Goldmann, Freund and Haneman. The opinion of the court was delivered by Goldmann, S.j.a.d. Haneman, J.A.D. (dissenting).
Jenkins, through counsel assigned by this court, appeals in forma pauperis from a County Court order denying his application for a writ of habeas corpus.
Jenkins was arrested on charges of armed robbery, theft of an automobile and carrying a concealed weapon, and brought before the Newark Municipal Court where he executed a written waiver of his right to indictment and trial by jury. On May 2, 1955 he was arraigned before the Essex County Court on 11 accusations: in 6 he alone was charged with armed robbery; in 3 he and one Young were jointly
charged with armed robbery; and in the 2 others he was charged with automobile theft and carrying a concealed weapon. The accusations covered a series of crimes crowded into the two-month period of February 13 to April 13, 1955, on which date Jenkins was taken into custody.
The arraignment proceedings began with the court crier making the following inquiry:
"COURT CRIER MICHAEL J. DOYLE: Do you have a lawyer, Mr. Jenkins?
MR. DOYLE: Are you financially able to employ one?
MR. DOYLE: Do you wish the court to assign a lawyer before you plead?
The judge asked Jenkins what plea he intended to enter, and he answered "Guilty." The court then asked one of the attorneys present, a respected member of the New Jersey Bar, if he would consult with Jenkins. When he indicated he was willing, the court asked him if he would also speak with the co-defendant, Young. After he had done so, all three appeared before the judge and the attorney represented that he had reviewed with Jenkins all 11 accusations, that the prisoner understood precisely what his constitutional rights were and that he nonetheless desired to plead guilty. The attorney also stated that he had explained the waiver of indictment and trial by jury which Jenkins had signed, that the prisoner understood the waiver, that he was willing to proceed without a jury and wished to waive the reading of the accusations. After the assistant prosecutor had ascertained from Jenkins that he had read the accusations and had them read to him, that he wanted to plead guilty to each of them, and that in pleading guilty he was admitting the truth of the charges, the court accepted the pleas and fixed May 11, 1955 for sentence.
On sentencing day Jenkins was brought before another judge of the County Court who proceeded to review with
him the substance of each accusation and his pleas of guilty. The following then ensued:
"THE COURT: Is there anything you want to say before I impose sentence upon you?
THE COURT: You have no previous record?
The court imposed State Prison sentences on Jenkins of 5-10, 5-10 and 3-5 years, respectively, on the three accusations charging him and Young with armed robbery, and 5-10 years on the charge of carrying a concealed weapon. These terms were to be served consecutively, and totaled not less than 18 nor more than 35 years. Sentence on the remaining seven accusations against Jenkins were suspended. The County Court judge then said:
"* * * It does not come easy to a judge to sentence a youngster eighteen years old to a term of eighteen to thirty-five years. Although the age of defendant is to be taken into consideration in certain circumstances, when we deal with a series of offenses as serious and as numerous as yours the only break that a judge can give you is not to give you the maximum on each.
On each of these offenses I could have added up a total of at least twice, almost three times, what I gave you. When I only give you eighteen to thirty-five years I give you the benefit of every break. There is no justification for what you did. And I find absolutely nothing in what you did and the way you did it which bespeaks anything less than the sentence I gave you."
The foregoing constitutes substantially all that transpired at the sentencing. Although Jenkins had had the benefit of consulting with an attorney at the time of his plea, counsel was under no continuing responsibility to advise him thereafter. Jenkins was not represented when he appeared for sentence; the sentencing judge did not advise him of his rights in this respect, nor did he inquire whether Jenkins desired to have or to waive the assistance of counsel.
