On appeal from Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 92-01-0019.
The opinion of the court was delivered by: Payne, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Payne, Miniman and Waugh.
Defendant, E. W., a convicted sex offender, appeals from the denial of his petition for post-conviction relief (PCR) as untimely. See R. 3:22-12 (establishing a five-year general time limitation). Defendant was indicted on January 8, 1992 for various sexual offenses committed on his daughter, L.W., commencing in 1977 when the daughter was four and continuing to 1991. He also was indicted for committing an act of sexual assault on T.E., his daughter's friend, in violation of N.J.S.A. 2C:14-2b and committing an act of criminal sexual contact on T.E. in violation of N.J.S.A. 2C:14-3b. The assaults against T.E. occurred in 1979. Following trial, defendant was found guilty on all counts.*fn1
Defendant was sentenced on February 26, 1996 to concurrent twenty-year terms in custody at the Adult Diagnostic and Treatment Center (ADTC) with a ten-year parole disqualifier for crimes committed against his daughter consisting of two counts of first-degree aggravated sexual assault in violation of N.J.S.A. 2C:14-1a(1) and (2) and to a consecutive ADTC sentence of ten years with a five-year parole disqualifier for second-degree sexual assault against T.E. in violation of N.J.S.A. 2C:14-2b. Defendant's remaining convictions were merged with those upon which he was sentenced.
Defendant's convictions and sentence were affirmed on appeal to us in an unpublished opinion issued on March 22, 1999. State v. E.W., No. A-5109-95 (App. Div. March 22, 1999). A motion for reconsideration was denied on May 20, 1999. Defendant's petition for certification was denied as untimely.
On December 3, 2007, defendant filed a petition for post-conviction relief, which, as we have stated, was also denied as untimely. He has appealed.
On appeal, defendant sets forth, in Point I, the standard of review, and he then makes the following legal arguments:
II. DEFENDANT'S PETITION FOR POST-CONVICTION RELIEF IS TIMELY.
A. As to Convictions for Crimes Against T.E., the Five-Year Time Bar Should Be Relaxed Because Defendant's Sentences Are "Illegal Sentences" and May Be Corrected at Any Time.
B. As to Convictions for All Crimes, "Excusable Neglect" Exists to Explain Why Defendant Failed to File for PCR Within The Five-Year Time Period.
III. DEFENDANT'S CONVICTIONS AND SENTENCES FOR CRIMES AGAINST T.E. MUST BE REVERSED AND VACATED BECAUSE HE WAS INDICTED WELL BEYOND THE APPLICABLE STATUTE OF LIMITATIONS.
IV. DEFENDANT'S CONVICTIONS [AND] SENTENCES FOR CRIMES AGAINST L.W. MUST BE REVERSED, VACATED AND REMANDED FOR A NEW TRIAL BECAUSE THE STATE WRONGFULLY WITHHELD EXCULPATORY EVIDENCE.
A. The State Violated Its Duty To Disclose The Ramirez Report Pursuant To New Jersey Court Rule 3:13-3.
B. The State's Failure To Disclose The Ramirez Report Amounts To Wrongful Withholding of Exculpatory Evidence, Contrary To The Constitutional Principles of ...