Jenkins v. State

• Decision Date: 05 August 1959
• Docket Number: No. A--271,A--271
• Citation: 154 A.2d 29,57 N.J.Super. 93
• Parties: Benny JENKINS, Petitioner-Appellant, v. STATE of New Jersey, Respondent-Respondent.
• Court: New Jersey Superior Court — Appellate Division

Page 93

57 N.J.Super. 93

154 A.2d 29

Benny JENKINS, Petitioner-Appellant, v. STATE of New Jersey, Respondent-Respondent.

No. A--271.

Superior Court of New Jersey

Appellate Division.

Argued April 27, 1959.

Decided Aug. 5, 1959.

Samuel M. Koenigsberg, Newark, argued the cause for appellant (Hymen B. Mintz, Newark, assigned counsel attorney).

C. William Caruso, Sp. Legal Asst. Prosecutor, Newark, argued the cause for respondent (Brendan T. Byrne, Deputy Atty. Gen., and Acting Prosecutor, attorney; C. William Caruso on the brief).

Before Judges GOLDMANN, FREUND and HANEMAN.

The opinion of the court was delivered by

GOLDMANN, S.J.A.D.

Jenkins, through counsel assigned by this court, appeals In forma pauperis from a County Court order denying his application for a writ of Habeas corpus.

Jenkins was arrested on charges of armed robbery, theft of an automobile and carrying a concealed weapon, and brought before the Newark Municipal Court where he executed a written waiver of his right to indictment and trial by jury. On May 2, 1955 he was arraigned before the Essex County Court on 11 accusations: in 6 he alone was charged with armed robbery; in 3 he and one Young were jointly charged with armed robbery; and in the 2 others he was charged with automobile theft and carrying a concealed weapon. The accusations covered a series of crimes crowded into the two-month period of February 13 to April 13, 1955, on which date Jenkins was taken into custody.

The arraignment proceedings began with the court crier making the following inquiry:

'Court Crier Michael J. Doyle: Do you have a lawyer, Mr. Jenkins?

'Mr. Jenkins: No, sir.

'Mr. Doyle: Are you financially able to employ one?

'Mr. Jenkins: No.

'Mr. Doyle: Do you wish the court to assign a lawyer before you plead?

'Mr. Jenkins: No.'

The judge asked Jenkins what plea he intended to enter, and he answered 'Guilty.' The court then asked one of the attorneys present, a respected member of the New Jersey Bar, if he would consult with Jenkins. When he indicated he was willing, the court asked him if he would also speak with the co-defendant, Young. After he had done so, all three appeared before the judge and the attorney represented that he had reviewed with Jenkins all 11 accusations, that the prisoner understood precisely what his constitutional rights were and that he nonetheless desired to plead guilty. The attorney also stated that he had explained the waiver of indictment and trial by jury which Jenkins had signed, that the prisoner understood the waiver, that he was willing to proceed without a jury and wished to waive the reading of the accusations. After the assistant prosecutor had ascertained from Jenkins that he had read the accusations and had them read to him, that he wanted to plead guilty to each of them, and that in pleading guilty he was admitting the truth of the charges, the court accepted the pleas and fixed May 11, 1955 for sentence.

On sentencing day Jenkins was brought before another judge of the County Court who proceeded to review with him the substance of each accusation and his pleas of guilty. The following then ensued:

'The Court: Is there anything you want to say before I impose sentence upon you?

'Defendant Jenkins: No.

'The Court: You have no previous record?

'Defendant Jenkins: No.'

The court imposed State Prison sentences on Jenkins of 5--10, 5--10 and 3--5 years, respectively, on the three accusations charging him and Young with armed robbery, and 5--10 years on the charge of carrying a concealed weapon. These terms were to be served consecutively, and totaled not less than 18 nor more than 35 years. Sentence on the remaining seven accusations against Jenkins were suspended. The County Court judge then said:

'* * * It does not come easy to a judge to sentence a youngster eighteen years old to a term of eighteen to thirty-five years. Although the age of defendant is to be taken into consideration in certain circumstances, when we deal with a series of offenses as serious and as numerous as yours the only break that a judge can give you is not to give you the maximum on each.

