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In re Carter

Decided: July 27, 1951.

IN THE MATTER OF THE APPLICATION OF ALVIN CARTER FOR ISSUANCE OF WRIT OF HABEAS CORPUS


On writ of habeas corpus.

Hughes, J.c.c.

Hughes

[14 NJSuper Page 592] On the basis of a verified petition factually supporting his claim that he is illegally detained in

the New Jersey State Prison, the petitioner, Alvin Carter, applied for and there issued the writ of habeas corpus. By its return, the State admitted its imprisonment of petitioner since May 3, 1945, justifying it and the continuance thereof by virtue of "five consecutive indeterminate sentences imposed upon him in the County of Essex for five charges of Breaking, Entering, Larceny and Receiving, said sentences having a seven-year indeterminate maximum and having been imposed on May 3, 1945, to run consecutive one after the other."

The hearing on the writ developed that petitioner was born February 19, 1927, in Washington, D.C., and at the time of his arrest and sentences was a little over 18 years of age. He was an uneducated Negro youth, and as appears by Exhibit P-1, a copy of the pre-sentence report of the probation department, was of practically moron-grade intelligence.*fn1 Counsel for petitioner and for the State stipulated at the hearing that such report accurately represented his mental condition at the time of plea and sentence.

Carter was arrested on March 22, 1945, on a complaint and warrant charging a single offense of breaking, entering and larceny. At the hearing on the writ, he testified that he was interrogated over a period of several days at police headquarters by detectives, and he insists that he told these questioners that he had committed only the one crime for which he had been arrested. Nevertheless, he was charged with 13 additional offenses of similar character and on this total of 14 charges he faced the former Essex County Court of Special Sessions on April 9, 1945. He had signed the appropriate waivers of indictment and trial by jury under R.S. 2:191-1.

The docket entries of the clerk of April 9, 1945, evidence that petitioner entered non vult pleas to each of these 14 separate charges. Petitioner testifies that he was then, and is now, unable to read and write; that he understood nothing of the significance of such pleas; and that whatever was then said, he did not profess his guilt of the additional 13 charges.

There is no stenographic transcript available. The petitioner claims that he was ignorant of the meaning of the waivers by which he had relinquished his important rights to indictment and trial by jury.

Neither on the entry of his pleas, nor on the later imposition of sentences was petitioner represented by counsel. There is no suggestion that he applied to the court to assign counsel to him as an indigent person, nor that the court declined to assign counsel to him, nor, indeed, that there was any discussion of counsel, and it is quite clear to me under the circumstances that petitioner was ignorant of his right to counsel. This situation, of course, would not occur presently in view of the existing rule of court.*fn2

On April 25, 1945, petitioner appeared in the same court for sentencing. As evidenced by the list of causes retained by the clerk as his office record, and the commitments based thereon, the court imposed on five of these charges separate sentences to the New Jersey Reformatory at Annandale, ordering that such sentences should run consecutively one to the other. On the remaining charges, the court suspended imposition of sentence. Again, there is no stenographic transcript of any remarks which the judge may have made on the imposition of these individual sentences. The petitioner swears that all he remembers of this fateful occasion is that the judge addressed him and said, "Alvin, I am going to send you back to Annandale." (Petitioner had previously been a juvenile offender committed to the State Home for Boys at Jamesburg and transferred for a time to Annandale and later paroled.) However, the record, with all its deficiencies, as supported by commitments in regular order, establishes that these five sentences were actually imposed and so ordered to run consecutively.

The petitioner entered the New Jersey Reformatory at Annandale on May 3, 1945, was subsequently transferred to the New Jersey Reformatory at Rahway on September 4, 1945, and was later transferred to the New Jersey State Prison on July 20, 1948, where he now remains. These transfers are fully authorized by law. R.S. 30:4-85, N.J.S.A.

Scrutiny of the legal effect of these sentences points up their very substantial aggregate maxima. An "institutional" sentence, so-called, to the Annandale reformatory is that type established by R.S. 30:4-152,*fn3 having no minimum term but a potential maximum equivalent to the statutory maximum for the offense involved, which, in the case of breaking and entering (R.S. 2:115-1, et seq.), a high misdemeanor, amounts to 7 years. R.S. 2:103-5. When contrasted with the type of sentence to the State Prison prescribed by law, which requires the imposition of a fixed minimum term (R.S. 2:192-4), the legislative formula for the "institutional" type sentence accentuates the theory of training and social rehabilitation, with termination of service dependent, ...


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