Ex parte Sabongy

• Decision Date: 25 February 1952
• Docket Number: Nos. 141,129,s. 141
• Parties: Ex parte SABONGY. Ex parte TORZILLO.
• Court: New Jersey County Court

Page 334

18 N.J.Super. 334

87 A.2d 59

Ex parte SABONGY.

Ex parte TORZILLO.

Nos. 141, 129.

Mercer County Court

Law Division, New Jersey.

Feb. 25, 1952.

Ivan C. Bash, Trenton, and Jack L. Cohen, Newark, for petitioners (Samuel Kagle, Philadelphia, Pa., of counsel).

Richard J. Congleton, Prosecutor 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., appearing), attorneys, for the State.

HUGHES, J.C.C.

Richard Sabongy and Louis Torzillo filed separate verified petitions under R.S. 2:82--1 et seq., N.J.S.A., alleging their wrongful imprisonment at the New Jersey State Prison and factually supporting, Prima facie, their claims to the right to immediate release, and on the basis thereof writs of Habeas corpus issued. Walker v. Johnston, 312 U.S. 275, 61 S.Ct. 574, 85 L.Ed. 830 (1941). Since the proceedings involved common questions of law and fact, they were consolidated. Rule 5:2--3. The return evidences that Sabongy has been in custody since March 21, 1941; that two commitments originating in the former Special Sessions Court of Bergen County certified the imposition therein of two concurrent sentences, each having a minimum of 12 and a maximum of 15 years; and that he is further held on a commitment of the former Special Sessions Court of Essex County, on a sentence imposed October 22, 1941, having a minimum of 10 and a maximum of 15 years, this latter commitment, which is an amended one, certifying the direction by such Essex County court that such sentence was to run consecutively to the Bergen County sentences. As to Torzillo, the return is the same with the single exception that his Bergen County sentences had a minimum term of 10 years rather than 12 years, but this difference is immaterial to the issues involved now.

While the returns are not formally traversed, the proceedings attack the imprisonment as based on the Essex County sentences. The State stipulates that by virtue of the provisions of R.S. 30:4--140, N.J.S.A., and L.1950, c. 315, R.S. 2:103--9 et seq., N.J.S.A., establishing commutation time for work assignments and good behavior, the maxima of the Bergen County sentences have been fulfilled, and that the petitioners are held presently on such Essex County sentences.

The case for the release of petitioners is based on two principal grounds, the first being that the sentences imposed in Essex County were not specified in the verbal pronouncement thereof to run consecutive to the Bergen County sentences and, therefore, must be deemed to have been imposed to run concurrently therewith (Ex parte De Luccia, 10 N.J.Super. 374, 76 A.2d 304 (Law.Div.1950); Ex parte Benton, 10 N.J.Super, 595, 77 A.2d 517 (Law.Div.1950)), with the result, taking into account the cited commutation statutes, that such sentences have been fulfilled. The other ground advanced is that petitioners were deprived of the assistance of counsel in their defense on the Essex County charges and in connection with their sentences thereon, and thus there were violated constitutional rights essential to the jurisdictional functioning of the sentencing court. Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938).

There has been previous litigation on these claims. In 1948, Sabongy challenged the validity of the Essex County sentence by rule to show cause before the original sentencing Judge (who is now deceased), on the ground that his plea of Non vult had been induced fraudulently by an assistant prosecutor of the pleas. He lost on this proceeding. In October, 1949, Torzillo applied on motion to vacate his sentence, on similar grounds, to another judge of the Essex County Court and after full hearing he lost on that motion. In 1950, Sabongy applied to another judge of that court, on motion to vacate his sentence as illegal. Rule 2:7--13. The basis of the latter motion, on which Sabongy had a full hearing, was the alleged correction of the sentencing judge of the sentence originally imposed, some days after the date of such imposition, out of the presence and without the knowledge of this defendant.

It was contended that this correction of the sentence was to add the specification that it should run consecutive to the Bergen sentences and that since it was made after the prisoner had entered into execution thereof, and since such specification would make the sentence more onerous, that correction was in excess of the power of the court. The judge decided this motion against Sabongy on an adverse finding of fact.

In view of all this previous exhaustive litigation, the State and the petitioners have stipulated that the record before me shall consist of the considerable testimony taken thereon and all of the documentary exhibits. Under the circumstances and in the interest of justice to all litigants, I approved this stipulation.

Hence the questions before me for determination are:

1. In entering the pleas of Non vult and on the sentences based thereon, were petitioners deprived of the right to the assistance of counsel to the extent that these proceedings were constitutionally abortive?

