Stanton, Hall and Gaulkin. The opinion of the court was delivered by Hall, J.A.D.
[52 NJSuper Page 5] This consolidated appeal is from a judgment entered in the Monmouth County Court denying
without hearing an application for a writ of habeas corpus and a final order in the Passaic County Court denying a subsequent motion for a "writ of error coram nobis * * * and for such other and further relief as may be just and proper." Appellant is confined in the State Prison under a life sentence as an habitual criminal imposed in Monmouth County on October 11, 1951. R.S. 2:103-10, as amended, L. 1940, c. 219 (now N.J.S. 2 A:85-12 and 13, as amended, L. 1953, c. 166). The object of both proceedings, prosecuted by assigned counsel, was the same, viz. , to vacate for alleged constitutional reasons, the first conviction (in which the sentence had been fully served) of the four, in order of time, for high misdemeanors on which the habitual criminal charge and life sentence were grounded, seeking thereby to void that sentence ultimately. It should be kept in mind that the Multiple Offender Law cited does not create a new or separate offense; the theory of the statute is that proof of the former convictions simply authorizes the court to impose the greater punishment for the substantive crime (the fourth high misdemeanor) then being dealt with. Worbetz v. Goodman , 47 N.J. Super. 391, 405 (App. Div. 1957).
The conviction in question was had on a charge of breaking and entering with intent to steal, in the Passaic County Court of Special Sessions, on a trial without a jury held January 17, 1930, at which appellant defended himself, following his written waiver of indictment and trial by jury executed January 13, 1930 and plea of not guilty entered to an allegation in three alternative counts on January 16, 1930. He was sentenced on the 17th to an indeterminate term in the Rahway Reformatory, and institutional records disclose to us that the sentence was served and he was paroled on December 27, 1930. The three subsequent convictions for high misdemeanors involved in the life sentence occurred in 1933 in Bergen County, in 1938 in Mercer County and in 1951 in Monmouth County.
Events leading up to the present proceedings actually began in Monmouth County in 1946. From that time to
1953 Janiec engaged in continuous litigation reaching our appellate courts concerning such occurrences and related to the instant matters. A brief resume thereof assists in putting this appeal in its proper light. In the fall of 1946 several indictments were returned against him in that county, including one charging him as an habitual criminal based on the three prior high misdemeanor convictions in Passaic (the one concerned in the present litigation), Bergen and Mercer Counties and on two other such crimes (breaking and entering and larceny) in Monmouth alleged in the indictment for the first time, i.e. , on which there had been no conviction at the time the indictment was returned. On December 2 and 3 he was convicted on two robbery indictments tried together and on a third indictment for escape. The grand jury immediately on December 3 returned another indictment charging him again as an habitual criminal based on the same three prior out-of-county convictions and one of the robbery convictions just had. Janiec pleaded not guilty to it, but it was never moved for trial, nor was the earlier habitual criminal indictment at that time. He was shortly thereafter sentenced to terms of imprisonment on the escape conviction and one of the robbery convictions and to life imprisonment on the other robbery conviction, even though the latter indictment had not alleged the prior convictions or charged him as a multiple offender and no hearing had been had or proof on the same presented.
He first sought to review the life sentence by application for habeas corpus to the Mercer County Court of Common Pleas. The writ was denied and the denial upheld by the Supreme Court, the opinion being reported In re Janiec , 137 N.J.L. 94 (1948), in which the court said his remedy was by appeal. He appeared pro se in this proceeding. The United States Supreme Court denied certiorari. Janiec v. State of New Jersey , 336 U.S. 939, 69 S. Ct. 742, 93 L. Ed. 1098 (1949). Then he sought to appeal the imposition of the life sentence as well as the robbery and escape convictions. Counsel was assigned. The Appellate Division refused to review the convictions because the appeal
therefrom was not timely taken, but set aside the life sentence because of failure to charge and prove adequately, with all safeguards of due process to the defendant, the elements of the status of habitual criminality. The matter was remanded for appropriate sentence on the robbery indictment as to which the life sentence had been found wrongly imposed. State v. Janiec , 9 N.J. Super. 29 (App. Div. 1950). On defendant's appeal the Supreme Court affirmed the refusal to review the convictions. 6 N.J. 608 (1951). Certiorari was denied. 341 U.S. 955, 71 S. Ct. 1007, 95 L. Ed. 1376 (1951). Thereafter, in June 1951 a sentence of a term of years was substituted for the life sentence on this robbery indictment. At the same time he was convicted for contempt in facie curiae and sentenced to a term of one year therefor.
