Goldmann, Foley and Collester. Goldmann, S.j.a.d.
This is an appeal from a County Court order denying defendant's petition for post-conviction relief.
On February 13, 1962 defendant entered pleas of guilty to eight accusations, four involving sex offenses: rape and three assaults with intent to rape. He was represented by a court-assigned counsel, experienced and capable in the trial of criminal matters. The transcript indicates that the required procedures before acceptance of pleas were fully complied with by the trial judge and prosecutor, and we are convinced that defendant was completely cognizant of what he was doing and the consequences of pleading guilty. As required by statute in sex offenses of this nature, N.J.S. 2A:164-3, the trial judge referred defendant to the Menlo Park Diagnostic Center for examination and report. The examination was thorough and detailed. Defendant's condition was diagnosed as a latent schizophrenia, paranoid type, and such pathology was described as of a compulsive and repetitive
nature, dangerous and of homicidal potential. The report recommended that defendant be committed to a hospital of maximum security.
On April 11, 1962 the trial judge, after considering the Diagnostic Center report, sentenced defendant to the New Jersey State Hospital at Trenton for consecutive terms not exceeding 30 years on the rape charge and 12 years on each of the assault with intent to rape charges -- a total maximum of 66 years. Sentences on the remaining four charges were suspended. Thereafter, on September 19, 1963, the Special Classification Review Board of the Department of Institutions and Agencies recommended that defendant be transferred to a regular prison. The Board was of the opinion that, from a psychiatric standpoint, defendant was not psychotic and "not a good candidate for psychotherapy"; that he was "untreatable," and that his impulses would continue. The report noted that the transfer to prison "is also the wish of the patient." The Board diagnosis was: "(1) Sociopathic Personality Disturbance, Sexual Deviation and (2) Sociopathic Personality Disturbance, Emotional Reaction."
In August 1964 defendant filed a petition for post-conviction relief on the following grounds: (1) he was mentally incompetent when he pleaded guilty, and (2) he was not properly represented by counsel at the time of the pleas. He also requested that he be permitted to withdraw his guilty pleas, enter pleas of not guilty and be given a jury trial. Following a hearing, the County Court judge denied all relief. Defendant then appealed as an indigent and we assigned counsel and granted him a transcript.
Defendant's main contention is that he was mentally incompetent when he pleaded guilty and also at the time of sentence. His claim is based on the Diagnostic Center report. He asserts that it was plain error on the part of the sentencing judge not to conduct a sanity hearing on his own motion in order to determine the possibility of a defense of insanity. We find no merit in this argument. It is raised for the first time on appeal. But more significantly, there is nothing in
the Diagnostic Center report to indicate insanity such as would be a defense under the M'Naghten rule, followed in New Jersey. See State v. Lucas, 30 N.J. 37 (1959). We have not yet adopted the Durham rule, or that set out in the Model Penal Code, § 4.01 (see United States v. Freeman, 357 F.2d 606 (2 Cir. 1966)). Further, the diagnosis made by the Diagnostic Center spoke as of the time the mental examination was made, and we do not read its report to mean that the same mental condition necessarily prevailed at the time the guilty pleas were entered or when defendant was sentenced.
The Diagnostic Center report, made pursuant to N.J.S. 2A:164-4, was never intended to be the substitute for proceedings under N.J.S. 2A:163-2 and 3. N.J.S. 2A:163-2 provides that
"If any person in confinement under commitment, indictment or under any process, shall appear to be insane, the assignment judge, or judge of the county court of the county in which such person is confined, may, upon presentation to him of the application and certificates as provided in Title 30, chapter 4 of the Revised Statutes, institute an inquiry and take proofs as to the mental condition of such person. * * *"
It is apparent from this that (1) defendant must appear to be insane, (2) the court has discretion to inquire into sanity, and (3) presentation of an application is a condition to the initiation of such an inquiry. Defendant met none of these ...