RECORD IMPOUNDED

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

NOT FOR PUBLICATION WITHOUT THE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-3965-16T2

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 firstdegree 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).
3 A-3965-16T2

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 seconddegree 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 
4 A-3965-16T2

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 postconviction 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 
5 A-3965-16T2

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 
6 A-3965-16T2

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.