State v. Kramer

• Decision Date: 20 December 1967
• Docket Number: Nos. L--1040,L--1041,s. L--1040
• Citation: 237 A.2d 907,98 N.J.Super. 539
• Parties: STATE of New Jersey, Plaintiff, v. Ronald KRAMER, Defendant.
• Court: New Jersey Superior Court

Page 539

98 N.J.Super. 539

237 A.2d 907

STATE of New Jersey, Plaintiff, v. Ronald KRAMER, Defendant.

Nos. L--1040, L--1041.

Superior Court of New Jersey

Law Division.

Dec. 20, 1967.

Barry H. Evanchick, Asst. Prosecutor, for plaintiff (Brendan T. Byrne, Essex County Prosecutor, attorney).

Sol Herships, Newark, for defendant.

JOHN A. ACKERMAN, J.S.C.

This matter is before the court on the petition of defendant for post-conviction relief pursuant to R.R. 3:10A. A hearing was held at which defendant's testimony was taken and transcripts presented of the proceedings relating to the retraction of his pleas of not guilty and the entry of pleas of Non vult in 1954 and of the proceedings at his subsequent sentencing.

The pertinent facts may be summarized as follows:

Indictment No. 1040, returned by the Essex County grand jury, charged defendant and two co-defendants with robbery of one Solomen Facher on May 8, 1953, in Newark, New Jersey. Indictment No. 1041 charged defendant and three others with robbery of one Arthur Wolf on July 18, 1953 in Newark. Defendant, with others, was arraigned on both indictments on March 22, 1954 and entered pleas of not guilty. He was represented by assigned counsel, Parry, now deceased. On April 26, 1954, at a hearing at which his counsel was present, defendant retracted his pleas of not guilty and pleaded Non vult to both indictments. On May 12, 1954 he was sentenced on both indictments. The sentence imposed on indictment No. 1041 was to a term of seven to ten years in State Prison to run consecutively to the term or terms defendant was then serving. (A few weeks prior thereto, defendant had been sentenced to State Prison on indictments arising out of Hudson County.) The sentence on indictment No. 1040 was to a term of seven to ten years in State Prison to run concurrently with the sentence imposed on indictment No. 1041. The transcript of the proceedings at sentencing indicates that defendant was granted the right of allocution, but does not show that his counsel was present.

Defendant's petition for post-conviction relief was verified and filed approximately 12 years after the pleas and sentences challenged. It is not artistically phrased. It states in part:

'Prior to April 26, 1964, defendant was brought before the Essex County Court for Arraignment, Counsel, Mr. William H. Parry, was assigned to represent defendant. Mr. Parry spoke to defendant in the Essex County Prosecutor's Office for less than 'five' minutes, at which time Counsel related he spoke with the Prosecutor and their Office would go along with a plea of Non Vult and any punishment inflicted would be in a concurrent nature. Defendant was then returned to the Hudson County Jail at Jersey City, New Jersey, to await further word from Mr. Parry, which never came and Mr. Parry did not visit the Hudson County Jail as he mentioned in the Prosecutor's Office.

April 26, 1954, date of pleading, Counsel reiterated conditions were the same and defendant understood he was retracting his plea of Not Guilty to one of Non Vult but, defendant did not understand the nature of the charge, other than what Counsel had related in our 'chat' at the Prosecutor's Office, any punishment inflicted would be of a concurrent nature.

Defendant maintains that his plea of Non Vult was controllingly induced by the promise on the part of Counsel, Mr. Parry, that he had conferred with the Prosecutor and any punishment would be of a concurrent nature, so as not to have been voluntarily made.

The substantial question is that this defendant's plea of Non Vult was induced by promise which deprives it of the character of a voluntary act. The evidence entitled to be found that the plea of Non Vult was improperly induced, in the sense of having been so controlled by the promise of Counsel. * * *'

The petition also states:

'In the instant matter Counsel was ineffective at the pleading and failed to appear at the sentencing and this does not meet the requirements of the effective assistance of Counsel. * * *'

Defendant therefore claims that (1) the pleas of Non vult were not voluntarily and understandingly made because of the alleged promise of his counsel, and (2) his constitutional right were denied because of lack of counsel at his sentencing.

I

The court finds that defendant's retraction of his pleas of not guilty and his entry of pleas of Non vult were understandingly and voluntarily made. At the time of retraction and entry of said pleas, his counsel was present and the transcript of that hearing shows that defendant affirmed that the retraction was made after conferring with counsel, and that he understood that for purposes of sentence his pleas of Non vult were the equivalent of pleas of guilty. No promise as to sentence was mentioned. Only a few weeks prior thereto he had gone through the process of retracting not guilty pleas and entry of pleas of Non vult in Hudson County. At the post conviction hearing he expressly disavowed any claim that there was a 'deal' or plea bargain with the prosecutor. He testified that Mr. Parry told him that he was going to get 'concurrent sentences' and that he 'assumed' that Mr. Parry had talked to the prosecutor. He admitted that the only reason he filed his post-conviction application was because he was unhappy with his sentence and he does not assert that he was innocent of the offenses charged. The sentences complained of were in fact concurrent with each other, and he did not protest at sentencing that the sentences imposed violated any promise or understanding that the Essex County sentences would be concurrent with the Hudson County sentences.

