Wood, Wm. Fillmore, J.c.c.
[89 NJSuper Page 402] Defendant seeks post-conviction relief pursuant to R.R. 3:10A-1 et seq. from a conviction and sentence in this court on January 15, 1954 for the crimes of breaking, entering and larceny. His petition sets forth four grounds for relief, namely: (1) the disproportion between his sentence and that of his two co-defendants, (2) a mistaken reference by the sentencing judge to a non-existing "bad record"; (3) the failure of the court to provide or offer him counsel at any time during the proceedings, and (4) the failure of the court to give him an opportunity to make a statement on his own behalf before imposing sentence.
The third ground, if established, would vitiate both the conviction and the sentence. The others relate only to the sentence.
The hearing in this matter began on May 21, 1964, on which date defendant testified in his own behalf and then rested, and the State offered evidence of assignment of counsel for one of the codefendants. The matter was continued until July 17, 1964 to give the State an opportunity to offer whatever additional evidence it wished. In the interim, on recommendation of the prison psychiatrist, defendant was committed to the New Jersey State Hospital. His diagnosis was "schizophrenic reaction, chronic undifferentiated type, with many aggressive and homicidal features." The hospital's medical director advised defendant's attorney that it would be detrimental to defendant's health for him to appear in court. For that reason this matter was then adjourned indefinitely.
After defendant's condition had improved sufficiently to permit his return to State Prison and presumably also to permit his further appearance in these proceedings, this court contacted the prosecutor with a view to scheduling the case for completion of the hearing and was advised by the latter that he had not been able to discover any significant additional evidence, and hence no further evidence would be offered on behalf of the State.
It follows that any further hearing in this matter would be purposeless. I must therefore determine the facts from the evidence already introduced by the parties and from my personal examination of the records of the county clerk and the probation department. I have taken judicial notice of such records.
The Union County grand jury for the September session of the 1953 term returned indictment No. 97 against defendants Scipio Barbato, Douglas Murphy and Alaindo Nicholas Barbato (the latter being the brother of Scipio). The indictment, which was filed with the county clerk on December 3, 1953, contained three counts. The first count charged defendants with breaking and entering, and the second and third
counts charged them with larceny of property valued at $847 and $800, respectively. On December 18, 1953 Scipio entered a plea of non vult to the indictment, and on January 15, 1954 he was sentenced to five to seven years in State Prison, with 102 days' credit for time spent in jail. A single sentence was imposed for the entire indictment rather than separate sentences for each count thereof. The other two defendants entered pleas and received sentences on later dates. Their specific pleas and sentences will be discussed below.
Scipio was not represented by counsel at the time of the plea or at the time of the sentence. There is no doubt that he lacked the funds to engage his own attorney. He could not recall whether, at the time of the arraignment or plea, he was asked if he wished to have an attorney assigned to represent him. The reporter who attended at the time of the arraignment and plea is dead, and no transcript of the proceedings could be located.
The burden is on a defendant, in post-conviction relief cases, to prove that he is entitled to the relief sought. Cf. Green v. United States, 365 U.S. 301, 81 S. Ct. 653, 5 L. Ed. 2 d 670 (1961). Since defendant was unable to prove that the court failed to offer him counsel at the time he entered his plea to the indictment, his application to set aside the plea or conviction must be denied. Compare Gideon v. Wainwright, 372 U.S. 335, 83 S. Ct. 792, 9 L. Ed. 2 d 799 (1963).
R.R. 1:12-9(a), which has been in effect since September 9, 1953, prior to defendant's original appearance in court, provides in pertinent part as follows:
"Where a person charged with crime appears in a trial court without counsel, the court shall advise him of his right to counsel and of the privilege of having counsel assigned, if indigent, and assign counsel to represent him unless he elects to proceed without counsel or is about to obtain counsel."
I cannot assume that the sentencing judge failed to comply with the mandate of this rule.
Furthermore, there is some affirmative basis for inferring that defendant was offered assigned counsel. The evidence indicates that by order of December 22, 1953 counsel was assigned to represent co-defendant Alaindo Nicholas Barbato. One may reasonably suppose that the court did not make a distinction between the two defendants.
While the challenge of the conviction must fail for lack of proof, the sentence was clearly invalid. The principal reason is that the court undoubtedly failed to afford defendant an opportunity to speak in his own behalf. In addition, while not equally certain, it is highly probable that the severity of the sentence was influenced by mistakes of fact.
With respect to the first stated or principal reason for invalidity, R.R. 3:7-10(c), then in effect, provided:
"Before imposing sentence the court shall afford the defendant an opportunity to make a statement in his own behalf and to present any ...