When ‘waiver of appeal’ and ‘interest of justice’ collide

This post is the first in a partnership between the Rochester Beacon and veteran reporter Gary Craig, featuring articles published on his Substack site.

As a child in Arizona, Hannah Thomas survived horrific abuse.

“From the age of 6 until the age of 11, (Thomas) suffered extreme abuse and torture at the hands of her adoptive parents in Arizona,” an appellate court recently wrote of her childhood years.

Along with an adoptive sister, Thomas was “physically and psychologically abused, including being starved to the point of malnourishment, forced to live outside, often while naked, and made to perform extreme physical exercise as punishment for ‘allegedly’ stealing from her adoptive parents.”

Those parents “would place duct tape over her mouth for days at a time.” She was “made to run outside for hours” and her parents dressed her as a “baby” and forced her to wear diapers inside the home.

Now, Thomas is at the center of a court case that could have significant ripples across New York’s criminal justice system and challenge what is often a centerpiece of plea agreements—a pact that precludes an offender from challenging the plea with an appeal.

That agreement, known as a “waiver of appeal,” is typically honored, and appellate courts have rebuffed efforts by defendants to reverse course after an agreement not to challenge a plea of guilty.

In 2023 Thomas, along with her boyfriend Richard Avila, pleaded guilty to manslaughter in state Supreme Court in Rochester. The two admitted to the 2020 fatal shooting in Greece of Thomas’ birth mother, Ottilia Piros, and both were sentenced to 25 years in prison.

Court papers say Piros was also being abusive toward Thomas before the fatal shooting. Thomas had been back in the custody of her grandmother in Arizona, and in 2020 the grandmother left Thomas with Piros in Greece.

The 2020 abuse from her mother, the appellate court majority wrote, including slapping the teen during an argument, threatening suicide when Thomas said she wanted to go back to Arizona, and, a few days before the killing, refusing to take Thomas to a hospital “while (Thomas) was miscarrying a pregnancy and experiencing the ‘worst pain of (her) life.’ 

Both Thomas and Avila waived the right to appeal their pleas and sentences. Thomas was 17 at the time of the killing and Avila 16.

Appeal waivers

Though pretty much a bedrock part of New York plea agreements, waivers have occasionally met challenges. Also, there have been some judges at the state’s highest court, the Court of Appeals, who have questioned whether the waivers should have near-sacrosanct legal status.

In July, the Western New York regional appellate court—the Fourth Department Appellate Division of State Supreme Court—took what even it acknowledged was an unusual step: The court reduced Thomas’ sentence to five years, highlighting the ugly abuse she had endured.

In its ruling, the majority said its “analysis of sentencing challenges typically stops with the valid appeal waiver.”

However, the majority determined that it has the statutory authority to overstep the waiver if “a sentence is fundamentally unjust and all other safeguards have failed.”

The appellate court in the past has exercised its power to reduce sentences in what in legal parlance is known as “interest of justice,” meaning that the sentence was, in the mind of the appellate court, unjustly severe. But those instances involve sentences handed out at the discretion of a judge, not a sentence a defendant has agreed to let stand without a future challenge.

In its decision to reduce Thomas’ sentence, the majority wrote that “we are compelled to exercise our constitutionalized interest of justice power to correct the injustice, no matter the validity of the appeal waiver.”

There are limited avenues to challenge appellate waivers, and waivers must be accepted “knowingly, intelligently and voluntarily” by a defendant. If there is evidence the plea and waiver were coercive in nature, or overrode constitutional guarantees, or the trial judge erred, there are appellate routes.

Thomas’ appellate lawyer, Danielle Wild, did not attack the waiver. Instead, her appeal maintained that Thomas should have been treated by the courts as a juvenile “youthful offender” instead of having her facing adult prosecution and punishment.

That could have led to a significantly lesser sentence.

Her criminal defense attorneys did fight to have Thomas treated as a juvenile, but were unsuccessful, Wild said in an interview.

In her appellate filings, Wild highlighted the abuse. This was not a case in which the defendant was alleging abuse and not providing evidence. Thomas’ abuse became national news and her adoptive parents in Arizona were imprisoned for their crimes.

“It was just striking to me how horrifically this girl suffered,” Wild said.

Dissenting judges

The appellate panel vote to reduce Thomas’ sentence was a narrow one, with three judges in agreement and two opposed. Those two justices, John Curran and Nancy Smith, provided an expansive dissent that likely will be the foundation of arguments should the case reach the Court of Appeals.

In support of the reduced sentence were presiding justice Gerald Whalen and justices Scott DelConte and Craig Hannah.

The dissenting judges maintained that the majority ignored past precedents, bypassed the court’s statutory limits, and tread upon the legitimacy of appellate waivers.

As well, there could have been efforts by defense attorneys under the state’s Domestic Violence Survivors Justice Act to get Thomas’ sentence reduced as an abuse victim, but that route wasn’t taken, the dissenting opinion said.

The majority, the dissenters wrote, took a detour from the appellate issue before it—whether Thomas should have been treated as a juvenile—and instead disrupted what should be considered a viable waiver of appeal.

The majority created newfound legal power that “would allow this Court to reach an assortment of issues that were previously considered foreclosed by a valid waiver appeal,” the dissenters wrote.

The Monroe County District Attorney’s Office is seeking to have the Court of Appeals hear the Thomas case. Officials at the DA’s office acknowledged that they think the Fourth Department majority erred, but the office declined to comment further.

Longtime appellate lawyer Brian Shiffrin, who is not involved in the Thomas case, said he thinks that the parameters of appellate waivers need to be reconsidered, and this case could provide that scrutiny.

“The court has grappled for years with what is required for a permissible and valid waiver of appeal,” he said of the Court of Appeals.

Similarly, there are legislative efforts to change what some lawmakers consider weaknesses with the waivers, namely a belief that the waivers hamstring an offender’s ability to push back against an unjust sentence or prosecution.

Should the Court of Appeals hear the Thomas case, it’s possible that the issue of appellate waivers will be a secondary matter. Or it could be tackled in a manner that does not significantly alter the current practices.

A key issue, for instance, is whether the appellate court even has the authority to issue the decision it did. The dissenters clearly think not.

Meanwhile, Thomas is now free, having served her shortened sentence.

(The appellate court in its decision identified her as ‘Hannah T,” possibly because it treated her as a domestic violence victim and used a name with some anonymity.)

Wild said the issue of waivers of appeals is not foremost in her mind. As a lawyer for Thomas, Wild said she would prefer an assurance that Thomas will remain free.

“For my client I hope this doesn’t get challenged at all,” she said. “I don’t think it would be good for her to have this up in the air for another several years.”

Gary Craig is a Rochester Beacon contributing writer. A retired Democrat and Chronicle reporter, he now writes on Substack.

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