Goldmann, Leonard and Mountain. The opinion of the court was delivered by Leonard, J.A.D.
Defendant appeals from a denial of his petition for post-conviction relief wherein he alleged he pleaded guilty to the charges pending against him only in response to a promise as to his sentence, which promise was not kept.
The grand jury returned five indictments (Nos. 89, 90, 91, 92 and 187) against defendant for obtaining money under
false pretenses (N.J.S.A. 2A:111-1 and 2A:111-19), to which he pleaded not guilty. On May 20, 1968 he retracted his former pleas and pleaded guilty to the five indictments after executing a Form 13A as to each. On June 28, 1968 defendant was sentenced (by a different judge than the one before whom he had pleaded) to a 2-3 year sentence on each indictment, the sentences on 89 and 90 to run concurrently to each other, those on 91, 92 and 187 to run concurrently to each other but consecutively to 89 and 90, and all to run concurrently with a 3-5 year sentence shortly before imposed upon him in Middlesex County on June 4, 1968. In addition, and as a result of the convictions emanating from the above pleas, he was sentenced for violation of probation on ten previously existing charges to terms of 1-2 years on each charge, all of these sentences to run concurrently to each other but consecutively to the five indictments to which he had pleaded and on which he had just been sentenced. Thus, in total, defendant was sentenced to a 5-8 year term, to be concurrent with the 3-5 year term previously imposed in Middlesex County.
In his post-conviction proceeding, heard by the judge who sentenced him, defendant testified that he met his attorney, a member of the Public Defender's office, for the first time on the morning he retracted his plea, in the Union County Court House. He had been brought there by two members of the Middlesex County Sheriff's Department for the purpose of going to trial on that date. He told his lawyer he would not enter the courtroom with him because he felt that the lawyer could not adequately present the case without any prior knowledge of defendant or the circumstances of the offenses. The lawyer then left and apparently went to the judge to seek a postponement. On his return he told defendant that the judge had refused his request. Defendant repeated that he refused to go to trial. The lawyer then went back to talk to the judge and returned to tell defendant that he had "made a deal" for him. If defendant were to plead guilty to the five pending indictments the judge would sentence
him to the "exact" amount of time that might be imposed in Middlesex County on other charges there pending, both sentences to run concurrently. At defendant's request the attorney repeated the terms of the "bargain" in front of the two sheriff's officers who had defendant in custody.
Defendant further testified that the attorney again told him on June 28, before sentence was imposed, that the "same deal still held" and the sentence "would not exceed" the 3-5 year sentence previously imposed in Middlesex County.
At the time of the plea retraction the judge went over in detail Form 13A previously executed by defendant and he denied that any inducements or promises had been made to have him plead guilty or any promise made as to sentence. At the post-conviction proceedings the trial judge questioned defendant as to these answers. He responded:
They were not true, your Honor, but when I made these, when you gave me these questions and you told me about these questions, was I to say to you "Yes. A bargain was made." Would you have accepted this bargain, if you did make the bargain, which I now believe you * * *.
Robert Belluscio, a Middlesex County Sheriff's officer, testified that, although he could not testify to the exact words used between defendant and his counsel, "a deal was made * * * that he would receive the same sentence that would be sentenced to him [sic] in Middlesex County."
Defendant's attorney testified that he met and interviewed defendant on May 20 in the Union County Court House. He spoke to the judge before whom the trial was scheduled, who requested that he speak with defendant "about entering a plea." The judge told him that he would write a letter to the sentencing judge recommending that defendant receive a concurrent sentence. The attorney further testified he told defendant of his conversation with the judge. However, he stated that he at no time made a ...