                          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                     NOT FOR PUBLICATION WITHOUT THE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.




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