NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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
A-5549-17T4 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
A-5549-17T4 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. A-5549-17T4 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
A-5549-17T4 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.
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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
A-5549-17T4 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
A-5549-17T4 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. A-5549-17T4 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
A-5549-17T4 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).
A-5549-17T4 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
A-5549-17T4 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
A-5549-17T4 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
A-5549-17T4 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
A-5549-17T4 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.
A-5549-17T4 12