                        NOT FOR PUBLICATION WITHOUT THE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-2166-15T4


STATE OF NEW JERSEY,

        Plaintiff-Respondent,

v.

JAHIDE LESAINE,

     Defendant-Appellant.
___________________________


              Submitted May 16, 2017 — Decided May 31, 2017

              Before Judges Koblitz and Sumners.

              On appeal from Superior Court of New Jersey,
              Law Division, Essex County, Indictment No. 06-
              02-0450.

              Joseph E. Krakora, Public Defender, attorney
              for appellant (John V. Molitor, Designated
              Counsel, on the brief).

              Carolyn A. Murray, Acting Essex County
              Prosecutor, attorney for respondent (Barbara
              A.   Rosenkrans,  Special   Deputy   Attorney
              General/Acting   Assistant   Prosecutor,   of
              counsel and on the brief).


PER CURIAM
     Defendant Jahide Lesaine appeals from a November 20, 2015

order denying his petition for post-conviction relief (PCR) after

an evidentiary hearing.        Although we do not disturb the findings

of the PCR judge, we remand for a determination as to whether

defendant requested a direct appeal that was not processed by

defense counsel.

     We set forth the procedure in this matter in our prior

unpublished opinion reversing and remanding for a plenary hearing.

State v. Lesaine, No. A-3510-10 (App. Div. April 22, 2013).

Defendant pled guilty to a series of ten armed robberies and

related charges on the same date, and received a twelve-year

custodial sentence subject to the No Early Release Act, N.J.S.A.

2C:43-7.2.    No direct appeal was filed.             In his PCR petition,

defendant    presented    an    exculpatory     certification     of    a   co-

defendant.    We directed that a hearing take place to determine

whether, as defendant alleged, his lawyer had not investigated his

co-defendant's     exculpatory       evidence   nor    provided   him       with

discovery.    Defendant, his plea attorney and his exculpating co-

defendant testified at length in a three-day PCR hearing.              The PCR

hearing   judge   found   defense     counsel   credible,   while      finding

defendant and his co-defendant incredible.

     Defendant raises the following issues on appeal:




                                 2                                     A-2166-15T4
            POINT I: THE COURT SHOULD REVERSE THE LAW
            DIVISION'S DECISION TO DENY DEFENDANT'S
            PETITION FOR POST-CONVICTION RELIEF.

      We see no reason to disturb the factual and credibility

findings of the PCR hearing judge substantially for the reasons

expressed in the judge's comprehensive oral opinion of November

20, 2015.

      In our 2013 remand, we specifically opined that an inquiry

into the processing of defendant's appeal would be unnecessary

given his inability to demonstrate a meritorious issue on appeal.

Lesaine, supra, slip. op. at 8-9.             After our opinion, the law was

clarified to entitle defendants to file a late appeal if a timely

request was ignored, regardless of the merits of the appeal. State

v.   Jones,   446    N.J.    Super.     28,   34-35    (App.   Div.),   certif.

denied,       N.J.      (2016) (relying on Roe v. Flores-Ortega, 528

U.S. 470, 484, 120 S. Ct. 1029, 1038-39, 145 L. Ed. 2d 985, 999-

1000 (2000)). We are therefore constrained to remand for a further

evidentiary   hearing       for   the   PCR    judge   to   determine   whether

defendant asked for a direct appeal that was not filed.                 A review

of defendant's attorney's file may reveal whether such a request

was made. Alternatively, the State may wish to concede the failure

to file the requested direct appeal.

      If a direct appeal was sought and not provided, the PCR court

should enter an order allowing defendant to file an appeal within


                                   3                                     A-2166-15T4
forty-five days of the order.    See State v. Perkins, ___ N.J.

Super. ___, ___ (App. Div. 2017) (slip op. at 5).

    Reversed and remanded.




                             4                          A-2166-15T4
