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State v. Ellis

Decided: October 14, 1971.

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
COPELAN EARL ELLIS, DEFENDANT-APPELLANT



Kilkenny, Labrecque and Lane. The opinion of the court was delivered by Lane, J.A.D.

Lane

[116 NJSuper Page 332] Defendant appeals from the denial of his fourth petition for post-conviction relief. On November 29, 1967 he was convicted on his plea of guilty of assault with intent to rob. (N.J.S.A. 2A:90-2) and of being armed with a revolver while committing the assault (N.J.S.A. 2A:151-5). He was sentenced to two consecutive indeterminate terms at Bordentown Reformatory. When the authorities at Bordentown found that he had served a sentence in the South Carolina State Prison, they transferred him to the State Prison at Rahway. He was thereafter resentenced to a term of not less than five years nor more than seven years at the New Jersey State Prison for the violation of N.J.S.A. 2A:90-2, and to a consecutive

term of not less than two years nor more than three years for the violation of N.J.S.A. 2A:151-5.

His present petition seeks relief on the ground that N.J.S.A. 2A:151-5 as applied to him is unconstitutional in that it "punished him twice for one offense."

The trial court considered the petition without referring it to the Public Defender and in a letter-opinion dated January 21, 1970 discussed the grounds for relief alleged and denied the petition, concluding that the grounds were "manifestly frivolous." On February 24, 1970 defendant filed pro se a notice of appeal from such denial. On March 11, 1970 the trial court entered an order which granted leave to defendant to appeal as an indigent and which "further ordered that the Office of the Public Defender is hereby assigned to represent the defendant on said appeal."

Defendant argues that the imposition of a second sentence for a violation of N.J.S.A. 2A:151-5 punished him twice for one offense. He further argues that it was an abuse of discretion for the trial court to impose the second sentence for the violation of N.J.S.A. 2A:151-5 when the maximum sentence had not been imposed for violation of N.J.S.A. 2A:90-2.

The contentions are frivolous. Consecutive sentences for assault with intent to rob and for doing so while armed do not constitute offensive multiple punishment for the same violation. State v. Hodgson , 44 N.J. 151, 165 (1965), cert. den. 384 U.S. 1021 (1966). Such sentences are proper. State v. Hodgson , 44 N.J. 151, 164, supra; State v. Flowers , 109 N.J. Super. 309, 312 (App. Div. 1970); State v. Bennett , 75 N.J. Super. 207, 212 (App. Div. 1962); State v. Buffa , 65 N.J. Super. 421, 427 (App. Div. 1961). The imposition of the second sentence when the first was not a maximum was not an abuse of discretion. See State v. Hodgson , 44 N.J. 151, supra; State v. Bennett , 75 N.J. Super. 207, supra; State v. Buffa , 65 N.J. Super. 421, supra , in which the first sentence imposed was less than the maximum.

It is further argued before us that the trial judge erred in assigning the Office of the Public Defender to represent the defendant on this appeal.

R. 2:7-2(a) deals with the assignment of counsel on appeal to persons convicted of indictable offenses. The last sentence of that rule states:

He shall thereupon be referred to the Office of the Public Defender, which shall represent him on such appeal or review and on such subsequent post-conviction proceedings or appeal therein as would warrant the assignment of counsel.

R. 3:22-6 deals with the assignment of counsel in postconviction relief proceedings. R. 3:22-6(a) states that the first petition for post-conviction relief filed by a defendant shall be referred to the Office of the Public Defender if the defendant's conviction was for an indictable offense, unless defendant affirmatively asserts his intention to proceed pro se. This provision is mandatory. R. 3:22-6(b) deals with the assignment of counsel on subsequent petitions for post-conviction relief. In the 1969 and 1971 editions of the Rules Governing the Courts of the State of New Jersey that rule as printed is:

Upon any second or subsequent petition filed pursuant to this Rule attacking the same conviction, the matter shall be referred to the Office of the Public Defender. Counsel shall be assigned only ...


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