Gladstone, Application of
| Citation | 80 A.2d 139,12 N.J.Super. 589 |
| Parties | Application of GLADSTONE et al. |
| Decision Date | 26 March 1951 |
| Court | New Jersey County Court |
John D. Collins, Morris County Prosecutor, Morristown, for the state.
Bertram M. Berla, Dover, for petitioners.
LANCE, J.C.C.
John F. Gladstone and Douglas E. Gladstone, herein called the petitioners, are now confined in the New Jersey State Prison at Trenton in Mercer County. They have filed separate applications alleging among other things that their sentences imposed by the Morris County Court were illegal, and requesting the court to correct them. Counsel was subsequently assigned to represent them as indigents. Both cases have been argued together as common questions of law appear.
John F. Gladstone has designated his moving papers as an application for a writ of habeas corpus. This petitioner sought a writ of habeas corpus out of the Morris County Court some months ago. His application was dismissed on the ground that the Morris County Court had no jurisdiction to grant a writ of habeas corpus where the prisoner is confined in Mercer County. In re Gladstone, 9 N.J.Super. 508, 75 A.2d 641 (Cty.Ct.1950).
A mere reading of labels would compel this court to dismiss the present application for want of jurisdiction. However, one of the matters raised by the petitioner involves the imposition of a sentence alleged to be illegal.
It is not unusual for those incarcerated in penal institutions to file applications which combine in a single petition at least the following three types of matters: complaints as to trial errors, matters determinable by habeas corpus, and requests for the correction of illegal sentence. Our courts have developed different procedures for the granting of relief in these situations. The differences are, however, more than procedural. For example, the passage of time will bar relief for trial errors; not so in habeas corpus proceedings and applications to correct illegal sentences.
Different remedies must frequently be sought in different forums. The Morris County Court cannot act in habeas corpus proceedings where the prisoner was originally sentenced from Morris County but now detained in Mercer County. Nor can the Mercer County Court correct an illegal sentence of the Morris County Court even though the prisoner is now confined in Mercer County.
As confusing as these differences must seem at times to the prisoner, sound reasons exist for the distinctions. However, it is incumbent upon a court in this class of case (where the prisoner himself frequently prepares his application without benefit of counsel) to grant relief if the court has jurisdiction and the allegations of the moving papers are properly supported by proof, even though the application may bear an improper designation.
John F. Gladstone was born in 1925. He was committed to the New Jersey Reformatory at Annandale on April 23, 1942 after the entry of a plea of guilty to a charge for carnal abuse. Subsequent to his parole from this institution, he was charged with carrying concealed weapons and was committed for a second time by the Morris County Court to the New Jersey Reformatory at Annandale on December 20, 1946 after entry of a guilty plea. It is to be noted that the prisoner was sent to Annandale by a direct commitment, rather than being returned to this institution for a violation of parole. On February 21, 1947, he was transferred from Annandale to the reformatory at Rahway, and on October 28, 1948, he was transferred to the New Jersey State Prison at Trenton, where he is now detained.
Petitioner argues that no person can be twice committed to the reformatory at Annandale, and that since his second sentence there was illegal, the transfers to Rahway and the State Prison by the Commissioner of Institutions and Agencies of the State of New Jersey were likewise illegal.
Rule 2:7--13 provides that 'The court may correct an illegal sentence at any time.' R.S. 30:4--15, N.J.S.A., provides in part: '* * * but no person who has been previously convicted of a crime punishable by imprisonment in the state prison, and sentenced to a prison, reformatory or penitentiary may be sentenced to the reformatory at Annandale'.
The crime of carnal abuse was punishable by imprisonment in the State Prison. R.S. 2:163--1, N.J.S.A. Petitioner is correct in his claim that his second sentence to Annandale was improper.
In a loose sense, a commitment arising out of trial error is illegal, as is a sentence where the petitioner is successful in habeas corpus proceedings. However, for the purpose of Rule 2:7--13, an illegal sentence bears a limited meaning. In McIntosh v. Pescor, 175 F.2d 95, 97 (6th Cir. 1949) it was said 'the illegality referred to is apparently one disclosed by the record, such as a sentence in excess of the statutory provision, or in some other way contrary to the applicable statute.' One type of illegal sentence cognizable by Rule 2:7--13, appeared in State v. Weeks, 5 N.J.Super. 505, 68 A.2d 426 (1949), where the Somerset County Court declared illegal a sentence on the ground it was of longer duration than the statute permitted. Its action was affirmed in 6 N.J.Super. 395, 71 A.2d 644 (App.Div.1950).
A sentence to a type of institution not permitted by statute, under the circumstances of the instant case, appears to be a second type of sentence subject to correction under Rule 2:7--13.
The court will entertain an order vacating the second sentence to the reformatory at Annandale. The transfers to Rahway and the State Prison can have no higher standing than the second sentence to Annandale from which they were derived. A new sentence will be imposed, at which time credit will be allowed for such period as petitioner has served on the second Annandale sentence, including time spent thereafter at Rahway and the State Prison.
Douglas E. Gladstone was born in 1924. He was committed to the New Jersey Reformatory at Rahway on April 15, 1943 after the entry of a plea of guilty to a charge of atrocious assault and battery. Subsequent to his release from this institution he was charged with carrying concealed weapons and was committed by the Morris County Court for a second time to the New Jersey Reformatory at Rahway on December 20, 1946 after entry of a non vult plea. On October 28, 1948 he was transferred from Rahway to the New Jersey State Prison where he is now detained.
Petitioner now argues two points. He claims no person can be twice committed to the reformatory at Rahway under the statute, and he attacks the legality of his transfer to the New Jersey State Prison.
In reference to sentences to the New Jersey Reformatory at Rahway, sec. 316 of L.1918, c. 147 (R.S. 30:4--147, N.J.S.A.) states 'Any male person between the ages of sixteen and thirty years, who has been convicted of a crime punishable by imprisonment in the state prison, who has not been previously sentenced to a state prison or a penitentiary in this or any other state, may be committed to the reformatory.'
Petitioner concedes that nothing therein...
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...ground 266 App.Div. 105, 41 N.Y.S.2d 646 (4th Dep't 1943), affirmed 292 N.Y. 528, 54 N.E.2d 379 (Ct.App.1944); In re Gladstone, 12 N.J.Super. 589, 592, 80 A.2d 139 (Cty.Ct.1951). Cf. State v. Ballard, 15 N.J.Super. 417, 83 A.2d 539, (App.Div.1951) affirmed 9 N.J. 402, 88 A.2d 537 The histor......
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