The next proceeding was an application for a writ of habeas corpus to review his convictions on the escape charge and the robbery charge which had not involved the life sentence. He also sought to appeal thereby from the other robbery conviction in which he had just been resentenced. The writ was denied and the denial affirmed on appeal. State v. Janiec , 15 N.J. Super. 445 (App. Div. 1951), certiorari denied 342 U.S. 894, 72 S. Ct. 203, 96 L. Ed. 670 (1951). Janiec acted as his own counsel in these proceedings. The principal basis asserted for the relief were numerous alleged violations of constitutional rights by law enforcement officers prior to trial. This court commented in its opinion:
"Although Janiec has litigated his convictions through several courts, this action, for the first time, raises questions of violations of constitutional rights and procedural errors. We are of the opinion that in view of the defendant's failure to raise these issues previously in the protracted litigation of his convictions, his rather belated assertions of violations of constitutional rights may be justifiably dismissed as spurious." (15 N.J. Super. at page 449).
Prior to this decision of the Appellate Division, he was tried in 1951 on the original indictment charging him with
breaking, entering and larceny and as an habitual criminal (not the second such indictment returned December 3, 1946) and found guilty by the jury of larceny and the multiple offender charge, the latter based on the larceny conviction simultaneously returned and the three prior ones in Passaic, Bergen and Mercer counties. A life sentence was imposed -- the sentence here involved. Janiec appealed pro se. This court affirmed the larceny conviction, but reversed that as an habitual offender for error in the court's charge, remanding the case for redetermination of sentence. State v. Janiec , 20 N.J. Super. 471 (App. Div. 1952). The state appealed and the Supreme Court reversed, reinstating the verdict, sentence and judgment in the County Court. 11 N.J. 397 (1953).
It is significant that Janiec did not challenge at the trial or on the appeals any of these three prior convictions in any way or on any ground. He was represented by competent court-appointed counsel and had every opportunity to do so. The Supreme Court found that there was ample proof of them at the trial and that they were not denied by defendant. On the stand he said: "I remember being convicted but I can't give you the dates."
The final reported appellate chapter until the present was an appeal to this court from the contempt conviction, in which Janiec also acted as his own counsel. State v. Janiec , 25 N.J. Super. 197 (App. Div. 1953). The flat one-year sentence was held erroneous on the basis that a minimum and maximum term was required and the matter remanded for appropriate re-sentence. It does not appear whether such took place.
Appellant's challenge to the 1930 conviction in the instant proceedings is based on a claim of violation of constitutional rights in failure to have counsel to defend him or to be advised of his right to the same. The allegations in support of the claim are thus set forth in his affidavit annexed to his notice of motion for coram nobis (his habeas corpus application is not contained in the appendix submitted but we understand it was substantially identical):
"2. I make this affidavit in support of an application to set aside the prior judgment of conviction entered in this Court on the 17th day of January, 1930, upon the ground that at the time of my arraignment and trial as well as during all subsequent proceedings, I was not represented by counsel and was not advised that I was entitled to such representation or that if I was without funds and desired counsel the Court would assign counsel to me.
3. I was arrested on January 7, 1930, charged with the crime of breaking and entering with intent to steal in the City of Passaic at which time I was of the age of seventeen years. I was arraigned on said charge on January 16, 1930 and pleaded not guilty thereto. I waived indictment by the Grand Jury and trial by jury and was tried for said offense on the next day, to wit, January 17, 1930. I was not represented by counsel at the arraignment, trial or at any stage of the proceedings nor was I advised that I was entitled to such representation or that if I was without funds that the Court would assign counsel to me. I understand -- and I refer to the affidavit of my attorney submitted herewith -- that the records of the above proceedings show no representation by counsel on my behalf. I believe they also fail to mention the name of an attorney who might have represented me.
4. I distinctly recall defending myself in this proceeding and being of tender years. I did not fully understand the import of my waivers of indictment or trial by jury. I had been in difficulty before but never in a position like the above mentioned where I had to stand trial alone. My prior contacts with the law were, I believe, juvenile matters and in 1930, I had had very little schooling -- having left school at an earlier age. I know that if I realized the seriousness of the charge and of its results, I would not have waived any of my ...