STATE OF NEW JERSEY VS. JAHIDE LESAINE (06-02-0450, ESSEX COUNTY AND STATEWIDE) ( 2017 )

NOT FOR PUBLICATION WITHOUT THE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unpublished opinion reversing and remanding for a plenary hearing.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:
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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
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forty-five days of the order. See State v. Perkins, ___ N.J.
Super. ___, ___ (App. Div. 2017) (slip op. at 5).
Reversed and remanded.
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