State v. AllisonState v. Allison
SULLIVAN, J.A.D.
This is аn appeal in a post-conviction proceeding. Defendant was convicted of rape in 1940 and was sentenced to 15 to 30 years in prison. He prosecuted an appeal and secured a new trial. State v. Allison, 126 N.J.L. 76 (Sup. Ct. 1941). In November 1941 he was retried and again found guilty. In December 1941 he was sentenced to a term of 14 years and 2 months to 30 years in prison. Apparently the judge, intending to impose a minimum term of 15 years, took into consideration in fixing the minimum sentence the ten months which defendant had spent in jail pending the appeal. Whether inadvertently or not, the said credit was not reflected in the maximum term expressed. In 1945 defendant was paroled by the then Court of Pardons and released under a “license to be at liberty,” conditioned, inter alia, upon not being convicted in any state for a crime committed after release or рarole. The license also provided:
“6. If you are returned to prison by revocation of parole, the timе between your release upon this license and your return to prison, will not be taken into account as part of your sentence, and the Inspectors may declare a forfeiture of the whole or part of the time previously remitted to you for good conduct.”
In 1959 defendant was convicted on a charge of assault in New York and was sеntenced to 2 1/2 to 10 years in prison. In March 1959 defendant‘s parole was revoked in New Jersey because of the сonviction in New York. In May 1960 defendant was released by New York and turned over to the New Jersey authorities, who returned him to State Prison as a parole violator. In June 1960 defendant was denied a parole.
In July 1962 defendant filed an applicаtion to be released from prison on the ground that he was being held in confinement beyond the expiration of his maximum sentence. The application was denied without a hearing on the ground that the application was without merit. Dеfendant, through assigned counsel, appeals to this court.
Defendant makes several contentions. The first is that the maximum sentence of 30 years imposed on him in December 1941 was illegal in that it did not give him a credit for the ten months he spent in jail pending his appeal. Defendant argues that the action of the trial court in September 1961 wherein it directed the prison authorities to give defendant such credit was illegal because such action was a change of sentеnce which could only be made in open court in accordance with R.R. 3:7-13(b). At such a hearing, contends defendant, hе was entitled to be present in person, R.R. 3:5-4, and to ask the court to consider de novo all factors relevant to an appropriate sentence as though he were being sentenced for the first time. This claim is fallacious for a number of reasons.
It is implicit in the case thаt defendant agrees with the State that the sentencing judge in 1941 intended to impose a 15-30 year sentence. The sentence should have so read, without curtailment of either maximum or minimum for time spent in jail pending appeal. Under the aрplicable statute,
Even if this proceeding were regarded as an application for a reduction of sentence, R.R. 3:5-4 expressly dispenses with the necessity fоr the prisoner‘s presence in that case. The cited rule requires the prisoner‘s presence at sentenсe, but, as indicated, the action of the judge here was not a sentencing nor a correction or change оf the sentence. Defendant‘s reliance on State v. Minter, 55 N.J. Super. 562 (App. Div. 1959), is entirely inapposite. That was a case of rectification of the failure of the original sentencing judgе to have imposed a maximum sentence as required by
Defendant also contends that in computing the timе to be served by him on revocation of parole he should be credited with time spent under parole supervision after his release from prison. This contention is unsupported by citation of any authority. Indeed, such argument is directly сontrary to the holding in In re Kneipher, 12 N.J. Super. 407 (Cty. Ct. 1951). We adopt the holding in that case that a prisoner, after revocation of his license to be at large, is not entitled to have time spent while out on parole considered in determining the amount of maximum sеntence remaining to be served by him, the conditions of the license being expressly to the contrary and binding on him.
We recognize the possibility of merit in defendant‘s argument that he has certain equities in his favor. However, evaluation of those equities is for the Parole Board. Our present review is limited to a consideration of the legality of defendant‘s sentence and confinement.
Affirmed.