On petition for leave to appeal as an indigent.
Conford, Gaulkin and Kilkenny. The opinion of the court was delivered by Gaulkin, J.A.D.
Defendant was indicted in six separate indictments, five for the sale and one for the possession of narcotics. An experienced trial attorney, admitted to the Bar in 1949, was assigned to defend him. On April 10, 1961 defendant pleaded guilty to three of the indictments which charged sales. On April 19, 1961 he was sentenced to concurrent sentences of 7 to 10 years plus $500 fine on each of the three indictments. The remaining indictments were then dismissed on motion of the prosecutor.
On January 22, 1962 defendant applied to the Essex County Court to set aside the convictions and to withdraw the pleas of guilty. His petition alleged that he had "pleaded Non Vult on advice of court appointed counsel * * *"; that "he was victimized in pleading Non Vult on advice of counsel and that if the true facts were known by the court * * * the accusation would have been dismissed." The petition alleged facts which he claimed proved entrapment, but nowhere did defendant say that he told those facts to his assigned counsel. The petition stated "Petitioner in good faith entered a plea of 'Non Vult' on advice of his counsel, that the court would review the case and upon hearing same, would extend leniency * * *," and concluded with the contentions that "he was a victim of entrapment * * * and he did not receive effective assistance from counsel."
New counsel, Mr. W., was assigned to represent defendant upon the application to withdraw the pleas, and he argued the matter before Judge Yancey, the sentencing judge. He conceded "on the basis of State v. Miller * * * 16 Super. 251 * * *" that the claim of promised leniency did not entitle Andrews to relief, but he did press the point of ineffective representation of counsel because of the failure to assert the defense of entrapment.
The transcript of the taking of the pleas showed that before his plea was accepted defendant was asked by the judge whether he had received "any promises or inducements from the prosecutor or anyone else relating to such pleas or as to the sentence * * *" and had answered "No." The transcript also showed that defendant acknowledged he had signed three separate 13A forms, one for each indictment; that the "answers to each of these forms was true"; and that he was "satisfied with the advice from counsel."
In said 13A forms it was stated that no promises as to the sentence had been made to defendant and that he understood the "Judge may impose such sentence as in his discretion he considers appropriate, subject to the limits prescribed by law."
Judge Yancey also reviewed the transcript of the sentencing, which showed that at that time he had again asked defendant whether his pleas were voluntary and whether he had been promised anything by "the prosecutor or anyone else," and defendant had again answered "No." Incidentally, defendant had a prior criminal record and was no stranger to courts.
Based on the foregoing, Judge Yancey refused to take testimony in support of Andrews' petition and denied the application to withdraw the pleas.
Defendant now petitions this court for leave to appeal in forma pauperis from Judge Yancey's action, and for the assignment of counsel to prosecute such an appeal. We find that no useful purpose would be served by granting either at this time, for the petition addressed to the County Court does not allege facts which would entitle defendant to withdraw
his pleas. Diggs v. Welch , 80 U.S. App. D.C. 5, 148 F.2d 667 (D.C. Cir. 1945), cert. denied 325 U.S. 889, 65 S. Ct. 1576, 89 L. Ed. 2002 (1945), cited in State v. Williams , 39 N.J. 471 ...