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State v. Rhein

Decided: November 17, 1971.

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
CARL ERNEST RHEIN, DEFENDANT-APPELLANT



Conford, Matthews and Fritz. The opinion of the court was delivered by Conford, P.J.A.D.

Conford

This is an appeal from denial by the Monmouth County Court of post-conviction relief sought by defendant.

A two-count indictment was returned against defendant charging (1) carnal abuse of a seven-year-old female child, contrary to N.J.S.A. 2A:138-1 (a high misdemeanor, subject to fine and imprisonment up to 30 years), and (2)

inducement of a four-year-old child to do and submit to an act tending to impair her morals, contrary to N.J.S.A. 2A:96-3 (a misdemeanor, subject to fine and imprisonment up to three years). Defendant first pleaded not guilty but on April 15, 1969 appeared before the court with counsel assigned to him by the Public Defender, withdrew his plea of not guilty and entered a plea of guilty to the first count of the indictment.

On June 13, 1969 defendant was sentenced on his plea, pursuant to the Sex Offender Act, to the Diagnostic Unit of the State Prison Farm at Rahway for an indeterminate term. Under that act the defendant can be kept so confined for the maximum of 30 years prescribed for the offense by statute. At the same time, on motion of the prosecutor and concededly as a result of a plea bargain with defendant, the second count of the indictment was dismissed.

Defendant took no appeal but filed a petition for post-conviction relief on January 12, 1970, asserting denial of his rights under the Sixth and Fourteenth Amendments and specifying various acts of inadequacy or ineffectiveness of counsel in respect of the taking of the plea of guilty. At the hearing defendant testified that K. (not appellate counsel), assigned counsel from the Public Defender's office, saw him at the court house for 20 minutes on the day of the plea and advised him to plead guilty. He testified:

Q. As a result of that conversation what did you decide to do? A. Well, through his advice I pleaded guilty to a carnal abuse charge, but I didn't understand the charge. I mean, I didn't commit carnal abuse actually, but the way he explained it to me, if I as much as put my hands on the girl this was carnal abuse, but no private parts of my body touched hers in any way.

On cross-examination defendant conceded he had signed Criminal Procedure Form 13A before entering his plea and that he understood what he was doing except that he "didn't understand the charge of carnal abuse. This wasn't explained

to me thoroughly. * * * [K.] said if I as much as laid my hand on the girl this was considered carnal abuse."

On redirect examination defendant testified:

Q. What was your understanding of putting your hands on the girl; in other words, just putting your hands, say on her shoulder or what exactly was your understanding. A. Yes, on her shoulder or legs and things like this. I mean, actually, I did molest the ...


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