On petition for post-conviction relief.
Galanti, J.c.c. (temporarily assigned).
On February 2 and March 8, 1932 the Bergen County grand jury returned indictments nos. 8911 and 8940 charging petitioner with robbery. On April 7 and July 15, 1932 petitioner pleaded guilty to both indictments. On February 2, 1933 he was sentenced to serve not less than two nor more than seven years in the State Prison on indictment no. 8911, and not less than three nor more than seven years in the State Prison on indictment no. 8940, the sentences to run consecutively.
On June 9, 1964 defendant petitioned the assignment judge of Bergen County to vacate the judgments and sentences of 1932 and 1933. This motion was considered as an application for post-conviction relief, pursuant to R.R. 3:10A. Counsel was appointed and the matter was referred to this court for disposition. Defendant is confined to the State Prison under a life sentence as an habitual criminal, imposed by the Monmouth County Court on October 11, 1951.
Defendant seeks to set aside his convictions, alleging violation of his constitutional rights in that he was denied due process of law because he was not represented by counsel at the time of entry of the guilty pleas and sentences. He further alleges that he was indigent and without funds, and
therefore could not retain counsel of his choice; that he was not advised of his constitutional right to be represented by counsel, and that he was not told by the court that counsel would be appointed if defendant did not have the funds to retain an attorney.
The Sixth Amendment of the United States Constitution provides:
"In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining Witnesses in his favor, and to have the Assistance of Counsel for his defence."
The Fourteenth Amendment provides:
"All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws."
On March 18, 1963 the United States Supreme Court ruled in Gideon v. Wainwright , 372 U.S. 335, 83 S. Ct. 792, 9 L. Ed. 2 d 799 (1963), that the Sixth Amendment's guarantee of counsel for indigent federal defendants was made obligatory upon the states by the Fourteenth Amendment, and that the appointment of counsel for an indigent criminal defendant was a fundamental right essential to a fair trial. The necessity of counsel in criminal proceedings is nowhere better stated than in the moving words of Mr. Justice Sutherland in Powell v. Alabama , 287 U.S. 45, 53 S. Ct. 55, 77 L. Ed. 158 (1932):
"The right to be heard would be, in many cases, of little avail if it did not comprehend the right to be heard by counsel. Even the intelligent and educated layman has small and sometimes no skill in the science of law. If charged with crime, he is incapable, generally, of determining for himself whether the indictment is ...