Gaulkin, Collester and Labrecque. Gaulkin, S.j.a.d.
[104 NJSuper Page 295] This case raises the question whether Puchalski was entitled to the assignment of counsel at public expense to assist him in making a plea for parole. We hold he was not.
Puchalski is presently serving a sentence of 29 to 30 years at New Jersey State Prison for second degree murder. Sometime prior to December 1, 1967 he was notified that he was scheduled to appear at a meeting with the Parole Board in March 1968, to be considered for parole. On December 1, 1967 he wrote to the chairman of the Parole Board requesting that an attorney be assigned "to represent my interests at the time I appear before the Board" and "to appear on the date in question." A similar letter was directed to the Public Defender. He was advised by letters that neither organization would provide counsel.
On January 9, 1968 an application was made to the Public Defender requesting that the Public Defender provide him with the limited representation allowed by N.J.S.A. 30:4-123.25 -- namely, consultation with counsel prior to the parole hearing and submission by counsel of a brief or other legal argument on his behalf to the Parole Board. It is stipulated that an application for the assignment of counsel also was submitted, pursuant to R.R. 1:12-9, and that he is indigent. On January 30, 1968 the Public Defender denied this request on the grounds that "the statute establishing the Office of the Public Defender does not authorize representation * * * of indigent defendants in connection with any proceedings involving the State Parole Board."
Thereafter Puchalski appeared before the Parole Board and parole was denied. His case was rescheduled for hearing in February 1970.
Puchalski does not contend that there is at present statutory or rule authority for assignment of counsel by the Parole Board or by any other agency to assist prisoners at parole hearings. Nor does he appear to contend that there is a constitutional or statutory right to be represented by counsel at a parole hearing. Rather, his sole contention appears to be that, since N.J.S.A. 30:4-123.25 affords a prisoner "the right to consult legal counsel of his own selection" prior to a parole hearing, the failure of the State to appoint counsel for an indigent prisoner for at least this
limited purpose constitutes a denial of equal protection of the laws and due process of law under the Fourteenth Amendment.
In a series of cases dealing with the rights of indigent defendants on appeal, the United States Supreme Court has held that the state must supply a transcript without charge to indigent defendants, where such transcript is needed for adequate and effective appellate review and is available to those who pay a fee, Griffin v. People of State of Illinois, 351 U.S. 12, 76 S. Ct. 585, 100 L. Ed. 891 (1956); that such transcripts must be made available to indigents, without the intervention of a public defender, even on appeal of collateral proceedings such as denial of a writ of error coram nobis, Lane v. Brown, 372 U.S. 477, 83 S. Ct. 768, 9 L. Ed. 2 d 892, 768 (1963); Gardner v. California, 393 U.S. 367, 89 S. Ct. 580, 21 L. Ed. 2 d, 601 (1969); that filing fees may not be imposed where they would deny to the indigent criminal defendant review available to those who can pay, either by way of direct appeal, Burns v. Ohio, 360 U.S. 252, 79 S. Ct. 1164, 3 L. Ed. 2 d 1209 (1959), or by way of collateral attack, Smith v. Bennett, 365 U.S. 708, 81 S. Ct. 895, 6 L. Ed. 2 d 39 (1961), and that where a first appeal is granted to all defendants as a matter of right, the state must supply counsel for that appeal to indigent defendants. Douglas v. People of State of California, 372 U.S. 353, 83 S. Ct. 814, 9 L. Ed. 2 d 811 (1963). See also Harper v. Virginia State Board of Elections, 383 U.S. 663, 86 S. Ct. 1079, 16 L. Ed. 2 d 169 (1966) (holding the state's poll tax unconstitutional because of its necessary denial of the franchise to those unable to pay).
The cases dealing with criminal appeals rest largely on the reasoning, expressed in both Griffin and Douglas, that even though there is no constitutional right to appeal, once such right is granted by the state, it must be granted equally to all defendants regardless of their financial condition. There must be no discrimination against the indigent in his right to appeal; the "type" of appeal he gets should not
depend upon his ability to pay. Douglas v. People of State of California, supra, 372 U.S. 353, 83 S. Ct. 814, 9 L. Ed. 2 d, at 814; Griffin v. People of the State of Illinois, supra, 351 U.S. 12, 76 S. Ct. 585, 100 L. Ed., at 898-899, 901; cf. Gardner v. California, supra.
Puchalski's argument is that this reasoning should be extended to a New Jersey parole hearing. ...