SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4280-19

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

MICHAEL E. MITCHELL,

a/k/a MICHAEL MITCHELL,

Defendant-Appellant.

__________________________

Submitted May 25, 2021 – Decided June 15, 2021

Before Judges Yannotti and Haas.

On appeal from the Superior Court of New Jersey, Law 

Division, Somerset County, Indictment No. 12-08-

0576.

Joseph E. Krakora, Public Defender, attorney for 

appellant (Steven M. Gilson, Designated Counsel, on 

the brief).

Michael H. Robertson, Somerset County Prosecutor, 

attorney for respondent (Amanda Frankel, Assistant 

Prosecutor, of counsel and on the brief).

Appellant filed a pro se supplemental brief.

NOT FOR PUBLICATION WITHOUT THE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.
2 A-4280-19

PER CURIAM

Defendant appeals from an order entered by the Law Division on January 

28, 2020, which denied his petition for post-conviction relief (PCR). We affirm.

I.

In June 2012, a Middlesex County grand jury returned Indictment No. 12-

06-0897, charging defendant and Emendo Bowers with five counts of firstdegree robbery, N.J.S.A. 2C:15-1 (counts one, five, nine, thirteen, and 

seventeen); five counts of second-degree unlawful possession of a weapon, 

N.J.S.A. 2C:39-5(b) (counts two, six, ten, fourteen, and eighteen); five counts 

of second-degree possession of a weapon for unlawful purposes, N.J.S.A. 

2C:39-4(a) (counts three, seven, eleven, fifteen, and nineteen); and five counts 

of second-degree conspiracy, N.J.S.A. 2C:5-2 (counts four, eight, twelve, 

sixteen, and twenty). Mack Mitchell also was charged in counts five to eight

and thirteen to nineteen. 

Counts one, two, three, and four of the indictment related to the robbery 

of a Radio Shack store in Franklin Township, Somerset County, on October 20, 

2011. Count one alleged, that while committing a theft, defendant and Bowers 

purposely put Joseph Engleman and/or Radio Shack in fear of immediate bodily 
3 A-4280-19

harm, while armed with and/or threatening the immediate use of a deadly 

weapon. 

In August 2012, a Somerset County grand jury returned Indictment No.

12-08-0576, which charged defendant and Bowers with the armed robbery of 

the Radio Shack in Franklin Township on October 20, 2011. Thereafter, on 

March 4, 2013, the judge dismissed counts one, two, three and four of Middlesex 

County Indictment No. 12-06-0897. 

In May 2014, a Middlesex County grand jury issued superseding 

Indictment No. 14-05-0525, which charged defendant and Mack Mitchell with

four counts of first-degree armed robbery, N.J.S.A. 2C:15-1 (counts one, six, 

eleven, and sixteen); four counts of second-degree conspiracy to commit armed 

robbery, N.J.S.A. 2C:5-2, N.J.S.A. 2C:15-1 (counts two, seven, twelve, and 

seventeen); four counts of third-degree theft by unlawful taking, N.J.S.A. 2C:20-

3(a) (counts three, eight, thirteen, and eighteen); four counts of third-degree 

unlawful possession of a weapon, N.J.S.A. 2C:39-5(b) (counts four, nine, 

fourteen, and nineteen); and four counts of second-degree possession of a 

weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a) (counts five, ten, fifteen, 

twenty). 
4 A-4280-19

Counts one to five pertained to the robbery of a T-Mobile store in Edison 

on December 8, 2011. Counts six to ten related to the robbery of a Radio Shack 

store in South Brunswick on December 19, 2011. Counts eleven to fifteen 

pertained to the robbery of a AT&T store in Edison on January 5, 2012, and 

counts sixteen to twenty related to the robbery of a T-Mobile store in Edison on 

January 12, 2012. 

In March 2014, defendant was tried before a jury on the charge in the 

Somerset County indictment. He was found guilty of first-degree armed robbery 

of the Radio Shack store in Franklin Township on October 20, 2011. The court 

granted the State's motion for an extended term and sentenced defendant to 

twenty-five years in prison, with an eighty-five percent period of parole 

ineligibility, pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. 

