State v. Booker

• Citation: 212 A.2d 849,88 N.J.Super. 510
• Decision Date: 01 July 1965
• Docket Number: No. A--50,A--50
• Parties: STATE of New Jersey, Plaintiff-Respondent, v. Richard BOOKER, Defendant-Appellant.
• Court: New Jersey Superior Court – Appellate Division

Page 510

88 N.J.Super. 510

212 A.2d 849

STATE of New Jersey, Plaintiff-Respondent, v. Richard BOOKER, Defendant-Appellant.

No. A--50.

Superior Court of New Jersey Appellate Division.

Argued June 1, 1965.

Decided July 1, 1965.

Herbert C. Klein, Passaic, for appellant (Philip S. Epstein, Passaic, of counsel and on the brief, appellant pro se on the supplementary brief).

Archibald Kreiger, Asst. Pros., for respondent (John G. Thevos, Passaic County Pros., attorney).

Before Judges GOLDMANN, SULLIVAN and LABRECQUE.

The opinion of the court was delivered by

LABRECQUE, J.A.D.

Defendant appeals from an order of the Law Division denying his petition for post-conviction relief.

On February 6, 1963 the grand jury of Passaic County returned two indictments against defendant charging unlawful possession and sale of narcotics (heroin). The first indictment (in two counts) charged unlawful sales on November 28 and December 31, 1962. The second contained a single count alleging unlawful possession on January 12, 1963. Defendant was arraigned on February 15, 1963 and entered pleas of not guilty to both indictments.

Peter N. Perretti, Esquire, was assigned to represent defendant. He conferred with him in the Passaic County jail and conducted an investigation based upon information furnished by defendant. As the result of his investigation he recommended that defendant withdraw his prior plea to the first count of the indictment charging sale and enter a plea of guilty thereto. Defendant thereupon did so and completed and executed Form 13A. The other pending charges were dismissed on motion of the prosecutor.

Defendant came up for sentence on April 19, 1963. His record indicated a prior conviction for illegal sale of narcotics, for which he had been sentenced to from 8 to 12 years in State Prison. This was taken into consideration by the judge in sentencing him to his present term of from 8 to 10 years in State Prison.

On February 18, 1964 defendant submitted an application to be permitted to retract his previous plea of guilty. Supporting affidavits by himself and his brother, George Booker, were annexed. He thereafter completed and filed an application for post-conviction relief under R.R. 3:10A. In substance, he charged that he was not guilty and his plea of guilty had been induced by coercion and misrepresentation on the part of his assigned counsel.

A hearing on his application was held on May 28, 1964. Defendant appeared Pro se and testified at length. Mr. Perretti, a member of the bar since 1919, also testified and submitted to a lengthy cross-examination by defendant. The judge--who had also been the sentencing judge--found no reason to disturb the conviction. Defendant thereupon filed this appeal, and present counsel was assigned to represent him.

The court here rejected as unfounded defendant's attacks upon the presentation of his case by his assigned counsel.

We turn, finally, to defendant's criticism of the procedure which was followed in imposing sentence upon him. In essence, he contends that he should have been sentenced as a first offender, since the indictment made no mention of any prior conviction. As noted, he had been convicted in 1953, after a jury trial, for the unlawful sale of narcotics, and had been sentenced to a term of from 8 to 12 years in State Prison. The sentence here under appeal was that 'You be sentenced to from 8 to 10 years in State Prison As a second offender for the sale of narcotics.' While this point was not raised at the hearing, we consider it as plain error cognizable under R.R. 1:5--1(a).

Defendant was sentenced under N.J.S.A. 24:18--47, which became effective April 24, 1952, and provided, in part, as follows:

'Any person as in this chapter defined

(b) Who violates any provision hereof shall be guilty of a high misdemeanor and shall be punished as follows:

(1) for each first offense, by a fine not exceeding two thousand dollars ($2,000.00) and by imprisonment, with hard labor, for a term not less than two years nor more than fifteen years;

(2) for each second offense, by a fine not exceeding five thousand dollars ($5,000.00) and by imprisonment, with hard labor, for a term of not less than five years nor more than twenty-five years.'

It is to be noted that the sentence actually imposed was not in excess of the maximum prescribed for a first offender.

The Uniform Narcotic Drug Law, originally enacted as chapter 186 of the Laws of 1933, was carried over into the Revised Statutes as R.S. 24:18--1 et seq., N.J.S.A. Section 47 thereof designated any violation of the chapter as a high misdemeanor, the punishment for which would then have been a maximum of seven years' imprisonment. In 1951, and thereafter in 1952, section 47 was amended to provide the penalties hereinabove referred to.

Stripped to its essentials, it is defendant's contention that due process required that, where he was subject to being sentenced to a term greater than he might have received but for his prior conviction, he had the right to be heard thereon, citing State v. Lutz, 135 N.J.L. 603, 52 A.2d 773 (Sup.Ct.1947); Worbetz v. Goodman, 47 N.J.Super. 391, 136 A.2d 1 (App.Div.1957).

We are in accord that defendant's sentence must be set aside and the case remanded for resentencing.

In State v. Lutz, supra, it was held:

'* * * Where a repetition of criminal action renders the accused liable to different and greater punishment, the subsequent offense is treated as a first offense, unless the earlier crimes are specified in the indictment and proved on the trial. State v. Garton, 102 N.J.L. 318, 133 A. 403; Weeks v. State, 101 N.J.L. 15, 127 A. 345; Graham v. State of West Virginia, 224 U.S. 616, 32 S.Ct. 583, 56 L.Ed. 917. The procedure must accord with the convict's fundamental right to be heard on notice as to his liability to the heavier penalty which may be inflicted only upon persistent offenders of the statutory category. Commonwealth of Pennsylvania ex rel. Sullivan v. Ashe, 302 U.S. 51, 58 S.Ct. 59, 82 L.Ed. 43. The usual practice is to allege the prior convictions in the indictment, and to submit the factual issue thereby arising to the jury; and this course is obligatory Save where the statute makes other adequate provision for the inquiry, which is not the case here. The procedure has its roots in the fundamental common-law principle that in penal proceedings the accused shall be clearly informed of the charge which he is called upon to meet; and this of necessity includes a specification of the elements...