Janiec v. State

• Citation: 87 N.J.Super. 76,208 A.2d 159
• Decision Date: 12 March 1965
• Docket Number: No. A--144,A--144
• Parties: Lawrence JANIEC, Jr., Petitioner-Respondent, v. STATE of New Jersey, Respondent-Appellant.
• Court: New Jersey Superior Court — Appellate Division

Page 76

87 N.J.Super. 76

208 A.2d 159

Lawrence JANIEC, Jr., Petitioner-Respondent, v. STATE of New Jersey, Respondent-Appellant.

No. A--144.

Superior Court of New Jersey

Appellate Division.

Argued Feb. 23, 1965.

Decided March 12, 1965.

Carlos Peay, Jr., Legal Asst., for appellant (Guy W. Calissi, Bergen County Prosecutor, attorney).

Rogert W. Breslin, Sr., Hackensack, for respondent (Roger W. Breslin, Jr., Hackensack, on the brief).

Before Judges CONFORD, KILKENNY and LEWIS.

The opinion of the court was delivered by

CONFORD, S.J.A.D.

The State appeals from judgments entered October 1, 1964 in post-conviction proceedings brought by petitioner pursuant to R.R. 3:10A (Post-Conviction Relief) vacating convictions entered against him in 1933 on pleas of guilt of robbery. The indictments were returned by the Bergen County grand jury, apparently in early 1932. The judgments in favor of petitioner were based upon findings by the trial court that when he pleaded guilty in 1932 and was sentenced in 1933 he was an indigent, 20 years of age, and was neither represented by counsel nor informed that he could have counsel assigned without cost. Janiec v. State, 85 N.J.Super. 68, 203 A.2d 727 (Law Div. 1964).

The cited Law Division opinion discusses the law relative to the case, which need not be discussed here, since we are satisfied, and the State concedes, that if the factual determinations made by the trial court are justified the legal relief granted was proper under controlling decisions of the United States Supreme Court cited by the Law Division. See also State v. Johnson, 43 N.J. 572, 206 A.2d 737 (1965).

But the State argues that the findings of the trial court were not warranted under the proofs adduced and should be reversed; or, in the alternative, that the matter should be remanded to the trial court for reconsideration in view of misapprehension by that court of the opinion of this court in a prior post-conviction proceeding brought by petitioner, Janiec v. McCorkle, 52 N.J.Super. 1, 144 A.2d 561 (App.Div.1958), and since there is additional evidence relative to the question as to whether petitioner was in fact represented by counsel in connection with the 1933 convictions.

Since the entry of the judgments in this matter petitioner has procured the vacation by the Monmouth County Court of a life sentence imposed upon him in 1951 by that court as a four-time offender pursuant to the Habitual Offender Act, N.J.S. 2A:85--12, N.J.S.A. The relief thereby granted was based upon the vacation of the Bergen County convictions in the present matter. That action is also under appeal to this court by the State. It is thus apparent that a correct determination of the instant proceeding is of great importance to both the petitioner and the State.

The filed opinion of the trial court in the present case does not discuss the evidence adduced before it relative to the factual issues. However, the court made oral findings upon the completion of the proofs at the hearing conducted in the matter. These were as follows 'I will find as a fact that the burden is upon the defendant Janiec to prove that he was not represented by counsel at the time of his pleading and at the time of the imposition of sentence by Judge Seufert.

I find as a fact, taking into consideration the lack of evidence on behalf of the State other than the general statement by David P. Kuehne, attorney, that he has no recollection, and his statement as to what occurred in 1950 and further taking into consideration the statement of Judge Hall, now Justice Hall, as stated in Janiec v. McCorkle, 52 New Jersey Super. page 1 (144 A.2d 561), and the Appellate Division at that time was composed of Stanton, Hall and Gaulkin, and in that case a resume of defendant's activities was succinctly detailed, and in that decision Judge Hall stated--and this is very interesting:

'Appellant's claim of violation of constitutional rights said to void the conviction is based on the alleged failure to assign counsel to defend him or to advise him of his right to counsel. Since the event took place prior to 1948, the question is governed by our law in effect at the time of the conviction as well, of course, as by the effect of the Fourteenth Amendment. The basic principles are succinctly stated in the leading case of State v. Cynkowski, supra (10 N.J. 571, 92 A.2d 782). Although the attack in that instance was by writ of Habeas corpus on the validity of a conviction under which the defendant was then confined following a plea of Non vult, the rules there summarized are no less pertinent to our situation.'

Then follow the rules.

I find as a fact that on both occasions of the plea and the sentence the defendant was not, had not, been assigned counsel to defend him or, no one, either the court or anyone else, had advised him of his right to counsel, and as stated by our Supreme Court in Garofone, that he was entitled to 'assigned counsel without costs."

In the 1958 McCorkle case therein alluded to, and cited above, Janiec had brought a Habeas corpus proceeding for the purpose of vacating the First of the four convictions supporting the Monmouth County life sentence--one resulting from a 1930 trial of petitioner in Passaic County for breaking and entering with intent to steal--and if successful in relation thereto, to have the life sentence set aside as a consequence. There, too, petitioner had asserted that he was not afforded counsel in connection with the Passaic conviction or advised of his right as an indigent to have counsel assigned. (He did not at that time, although then represented by counsel, attack the Bergen County convictions on the same ground.) This court, in an opinion by Judge (now Justice) Hall, affirmed the denial of Habeas corpus relief by the trial court on several grounds, but essentially for the reason that under the state of the federal constitutional law as it then stood, and of our state law as of 1930, the failure to provide an indigent criminal defendant with free counsel or to apprise him of his right thereto, would not, without something more in the circumstances tantamount to a denial of fundamental fairness, justify vacating a conviction, especially after as long a lapse of time as there appeared. ¹

But the significance of the enigmatic allusion to McCorkle by the trial court in its oral findings quoted above becomes clearer in the light of a colloquy with counsel for the State during the hearing:

'The Court: Do you have a record of Mr. Janiec being represented by counsel at the time of the pleading in this case?

Mr. Peay: I have a document which I will introduce to show, or tend to show, that he was represented by counsel.

The Court: Are you stating to the court that Mr. Janiec was represented by counsel at the time that he pleaded guilty and at the time that he was sentenced, and that counsel was representing him in open court; is that my understanding, Mr. Peay?

Mr. Peay: I can only say that I have records that tend to show that he was assigned counsel and counsel represented him in all stages.

The Court: All right; fine.

I am just wondering what Judge Hall, now Justice Hall, meant in Janiec v. McCorkle, 52 New Jersey Super. (1, 144 A.2d 561), when he describes the activities before him and he states that he was not represented by counsel. That is what I mean.

You agree with what Judge Hall says?

Mr. Peay: I don't have the case before me.

The Court: Here. I will show it to you.

Shall we proceed?

Do you wish a chance to glance at that--just the first couple of pages where Justice Hall gives a resume of the matter.

Mr. Peay: Yes.

The Court: Does Judge Hall state that he was not represented?

Mr. Peay: Yes.

The Court: I just wondered.'

The apparent concession to the court by the prosecutor's representative that the McCorkle opinion finds that Janiec was not represented by counsel when he pleaded in the Bergen County proceedings in 1932 is not justified. Nothing in the opinion so intimates, nor was that issue even raised in that proceeding. In the light of the present record we consequently entertain some misgivings as to whether the trial court here was influenced by a mistaken impression of the purport of the McCorkle opinion in the respect noted in arriving at its ultimate factual finding in favor of petitioner...