2. Were the sentences imposed on October 22, 1941 to run concurrent with the Bergen County sentences and have they, therefore, been fulfilled?

3. May the instant court reach factual determinations in conflict with those of the Essex County Court previously considering these questions within the principle of Res judicata?

In examining the latter question, it must be noted that at common law the doctrine of Res judicata did not apply to a decision on Habeas corpus refusing to discharge a prisoner (Ex parte Partington, 13 M. & W. 679 (Ct.Exch.1845); Ex parte Turner, 92 Vt. 210, 102 A. 943 (Sup.Ct.Vt.1918); Salinger v. Loisel, 265 U.S. 224, 44 S.Ct. 519, 68 L.Ed. 989 (1924); Waley v. Johnston, 316 U.S. 101, 62 S.Ct. 964, 86 L.Ed. 1302, (1942); United States v. Coy, D.C., 57 F.Supp. 661, affirmed 156 F.2d 293 (C.C.A. 6, 1946), certiorari denied 328 U.S. 841, 66 S.Ct. 1010, 90 L.Ed. 1615), although such decision is not without weight on a later application. United States ex rel. Bergdoll v. Drum, 107 F.2d 897, 129 A.L.R. 1165 (C.C.A. 2, 1939), certiorari denied 310 U.S. 648, 60 S.Ct. 1098, 84 L.Ed. 1414; United States ex rel. Innes v. Hiatt, Warden, etc., 141 F.2d 664 (C.C.A. 3, 1944), affirming 50 F.Supp. 756 (D.C.M.D.Pa.1943); State ex rel. Eyer v. Warden, etc., 190 Md. 767, 59 A.2d 745 (C.C.A.Md.1948). And there is little doubt of the power of the court in the exercise of its discretion to protect this privileged writ of freedom from abusive use by the filing of successive and repetitious applications therefor by a pertinacious relator. In re Tremper,126 N.J.Eq. 276, 8 A.2d 279 (Ch.1939); United States ex rel. McCann v. Thompson, Warden, etc., 144 F.2d 604, 156 A.L.R. 240 (C.C.A. 2, 1944); United States ex rel. Gregoire v. Watkins, 164 F.2d 137 (C.C.A. 2, 1947).

Aside from these rules, and having in mind the grounds of the sporadic applications made by one or the other of these petitioners, the nature of the remedy sought thereby or available to them, the scope of the inquiry made, and the general fabric of such litigations, I do not see that a conclusive estoppel could result. For example, Sabongy, in his 1948 application to the sentencing judge, asked that court to find as a ground for relief from sentence that a fraud had been perpetrated on the court, as indicated by Judge Flannagan in his opinion filed June 21, 1948: 'The principal ground upon which the defendant seeks to have the effect of his said action set aside is that such action was obtained by what he claims to be in fact, or in effect, a fraud upon the Court or upon the defendant.'

The enormity of this proposed determination is a far cry from his present contention that he lacked the representation of counsel because lulled into believing that he would receive a concurrent sentence and that this situation may well have arisen by mere inadvertence on the part of the prosecuting official.

As to one or more of the other applications referred to, while the instant court is required to determine issues of fact involved therein, there seems on the whole a general lack of that cohesion and exactitude in the nature of those proceedings, upon which should rest any theory of estoppel akin to Res judicata. For example, in the 1950 motion by Sabongy he sought a determination that his sentence was illegal; now he asks the present court to determine what that sentence was in fact and whether it has been served. In that respect, too, it is noticed that the maximum term of the Bergen County sentences of these prisoners expired, as to Torzillo, on September 17, 1950, and as to Sabongy, on May 8, 1951, and hence at the time of their mentioned applications, there was no relief by way of Habeas corpus available to them, for the Bergen sentences would bar any claim, at that time, to immediate release. Hence they could not have litigated, at least in this form, the claims which they now present, which, of course, removes the stigma of laches referred to in the adverse opinion of Judge Flannagan in Sabongy's 1948 proceeding. See State v. Ballard, 15 N.J.Super. 417, 83 A.2d 539 (App.Div.1951).

On the whole, therefore, I am convinced that the instant court is permitted and obliged to reach independent determinations of fact relevant to the issues presently raised.

As to the claim that they were deprived of the assistance of counsel in the constitutional sense, the record before me establishes and I determine the facts to be as follows:

Early in 1941, these petitioners were apprehended in Bergen County and prosecuted for certain robberies, which were apparently a part of a series, including an equivalent offense in Essex County and one or more similar offenses in Passaic County. They were interrogated and confessed these crimes,...