In November 1957 Jenkins made application to the Essex County assignment judge for a writ of habeas corpus. The matter was referred to a County Court judge -- not the one who had taken the plea nor the one who had imposed sentence
-- for disposition. In his application defendant claimed that (1) he could not have intelligently waived indictment because he did not have the benefit of counsel at the time and because of his age and lack of experience with the law; (2) he pleaded guilty because officers of the robbery squad, whom he did not know by name but could identify in a "lineup," promised that he would receive a five-year indeterminate reformatory sentence if he would admit the crimes and enter a plea thereto; (3) his confession was coerced by the investigating officers; (4) he was held incommunicado until his confession had been obtained; (5) he was incarcerated for ten days before being arraigned; (6) he was denied the timely assistance of counsel, and did not have the benefit of effective counsel because his consultation with the designated attorney lasted only five to ten minutes; (7) he was unable intelligently, by reason of lack of schooling, age and mental makeup, validly to waive indictment, plead and properly answer at the time of sentence; (8) the sentences imposed were unusually severe in view of these circumstances and the fact that he had no prior record; and (9) he did not have the benefit of counsel at the time of sentence, nor was he advised of his right to counsel.
Jenkins was assigned counsel to represent him on the application for the writ. Prior to the hearing he was examined by members of the staff of the State Hospital, and their reports were introduced in evidence by consent. Assigned counsel had also been granted leave to have his client examined by physicians of counsel's own choosing. This was done by two residents in psychiatry at the Yeshiva University, New York City. However, because the State Hospital staff reports were not concluded until very shortly before the hearing, the formal report of the residents in psychiatry was not ready at the time of the hearing, and the county judge refused to permit it to be filed later. Counsel had requested this independent examination for the sole purpose of aiding the court in determining whether the sentences imposed were appropriate in Jenkins' circumstances, and
not to establish his mental incapacity to commit the crimes or intelligently to comprehend his waiver of indictment and trial by jury and his plea.
At the hearing on the application for the writ the principal point urged on Jenkins' behalf was that his lack of counsel at sentencing and the failure of the trial judge to inform him of his right to counsel was prejudicial and rendered the sentences nugatory. It was claimed that had Jenkins then had such legal assistance, counsel might have developed some of the personality deficiencies with which the prisoner was afflicted and called to the court's attention significant background features that would have secured his client a more favorable sentence. Although counsel reserved the right to argue the other grounds alleged in the application for the writ, the hearing was exclusively concerned with the issue of the right to counsel at the sentence. No testimony was taken. The county judge limited his consideration to that single contention and denied the writ.
On this appeal Jenkins urges six main points. The first three involve his constitutional right to counsel at the sentencing, and these include as sub-points the arguments that he did not waive the right and that failure to communicate to the court the promise which induced his pleas of guilty rendered the sentence invalid in the absence of counsel. The fourth point is that Jenkins was entitled at the time of sentencing to an opportunity to make a statement in his own behalf and to present any information in mitigation of punishment. The fifth is that the County Court judge, in denying the writ, failed to pass upon any of the allegations of the habeas corpus petition other than lack of counsel at the time of sentence. The final contention is that the court should have admitted in evidence and considered the report of the prisoner's own physicians.
At the time of sentence Jenkins was within a week of turning 19. The State Hospital reports considered on the application for the writ were based on a "rapid evaluation" (the phrase used by the clinical director) in the following
areas: (1) neurological -- no evidence of organic disease of the nervous system; (2) psychological -- patient low in the average range of the intelligence scale, this to be considered against the background of defective verbal abilities and high average psycho-motor skills; difficulty in reading and spelling, and inability adequately to explain sentences which he appeared to understand (a pattern typically found in individuals who show long-standing, generalized cerebral dysfunctioning in the left hemisphere); patient a somewhat withdrawn, overly cautious young man who is suspicious of the motives of other people, and capable of aggressive, anti-social behavior without having to feel concerned about those he might hurt; no evidence of psychosis; (3) electroencephalogram -- "Impression: Normal Routine 8 Lead Electroence-phalogram"; (4) psychiatric -- no peculiarities indicative of psychosis, but patient gives the impression of being basically inadequate, unstable and rather immature individual; powers of reasoning and comprehension evidently mature to some extent; unable to give any explanation for his criminal activities; an accident at age nine resulted in head injuries and a three-months' hospitalization; patient denies epileptic seizures or any dizzy spells; he is unable to read or write except for a few simple words, and his insight and judgment are somewhat defective; no physical abnormalities; "Impression: Personality Pattern Disturbance, Inadequate Personality."
