STATE OF NEW JERSEY v. CARLOS GUTIERREZ

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

CARLOS GUTIERREZ,

Defendant-Appellant.

_____________________________________________________

November 30, 2015

Submitted October 20, 2015 Decided

Before Judges Fisher and Rothstadt.

On appeal from the Superior Court of New Jersey, Law Division, Union County, Indictment No. 06-05-0486.

Joseph E. Krakora, Public Defender, attorney for appellant (William P. Welaj, Designated Counsel, on the brief).

Grace H.Park, ActingUnion County Prosecutor, attorney for respondent (Beverly I.Nwanna, SpecialDeputy AttorneyGeneral/Acting Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

At the conclusion of a jury trial, defendant was convicted of first-degree murder and weapons offenses in connection with his fatal stabbing of Jose Riascos on February 22, 2006 in Linden. Defendant was sentenced to a sixty-year prison term, subject to an eighty-five percent parole disqualifier pursuant to the No Early Release Act, N.J.S.A. 2C:43-7.2, to be followed by a five-year parole supervision term. Defendant appealed, arguing his right to a fair trial was prejudiced by the judge's: exclusion from the courtroom of defendant's family members during jury selection; failure to charge aggravated manslaughter; and admission of autopsy evidence. Defendant also asserted the sentence imposed was excessive. We rejected these arguments and affirmed. State v. Gutierrez, No. A-0110-08 (App. Div. Mar. 23, 2010), certif. denied, 205 N.J. 81 (2011).

On April 12, 2011, defendant filed a post-conviction relief (PCR) petition, which posed numerous ineffective-assistance-of-counsel arguments. The PCR judge, who also presided over the trial, denied relief without conducting an evidentiary hearing.

Defendant appeals, focusing solely on his contention that he had "informed trial counsel that [he] wanted to testify on [his] own behalf" but "counsel never explained to [him] the advantages and/or disadvantages of [his] would-be testimony." Defendant claims the judge was required to determine what transpired between him and his attorney on this subject. We agree.

Because defendant provided a prima facie ineffectiveness claim, the PCR judge was required to conduct an evidentiary hearing to "aid [his] analysis of whether the defendant is entitled to post-conviction relief[.]" State v. Marshall, 148 N.J. 89, 158, cert. denied, 522 U.S. 850, 118 S. Ct. 140, 139 L. Ed. 2d 88 (1997); see also State v. Preciose, 129 N.J. 451, 462 (1992).

Here, defendant asserted under oath that his attorney did not discuss with him either the advantages or disadvantages1 of testifying and did not review with him his potential testimony. An accused not only has the unfettered federal and state constitutional right to testify on his own behalf at trial, but he also has the right to an attorney to inform about the exercise of this right. State v. Bey, 161 N.J. 233, 269-70 (1999), cert. denied, 530 U.S. 1245, 120 S. Ct. 2693, 147 L. Ed. 2d 964 (2000). In State v. Savage, 120 N.J. 594, 630-31 (1990), the Court explained

[I]t is the responsibility of a defendant's counsel, not the trial court, to advise defendant on whether or not to testify and to explain the tactical advantages or disadvantages of doing so or not doing so. Counsel's responsibility includes advising a defendant of the benefits inherent in exercising that right and the consequences inherent in waiving it. . . . Indeed, counsel's failure to do so will give rise to a claim of ineffectiveness of counsel.

We are mindful that the judge discussed the issue with defendant at trial. Late in the trial, the following occurred in open court outside the presence of the jury

THE COURT: Mr. Gutierrez, your lawyer just announced that you are going to rest the case without taking the witness stand on your own behalf.

THE DEFENDANT: Yes, your Honor.

THE COURT: Do you understand that you come to court, you have a lawyer, he makes recommendations to you. You know, you want to listen to what your lawyer says but do you understand that that is your decision, the decision not to testify?

THE DEFENDANT: Yes, your Honor.

THE COURT: And you are satisfied that that is the right one to make. No one is forcing or threatening you to do that?

THE DEFENDANT: Yes, your Honor.

THE COURT: You are doing that on your own?

THE DEFENDANT: Yes.

THE COURT: You weighed the pros and cons of testifying versus not testifying?

THE DEFENDANT: Yes, your Honor.

Although this colloquy superficially suggests the voluntariness of defendant's decision, it does not supplant counsel's obligation. Moreover, the colloquy does not disclose to what extent or even whether trial counsel and defendant discussed "the pros and cons of testifying versus not testifying." Because the record is silent about what may have or may not have transpired between defendant and his attorney on this critical question, we remand for an evidentiary hearing.

Reversed and remanded. We do not retain jurisdiction.

1 One obvious disadvantage resulted from the judge's determination at trial that, pursuant to State v. Sands, 76 N.J. 127 (1978), defendant's prior convictions could be utilized against defendant if he were to testify. Defendant has not argued this was an erroneous decision, so the question to be decided by the PCR judge may be impacted by that relevant fact.