On appeal from the Appellate Division of the Superior Court.
For affirmance -- Chief Justice Vanderbilt, and Justices Oliphant, Wachenfeld, Burling, Jacobs and Weintraub. For reversal -- None. The opinion of the court was delivered by Vanderbilt, C.J. Burling, J., concurring in result.
This is an appeal by the defendant from the unanimous affirmance by the Appellate Division of the judgment of the Somerset County Court correcting life sentences illegally imposed upon the defendant in 1947.
Briefly, the facts are these: On December 23, 1947 the defendant was brought before the Somerset County Court of Special Sessions to answer to three separate allegations, each charging in one count a separate armed robbery and in a second count a previous conviction for three high misdemeanors. He pleaded guilty to all of the charges. The court, then believing that R.S. 2:103-10 (now N.J.S. 2 A:85-12) relating to fourth offenders was applicable and that a life sentence in the circumstances was mandatory, imposed such a sentence on each of these allegations, the terms of which were to run concurrently.
In 1953 the defendant, by application for a writ of habeas corpus, sought to question the propriety of the sentence so
imposed upon him. That application, being conceived as improper under In re Kershner, 9 N.J. 471 (1952), was treated by the County Court to whom the matter had been referred by the assignment judge as one for the correction of sentence. The sentences were held to be legal and the proceedings were dismissed. On appeal, the Appellate Division of the Superior Court reversed that judgment holding that:
"Two of the three convictions charged against the defendant, having been disposed of on the one occasion (January 26, 1940), (regardless of whether the record discloses an order for consolidation), were, in fact, consolidated for trial on the same occasion and may, therefore, be considered as only one conviction.
In view of the foregoing conclusions it clearly appears that at the time of the imposition of the life imprisonment sentence in the instant case there was proof of only two separate occasions upon which Culver had previously been convicted of high misdemeanors. The life imprisonment sentence was therefore, erroneously imposed." See 30 N.J. Super. 567-568.
In the majority opinion the Appellate Division indicated that:
"The defendant may apply at any time to the sentencing court for a correction of the invalid sentence so imposed upon him." Id., 30 N.J. Super., at page 568.
One of the judges taking a different view as to the meaning of "three separate occasions" as used in the statute, R.S. 2:103-10, dissented. On appeal to the Supreme Court we affirmed on the opinion below, see 16 N.J. 483 (1954).
Instead of applying for a correction of sentence, the defendant sought to be discharged from custody, asserting that the trial court was without power to resentence him, a theory which he still adheres to on the present appeal. His bid for freedom was denied, and following the denial the prosecutor of Somerset County moved under R.R. 3:7-13 to correct the illegal sentences. The defendant objected to such procedure, urging again that the court lacked the authority to take any such action. The original sentences, however, were set aside and the defendant was then resentenced. On one allegation he received a term of 10 to 15 years for robbery, with an additional consecutive term of 3 to 5 years for being
armed. On another of the allegations he received a similar sentence which was to run concurrently with the first sentence imposed. On the last of the allegations another consecutive sentence of 10 to 15 years was imposed for the robbery but no additional sentence was imposed for being armed. The aggregate prison sentence given him was, therefore, 23 to 35 years; credit was expressly allowed for the time already served by the defendant. No presentence investigation was made before the imposition of these new, corrected sentences.
The defendant then appealed to the Appellate Division where the resentence judgment was unanimously affirmed; see 40 N.J. Super. 427 (1956).
He appealed from that affirmance to this court without leave. The State moved to dismiss this appeal on the ground that the defendant had no appeal as of right to the Supreme Court, R.R. 1:2-1, and further that he had failed to file his brief on appeal within the 30 days provided for such act by R.R. 1:7-12(a). We denied the State's motion and accorded the defendant an opportunity to present his case.
The defendant raises two points. The first is that the resentence judgment was invalid because no presentence investigation was made prior to the imposition of that resentence pursuant to the requirements of R.R. 3:7-10(b). The nature of his argument is that at the time of the resentence, R.R. 3:7-10(b) had been amended so as to provide for such procedure in every case, taking from the sentencing court the discretionary power to waive the presentence investigation.
In disposing of this same argument below the Appellate Division noted that the presentence investigation requirement was not in effect in 1947 when the defendant was originally sentenced, and that our present Rule, R.R. 3:7-10(b), had passed from a discretionary requirement under former Rule 2:7-10(d) to a "mandate of the highest order." The court said:
"While it cannot be characterized as a jurisdictional prerequisite to a valid sentence, its importance to the proper administration of
criminal justice is so great that in proper cases the sentence may be vacated and a remand granted in order to secure compliance.
It must be kept in mind that the case will be rare indeed in which a prisoner can show prejudice stemming from disregard of the rule. Realization of this fact and of the important social purpose to be served by the presentence investigation, ought to stimulate an unswerving adherence to the practice, Cf. State v. Benes, supra [16 N.J. 389]. However, under the unusual circumstances of the present matter, we do not consider it necessary to direct a remand." (40 N.J. Super. 432.)
The unusual circumstances referred to were, of course, the fact that the defendant had spent more than seven years in prison under the observance of the authorities, during which time they had an excellent and ample opportunity to gain first-hand knowledge of the defendant's conduct and attitudes and to appraise his progress toward rehabilitation. This is indeed substantially more informative than the "definite minima of the facts and circumstances which bear on a just sentence" conceived to be necessary by the Committee on Improvement of Sentencing and Probation Procedures for intelligent and fair sentencing of criminal offenders; see the report of that committee in 75 N.J.L.J. 329, 333 (September 18, 1952).
We are in accord with the views expressed there, but even in the circumstances of this case an endeavor should have been made to approximate more closely the mandate of the rule presently in effect.
The other point raised by the defendant is that in spite of the provisions of R.R. 1:5-1(c), R.R. 3:7-10(c), R.R. 3:7-13 and 15 dealing with the correction of an illegal and improper sentence, the trial court was without power to resentence him after his original sentence had been partially executed. He asserts that at common law a court had no power to correct an illegal sentence and that prior to the statutes changing the common law and authorizing the correction of illegal sentences, the first of which was L. 1898, c. 237, p. 866, the court had to set ...