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NOT FOR PUBLICATION WITHOUT THE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-0

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

JOEL E. DURMER,

Defendant-Appellant.

__________________________________

July 1, 2015

Submitted December 10, 2014 Decided

Before Judges Fuentes and O'Connor.

On appeal from Superior Court of New Jersey, Law Division, Ocean County, Indictment No. 95-09-0870.

Joseph E. Krakora, Public Defender, attorney for appellant (William Welaj, Designated Counsel, on the brief).

Joseph D. Coronate, Ocean County Prosecutor, attorney for respondent (William Kyle Meighan, Assistant Prosecutor, on the brief).

Appellant filed a pro se supplemental brief.

PER CURIAM

In this action for post-conviction relief (PCR), defendant Joel E. Durmer appeals the PCR court's finding that he failed to show excusable neglect for failing to timely file his second petition for PCR. We affirm.

I

On December 16, 1997, defendant Joel E. Durmer was convicted by a jury of three counts of first degree aggravated sexual assault, N.J.S.A. 2C:14-2(a); one count of second degree sexual assault, N.J.S.A. 2C:14-2(b); and one count of second degree child endangerment, N.J.S.A. 2C:24-4(a). On March 27, 1998, the sentencing court merged the second degree sexual assault conviction and imposed concurrent terms of twenty years, with ten years of parole ineligibility, for the first degree convictions, and a consecutive ten-year term with five years of parole ineligibility for the child endangerment conviction.

The victim was C.B., defendant's nephew, born in 1982. At trial C.B. testified that defendant sexually assaulted him "hundreds" of times. The assaults were oral and digital and included anal intercourse. A pediatrician who examined C.B. testified there were abnormalities in his anorectal area consistent with multiple anal penetrations.

Defendant filed a direct appeal and we affirmed his convictions and sentence in an unpublished opinion. State v. Durmer, No. A-5628-97 (App. Div. April 5, 2000) (slip. op.). The Supreme Court denied his petition for certification. State v. Durmer, 167 N.J. 633 (2001). Defendant's petition for a writ of certiorari in the Supreme Court of the United States was denied. Durmer v. N.J., 534 U.S. 858, 122 S. Ct. 136, 151 L. Ed. 2d 89 (2001).

On September 19, 2002, the trial court entered an order denying defendant's first petition for post-conviction relief. We affirmed that denial in an unreported opinion, State v. Durmer, No. A-1535-02 (Feb. 26, 2004) (slip. op.), and the Supreme Court denied defendant's petition for certification, State v. Durmer, 180 N.J. 355 (2004).

On October 13, 2006, the United States District Court denied a federal habeas corpus petition defendant filed under 28 U.S.C.A. 2254. Durmer v. Rodgers, No. 05-62 (D.N.J. Oct. 13, 2006) (slip. op. at 1). 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) (slip. op.). On November 13, 2007, the Supreme Court of the United States denied defendant's petition for a writ of certiorari. Durmer v. Rogers, 552 U.S. 1026, 128 S. Ct. 622, 169 L. Ed. 2d 400 (2007).

On October 31, 2008, defendant filed his second petition for post-conviction relief. In that petition he claimed that, in late 2007, he received discovery from the Office of the Public Defender that he had been trying to get since 1999, and learned for the first time that one document was withheld from him that showed

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 . . . .

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

. . . .

By withholding 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 purported June 14, 1995 letter from the victim to his brother, which was type-written and unsigned, reads as follows

Dear Mike

Hi. [H]ow 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[1] 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 [sic] or just me? Send me a letter back okay? And yes I love you just nobody else.

love, [C.B.]2

On November 3, 2008, the PCR court summarily denied the petition on the ground that it was time-barred under Rule 3:22-12. The court found defendant filed the petition more than five years after entry of the judgment of conviction and that defendant had "allege[d] no facts showing that the delay was due to [his] excusable neglect[.]" At the time defendant filed and the PCR court denied his second petition, Rule 3:22-12(a) stated

(a) General Time Limitations. A petition to correct an illegal sentence may be filed at any time. No other petition shall be filed pursuant to this rule more than 5 years after rendition of the judgment or sentence sought to be attacked unless it alleges facts showing that the delay beyond said time was due to defendant's excusable neglect.

