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State v. Rivera

October 10, 2008

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
EDWIN RIVERA, DEFENDANT-APPELLANT.



On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 83-02-0896.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted September 29, 2008

Before Judges Wefing and LeWinn.

Defendant Edwin Rivera appeals from the October 18, 2006 order denying his petition for post-conviction relief (PCR), based upon claims of ineffective assistance of trial and appellate counsel.

In 1983, defendant was indicted for murder, in violation of N.J.S.A. 2C:11-3(a); and possession of a weapon for an unlawful purpose, in violation of N.J.S.A. 2C:39-4(d). He was tried to a jury and convicted on both counts. On November 18, 1983, defendant was sentenced to life imprisonment with a thirty-year period of parole ineligibility on the murder count, and a concurrent five-year term on the weapons count. Defendant appealed, raising only issues of trial error. We found no error and affirmed. State v. Rivera, No. A-1999-83 (App. Div. December 12, 1986).

On May 16, 2003, defendant filed a PCR petition claiming that his trial counsel had been ineffective by failing to convey any plea offers to him, and that appellate counsel had been ineffective for failing to raise trial counsel's deficiency on direct appeal. Counsel was assigned to represent defendant, and the trial judge heard oral argument on October 17, 2006. At the conclusion of argument, the judge denied defendant's petition in its entirety. On the following day, the judge entered an order reflecting his decision.

On appeal, defendant presents the following issues for our consideration:

POINT I:

THE DEFENDANT WAS DEPRIVED OF EFFECTIVE ASSISTANCE OF COUNSEL ON HIS PETITION FOR POST CONVICTION RELIEF.

POINT II:

THE TRIAL COURT ERRED IN DENYING THE DEFENDANT'S PETITION FOR POST CONVICTION [RELIEF] WITHOUT A PLENARY HEARING.

We have considered these contentions in light of the record and the applicable law. Finding no merit to either argument, we affirm.

On PCR, defendant alleged that his trial counsel never informed him of any plea offers prior to trial.*fn1 The PCR judge, accepting that allegation as true, and opining that the failure to communicate a proffered plea would be ...


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