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

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

NOT FOR PUBLICATION WITHOUT THE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.

September 14, 2017
2 A-5562-14T1

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 
3 A-5562-14T1

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 
4 A-5562-14T1

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,
5 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 
6 A-5562-14T1

petition was facially insufficient to satisfy the two-prong test 

under Strickland.

Affirmed.