For affirmance -- Chief Justice Weintraub and Justices Jacobs, Francis, Proctor, Hall and Schettino. For reversal -- None. The opinion of the court was delivered by Proctor, J.
[47 NJ Page 245] The primary issue on this petition for post-conviction relief is whether the defendant, Carl Washington, was properly sentenced as an habitual criminal pursuant to N.J.S. 2A:85-12 and 13.*fn1 After the trial court denied the relief sought in the petition, we certified the defendant's
appeal on our own motion prior to argument in the Appellate Division.
The facts have been stipulated by the parties to this appeal. On June 21, 1956 the Camden County Grand Jury indicted defendant for breaking, entry and larceny, and a plea of not guilty was entered to this indictment on December 10, 1956. At that time defendant was not represented by counsel. Shortly thereafter an attorney was appointed by the court to represent the defendant, and in the latter part of April 1957 he was tried and found guilty by a jury. Following this conviction the State proceeded against the defendant as a fourth offender in accordance with N.J.S. 2A:85-12 and 13. The
prosecutor prepared an accusation charging the defendant with being a fourth offender and alleging three previous convictions of crimes committed in the State of Ohio, all of which would have been high misdemeanors under the laws of this State.
On May 23, 1957 the defendant appeared before the trial court with his attorney and pleaded guilty to the accusation, and on June 14, 1957, he was sentenced as an habitual offender to a prison term of not less than 15 nor more than 20 years.
There is no suggestion that the procedure for sentencing an habitual offender provided in N.J.S. 2A:85-13 was not properly followed by the court. However, the defendant contends that this statutory procedure violated his rights under the Federal and New Jersey Constitutions.
Defendant first contends that the Due Process clause of the Fourteenth Amendment was violated because the indictment did not specify that the State planned to proceed against him as an habitual offender. He argues that the charge of being a fourth offender is an integral and inseparable part of the underlying criminal charge (in this case breaking, entry and larceny) and, therefore, that the indictment should have specifically alleged his prior convictions.
An identical argument was rejected by the United States Supreme Court in Oyler v. Boles, 368 U.S. 448, 82 S. Ct. 501, 7 L. Ed. 2 d 446 (1962), where the court upheld a West Virginia statute which contained provisions substantially the same as N.J.S. 2A:85-13. In that case Oyler was convicted of a felony in West Virginia. Sentence was deferred and six days later the prosecutor filed a written information alleging that the defendant had been convicted in Pennsylvania on three prior occasions. Oyler, accompanied by his counsel, acknowledged in open court that he was the person named in the information. Thereupon, the court sentenced him to life imprisonment as an habitual offender. In affirming the state court's denial of Oyler's application for habeas corpus, Justice Clark speaking for the court said:
"Even though an habitual criminal charge does not state a separate offense, the determination of whether one is an habitual criminal is 'essentially independent' of the determination of guilt on the underlying substantive offense. Chandler v. Fretag, 348 U.S. 3, 8, 75 S. Ct. 1, 4, 99 L. Ed. 4, 9 (1954). Thus, although the habitual criminal issue may be combined with the trial of the felony charge, 'it is a distinct issue, and it may appropriately be the subject of separate determination.' Graham v. West Virginia, 224 U.S. 616, 625, 32 S. Ct. 583, 586, 56 L. Ed. 917, 921 (1912). If West Virginia chooses to handle the matter as two separate proceedings, due process does not require advance notice that the trial on the substantive offense will be followed by an habitual criminal proceeding. See Graham v. West Virginia (U.S.) supra.
Nevertheless, a defendant must receive reasonable notice and an opportunity to be heard relative to the recidivist charge even if due process does not require that notice be given prior to the trial on the substantive offense." 368 ...