Ex parte Carter

Citation14 N.J.Super. 591,82 A.2d 652
PartiesEx parte CARTER.
Decision Date27 July 1951
CourtNew Jersey County Court

David Deitz, Trenton, attorney for petitoner, In forma pauperis.

Richard J. Congleton, Pros. of the Pleas of Essex County, Newark (C. William Caruso, Asst. Pros., Newark, appearing), and Theodore D. Parsons, Atty. Gen. of the State of New Jersey (Eugene T. Urbaniak, Deputy Atty. Gen., apearing), for the State.

HUGHES, J.C.C.

On the basis of a verified petition factually supporting his claim that he is illegally detained in the New Jersey State Prison, the petitioner, Alvin Carter, applied for and there issued the writ of Habeas corpus. By its return, the State admitted Prison, the petitioner, Alvin Carter, aplied 3, 1945, justifying it and the continuance thereof by virtue of 'five consecutive indeterminate sentences imposed upon him in the County of Essex for five charges of Breaking, Entering, Larceny and Receiving, said sentences having a 7-year indeterminate maximum and having been imposed on May 3, 1945 to run consecutive one after the other.'

The hearing on the writ developed that petitioner was born February 19, 1927, in Washington, D.C., and at the time of his arrest and sentences was a little over 18 years of age. He was an uneducated Negro youth, and as appears by Exhibit P--1, a copy of the pre-sentence report of the Probation Department, was of practically moron-grade intelligence 1. Counsel for petitioner and for the State stipulated at the hearing that such report accurately represented his mental condition at the time of plea and sentence.

Carter was arrested on March 22, 1945, on a complaint and warrant charging a single offense of breaking, entering and larceny. At the hearing on the writ, he testified that he was interrogated over a period of several days at police headquarters by detectives, and he insists that he told these questioners that he had committed only the one crime for which he had been arrested. Nevertheless, he was charged with 13 additional offenses of similar character and on this total of 14 charges he faced the former Essex County Court of Special Sessions on April 9, 1945. He had signed the apropriate waivers of indictment and trial by jury under R.S. 2:191--1, N.J.S.A.

The docket entries of the clerk of April 9, 1945 evidence that petitioner entered non vult pleas to each of these 14 separate charges. Petitioner testifies that he was then, and is now, unable to read and write; that he understood nothing of the significance of such pleas; and that whatever was then said, he did not profess his guilt of the additional 13 charges. There is no stenographic transcript available. The petitioner claims that he was ignorant of the meaning of the waivers by which he had relinquished his important rights to indictment and trial by jury.

Neither on the entry of his pleas, nor on the later imposition of sentences was petitioner represented by counsel. There is no suggestion that he applied to the court to assign counsel to him as an indigent person, nor that the court declined to assign counsel to him, nor, indeed, that there was any discussion of counsel, and it is quite clear to me under the circumstances that petitioner was ignorant of his right to counsel. This situation, of course, would not occur presently in view of the existing rule of court. 2

On April 25, 1945, petitioner appeared in the same court for sentencing. As evidenced by the list of causes retained by the clerk as his office record, and the commitments based thereon, the court imposed on five of these charges separate sentences to the New Jersey Reformatory at Annandale, ordering that such sentences should run consecutively one to the other. On the remaining charges, the court suspended imposition of sentence. Again, there is no stenographic transcript of any remarks which the judge may have made on the imposition of these individual sentences. The petitioner swears that all he remembers of this fateful occasion is that the judge addressed him and said, 'Alvin, I am going to send you back to Annandale.' (Petitioner had previously been a juvenile offender committed to the State Home for Boys at Jamesburg and transferred for a time to Annandale and later paroled.) However, the record, with all its deficiencies, as supported by commitments in regular order, establishes that these five sentences were actually imposed and so ordered to run consecutively.

The petitioner entered the New Jersey Reformatory at Annandale on May 3, 1945, was subsequently transferred to the New Jersey Reformatory at Rahway on September 4, 1945, and was later transferred to the New Jersey State Prison on July 20, 1948, where he now remains. These transfers are fully authorized by law. R.S. 30:4--85, N.J.S.A.

Scrutiny of the legal effect of these sentences points up their very substantial aggregate maxima. An 'institutional' sentence, so-called, to the Annandale reformatory is that type established by R.S. 30:4--152, N.J.S.A., 3 having no minimum term but a potential maximum equivalent to the statutory maximum for the offense involved, which, in the case of breaking and entering (R.S. 2:115--1 et seq., N.J.S.A.), a high misdemeanor, amounts to seven years. R.S. 2:103--5, N.J.S.A. When contrasted with the type of sentence to the State Prison prescribed by law, which requires the imposition of a fixed minimum term (R.S. 2:192--4, N.J.S.A.), the legislative formula for the 'institutional' type sentence accentuates the theory of training and social rehabilitation, with termination of service dependent, Inter alia, upon its accomplishment, over and above the more normal incidents of imprisonment implicit in sentences to the State Prison. In re Zienowicz, 12 N.J.Super. 563, 79 A.2d 912 (Cty.Ct.1951).