In an unreported opinion we reversed the denial of defendant's second petition for post-conviction relief. We remanded the matter to the PCR court to reconsider the petition as a motion for a new trial on the ground of newly discovered evidence.3 State v. Durmer, No. A-2803-08 (January 4, 2010) (slip op. at 5-6). However, we recognized that because the letter was typed and unsigned there was a question about its authenticity. Therefore, we required that in order for defendant to obtain relief, he also had to prove the letter was authentic. Ibid.

We further instructed the PCR court that if defendant were unable to show he was entitled to a new trial, then the trial court was to reconsider its decision that defendant failed to show excusable neglect if defendant proved that: (1) he first became aware of the letter in 2007; and (2) his trial counsel possessed but failed to use the letter at the time of trial. Id. at 6-7. But regardless whether he sought a new trial or the right to file a second PCR petition out of time on the grounds of excusable neglect, defendant was required to prove the letter was authentic as a condition of obtaining either form of relief.

On remand, the PCR court found that defendant had failed to show he was entitled to a new trial or that his failure to file the second PCR petition was due to excusable neglect. The PCR court also found defendant failed to prove that the letter was authentic.

II

The specific issues defendant presents for our consideration in his appeal are as follows

POINT I SINCE THE POST CONVICTION RELIEF COURT IGNORED OBVIOUS AND RELEVANT CIRCUMSTANCES DEMONSTRATING THAT EXCUSABLE NEGLECT CLEARLY EXISTED PURSUANT TO RULE 3:22-12(a), IT ERRED BY DENYING THE DEFENDANT'S PETITION FOR POST CONVICTION RELIEF FOLLOWING THE REMAND FROM THE APPELLATE DIVISION DIRECTING THE POST CONVICTION RELIEF COURT TO EXPRESSLY RECONSIDER ITS ORIGINAL RULING TO THE CONTRARY.

A. Factual Background.

B. Because The Trial Court Ignored Readily Apparent Information Demonstrating That Excusable Neglect Clearly Existed Pursuant To Rule 3:22-12(a), Since Trial Counsel Possessed The Letter In Question But Did Not Utilize It At Trial, While The Defendant Did Not Become Aware Of The Existence Of The Letter Until 2007, The Trial Court Erred In Denying The Defendant's Petition For Post Conviction Relief On That Basis.

Defendant filed two supplemental pro se briefs. In one brief he presents the following arguments

POINT I THE JUNE 14, 1995 LETTER FROM CB TO MB JR. WHICH WAS THE SUBJECT OF A-2803-08T4 IS AUTHENTICATED BY THE OCEAN COUNTY PROSECUTOR, SHOWN AS AN EXHIBIT ON THEIR PROS168B AND INDEX TO DISCOVERY, SEEN AS EXHIBITS IN APPELLANT APPENDIX TO THIS BRIEF. FURTHER, JOHN J. FOTI JR., SENIOR ASSISTANT PROSECUTOR, LIED TO AND MISLED THE RESPECTIVE COURTS REGARDING THE STATUS OF THE JUNE 14, 1995 LETTER AND OTHER MATERIALS IN HIS POSSESSION.

POINT II THE STATE, IN THE PERSON OF JOHN J. FOTI JR., SENIOR ASSISTANT PROSECUTOR FOR OCEAN COUNTY, HAS CONSISTENTLY COMMITTED DISCOVERY MISCONDUCT AND FAILED TO PROVIDE THE NECESSARY DISCOVERY THAT THE RULES OF COURT DICTATE ARE NECESSARY. APPELLANT HAS MADE NO LESS THAN NINE [9] DEMANDS FOR DISCOVERY FROM THE OCEAN COUNTY PROSECUTOR'S OFFICE SINCE JANUARY, 1998. THIS HAS THWARTED APPELLANT'S ATTEMPTS TO PROVE HIS INNOCENCE.

