STATE OF NEW JERSEY v. ANTONIO RIVERA

NOT FOR PUBLICATION WITHOUT THE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.

ANTONIO RIVERA,

Defendant-Appellant.

January 23, 2014

Submitted December 17, 2013 Decided

Before Judges Reisner and Alvarez.

On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 07-04-0662.

Joseph E. Krakora, Public Defender, attorney for appellant (J. Stewart Borrow, Designated Counsel, on the brief).

Gaetano T. Gregory, Acting Hudson County Prosecutor, attorney for respondent (Miriam L. Acevedo, Special Deputy Attorney General/ Acting Assistant Prosecutor, on the brief).

PER CURIAM

On June 2, 2011, defendant Antonio Rivera's petition for post-conviction relief (PCR) was denied. He appeals, and we affirm.

On October 16, 2008, pursuant to the negotiated plea agreements he reached with the State, defendant was sentenced on Indictment No. 07-04-0662 to twenty years imprisonment subject to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2(a), on an amended charge of first-degree manslaughter, N.J.S.A. 2C:11-4(a), and on Indictment No. 05-12-1783 to a concurrent five-year term of imprisonment, also subject to NERA, on a charge of second-degree aggravated assault, N.J.S.A. 2C:12-1(b)(1).1

No direct appeal was taken in this matter. Defendant filed his pro se PCR petition sometime in May 2010. Counsel thereafter filed an amended petition and brief in support of the application. At the scheduled oral argument, the Law Division judge had no questions of counsel. Counsel submitted the matter for the judge's consideration on the briefs without oral argument. Although there is a presumption favoring oral argument on PCR petitions, in this case, where defendant's claims are so lacking in merit, no remand is warranted. See State v. Parker, 212 N.J. 269, 282-83 (2012).

We offer a brief description of the circumstances that resulted in the charges based on the transcript of defendant's entry of plea and of the sentence hearing. However, as an initial matter, we note that defendant's plea colloquy complied with Rule 3:9-3(b).

As to Indictment No. 07-04-0662, defendant acknowledged that after an argument with unspecified parties, he left the scene and returned with a weapon. He shot the unarmed victim, Ismar Mineros, at least three times. As to Indictment No. 05-12-1783, defendant admitted that on a separate occasion in a different town, he fired a handgun towards the victim, Willie Finch, with the intent to cause him bodily harm.

In denying PCR, the Law Division judge recalled that defendant's attorney had filed a successful application to dismiss the first homicide indictment. Defendant was subsequently re-indicted, resulting in the charges contained in Indictment No. 07-04-0662. The judge also observed that, prior to being sentenced, defendant filed a pro se application to retract his guilty plea. We have no transcript of any such proceedings. In any event, that transcript does not appear to be necessary for resolution of the issues at hand.

The judge summarized defendant's contentions, including the claim that his attorney failed to investigate or locate witnesses that would have testified to his limited role in the crime, and that his attorney failed to file a motion to dismiss. Since defendant did not identify potential witnesses or the testimony that they may have offered, and since he did not offer any basis for dismissal of the indictment, the judge denied the petition as it met neither prong of the Strickland2 test.

Defendant raises the following points for our consideration:

POINT I

THE TRIAL COURT ERRED IN DENYING THE DEFENDANT'S PETITION FOR POST CONVICTION RELIEF WITHOUT AN EVIDENTIARY HEARING ON WHETHER DEFENDANT RECEIVED THE INEFFECTIVE ASSISTANCE OF COUNSEL DUE TO COUNSEL'S FAILURE TO ADEQUATELY INVESTIGATE HIS CASE BY FAILING TO ATTEMPT TO LOCATE WITNESSES WHO COULD HAVE SUPPORTED HIS CONTENTION THAT HE SHOULD HAVE BEEN OFFERED A GUILTY PLEA TO PASSION-PROVOCATION MANSLAUGHTER.

POINT II

PCR COUNSEL RENDERED INEFFECTIVE ASSISTANCE OF COUNSEL BY HIS FAILURE TO INVESTIGATE THE WITNESSES SUPPORTING DEFENDANT'S CLAIM AND BY MERELY SUBMITTING THE CASE BASED ON THE FILED BRIEF. (NOT RAISED BELOW).

A. FAILURE TO INVESTIGATE CORROBORATING WITNESSES.

B. FAILURE TO MAKE ORAL ARGUMENT AT POST-CONVICTION RELIEF HEARING.

POINT III

PURSUANT TO STATE V. WEBSTER, THE CONTENTIONS IN DEFENDANT'S PRO SE PETITION FOR POST-CONVICTION RELIEF AND ASSIGNED COUNSEL'S BRIEF THAT HAVE NOT BEEN RAISED HEREIN ARE HEREBY INCORPORATED BY REFERENCE AS IF FULLY SET FORTH HEREIN.

We deny defendant's appeal for the reasons stated by the judge, adding the following brief comments.

In our opinion, it is probable that defendant did not identify potential exculpatory witnesses because none exist. Defendant's inculpatory statements, including his sworn factual basis for the entry of the plea, establish legal culpability. Simply stated, he shot and killed Mineros, and shot at Finch. He has repeatedly expressed remorse for the killing to the victim's family, including in the very petition he filed pro se. Under these circumstances, his claim constitutes nothing more than bald assertions which do not satisfy either prong of Strickland, because they neither establish ineffective performance nor prejudice to the outcome. See State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.), certif. denied, 162 N.J. 199 (1999).

With regard to defendant's arguments as set forth in his petition for PCR or his counseled brief, no additional points are raised that warrant discussion in a written opinion. R. 2:11-3(e)(2).

1 Defendant entered his guilty plea on Indictment No. 05-12-1783 the same day as he was sentenced on both indictments.

2 Strickland v. Washington establishes a two-prong test for the ineffective assistance of counsel: that counsel's representation was substandard, and that the deficient performance prejudiced the outcome. Strickland v. Washington, 466 U.S. 668, 690-92, 104 S. Ct. 2052, 2066-67, 80 L. Ed. 2d 674, 695-96 (1984). In the context of a guilty plea, a defendant must demonstrate that he would not have entered a guilty plea but for his counsel's flawed representation. State v. DiFrisco, 137 N.J. 434, 457 (1994).