Goldmann, Foley and Mintz. The opinion of the court was delivered by Foley, J.A.D.
Defendant appeals from the denial of his application for a writ of habeas corpus. The verified complaint filed by defendant alleges, inter alia , that at the time he entered pleas of guilty to four charges of armed robbery which were contained in two indictments, he did not have the benefit of counsel, and that because of lack of knowledge of the English language he did not voluntarily and intelligently waive trial by jury nor did he understand the import of his pleas of guilty; further that he was improperly sentenced, since at the time sentences were imposed, he was not represented by counsel.
"The historic writ of habeas corpus is the 'precious safeguard of personal liberty' * * *; it is the only writ which was preserved eo nomine in our State Constitution (Art. I, par. 14), and our courts are rightly fervent to insure that it is ever available for the protection of the accused * * *." State v. Cynkowski , 10 N.J. 571, 577 (1952).
The procedure governing the application for the writ is outlined in N.J.S. 2 A:67-17 as follows:
"The judge to whom the application is made shall grant such writ without delay or issue an order directing the defendant named in the complaint to show cause why the writ should not be granted, unless it appears from the complaint or otherwise that the applicant or person confined or restrained is not entitled thereto."
When a convicted defendant files a petition for a writ of habeas corpus the court may immediately issue the writ for hearing thereon, or dismiss the petition because of insufficiency on its face, or call for a formal answer by the State. The petition, answer and reply may disclose that there are
no allegations remaining which would, under controlling principles, warrant the issuance of the writ, and in that event the petition may still be dismissed. If, however, such material allegations do remain, the writ must issue for oral hearing thereon and determination, with the defendant who obtained the writ having the burden of proving his charges. State v. Cynkowski, supra.
The hearing contemplated by the statute is conducted to determine the defendant's contentions on the merits. There is no provision in the law, statutory or otherwise, for a plenary hearing of the merits on the application for the writ. Indeed, the emphasis which our courts have placed upon the necessity for issuing the writ when the defendant has made a prima facie showing under oath of his right to it negates the idea that the substance of his claim may be pretested on the application. See State v. Gailes , 64 N.J. Super. 232 (App. Div. 1960); State v. Lenkowski , 24 N.J. Super. 444, 447 (App. Div. 1953).
The scope of our review, therefore, is limited to a determination of whether the trial judge properly denied defendant's application in light of the verified complaint, the supporting affidavits, and the transcripts of the proceedings taken at the time defendant's pleas of guilty were accepted by the trial court and later when sentences were imposed.
Generally, on application for a writ of habeas corpus consideration of the trial judge should be confined to the allegations of the complaint. In re Leibowitz , 43 N.J. Super. 579, 583 (App. Div. 1957). An exception not here present is where the official files and records refute the factual allegations contained in the application. State v. Raicich , 30 N.J. Super. 316 (App. Div. 1954). While it is not the function of the court to determine the truth or falsity of the allegations contained in the application, this case presents certain undisputed facts which, of themselves, lend support to defendant's contentions. Ercolino was 22 years of age at the time of his arrest. He had come to this country from
Italy only 11 months before. He had only four years of grammar schooling in his native land and upon his arrival he neither spoke nor understood the English language. His parents, also immigrants from Italy, adhered to the practice of speaking the Italian language in their home and so defendant was afforded little opportunity to acquire knowledge of our tongue. It is alleged, and at this stage of the case undenied, that what little he learned of the English language in the short time he was here, was acquired through his association with his four American born co-defendants named in the indictments to which he pleaded guilty.
The group of five men were arraigned before the trial judge on March 5, 1954 and entered pleas of guilty. Under interrogation by the court it developed that defendant said he had not consulted counsel, and when asked by the court whether he desired such advice, he replied that he did. Thereupon, the judge entered pleas of not guilty in his behalf and appointed Ascenzio Albarelli, Esq., a member of the bar of this State, to represent him, meanwhile remanding defendant to the county jail pending trial. Portions of the colloquy between the court and Clifford Clayton and Wallace Miller, two of the co-defendants who were also arraigned, together with remarks of the defendant at the time, inferentially at least, buttress defendant's basic contention that he did not understand the nature and effect of the proceedings. They follow:
"The Court: The Court appoints Ascenzio Albarelli to represent you. The Court will remand you to the county jail for trial and sets the trial date as March 15, 1954.
Mr. Clayton, have you consulted counsel?
Clifford Clayton: Yes, I have. Albarelli, the one you just appointed to Ralph. I don't think Ralph understands what you was talking about, sir.
The Court: Well, he will.
Clifford Clayton: No. I mean, he has a lawyer.
The Court: You have a lawyer?
Ralph Ercolino: I don't know. I better ask my from. I'm not sure.
Court Officer Kaplan: Your Honor, he wants to talk ...