State v. Culver

• Decision Date: 26 April 1954
• Docket Number: A--272
• Citation: 105 A.2d 429,30 N.J.Super. 561
• Parties: STATE v. CULVER. No . Appellate Division. Considered
• Court: New Jersey Superior Court — Appellate Division

Page 561

30 N.J.Super. 561

105 A.2d 429

STATE v. CULVER.

No A--272.

Superior Court of New Jersey Appellate Division.

Considered April 26, 1954.

Decided May 21, 1954.

William E. Ozzard, Asst. County Pros., Somerville, on the brief for respondent (Leon Gerofsky, County Pros., attorney, Somerville).

James Culver, Pro se.

Before Judges EASTWOOD, JAYNE and SMALLEY.

The opinion of the court was delivered by

EASTWOOD, S.J.A.D.

The application of James Culver for the issuance of a writ of Habeas corpus to review the legality of his confinement in State Prison was denied and he appeals from the ensuing judgment.

On December 23, 1947 the appellant, having entered guilty pleas to three separate allegations each charging in one count armed robbery and in the second count that the defendant had been previously convicted of three high misdemeanors, was sentenced to a term of life imprisonment in each case. The sentences imposed on two of the allegations were to run concurrently with that imposed upon Allegation No. 3577.

On November 17, 1953 appellant presented an application to the Law Division of this Court for a writ of Habeas corpus, alleging that the life imprisonment sentences were illegal in that (1) his pleas of guilty were entered without the aid or advice of counsel; (2) that he signed the allegations upon the advice of a county official on the detective's staff; (3) that one of his three prior convictions was not a high misdemeanor; and (4), that he had not been previously convicted of high misdemeanors on three separate occasions.

The judge of the County Court, to whom the matter was referred by the assignment judge, refused to issue the writ on the ground that no basis for the relief prayed for by the petition had been shown.

The only question raised by this appeal requiring consideration is that concerning the imposition of the sentences of life imprisonment. Actually, this contention of the appellant, in effect, asserts that the sentences were illegal and should be corrected. Such a contention is not reviewable by Habeas corpus. In re Kershner, 9 N.J. 471, 88 A.2d 849 (1952), certiorari denied Kershner v. State of New Jersey, 344 U.S. 844, 73 S.Ct. 59, 97 L.Ed. 656; State v. Moore, 21 N.J.Super. 419, 91 A.2d 342 (App.Div.1952). An application for correction of an illegal or improper sentence under R.R. 3:7--15 may be made to the sentencing court at any time. In the instant case the County Court, adverting to the rule that an illegal sentence may not be reviewed by Habeas corpus, decided, however, to treat the application as one for correction of sentence, and held that the sentences were legal and called for no correction. Under the circumstances, we will proceed to a consideration and determination of the issue.

At the outset, it appears from the State's brief as well as from the County Court's opinion that the three prior convictions charged in each of the accusations were unquestionably high misdemeanors, to wit: July 15, 1938, the defendant was convicted in Middlesex County of breaking, entering and larceny; on January 26, 1940, in the same county, he was convicted of grand larceny and receiving; on January 26, 1940, in the same county, he was further convicted of grand larceny and receiving, all high misdemeanors.

It is the appellant's further contention that two of the accusations were consolidated for trial, which trial was held on the same date, January 26, 1940, and, therefore, the resulting convictions must be considered as one, which, with the other conviction in 1938, made a total of only two prior separate occasions on which he had been convicted of high misdemeanors. Accordingly, so Culver argues when he entered pleas of guilty in 1947 to the three allegations in Somerset County, he had not and could not be convicted as an habitual criminal, and consequently the sentences of life imprisonment were invalid.

Attention must be first directed to the fact that in the present case the life imprisonment sentences were imposed upon the appellant subsequent to the 1940 amendment (L.1940, c. 219 p. 889, sec. 3), R.S. 2:103--10, and prior to the 1951 amendment, now N.J.S. 2A:85--12, whereas in State v. McCall, 27 N.J.Super. 157, 99 A.2d 153 (App.Div.1953); reversed 14 N.J. 538, 103 A.2d 376 (1954), hereinafter discussed, the judgment was entered subsequent to the 1951 amendment, to wit: in December 1952. The 1940 amendment reads as follows:

'Any person who on three separate occasions has been convicted of high misdemeanors in this State, or of crimes under the laws of the United States or of any other State or country, which crimes would be high misdemeanors if committed in this State, or whose convictions for such offenses in this State or under the laws of the United States or of any other State or country shall total three or more, and who shall thereafter be convicted of a subsequent offense enumerated in this subtitle, is hereby declared to be an habitual criminal, and the court in which such fourth or subsequent conviction is had, shall impose a life sentence in the State Prison upon the person so convicted.'