The defendant has the burden of showing by a preponderance of the evidence that his pleas were not understandingly and voluntarily made and must make a strict showing with a solid affirmative basis for the relief sought. State v. Daniels, 38 N.J. 242, 183 A.2d 648 (1962), certiorari denied 374 U.S. 837, 83 S.Ct. 1885, 10 L.Ed.2d 1057 (1962); State v. Moe, 50 N.J. 386, 235 A.2d 678 (1967). The court was not impressed with the truth of his testimony that he had relied upon any promise made by counsel in entering his pleas. The court finds that he did not rely on any promise made as to sentence, and the testimony clearly does not establish that any promise was made by anyone. His convictions stand. State v. Miller, 16 N.J.Super. 251, 84 A.2d 459 (App.Div.1951) certiorari denied, 342 U.S. 934, 72 S.Ct. 379, 96 L.Ed. 695 (1952); State v. Pometti, 12 N.J. 446, 97 A.2d 399 (1953), affirming 23 N.J.Super. 516, 93 A.2d 409 (App.Div.1952); see State v. Ashby, 43 N.J. 273, 204 A.2d 1 (1964), reversing 81 N.J.Super. 350, 195 A.2d 635 (App.Div.1963); see State v. Taylor, 49 N.J. 440, 455, 231 A.2d 212 (1967).

II

Defendant claims that his counsel was not present at sentencing. The prosecutor conceded this to be the fact at the post-conviction relief hearing, apparently because there is nothing in the record to show to the contrary. The transcript of the proceedings at sentencing does not list counsel as being present and does not record his having spoken on behalf of defendant. Mr. Parry is now dead and cannot testify that he was present at sentencing, or that defendant waived benefit of counsel at sentencing, or that he appeared before the sentencing judge on defendant's behalf at some other time. See State v. Rose, 40 N.J.Super. 40, 52, 122 A.2d 189 (Cty.Ct.1956), affirmed 41 N.J.Super. 434, 125 A.2d 351 (App.Div.1956). The clerk's minutes merely record the sentences, and the sentences lists for 1954 have been destroyed. There are no avenues for further inquiry that might reasonably be expected to shed light on the question as to whether Mr. Parry was in fact present at sentencing. See Janiec V. State, 87 N.J.Super. 76, 208 A.2d 159 (App.Div.1965), remanding for further hearing 85 N.J.Super. 68, 203 A.2d 727 (Law Div.1964); State v. Davis, 92 N.J.Super. 289, 223 A.2d 208 (App.Div.1966), remanding for further hearing, 88 N.J.Super. 528, 212 A.2d 859 (Law Div.1965). It must therefore be concluded that defendant was not represented by counsel at his sentencing.

For many years, the right of a defendant to counsel, including such assistance at the time of sentence, has been recognized and enforced. In re Sabongy, 18 N.J.Super. 334, 87 A.2d 59 (Cty.Ct.1952). The question arises, however, as to what the consequences are when counsel is not present at sentencing and the matter is raised by collateral attack, long after the time for appeal has expired. In State v. Jenkins, 32 N.J. 109, 160 A.2d 25 (1960), our Supreme Court, although conceding that a defendant is entitled to counsel at sentencing unless that right has been waived, held that the burden is upon a defendant making a collateral attack on his sentence by application for post-conviction relief to show a likelihood that his rights were not fairly protected without counsel and that he suffered prejudice therefrom. As to the manner of determining the likelihood of prejudice from the absence of counsel at sentencing, the court said:

'* * * Whether that likelihood exists must be determined in good part by measuring what is offered in attacking the sentence against what the probation report revealed.' (at p. 115, 160 A.2d at p. 28)

In accordance with Jenkins and other decisions of our courts cited above, this court has reviewed the presentence report prepared by the Probation Office for the trial judge who imposed sentence upon the defendant. Were the court to apply the Jenkins test in this case, it would rule that it is not likely that defendant suffered prejudice. Defendant has not established to the satisfaction of the court that he was relying on any promise, let alone a promise or plea bargain made by the prosecutor to recommend sentences concurrent with the Hudson County sentences. As in Jenkins, the prosecutor did not speak at defendant's sentencing and there was no disparity of oral advocacy. The presentence...