                                NOT FOR PUBLICATION WITHOUT THE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-3877-18T2

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

JEAN CARL SIERRA,

     Defendant-Appellant.
_______________________

                   Submitted June 1, 2020 – Decided July 10, 2020

                   Before Judges Rothstadt and Moynihan.

                   On appeal from the Superior Court of New Jersey, Law
                   Division, Bergen County, Indictment No. 15-10-1394.

                   Joseph E. Krakora, Public Defender, attorney for
                   appellant (Michele A. Adubato, Designated Counsel,
                   on the brief).

                   Mark Musella, Bergen County Prosecutor, attorney for
                   respondent (Craig Allen Becker, Assistant Prosecutor,
                   of counsel and on the brief).

PER CURIAM
       Defendant Jean Carl Sierra appeals from the denial of his post-conviction

relief (PCR) petition without an evidentiary hearing. He argues:

             POINT I

             THE POST-CONVICTION RELIEF COURT ERRED
             IN DENYING . . . DEFENDANT'S PETITION FOR
             POST-CONVICTION       RELIEF     WITHOUT
             AFFORDING HIM AN EVIDENTIARY HEARING
             TO FULLY ADDRESS HIS CONTENTION THAT HE
             FAILED TO RECEIVE ADEQUATE LEGAL
             REPRESENTATION FROM PLEA COUNSEL.

                   A.      LEGAL PRINCIPLES.

                   B.  FAILURE OF PCR COURT TO
                   CONDUCT AN EVIDENTIARY HEARING.

Defendant did not establish a prima facie case entitling him to an evidentiary

hearing; as such, we affirm.

       Defendant was serving a sentence in Maryland when his New Jersey

counsel (plea counsel) negotiated a plea agreement that called for defendant to

plead guilty to second-degree unlawful possession of a handgun, N.J.S.A.

2C:39-5(b) and second-degree eluding, N.J.S.A. 2C:29-2(b) in exchange for the

State's recommendation for an aggregate five-year prison sentence with a

mandatory forty-two months of parole ineligibility required by the Graves Act,1


1
    N.J.S.A. 2C:43-6(c).


                                                                        A-3877-18T2
                                       2
concurrent to the Maryland sentence. Plea counsel traveled to Maryland where

defendant signed the plea forms on April 21, 2016. Defendant was transported

to New Jersey under the Interstate Agreement on Detainers (IAD), see N.J.S.A.

2A:159A-1 to -15,2 and entered a plea on May 8, 2017. Although he was

originally scheduled to be sentenced on June 23, 2017, plea counsel's absence

forced three adjournments until July 21, 2017.        The trial court sentenced

defendant in accordance with the plea agreement, awarding jail credits from July

14, 2015 to October 11, 2015, but did not award any credits thereafter because

defendant was serving the Maryland sentence and, under the IAD, was not

entitled to credits while incarcerated pending disposition of his New Jersey case.

      Defendant did not file a direct appeal. He avers his plea counsel was

ineffective for misleading him to believe he would receive jail credits from the

date he signed the plea forms on April 21, 2016 until he was sentenced. The

trial court, which presided over every proceeding in this case, denied defendant's

petition in an oral decision, concluding plea counsel had no duty to initiate IAD


2
   The IAD "creates uniform procedures for lodging and executing a detainer,
i.e., a legal order that requires a State in which an individual is currently
imprisoned to hold that individual when he has finished serving his sentence so
that he may be tried by a different State for a different crime." State v. Baker,
198 N.J. 189, 191-92 (2009) (quoting Alabama v. Bozeman, 533 U.S. 146, 148
(2001)). Maryland is also one of forty-eight states that are party to the IAD.
See id. at 192 n.1; Md. Code Ann., Md. Corr. Servs. §8-401 to 8-417.
                                                                          A-3877-18T2
                                        3
proceedings in Maryland to bring defendant to New Jersey for an earlier

disposition of the New Jersey case, thus entitling him to jail credits from the

date of sentencing. The court ruled that duty was imposed upon defendant's

Maryland counsel.

      Absent an evidentiary hearing, we review the factual inferences drawn

from the record by the trial court and its legal conclusions de novo. State v.

Blake, 444 N.J. Super. 285, 294 (App. Div. 2016). The test announced by the

United States Supreme Court for determining if counsel was ineffective, adopted

by our Supreme Court in State v. Fritz, 105 N.J. 42, 58 (1987), requires a

defendant to first show that counsel was deficient or made errors so egregious

that counsel was not functioning effectively as guaranteed by the Sixth

Amendment of the United States Constitution, Strickland v. Washington, 466

U.S. 668, 687 (1984). To meet the second prong, a defendant must also

demonstrate that there exists "a reasonable probability that, but for counsel's

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

id. at 694; and, if a defendant has pleaded guilty, she or he must establish there

was a reasonable probability that, but for counsel's error, he or she would have

rejected the plea agreement and gone to trial, State v. DiFrisco, 137 N.J. 434,

527-28 (1994) (Handler, J., dissenting).


