STATE OF NEW JERSEY VS. GUSTAVO A. CIFUENTES (11-04-0876, BERGEN COUNTY AND STATEWIDE) (RECORD IMPOUNDED)

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NOT FOR PUBLICATION WITHOUT THE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-3965-16T2

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

GUSTAVO A. CIFUENTES, a/k/a
ADOLFO GUSTAVO and HOLGUIN
SARDI,

Defendant-Appellant.
____________________________

Submitted May 24, 2018 – Decided July 9, 2018

Before Judges Mayer and Mitterhoff.

On appeal from Superior Court of New Jersey,
Law Division, Bergen County, Indictment No.
11-04-0876.

Joseph E. Krakora, Public Defender, attorney
for appellant (Dianne Glenn, Designated
Counsel, on the brief).

Dennis Calo, Acting Bergen County Prosecutor,
attorney for respondent (Jenny X. Zhang,
Special Deputy Attorney General/Acting
Assistant Prosecutor, of counsel and on the
brief).

PER CURIAM
 Defendant Gustavo Cifuentes appeals from an April 10, 2017

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

State does not oppose the appeal. We reverse.

The matter arises from an incident that took place on November

27, 2010. After drinking four Long Island iced tea alcoholic

beverages and seven beers the night before, defendant's next

recollection was being arrested at the victim's house. Police

were dispatched to the location pursuant to a report that the

victim was walking barefoot in the middle of the road. The victim

reported that defendant entered her apartment and raped her. When

police arrived at the victim's apartment, defendant was asleep and

when the police woke him up, he claimed that he had no recollection

of the events.

Defendant was charged as follows: three counts of first-

degree aggravated sexual assault during the commission of a crime,

N.J.S.A. 2C:14-2(a)(3); three counts of first-degree aggravated

assault with a weapon, N.J.S.A. 2C:14-2(a)(4); four counts of

second-degree sexual assault with force or coercion, N.J.S.A.

2C:14-2(c)(1); two counts of second-degree burglary, N.J.S.A.

2C:18-2(a); third-degree burglary, N.J.S.A. 2C:18-2; third-degree

possession of a weapon for unlawful purposes, N.J.S.A. 2C:39-4(d);

and fourth-degree unlawful possession of a weapon, N.J.S.A. 2C:39-

5(d).

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 Defendant pled guilty to two counts of first-degree

aggravated sexual assault and was sentenced to an aggregate term

of fourteen years, subject to the No Early Release Act, N.J.S.A.

2C:43-7.2. Defendant's trial counsel did not file a direct appeal

of the sentence.

Thereafter, defendant filed a petition for post-conviction

relief based on ineffective assistance of counsel. Defendant

contended in his petition that his trial counsel failed to file

an appeal despite his request to do so. According to defendant,

he had meritorious grounds for his appeal. Specifically, defendant

claimed that the trial court improperly failed to consider whether

defendant's extreme intoxication was a mitigating factor during

sentencing.

The trial court denied defendant's application on three

bases:

First, defendant has offered no specific,
credible evidence that he even requested that
his attorney file an appeal on his behalf. A
bare, self-serving statement in his Verified
Petition is insufficient to convince this
court that he requested that his attorney file
an appeal.

Second, the defendant in this case was charged
in a fifteen-count indictment, which consisted
of six first-degree charges and four second-
degree charges. His attorney diligently
negotiated a plea bargain that called for a
guilty plea to two first-degree sexual
assaults, with the State recommending sixteen

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 years NJSP. Defendant received the benefit
of a fourteen-year sentence on each count to
run concurrent[,] which was two years less
than the State's recommendation under the
terms of the plea. Under these circumstances,
it would be reasonable for his trial attorney
to believe that the defendant did not wish to
appeal his sentence, especially given the
thorough qualitative analysis of aggravating
and mitigating factors conducted by the
sentencing court.

Third, the sentencing court clearly and
unambiguously advised the defendant of his
right to appeal. After imposing an aggregate
sentence of fourteen years NJSP, the court
advised the defendant "[y]ou have 45 days to
appeal. If you can't afford an attorney, one
will be appointed for you. You have five years
from today's date to file a petition for post-
conviction relief." Even assuming arguendo
that defendant's attorney did not consult the
defendant about an appeal or file an appeal
on his behalf after being asked to do so, the
defendant clearly had knowledge that he could
apply for a public defender for appeal
purposes.

This appeal ensued.

On appeal, defendant makes the following argument:

The PCR COURT ERRED IN DENYING THE DEFENDANT'S
PETITION FOR POST-CONVICTION RELIEF WITHOUT AN
EVIDENTIARY HEARING TO FULLY ADDRESS HIS
INEFFECTIVE ASSISTANCE OF COUNSEL CLAIMS.

The United States Supreme Court has developed a two-prong

test to evaluate claims of ineffective assistance of counsel based

on trial counsel's failure to timely file a direct appeal. See

Roe v. Flores-Ortega, 528 U.S. 470, 477-85 (2000). First, the

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defendant must show that his attorney failed to consult him about

filing an appeal in a situation where "there is reason to think

either (1) that a rational defendant would want to appeal . . .

or (2) that this particular defendant reasonably demonstrated to

counsel that he was interested in appealing." Id. at 480. A

showing of either of these factors will satisfy the first prong

of the test established in Strickland v. Washington, 466 U.S. 668,

690 (1984). See Ibid. Second, a defendant must show that there

was "a reasonable probability that, but for counsel's deficient

failure to consult with him about an appeal, he would have timely

appealed." Roe, 528 U.S. at 484.

In this case, defendant claimed that his trial attorney

disregarded his request to file an appeal. The trial court found

that there was insufficient evidence that defendant consulted with

his trial attorney about the possibility of appeal. The judge

also found that it would have been reasonable for trial counsel

to believe defendant would not want to appeal in light of what the

judge viewed as a very favorable plea bargain. Even accepting the

trial judge's determination that trial counsel did not consult

with defendant about the possibility of pursuing an appeal,

defendant has established a prima facie case of ineffective

assistance of counsel because under the particular facts of this

case, "there is reason to think that a rational defendant would

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want to appeal . . . ." Roe, 528 U.S. at 480. In that regard,

aggravated sexual assault requires the defendant to act knowingly,

see Model Jury Charges (Criminal), "Aggravated Sexual Assault

(N.J.S.A. 2C:14-2a(3))" (rev. Jan. 24, 2005), and extreme

intoxication may be an affirmative defense when it negates an

essential element of the offense. See N.J.S.A. 2C:2-8(a).

The State concedes that defendant has established a prima

facie case of ineffective assistance of counsel. Because defendant

has been deprived of his right to an appeal, we reverse the order

on appeal and hereby allow defendant forty-five days from the date

of this opinion to file a notice of appeal from his conviction and

sentence. See State v. Perkins, 449 N.J. Super. 309, 311 (App.

Div. 2017).

Reversed.

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