On writ of habeas corpus.
Richard Sabongy and Louis Torzillo filed separate verified petitions under R.S. 2:82-1 et seq., N.J.S.A. , alleging their wrongful imprisonment at the New Jersey State Prison and factually supporting, prima facie , their claims to the right to immediate release, and on the basis thereof writs of habeas corpus issued. Walker v. Johnston , 312 U.S. 275, 85 L. Ed. 830, 61 S. Ct. 574 (1941). Since the proceedings involved common questions of law and fact, they were consolidated. Rule 5:2-3. The return evidences that Sabongy has been in custody since March 21, 1941; that two commitments originating in the former Special Sessions Court of Bergen County certified the imposition therein of two concurrent sentences, each having a minimum of 12 and a maximum of 15 years; and that he is further held on a commitment of the former Special Sessions Court of Essex County, on a sentence imposed October 22, 1941, having a minimum of ten and a maximum of 15 years, this latter commitment, which is an amended one, certifying the direction by such Essex County Court that such sentence was to run consecutively to the Bergen County sentences. As to Torzillo, the return is the same with the single exception that his Bergen County sentences had a minimum term of ten years rather than 12 years, but this difference is immaterial to the issues involved now.
While the returns are not formally traversed, the proceedings attack the imprisonment as based on the Essex County sentences. The State stipulates that by virtue of the provisions of R.S. 30:4-140, N.J.S.A. , and L. 1950, c. 315, establishing commutation time for work assignments and good behavior, the maxima of the Bergen County sentences
have been fulfilled, and that the petitioners are held presently on such Essex County sentences.
The case for the release of petitioners is based on two principal grounds, the first being that the sentences imposed in Essex County were not specified in the verbal pronouncement thereof to run consecutive to the Bergen County sentences and, therefore, must be deemed to have been imposed to run concurrently therewith (Ex parte DeLuccia , 10 N.J. Super. 374 (Law Div. 1950); Ex parte Benton , 10 N.J. Super. 595 (Law Div. 1950)), with the result, taking into account the cited commutation statutes, that such sentences have been fulfilled. The other ground advanced is that petitioners were deprived of the assistance of counsel in their defense on the Essex County charges and in connection with their sentences thereon, and thus there were violated constitutional rights essential to the jurisdictional functioning of the sentencing court. Johnson v. Zerbst , 304 U.S. 458, 82 L. Ed. 1461, 58 S. Ct. 1019 (1938).
There has been previous litigation on these claims. In 1948, Sabongy challenged the validity of the Essex County sentence by rule to show cause before the original sentencing judge (who is now deceased), on the ground that his plea of non vult had been induced fraudulently by an assistant prosecutor of the pleas. He lost on this proceeding. In October, 1949, Torzillo applied on motion to vacate his sentence, on similar grounds, to another judge of the Essex County Court and after full hearing he lost on that motion. In 1950, Sabongy applied to another judge of that court, on motion to vacate his sentence as illegal. Rule 2:7-13. The basis of the latter motion, on which Sabongy had a full hearing, was the alleged correction of the sentencing judge of the sentence originally imposed, some days after the date of such imposition, out of the presence and without the knowledge of this defendant.
It was contended that this correction of the sentence was to add the specification that it should run consecutive to the Bergen sentences and that since it was made after the prisoner
had entered into execution thereof, and since such specification would make the sentence more onerous, that correction was in excess of the power of the court. The judge decided this motion against Sabongy on an adverse finding of fact.
In view of all this previous exhaustive litigation, the State and the petitioners have stipulated that the record before me shall consist of the considerable testimony taken thereon and all of the documentary exhibits. Under the circumstances and in the interest of justice to all litigants, I approved this stipulation.
Hence the questions before me for determination are:
1. In entering the pleas of non vult and on the sentences based thereon, were petitioners deprived of the right to the assistance of counsel to the extent that these proceedings were constitutionally abortive?
2. Were the sentences imposed on October 22, 1941 to run concurrent with the Bergen County sentences and have they, therefore, been fulfilled?
3. May the instant court reach factual determinations in conflict with those of the Essex County Court previously considering these questions within the principle of res judicata ?
In examining the latter question, it must be noted that at common law the doctrine of res judicata did not apply to a decision on habeas corpus refusing to discharge a prisoner (Ex parte Partington , 13 M. & W. 679 (Ct. Exch. 1845); Ex parte Turner , 92 Vt. 210, 102 A. 943 (Sup. Ct. Vt. 1918); Salinger v. Loisel , 265 U.S. 224, 68 L. Ed. 989, 44 S. Ct. 519 (1924); Waley v. Johnston , 316 U.S. 101, 86 L. Ed. 1302, 62 S. Ct. 964 (1942); United States v. Coy , 57 F. Supp. 661, affirmed 156 F.2d 293 (C.C.A. 6 1946), cert. den. 328 U.S. 841, 90 L. Ed. 1615, 66 S. Ct. 1010), although such decision is not without weight on a later application. United States ex rel. Bergdoll v. Drum , 107 F.2d 897, 129 A.L.R. 1165 (C.C.A. 2 1939), cert. den. 310 U.S. 648, 84 L. Ed. 1414, 60 S. Ct. 1098; United States ex rel. Innes v. Hiatt, Warden, &c. , 141 F.2d 664 (C.C.A. 3 1944), affirming 50 F. Supp. 756 (D. Ct., M.D., Pa. 1943); State ex rel. Eyer v. Warden, &c. , 190 Md. 767, 59 A. 2 d 745
(C.C.A. Md. 1948). And there is little doubt of the power of the court in the exercise of its discretion to protect this privileged writ of freedom from abusive use by the filing of successive and repetitious applications therefor by a pertinacious relator. In re Tremper , 126 N.J. Eq. 276 (Ch. 1939); United States ex rel. McCann v. Thompson, Warden, &c. , 144 F.2d ...