Defendant was ordered to pay restitution in the amount of $19,046.88. The 

judge in that case filed a judgment of conviction (JOC) dated May 30, 2014. 

Thereafter, defendant was tried before a jury on the charges in the 

Middlesex County indictment. He was found guilty on counts three (thirddegree theft by unlawful taking), seven (second-degree conspiracy to commit 

armed robbery), eight (third-degree theft by unlawful taking), ten (seconddegree possession of a firearm for an unlawful purpose), thirteen (third-degree 
5 A-4280-19

theft by unlawful taking), sixteen (first-degree armed robbery), seventeen

(second-degree conspiracy to commit armed robbery), eighteen (third-degree 

theft by unlawful taking), and twenty (second-degree possession of a firearm for 

an unlawful purpose). 

On count sixteen, the court sentenced defendant to life without parole and 

consecutive sentences on other counts.1 The sentences also were consecutive to 

the sentence imposed in Somerset County. The judge entered a JOC dated 

September 27, 2017. 

Defendant appealed from the JOC filed in the Somerset County case. We 

affirmed defendant's conviction but remanded for resentencing, finding that the 

judge erred by imposing an extended-term sentence because defendant was not 

told he could be sentenced to an extended term. State v. Mitchell, No. A-0675-

14 (App. Div. May 4, 2017) (slip op. at 2, 14-17), certif. denied, 231 N.J. 153 

(2017). 

Thereafter, the trial court sentenced defendant to a twenty-year prison 

term, with an eighty-five percent period of parole ineligibility pursuant to 

1 The life sentence was imposed pursuant to N.J.S.A. 2C:43-7.1(a), which 

provides in part that a person who has been convicted of first-degree robbery 

under N.J.S.A. 2C:15-1 and other specified crimes, and who has been convicted 

of two or more such crimes, on prior and separate occasions, shall be sentenced 

by the court to a term of life imprisonment with no eligibility for parole. 
6 A-4280-19

NERA, concurrent to the life sentence imposed in Middlesex County. Defendant 

was again ordered to pay restitution in the amount of $19,046.88. The judge 

filed an amended JOC, which is dated October 23, 2017. Defendant appealed 

and challenged his sentence. We affirmed the sentence. State v. Mitchell, No. 

A-0312-17 (App. Div. May 7, 2018). 

On August 20, 2018, defendant filed a PCR petition in Somerset County, 

alleging he had been denied the effective assistance of counsel. The court 

assigned counsel for defendant, and counsel filed an amended verified petition 

and a certification by defendant. 

In his certification, defendant claimed his trial attorney knew he also had 

pending charges in Middlesex County, and presented him with plea offers with 

sentences of twelve to fifteen years, subject to NERA. He asserted that his trial 

counsel never mentioned that he was attempting to get a sentence concurrent 

with the sentence imposed in Middlesex County. 

Defendant stated that his attorney advised him that if he was convicted in 

Somerset County, and then found guilty of even one robbery in Middlesex 

County, he would face a life sentence. He said that he rejected a plea offer of 

fourteen years because if he pled guilty, he would be exposed to a life sentence 

if found guilty in Middlesex County. 
7 A-4280-19

Defendant also stated that at the time of his original arraignment in 

Middlesex County, the State made a global plea offer but his attorney did not 

have complete discovery at that time. He claimed his attorney in the Middlesex 

County matter never discussed plea offers at the arraignment or any time 

thereafter, and his new attorney assigned in Middlesex County did not discuss a 

plea offer with him until the pre-trial conference, but by that time, he had already 

been convicted in Somerset County.

Defendant asserted that his co-defendants both had accepted global plea 

offers. He stated that if the State had made a global plea offer to resolve the 

Somerset and Middlesex County charges, he would have "considered accepting 

it rather than risk life in prison without parole." 

Judge Anthony F. Picheca, Jr. heard oral argument and issued a lengthy 

written opinion finding that defendant had not presented a prima facie case of 

ineffective assistance of counsel and defendant was not entitled to an evidentiary 

hearing on his petition. The judge entered an order dated January 28, 2020, 

denying PCR. This appeal followed.

