Goldmann, Freund and Conford. The opinion of the court was delivered by Goldmann, S.j.a.d.
Defendant appeals from the Hudson County Court's denial of his application for a writ of habeas corpus and motion to correct an illegal sentence.
The 1950 term of the Hudson County grand jury returned seven indictments (Nos. 330 to 336, inclusive) charging defendant with the crime of forgery, in addition to one (No. 329) charging grand larceny. He pleaded not guilty to all eight; later he retracted his plea as to the forgery indictments and pleaded non vult. On April 6, 1951 County Judge Ziegener sentenced him to serve a term of from three to five years in State Prison on each forgery
indictment. Defendant's appendix contains a transcript of the judge's oral remarks at the time of sentencing. He directed that "the sentences on each [forgery] indictment of three to five years shall run consecutively." The county clerk properly recorded the sentences in his day book, but in transcribing them into the court minute book he mistakenly recorded the respective sentences on indictments Nos. 331 to 336 as running consecutively with that imposed on indictment No. 330, so that the aggregate term imposed would be from 6 to 10 years rather than from 21 to 35.
Defendant's first proceeding with relation to these sentences was not concerned with the inconsistency between the original transcript of oral remarks and the written record but was addressed to a completely different point, namely, that he should not have been sentenced under the forgery statute, R.S. 2:132-1 (now N.J.S. 2 A:109-1), but under the statute dealing with frauds and cheats -- overdrawing credit or checking account with intent to defraud -- R.S. 2:134-17 (now N.J.S. 2 A:111-15), where the punishment is imprisonment for not more than one year, instead of the term of from three to five years imposed under the forgery statute. To establish this alleged illegality in sentence he on November 29, 1951 filed a motion in forma pauperis with Judge Ziegener for correction of sentence under then Rule 2:7-13 (now R.R. 3:7-13). Therein he recognized and stated that he had been sentenced to three to five years on each indictment, to be served consecutively. The motion was denied, the trial judge specifically informing defendant that "I sentenced you, on each of said indictments [Nos. 330 to 336, inclusive], to from 3 to 5 years in State's Prison, said sentences to run consecutively."
Subsequently, on November 20, 1954, defendant filed an "application for correction of commitment" with the Hudson County Court in which he raised for the first time the inconsistency between the oral sentence pronounced by Judge Ziegener on indictments Nos. 330 to 336, inclusive, and the court minutes, and requested that "his ambiguous terms of sentence set forth by Order of Commitment * * * be
corrected by this court to conform to the fact of the Judgment record * * *." The matter was assigned to County Judge Coolahan, Judge Ziegener's term having expired in the meantime. On December 3, 1954 Judge Coolahan ordered the court minutes corrected to conform with the sentences orally imposed by Judge Ziegener; and corrected copies of the commitments were sent to the Principal Keeper of the State Prison.
Defendant then filed an application for a writ of habeas corpus challenging this order, claiming that the record could not be changed without permitting him to appear in open court and affording him an opportunity to be heard and to be confronted with witnesses against him. He charged deprivation of his constitutional rights because the order increased the time he would have to serve in prison. Defendant's application was referred to Superior Court Judge Artaserse who thereupon appointed an attorney to represent defendant, make an investigation of the facts and the law, and report to the court as to whether defendant's representations disclosed to a prima facie degree that he was entitled to the issuance of the writ. R.R. 1:12-9(d). After investigation, assigned counsel reported to the court that he had examined all the pertinent records; that while the day book entry corresponded with the sentences pronounced orally, the minute book showed that a clerical error had been made in transposing the sentences from the day book to the minute book; that this clerical error had been corrected by Judge Coolahan pursuant to R.R. 3:7-14, and that in his opinion the application was without merit. Judge Artaserse, after considering this report and after independent investigation, denied the application on February 24, 1955.
Defendant did not appeal from this order. Instead, he filed another application for a writ of habeas corpus, in forma pauperis , on September 20, 1955, urging the same grounds as before. The application was referred to Judge Coolahan who promptly appointed another attorney to represent defendant. This attorney, after investigation, added another ground
to those urged by defendant, viz. , that his sentence constituted cruel and unusual punishment in the light of New Jersey Constitution, Art. I, sec. 12. Judge Coolahan denied the application on January 5, 1956, after hearing oral argument. He filed an opinion in which he reviewed the entire record from the time of the original sentencing to Judge Artaserse's denial of a writ on February 24, 1955, and held: (1) the stenographic transcript of the sentencing was perfectly clear and was controlling, and the correction of the clerk's error was in conformity therewith; (2) although the consecutive sentences imposed, aggregating 21 to 35 years, were severe, still they were within the ...