeal has expired"); State v. Rodriguez, 478
A.2d 408, 412 (N.J. 1984) ("Since the underlying
substantive convictions in this case were themselves the
subject of attack on an appeal in which defendant sought
their modification, no legitimate expectation offinality could
be invested in the underlying convictions or the sentences
related to them.").

We realize that prisoners place enormous weight upon
their hopes for parole or release. But Baker has not shown
a substantial enough expectation of release to support a
finding of a violation of his due process rights. While Baker
relies heavily on DeWitt v. Venetoulo that case is
distinguishable as there, after a defendant was paroled, the
court reimposed a sentence to correct an illegal order
suspending a portion of his sentence.

It is also significant that Baker initiated the appellate
process and was seeking a new trial by appealing. Thus, as
the Appellate Division indicated on Baker's second appeal,
his "own appeal prevented his convictions and sentences
from being invested with finality." State v. Baker, 636 A.2d
at 564. Therefore, it is conceivable that if he had been
successful on appeal and then had been convicted at a new
trial, the court might have imposed a greater sentence on

                               15
him than that it originally imposed. Id. While it is true that
North Carolina v. Pearce, 395 U.S. 812, 89 S.Ct. 2072
(1969), places some limitations on the enhancement of a
sentence after a retrial, the case is not an absolute bar to
such an enhancement. Thus, by appealing, Baker gambled
that he would lose the advantage of the 27-year sentence
with an 11-year period of parole ineligibility. He lost his
gamble, though not in a way he could have anticipated
when he appealed.

We ultimately are persuaded by the State's argument
that it is proper that Baker serve at least the minimum
sentence the Legislature intended for the crimes he
committed. One month before Baker kidnaped and sexually
assaulted the minor girl, the Legislature directed that any
person who commits such an offense should serve at least
a 25-year term of imprisonment without parole. We would
thwart this legislative directive if we were to conclude that
due process considerations require that Baker be allowed to
avoid the statutorily required minimum sentence because
the trial court failed to impose the mandated period of
parole ineligibility, and the State failed to appeal the
sentence for more than a year-and-a-half.

The State had the right to pursue an appeal of the illegal
sentence, and Baker now is serving the sentence mandated
for the crimes he has committed. The only possible relief
that Baker could obtain from either this court or the
district court on remand after further proceedings is that
he be released unless the state court resentences him to an
illegal sentence. See Orban v. Vaughn, 123 F.3d 727, 731
n.1 (3d Cir. 1997). Surely, only the most compelling
circumstances could justify a federal court to grant the
extraordinary relief of requiring a state court to impose an
illegal sentence as a condition of holding a prisoner in
custody. Those circumstances are not present here.

IV. CONCLUSION

We close with the following overview of this case. Baker
was constitutionally convicted and sentenced to the
minimum term for his offenses. In these circumstances, it
is quite remarkable that he petitions for a writ of habeas

                                16
corpus so that he can obtain an illegal result. We will not
grant him such relief.

For the foregoing reasons we will affirm the order of
September 24, 1997.

                               17
POLLAK, District Judge, dissenting:

I.

As the court's opinion makes plain, one who, pursuant to
Strickland v. Washington, 466 U.S. 668 (1984), mounts a
challenge to a conviction and/or sentence on the ground of
asserted ineffective assistance of counsel, must, in order to
prevail, show that (1) "counsel made errors so serious that
counsel was not functioning as the `counsel' guaranteed the
defendant by the Sixth Amendment," id. at 687, and (2)
"there is a reasonable probability that, but for counsel's
unprofessional errors, the result of the proceeding would
have been different." Id. at 694.