On appeal, defendant's attorney raises the following arguments:

THIS MATTER MUST BE REMANDED FOR AN 

EVIDENTIARY HEARING BECAUSE 

DEFENDANT ESTABLISHED A PRIMA FACIE 

CASE OF COUNSELS' INEFFECTIVENESS.
8 A-4280-19

A. [TRIAL COUNSEL FAILED TO MOVE FOR 

CONSOLIDATION OF THE SOMERSET COUNTY 

AND SUPERSEDING MIDDLESEX COUNTY 

INDICTMENT FOR PLEA BARGAINING 

PURPOSES AFTER COMPLETE DISCOVERY HAD 

BEEN RECEIVED. 

B. TRIAL COUNSEL FAILED TO INVESTIGATE 

AN ALLEGED ADDITIONAL STATEMENT 

BOWERS GAVE TO THE POLICE.

C. APPELLATE COUNSEL FAILED TO RAISE THE 

RESTITUTION ARGUMENT AT THE ESOA 

HEARING.]

In addition, defendant has filed a pro se supplemental brief in which he 

argues: (1) in summation, the prosecutor misrepresented facts in evidence and 

his attorney erred by failing to object; (2) the prosecutor improperly vouched 

for the credibility of a witness; (3) trial counsel erred by failing to seek dismissal 

of the indictment on the ground that it was "duplicitous"; (4) trial counsel erred 

by failing to investigate a statement that Bowers allegedly provided to the police 

at 11:50 a.m. on January 12, 2012; (5) he was denied due process and a fair trial 

due to cumulative errors; and (6) his petition is not barred by any procedural 

"considerations." 

II.

As noted, defendant's counsel argues that the matter should be remanded 

to the PCR court for an evidentiary hearing. Defendant argues that he 
9 A-4280-19

established a prima facie case of ineffective assistance by his trial and appellate 

counsel. We disagree. 

"To obtain an evidentiary hearing on a PCR petition, a defendant must 

establish a prima facie case for relief, material issues of disputed fact, and show 

that an evidentiary hearing is necessary to resolve the claims." State v. 

O'Donnell, 435 N.J. Super. 351, 370 (App. Div. 2014) (citing R. 3:22-10(b)). 

"To establish a prima facie case, defendant must demonstrate a reasonable 

likelihood that his or her claim, viewing the facts alleged in the light most 

favorable to the defendant, will ultimately succeed on the merits." R. 3:22-

10(b). 

To be entitled to an evidentiary hearing, the petitioner "must allege 

specific facts and evidence supporting his allegations." State v. Porter, 216 N.J. 

343, 355 (2013). See R. 3:22-10(e)(1) to (2) (explaining that "[a] court shall not 

grant an evidentiary hearing: (1) if an evidentiary hearing will not aid the court's 

analysis of the defendant's entitlement to post-conviction relief; [or] (2) if the 

defendant's allegations are too vague, conclusory or speculative"). 

The Sixth Amendment to the United States Constitution and the New 

Jersey Constitution guarantee criminal defendants the right to counsel, which 

requires that defendants receive "the effective assistance of counsel." Strickland 
10 A-4280-19

v. Washington, 466 U.S. 668, 686 (1984); State v. Fritz, 105 N.J. 42, 58 (1987). 

A defendant asserting a claim of ineffective assistance of counsel must satisfy 

the two-part test established in Strickland, 466 U.S. at 687, and later adopted by 

the New Jersey Supreme Court in Fritz, 105 N.J. at 58. 

Under this test, "[f]irst, the defendant must show that counsel's 

performance was deficient. . . . [and] [s]econd, the defendant must have been 

prejudiced by counsel's deficient performance." State v. Gideon, 244 N.J. 538, 

550 (2021) (quoting Strickland, 466 U.S. at 687) (internal citations omitted). 

The first prong "requires showing that counsel made errors so serious that 

counsel was not functioning as the 'counsel' guaranteed the defendant by the 

Sixth Amendment." Fritz, 105 N.J. at 52 (quoting Strickland, 466 U.S. at 687). 

