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IN RE MCALLISTER

August 25, 1962

Petition of Alexander McALLISTER for Writ of Habeas Corpus


The opinion of the court was delivered by: LANE

Petitioner is presently confined in the New Jersey State Prison at Trenton, owing to his guilty plea on a charge of robbery before Judge Foley in the Essex County Court on May 2, 1955. Judge Gaulkin imposed sentence on May 11, 1955. Although McAllister thereafter failed to appeal his sentence, he did make application for a state writ of habeas corpus before the Honorable James R. Giuliano, Essex County, Law Division. After conducting a hearing on McAllister's petition on July 22, 1958, Judge Giuliano, in an oral opinion, denied the application. Subsequently, the Superior Court of New Jersey, Appellate Division, affirmed Judge Giuliano's decision. McAllister v. State of New Jersey, 62 N.J. Super. 126, 162 A.2d 293 (1960). The New Jersey Supreme Court denied certification on November 14, 1960, in an unreported order. Certiorari to the United States Supreme Court was applied for, and on October 9, 1961, was denied. McAllister v. New Jersey, 368 U.S. 841, 82 S. Ct. 67, 7 L. Ed. 2d 40 (1961).

An examination of the record reveals that petitioner has put forth two contentions, -- (1) he allegedly '* * * was deprived of his Constitutional Right to the assistance of counsel at the time of his sentence,' and (2) he allegedly '* * * was deprived of his Constitutional Right to the assistance of counsel at the time of his plea.'

 SENTENCE

 The Sixth Amendment of the United States Constitution provides that in all criminal prosecutions, the accused shall have the right to 'the Assistance of Counsel for his defence.' *fn1" The Supreme Court, in commenting on this constitutional safeguard, evinced the opinion:

 'The Sixth Amendment stands as a constant admonition that if the constitutional safeguards it provides be lost, justice will not 'still be done.' It embodies a realistic recognition of the obvious truth that the average defendant does not have the professional legal skill to protect himself when brought before a tribunal with power to take his life or liberty, wherein the prosecution is presented by experienced and learned counsel. That which is simple, orderly and necessary to the lawyer, to the untrained layman may appear intricate, complex and mysterious.' Johnson v. Zerbst, 304 U.S. 458, 462, 58 S. Ct. 1019, 1022, 82 L. Ed. 1461 (1938).

 Thus, in criminal proceedings before the federal court, a defendant not only has the right to retain counsel, but the right to have the federal government assign counsel if he lacks the financial means to employ his own. Id. at 462-463, 58 S. Ct. at 1022.

 Since under the Constitution a defendant is entitled to have the guiding hand of counsel at every stage of a federal criminal trial, absent an intelligent waiver thereof, federal courts should provide for counsel at the time of sentence imposition. See Martin v. U.S., 182 F.2d 225, 226, 20 A.L.R.2d 1236 (5th Cir.), cert. denied, 340 U.S. 892, 71 S. Ct. 200, 95 L. Ed. 647 (1950). As expressed in the Martin decision:

 'The very nature of the proceeding at the time of imposition of sentence makes the presence of defendant's counsel at that time necessary if the constitutional requirement is to be met. There is then a real need for counsel. The advisability of an appeal must then, or shortly, be determined. Then is the opportunity afforded for presentation to the Court of facts in extenuation of the offense, or in explanation of the defendant's conduct; to correct any errors or mistakes in reports of the defendants' past record; and, in short, to appeal to the equity of the Court in its administration and enforcement of penal laws. Any Judge with trial Court experience must acknowledge that such disclosures frequently result in mitigation, or even suspension, of penalty. That it is also true that such discussion sometimes has a contrary result, does not detract from the fact that the nature and possibilities of this important stage of the proceedings are such as make the absence of counsel at this time presumably prejudicial.' Ibid. See Antieau, Commentaries on the Constitution of the United States, 321 et seq. (1960 Ed.) for discussion of right to counsel in federal criminal trials.