Technically, the application here should have been for vacating the sentences as invalid and for resentence after Jenkins had had the help of assigned counsel, appearing with him at the resentencing. It has been said that the writ of habeas corpus will not ordinarily issue when other adequate relief to correct error is available to the applicant, or when he would not be entitled to an immediate release. In re Kershner , 9 N.J. 471, 476 (1952). There is some indication that where an issue as to the legality of a sentence
arises dehors the record, the remedy is by habeas corpus. McIntosh v. Pescor , 175 F.2d 95, 98 (6 Cir. 1949) -- dictum; but cf. Byrd v. Pescor , 163 F.2d 775, 779 (8 Cir. 1947). See Manda v. State , 28 N.J. Super. 259, 264 (App. Div. 1953), commenting on these cases and stating that the strong tendency of the law of this State is against building up separate forms of action; "a party should not be put out of court if through error he selects the wrong form." Assigned counsel points out that the issue here arises both on the record (the lack of counsel) and also dehors the record (the alleged promise of leniency made to Jenkins which induced his pleas). The requirement that the petitioner be entitled to an immediate release is modified if, in the court's opinion, the circumstances required that some remedy be afforded. Jablonowski v. State , 29 N.J. Super. 109, 114 (App. Div. 1953). Our courts generally permit latitude on matters of form in applications of this character. Cf. In re Somers , 43 N.J. Super. 234, 237-238 (Law Div. 1957), where the court treated an application for a writ of habeas corpus as the equivalent of an appeal from a refusal to correct a sentence.
The State meets Jenkins' contention that he was constitutionally entitled to the assistance of counsel when he was sentenced by a much broader argument which seeks to block out every possible claim under this head. It is the position of the State that there was a full compliance with the pertinent rules of practice and procedure, both after the arraignment and at the sentencing, under R.R. 1:12-9(a) and R.R. 3:7-10(c); that Jenkins had the benefit of assigned (sic) counsel at the arraignment, and with his assistance entered pleas of guilty voluntarily and understandingly; and that at the time of sentencing, "although defendant was not then represented by counsel (not provided for in the rule), the judge complied with every requirement of the rule,
R.R. 3:7-10(c), and under the circumstances of the case, defendant cannot complain of any denial of constitutional right or due process of law, particularly where at the time of sentencing defendant failed to call the court's attention to the absence of counsel and there has been no clear showing how defendant was in any manner prejudiced by lack of counsel."
It is significant that the State does not squarely meet the defense argument that Jenkins did not waive his constitutional right to the benefit of counsel, present and arguing in his favor at the time of sentence. As we shall point out in III below, Jenkins did not waive that right. If his petition is to be denied, it should be done by squarely meeting and rejecting the constitutional argument he advances, and not by implying a waiver where none in fact existed.
Jenkins does not rest his argument on our rules of procedure. They do not, in express terms, grant him the right to counsel at sentencing, but they are susceptible of a construction consistent with his position. If it be found that the Constitution does require counsel at the time of sentence, no violence would be done to the rules by its enforcement.
R.R. 1:12-9(a), which appears under the general heading of "Practice of Law," requires that
"Where a person charged with crime appears in any court, without counsel, the court shall advise him of his right to counsel and of the privilege of having counsel assigned, if indigent, and assign counsel to represent him unless he elects to proceed without counsel or is able to obtain counsel. * * *"
This language is of sufficient breadth to encompass a defendant's appearance for sentencing. R.R. 1:12-9(b) recognizes the appropriateness of counsel at the time of sentence because it directs that "The duties of counsel assigned pursuant to paragraph (a) of this rule shall continue through and end after sentencing and the order assigning him shall so provide." (This language is the result of
a 1958 rule amendment. The rule as it stood when Jenkins was arraigned and sentenced in 1955 required assigned counsel to represent his client not only at the trial but after sentence, on an appeal and in proceedings to correct an illegal sentence or for a writ of habeas corpus. Thus, the rule contemplated that once counsel was assigned he would serve through each step in the proceedings involving his client.) In 1955, as now, the Supreme Court recognized a defendant's need for counsel at the time of sentence, unless he expressly and understandingly waived that right.
