Collester, Mintz and Lynch.
This matter involves two separate appeals: (1) denial of defendant's petition for post-conviction relief, and (2) the revocation of defendant's parole by the State Parole Board.
Defendant was found guilty of carnal abuse and on April 11, 1958 was committed to the New Jersey State Hospital at Marlboro. He took no direct appeal. His first petition for post-conviction relief was filed on July 14, 1967. It was dismissed by the court, without an evidentiary hearing, on October 13, 1967 on the ground that it had not been filed within five years after defendant's conviction. R.R. 3:10A-13, now R. 3:22-12.
On March 30, 1971 defendant filed a second petition for post-conviction relief alleging the verdict was against the weight of the evidence and "there is no specific sentence -- the sentence is ambiguous." The court again dismissed the petition under the provisions of R. 3:22-12. Defendant appeals contending that the petition should not have been dismissed because of defendant's excusable neglect.
The order dismissing the petition is affirmed. The petition did not allege facts showing the delay in filing for more than five years was due to defendant's excusable neglect, R. 3:22-12. Moreover, the claim that the verdict was against the weight of the evidence can be raised only on a direct appeal; it is not a ground for post-conviction relief. R. 3:22-2 and 4. And further, contrary to the assertion of defendant, the sentence to an indeterminate term at the State Hospital was proper. N.J.S.A. 2A:164-6. It was specific and unambiguous.
Defendant was paroled from the New Jersey State Hospital at Marlboro on April 17, 1969. On August 11, 1970 defendant was arrested and charged with atrocious assault and battery for stabbing the husband of his paramour. When interviewed by his parole officer he admitted the stabbing and also having sexual relations with the victim's wife. On October 5, 1970 defendant pleaded guilty in the municipal court to simple assault and battery and was sentenced to the time served in jail (60 days).
Upon receipt of the parole officer's report the State Parole Board on September 16, 1970 declared defendant delinquent on parole as of August 11, 1970, the date of his arrest, and revoked his parole. The stated grounds for revocation were:
1. Failure to refrain from conduct on parole which shall give reasonable cause to believe that you have resumed, or are about to resume, criminal conduct or associations, as evidenced by the circumstances
of your arrest on or about August 11, 1970 by the Elizabeth police for ...