It may not be doubted that the distinguished and learned judge who imposed these sentences was well disposed toward this petitioner, in the sense that he saw in the defendant then before him an errant youth, apparently an accomplished and habitual burglar, and one in obvious need of the training and rehabilitation technique peculiarly available at a restricted reformatory-type institution such as Annandale. 4 Despite their consecutive nature, it is a permissible assumption that such judge intended primarily by these sentences to subject this petitioner to a period of detention adequate to accomplish this rehabilitation, for implied in the very sentences was the statutory formula for release upon the apparent attainment of such reform. In re Zienowicz, supra.

In view of the fundamental questions raised in the instant proceeding, however, the presumptive good intent of the sentencing judge in what he hoped to accomplish by these sentences, loses significance. Thus depersonalized, it is starkly apparent that these sentences accommodate an aggregate maxima of 35 years, reducible only by time credits available under R.S. 30:4--92, N.J.S.A., and not by the much more substantial incentive credits established by R.S. 30:4--140, N.J.S.A. In re White, 10 N.J.Super. 600, 77 A.2d 818 (Cty.Ct.1950); In re Zienowicz, supra. And while not legally significant, the possible enormity of such penalty brings into very sharp focus the claimed constitutional defects in the course of the proceedings which culminated therein.

In total concept there can be no doubt that this prisoner's treatment in the courts of law effectually, albeit unintentionally, divested him of the benefits of his constitutional right to the assistance of counsel. The 1844 New Jersey Constitution provided in Article I, paragraph 8, that: 'In all criminal prosecutions the accused shall have the right * * * to have the assistance of counsel in his defense.'

R.S. 2:190--3, N.J.S.A., provides: 'The court before which any person shall be tried upon indictment shall, if he is not able to procure counsel, assign to him counsel, * * *.'

The Sixth Amendment to the Federal Constitution, similarly, assures the accused, in all criminal prosecutions, of the right to have the assistance of counsel in his defense. Although such Amendment applies only to trials in the federal courts and has, in itself, no application to the states, and while the due process clause of the Fourteenth Amendment does not incorporate, as such, the specific guarantees found in the Sixth Amendment, it is undoubted that a denial by a state of rights or privileges specifically embodied in that and others of the first eight amendments may, in certain circumstances, or in connection with other elements, operate, in a given case, to deprive a litigant of due process of law in violation of the Fourteenth Amendment. While due process of law is secured against state invasion by the Fourteenth Amendment, it has been commented that its language formulates a concept less rigid and more fluid than those envisaged in other specific and particular provisions of the Bill of Rights. Its application has been viewed less as a matter of rule than as a matter of principle. An asserted denial of due process is to be tested by an appraisal of the totality of facts in a given case. That which may, in one setting, constitute a denial of fundamental fairness, shocking to the universal sense of justice, may in other circumstances, and in the light of other considerations, fall short of such denial. Powell v. State of Alabama, 287 U.S. 45, 53 S.Ct. 55, 77 L.Ed. 158 (1932); Betts v. Brady, 316 U.S. 455, 62 S.Ct. 1252, 86 L.Ed. 1595 (1941).

In assessing the 'totality of facts' shown in the instant case, it must be conceded that this defendant stood alone and powerless before the court. Little more than a juvenile offender, he was, as stated, completely illiterate, even lacking in a basic intelligence, which, without advice of counsel, could possibly have informed him of the implications of the waiver of his essential rights to indictment and trial, as well as the pleas of Non vult and the admissions of guilt expressed thereby....

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10 cases
  • Worbetz v. Goodman, A--632
    • United States
    • New Jersey Superior Court – Appellate Division
    • November 13, 1957
    ...of the court to act (Johnson v. Zerbst, Warden, etc., 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938); In re Carter, 14 N.J.Super. 591, 82 A.2d 652 (Cty.Ct.1951); Zasada v. State, The Sixth Amendment to the Federal Constitution assures the accused, in all criminal prosecutions of the righ......
  • Jablonowski v. State, A--730
    • United States
    • New Jersey Superior Court – Appellate Division
    • December 4, 1953
    ...the conviction leading to the sentence imposed on Indictment No. 392, the defendant may be retried thereon. In re Carter, 14 N.J.Super. 591, 602, 82 A.2d 652 (Cty.Ct.1951); Zasada v. State, 19 N.J.Super. 589, 597, 89 A.2d 45 We have no proper proof before us to substantiate the claim of the......
  • Ex parte Sabongy, s. 141
    • United States
    • New Jersey County Court
    • February 25, 1952
    ...merits, and the assistance of counsel is equally necessary and as firmly guaranteed in the constitutional sense. Ex parte Carter, 14 N.J.Super. 591, 82 A.2d 652 (Law Div.1951); State v. Ballard, supra. Deprivation of counsel is equally significant whether accomplished by threat (Uveges v. C......
  • State v. Ballard, A--728
    • United States
    • New Jersey Superior Court – Appellate Division
    • October 4, 1951
    ...binding upon him. See Rice v. Olson, 324 U.S. 786, 65 S.Ct. 989, 89 L.Ed. 1367 (1945); Johnson v. Zerbst, supra; Ex parte Carter, 14 N.J.Super. 591, 82 A.2d 652 (Cty.Ct.1951). But cf. State v. Raney, 63 N.J.L. 363, 43 A. 677 (Sup.Ct.1899). Nor did the fact that the accused decided to plead ......
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