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                                        4
      We need not address whether defendant's Maryland counsel or plea

counsel was responsible for seeking defendant's transfer to New Jersey under

the IAD.    "[A]ppeals are taken from orders and judgments and not from

opinions, oral decisions, . . . or reasons given for the ultimate conclusion." Do-

Wop Corp. v. City of Rahway, 168 N.J. 191, 199 (2001); R. 2:2-3(a); see also

Heffner v. Jacobson, 100 N.J. 550, 553 (1985). Defendant's contention here is

that his counsel misadvised him that he would receive credits from the date he

signed the plea form, not that counsel failed to seek his transfer.

      Defendant's contention is not only bald, even if he was misinformed by

plea counsel, the trial court correctly explained to defendant—before he entered

his guilty plea—that he was not entitled to the credits he now seeks. When

defendant asked the trial court "if the time [he was] getting here [in New Jersey]

could be run retroactive to Maryland," the court answered:

                  You get no credit for being here. You're here [on]
            what we call [IAD]. You're here on a speedy trial basis.
            You're coming here to resolve your Maryland case,
            otherwise you'd have to wait until you're done with your
            Maryland case, then come here to answer these charges.

In response to plea counsel's advice that defendant was incarcerated in New

Jersey prior to being transported to Maryland, the trial court confirmed

defendant would receive credit for that time. Defendant then told the court he


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                                        5
had no further questions and was satisfied with plea counsel's representation.

After the plea was entered, the trial court repeated that defendant would "receive

credit for any . . . jail time before being sentenced [in] Maryland, but as far as

[the time between when he was sentenced in Maryland] and today, he gets no

time . . . no credit, being here" pursuant to the IAD.

      The trial court's statement echoed our holding that defendants held in

temporary custody in New Jersey pursuant to the IAD are not entitled to jail

credit for the time they spent awaiting the disposition of their charges in this

State because their sentence in the sending state continued to run. State v.

Council, 137 N.J. Super. 306, 309 (App. Div. 1975). We observed "[w]hen there

is such transfer of temporary custody, the person already incarcerated suffers no

additional restriction on his freedom," and as long as a defendant's incarceration

in the sending state is for an unrelated offense and his detention in New Jersey

does not "in any way lengthen[] his stay in that institution," the defendant is "not

entitled" to jail credits. Ibid.

      Our Supreme Court later confirmed that rationale. In State v. Carreker,

the defendant was transferred from New York, where she was serving a

sentence, to New Jersey under the IAD.         172 N.J. 100, 104 (2002).        The

defendant pleaded guilty and was sentenced to a prison term concurrent to the


                                                                            A-3877-18T2
                                         6
New York sentence. Ibid. The Court held the defendant was not entitled to New

Jersey jail credit because her "presentence confinement in [New Jersey] was

attributable not to a New Jersey offense, but to the fact that, under N.J.S.A.

2A:159A-5(f) of the IAD, she was required to continue her term of incarceration

under her New York sentence." Id. at 115. And, in a more recent IAD case, the

Court analogized Council in holding "that if a defendant is incarcerated out of

state and the confinement is not due solely to New Jersey charges, jail credit

does not apply." State v. Joe, 228 N.J. 125, 135-36 (2017).

      Defendant does not argue that but for counsel's misadvice, he would have

rejected the plea offer and proceeded to trial. Indeed, he accepted the plea offer

even after the trial court advised him he would not receive the jail credits he

desired. His PCR counsel confirmed during argument that he did "not want to

disturb the plea. He's not looking to have this matter restart. He's not looking

for a trial."   Defendant, therefore, does not meet the second prong of the

Strickland-Fritz standard.    See DiFrisco, 137 N.J. at 528 (Handler, J.,

dissenting).

      The trial court correctly denied defendant's request for an evidentiary

hearing. R. 3:22-10(b); State v. Preciose, 129 N.J. 451, 462-63 (1992). As we




                                                                          A-3877-18T2
                                        7
have determined, defendant failed to establish a "reasonable likelihood of

succeeding" under the familiar Strickland-Fritz test. Preciose, 129 N.J. at 463.

      To the extent not addressed, we determine the balance of defendant's

arguments are without sufficient merit to warrant discussion in a written

opinion. R. 2:11-3(e)(2).

      Affirmed.




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