For reversal and remandment -- Chief Justice Hughes, Justices Mountain, Sullivan and Clifford and Judge Conford. For reversal -- Justice Pashman. For reversal and modification -- Justice Schreiber. The opinion of the Court was delivered by Conford, P.J.A.D., Temporarily Assigned. Pashman, J. (dissenting). Schreiber, J. (dissenting in part and concurring in part).
This is a companion appeal to State v. Gibson, 68 N.J. 499 (1975), decided by us this day. We granted direct certification of both the Gibson and this appeal on our own motion, prior to hearing thereof in the Appellate Division, in order to determine whether the inclusion in a plea bargain of an agreement by a defendant not to appeal a collateral conviction in return for charge or sentence concessions by the State was per se invalid, giving rise to a case for post-conviction relief. 67 N.J. 103 (1975). Our conclusion on that question in Gibson was in the negative.
The record in the present case is insufficient for disposition of the appeal in relation to that issue. It is also inadequate for determination of the only other issue raised on this appeal, i.e., whether defendant is entitled to credit on his sentences for robbery and for being armed during the robbery for his detention between the dates of his conviction and sentencing. There will have to be a remand to create a proper record for disposition of both questions.
Defendant and Gibson were together convicted before a jury December 21, 1971 of robbery and of being armed during the robbery. On July 28, 1972 defendant was sentenced to a ten to twelve year term in State Prison for the robbery and to a two to three year concurrent term for being armed. There was no appeal from these sentences. The delay between
conviction and sentence was inordinate, and is explained by the interposition of a motion for a new trial, which was denied.
On September 27, 1973 defendant filed a petition for post-conviction relief. The petition was devoid of specification of grounds for relief. A hearing on the petition was held February 11, 1974. An Assistant Deputy Public Defender represented petitioner and recited the grounds relied upon. He failed to call any witnesses in support of his allegations of fact. The defendant was allowed to speak in his own behalf but was not called upon for any testimony material to either of the grounds now argued.
With respect to the plea-bargain waiver of appeal, all we have in this record is the following statement by counsel at the post-conviction hearing:
"It seems that Mr. Bryant was offered the same plea bargain [as Mr. Gibson] -- that is, he had outstanding charges pending at the time that he was sentenced for the conviction of armed robbery. The plea bargain was to the effect that if you do not take a direct appeal from this conviction, we will dismiss the outstanding charges you have against you; I think, one of which was sodomy. * * * Mr. Bryant failed to exercise his right of direct appeal on the basis that if he did so, that he would have to face further charges."
As distinguished from the Gibson case, we have no direct testimony concerning the nature and circumstances of the plea agreement and as to the kind of legal representation afforded defendant in the negotiation of the plea. The facts that Gibson was fully and adequately advised concerning the nature of the plea agreement, that his waiver of appeal was voluntary and that the circumstances were free of oppression and coerciveness on the part of the State were all developed in the proofs on the post-conviction hearing and were material to our decision in Gibson that there was no cause of action for post-conviction relief in that case. Not only are such proofs here absent, but we are not even apprised of the precise other outstanding charges against defendant and the disposition made of them.
There must, accordingly, be a remand to the Law Division for the production of testimony and such other requisite proofs on the basis of which proper findings of fact and conclusions of law may be rendered consonant with the criteria of legality set forth in our decision in Gibson.
With respect to defendant's claim for credit on his armed robbery sentences for time served between conviction and sentence, the record made at the post-conviction hearing is similarly deficient for an informed determination. There was no evidence as to whether or when defendant had been declared delinquent on parole, or the parole revoked, and some of the recitals of ...