                        NOT FOR PUBLICATION WITHOUT THE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

                                    2                             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

                                          3                                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,

                                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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