 We are, however, in the instant petition, considering proceedings that occurred not in the federal courts but in the New Jersey State courts. It is clear though that the New Jersey constitution, as interpreted by the state Supreme Court, requires that '* * * the right of an accused 'to have the assistance of counsel in his defense,' N.J. Const. (1947), Art. I, par. 10, includes the right to counsel at the time of sentence. *fn2" State v. Jenkins, 32 N.J. 109, 112, 160 A.2d 25, 27 (1960). *fn3" Yet, under New Jersey law, the state courts do not have absolute authority to grant the right of resentence to a petitioner who attacks, not by appeal but collaterally, the validity of sentence on the ground he had not been accorded assistance of counsel. The courts must, instead, examine a petitioner's allegations and proofs to determine whether he has demonstrated '* * * a likelihood that under the circumstances his rights could not have been fairly protected without the aid of counsel.' Id. at 114, Id. at 28. *fn4"

 Moreover, we must bear in mind that the due process clause of the Fourteenth Amendment does not incorporate, as such, the specific guarantees found in the Sixth Amendment but requires this court to appraise all the facts in the case to see whether there has been a denial of fundamental fairness shocking to the universal sense of justice. Johnson v. Zerbst, 304 U.S. 458, 461-462, 58 S. Ct. 1019, 82 L. Ed. 1461 (1938). To quote Mr. Justice Roberts:

 '* * * While want of counsel in a particular case may result in a conviction lacking in such fundamental fairness, we cannot say that the Amendment embodies an inexorable command that no trial for any offense, or in any court, can be fairly conducted and justice accorded a defendant who is not represented by counsel.' Betts v. Brady, 316 U.S. 455, 473, 62 S. Ct. 1252, 1262, 86 L. Ed. 1595 (1942).

 The New Jersey Supreme Court in its wisdom has declared that the New Jersey Constitution compels the trial court to appoint counsel for an indigent defendant at time of sentence. (When the trial court sentenced McAllister, the custom in New Jersey was not to appoint counsel at time of sentencing.) But it has also held the defendant will be unable collaterally to attack a denial of counsel unless he can thereby demonstrate prejudice. See State v. Jenkins, supra. This rule is in harmony with our traditional notions of fair play. Although the courts must protect the accused by appointment of counsel at time of sentence, the court precludes the accused, wherein he collaterally attacks the sentence, from wasting the valuable time of all concerned by making groundless contentions. If the accused demonstrably shows 'a likelihood that under the circumstances his rights could not have been fairly protected without the aid of counsel,' relief will be forthcoming. In any given case, if lack of counsel caused no injustice, the New Jersey courts, logically and properly, deny relief. The issue, therefore, before us is to determine upon consideration of the entire record whether McAllister's safeguards under the due process clause were violated by reason of the court's failure to assign him counsel at the time of sentence imposition.

 The following colloquy occurred between Judge Gaulkin and McAllister during the imposition of sentence:

 'THE COURT: Alexander McAllister, is there anything you want to say before the court imposes sentence?

 'THE COURT: You pleaded guilty to a charge of robbery. Is that correct?

 'DEFENDANT MC ALLISTER: Yes, sir.

 'THE COURT: You conferred with a lawyer at the time you pleaded.

 'DEFENDANT MC ALLISTER: Yes, sir.

 'THE COURT: I have your record here. Is it correct that in 1953 you were sentenced to the New Jersey State Prison on a charge of breaking, entering and larceny?

 'DEFENDANT MC ALLISTER: Yes, sir.

 'THE COURT: You were paroled in October 1954?

 'DEFENDANT MC ALLISTER: Yes, sir.

 'THE COURT: Prior to that time you were, for a period, in the Essex County Penitentiary, were you?

 'DEFENDANT MC ALLISTER: Yes, sir.

 'THE COURT: This particular offense that you figured in was vicious, calculated and planned. The maximum I could give you is fifteen years, but since you pleaded ...


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