POINT III THE OCEAN COUNTY PROSECUTOR IN CHARGE OF APPELLANT'S CASE HAS CONSISTENTLY LIED TO THE TRIAL COURT, THE APPELLATE DIVISION AND HAS WITHHELD EXCULPATORY EVIDENCE THAT WOULD HAVE HAD A PROFOUND EFFECT ON THE OUTCOME OF THE TRIAL.

POINT IV THE OCEAN COUNTY PROSECUTOR HAS WITHHELD EVIDENCE OF A CRIME AGAINST A CHILD FOR ALMOST EIGHTEEN [18] YEARS, AND FAILED TO PROSECUTE A SEX CRIME AGAINST A CHILD UNDER THE AGE OF FIVE [5] YEARS OF AGE, IN AN ATTEMPT TO COVER UP OFFICIAL MISCONDUCT BY EMPLOYEES OF THE OFFICE OF THE PROSECUTOR FOR OCEAN COUNTY.

POINT V FAILURE OF COUNSEL ASSIGNED ON REMAND, ODED WEINSTOCK, TO PROPERLY PURSUE AND PRESENT APPELLANT'S ARGUMENTS AS OUTLINED IN VARIOUS LETTERS AND OTHER COMMUNICATIONS AS GIVEN TO THE TRIAL COURT, AND FAILURE TO SUBPOENA DOCUMENTS THAT WOULD PROVE THE CASE APPELLANT HAS BEEN TRYING TO PRESENT TO THE COURT, AND TO PROPERLY PROSECUTE APPELLANT'S CASE BEFORE THE TRIAL COURT, WHICH RESULTED IN A SERIOUSLY AND DEEPLY FLAWED DECISION BY THE TRIAL COURT.

POINT VI ORIGINAL TRIAL COUNSEL KEVIN E. YOUNG, A.D.P.S., FAILED TO USE THE JUNE 14, 1995 LETTER AT TRIAL, WHICH CONSTITUTES A BLATANT CASE OF INEFFECTIVE ASSISTANCE OF COUNSEL, AS WELL AS LEGAL MALPRACTICE, VIOLATING CASE PRECEDENT SET BY THE UNITED STATES SUPREME COURT, AND EMBODIED IN BOTH THE FEDERAL CONSTITUTION AND THE CONSTITUTION OF THE STATE OF NEW JERSEY.

The standard for determining whether counsel's performance was ineffective for purposes of the Sixth Amendment was formulated in Strickland v. Washington, 466 U.S. 668, l 04 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), and adopted by our Supreme Court in State v. Fritz, l 05 N.J. 42 (l987). In order to prevail on a claim of ineffective assistance of counsel, defendant must meet the two-prong test of establishing both that: (l) counsel's performance was deficient and he or she made errors that were so egregious that counsel was not functioning effectively as guaranteed by the Sixth Amendment to the United States Constitution; and (2) the defect in performance prejudiced defendant's rights to a fair trial such that there exists a "reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland, supra, 466 U.S. at 687, 694, l04 S. Ct. at 2064, 2068, 80 L. Ed. 2d at 693, 698.

Here, because defendant failed to prove the letter was authentic, he cannot show that trial counsel's failure to use the letter at trial prejudiced his rights to a fair trial such that there exists a reasonable probability that, but for such alleged error, the result of the proceeding would have been different. If the letter was not authentic, defendant's trial attorney would have been precluded from utilizing the letter at trial.

Defendant's remaining arguments are either not properly before us or they lack sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2).

Affirmed.

1 "Uncle Joel" is defendant. He was arrested for the charges with which he was ultimately convicted on June 15, 1995.

2 In the letter, only the victim's first name appears following the word "love."

3 A motion for new trial based on the ground of newly discovered evidence may be made at any time. R. 3:20-2.