                         NOT FOR PUBLICATION WITHOUT THE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-1249-16T3

STATE OF NEW JERSEY,

        Plaintiff-Appellant,

v.

DONNELL GIDEON,

     Defendant-Respondent.
________________________________

              Argued April 26, 2017 – Decided June 6, 2017

              Before Judges Alvarez and Manahan.

              On appeal from Superior Court of New Jersey,
              Law Division, Camden County, Indictment No.
              05-10-4097.

              Patrick D. Isbill, Assistant Prosecutor,
              argued the cause for appellant (Mary Eva
              Colalillo,    Camden   County    Prosecutor,
              attorney; Mr. Isbill, of counsel and on the
              brief).

              Alan Dexter        Bowman    argued   the   cause    for
              respondent.

PER CURIAM

        Appellant State of New Jersey appeals from an October 11,

2016 order granting post-conviction relief (PCR) to defendant

Donnell      Gideon.      Upon    review     of   the   decision   in    light     of
controlling decisions of law, we are constrained to remand for

further proceedings.

     The factual background and procedural history relating to

defendant's arrest and charges are fully set forth in this court's

opinion remanding the matter for an evidentiary hearing.             State

v. Gideon, No. A-0293-13 (App. Div. February 10, 2016).

     On September 1, 2004, defendant gave a statement to an

investigator at the Camden County Police Department regarding a

July 27, 2004 shooting.    In his statement, defendant explained his

"workers" sold marijuana, supplied by E.J.,1 in Camden's Yorkship

Square area. Defendant learned T.A. had been robbing his "workers"

at gunpoint.   As a result of these robberies, defendant sought out

T.A. on July 27, 2004, and engaged him in a fist fight.         After the

fight was broken up, defendant returned home.

     Immediately after returning home, defendant called E.J. to

explain what transpired.    Soon after, E.J. arrived at defendant's

home and told him to "suit up" and "get your black on," meaning

change into black clothing.      Defendant "suited up" knowing they

were going to "handle the situation from earlier."        Defendant then

got into a car with E.J. and another individual and drove looking

for T.A.   The three individuals thought they saw T.A. standing on


1
  We utilized initials      in   our   prior   opinion   for   purpose    of
confidentiality.

                                   2                               A-1249-16T3
a corner near the Yorkship Square area.        They parked the car and

exited, E.J armed with an AK-47 rifle and the other individual

armed with a Mossberg shotgun.      The three individuals then walked

down an alleyway where defendant asked E.J. "what's up?"              E.J.

responded, "just look up."        At that moment, E.J. and the other

individual opened fire on a group of people standing on the corner.

Defendant later learned three people were injured and one person

was killed in the shooting.

     At trial, defendant asserted the investigator coached him on

what to say during his statement.        Defendant then proceeded to

testify to a different version of what he was doing the night of

the shooting.   Defendant admitted to fighting T.A. earlier in the

day, but while defendant was walking home from the fight, he ran

into his mother.   Defendant's mother drove defendant to find T.A.

in order for the two to shake hands and "peace up."             Defendant

then got back into the car with his mother who dropped him off at

home before she went to work.      After being dropped off, defendant

contended he never left his home the rest of the night.         On cross-

examination, defendant stated his girlfriend was with him in the

home the night of the shooting.

      After   trial,   a   jury   convicted   defendant   of   aggravated

manslaughter, attempted murder, aggravated assault, conspiracy to

commit murder, possession of a weapon for an unlawful purpose, and

                                    3                             A-1249-16T3
hindering apprehension or prosecution.                Defendant was sentenced

to a twenty-seven-year prison term subject to the eighty-five

percent    parole    ineligibility     provision       under     N.J.S.A.     2C:43-

7.2(a).

       Defendant filed a direct appeal.             We affirmed the conviction

and the sentence.         State v. Donnell Gideon, No. A-2132-07 (App.

Div.     October    18,   2010).      Defendant        filed    a   petition      for

certification, which was denied.                State v. Gideon, 205 N.J. 273

(2011).

       On April 27, 2012, defendant filed a pro se petition for PCR.

Argument took place before the same judge who presided over the

trial.     In a written opinion, the judge denied defendant's PCR

without an evidentiary hearing.

       Defendant appealed.     This court reversed in holding defendant

asserted sufficient facts to present a prima facie claim of

ineffective assistance of counsel, based on defendant's assertion

that his trial counsel never investigated his alibi witnesses.

Gideon, supra, A-0293-13.

       On September 13, 2016, pursuant to our remand order, the same

PCR judge presided over an evidentiary hearing.                  At the hearing,

defendant's alibi witnesses, his mother Bianca Gideon-Nichols, and

his    girlfriend,    Sahleeha      Bey,       testified.      Defendant's     trial

counsel also testified.            Both Gideon-Nichols and Bey testified

                                           4                                 A-1249-16T3
that defendant was in their presence during the night of the

original crime, and later was with a man named "[T.A.]"                    Both

witnesses also testified that they volunteered to be an alibi

witness during the trial, and that defendant's counsel agreed.

