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UNITED STATES EX REL. FORD v. YEAGER

March 28, 1968

UNITED STATES of America ex rel. Russell FORD, Petitioner,
v.
Howard YEAGER, Warden, New Jersey State Prison, Respondent



The opinion of the court was delivered by: SHAW

 SHAW, District Judge.

 This is an application for a writ of habeas corpus pursuant to 28 U.S.C. § 2241(c)(3). Two previous applications to this Court for the writ were denied because of the failure of petitioner to exhaust State remedies. Civil Action 483-65 and Civil Action 1125-65.

 Petitioner was charged in five indictments in the Somerset County Court with armed robbery in violation of N.J.S.A. 2A:141-1 *fn1" and 2A:151-5. *fn2" He was further charged by indictment as an habitual offender as defined by N.J.S.A. 2A:85-12 *fn3" and 13. *fn4" A plea of non vult was entered to each of the indictments which had been consolidated for trial. See N.J.S.A. 2A:85-8 *fn5" and N.J.S.A. 2A:85-9 *fn6" for effect. On December 7, 1952, petitioner was sentenced to life imprisonment under the habitual offender statute. N.J.S.A. 2A:85-12.

 On January 6, 1965, two prior 1938 convictions of petitioner were vacated due to the fact that at the time thereof he was not represented by counsel. Thereafter, on July 25, 1965, petitioner's habitual offender conviction was vacated on the ground that the voiding of the prior convictions destroyed the validity of the sentence as an habitual offender. Petitioner was then returned to the trial court for resentencing. He was sentenced to serve a term of imprisonment of 5 to 7 years on each of the robbery indictments, to run consecutively, making an aggregate sentence of 25 to 35 years. Subsequently this aggregate term was reduced to 20 to 28 years.

 Parenthetically it may be noted that terms of imprisonment aggregating 5 to 10 years were also imposed for the commission of the robberies while armed but since these terms of imprisonment were to be served concurrently with the above mentioned consecutive terms, they are not material to the claim for relief made here.

 Petitioner appealed from his convictions in the Somerset County Court upon resentencing and the Superior Court of New Jersey, Appellate Division, affirmed the sentences except, as is above noted, the aggregate term of imprisonment was reduced to 20 to 28 years by vacating one of the armed robbery sentences because the offense charged was encompassed within one of the other indictments upon which he was sentenced for robbery. State v. Ford, 92 N.J.Super. 356, 223 A.2d 502 (App.Div., 1966). Certification was denied by the New Jersey Supreme Court on April 18, 1967. Petitioner has exhausted his State remedies.

 The detailed arguments of petitioner may be distilled into two basic substantive contentions: (1) Since 13 years had elapsed prior to resentencing, he had been denied the right to a speedy trial as guaranteed by the Sixth Amendment to the United States Constitution, made applicable to the States by the Fourteenth Amendment. (2) Assuming that the court could resentence him after a lapse of 13 years from the date of his pleas of guilty, the court could not impose more than a single sentence on the consolidated indictments, the maximum of which would be 15 years of imprisonment, service of which had been completed at the time of resentencing by allowance of earned credits. *fn7"

  It has been established that the right to a speedy trial applies to the States through the due process provision of the Fourteenth Amendment to the Constitution. Klopfer v. State of North Carolina, 386 U.S. 213, 87 S. Ct. 988, 18 L. Ed. 2d 1 (1967). Sentence, being the final judgment of conviction, is part of the trial. See Pollard v. United States, 352 U.S. 354, 77 S. Ct. 481, 1 L. Ed. 2d 393 (1957). Unreasonable delay in sentencing violates the right to a speedy trial as guaranteed by the Sixth Amendment and made applicable to the States by the Fourteenth Amendment. See U.S. ex rel. Giovengo v. Maroney, 194 F. Supp. 154 (W.D.Pa.1961); Smoker v. Russell, 218 F. Supp. 899 (M.D.Pa.1963); Miller v. Rodriguez, 373 F.2d 26 (10th Cir. 1967).

 The precise question presented is whether delay in sentencing was unreasonable. Petitioner was sentenced promptly after it was determined that the initial sentence of life imprisonment was invalid. The facts in this case are not analogous to those in Klopfer, supra, where the State court permitted a "nolle prosequi" with leave to the prosecutor to move the indictment when and if he ever chose to do so. In that case there was, as the Supreme Court stated, "an unjustified postponement of trial for an accused discharged from custody." Id. at 219, 87 S. Ct. at 991. Mere delay, in and of itself, of the disposition of a criminal indictment does not provide a ground to attack the validity of a conviction under the Sixth Amendment, but "[the] delay must not be purposeful or oppressive." Pollard v. United States, supra, at p. 361, 77 S. Ct. at p. 486. Where it is accidental and promptly remedied when discovered, there is no ground for complaint. Such is the situation in this case. In the case of Miller v. Rodriguez, supra, there was a delay of six years before correction of sentence and the court in that case stated:

 
The mere correction of a sentence promptly after it is discovered that the original sentence, imposed six years earlier, was erroneous does not support the constitutional burden. * * * The Constitution does not require that sentencing should be a game in which a wrong move by the judge means immunity for the prisoner." Id., 373 F.2d at 28.

 Cases where the courts have denounced delay as unconstitutional, illustrated by Klopfer v. State of North Carolina, supra; U.S. ex rel. Giovengo v. Maroney, supra; and Smoker v. Russell, supra, are those where the delay was deliberate and in the face of requests by a defendant that he have ultimate and final disposition of a charge by indictment pending against him. In Giovengo, supra, the Court stated at page 156 of 194 F. Supp.:

 
We feel that before a Court could find that a state prisoner's rights to a speedy trial have been violated and, hence, a violation of the Fourteenth Amendment of the Constitution, we would have to find that he has requested a trial, and that a speedy trial has been denied, and that this has been prejudicial to his rights.

 See also the concurring opinion of Mr. Justice Harlan in Klopfer, supra, where he would construe deliberate delay in terminating a prosecution as a violation of the principle of fundamental fairness assured by the Due Process Clause of the Fourteenth Amendment. In this case the error in sentence under the Habitual Offender Act was corrected as soon as it ...


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