On appeal from Superior Court of New Jersey, Law Division, Cumberland County.
Fritz, Polow and Joelson. The opinion of the court was delivered by Fritz, P.J.A.D.
[176 NJSuper Page 497] Insisting through counsel that, "There is no plea bargain," defendant entered a plea of guilty to counts of an indictment charging him with rape, robbery while armed, assault with an offensive weapon and unlawful possession of a weapon, but entered no plea at that time respecting other counts charging him with kidnapping and threatening to take a life. This was on October 26, 1978. For reasons that will appear, he was not sentenced until August 27, 1979. At that time he was sentenced to State Prison for 10 to 30 years for the rape, for a consecutive three to seven-year term for the robbery and for a further consecutive term of two to five years for the armed feature, as well as a concurrent two to five years for the unlawful possession of a weapon. The count charging him with assault with an offensive weapon was dismissed as one that would have in any
event merged with the robbery, as were the counts for kidnapping and threatening to take a life.
Defendant now appeals, setting forth the legal argument in "point headings" which ask questions:
Point I -- Was the defendant-appellant Melvin Earl Phillips denied effective assistance of counsel by his attorney's representation that the judge would be lenient if he pled, guilty, on which he relied?
Point II -- Did the trial judge commit reversible error in considering the defendant's second arrest, and plea, as contained in the supplemental investigation supplied the court, in sentencing the defendant on the first arrest charges?
The reason for the delay in sentencing appears clearly enough in the sentencing transcript, where the sentencing judge reports:
In addition to your record being clean, you had this potential as an athlete that you were pursuing in school, and the principal at the school gave us a good report about you, and I remember when you came here for sentencing the first time, you had a stack of paper a foot high that you wanted me to look at and read, and Mr. Redding told the story that you were the instigator of the events in question, and, of course, you told the story that Mr. Redding was the instigator of the events in question. I didn't know who to believe, but I looked at the records, and I decided that you having a clean record, you were the fellow to believe. So, I sent Mr. Redding away to state prison for a very long time.
In your situation, I did something a little unusual. I postponed the sentence for a very long period of time.
THE COURT: The idea was to let you finish school, get your scholarship, and, hopefully, go to college, and if you did that, I was probably going to do something, or at least I was going to wrestle with the problem of maybe I wouldn't send you away to jail for a long, long time. Maybe, but I was at least going to give you the opportunity to get high school behind you and see how you made out, and if you were doing good, I would have at least considered it. Whether I would have done it is quite another question, because what you did was so ...