Conford, Kilkenny and Lewis. The opinion of the court was delivered by Conford, S.j.a.d.
[87 NJSuper Page 77] The State appeals from judgments entered October 1, 1964 in post-conviction proceedings brought by petitioner pursuant to R.R. 3:10A (Post-Conviction Relief) vacating convictions entered against him in 1933 on pleas of guilt of robbery. The indictments were returned by the Bergen County grand jury, apparently in early 1932. The judgments in favor of petitioner were based upon findings by
the trial court that when he pleaded guilty in 1932 and was sentenced in 1933 he was an indigent, 20 years of age, and was neither represented by counsel nor informed that he could have counsel assigned without cost. Janiec v. State, 85 N.J. Super. 68 (Law Div. 1964).
The cited Law Division opinion discusses the law relative to the case, which need not be discussed here, since we are satisfied, and the State concedes, that if the factual determinations made by the trial court are justified the legal relief granted was proper under controlling decisions of the United States Supreme Court cited by the Law Division. See also State v. Johnson, 43 N.J. 572 (1965).
But the State argues that the findings of the trial court were not warranted under the proofs adduced and should be reversed; or, in the alternative, that the matter should be remanded to the trial court for reconsideration in view of misapprehension by that court of the opinion of this court in a prior post-conviction proceeding brought by petitioner, Janiec v. McCorkle, 52 N.J. Super. 1 (App. Div. 1958), and since there is additional evidence relative to the question as to whether petitioner was in fact represented by counsel in connection with the 1933 convictions.
Since the entry of the judgments in this matter petitioner has procured the vacation by the Monmouth County Court of a life sentence imposed upon him in 1951 by that court as a four-time offender pursuant to the Habitual Offender Act, N.J.S. 2A:85-12. The relief thereby granted was based upon the vacation of the Bergen County convictions in the present matter. That action is also under appeal to this court by the State. It is thus apparent that a correct determination of the instant proceeding is of great importance to both the petitioner and the State.
The filed opinion of the trial court in the present case does not discuss the evidence adduced before it relative to the factual issues. However, the court made oral findings upon the completion of the proofs at the hearing conducted in the matter. These were as follows:
"I will find as a fact that the burden is upon the defendant Janiec to prove that he was not represented by counsel at the time of his pleading and at the time of the imposition of sentence by Judge Seufert.
I find as a fact, taking into consideration the lack of evidence on behalf of the State other than the general statement by David P. Kuehne, attorney, that he has no recollection, and his statement as to what occurred in 1950 and further taking into consideration the statement of Judge Hall, now Justice Hall, as stated in Janiec v. McCorkle, 52 New Jersey Super. page 1, and the Appellate Division at that time was composed of Stanton, Hall and Gaulkin, and in that case a resume of defendant's activities was succinctly detailed, and in that decision Judge Hall stated -- and this is very interesting:
'Appellant's claim of violation of constitutional rights said to void the conviction is based on the alleged failure to assign counsel to defend him or to advise him of his right to counsel. Since the event took place prior to 1948, the question is governed by our law in effect at the time of the conviction as well, of course, as by the effect of the Fourteenth Amendment. The basic principles are succinctly stated in the leading case of State v. Cynkowski, supra [10 N.J. 571]. Although the attack in that instance was by writ of habeas corpus on the validity of a conviction under which the defendant was then confined following a plea of non vult, the rules there summarized are no less pertinent to our situation.'
I find as a fact that on both occasions of the plea and the sentence the defendant was not, had not, been assigned counsel to defend him or, no one, either the court or anyone else, had advised him of his right to counsel, and as stated by our Supreme Court in ...