In the 1951 amendment, in addition to the change in the introductory line of the section, the Legislature added the following paragraph:

'Conviction of 2 or more of such crimes or high misdemeanors charged in 1 indictment or accusation, or in 2 or more indictments or accusations consolidated for trial shall be deemed to be only 1 conviction.'

An examination of the reported decisions of our courts following the 1940 amendment and prior to the adoption of the 1951 amendment, discloses that our courts did not specifically construe the words 'on three separate occasions' as used in the 1940 amendment. See State v. Lutz, 135 N.J.L. 603, 52 A.2d 773 (Sup.Ct.1947); State v. Burns, 136 N.J.L. 601, 57 A.2d (E. & A.1948); State v. Janiec, 9 N.J.Super. 29, 74 A.2d 605 (App.Div.1950), affirmed 6 N.J. 608, 80 A.2d 94 (1951), certiorari denied, 341 U.S. 955, 71 S.Ct. 1007, 95 L.Ed. 1376; In re Zee, 13 N.J.Super. 312, 80 A.2d 480 (Cty.Ct.1951), affirmed State v. Zee, 16 N.J.Super. 171, 84 A.2d 29 (App.Div.1951), certiorari denied, 343 U.S. 931, 72 S.Ct. 766, 96 L.Ed. 1340; State v. McBride, 15 N.J.Super. 436, 83 A.2d 627 (App.Div.1951); In re Caruso, 10 N.J. 184, 89 A.2d 661 (1952). The first time the provision was directly considered and decided appears to have been by the Appellate Division in the McCall case, supra. On appeal to the Supreme Court, Mr. Justice Burling, speaking for the court, stated that the 1940 amendment had been considered in In re Zee, supra; that the State (in the McCall case) contended that 'In re Zee is controlling and requires the construction of N.J.S 2A:85--12, N.J.S.A., supra, to the effect that each separate prior conviction for each separate prior offense is a 'conviction' on a separate occasion.' (14 N.J. 538, 103 A.2d 380.) Justice Burling stated further that neither In re Zee, supra, nor In re Caruso, supra, was this question specifically considered, although the court had approved the Zee case (In re Caruso, supra), holding that the philosophy inherent in R.S. 2:103--10, as amended in 1940, supra, was expressed as enhancement of the penalty for subsequent offenses, taking into consideration the persistence of the defendant in his criminal course. Although the Supreme Court's approval of the Zee case occurred after the enactment of the 1951 amendment (December 1951), Mr. Justice Burling stated further, 'it is a certainty that the Legislature was cognizant of Judge Richard J. Hughes' opinion therein (filed April 19, 1951) and of the Appellate Division affirmance (October 9, 1951)'; and that 'It is well settled that in construing a statute it is to be assumed that the Legislatue was and is thoroughly conversant with its own legislation and the judicial construction thereon'; that:

'The Legislature could place emphasis on service of prior sentences, as in the 1927 act, or solely on the commission of separate subsequent offenses (and conviction thereof) giving the criminal an opportunity to reconsider the error of his ways after first, second and third convictions.

'The 1951 amendment hereinabove adverted to changed the introductory line of the section (now N.J.S 2A:85--12, N.J.S.A., supra). This would have meant little in itself. At the same time, however, the Legislature added the following paragraph:

"Conviction of 2 or more of such crimes or high misdemeanors charged in 1 indictment or accusation, or in 2 or more indictments or accusations consolidated for trial shall be deemed to be only 1 conviction.'

'The crux of this case is whether the words 'consolidated for trial' as used in N.J.S. 2A:85--12, N.J.S.A., supra, shall be given their technical meaning or whether the Legislature intended a more general meaning in the use thereof'; that '* * * the convictions on July 29, 1943 were of allegations which were heard consecutively and upon conviction of which the defendant had imposed upon him concurrent sentences. The same situation obtained concerning the April 26, 1945 convictions. In both instances therefore there was a 'consolidation for trial' within the statutory provision. Each group of convictions therefore constituted one 'conviction' on a separate 'occasion' under N.J.S. 2A:85--12, N.J.S.A., supra.'

In the instant case, the State points out that Culver was sentenced under the provisions of the 1940 amendment; that he had been previously convicted of three high misdemeanors, and, although the two convictions in 1940 were based upon guilty pleas entered the same day (January 26, 1940),

'Nowhere does it appear in his brief or appendix that there was ever an order for consolidation; moreover, there was no law in effect at the time of his conviction or sentence such as we find today in N.J.S. 2A:85--12 (N.J.S.A.), relied upon by Culver, and which provides Inter alia that a conviction of two or more crimes for high misdemeanors, charged in one...