The State stresses the fact that R.R. 3:7-10(c), which sets out the procedure at the time of sentence, does not mention the presence of counsel. From this it argues there is an inference that the presence of counsel is not required at that time. It contrasts this situation with the procedure on arraignment where, it says, the rules expressly state that counsel shall be present. True, R.R. 3:7-10(c) is silent on the question of counsel. True, also, that R.R. 3:2-3(b), relating to preliminary hearings, requires a magistrate to inform a defendant of his right to retain counsel or, if indigent, of the privilege of having counsel assigned; and that under R.R. 3:5-1, dealing with pleas on arraignment, the court before accepting a plea shall require the defendant to complete a questionnaire in the form of Criminal Procedure Form 13A. (This form inquires whether defendant is represented by an attorney; if not, is he able to afford the services of one and, if unable to do so, does he want the court to assign an attorney to represent him.) But it does not follow that because R.R. 3:7-10(c) is silent on the matter, the presence of counsel is not required. The spirit of our rules is that a defendant shall have the benefit of consulting and advising with an attorney at every significant step of a criminal cause, including the sentence, unless he knowingly and intelligently relinquishes that right.
We observe that under Part VIII of the Rules, governing practice in the local criminal courts, R.R. 8:4-2 describes the procedure at arraignment but does not mention the
presence of counsel. R.R. 8:3-3(b), dealing with the preliminary hearing, does say that in that proceeding the defendant shall be apprised of his right to have counsel appointed, if indigent. And yet it cannot be denied that counsel is just as important to a defendant on arraignment before a magistrate as at the preliminary hearing, and unless he has waived the right to legal representation at that hearing, he must be represented at the arraignment. The rules governing each successive stage of a criminal proceeding do not expressly state that counsel shall be present at, for example, the arraignment, the impaneling of the jury, throughout the trial, or at the time of sentencing. But in our view the mandate of R.R. 1:12-9(a) infuses every material step in a criminal proceeding, absent waiver of counsel. In short, the silence of R.R. 3:7-10(c) does not negate the existence of the right to counsel at sentence.
However that may be, the issue transcends the rules; it must be resolved on constitutional grounds. It is claimed that the sentencing of Jenkins without counsel being present deprived him of due process under the Fourteenth Amendment to the United States Constitution. It is, of course, necessary to keep clear the distinction between the obligation placed on the courts of New Jersey by the Fourteenth Amendment and that which stems from our own State Constitution, Art. I, par. 10. The former requires only that a criminal defendant be accorded "due process of law." Assigned counsel acknowledges that the United States Supreme Court has held that in non-capital cases the right to counsel is not mandatory upon the states in all circumstances, Betts v. Brady , 316 U.S. 455, 62 S. Ct. 1252, 86 L. Ed. 1595 (1942); Bute v. Illinois , 333 U.S. 640, 68 S. Ct. 763, 92 L. Ed. 986 (1948), but argues that Jenkins' youth, ignorance and inexperience, and his reliance upon the promise given him by the police, makes this a case where failure to afford him counsel at sentencing violated the due process clause of the Fourteenth Amendment, citing Green v. Robbins , 120 F. Supp. 61 (D.C.S.D. Me. 1954), affirmed
Robbins v. Green , 218 F.2d 192 (1 Cir. 1954); Uveges v. Pennsylvania , 335 U.S. 437, 69 S. Ct. 184, 93 L. Ed. 127 (1948); Moore v. Michigan , 355 U.S. 155, 78 S. Ct. 191, 2 L. Ed. 2 d 167 (1957). Cf. Powell v. Alabama , 287 U.S. 45, 53 S. Ct. 55, 77 L. Ed. 158, 84 A.L.R. 527 (1932) (death sentence), and cases there cited. We are referred to the language in such cases as Crooker v. California , 357 U.S. 433, 78 S. Ct. 1287, 2 L. Ed. 2 d 1448 (1958); Cicenia v. Lagay , 357 U.S. 504, 78 S. Ct. 1297, 2 L. Ed. 2 d 1523 (1958); and United States ex rel. Stoner v. Randolph , 165 F. Supp. 284 (D.C.E.D. Ill. 1958); and a line of cases like Twining v. New Jersey , 211 U.S. 78, 29 S. Ct. 14, 53 L. Ed. 97 (1908); and Adamson v. California , 332 U.S. 46, 67 S. Ct. 1672, 91 L. Ed. 1903, 171 A.L.R. 1223 (1947), rehearing denied 332 U.S. 784, 68 S. Ct. 27, 92 L. Ed. 367 (1947), which hold that although the Federal Constitution does not make the recognition of the Fifth Amendment privilege against self-incrimination obligatory upon the states, if a state independently recognizes the privilege, the due process clause of the Fourteenth Amendment requires that it permit no unfavorable presumption to arise upon its exercise.
