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State v. Marshall

Decided: June 9, 1966.


On motion to dismiss appeal as frivolous.

Conford, Kilkenny and Leonard.

Per Curiam

This is a motion to dismiss as frivolous defendant's appeal from the denial of post-conviction relief by the Burlington County Court. Leave to appeal in forma pauperis without regard to the merits of the appeal was granted by this court, as is constitutionally required of the states under Lane v. Brown, 372 U.S. 477, 83 S. Ct. 768, 9 L. Ed. 2 d 892 (1963). However, assignment of counsel was denied for failure to show a non-frivolous ground of appeal.

It is to be noted that although counsel must be assigned an indigent on direct appeal from a conviction in a state court, Douglas v. People of State of California, 372 U.S. 353, 83 S. Ct. 814, 9 L. Ed. 2 d 811 (1963), it has not to date so been held with respect to appeals from denial of post-conviction relief. There appears, moreover, to be no authority or practice for the mandatory assignment of counsel for indigents in appeals from denial of post-conviction relief by federal

courts where a non-frivolous ground of appeal is not shown. See Boskey, "Right to Counsel in Appellate Proceedings," 45 Minn. L. Rev. 783, 799-801 (1961). As to direct appeals from convictions in federal courts, cf. Hardy v. United States, 375 U.S. 277 (1964), and cases cited therein. In his article, Mr. Boskey, a respected student of this subject,*fn1 states:

"So far this Article has dealt primarily with the direct appellate review of criminal convictions. Collateral attack proceedings which involve the post-conviction remedies -- whether under title 28, section 2255 of the United States Code, by habeas corpus, or by writ of error coram nobis -- are affected by additional considerations.

In a system of justice which is meticulous in affording effective assistance of counsel to indigents not only at the trial stage but also continuously up through the entire appellate process on direct review, perhaps at least some reasonable degree of selectivity should be exercised by the courts in deciding whether counsel ought to be appointed in collateral attack proceedings." 45 Minn. L. Rev., at p. 799.

Under New Jersey's recently adopted rule for post-conviction relief this State goes further in behalf of the indigent than Mr. Boskey suggests. It provides for the assignment of counsel to indigents at the trial court level as of course, on application, provided the petition for relief is the first one filed by the applicant under the rule attacking the particular conviction. R.R. 3:10A-6(a). On later petitions, R.R. 3:10A-6(b), and on appeals from denial of such relief, counsel is assigned only for cause shown. Cf. R.R. 1:12-9(b). This ordinarily requires the showing of a non-frivolous ground of appeal.

Although expressly advised of his right to file a brief in opposition to the present motion, defendant has declined to do so. We have re-examined the record meticulously for any semblance of merit in defendant's asserted grievances over his conviction, as advanced on his behalf by assiduous assigned counsel before the County Court, but find none.

Defendant was indicted on seven indictments in 1960 for breaking and entering, and larceny. Three accusations were lodged against him in 1961, two for atrocious assault and battery and one for escape. After first pleading not guilty on the indictments, defendant was assigned counsel under whose advice and representation he changed his plea to one of guilt on November 30, 1961. At the same time he waived trial by jury on the accusations (one of which was withdrawn) and pleaded guilty, also on advice of assigned counsel. On December 14, 1961 he received sentences aggregating seven to ten years on the several charges.

At the post-conviction hearing defendant admitted his guilt of all of the charges and testified he had pleaded guilty both because he was guilty and because of the evidence against him in the hands of the police. He further testified to facts which, if not controverted or explained, might indicate that his apartment had been searched unlawfully and that in the course of the search stolen property had been found by the police. Moreover, he was questioned for four hours by the police without being advised of his right to counsel, and in the course thereof gave incriminating statements on the subject matter of the indictments. Later, while incarcerated without bail or counsel, he gave ...

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