State v. Pohlabel, A--477

• Decision Date: 06 May 1960
• Docket Number: No. A--477,A--477
• Citation: 61 N.J.Super. 242,160 A.2d 647
• Parties: STATE of New Jersey, Plaintiff-Respondent, v. Lawrence M. POHLABEL, Defendant-Appellant.
• Court: New Jersey Superior Court — Appellate Division

Page 242

61 N.J.Super. 242

160 A.2d 647

STATE of New Jersey, Plaintiff-Respondent, v. Lawrence M. POHLABEL, Defendant-Appellant.

No. A--477.

Superior Court of New Jersey Appellate Division.

Argued March 28, 1960.

Decided May 6, 1960.

Frederick Klaessig, Jersey City, argued the cause for defendant-appellant.

Edward F. Hamill, Asst. Prosecutor, Jersey City, argued the cause for plaintiff-respondent (Lawrence A. Whipple, Hudson County Prosecutor, Jersey City, attorney).

Eugene T. Urbaniak, Deputy Atty. Gen., argued the cause for plaintiff-respondent (David D. Furman, Atty. Gen., attorney).

Before Judges GOLDMANN, CONFORD and FREUND.

The opinion of the court was delivered by

FREUND, J.A.D.

Defendant Lawrence Pohlabel appeals from an order of the Superior Court, Law Division, Hudson County, denying a motion, prosecuted on his behalf by assigned counsel pursuant to R.R. 3:7--15, to vacate an allegedly illegal and improper sentence. The sentence was imposed on April 6, 1951 by County Judge Ziegener, now deceased, following pleas of Non vult to seven indictments charging forgery in violation of R.S. 2:132--1, now N.J.S. 2A:109--1, N.J.S.A. Defendant is presently confined in the New Jersey State Prison serving seven three to five year consecutive sentences, an aggregate term of 21 to 35 years.

Defendant does not deny his guilt and does not seek to withdraw his pleas of Non vult. Neither does he claim the right to immediate release from prison, nor to a reduction in sentence because of its severity. He asserts only the right to have the sentences vacated so that he may be duly and properly resented. The principal ground of the motion below, which we have decided should have been granted, is that Judge Ziegener, in imposing sentence, misapprehended the contents of a pre-sentence investigation report prepared by the Hudson County Probation Department and was influenced by inaccurate and misleading information contained therein. The severity of the sentence is alluded to and relevantly before us only as indicating prejudice to the defendant. The Prosecutor of Hudson County also believes the sentences in question were illegally imposed, depriving the defendant of due process of law, and he therefore joined in the motion. The Law Division judge permitted the Attorney General of New Jersey to oppose the motion as Amicus curiae.

Since the sentencing in 1951, there have been several other proceedings and appeals involving alleged technical errors in the sentencing procedure. These have all been resolved against the defendant. See State v. Pohlabel, 40 N.J.Super. 416, 123 A.2d 391 (App.Div.1956), where we affirmed the denial of an application on grounds not pertinent here.

There has been and is no court rule or statute in this State requiring that pre-sentence reports be shown to a defendant or his counsel. State v. Wingler, 25 N.J. 161, 178, 135 A.2d 468 (1957). See Knowlton and Gaulkin, 'Should Presentence Reports be Shown to Defendants?,' 79 N.J.L.J. 409, 421 (1956). In 1959, however, the defendant learned of certain portions of the report and became aware for the first time of the misleading nature thereof. It is urged that the inaccuracies counted heavily in the sentencing court's imposition of sentences aggregating a 21--35 year term, a seemingly excessive punishment for a non-violent crime against property, albeit within the statutory maximum. One of the grounds pressed on this appeal is that the defendant is entitled, under the New Jersey Constitution of 1947, Art. I, pars. 1, 10, and 12, to be provided with a copy of the whole report so that he may meet any other prejudicial errors included. This question is mooted by the reprinting of the report in its entirety in the Attorney General's answering brief.

At the time of sentencing Pohlabel was 26 years of age with a wife and two infant daughters. In March 1950 he had been employed to paint the interior of an apartment owned by a Mrs. Wilkes. While so doing, he obtained her checkbook and forged her signature to seven checks, totaling $1,467, naming an alias as payee and subsequently cashing the checks in that name. He was arrested in November and eventually pleaded Non vult to seven indictments, each charging forgery of a single check, a high misdemeanor. Pohlabel was also indicted for the theft of Mrs. Wilkes' wrist watch. Although he made a statement admitting guilt of this charge, defendant pleaded not guilty to it and the indictment still pends.

