This is a petition for post-conviction relief made pursuant to R. 3:22-2 on behalf of Richard DeMott. Because of the somewhat novel nature of the points raised, some review of the pertinent facts of this matter ought to be made.
On May 12, 1972 Richard DeMott was sentenced by this court to a State Prison term of 2-3 years for the possession and distribution of heroin.
On June 9, 1972 a motion to modify this sentence was granted by this court. Pursuant to this modification, the prison sentence was suspended on condition that DeMott submit to inpatient treatment at the St. Dismas Rehabilitation Facility for a two-year period. The record indicates that he left the Dismas Facility without permission on the same day he arrived, June 14, 1972.
Because of the violation of the terms of the modified sentence imposed, DeMott was resentenced for violating probation by Judge Shields on July 11, 1972. Judge Shields reimposed the original sentence prescribed by this court on May 12, 1972 -- that is, 2-3 years in State Prison.
It appears from the records, and indeed from the presentence investigation, that DeMott was on parole from a sentence of an indeterminate term at Yardville at all times during these proceedings. This parole status grew out of a sentence imposed upon a conviction for robbery in 1970.
Although the presentence investigation clearly states the fact that DeMott was on parole, there was no mention of this by the attorneys or by the courts during any of the three occasions that DeMott appeared for sentencing. Specifically, no mention was made of the possibility that DeMott might face additional incarceration as a parole violator. As a result of this, no decision was made by this court or by Judge Shields as to whether the sentence being imposed was to run
consecutively to, or separately from, any potential sentence which might be imposed by the parole authorities at a later time.
On or about June 21, 1973 DeMott or his attorney received official confirmation of the fact that a detainer for a parole violation had, in fact, been filed against him at his present place of incarceration. The time involved for this parole violation is two years and seven months.
This petition for post-conviction relief was filed on January 25, 1974. On March 8, 1974 the State moved that the petition be dismissed pursuant to R. 3:22-9 in that the petition did not set forth a cognizable ground under R. 3:22-2. The motion was denied and the matter set down for a plenary hearing.
As I see it, the issue presented is whether, under these circumstances, petitioner has been denied due process of law in contravention of the Fourteenth Amendment of the U.S. Constitution.
Petitioner essentially argues that he has been condemned to a sentence longer than what might have been imposed by virtue of the ...