State Of New Jersey v Gustavo A Cifuentes | Post-Conviction Relief

State Of New Jersey v. Gustavo A. Cifuentes, a/k/a Adolfo Gustavo and Holguin Sardi

Submitted by New Jersey Sex Crime Lawyer, Jeffrey Hark

On the night of November 27, 2010, defendant Cifuentes , after consuming four Long Island iced teas and seven beers, went into a women’s apartment and allegedly raped her. The police were called to the victim’s location because defendant was walking barefoot in the middle of the road before he entered her home. When the police arrived they found the defendant passed out and woke him up. The defendant had no recollection of any of the events that had occurred since he was so intoxicated. Cifuentes was charged with three counts of first-degree aggravated sexual assault during the commission of a crime, three counts of first-degree aggravated assault with a weapon, four counts of second-degree sexual assault with force or coercion, two counts of second-degree burglary, third-degree burglary, third-degree possession of a weapon for unlawful purposes, and fourth-degree unlawful possession of a weapon.

Defendant pled guilty to two counts of first-degree aggravated sexual assault and was sentenced to fourteen years New Jersey State Prison. After his guilty plea, defendant demanded his trial counsel file an appeal of the sentence which the attorney did not do. After the defendant’s learned his appeal was not filed, he then filed a petition for post-conviction relief arguing ‘ineffective assistance of counsel’ as per US v. Strickland. The trial court denied the PCR application on three bases:

  1. there was no actual evidence defendant requested his attorney file an appeal on his behalf,
  2. since there was numerous first degree charges counsel may have thought the plea agreement was satisfactory and no appeal was necessary, and
  3. the sentencing court clearly advised defendant of his right to appeal, he did not need his prior attorney to effectuate an appeal by the Public Defender’s Office.

On appeal, defendant argued the court erred in rejecting his PCR motion since the court did not give him a opportunity for oral argument on his ineffective assistance of counsel claim. The United States Supreme Court developed a two prong test to evaluate claims of ineffective assistance of counsel based directly “on trial counsel’s failure to timely file a direct appeal”. The first prong requires defendant show his attorney failed to consult him about filing an appeal in a situation where “there is reason to think either a rational defendant would want to appeal or this particular defendant reasonably demonstrated to counsel he was interested in appealing.” The case law requires an appellant prove only one of these two factors to satisfy the first prong. The second prong requires the defendant show “a reasonable probability that, but for the counsel’s deficient failure to consult with him about an appeal, he would have timely appealed.”

In this case, the defendant claimed that his attorney did not obey his request to file an appeal however, the court found there was not enough evidence to prove his attorney ignored his request. The judge also found it would had been reasonable for counsel to believe his client did not want to appeal because of the substantially favorable plea negotiations.

The State argued trial counsel did not consult with defendant about the possibility of an appeal and there is reason to think a rational defendant would want to appeal. The State conceded the defendant had established a initial showing of ineffective assistance of counsel since he has been deprived of his right to an appeal. Based on the State’s agreeing with the defendant’s argument, the appellate court reversed the trial court’s denial of the PCR and allowed defendant forty-five days to file a notice of appeal from his conviction and sentence.

What is actually going on here? The county prosecutor’s office was agreeing to allow this defendant to win his PCR application and appeal. Often at a plea hearing defendants are routinely asked to “WAIVE THEIR RIGHT TO APPEAL A JUDGE’S SENTENCE” during the plea colloquy. What this actually means is a defendant can still appeal his sentence, as this defendant wanted to. However, if a defendant does actually appeal then the prosecutor’s office can withdraw from the plea agreement. Here that would mean the state can withdraw the significantly generous 2 first degree pleas and 14 year state prison term, and start over with all of the charges pending against the defendant. Is this really the best option for this defendant??

Did your attorney not file an appeal and you told him to? Do you feel that your attorney did not represent you to their fullest ability? Have you heard of the term “post-conviction relief”? If you feel underrepresented please call us at (866) 427-5529 or email us with any types of questions you may have or visit our website at

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Criminal Civil Lawyer

Jeffrey Hark is a New Jersey Civil and Criminal Lawyer.

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