At the Law Division hearing on the present motion, Pohlabel testified as to his record prior to the sentencing in 1951. He had but one previous conviction for crime--grand larceny of an automobile in California in 1943 at the age of 18, for which he had received a one to ten year term. He had been confined to a minimum-security institution at Chino, California, but escaped to his home in Ohio. This was a 'breach of trust' and did not involve 'breaking out' or 'using force, or anything of that nature, because you can go any time * * *.' Defendant was free for several months but then voluntarily surrendered himself to authorities in Oklahoma in order to obtain free transport back to California. He was then imprisoned in San Quentin. Under the system in California as administered by an Adult Authority, escapees are not tried and convicted for a separate offense but are automatically given an indeterminate, one year to life term, to be served concurrently with the sentence the offender was originally serving. This was the procedure in Pohlabel's case, and because he was paroled in 1947, he 'served no time whatsoever' for the escape.

In addition to the foregoing, Pohlabel had served 60 days in a county jail in California in 1943. This occurred when he was a member of the State Guard and disobeyed two orders. He was court-martialed for violation of two articles of war and placed in the county jail because there was no guardhouse.

The probation report which had been submitted to Judge Ziegener before sentencing occupies 14 printed pages in the Attorney General's brief. It contains the defendant's personal history, including his early life, education, occupational history, health and habits, and family relationships; a statement of the legal proceedings prior to sentencing; a statement of a police officer detailing the offense and apprehension; a statement from Mrs. Wilkes and from an officer of the bank where the checks had been cashed; and a report of an interview with the defendant (wherein he is described as being 'a master of deception' with 'a contemptuous attitude for law enforcement agencies'). Under a section entitled 'Summary' appears 'Extensive police record. No probation record.' Elsewhere is a recital that Pohlabel 'spent the greater part of his life in penal institutions as a juvenile and adult, and otherwise roamed the country.'

Under 'Additional Information' there is a summary of information furnished by Mr. Victor Dragon of the Division of Parole who was familiar with defendant's record in this State, pursuant to an agreement reached with the California authorities for a transfer of parole supervision. It is stated that Pohlabel was arrested and indicted twice in 1949, for larceny of an automobile and for embezzlement, but that both charges were Nolle prossed. The report states that, according to Mr. Dragon, the California authorities were

'no longer interested in extraditing this defendant for violation of his parole as they feel his present involvement will result in sufficient punishment to compensate for the time he owes them.'

Then follows a charge that defendant threatened harm to parole officers on several occasions and that on another he made a threatening and insulting remark to the judge of a Jersey City municipal court, 'which resulted in defendant's being found in contempt and penalized by penitentiary sentence, which was later remitted by reason of pending Grand Jury action.' Mr. Dragon then felt 'compelled in this case to depart from the custom of offering no recommendation to the Court' and urged that the maximum punishment be imposed.

On a separate sheet the pre-sentence report summarized the contents of a Federal Bureau of Investigation report and transcript of defendant's contacts with courts, institutions, and social agencies. This consisted of 14 different entries, prefaced by the remark that the list constituted Pohlabel's 'criminal record' since he attained the age of 18. A reader of ordinary diligence might well receive the impression that many of the entries in the list refer to the commission of separate crimes. For example, the first entry mentions that defendant spent 60 days in the county jail, permitting the inference that he was convicted by a court of law instead of court-martialed. The following entry was particularly misleading and conceded by the State to be 'a mistake':

'12/31/44 San Quentin Calif. Ret. as escapee from Chino Prison--Add'l. committment of Life Imprisonment Rel. on parole 11/14/47'

The rules of court provided for but did not require the use of a pre-sentence report on April 6, 1951. It became mandatory on January 1, 1953 by R.R. 3:7--10(b). The court below found as a fact, and we agree, that the report 'was used by Judge Ziegener on the original sentence day.' But the rule as then framed did require that the sentencing judge enter in the report, before its submission to the custodial institution, 'a brief statement of the basic reasons for the sentence so imposed by him.' This mandate was not complied with, and we therefore have nothing but the sentencing judge's oral...