Eastwood, Jayne and Smalley. The opinion of the court was delivered by Eastwood, S.j.a.d. Smalley, J.s.c. (temporarily assigned) (dissenting).
The application of James Culver for the issuance of a writ of habeas corpus to review the legality of his confinement in State Prison was denied and he appeals from the ensuing judgment.
On December 23, 1947 the appellant, having entered guilty pleas to three separate allegations each charging in one count armed robbery and in the second count that the defendant had been previously convicted of three high misdemeanors, was sentenced to a term of life imprisonment in each case. The sentences imposed on two of the allegations were to run concurrently with that imposed upon Allegation No. 3577.
On November 17, 1953 appellant presented an application to the Law Division of this court for a writ of habeas corpus , alleging that the life imprisonment sentences were illegal in that (1) his pleas of guilty were entered without the aid or advice of counsel; (2) that he signed the allegations upon the advice of a county official on the detective's staff; (3) that one of his three prior convictions was not a high misdemeanor; and (4), that he had not been previously convicted of high misdemeanors on three separate occasions.
The judge of the County Court, to whom the matter was referred by the assignment judge, refused to issue the writ on the ground that no basis for the relief prayed for by the petition had been shown.
The only question raised by this appeal requiring consideration is that concerning the imposition of the sentences of life imprisonment. Actually, this contention of the appellant, in effect, asserts that the sentences were illegal and should be corrected. Such a contention is not reviewable by habeas corpus. In re Kershner , 9 N.J. 471 (1952), certiorari denied
Kershner v. State of N.J. , 344 U.S. 844, 73 S. Ct. 59, 97 L. Ed. 656; State v. Moore , 21 N.J. Super. 419 (App. Div. 1952). An application for correction of an illegal or improper sentence under R.R. 3:7-15 may be made to the sentencing court at any time. In the instant case the County Court, adverting to the rule that an illegal sentence may not be reviewed by habeas corpus , decided, however, to treat the application as one for correction of sentence, and held that the sentences were legal and called for no correction. Under the circumstances, we will proceed to a consideration and determination of the issue.
At the outset, it appears from the State's brief as well as from the County Court's opinion that the three prior convictions charged in each of the accusations were unquestionably high misdemeanors, to wit: July 15, 1938, the defendant was convicted in Middlesex County of breaking, entering and larceny; on January 26, 1940, in the same county, he was convicted of grand larceny and receiving; on January 26, 1940, in the same county, he was further convicted of grand larceny and receiving, all high misdemeanors.
It is the appellant's further contention that two of the accusations were consolidated for trial, which trial was held on the same date, January 26, 1940, and, therefore, the resulting convictions must be considered as one, which, with the other conviction in 1938, made a total of only two prior separate occasions on which he had been convicted of high misdemeanors. Accordingly, so Culver argues, when he entered pleas of guilty in 1947 to the three allegations in Somerset County, he had not and could not be convicted as an habitual criminal, and consequently the sentences of life imprisonment were invalid.
Attention must be first directed to the fact that in the present case the life imprisonment sentences were imposed upon the appellant subsequent to the 1940 amendment (L. 1940, c. 219, p. 889, sec. 3), R.S. 2:103-10, and prior to the 1951 amendment, now N.J.S. 2 A:85-12, whereas in State v. McCall , 27 N.J. Super. 157 (App. Div. 1953); reversed 14 N.J. 538 (1954), hereinafter discussed, the judgment
was entered subsequent to the 1951 amendment, to wit: in December 1952. The 1940 amendment reads as follows:
"Any person who on three separate occasions has been convicted of high misdemeanors in this State, or of crimes under the laws of the United States or of any other State or country, which crimes would be high misdemeanors if committed in this State, or whose convictions for such offenses in this State or under the laws of the United States or of any other State or country shall total three or more, and who shall thereafter be convicted of a subsequent offense enumerated in this subtitle, is hereby declared to be an habitual criminal, and the court in which such fourth or subsequent conviction is had, shall impose a life sentence in the State Prison upon the person so convicted."
In the 1951 amendment, in addition to the change in the introductory line of the section, the Legislature added the following paragraph:
"Conviction of 2 or more of such crimes or high misdemeanors charged in 1 indictment or accusation, or in 2 or more indictments or accusations consolidated for trial shall be deemed to be only 1 conviction."
An examination of the reported decisions of our courts following the 1940 amendment and prior to the adoption of the 1951 amendment, discloses that our courts did not specifically construe the words "on three separate occasions" as used in the 1940 amendment. See State v. Lutz , 135 N.J.L. 603 (Sup. Ct. 1947); State v. Burns , 136 N.J.L. 601 (E. & A. 1948); State v. Janiec , 9 N.J. Super. 29 (App. Div. 1950), affirmed 6 N.J. 608 (1951), certiorari denied 341 U.S. 955, 71 S. Ct. 1007, 95 L. Ed. 1376; In re Zee , 13 N.J. Super. 312 (Cty. Ct. 1951), affirmed 16 N.J. Super. 171 (App Div. 1951), certiorari denied 343 U.S. 931, 72 S. Ct. 766, 96 L. Ed. 1340; State v. McBride , 15 N.J. Super. 436 (App. Div. 1951); In re Caruso , 10 N.J. 184 (1952). The first time the provision was directly considered and decided appears to have been by ...