RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE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-5482-15T4
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
JESUS MIGUEL GONZALEZ,
Defendant-Appellant.
______________________________________________________
Submitted June 6, 2017 – Decided June 20, 2017
Before Judges Fisher and Leone.
On appeal from the Superior Court of New
Jersey, Law Division, Morris County,
Indictment No. 11-08-00946.
Eduardo J. Jimenez, attorney for appellant.
Fredric M. Knapp, Morris County Prosecutor,
attorney for respondent (Erin Smith Wisloff,
Supervising Assistant Prosecutor, on the
brief).
PER CURIAM
In appealing the denial of his post-conviction relief (PCR)
petition, defendant argues that the judge mistakenly speculated
as to why his attorney's advice might have constituted a reasonable
tactic rather than conduct an evidentiary hearing to develop the
issues and examine why the attorney advised defendant to waive his
right to remain silent and make incriminating statements. We agree
defendant asserted a prima facie case of ineffectiveness, and we
remand for an evidentiary hearing.
Defendant was indicted in 2011 and charged with: twelve counts
of first-degree aggravated sexual assault, N.J.S.A. 2C:14-2(a)(1);
twelve counts of second-degree sexual assault, N.J.S.A. 2C:14-
2(b); seven counts of third-degree endangering the welfare of a
child, N.J.S.A. 2C:24-4(a); nine counts of second-degree sexual
assault, N.J.S.A. 2C:14-2(c)(1); nine counts of second-degree
sexual assault, N.J.S.A. 2C:14-2(c)(4); and eighteen counts of
fourth-degree criminal sexual contact, N.J.S.A. 2C:14-3(b).
In February 2009, at the investigatory stage, defendant gave
incriminating statements to police that were videotaped. Following
the indictment, defendant moved to suppress his statements and for
relief based on what he claimed was the ineffective assistance of
his attorney. The trial judge denied the suppression motion and
declined to consider the ineffectiveness claim.
Pursuant to a negotiated plea agreement, defendant pleaded
guilty to one count of second-degree sexual assault, N.J.S.A.
2C:14-2(b). The State agreed to dismiss all other charges. In
accordance with the agreement, the judge sentenced defendant to a
2 A-5482-15T4
seven-year prison term with an eighty-five percent period of parole
ineligibility.
On December 2, 2015, defendant filed a PCR petition,1 claiming
his attorney was ineffective because he "advis[ed] and permit[ed]"
defendant, despite his "wishes to the contrary, to go to police
investigators . . . and make incriminating statements regarding
the offenses alleged." Defendant also argues that this advice was
provided by his attorney without attempting to obtain "immunity,
proffer agreement, or any other such protections against self-
incrimination," and that he was "misinform[ed] and misle[d]" about
whether his statements could or would be used against him at trial
because, among other things, his attorney did not explain his
constitutional right against self-incrimination.2
After hearing counsel's argument, the PCR judge denied relief
for reasons expressed in his June 23, 2016 oral decision.
Defendant appeals, arguing:
I. THE TRIAL COURT ERRED BECAUSE THE TRIAL
COURT USED FACTS NOT IN THE RECORD TO CONCLUDE
THAT THE DEFENDANT['S] PRIOR COUNSEL DID NOT
COMMIT INEFFECTIVE ASSISTANCE OF COUNSEL
BECAUSE PRIOR COUNSEL HAD OBTAINED THE BENEFIT
1
Defendant was released on parole in 2015 but immediately detained
on an immigration detainer. This prompted the filing of the PCR
petition.
2
These assertions are contained in the PCR petition executed by
defendant's PCR counsel. Defendant separately verified that these
allegations "are true."
3 A-5482-15T4
OF A LESSER CHARGE AND A LESSER SENTENCE FROM
THE STATE IN EXCHANGE FOR [DEFENDANT] MAKING
TRUTHFUL INCRIMINATING STATEMENTS TO POLICE
WHEN SUCH FACTS HAD NEVER BEEN ALLEGED BY
EITHER THE STATE OR [DEFENDANT].
II. THE TRIAL COURT FAILED TO APPLY THE
CORRECT LEGAL STANDARD FOR DETERMINING WHETHER
[DEFENDANT] WAS ENTITLED TO POST-CONVICTION
RELIEF FOR INEFFECTIVE ASSISTANCE OF COUNSEL
BASED ON A GUILTY PLEA BECAUSE THE COURT USED
THE LEGAL STANDARD FOR INEFFECTIVE ASSISTANCE
OF COUNSEL AT TRIAL INSTEAD AND MADE NO
MENTION OF THE DiFRISCO3 STANDARD FOR
INEFFECTIVE ASSISTANCE OF COUNSEL BASED ON
GUILTY PLEAS.
We find insufficient merit in Point II to warrant further
discussion in a written opinion. R. 2:11-3(e)(2). We agree,
however, with that part of defendant's Point I that asserts the
judge erred by refusing to conduct an evidentiary hearing, and we
remand for that purpose.
As we have observed, defendant provided sworn statements in
support of his PCR petition that his attorney erroneously advised
him to waive his right to remain silent, to speak with police, and
to give incriminating statements. In declining to conduct an
evidentiary hearing and in denying post-conviction relief, the
judge acknowledged that "frequently it is not good advice" to
3
State v. DiFrisco, 137 N.J. 434 (1994).
4 A-5482-15T4
instruct "a defendant to give[] an incriminating statement and
admission"; the judge elaborated:
We understand when we practice criminal law
and because of the fact that Miranda[4]
warnings are never far from our minds; that
someone has the right to remain silent, the
right to counsel[,] and whatever they say may
be used against them. That indeed admissions
may be used as evidence against a subject. And
so . . . a defense attorney's role is to
defend, put the State to its proofs, not
provide incriminating evidence[.] [Y]ou
general[ly] [do] not [give that advice].
The judge, however, recognized "there are very many exceptions to
that broad proposition." The judge observed, for example, that at
times an attorney might reasonably counsel a client to admit to
"a relatively minor crime" to avoid a more serious charge. By the
same token, the judge recognized that "[i]t's a little bit dicier
when, as here, the video confession attended by counsel, and in
that sense sanctioned by counsel, is a material part of the proofs
against the defendant." Nevertheless, the judge recognized that
"it is still the case that there are benefits to cooperation and
those benefits can yield the particular fruits of consideration
in terms of the charge that a defendant is ultimately allowed to
plead guilty to, the sentence exposure that he might have."
4
Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d
694 (1966).
5 A-5482-15T4
Here, as the judge recognized, defendant was exposed to first-
degree charges and "literally dozens of counts." And while
defendant "did not get a slap on the wrist in exchange for his
cooperation, remorse, insight[,] however you want to characterize
it," "he did not get anything approaching the outer limit of the
possible consequence of his misconduct that might have been
identified" and that, in light of the first-degree charges,
defendant was likely facing "as many as two sentences
consecutively."
We cannot say that the judge's reasoning lacks logic. The
problem is we don't know whether this was the logic employed by
defense counsel or whether counsel so explained to his client why
he should give the incriminating statements. Nor can we tell from
the record whether such an approach constituted a sound or
reasonable strategy in this particular case. Consequently, we
vacate the order denying post-conviction relief and remand for an
evidentiary hearing.
Vacated and remanded. We do not retain jurisdiction.
6 A-5482-15T4