Ex parte De Luccia

• Decision Date: 27 October 1950
• Citation: 76 A.2d 304,10 N.J.Super. 374
• Parties: Ex parte DE LUCCIA.
• Court: New Jersey County Court

Page 374

10 N.J.Super. 374

76 A.2d 304

Ex parte DE LUCCIA.

Mercer County Court Law Division, New Jersey.

Oct. 27, 1950.

Purvis Brearley, Trenton, for petitioner.

Richard J. Congleton, County Prosecutor of Essex County, C. William Caruso, Assistant Prosecutor, Newark, for the State.

HUGHES, J.C.C.

On the representation that he is illegally confined in the New Jersey State Prison, petitioner DeLuccia, was granted a writ of habeas corpus under the authority of R.S. 2:82--1 et seq. N.J.S.A. In the petition for the writ, as amended, it is alleged that petitioner has been imprisoned since February 12, 1948, under sentences imposed upon him in the former Essex County Court of Quarter Sessions on February 11, 1948; that such sentences have been served; and that he is entitled to immediate release. The State filed its return, claiming justification of its detention of petitioner under certain commitments allegedly based on such sentences.

On the return of the writ, testimony was taken and stipulations entered of record, resulting in the development of the following issue:

On January 15, 1948, the Essex County Grand Jury returned four bills of indictment, assigned Docket Numbers 427 to 430, inclusive, charging petitioner with separate offenses of larceny and receiving, in violation of the statute. On January 26, 1948, petitioner entered pleas of non vult to each of such indictments. On February 11, 1948, he appeared before the court for sentence and after the sentencing Judge had reprimanded him for his conduct, which, of course, was not part of the formal sentence, the court imposed sentence in the following words:--'I sentence you to New Jersey State Prison for a period of 1 to 3 years.' The petitioner then addressed the court as follows:--'Is that on each count, your Honor?' The court rejoined:--'Yes, on each count.' (It is stipulated that by the word 'count' in this colloquy, both Judge and prisoner were referring to the indictments mentioned.) The petitioner was then removed from the courtroom and later transferred to the New Jersey State Prison to commence service of his sentences.

The clerk of the court in due course entered in his minutes, as to Indictment No. 427, the following:--

'February 11, 1948 The Court Ordered and adjudged that the said defendant, Michael DeLuccia, be imprisoned in the State Prison of this State for a minimum term of one (1) year, and for a maximum term of three (3) years, at hard labor upon this conviction without costs.'

As to Indictment No. 428 the clerk entered in the minutes the following:--

'February 11, 1948 The Court Ordered and adjudged that the said defendant, Michael DeLuccia, be imprisoned in the State Prison of this State for a minimum term of one (1) year, and for a maximum term of three (3) years, at hard labor upon this conviction without costs.

'This sentence to commence on and after the expiration of a previous sentence imposed upon this defendant on conviction No. 427 December Term 1947.'

Similar entries were made as to the sentences imposed on Indictments Nos. 429 and 430, indicating that each should commence on the expiration of the former, the effect of these endorsements amounting to a recordation that the four sentences were to run consecutively and not concurrently. Commitments were issued in due course, indicating the same consecutive, or cumulative, nature of the sentences imposed.

The petitioner now contends that these sentences were imposed to run concurrently because the court did not specify in its imposition of same that they were to run consecutively. There was no stenographic record of the language used by the Judge in imposing these sentences, but the testimony of the petitioner as to the words spoken is persuasive in view of his introduction into evidence of certain correspondence had with the sentencing Judge, including a letter from such Judge written on September 1, 1949 in response to petitioner's query as to the nature of the sentences imposed, that 'I have long had a definite understanding with the clerk of my Court that when it is not expressly stated that sentences are concurrent they are deemed to be consecutive. * * *' Such letter further stated in substance that there had been no mistake made by the clerk in recording the sentences and that same were in accordance with the intention of the Judge. The State did not controvert this description of the sequence of events, and its accuracy will, therefore, be regarded as settled.

The petitioner having been received in State Prison on February 12, 1948, and being entitled (as stipulated in open court) to the allowance of a total of at least 228 days commutation time for good conduct, to which prisoners of his classification uniformly are entitled under the provisions of R.S. 30:4--140, N.J.S.A., it is obvious that he has served, in legal effect, a maximum of three years. If, therefore, the sentences imposed were to be served concurrently, he has completed service thereof and ought to be released. If they were to be served consecutively, he is not presently entitled to be discharged.

The State argues that it was the intention of the sentencing Judge to impose sentences to be served consecutively and points to the letter quoted, as evidence of such intent, and further advances the clerk's minutes and the commitments based thereon as conclusive evidence of the nature of the sentences imposed. The petitioner contends, however, that the intention of the Judge in imposing sentence may not be gleaned from a letter written so long after the event, nor from an instruction to the clerk of the court issued so long before the event. The State argues, too, that petitioner at no time misunderstood the real intention of the Judge, and while he contends otherwise I would, if necessary, be inclined to find as a fact that his present denial of this realization is untrue. As I view the matter, however, neither the petitioner's knowledge nor his good faith in denying it, are in issue. I think that the nature of the sentences imposed constitutes an abstract legal problem, not affected by the mental attitude of the petitioner.

It was, of course, within the power of the court in the instant case to direct that sentences be served consecutively, for at common law a court exercising criminal jurisdiction was empowered inherently to punish distinct violations of the law with separate and cumulative penalties. 15 Am. Jur., Crim.Law. sec. 470; State v. Mahaney, 73 N.J.L. 53, 62 A. 265; United States v. Daugherty, 269 U.S. 360, 46 S.Ct. 156, 70 L.Ed. 309.

The sole question here,...