[98 NJSuper Page 540] This matter is before the court on the petition of defendant for post-conviction relief pursuant to R.R. 3:10A. A hearing was held at which defendant's testimony was taken and transcripts presented of the proceedings relating to the retraction of his pleas of not guilty and the entry of pleas of non vult in 1954 and of the proceedings at his subsequent sentencing.
The pertinent facts may be summarized as follows:
Indictment No. 1040, returned by the Essex County grand jury, charged defendant and two co-defendants with robbery of one Solomen Facher on May 8, 1953, in Newark, New Jersey. Indictment No. 1041 charged defendant and three others with robbery of one Arthur Wolf on July 18, 1953 in Newark. Defendant, with others, was arraigned on both indictments on March 22, 1954 and entered pleas of not guilty. He was represented by assigned counsel Parry, now deceased. On April 26, 1954, at a hearing at which his counsel was present, defendant retracted his pleas of not guilty and pleaded non vult to both indictments. On May 12, 1954 he was sentenced on both indictments. The sentence imposed on indictment No. 1041 was to a term of seven to ten years in State Prison to run consecutively to the term or terms defendant was then serving. (A few weeks prior thereto, defendant had been sentenced to State Prison on indictments arising out of Hudson County.) The sentence on indictment No. 1040 was to a term of seven to ten years in State Prison to run concurrently with the sentence imposed on indictment No. 1041. The transcript of the proceedings at sentencing indicates that defendant was granted the right of allocution, but does not show that his counsel was present.
Defendant's petition for post-conviction relief was verified and filed approximately 12 years after the pleas and sentences challenged. It is not artistically phrased. It states in part:
"Prior to April 26, 1954, defendant was brought before the Essex County Court for Arraignment, Counsel, Mr. William H. Parry, was assigned to represent defendant. Mr. Parry spoke to defendant in the Essex County Prosecutor's Office for less than 'five' minutes, at which time Counsel related he spoke with the Prosecutor and their Office would go along with a plea of Non Vult and any punishment inflicted would be in a concurrent nature. Defendant was then returned to the Hudson County Jail at Jersey City, New Jersey, to await further word from Mr. Parry, which never came and Mr. Parry did not visit the Hudson County Jail as he mentioned in the Prosecutor's Office.
April 26, 1954, date of pleading, Counsel reiterated conditions were the same and defendant understood he was retracting his plea of Not Guilty to one of Non Vult but, defendant did not understand the nature of the charge, other than what Counsel had related in our 'chat' at the Prosecutor's Office, any punishment inflicted would be of a concurrent nature.
Defendant maintains that his plea of Non Vult was controllingly induced by the promise on the part of Counsel, Mr. Parry, that he had conferred with the Prosecutor and any punishment would be of a concurrent nature, so as not to have been voluntarily made.
The substantial question is that this defendant's plea of Non Vult was induced by promise which deprives it of the character of a voluntary act. The evidence entitled to be found that the plea of Non Vult was improperly induced, in the sense of having been so controlled by the promise of Counsel * * *"
The petition also states:
"In the instant matter Counsel was ineffective at the pleading and failed to appear at the sentencing and this does not meet the requirements of the effective assistance of Counsel."
Defendant therefore claims that (1) the pleas of non vult were not voluntarily and understandingly made because of the alleged promise of his counsel, and (2) his constitutional rights were denied because of lack of counsel at his sentencing.
The court finds that defendant's retraction of his pleas of not guilty and his entry of pleas of non vult were understandingly and voluntarily made. At the time of retraction and entry of said pleas, his counsel was present and the transcript of that hearing shows that defendant affirmed that the retraction was made after conferring with counsel, and that he understood that for purposes of sentence his pleas of non vult were the equivalent of pleas of guilty. No promise as to sentence was mentioned. Only a few weeks prior thereto he had gone through the process of retracting not guilty pleas and entry of pleas of non vult in Hudson County. ...