Although the argument based upon the rationale of these cases may be deemed pertinent and perhaps in a measure persuasive, we prefer, in considering whether the right to counsel extends to the time of sentencing, to rest our decision on the provisions of our own State Constitution.
The right to counsel is, of course, fundamental to the administration of criminal justice in New Jersey. The Constitution of 1947, Art. I, par. 10, contains a requirement much more explicitly stated than "due process." It provides that "In all criminal prosecutions the accused shall have the right * * * to have the assistance of counsel in his defense." See State v. Ballard , 15 N.J. Super. 417, 420 (App. Div. 1951), affirmed 9 N.J. 402 (1952). This right is recognized by R.R. 1:12-9(a), discussed above, a rule which embodies a practice initiated in this State by statute
as early as 1795 and apparently the first of its kind in the country. Beaney, The Right to Counsel in American Courts , 21 (1955). The guarantee of counsel provided by our Constitution is practically identical with the Sixth Amendment to the Federal Constitution which, of course, applies only to the federal courts.
The wording of the State Constitution is imprecise as to the outer limits of this right to counsel. It is a declaration of a right, a principle, which can only attain specificity through judicial decisions, statutes and rules, which implement it and give it definite content. It would be possible to give a narrow construction to this declaration of the right to counsel by a literal reading of the words "prosecutions," "accused," and "defense." These terms could carry an implication that the Constitution of 1947, like that of 1844 (Art. I, par. 8), is concerned only with a defendant's representation at a trial in which he has denied his guilt. Neither our courts in interpreting Art. I, par. 10, nor the federal courts in interpreting the Sixth Amendment to the Federal Constitution, have thus narrowly circumscribed the right to counsel. See, for example, Carter v. Illinois , 329 U.S. 173, 178-179, 67 S. Ct. 216, 91 L. Ed. 172 (1946); Von Moltke v. Gillies , 332 U.S. 708, 721, 68 S. Ct. 316, 92 L. Ed. 309 (1948).
A defendant clearly has a constitutional right to the assistance of counsel before he pleads guilty to a charge against him, and a failure to inform him of this right will vitiate his conviction on such a plea. State v. Griffith , 14 N.J. Super. 77 (App. Div. 1951). But the right to counsel does not stop there. We are concerned with whether a defendant, under the circumstances here present, is entitled to counsel at his sentencing. That the aid of counsel at that stage of the proceeding may well be of greater importance than on the plea was suggested by the Supreme Court of the United States in Carter v. Illinois , above, 329 U.S. 173, at pages 178-179, 67 S. Ct. 216, at page 220,
affirming a murder conviction of 99 years' imprisonment, where it was said:
"* * * A trial court may justifiably be convinced that a defendant knows what he is about when he pleads guilty and that he rightly believes that a trial is futile because a defense is wanting. But the imposition of sentence presents quite different considerations. There a judge usually moves within a large area of discretion and doubts. Such is the situation under Illinois law. The range of punishment which a judge in Illinois may impose for murder is between fourteen years and death. It is a commonplace that no more difficult task confronts judges than the determination of punishment not fixed by statute. Even the most self-assured judge may well want to bring to his aid every consideration that counsel for the accused can appropriately urge. In any event, the designation of counsel to assist the accused at the sentencing stage of the prosecution in no wise implies that the defendant was not capable of intelligent self-protection when he pleaded guilty. * * *"
It seems to us that a constitutional provision declarative of what the framers considered a fundamental right must be given a construction which will accord with the basic premise of the declaration -- that is, insofar as it can practically be accomplished, a criminal defendant should be accorded the opportunity to have counsel for whatever purposes he may need counsel. We have, as noted above, recognized this in our rules by providing that where a person charged with crime appears in any court without counsel, he shall be advised of his right to counsel and the privilege of having counsel assigned, if indigent. Counsel shall be assigned unless the person charged elects to proceed without one or is able to obtain his own counsel. R.R. 1:12-9(a). The duties of assigned counsel shall extend through the time of sentencing. R.R. 1:12-9(b). And we have also provided for the appointment of counsel where an indigent person convicted of crime desires to take an appeal, or to institute proceedings to correct an illegal sentence or for a writ of habeas corpus. R.R. 1:12-9(c).
