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State v. Zachowski

Decided: January 13, 1959.


Schettino, Hall and Gaulkin. The opinion of the court was delivered by Hall, J.A.D.


Defendant appeals from the denial by the Mercer County Court of his motion to vacate a sentence imposed upon him. Execution of the sentence was originally suspended and he was placed on probation. The probation was subsequently revoked and execution of the sentence ordered. He claims the revocation was directed in violation of his constitutional rights and the sentence is therefore void.

In May 1952 defendant pleaded non vult to one count of an indictment in that court which charged him with receiving stolen goods. He had a long criminal record and was then on parole from his last sentence to the State Prison. After a plea for leniency by his attorney, the court imposed a sentence of not less than two nor more than three years in the State Prison, the execution of which was suspended, and placed defendant on probation for a three-year period. No special conditions of probation were specified (N.J.S. 2 A:168-2). The judge said at the time that the disposition was perhaps against his better judgment and if "you are brought back here again for violation of probation of any sort you can't expect any consideration from this court at all."

On June 5, 1953 defendant pleaded guilty through his attorney to two accusations in the same court, one charging breaking and entering while armed, and the other, carrying a concealed firearm. Both crimes were committed in May of that year while he was on probation. At the time of sentence a week later before the same judge, his counsel, in urging as much consideration as possible, indicated complete familiarity with defendant's past record, including his

then present status, stating in effect that no reason could be suggested why he "would resort to doing this thing all over again, [staring] * * * in his face the possibility of going back to the institution from whence he came." The trial court (not the judge who had acted a year earlier) commented, before imposing sentence, on defendant's long record and that he was then on probation, matters obviously presented to the court by the probation department in its pre-sentence investigation report (N.J.S. 2 A:168-4). He sentenced defendant to 2 1/2 to 3 years on the concealed weapon charge and 10 to 12 years on that for breaking and entering. The judge went on to say that the offenses constituted a violation of probation, which he thereupon revoked, and committed defendant to serve the sentence suspended in 1952. All three sentences were directed to run consecutively, and he is presently serving them. No objection or comment of any kind was made by defendant's counsel. It does not appear that defendant was given any advance notice of the proposed revocation of probation.

A few months later defendant sought to vacate the sentence on the concealed weapons charge by direct petition to this court. The application was dismissed in an unreported opinion (A-14-53). No contention was then made with respect to the revocation of probation.

The asserted basis of the instant motion, made more than four years later, is that the sentence activated upon the revocation is null and void because the revocation was had in violation of procedural due process. Defendant contends he was constitutionally entitled to have notice of the charge of violation of probation formally made by a filed document, to have the same read to him in open court, to plead thereto with appropriate advice from the court as to his rights and to a jury trial if the charge be denied. He further urges that on such a trial his guilty plea to the subsequent crimes could have no effect and the State must formally prove all the elements of the probation violation as a separate and distinct charge. The failure to follow this procedure here

is said to invalidate the action and the sentence. It is of significant note that he does not claim that the commission of further crimes while on probation does not constitute a violation thereof, that he had not in fact violated his probation, or that he had any defense or excuse whatever to offer to such a charge. Nor does he offer any explanation why he and his attorney were silent on the revocation determination on sentencing day.

It may appropriately be observed at this point that the motion was presumably made pursuant to R.R. 3:7-15(a), which has been construed as the mechanism to provide relief from a void sentence as well as to correct an illegal one. Manda v. State , 28 N.J. Super. 259 (App. Div. 1953). If defendant's contentions have any merit, relief would amount to vacation of the revocation and execution of sentence, a new hearing meeting procedural requisites, and, if violation of probation were thereby established, the execution of the original sentence or the imposition of any sentence which might originally have been imposed for the crime. N.J.S. 2 A:168-4; In re White , 18 N.J. 449 (1955). In the instant case, a high misdemeanor (N.J.S. 2 A:139-1), defendant could be resentenced to a maximum of seven years imprisonment prescribed for such offenses (N.J.S. 2 A:85-6), instead of the two to three year term originally imposed and activated on this revocation.

There cannot be the slightest doubt, from a substantive standpoint, that, consonant with the theory and purpose of probation, commission of further crime while in that status is automatically a violation thereof and that every probationer must be held to know that even where specific conditions of probation may not have been prescribed. The former Supreme Court well expressed this fundamental in State v. Pascal , 133 N.J.L. 528 (Sup. Ct. 1946):

"An offender is placed on probation because a court considers that he may be reformed and is persuaded that probation in the particular case is not inimical to the well-being of society generally * * *. The very term 'probation' connotes to the average mind an ...

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