"An attorney's representation is deficient when it '[falls] below an objective 

standard of reasonableness.'" State v. O'Neil, 219 N.J. 598, 611 (2014) (quoting 

Strickland, 466 U.S. at 688).

The second prong requires the defendant to show "that there is a 

reasonable probability that, but for counsel's unprofessional errors, the result of 

the proceeding would have been different." Gideon, 244 N.J. at 550-51 (quoting 

Strickland, 466 U.S. at 694). "A reasonable probability is a probability 

sufficient to undermine confidence in the outcome." Id. at 551 (quoting 
11 A-4280-19

Strickland, 466 U.S. at 694). Since prejudice is not presumed, the defendant 

must "affirmatively prove prejudice." Id. at 550-51 (citing Fritz, 105 N.J. at 52; 

quoting Strickland, 466 U.S. at 693).

A. Failure to Seek Consolidation of Charges.

 Defendant argues that his trial counsel erred by failing to seek 

consolidation of the Somerset and Middlesex County charges after discovery 

was complete. He contends consolidation would have been appropriate under 

Rule 3:25A-1. He claims the result would have been different if all of the 

charges were tried together. 

In his opinion, Judge Picheca noted that, while the factors enunciated in 

Rule 3:25A-1 indicate consolidation of the charges would have been 

appropriate, consolidation was not mandatory. The judge stated that counsel's

failure to seek consolidation may constitute deficient performance, but 

defendant did not show it was likely there would have been a more favorable 

disposition. The judge further found that defendant failed to show a reasonable

probability he would have accepted a plea offer and the resulting sentence would 

have been less severe than the punishment imposed. 

We are convinced the record supports the PCR court's determination. As 

the judge noted, consolidation of charges under Rule 3:25A-1 is discretionary, 
12 A-4280-19

and the trial court was not required to consolidate the charges. Moreover, the 

charges had been initially consolidated in the first Middlesex County indictment, 

and defendant had been presented with a global plea offer. 

Although discovery was not complete, the State had offered defendant a 

thirty-year NERA sentence, concurrent to a five-year sentence with five years 

of parole ineligibility. Defendant rejected the plea offer. The charges then were 

severed. 

Defendant has not shown that the result of this proceeding would have 

been different if his attorney had sought to consolidate the charges. The State 

was not required to again offer a global plea, since defendant had already 

rejected that offer. 

Moreover, defendant has not shown he would have accepted such an offer

to resolve the Somerset County charge. Indeed, defendant rejected the State's 

plea offer to resolve the Somerset County charge, knowing he faced a potential 

life sentence if convicted of first-degree armed robbery in Middlesex County. 

Thus, the record supports the PCR court's finding that defendant had not 

presented a prima facie case of ineffective assistance of counsel with regard to 

the consolidation of charges and the plea offers.
13 A-4280-19

B. Failure to Investigate. 

Defendant argues that his trial counsel was deficient because he failed to 

investigate a second statement that Bowers allegedly gave to the police. He 

states that this statement may have exculpated him and could have resulted in 

his acquittal.

At trial, Bowers testified that he was in police custody on January 12, 

2012. He said he spoke with the police after he was advised of his rights. 

Although Bowers said he did not initially implicate defendant, he eventually

told the detective that defendant was involved with the Radio Shack robbery. 

On cross-examination of Bowers, two Miranda2 forms that Bowers signed 

were marked for identification. One of the forms indicated it had been signed 

at 4:03 p.m. and the other form indicated it was signed at 11:50 a.m. Defense 

counsel then questioned Bowers about his statements. Bowers initially denied 

that he spoke to the police before 4:00 p.m., but he then said he was "talked to 

by the detectives" from 11:00 a.m. through 4:00 p.m. 

"[W]hen a petitioner claims his trial attorney inadequately investigated his 

case, he must assert the facts that an investigation would have revealed, 

supported by affidavits or certifications based upon the personal knowledge of 

2

 Miranda v. Arizona, 384 U.S. 436 (1966). 
14 A-4280-19

the affiant or the person making the certification." State v. Cummings, 321 N.J. 

