                                NOT FOR PUBLICATION WITHOUT THE
                               APPROVAL OF THE APPELLATE DIVISION
        This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the
     internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.




                                                         SUPERIOR COURT OF NEW JERSEY
                                                         APPELLATE DIVISION
                                                         DOCKET NO. A-5549-17T4

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

XZAVIER D. HAYES, a/k/a
DWAYNE HAYES,

     Defendant-Appellant.
________________________

                    Submitted October 24, 2019 – Decided December 5, 2019

                    Before Judges Alvarez and DeAlmeida.

                    On appeal from the Superior Court of New Jersey, Law
                    Division, Hudson County, Indictment No. 15-03-0309.

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

                    Esther Suarez, Hudson County Prosecutor, attorney for
                    respondent (Erin M. Campbell, Assistant Prosecutor,
                    on the brief).

PER CURIAM
      Defendant Xzavier D. Hayes appeals from the June 15, 2018 order of the

Law Division denying his petition for post-conviction relief (PCR) without an

evidentiary hearing. We reverse and remand.

                                       I.

      On March 5, 2013, defendant entered a guilty plea to an accusation

alleging one count of third-degree possession of a controlled dangerous

substance (CDS) with intent to distribute within 1,000 feet of school property,

N.J.S.A. 2C:35-7(a). In exchange for defendant's plea, the State agreed to

recommend a five-year sentence with a three-year period of parole ineligibility.

Defendant failed to appear for sentencing. A notation in court records from the

scheduled sentencing date indicates counsel believed defendant was in federal

custody. The court issued a warrant for his arrest.

      On December 6, 2013, the prosecutor's office received notice defendant

was incarcerated at a federal correctional facility in Pennsylvania, serving a

sentence for a parole violation resulting from his arrest on the CDS charge. The

notice informed the State defendant had filed a written request pursuant to the

Interstate Agreement on Detainers (IAD), N.J.S.A. 2A:159A-1 to -15, for final

disposition of the charge to which he had pleaded guilty.         According to

defendant, the State's receipt of his request triggered a provision of the IAD


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                                       2
requiring the unresolved charge be tried within 180 days or dismissed. N.J.S.A.

2A:159A-3(a).

      One hundred and eighty days from December 6, 2013 was June 4, 2014.

The June 4, 2014 deadline passed without objection by defendant's counsel or

the State.

      On January 30, 2015, the trial court granted defendant's motion to vacate

his guilty plea with the State's consent. It is not clear if defendant moved to

vacate his plea before or after expiration of the June 4, 2014 statutory deadline.

      On February 24, 2015, a grand jury indicted defendant, charging him with:

third-degree possession of a CDS, N.J.S.A. 2C:35-10(a)(1); third-degree

possession of a CDS with intent to distribute, N.J.S.A. 2C:35-5(a)(1); N.J.S.A.

2C:35-5(b)(3); third-degree possession a CDS with intent to distribute within

1,000 feet of school property; N.J.S.A. 2C:35-7; and second-degree possession

of a CDS within 500 feet of public property, N.J.S.A. 2C:35-7.1. The charges

arose from the same facts supporting the accusation to which defendant

previously pleaded guilty.

      On May 18, 2015, the trial court held a hearing on the State's request for

a 120-day continuance of the time in which to try defendant under the IAD.

Defendant's counsel initially objected to the State's request, arguing the statutory


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                                         3
period to commence trial had lapsed.1 After the trial court found the delay in

bringing defendant to trial was the result of defendant's motion to withdraw his

guilty plea, defendant's counsel consented to the continuance.

      The parties agree that 120 days from May 18, 2015, was September 15,

2015. The September 15, 2015 deadline passed without objection by defendant's

counsel or the State.

      Defendant's trial began on January 12, 2016. A jury found defendant

guilty of all counts. The court sentenced defendant to an aggregate ten-year

term of incarceration, with a five-year period of parole ineligibility.

      On July 25, 2017, we affirmed defendant's convictions and sentence. State

v. Hayes, No. A-3824-15 (App. Div. July 25, 2017). Defendant did not file a

petition for certification.


1
  Defendant's counsel argued the period in which to commence defendant's trial
began in February 2014, when defendant arrived at the Hudson County jail from
federal custody. The IAD "establishes two procedures for the transfer of a
prisoner in one jurisdiction to the temporary custody of another jurisdiction" for
disposition of pending charges. Johnson v. Cuyler, 535 F. Supp. 466, 473 (E.D.
Pa. 1982). One procedure begins on the request of the prisoner and the other on
the request of the jurisdiction seeking temporary custody. Ibid. In the first
instance, trial must begin within 180 days of delivery of the prisoner's written
request for a final disposition of pending charges to the prosecuting authority.
N.J.S.A. 2A:159A-3(a). In the latter instance, trial must commence within 120
days of the prisoner's arrival in the custody of the prosecuting j urisdiction.
N.J.S.A. 2A:159A-4(c). Here, a 180-day period was triggered by delivery of
defendant's written request to the prosecutor's office on December 6, 2013.
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                                        4
      Defendant subsequently filed a petition for PCR. He argued, among other

things, he was denied the effective assistance of counsel because his trial

counsel: (1) failed to seek dismissal of the charges against him under the IAD

after expiration of the initial 180-day period; (2) agreed to the State's request for

a 120-day continuance without consulting defendant; and (3) failed to seek

dismissal of the charges against him under the IAD after expiration of the 120-

day continuance.

