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NOT FOR PUBLICATION WITHOUT THE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
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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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