On appeal from Superior Court of New Jersey, Law Division, Ocean County, Indictment No. 95-09-00870.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted December 8, 2009
Before Judges Skillman and Fuentes.
Defendant was convicted in 1998 of three counts of aggravated sexual assault, for which he was sentenced to concurrent twenty-year terms of imprisonment, with ten years of parole ineligibility, and one count of endangering the welfare of a child, in violation of N.J.S.A. 2C:24-4(a), for which he was sentenced to a consecutive ten-year term of imprisonment, with five years of parole ineligibility. On appeal, we affirmed defendant's conviction and sentence in an unreported opinion, State v. Durmer, No. A-5628-97T4 (April 5, 2000), and the Supreme Court denied defendant's petition for certification. 167 N.J. 633 (2001). Defendant then filed a petition for a writ of certiorari in the Supreme Court of the United States, which was denied. 534 U.S. 858, 122 Ct. 136, 151 L.Ed. 2d 89 (2001).
The trial court denied defendant's first petition for post-conviction relief in 2002. On appeal, we affirmed that denial in an unreported opinion, State v. Durmer, No. A-1535-02T4 (Feb. 26, 2004), and the Supreme Court denied defendant's petition for certification. 180 N.J. 355 (2004).
In 2004, defendant filed a federal habeas corpus petition under 28 U.S.C.A. § 2254. By a written opinion filed on October 13, 2006, the United States District Court denied this petition. 2006 WL 2938831 (D.N.J.). On June 6, 2007, the Third Circuit Court of Appeals denied defendant's request for a certificate of appealability, Durmer v. Rogers, No. 06-4660 (3d Cir. 2007), and on November 13, 2007, the Supreme Court of the United States denied defendant's petition for a writ of certiorari. 552 U.S. 1026, 128 S.Ct. 622, 169 L.Ed. 2d 400 (2007).
On October 31, 2008, defendant filed a second petition for post-conviction relief. On November 3, 2008, the trial court summarily denied the petition on the ground that it had been filed beyond the five-year period after entry of the judgment allowed by Rule 3:22-12(a) and that defendant had "no allege[d] facts showing that the delay was due to [his] excusable neglect[.]"
Defendant filed a motion to vacate the order memorializing this denial, which the trial court denied by a brief letter opinion dated December 24, 2008.
Even though a defendant characterizes his application as a petition for post-conviction relief, the court must treat the application as a motion for new trial based on newly discovered evidence if the allegations of the petition and supporting argument warrant such treatment. State v. Behn, 375 N.J. Super. 409, 414-15 (App. Div. 2005). A motion for a new trial based on newly discovered evidence is not subject to the five-year bar of Rule 3:22-12(a). Such a motion "may be made at any time." R. 3:20-2.
We conclude that defendant's petition may be viewed as a motion for a new trial based on newly discovered evidence. The petition included the following allegations:
The Ocean County Prosecutor's Office withheld from petitioner and petitioner's direct appeal lawyer... vital and meaningful documents....
Documents that were withheld from petitioner..., show that the complaining witness admitted in a letter to his brother, on June 14, 1995, that he implicated petitioner solely out of a revenge factor, along with his desire to hide an ongoing sexual relationship with his older brother,.... He even states that his father was an active participant in the aggravated sexual assaults perpetrated against him.... These deliberate omissions also violate Brady v. Maryland, and calls for vacating Petitioner's convict and sentence, and the dismissal with prejudice of Ocean County Indictment #95-09-00870. This ...