      On June 14, 2018, the trial court issued an oral opinion on defendant's

petition. The court found both the initial 180-day period and the 120-day

continuance expired before the start of defendant's trial.         However, when

determining whether defendant had made a prima facie showing of ineffective

assistance of counsel, the court focused only on the period between May 18,

2015, when the court granted the 120-day continuance, and January 12, 2016,

the day defendant's trial started. The court found during that period defendant

filed a motion for a bail hearing, which delayed the start of his trial, and that the

court had "without an order, presumably, allowed for [a] continuance so that

defendant could appeal his drug court rejection."         The court did not make

specific findings with respect to when defendant made various applications to

the court or the length of the delay attributable to those applications. The court


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                                         5
reasoned, however, because the delays benefitted defendant, he did not make a

prima facie showing his counsel was ineffective for not moving to dismiss the

indictment under the IAD. Thus, the court concluded, an evidentiary hearing

was not warranted. The court did not address defendant's argument his counsel

was ineffective for not moving to dismiss after expiration of the 180-day period

or for consenting to the 120-day continuance.

      This appeal followed. Defendant makes the following argument for our

consideration:

            THE PCR COURT ERRED IN FAILING TO HOLD
            AN EVIDENTIARY HEARING ON MR. HAYES'S
            CLAIM THAT TRIAL COUNSEL PROVIDED HIM
            WITH INEFFECTIVE ASSISTANCE OF COUNSEL
            BY FAILING TO MOVE TO DISMISS THE
            INDICTMENT PURSUANT TO THE INTERSTATE
            AGREEMENT ON DETAINERS. 2

                                       II.

      "Post-conviction relief is New Jersey's analogue to the federal writ of

habeas corpus." State v. Preciose, 129 N.J. 451, 459 (1992). Under Rule 3:22-


2
  Defendant raised several other issues in his PCR petition that are not addressed
in his brief. We deem those issues waived. See Pressler & Verniero, Current
N.J. Court Rules, cmt. 5 on R. 2:6-2 (2019) ("[A]n issue not briefed is deemed
waived."); Telebright Corp. v. Dir., N.J. Div. of Taxation, 424 N.J. Super. 384,
393 (App. Div. 2012) (deeming a contention waived when the party failed to
include any arguments supporting the contention in its brief).


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                                        6
2(a), a defendant is entitled to post-conviction relief if there was a "[s]ubstantial

denial in the conviction proceedings of defendant's rights under the Constitution

of the United States or the Constitution or laws of the State . . . ." "A petitioner

must establish the right to such relief by a preponderance of the credible

evidence." Preciose, 129 N.J. at 459. "To sustain that burden, specific facts"

that "provide the court with an adequate basis on which to rest its decision" must

be articulated. State v. Mitchell, 126 N.J. 565, 579 (1992).

      A hearing on a PCR petition is required only when: (1) a defendant

establishes a prima facie case in support of PCR; (2) the court determines there

are disputed issues of material fact that cannot be resolved by review of the

existing record; and (3) the court determines an evidentiary hearing is required

to resolve the claims asserted. State v. Porter, 216 N.J. 343, 354 (2013) (citing

R. 3:22-10(b)).     "A prima facie case is established when a defendant

demonstrates 'a reasonable likelihood that his or her claim, viewing the facts

alleged in the light most favorable to the defendant, will ultimately succeed on

the merits.'" Id. at 355 (quoting R. 3:22-10(b)).

      We review the legal conclusions of a PCR court de novo. State v. Harris,

181 N.J. 391, 419 (2004). Where an evidentiary hearing has not been held, it is

within our authority "to conduct a de novo review of both the factual findings


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                                         7
and legal conclusions of the PCR court . . . ." Id. at 421. We review a judge's

decision to deny a PCR petition without an evidentiary hearing for abuse of

discretion. Preciose, 129 N.J. at 462.

      The Sixth Amendment to the United States Constitution and Article I,

Paragraph 10 of the New Jersey Constitution guarantee criminal defendants the

right to effective assistance of counsel. State v. O'Neil, 219 N.J. 598, 610 (2014)

(citing Strickland v. Washington, 466 U.S. 668, 686 (1984); State v. Fritz, 105

N.J. 42, 58 (1987)). To succeed on a claim of ineffective assistance of counsel,

the defendant must meet the two-part test established by Strickland and adopted

by our Supreme Court in Fritz. 466 U.S. at 687; 105 N.J. at 58.

