## RECORD IMPOUNDED

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 Wislo ff, Supervising Assi stant Prosecutor, on the brief).
PER CURIAM In appealing the denial of his post
- conviction relief (PCR) petition, defendant argues that the j udge mistakenly speculated as to why his attorney's advice might have constituted a reasonab le NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court . " A lthough 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
- 3.2 A - 5482
- 15T4

tactic rather than conduct an evidentiary hearing to develop the issues and examine why the attorney advis ed defendant to waive his right to remain silent and make incriminating statements. We agree
defendant assert ed a prima facie case of ineffectivene ss, 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 count s of third
- degre e 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 crimin al 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 s exual assault, N.J.S.A.
2C:14
- 2(b). The State agreed to d ismiss all other charges. I n accordance with the agreement, the judge sentenced defend ant to a3 A - 5482
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seven - year prison term with an eighty
- five percent period of parole ineligib ility.
On Decemb er 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 re garding the offenses alleg ed." 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 st atements 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 COMM IT INEFFECTIVE ASSISTANCE OF COUNSEL BECAUSE PRIOR COUNSEL HAD OBTAINED THE BENEFIT

1 D efendant 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."4 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 ALLEGE D 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 DiFRISCO 3 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 th at 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 ack nowledged that "freq uently it is not good advice " to

3 State v. DiFrisco , 137 N.J. 434 (1994).5 A - 5482
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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; tha t 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 pr oofs, 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 reasonab ly 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 cou nsel, is a material part of the proofs against the defendant." Nevertheless, the judg e recognize d 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 t hat 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) .6 A - 5482
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Here, as the judge recogniz ed, defendant was exposed to first
degree charges and "literally d ozens 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 t he first
- degree charges , defendant was likely facing " as many as two sentences consecutively." We cannot say that the judge's reasoning l acks logic. The problem is we don't know whether this was the log ic employed b y defense counsel or whether counsel so explained to his client why he should give the incriminating statements. N or can we te ll from
the record whether such an approach constituted a sound or reasonable strategy in this particular case. Consequently, we vacate the order denying post
- convicti on relief and remand for an evidentiary hearing. Vacated and remanded. We do not retain jurisdiction.