Goldmann, Sullivan and Labrecque. The opinion of the court was delivered by Labrecque, J.A.D.
Defendant appeals from an order of the Law Division denying his petition for post-conviction relief.
On February 6, 1963 the grand jury of Passaic County returned two indictments against defendant charging unlawful possession and sale of narcotics (heroin). The first indictment (in two counts) charged unlawful sales on November 28 and December 31, 1962. The second contained a single count alleging unlawful possession on January 12, 1963. Defendant was arraigned on February 15, 1963 and entered pleas of not guilty to both indictments.
Peter N. Perretti, Esquire, was assigned to represent defendant. He conferred with him in the Passaic County jail and conducted an investigation based upon information furnished by defendant. As the result of his investigation he recommended that defendant withdraw his prior plea to the first count of the indictment charging sale and enter a plea of guilty thereto. Defendant thereupon did so and completed and executed Form 13A. The other pending charges were dismissed on motion of the prosecutor.
Defendant came up for sentence on April 19, 1963. His record indicated a prior conviction for illegal sale of narcotics, for which he had been sentenced to from 8 to 12 years in State Prison. This was taken into consideration by the judge in sentencing him to his present term of from 8 to 10 years in State Prison.
On February 18, 1964 defendant submitted an application to be permitted to retract his previous plea of guilty. Supporting affidavits by himself and his brother, George Booker, were annexed. He thereafter completed and filed an application for post-conviction relief under R.R. 3:10A. In substance, he charged that he was not guilty and his plea of guilty had been induced by coercion and misrepresentation on the part of his assigned counsel.
A hearing on his application was held on May 28, 1964. Defendant appeared pro se and testified at length. Mr. Perretti, a member of the bar since 1919, also testified and submitted to a lengthy cross-examination by defendant. The judge -- who had also been the sentencing judge -- found no reason to disturb the conviction. Defendant thereupon filed this appeal, and present counsel was assigned to represent him.
The court here rejected as unfounded defendant's attacks upon the presentation of his case by his assigned counsel.
We turn, finally, to defendant's criticism of the procedure which was followed in imposing sentence upon him. In
essence, he contends that he should have been sentenced as a first offender, since the indictment made no mention of any prior conviction. As noted, he had been convicted in 1953, after a jury trial, for the unlawful sale of narcotics, and had been sentenced to a term of from 8 to 12 years in State Prison. The sentence here under appeal was that "You be sentenced to from 8 to 10 years in State Prison as a second offender for the sale of narcotics." While this point was not raised at the hearing, we consider it as plain error cognizable under R.R. 1:5-1(a).
Defendant was sentenced under N.J.S.A. 24:18-47, which became effective April 24, 1952, and ...