The federal courts have been practically unanimous in holding that the Sixth Amendment right to counsel applies
to the time of sentencing. State courts have not been. New Jersey has one case in which the existence of such a right was denied. In State v. Rose , 40 N.J. Super. 40, 52 (Cty. Ct. 1956), the county judge, after very brief discussion, flatly stated that there was no guarantee of right to counsel at sentencing under our State Constitution. But counsel there, while absent at the sentencing, had in fact made a plea for leniency prior to sentence, thus discharging the important function attributed to him in Carter v. Illinois , above. The court declared that the practice of hearing counsel and defendant separately was not a desirable one, but held there was no prejudice because the prisoner was present at the imposition of sentence. The county judge observed that counsel should have remained for the actual sentencing; it was his duty to do so.
The court in the Rose case quoted from State v. Murphy , 87 N.J.L. 515 (E. & A. 1915), which involved a claim by defendant that he had a constitutional right to consult with counsel before deciding to confess to the crime. In correctly denying the claim our highest court said that the word "defense" in the State Constitution meant that the right to counsel applied to representation when put in jeopardy, and the right to consult with him in preparing a defense. On appeal in Rose the Appellate Division, while affirming on a number of points determined by the County Court, did not affirm the rejection of the right to counsel on sentencing. On the contrary, it noted the possibility that sentences had been improperly pronounced on repugnant offenses and stated, 41 N.J. Super. 434, at pages 436-437 (1956):
"This characteristic of the sentencing proceedings assumes material significance in that petitioner's attorney was not then present to invite the court's attention to the inconsistent counts. * * *
In the light of the conditions here admittedly existing, we feel impelled to say that if the petitioner in his discretion desires in a proper manner to apply for a resentence, his request should be granted. * * * It is noted that the other complaints asserted by the petitioner also relate essentially to the sentencing proceedings."
Contrast with Rose the case of In re Sabongy , 18 N.J. Super. 334 (Cty. Ct. 1952), where the court inclined toward recognition of the right to counsel at sentencing. Sabongy and his co-petitioner in habeas corpus , Torzillo, had confessed to a series of crimes in Bergen and Essex Counties. A Bergen county judge imposed a sentence of from 12 to 15 years. Some months later the petitioners were brought to Essex County to plead to an indictment. The assistant prosecutor of that county, convinced that this crime had been considered along with the whole series of offenses when sentence was imposed in Bergen County, promised petitioners that he would recommend concurrent sentences to the Essex sentencing judge. Petitioners, relying on this assurance, pleaded non vult , their counsel not appearing. The Essex judge, who had not been informed of the assistant prosecutor's recommendation, imposed a sentence consecutive to the Bergen County sentence, again in defense counsel's absence. In a habeas corpus proceeding brought ten years later Judge Hughes referred to the well-known rule that a prosecutor's recommendation could not bind the sentencing court. However, he considered the lack of counsel resulting from the anticipated recommendation by the assistant prosecutor as of great significance:
"The importance of the unfulfilled promise to make this recommendation, however, lies not in the failure of performance, nor in the failure of the court to impose a concurrent sentence, but in the consequences in respect of the presence of counsel and the assistance thereof in connection with entering the pleas, and at the imposition of sentence. Mr. DeLuccia, counsel for Torzillo in the Bergen County cases, was certainly absent when these pleas were entered and sentences imposed only by reason of the well-founded expectation that concurrent sentences would be recommended and would probably be imposed upon these defendants. There was such an exact community of interest between Sabongy and Torzillo that the lack of counsel familiar with the existing situation is directly attributable to the same cause. The entry ...