In this appeal, defendant filed his first post-conviction relief (PCR) petition more than five years after the trial court signed the Judgment of Conviction. Despite this, neither the PCR court nor the State challenged the timeliness of the petition under Rule3:22-12(a)(1)(A). At the conclusion of oral argument in this appeal, this court entered a sua sponte order directing the parties to submit supplemental briefs addressing: (1) whether the procedural bar in the Rule is subject to waiver if the State fails to raise it before the PCR court; and (2) if the Rule’s preclusive injunction is not subject to waiver, what should be the remedy on appeal.
Based on the policy concerns expressed by the Supreme Court in State v. Mitchell, 126 N.J. 565, 575-76 (1992), this court holds that a PCR judge has an independent, non-delegable duty to question the timeliness of a petition and to require a petitioner to submit competent evidence to satisfy the standards for relaxing the time restrictions codified by the Court under Rule 3:22-12. Absent sufficient competent evidence to satisfy the standards for relaxing these time restrictions, the PCR judge does not have the authority to review the merits of the claims asserted therein.