Super. 154, 170 (App. Div. 1999). 

As the State points out, defendant failed to present sufficient evidence to 

show that Bowers did, in fact, provide the police with a second statement. In 

any event, at trial, defendant's counsel extensively cross-examined Bowers 

about the statement he provided to the police. 

Furthermore, defendant did not present the PCR court with a certification 

or affidavit showing what such an investigation would have revealed, or how 

such an investigation would have led to a different result. As noted, defendant 

suggests that Bowers' additional statement "perhaps" would have provided him 

with exculpatory information, that would have led to his acquittal. This is pure 

speculation. 

Thus, the record supports the PCR court's finding that defendant failed to 

present a prima facie case with regard to trial counsel's alleged failure to 

investigate Bower's alleged second statement. 

C. Restitution.

 Defendant notes that at the initial sentencing, he was ordered to pay 

$19,046.88 in restitution. When resentenced after his direct appeal, the trial 
15 A-4280-19

court entered an amended JOC which again stated that defendant was required 

to pay $19,046.88 in restitution. 

Defendant notes that at the resentencing hearing, the judge did not 

mention restitution. He contends the transcript of the resentencing controls and 

the amended JOC erroneously ordered him to pay restitution. He argues that 

appellate counsel was deficient in failing to raise this issue in the appeal from 

the resentencing. 

Defendant's argument is entirely without merit. As noted, in our decision 

on the direct appeal, we remanded the matter for the imposition of an ordinary 

term, rather than an extended term. At the initial sentencing proceeding, 

defendant did not challenge the restitution, and he did not raise that issue on 

direct appeal. In addition, defendant did not challenge the restitution in the 

resentencing proceeding. 

Thus, appellate counsel was not deficient in failing to argue in the 

resentencing appeal that the JOC erroneously included a provision requiring 

defendant to pay restitution. Moreover, defendant failed to show that the result 

of the resentencing appeal would have been different if the issue had been raised. 

Therefore, the PCR court correctly found that defendant had not presented a 

prima facie case of ineffective assistance of counsel with regard to restitution. 
16 A-4280-19

III.

As stated previously, defendant has filed a pro se supplemental brief in 

which he raises several additional arguments. 

Defendant argues that during summation, the assistant prosecutor 

improperly stated that Detective Drew Lea had testified that Bowers admitted 

his guilt and implicated defendant in the Radio Shack robbery. Defendant also 

claims the assistant prosecutor also stated that Bowers had testified that he pled 

guilty and was sentenced to a sixty-year prison term for his involvement in the 

Middlesex County robberies. 

The record shows that Lea had interviewed Bowers at the police station 

after he was arrested. Lea testified that Bowers said defendant was with him 

when he committed the robbery. Moreover, Bowers pled guilty and admitted 

that he and defendant robbed the Radio Shack. Thus, the prosecutor's statement 

that Bowers had implicated defendant in the robbery was supported by the 

evidence. 

In addition, Bowers had testified that his plea agreement provided for a 

fifteen-year term of imprisonment, with an eighty-five percent period of parole 

ineligibility. In his summation, the prosecutor noted that Bowers could be 

sentenced to fifteen years for his involvement in the Radio Shack robbery, and 
17 A-4280-19

up to sixty years for charges in Middlesex County. Therefore, the prosecutor's 

remarks regarding Bowers' sentencing exposure were proper. 

Defendant also argues that the assistant prosecutor improperly vouched 

for Bowers' credibility by stating he had an incentive to testify truthfully. The 

prosecutor argued that Bowers was a credible witness, and his argument was 

based entirely on the evidence presented at trial. The assistant prosecutor did 

not improperly vouch for Bowers' credibility. 

We have considered defendant's other arguments, including his contention 

that his trial counsel was deficient for failing to seek dismissal of the indictment 

on the ground that the charges were "duplicitous," and his contention that his

convictions should be reversed due to cumulative error. Defendant's arguments 

lack sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). 

Affirmed.