I agree with the court's persuasive demonstration that
Baker's "trial attorney's error with respect to his ignorance
of the sentencing law has satisfied the first prong of the
Strickland test." However, given the procedural posture of
this habeas corpus proceeding--in which we, as an
appellate panel, are reviewing a district court denial of the
writ based on pleadings and legal argument, no evidentiary
record having been made in the district court--I do not feel
that I can with entire confidence subscribe to the court's
conclusion that Baker "has not met the second Strickland
prong--a showing that there is a `reasonable probability
that, but for' the error, there might have been a different
result." The court's opinion argues with considerable force
the proposition that, even if Baker's trial attorney had in
1987 been properly informed about the 1986 amendment of
the statute governing sentence and had communicated that
information to Baker, his client, the sentence ultimately
imposed on Baker would not have been less severe than the
sentence he now challenges. Very possibly so. But the
court's argument, while long on advocacy, is somewhat
short on factual infrastructure--and this is unsurprising,
given that (1) no evidentiary record was made in the district
court and (2) it does not appear that any of the several
proceedings in the state courts focused systematically in
some factually comprehensive fashion on the sentencing
aspect of Baker's ineffective-assistance-of-counsel claim.
Accordingly, the appropriate course for this court to pursue

                               18
is, so it seems to me, the conventional course of remand for
development of the facts.

The court eschews this course. The court states that "we
will not remand so that the district court can preside over
a charade in which witnesses testify about hypothetical
conduct." But characterizing the proposed district court
inquiry as one which would address "hypothetical conduct"
does not mean that no inquiry is called for. Any inquiry
into whether an acknowledged error--in this instance, the
ineffectiveness of counsel--was harmless or not necessarily
calls for an assessment of the likelihood that a road not
taken might have brought the traveler to a destination
other the than one actually arrived at. Characterizing such
an inquiry as "hypothetical" may signify that it could be
instructively pursued in a law school classroom, but it does
not serve to remove it from the courtroom. And so,
persuaded that this habeas corpus case should be
remanded for further proceedings, I respectfully dissent.1

II.

If this case were to be remanded for further proceedings
in the district court, I would think it proper that such
further proceedings also encompass some inquiry into a
facet of the ineffective-assistance-of-counsel issue which
has not been addressed by the parties in briefing and
arguing this appeal. I have in mind the question whether
Baker was adequately advised by counsel who represented
Baker in 1988, when, rather tardily, he undertook tofile an
appeal from his 1987 conviction. So far as I can determine
from the materials available to us on appeal, it appears
likely that appellate counsel, at the time Baker's appeal was
perfected, was, like trial counsel a year before, unaware of
the 1986 amendment of the sentencing statute. If that is
the case, we have a second instance of ineffective-
_________________________________________________________________

1. Notwithstanding my disagreement with the court on this Strickland
issue, I would note that I entirely agree with the court -- for the
reasons
given in the court's opinion -- that the action of the New Jersey courts
in extending Baker's unauthorized sentence to a term in conformity with
the strictures of the 1986 amendment of the sentencing statute did not
work a denial of Baker's substantive due process rights.

                               19
assistance-of-counsel--one that would appear to be even
more egregious than the first, since an additional year had
gone by since the Legislature changed the governing law.
And this putative second instance of ineffective-assistance-
of-counsel may very well have been the factor which
propelled Baker, through appellate counsel, to pursue what
proved to be the calamitous course of filing an appeal--
"calamitous" in that Baker's appeal set the stage for the
state's cross-appeal, leading to the longer sentence which
Baker has challenged in this habeas corpus proceeding.
Properly advised of the dramatically enhanced parole
ineligibility he might face were he to succeed on appeal and
thereby gain a new trial, and, potentially, a second
conviction, Baker might well have foregone filing the 1988
direct appeal of his 1987 conviction. On the other hand it
is indeed possible that, even if Baker had been properly
advised of the large risk an appeal entailed, he would
nonetheless have directed counsel to appeal. Which would
have been the more likely scenario we cannot tell. But in
order fully to assess whether Baker has a valid Strickland
claim with respect to his appeal, inquiry is called for. And
that inquiry would be the province of the district court,
unless that court were to determine that the question of
ineffective assistance of appellate counsel is unexhausted
and hence not open to current scrutiny on Baker's present
application for habeas corpus.

Conclusion

For the reasons given in Part I of this opinion, I dissent
from the judgment of the court. Were this case remanded to
the district court for the further proceedings contemplated
in Part I, those further proceedings should, in my
judgment, also entail inquiry into the issue identified in
Part II.

A True Copy:
Teste:

       Clerk of the United States Court of Appeals
       for the Third Circuit

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