NOT FOR PUBLICATION WITHOUT THE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.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-5562-14T1
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
JULIO RIVERO, a/k/a JULIO
C. RIVERO, JULIO TORRES,
JULIO C. TORRES, JULIO C.
TORRESRIVEROS, and JULIO C.
RIVEROS,
Defendant-Appellant.
___________________________
Submitted February 15, 2017 – Decided September 14, 2017
Before Judges Fuentes and Carroll.
On appeal from Superior Court of New Jersey,
Law Division, Union County, Indictment No. 10-
10-1089.
Joseph E. Krakora, Public Defender, attorney
for appellant (Monique Moyse, Designated
Counsel, on the brief).
Grace H. Park, Acting Union County Prosecutor,
attorney for respondent (Milton S. Leibowitz,
Special Deputy Attorney General/Acting
Assistant Prosecutor, of counsel and on the
brief).
PER CURIAM
Defendant Julio C. Rivero appeals from the July 17, 2015
order entered by the Criminal Part denying his post-conviction
relief (PCR) petition. We affirm.
On November 30, 2011, defendant was tried before a jury for
first degree carjacking, N.J.S.A. 2C:15-2; first degree robbery,
N.J.S.A. 2C:15-1; third degree possession of a weapon (knife) for
an unlawful purpose, N.J.S.A. 2C:39-5(d); third degree terroristic
threats, N.J.S.A. 2C:12-3(a); third degree resisting arrest,
N.J.S.A. 2C:29-2(a); third degree possession of cocaine, N.J.S.A.
2C:35-10(a)(1); and fourth degree unlawful possession of a weapon
(knife), N.J.S.A. 2C:39-4(d). On December 6, 2011, the jury
returned its verdict finding defendant guilty on all of the
charges.
On March 9, 2012, the trial judge applied the doctrine of
merger and sentenced defendant on the first degree carjacking
conviction to serve a term of twenty years, with an eighty-five
percent period of parole ineligibility and five years of parole
supervision pursuant to the No Early Release Act (NERA), N.J.S.A.
2C:43-7.2. The judge also imposed a consecutive term of four
years on the third degree resisting arrest, a concurrent term of
four years on the third degree possession of cocaine, and a
concurrent term of nine months on the fourth degree unlawful
possession of a knife. This resulted in an aggregate term of
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twenty-four years, with a seventeen-year period of parole
ineligibility.
Defendant appealed his conviction to this court, arguing the
trial judge erred when he instructed the jury on the defense of
intoxication. Defendant also argued the sentence imposed by the
court was manifestly excessive. We affirmed the conviction and
sentence in an unpublished opinion. State v. Julio C. Rivero,
Docket No. A-4179-11 (App. Div. August 4, 2014). On September 18,
2014, defendant filed a pro se PCR petition alleging ineffective
assistance of trial counsel because his attorney did not present
an expert witness on the effects of intoxication. Court-assigned
counsel also filed a formal brief on behalf of defendant.
The matter came for oral argument before the PCR judge on
July 17, 2015. PCR counsel argued that trial counsel was
ineffective when he failed "to present the best defense which
would have required medical documentation and/or an expert
regarding the intoxication defense." PCR counsel claimed that but
for this "deficient performance" by trial counsel, "there would
have been a different result." In his pro se PCR petition,
defendant also claimed his trial counsel did not meet with him to
discuss trial strategy.
The PCR judge also presided over defendant's trial. In
rejecting defendant's petition, the judge noted that in the course
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of the trial, he questioned defendant on the record concerning the
intoxication defense.
[W]hen I questioned him on the record, when
we were talking about going down the road of
this intoxication defense about how it had a
double-edged sword and it was kind of a
strategic decision, I wanted to make sure that
he wasn't going to go back in later on and say
hey, my lawyer did this, he brought in that I
was drunk and the jury was going to hold it
against me and they were going to convict me
- - in any event, and I said to him, I said
Mr. Rivero, you spoke to your attorney you
spoke extensively? Yes, I did, Judge. And
you agree with this decision that this is how
we're going to present this? Yes, I do, Judge.
So how can he say he spoke with me extensively
when we were talking then and now he's saying
he failed to meet with me enough to form a
defense. It's not credible, it's not
believable.
The judge concluded defendant did not establish a prima facie case
of ineffective assistance of trial counsel and denied the petition
without conducting an evidentiary hearing.
Defendant now appeals raising the following argument:
POINT ONE
MR. RIVERO IS ENTITLED TO AN EVIDENTIARY
HEARING ON HIS CLAIM THAT HIS ATTORNEY
RENDERED INEFFECTIVE ASSISTANCE OF COUNSEL FOR
FAILING TO PRESENT AN EXPERT WITNESS ON THE
EFFECTS OF INTOXICATION.
We review a claim of ineffective assistance of counsel under
the two-prong test established by the United States Supreme Court
in Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052,
4 A-5562-14T1
2064, 80 L. Ed. 2d 674, 693 (1984), and subsequently adopted by
our Supreme Court in State v. Fritz, 105 N.J. 42, 58 (1987). A
defendant must first demonstrate that defense "counsel's
performance was deficient." Strickland, supra, 466 U.S. at 687,
104 S. Ct. at 2064, 80 L. Ed. 2d at 693. Second, she or he must
show there exists "a reasonable probability that, but for counsel's
unprofessional errors, the result of the proceeding would have
been different." Id. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at
698.
A court presented with a PCR petition is not obligated to
conduct an evidentiary hearing. State v. Jones, 219 N.J. 298, 311
(2014). Rule 3:22-10 gives the court the discretion to conduct
such a hearing only "if a defendant has presented a prima facie
case in support of PCR." Ibid. Once a prima facie case has been
established, the claims of ineffective assistance of counsel
ordinarily require consideration of "evidence that lie[s] outside
the trial record." State v. Preciose, 129 N.J. 451, 460 (1992).
Here, the PCR judge correctly concluded an evidentiary
hearing was not necessary because the salient facts undermining
his decision to deny defendant's petition were uncontested.
Furthermore, defendant's claim that expert testimony on
intoxication would have produced a different outcome at trial is
mere speculation. The PCR judge correctly found that defendant's
5 A-5562-14T1
petition was facially insufficient to satisfy the two-prong test
under Strickland.
Affirmed.
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