On appeal from the Superior Court of New Jersey, Law Division, Criminal Part, Monmouth County, Indictment No. 92-01-0009.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted: March 10, 2010
Before Judges Stern and Sabatino.
Defendant was convicted on August 20, 1993, of two counts of first degree aggravated sexual assault, two counts of second degree sexual assault, three counts of endangering the welfare of a child, two counts of terroristic threats, possession of a weapon for an unlawful purpose and promoting prostitution.
Several counts were dismissed during trial and the defendant was acquitted on some of the charges. On March 8, 1996, we affirmed the convictions but remanded for re-sentencing of the aggregate forty-six year sentence, with twelve years to be served before parole eligibility, as originally imposed. We did so in light of the imposition of five consecutive sentences, three of which had parole ineligibility terms imposed on presumptive sentences. We also ordered the unmerger of two of the endangering convictions.
On remand, the trial judge imposed the same aggregate sentence, and on a second appeal, we vacated the ineligibility term on the promoting prostitution count because age and the solicitation of a sixteen year old to have sex in exchange for drugs were elements of the offense. We also remanded to reconsider the sentence imposed on one of the first degree aggravated sexual assaults because the judge imposed an ineligibility term which was not mandatory as this offense occurred before the prior conviction for sexual assault.
On February 27, 1998, the sentence was imposed for a third time.*fn1 The judge again imposed a fifteen-year sentence with five years before parole eligibility for the two aggravated sexual assaults, this time as a discretionary matter with respect to count one. However, the judge imposed no period of parole ineligibility on the other four year consecutive sentences.
Thus, the new sentence aggregated forty-six years in the custody of the Commissioner of Corrections with only ten years of parole ineligibility. On April 13, 1999, we affirmed that judgment. Defendant's petition for certification was denied on November 24, 1999. State v. G.C., 162 N.J. 489 (1999).
The State's brief explains what happened thereafter:
A couple [of] months later, on or about April 24, 2000, defendant filed in the Law Division a pro se motion for post-conviction relief, alleging ineffective assistance of counsel. The motion was deemed non-conforming because it lacked a proposed order and defendant did not sign certain documents among his paperwork. The court dismissed the motion without prejudice on May 31, 2000.
On July 10, 2006, defendant filed another pro se motion for post-conviction relief. Counsel was assigned and, on January 24, 2008, defendant filed an amended petition, a supplemental brief, supporting certifications, and a report by Dr. Daniel Greenfield which concluded defendant had "cognitive limitations" that support a finding of "excusable neglect" for his untimely post-conviction relief filing.
On February 6, 2008, the State filed a cross-motion to dismiss defendant's petition on the ground it was procedurally out-of-time. A hearing was held [on] March 14, 2008, at the conclusion of which the . . . [judge] ...