       During    the    hearing,   defendant's    trial    counsel   (counsel)

testified his common practice was to speak with a potential alibi

witness once introduced.           While counsel could not recall being

approached by Gideon-Nichols or Bey, he concluded that neither

offered to be alibi witnesses because he never investigated their

claims as to defendant's whereabouts.

       On October 11, 2016, the judge issued an order granting

defendant's PCR petition and vacating the judgment of conviction

despite finding that Gideon-Nichols' and Bey's testimony was not

credible.     The judge noted numerous inconsistencies between their

testimony with evidence presented during the trial, and found

their testimony would not be consistent with defendant's statement

to police and his trial testimony.               The judge concluded that

because Gideon-Nichols and Bey were not credible, he could not

find   that     they    approached   defendant's   counsel     and   presented

themselves as an alibi witness prior to trial.

       On the other hand, the judge found counsel was credible.

Nonetheless,      the    judge   held   that   counsel    rendered   effective

assistance of counsel based upon defendant's trial testimony, in

                                        5                              A-1249-16T3
counsel's presence, where he stated Bey was an alibi witness.                    At

the evidentiary hearing, counsel acknowledged that, after the

testimony, he and defendant did not discuss the prospect of Bey

serving as an alibi witness.

       The judge held, "after [defendant] revealed a potential

alibi witness in his trial testimony, [defendant's counsel] had a

continuing duty to his client to investigate this potential alibi

witness.    He did not do so."       Since counsel did not investigate

the   potential   alibi   witness    and    the   jury   did    not     have   the

opportunity to hear and determine the credibility of Gideon-

Nichols and Bey, the judge concluded that defendant received

ineffective    assistance    of     counsel.      Without      making    further

findings,   the judge held the PCR should be granted.              This appeal

followed.

      The State raises the following point on appeal:

                                  POINT I

            THE PCR COURT ERRED IN GRANTING DEFENDANT'S
            PETITION FOR POST-CONVICTION RELIEF AS ITS
            RULING NEITHER ADDRESSES NOR SATISFIES THE
            PREJUDICE    PRONG   REQUIRED  PURSUANT   TO
            STRICKLAND[2] IN ORDER TO AFFIRMATIVELY FIND
            INEFFECTIVE ASSISTANCE OF COUNSEL. [RAISED
            BELOW.]




2
  Strickland v. Washington, 466 U.S. 668, 687, 694, 104 S. Ct.
2052, 2064, 2068, 80 L. Ed. 2d 674, 693, 698 (1984).

                                      6                                   A-1249-16T3
      "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(a), a criminal 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 of New Jersey[.]"           "A petitioner must establish the

right to such relief by a preponderance of the credible evidence."

Preciose, supra, 129 N.J. at 459 (citations omitted).                 "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).

      Claims of constitutionally ineffective assistance of counsel

are well suited for post-conviction review.              See R. 3:22-4(a)(2);

Preciose, supra, 129 N.J. at 460.                 In determining whether a

defendant is entitled to relief on the basis of ineffective

assistance of counsel, New Jersey courts apply the two-prong test

articulated by the United States Supreme Court in Strickland,

supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693,

and United States v. Cronic, 466 U.S. 648, 658-60, 104 S. Ct.

2039, 2046-47, 80 L. Ed. 2d 657, 667-68 (1984).               Preciose, supra,

129 N.J. at 463; State v. Fritz, 105 N.J. 42, 49-50 (1987).



                                        7                                 A-1249-16T3
     Under the first prong of the Strickland test, a "defendant

must show that [defense] counsel's performance was deficient."

Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed.

2d at 693.   Under the second prong, a defendant must demonstrate

"a reasonable probability that, but for counsel's unprofessional

errors, the result of the proceeding would have been different."

Id. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698.

     Our review of an order granting or denying PCR contains

consideration of mixed questions of law and fact. State v. Harris,

181 N.J. 391, 415-16 (2004), cert. denied, 545 U.S. 1145, 125 S.

Ct. 2973, 162 L. Ed. 2d 898 (2005).     We defer to a PCR court's

factual findings and will uphold those findings that are "supported

by sufficient credible evidence in the record."     State v. Nash,

212 N.J. 518, 540 (2013).   However, a PCR court's interpretations

of law are provided no deference and are reviewed de novo.       Id.

at 540-41.

     On appeal, the State concedes that defendant's counsel was

deficient in failing to investigate the potential alibi witness

but argues that the judge failed to analyze the second prong under

the Strickland standard, namely whether defendant demonstrated "a

reasonable probability that, but for counsel's unprofessional

errors, the result of the proceeding would have been different."



                                 8                          A-1249-16T3
Strickland, supra, 466 U.S. at 694, 104 S. Ct. at 2068, 80 L. Ed.

2d at 698.   We agree.

    Unlike the judge's cogent analysis regarding the first prong

of Strickland, we conclude that the requisite analysis relating

to the second prong of Strickland was not similarly employed.     As

such, we are impelled to remand the matter for further findings

by the judge consonant with our decision.      In reaching this

decision, we express no view as to the remand's outcome.

    Reversed and remanded.   We do not retain jurisdiction.




                                9                          A-1249-16T3
