State v. Flood

• Decision Date: 20 September 1954
• Docket Number: No. A--598,A--598
• Citation: 108 A.2d 17,32 N.J.Super. 161
• Parties: STATE of New Jersey, Plaintiff-Respondent, v. John Joseph FLOOD, Defendant-Appellant. . Appellate Division. Considered
• Court: New Jersey Superior Court — Appellate Division

Page 161

32 N.J.Super. 161

108 A.2d 17

STATE of New Jersey, Plaintiff-Respondent, v. John Joseph FLOOD, Defendant-Appellant.

No. A--598.

Superior Court of New Jersey.

Appellate Division.

Considered Sept. 20, 1954.

Decided Sept. 23, 1954.

John Joseph Flood, pro se.

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

The opinion of the court was delivered by

GOLDMANN, J.A.D.

Defendant applied to the Somerset County Court for a writ of Habeas corpus on the ground of denial of due process in that he was not represented by counsel or advised of his right thereto when sentenced on July 14, 1950. The writ issued, counsel was assigned to represent Flood, and a hearing held. On April 2, 1954 an order was entered dismissing the petition and discharging the writ, for the reasons stated in the court's opinion in 30 N.J.Super. 196, 104 A.2d 90 (Cty.Ct.1954). Defendant appeals.

Defendant complains that the County Court failed to afford him full protection by assigning counsel at the criminal trial, and that he was unable to make an intelligent waiver of his right to such counsel. An examination of the record shows that such right was fully explained and that he chose to proceed without an attorney and pleaded guilty. His responses were intelligent and showed a full awareness of the charges leveled against him. His waiver of counsel was given understandingly, intelligently, competently and voluntarily, in the exercise of his free choice. We agree with the County Court that the provisions of Rule 2:12--1(a) in effect at the time of the arraignment, were not violated. Cf. State v. Raicich, 30 N.J.Super. 316, 104 A.2d 713 (App.Div.1954), involving a similar situation in the same court and with the same prosecutor.

Defendant's brief, insofar as the argument advanced therein is concerned, deals only with the question of deprivation of due process because of the absence of counsel. However, in his prefatory statement of the 'question involved' he again appears to dispute the sentence imposed upon him. The background of that sentence is fully set forth in the opinion of the County Court, 30 N.J.Super. 196, 104 A.2d 90, and may be summarized here.

Defendant had been indicted on four counts by the Somerset County grand jury with having committed on May 6, 1949 (1) an assault with intent to commit carnal abuse on a female child under the age of 16; (2) attempted carnal abuse; (3) assault and battery; and (4) impairing the morals of a child, the child being the same person named in the other three counts. On October 3, 1949 defendant, then confined in the New Jersey State Prison on a conviction from another county for a sex offense, wrote the Somerset County Prosecutor requesting information as to when he might appear to plead guilty to the indictment. He was returned to the Somerset County Court on March 28, 1950 and, after being informed as to his right to counsel and of the charges against him, entered a plea of guilty. The court then directed that he be examined at the State Diagnostic Center. Thereafter, on July 14, 1950, he was sentenced by the Somerset County Court to the New Jersey State Hospital for an indefinite term not to exceed 12 years.

On December 9, 1953 defendant served the Somerset County Prosecutor with a motion to correct illegal sentence. Following the hearing held December 22, 1953, the court forthwith entered its order declaring that the sentence it had imposed was not within the purview of the Sex Offender Act (N.J.S.A. 2:192--1.13 and 2:192--1.16) and vacated the same, sentencing defendant to serve a term of not less than 11 nor more than 12 years in the New Jersey State Prison, at hard labor. Defendant was allowed credit upon the corrected sentence for such time as he had served in the State Prison and in State Hospital since July 14, 1950, the date of the original sentence. Then came the Habeas corpus proceedings and the order now under appeal.

The question as to the propriety of the corrected sentence, here indirectly presented without actually being argued in defendant's brief, was considered at length by the County Court in its cited opinion. We agree with its conclusions. The State Prison sentence which defendant is now serving was a proper one.

When defendant appeared before the County Court on March 28, 1950 and entered a general plea of guilty to the charges set out in the indictment, the court ordered a mental and physical examination on the mistaken assumption that the prisoner came within the provisions of N.J.S.A. 2:192--1.4 (L. 1949, c. 20, § 1). It is evident that when the court, on June 14, 1950, committed defendant to the New Jersey State Hospital as a sex offender for a period not exceeding 12 years, it dealt with him on the charge contained in the first count of the indictment--assault with intent to commit carnal abuse on a female child under the age of 16. This is apparent from the fact that the three subsequent counts all called for sentences of considerably shorter terms, and further from the fact that such charges were contained within the crime encompassed by the first count.

The statute in effect at the time of the arraignment on March 28, 1950, was L.1949, c. 20, commonly known as the Sex Offender Act. Section 1 thereof (N.J.S.A. 2:192--1.4) provided:

'Whenever a person is convicted of the offense of rape, sodomy, incest, lewdness, indecent exposure, uttering or exposing obscene literature or pictures, indecent communications to females of any nature whatsoever, or carnal abuse or of an attempt to commit any of the aforementioned offenses, the judge shall order a mental examination of such person prior to imposition of sentence.'

This act was repealed by section 12 of L. 1950, c. 207, the revised Sex Offender Act. The 1950 statute became effective June 8, 1950, before defendant was sentenced. Section 1 of that act (N.J.S.A. 2:192--1.13) read:

'Whenever a person is convicted of the offense of rape, carnal abuse, sodomy or impairing the morals of a minor or of an attempt to commit any of the aforementioned offenses, the judge shall order the commitment of such person to the Diagnostic Center for a period not to exceed 60 days. While confined in the said Diagnostic Center, such person shall be given a complete physical and mental examination.'

The County Court in its opinion, 30 N.J.Super. 196, at page 199, 104 A.2d 90, states that defendant was on July 14, 1950, under section 6 of L. 1949, c. 20 (N.J.S.A....