STATE OF NEW JERSEY v. JOEL E. DURMER

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2803-08T42803-08T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

JOEL E. DURMER,

Defendant-Appellant.

______________________________________________________

 

Submitted December 8, 2009 - Decided

Before Judges Skillman and Fuentes.

On appeal from Superior Court of New Jersey, Law Division, Ocean County, Indictment

No. 95-09-00870.

Joel E. Durmer, appellant pro se.

Marlene Lynch Ford, Ocean County Prosecutor, attorney for respondent (Samuel Marzarella, Supervising Assistant Prosecutor, of counsel; William Kyle Meighan, Assistant Prosecutor, on the brief).

PER CURIAM

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. 2 006 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 material was not available to petitioner until petitioner received the AFOREMENTIONED discovery from the Office of the Public Defender in late 2007.

. . . .

The touchstone of any direct examination/

cross examination of any witness is how the jury perceives the testimony. By withhold-ing documents, the jury was deprived of the only way it had to judge the testimony of the complaining witness. If the withheld documents has been exposed, and used for impeachment purposes, a very different outcome would have occurred. However, they were not.

The attachments to defendant's petition included the purported June 14, 2005 letter from the victim to his brother, which reads as follows:

Dear Mike:

Hi. how are you? I still haven't heard from you or April yet. Are you okay? I went to visit a doctor on Monday. Oh

sorry for the paper it's all I have. Anyway I got uncle Joel back. I told him I would get him back for talking about Mom that way, and I did! Now I have to get Dad back for all he did to us. But Mike we have to stop. The last couple of times it really hurt when you went inside like it did when Dad did it for the first time. Maybe I really am homosexual but we have to stop for now okay? Maybe later when I get older we can do it more. Do you like girls to or just me? Send me a letter back okay? And yes I love you just nobody else.

[Emphasis added.]

This letter is entirely typewritten, so it would present obvious issues of authentication. However, if authentic, it could have been used in the cross-examination of the victim. See N.J.R.E. 607.

The State's answering brief asserts in conclusionary form that "the alleged 'newly discovered' evidence has been repeatedly reviewed by multiple courts since the inception of this matter." We are unable to determine from the limited record before us whether this is true. We only note that the purported June 14, 2005 letter, which would appear worthy of specific comment, is not mentioned in the opinions denying defendant's first petition for post-conviction relief and petition for federal habeas.

Accordingly, we reverse the denial of defendant's second petition for post-conviction relief and remand the case to the trial court for reconsideration as a motion for a new trial based on newly discovered evidence. On the remand, defendant shall have the burden of proving that the letter is both newly discovered and authentic. If defendant makes these showings, the court must determine whether defendant is entitled to a new trial under the principles set forth in State v. Carter, 85 N.J. 300, 314 (1981); see also State v. Ways, 180 N.J. 171, 187 (2004). In addition, if defendant shows that his trial counsel had the purported June 14, 1995 letter but failed to use it at trial, and that defendant first became aware of the letter in 2007, the trial court should reconsider its decision that defendant failed to show the "excusable neglect" required by Rule 3:22-12(a) to extend the five-year period for the filing of a petition for post-conviction relief. The trial court also should decide whether there is a need for assignment of counsel. Jurisdiction is not retained.

 

(continued)

(continued)

2

A-2803-08T4

RECORD IMPOUNDED

January 4, 2010