For affirmance -- Chief Justice Weintraub, Justices Jacobs, Proctor, Hall and Mountain and Judges Conford and Sullivan. For reversal -- None. The opinion of the Court was delivered by Weintraub, C.J. Jacobs, J. (concurring). Justice Hall joins this concurrence. Jacobs and Hall, JJ., in result.
This is a post-conviction proceeding. Poteet and two others were convicted of the armed robbery of a bank. Poteet's conviction was affirmed by the Appellate Division in an unreported opinion, and we denied his petition for certification. 51 N.J. 572 (1968). Poteet instituted the present proceeding advancing claims which could have been raised on the direct appeal and which were foreclosed on that account. State v. Trantino, 60 N.J. 176, 180 (1972). Both the trial court and the Appellate Division, while recognizing the issues should have been advanced on the direct appeal, nonetheless accepted the issues and resolved them against Poteet. We granted certification, 60 N.J. 21 (1972), to consider whether the sentencing judge increased the sentence because Poteet defended against the charge and did not admit his guilt at sentencing. We are satisfied the trial court exacted no penalty on that account.
The controlling principles are easily stated although not as easily applied. Surely punishment may not exceed what the man and his offense would warrant merely because he went to trial. A defendant has a right to defend, and although he is not privileged to commit perjury in that defense, the sentencing judge may not add a penalty because he believes the defendant lied. One reason is evident. A man may not be punished except upon a charge and opportunity for hearing. There having been no charge of
perjury or conviction for that crime, due process would be denied if further punishment were inflicted for that crime. Another reason, apart from this procedural obstacle, is that the right to defend would be unduly burdened if a defendant understood that, if convicted, his mere denial of the charge under oath would without more lead to successive convictions for perjury until he or the State was exhausted. We need not say whether a defendant may ever be indicted when he does no more than falsely deny his guilt at trial; we here refer to the values embarrassed by a perjury prosecution in order to stress the wrongfulness of including in a sentence something extra upon a belief that the defendant lied in asserting his innocence. Upon the proposition that no further penalty may thus be exacted, the cases agree. See Scott v. United States, 135 U.S. App. D.C. 377, 419 F.2d 264 (1969); Thomas v. United States, 368 F.2d 941 (5 Cir. 1966); Miler v. United States, 255 A.2d 497 (D.C. Ct. App. 1969); cf. Le Blanc v. United States, 391 F.2d 916 (1 Cir. 1968). Speaking of Thomas v. United States, supra, we said in State v. De Stasio, 49 N.J. 247, 259 (1967), cert. denied, 389 U.S. 830, 88 S. Ct. 96, 19 L. Ed. 2d 89 (1967):
"The Court of Appeals properly said that a sentence may not be increased because a defendant defended against the charge or insisted upon his right of appeal."
There would be no great problem in applying this evident principle if the sentencing court were required only to put a price upon a given criminal event. But the larger demand is that the court take into account the man and his prospects for redemption. The aims of punishment are several, see State v. Ivan, 33 N.J. 197, 199-202 (1960), but the hope is constant that punishment, mild or severe, will reshape the offender. In assaying the prospects for rehabilitation, the court must look at the man as well as the offense, and it is here that a defendant's attitude toward the truth is not irrelevant.
Although, as we have said, it would be conceptually wrong to enlarge the crime for which a defendant is being punished by adding to it a finding of perjury, it is equally clear the sentencing judge may find in a plea of guilty some promise that the defendant can be rehabilitated by a lesser punishment than the circumstances might otherwise require. When that promise is found, it ought not to be disregarded because some hypothetical defendant, misunderstanding the sentencing process, might offer a false guilty plea or suspect the sentence imposed after trial was increased because the judge thought he lied. Surely that risk is insubstantial when the alternative would be a wooden approach barring consideration of the hope a judge may find in sincere contrition. As we said in De Stasio, supra, 49 N.J. at 260, "It would be grossly unfair to the many if all had to be sentenced without regard to their acknowledgment of guilt or their aid to the State in coping with crime, merely because a prospect of favorable treatment could induce someone to abandon his defense or his appeal."
But when the defendant has already been convicted, an admission of guilt is of doubtful value. We do not say the sentencing judge may not find otherwise in a given case, and of course we do not suggest that a willingness then to assist the State in bringing others to book may not be taken into account. Generally, however, a confession at that point is of little rehabilitative significance. In any event, the sentencing judge should not himself seek to induce a defendant to confess. The danger of misunderstanding and of unintended coercion is too great. It is for this reason that our administrative directive dated December 28, 1970 with respect to plea-bargaining provides that "the judge shall take no part in such discussions" (94 N.J.L.J. 1 (1971)). That danger is even more apparent when guilt has been established and the final disposition rests with the very officer who seeks the admission of guilt. A confession at that
juncture is worth too little to compensate for the risk that the defendant who does not yield will believe he was punished additionally because he did not.
Hence we would disapprove a practice of calling routinely upon defendants at sentencing to disavow their stance of innocence. But Poteet was not dealt with that way. The trial judge did not call upon Poteet to admit his guilt. Nor does the transcript suggest the judge would have deemed a confession from him to have any value in ...