On application for writ of habeas corpus.
Application for writ of habeas corpus was referred to this court by the assignment judge and writ was issued. Counsel was assigned and prosecuted the application in a vigorous and commendable manner. The application is very meager, merely stating that the defendant was not represented by nor informed of his right to counsel. By reason of this bare statement, with no factual support, there was considerable doubt concerning the propriety of granting the writ, but due to the multiplicity of appeals from denials of writs where no record is available, it was considered advisable to grant a hearing so that a full record might be available if an appeal be taken. By this method at least one step in the appeal process may be saved.
This is another case where the sworn statement of the application is not borne out by the proof. The record shows
that the defendant, upon his being brought before the County Court for arraignment in March of 1950, was fully informed of his rights to be represented and that he signified his desire to plead to the charges preferred, without the benefit of counsel. In July of the same year he was sentenced, at which time the presiding judge again gave him opportunity to speak in his own behalf.
The present record includes the testimony of a stenographer present at the arraignment, which shows that the assistant prosecutor, at that time, in the immediate presence of the presiding judge, in open court and as a part of the arraignment proceedings, undertook the duty of informing the accused of his rights under the rule. Argument is made by defendant's counsel that the rule directing a court to advise a defendant who appears before it, without counsel, of his right to counsel, requires the judge of such court, personally, to pronounce the words which will convey the knowledge intended by such rule to be imparted to the defendant. The rule should not be construed to uphold the defendant's contention. The defendant, in fact, had the benefit of the advice contemplated by the rule, and intelligently and voluntarily waived his right to counsel. State v. Cynkowski , 10 N.J. 571 (1952). The record shows clearly that he knew the charges preferred, at the time of his arraignment in open court, State v. Mulvaney , 21 N.J. Super. 457 (App. Div. 1952); and that his waiver of counsel was given understandingly, intelligently, competently and voluntarily, in the exercise of his free choice. State v. LaSalle , 19 N.J. Super. 510 (App. Div. 1952); La Salle v. Carty , 344 U.S. 844, 73 S. Ct. 60, 97 L. Ed. 657 (1952). The fact that the lips of the judge did not form the words which informed the defendant of his rights should not be construed as depriving the defendant of due process. The dictates of the rule were complied with by an officer of the court in the presence of the presiding judge and under his supervision, and it may not be said that under such circumstances there was no compliance with the rule.
Although the writ was issued on the bare premise of deprivation of due process by reason of the absence of counsel for the defendant, other aspects of the imprisonment were brought before the court and considered. In December 1952 the defendant had made application for correction of illegal sentence, which was granted, and this corrected sentence is now challenged as having been erroneously and illegally pronounced.
Flood had been indicted in the September 1949 term on four counts, the first for having committed on May 6, 1949 an assault with intent to commit carnal abuse on a female child under the age of 16, the second for attempted carnal abuse on the same date and upon the same person, the third for assault and battery on the same date and upon the same person, and the fourth for impairing the morals of a child, on the same date, the child being the same person named in the other three counts. In March 1950, having entered a plea of guilty to all counts, he was committed under chapter 20 of the Laws of 1949 (allocated as N.J.S.A. 2:192-1.4, 1.12 inclusive, since amended) to the Diagnostic Center for physical and mental examination as a sex offender. On July 14, 1950, under section 6 of that enactment, allocated as N.J.S.A. 2:192-1.9, he was committed to the New Jersey State Hospital at Trenton, the institution designated by the Department of Institutions and Agencies, for treatment as a sex offender, for a period not greater than 12 years, which period was the maximum time to which the defendant might have been sentenced under R.S. 2:110-2 for the crime of assault with intent to commit carnal abuse. Such mental and physical examination were apparently invoked on the assumption that the defendant came within the above legislative enactment of 1949, commonly known as the "Sex Offender Law." At the time of the sentence from this court the defendant was undergoing treatment in the New Jersey State Hospital, after transfer by the Commissioner of Institutions and Agencies from the New Jersey State Prison, where as a result of a sex offense he had been sentenced, with a recommendation for psychiatric treatment, by the Atlantic
County Court. In August of 1951, after the sentence from this county, he was transferred from the New Jersey State Hospital back to the New Jersey State Prison, to serve the balance of the Atlantic County sentence. On January 16, 1952 he was released from the New Jersey State Prison as having completed the Atlantic County sentence, but he later returned voluntarily to that institution (not to the New Jersey State Hospital) when prison authorities learned of the sentence imposed in July of 1950 by the Somerset County Court. Evidently an administrative oversight as to the Somerset County sentence allowed his release from the New Jersey State Hospital and from the New Jersey State Prison. After this reincarceration the defendant made the above-mentioned application for correction of sentence, as a result of which a judgment was entered by this court providing that the defendant be confined in the New Jersey State Prison for a term of not less than 11 and not more than 12 years, the commencement of said sentence to be as of the time the original sentence was imposed, namely July 14, 1950.
R.R. 3:7-13 provides that an illegal sentence may be corrected at any time. That the 1950 sentence of this County Court was incorrect requires merely a quotation of the statute, L. ...