Kilkenny, Halpern and Lane. The opinion of the court was delivered by Lane, J.A.D.
Odom appeals from an order denying his second petition for post-conviction relief.
On June 13, 1963 he was found guilty of murder in the first degree of two persons with recommendations for life imprisonment and sentenced to concurrent life sentences. Ravenell appealed the conviction. The facts surrounding the crimes are set forth in the opinion of the Supreme Court and need not be repeated here. State v. Ravenell , 43 N.J. 171 (1964), cert. den. 379 U.S. 982, 85 S. Ct. 690, 13 L. Ed. 2d 572 (1965).
Before us it is argued that it was error for the trial court to fail to hold a plenary hearing "to determine the merit of the defendant's petition in violation of his due process rights as guaranteed by Fourteenth Amendment to the Federal Constitution." If the defendant means an evidentiary hearing, we do not agree as will be seen later. If the defendant means a hearing at which each ground for relief is considered, we do agree.
The order appealed from states that the application is barred under R. 3:22-4. The fact that the defendant had brought an earlier petition for post-conviction relief is not in itself sufficient reason to deny the present petition, unless the prior adjudication was upon the merits of the issues now urged (R. 3:22-5) or unless the present petition does not fall within the exceptions in R. 3:22-4. State v. Johnson , 43 N.J. 572 (1965), aff'd 384 U.S. 719, 86 S. Ct. 1772, 16 L. Ed. 2d 882 (1966); cf. State v. Pohlabel , 40 N.J. Super. 416, 422 (App. Div. 1956). The trial court did not set forth any findings of fact or conclusions of law as required by R. 1:7-4. Petitions for post-conviction relief cannot be disposed of out of hand. Rather than remand, we will exercise original jurisdiction to determine the matter. R. 2:10-5.
The grounds set forth in the petition are (verbatim):
(1) Defendant was illegally arrested on July 21, 1962, without a warrant and detained by the Elizabeth Police Department and consequently the confession (State's Item 9 for Identification) was unlawfully obtained and not admissible into evidence.
(2) The defendant was not advised that he was a suspect and was not offered or furnished counsel prior to the making of any confession and therefore the confession was obtained in violation of the defendant's Constitutional rights and therefore invalid and not admissible in evidence. Defendant relies on Culombe v. Connecticut , 367 U.S. 568 (1961) case and Watts v. Indiana , 338 U.S. 49, at 58-59 (1949) case.
(3) Petitioner's rights were substantially denied under the Constitution of the United States or the Constitution or the laws of the State of New Jersey in that petitioner was denied the right of a fair trial so guaranteed, resulting from the highly improper instructions to the jury by the trial judge, which instructions invaded the exclusive province of the jury.
(4) The said sentences is harsh, cruel, excessive and contrary to the defendant's rights under the Constitution of the United States and that of the State of New Jersey.
(5) The defendant was denied his Constitutional right to file and prosecute an appeal from defendant's June 1963 conviction and sentence, all contrary to the fair administration of criminal justice and due process of law.
(6) It is claimed that the defendant in this case was denied due process of law. It is further claimed that a denial of the relief would be contrary to ...