'On each of these offenses I could have added up a total of at least twice, almost three times, what I gave you. When I only give you eighteen to thirty-five years I give you the benefit of every break. There is no justification for what you did. And I find absolutely nothing in what you did and the way you did it which bespeaks anything less than the sentence I gave you.'

The foregoing constitutes substantially all that transpired at the sentencing. Although Jenkins had had the benefit of consulting with an attorney at the time of his plea, counsel was under no continuing responsibility to advise him thereafter. Jenkins was not represented when he appeared for sentence; the sentencing judge did not advise him of his rights in this respect, nor did he inquire whether Jenkins desired to have or to waive the assistance of counsel.

In November 1957 Jenkins made application to the Essex County assignment judge for a writ of Habeas corpus. The matter was referred to a County Court judge--not the one who had taken the plea nor the one who had imposed sentence- --for disposition. In his application defendant claimed that (1) he could not have intelligently waived indictment because he did not have the benefit of counsel at the time and because of his age and lack of experience with the law; (2) he pleaded guilty because officers of the robbery squad, whom he did not know by name but could identify in a 'lineup,' promised that he would receive a five-year indeterminate reformatory sentence if he would admit the crimes and enter a plea thereto; (3) his confession was coerced by the investigating officers; (4) he was held incommunicado until his confession had been obtained; (5) he was incarcerated for ten days before being arraigned; (6) he was denied the timely assistance of counsel, and did not have the benefit of effective counsel because his consultation with the designated attorney lasted only five to ten minutes; (7) he was unable intelligently, by reason of lack of schooling, age and mental makeup, validly to waive indictment, plead and properly answer at the time of sentence; (8) the sentences imposed were unusually severe in view of these circumstances and the fact that he had no prior record; and (9) he did not have the benefit of counsel at the time of sentence, nor was he advised of his right to counsel.

Jenkins was assigned counsel to represent him on the application for the writ. Prior to the hearing he was examined by members of the staff of the State Hospital, and their reports were introduced in evidence by consent. Assigned counsel had also been granted leave to have his client examined by physicians of counsel's own choosing. This was done by two residents in psychiatry at the Yeshiva University, New York City. However, because the State Hospital staff reports were not concluded until very shortly before the hearing, the formal report of the residents in psychiatry was not ready at the time of the hearing, and the county judge refused to permit it to be filed later. Counsel had requested this independent examination for the sole purpose of aiding the court in determining whether the sentences imposed were appropriate in Jenkins' circumstances, and not to establish his mental incapacity to commit the crimes or intelligently to comprehend his waiver of indictment and trial by jury and his plea.

At the hearing on the application for the writ the principal point urged on Jenkins' behalf was that his lack of counsel at sentencing and the failure of the trial judge to inform him of his right to counsel was prejudicial and rendered the sentences nugatory. It was claimed that had Jenkins then had such legal assistance, counsel might have developed some of the personality deficiencies with which the prisoner was afflicted and called to the court's attention significant background features that would have secured his client a more favorable sentence. Although counsel reserved the right to argue the other grounds alleged in the application for the writ, the hearing was exclusively concerned with the issue of the right to counsel at the sentence. No testimony was taken. The county judge limited his consideration to that single contention and denied the writ.

On this appeal Jenkins urges six main points. The first three involve his constitutional right to counsel at the sentencing, and these include as sub-points the arguments that he did not waive the right and that failure to communicate to the court the promise which induced his pleas of guilty rendered the sentence invalid in the absence of counsel. The fourth point is that Jenkins was entitled at the time of sentencing to an opportunity to make a statement in his own behalf and to present any information in mitigation of punishment. The fifth is that the County Court judge, in denying the writ, failed to pass upon any of the allegations of the Habeas corpus petition other than lack of counsel at the time of sentence. The final contention is that the court should have admitted in evidence and considered the report of the prisoner's own physicians.

At the time of sentence Jenkins was within a week of turning 19. The State Hospital reports considered on the application for the writ were based on a 'rapid evaluation' (the phrase used by the clinical director) in the following areas: (1) neurological--no evidence of organic disease of the nervous system; (2) psychological--patient low in the average range of the intelligence scale, this to be considered against the background of defective verbal abilities and high average psychomotor skills; difficulty in reading and spelling, and inability adequately to explain sentences which he appeared to understand (a pattern typically found in individuals who show long-standing, generalized cerebral disfunctioning in the left hemisphere); patient a somewhat...