      Under Strickland, a defendant first must show his or her attorney made

errors "so serious that counsel was not functioning as the 'counsel' guaranteed

the defendant by the Sixth Amendment."            466 U.S. at 687.       Counsel's

performance is deficient if it "[falls] below an objective standard of

reasonableness." Id. at 688.

      A defendant also must show counsel's "deficient performance prejudiced

the defense." Id. at 687. A defendant must establish "there is a reasonable

probability that, but for counsel's unprofessional errors, the result of the

proceeding would have been different." Id. at 694. "A reasonable probability


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                                         8
is a probability sufficient to undermine confidence in the outcome" of the trial.

Ibid.

        After carefully reviewing the record in light of the applicable legal

principles, we conclude the trial court abused its discretion by denying

defendant's PCR petition without holding an evidentiary hearing. Our review

revealed two unresolved factual issues pertinent to whether, and to what extent,

the IAD applies in this matter: (1) whether the State issued a detainer against

defendant; and (2) whether defendant completed his federal custodial sentence

before the start of his State trial.

        In addition, if the IAD does apply, defendant made a prima facie showing

his counsel was ineffective: (1) by failing to seek dismissal of the indictment on

expiration of the initial 180-day period; (2) by consenting to the 120-day

continuance without consulting defendant; and (3) by failing to seek dismissal

of the indictment on expiration of the 120-day continuance.

        We address these issues in turn. The IAD expressly provides its terms

apply when a prisoner requests resolution of "any untried indictment,

information or complaint on the basis of which a detainer has been lodged

against the prisoner . . . ." N.J.S.A. 2A:159A-3(a). We have held the filing of

a detainer is a mandatory perquisite for triggering the IAD's statutory


                                                                          A-5549-17T4
                                        9
timeframes. State v. Baker, 400 N.J. Super. 28, 40 (App. Div. 2008); State v.

Burnett, 351 N.J. Super. 222, 226 (App. Div. 2002). There is no evidence in the

record the State issued a detainer for the unresolved charges against defendant.

A court record indicates a bench warrant was issued after defendant failed to

appear for sentencing. A bench warrant, however, is not "a request filed by a

criminal justice agency with the institution in which a prisoner is incarcerated,

asking the institution either to hold the prisoner for the agency or to notify the

agency when release of the prisoner is imminent[,]" necessary to trigger the

IAD. Burnett, 351 N.J. Super at 226 (quoting Carchman v. Nash, 473 U.S. 716,

719 (1985)). If, on remand, the court finds the State did not issue a detainer

against defendant, the State was not subject to the timeframes established in the

IAD and defendant's claims of ineffective assistance of counsel would be

obviated.

      In addition, at the May 18, 2015 hearing, counsel suggested defendant was

to complete the custodial aspect of his federal sentence on June 28, 2015. It is

necessary on remand for the trial court to determine if defendant completed the

custodial aspect of his federal sentence prior to the start of his State trial because

the protections of the IAD "are for the benefit of persons serving a 'term of

imprisonment' and no longer apply after the term of imprisonment" once the


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                                         10
sending jurisdiction's sentence ends. State v. Rodriguez, 239 N.J. Super. 455,

458 (App. Div. 1990). Thus, if the court finds defendant completed the custodial

aspect of his federal sentence while in State custody, any claims of ineffective

assistance relating to the period after completion of defendant's federal custodial

sentence would be obviated.

      If the trial court determines the IAD is applicable to any period at issue

here, an evidentiary hearing is necessary to determine the extent to which the

start of defendant's trial was delayed as a result of applications defendant made

to the court for his benefit and whether his counsel was ineffective for: (1) not

moving to dismiss the charges against defendant (a) after expiration of the initial

180-day period and before the State's application for a 120-day continuance; or

(b) after expiration of the 120-day continuance and before the start of

defendant's trial; or (2) consenting to entry of the 120-day continuance without

consulting defendant.    The trial court analysis, of course, will necessarily

include a determination of whether any application by defendant's counsel to

dismiss the indictment would have been successful.

      We note although the trial court assumed after expiration of the 120 -day

continuance a further continuance was granted without issuance of an order, the

IAD provides that the trial court may grant "any necessary or reasonable


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                                       11
continuance . . . for good cause shown in open court [with] the prisoner or his

counsel being present . . . ." N.J.S.A. 2A:159A-3(a). The trial court must

examine whether, in light of this explicit provision of the IAD, defendant's

counsel was ineffective for not moving to dismiss the indictment, given the

absence of a court order issued after a hearing at any point after expiration of

the 120-day continuance.

      Reversed and remanded for an evidentiary hearing consistent with this

opinion. We do not retain jurisdiction.




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                                      12
