On appeal from Superior Court, Appellate Division.
For affirmance -- Chief Justice Vanderbilt, and Justices Oliphant, Burling, Jacobs and Brennan. For reversal -- Justices Heher and Wachenfeld. The opinion of the court was delivered by William J. Brennan, Jr., J.
A Bergen County grand jury indicted Benes under an indictment of two counts, the first charging burglary and the second larceny of goods of the value of $500. He pleaded guilty to the larceny count, a high misdemeanor, R.S. 2:145-2, now N.J.S. 2 A:119-2, for which the maximum prison sentence is seven years, R.S. 2:103-5, now N.J.S. 2 A:85-6. On May 7, 1948 he was placed on five years' probation by the Bergen County Court.
On November 2, 1949 he pleaded guilty to charges of violation of probation and his probation was revoked. On November 9, 1949, pursuant to R.S. 2:192-1.2, now N.J.S. 2 A:164-2, he was ordered to New Jersey State Hospital at Trenton for pre-sentence physical and mental examination, study and observation. He was returned to the Bergen County Court over four months later, on March 29, 1950, and was sentenced for a term from one to seven years in the State Prison.
After a year, on March 14, 1951, Benes was paroled; but after another year, on April 22, 1952, his parole was revoked and he was returned to prison when he was convicted of contempt of an order directing him to provide support for his children entered January 10, 1952 in the Bergen County Juvenile and Domestic Relations Court. His appeals from the support order were dismissed by the Appellate Division on November 18, 1953 as out of time. Those appeals were assigned Docket No. A-52-53.
Benes initiated the instant proceeding by petition filed September 10, 1953 in the Superior Court, Law Division. The petition, prosecuted pro se and confusingly styled both as an application for a writ of habeas corpus and a motion to correct illegal sentence, seeks a judgment declaring his sentence
of from one to seven years to be wholly illegal and void and directing his immediate release from the prison. The petition was dismissed October 5, 1953 by order entered in the Law Division. An appeal taken by Benes to the Appellate Division on October 15 following was assigned Docket No. A-78-53. The briefs and the per curiam opinion of the Appellate Division affirming the Law Division refer to the appeal as Docket No. A-52-53. We are satisfied that this is a mere inadvertence but, upon Benes' representations of possible confusion of his appeals, have treated his application in this court as a petition for certification to review the Appellate Division judgment, and have granted certification.
Benes has filed several briefs here and in the courts below and we have given consideration to the arguments advanced in all of them without limitation to the points briefed here.
The commitment under which Benes was received at the prison from Bergen County erroneously recites that he entered a plea of guilty to the burglary count. This is a mere clerical error which can and should be corrected to conform the fact to the judgment record and is not to be taken, as Benes argues, to evidence his confinement for a crime of which he was not convicted.
Benes was represented by assigned counsel at the time he pleaded guilty to the larceny charge. Eighteen months later when he appeared to answer the charge of violation of probation he expressed dissatisfaction with the services of counsel, who thereupon applied for and was allowed leave to withdraw as his attorney. Benes now argues that the assigned attorney inadequately represented him at the time of his plea of guilty to the larceny count and, further, that the trial judge should have provided other counsel after allowing the assigned attorney to withdraw. It is doubtful whether these points may be raised in this proceeding. In re Caruso, 10 N.J. 184 (1952), but we are satisfied from our examination of the record that they are at all events without merit.
Benes was sentenced about two years after he pleaded guilty to the larceny count and over four months after his probation was revoked. He ...