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 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 

NOT FOR PUBLICATION WITHOUT THE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.
2 A-5482-15T4

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 
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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 selfincrimination," 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."
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 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).
5 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).
6 A-5482-15T4

Here, as the judge recognized, defendant was exposed to firstdegree 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.