PLATTSBURGH — A Tupper Lake man convicted in 2010 of sexually assaulting a 15-year-old recently won one of a handful of challenges in an appellate case.
Travis K. Borden, 34, has been serving time in Mid-State Correctional Facility for his conviction of third-degree criminal sexual act, a felony.
Borden pleaded guilty to the charge on June 17, 2010, in Franklin County Court.
He was initially charged with third-degree rape, third-degree criminal sexual act, endangering the welfare of a child and unlawfully dealing with a child, stemming from allegations that he provided a 15-year-old girl with alcohol and engaged in sexual relations with her.
SENTENCING
Before Borden's sentencing, the Franklin County District Attorney's Office recommended he get five years of probation, even though the minimum probation term for a felony sexual assault is 10 years.
But the court sentenced him to four years in prison, followed by 10 years of post-release supervision.
Borden appealed, saying that his plea was involuntary and his sentence was harsh and excessive. He had waived his right to appeal but protested its legality.
ONE WIN
The Appellate Court agreed with the latter point, saying Borden's waiver was invalid because only a passing reference was made about it before his guilty plea. The justices said that there was no indication on the record that County Court explained the waiver or the rights forfeited by it.
They also said paperwork did not show that Borden discussed the issue with counsel or understood the right he was waiving, and therefore, they could not conclude that his waiver "was knowing, intelligent and voluntary."
LOST CHALLENGES
But Borden's other challenges were denied.
One objection dealt with how voluntary his guilty plea was and its "factual sufficiency."
Borden claimed that County Court erred in failing to conduct a competency hearing before accepting his plea.
The appellate justices said the issue wasn't preserved for their review because Borden never withdrew his plea. They said he never made any statement during his plea hearing that included an inquiry into the nature of his mental health, the medications he was taking or his ability to comprehend the proceedings.
The ruling said he had not made inquiries that were inconsistent with his guilt or even called into question the voluntariness of his plea.
Borden's next claim — that he was denied effective assistance of counsel — was unpreserved for appellate review.
The Tupper Lake man additionally appealed on the grounds that the District Attorney's Office's sentencing recommendation was illegal and the plea should have been vacated in its entirety or he should have been permitted to withdraw it.
The justices said they only needed to show that Borden never asked to withdraw his plea upon that or any other grounds.
The appellate justices said in their report that County Court cautioned Borden that "the sentencing recommendation was simply that, a recommendation, and repeatedly made clear that it was not making any promise or commitment as to sentencing."
Borden's final claim, that the sentence he was given was harsh and excessive, was found to be lacking in merit.
Email Rebecca Webster at: rwebster@pressrepublican.com
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