STATE OF NEW JERSEY VS. JULIO RIVERO(10-10-1089, UNION COUNTY AND STATEWIDE)
A-5562-14T1
| N.J. Super. Ct. App. Div. | Sep 14, 2017Background
- Defendant Julio C. Rivero was tried by jury and convicted of carjacking, robbery, weapons offenses, terroristic threats, resisting arrest, and possession of cocaine; jury convicted on all counts in December 2011.
- Judge merged counts and sentenced Rivero to an aggregate term of 24 years, with NERA parole ineligibility for 17 years; this was affirmed on direct appeal.
- In September 2014 Rivero filed a pro se PCR petition alleging trial counsel was ineffective for failing to present an expert on intoxication; counsel later filed a formal brief advancing the same claim and alleging insufficient meetings.
- At trial the judge had on-the-record colloquy with Rivero about using an intoxication defense and Rivero confirmed he had discussed and agreed to trial strategy.
- The PCR court denied the petition without an evidentiary hearing, finding the record and Rivero’s on-the-record statements undermined his ineffective-assistance claim and that the expert-witness claim was speculative.
- Rivero appealed the denial; the Appellate Division affirmed, holding he failed to make a prima facie showing under Strickland and that an evidentiary hearing was not required.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether PCR claimant is entitled to an evidentiary hearing on ineffective assistance for failing to present an intoxication expert | State: No hearing required because the petition fails to establish a prima facie Strickland claim | Rivero: Counsel was deficient for not presenting medical/expert evidence on intoxication; this prejudiced the outcome | Denied — no prima facie showing; on-record colloquy and speculative benefit from an expert defeated the claim; no hearing required |
| Whether counsel met with defendant sufficiently to form a defense | State: On-record statements show Rivero consulted and agreed to strategy | Rivero: Counsel did not meet enough to prepare defense | Denied — trial judge’s on-the-record questioning showed Rivero agreed to counsel’s strategy; assertions not credible |
Key Cases Cited
- Strickland v. Washington, 466 U.S. 668 (1984) (two-prong standard for ineffective assistance of counsel)
- State v. Fritz, 105 N.J. 42 (1987) (New Jersey adoption of Strickland)
- State v. Jones, 219 N.J. 298 (2014) (PCR evidentiary-hearing discretion; prima facie requirement)
- State v. Preciose, 129 N.J. 451 (1992) (PCR claims often require evidence beyond the trial record)