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State v. Pohlabel

Decided: May 6, 1960.


Goldmann, Conford and Freund. The opinion of the court was delivered by Freund, J.A.D.


Defendant, Lawrence Pohlabel appeals from an order of the Superior Court, Law Division, Hudson County, denying a motion, prosecuted on his behalf by assigned counsel, pursuant to R.R. 3:7-15, to vacate an allegedly illegal and improper sentence. The sentence was imposed on April 6, 1951 by County Judge Ziegener, now deceased, following pleas of non vult to seven indictments charging forgery in violation of R.S. 2:132-1, now N.J.S. 2 A:109-1. Defendant is presently confined in the New Jersey State Prison serving seven three to five year consecutive sentences, an aggregate term of 21 to 35 years.

Defendant does not deny his guilt and does not seek to withdraw his pleas of non vult. Neither does he claim the right to immediate release from prison, nor to a reduction in sentence because of its severity. He asserts only the right to have the sentences vacated so that he may be duly and properly resentenced. The principal ground of the motion below, which we have decided should have been granted, is that Judge Ziegener, in imposing sentence, misapprehended the contents of a pre-sentence investigation report prepared by the Hudson County Probation Department and was influenced by inaccurate and misleading information contained therein. The severity of the sentence is alluded to and relevantly before us only as indicating prejudice to the defendant. The Prosecutor of Hudson County also believes

the sentences in question were illegally imposed, depriving the defendant of due process of law, and he therefore joined in the motion. The Law Division judge permitted the Attorney General of New Jersey to oppose the motion as amicus curiae.

Since the sentencing in 1951, there have been several other proceedings and appeals involving alleged technical errors in the sentencing procedure. These have all been resolved against the defendant. See State v. Pohlabel , 40 N.J. Super. 416 (App. Div. 1956), where we affirmed the denial of an application on grounds not pertinent here.

There has been and is no court rule or statute in this State requiring that pre-sentence reports be shown to a defendant or his counsel. State v. Wingler , 25 N.J. 161, 178 (1957). See Knowlton and Gaulkin, "Should Presentence Reports be Shown to Defendants ?," 79 N.J.L.J. 409, 421 (1956). In 1959, however, the defendant learned of certain portions of the report and became aware for the first time of the misleading nature thereof. It is urged that the inaccuracies counted heavily in the sentencing court's imposition of sentences aggregating a 21-35 year term, a seemingly excessive punishment for a non-violent crime against property, albeit within the statutory maximum. One of the grounds pressed on this appeal is that the defendant is entitled, under the New Jersey Constitution of 1947, Art. I, pars. 1, 10, and 12, to be provided with a copy of the whole report so that he may meet any other prejudicial errors included. This question is mooted by the reprinting of the report in its entirety in the Attorney General's answering brief.

At the time of sentencing Pohlabel was 26 years of age with a wife and two infant daughters. In March 1950 he had been employed to paint the interior of an apartment owned by a Mrs. Wilkes. While so doing, he obtained her checkbook and forged her signature to seven checks, totaling $1,467, naming an alias as payee and subsequently cashing the checks in that name. He was arrested in November

and eventually pleaded non vult to seven indictments, each charging forgery of a single check, a high misdemeanor. Pohlabel was also indicted for the theft of Mrs. Wilkes' wrist watch. Although he made a statement admitting guilt of this charge, defendant pleaded not guilty to it and the indictment still pends.

At the Law Division hearing on the present motion, Pohlabel testified as to his record prior to the sentencing in 1951. He had but one previous conviction for crime -- grand larceny of an automobile in California in 1943 at the age of 18, for which he had received a one to ten year term. He had been confined to a minimum-security institution at Chino, California, but escaped to his home in Ohio. This was a "breach of trust" and did not involve "breaking out" or "using force, or anything of that nature, because you can go any time * * *." Defendant was free for several months but then voluntarily surrendered himself to authorities in Oklahoma in order to obtain free transport back to California. He was then imprisoned in San Quentin. Under the system in California as administered by an Adult Authority, escapees are not tried and convicted for a separate offense but are automatically given an indeterminate, one year to life term, to be served concurrently with the sentence the offender was originally serving. This was the procedure in Pohlabel's case, and because he was paroled in 1947, he "served no time whatsoever" for the escape.

In addition to the foregoing, Pohlabel had served 60 days in a county jail in California in 1943. This occurred when he was a member of the State Guard and disobeyed two orders. He was court-martialed for violation of two articles of war and placed in the county jail because there was no guardhouse.

The probation report which had been submitted to Judge Ziegener before sentencing occupies 14 printed pages in the Attorney General's brief. It contains the defendant's personal history, including his early life, education, occupational ...

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