NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ."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-3593-22
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
MICHAEL E. MITCHELL, a/k/a MICHAEL MITCHELL,
Defendant-Appellant. _________________________
Argued March 6, 2025 – Decided March 14, 2025
Before Judges Mawla and Walcott-Henderson.
On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 14-05- 0525.
Kayla Rowe, Designated Counsel, argued the cause for appellant (Jennifer Nicole Sellitti, Public Defender, attorney; Kayla Rowe, on the brief).
Elizabeth K. Gibbons, Assistant Prosecutor, argued the cause for respondent (Yolanda Ciccone, Middlesex County Prosecutor, attorney; Randolph E. Mershon III, Assistant Prosecutor, of counsel and on the brief). Appellant filed a pro se supplemental brief.
PER CURIAM
Defendant Michael Mitchell appeals from a May 19, 2023 order denying
his petition for post-conviction relief (PCR). We affirm.
Following a series of robberies at electronics stores in Edison and South
Brunswick on December 8 and 19, 2011, Edison police were conducting
surveillance near a T-Mobile store on Parsonage Road on January 12, 2012.
They observed a black Buick, operated by defendant, approach the store and two
males exit the vehicle, which then pulled into a driveway adjacent to the
building. Detective Frank Todd was in an unmarked vehicle and began
following the Buick, observing it back out of the parking spot, drive down the
street, and into the driveway of the T-Mobile. The detective observed the driver
on his cell phone and believed he was speaking with the men he had previously
dropped off, as they were engaged in a cell phone conversation as well.
Once defendant parked, he was arrested. The vehicle contained several
items, including: defendant's cell phone; paperwork associated with many other
cell phones; a Samsung T-Mobile phone; and a Nintendo DS3, an AT&T phone,
and Nikon Coolpix Camera, which were in their boxes. While Edison police
were arresting defendant, his co-conspirators—Emendo Bowers and Mack
A-3593-22 2 Mitchell1–robbed the T-Mobile store at gunpoint of cell phones, modems,
accessories, and $10,000 in cash.
A jury convicted defendant of two counts of first-degree armed robbery,
N.J.S.A. 2C:15-1; two counts of second-degree conspiracy to commit robbery,
N.J.S.A. 2C:5-2; three counts of third-degree theft by unlawful taking, N.J.S.A.
2C:20-3A; three counts of third-degree unlawful possession of weapon, N.J.S.A.
2C:39-5D; and two counts of second-degree possession of a weapon for an
unlawful purpose, N.J.S.A. 2C:39-4A. The trial court imposed an extended term
of life imprisonment without the possibility of parole for the first-degree
robbery, which ran consecutive to defendant's Somerset County sentence.
On appeal, we affirmed defendant's convictions and sentence. State v.
Mitchell, No. A-3259-15 (App. Div. Mar. 26, 2018). Defendant then filed his
PCR petition. Among the arguments he raised relevant to this appeal in his
counseled petition were that his trial counsel was ineffective for: failing to
request a third-party guilt charge; not calling Mitchell as an exculpatory witness;
failing to ask for a lesser-included charge of theft on the first-degree robbery;
not communicating a favorable plea offer to defendant; not consolidating the
1 Mack Mitchell is defendant's brother and shares a surname with defendant. Therefore, we refer to Mack Mitchell as Mitchell to differentiate him from defendant. A-3593-22 3 Middlesex and Somerset matters; and obtaining a global plea offer. The
counseled PCR petition also claimed appellate counsel was ineffective by not
arguing plain error for: the lack of an instruction on lesser-included offenses to
the robbery; the trial court's refusal to dismiss the indictment for insufficient
evidence; and the failure to present to exculpatory evidence to the grand jury .
Counsel sought an evidentiary hearing to resolve the material dispute in facts,
which were outside the record.
Defendant's pro se PCR petition also alleged trial counsel was ineffective
for: not seeking an instruction on a lesser-included offense and consolidation
of his cases; failing to object to the trial court's amendment of the indictment on
the robbery counts, which he claimed altered the degree of the crime; not moving
to dismiss the indictment after the State's presented perjured testimony to the
grand jury; not investigating two statements by Bowers, and cross-examining
him regarding inconsistencies between them; not seeking a cautionary
instruction when a detective testified regarding his perceptions from surveilling
defendant; and not objecting to a ten-day recess during jury deliberations.
Defendant asserted his counsel's cumulative errors deprived him of due process
and a fair trial.
A-3593-22 4 The PCR judge denied the petition in a written opinion. He rejected the
argument that trial counsel should have sought an instruction on third-party guilt
because the State never alleged defendant committed the crimes and based its
case on accomplice liability, and the jury was properly instructed accordingly.
Bowers and Mitchell provided identical affidavits, which claimed
defendant "did not participate [in,] nor have any knowledge of the robbery . . .
committed on [January 12, 2012] at the T-Mobile store located on . . . Parsonage
Road." The judge rejected defendant's claim Mitchell was an exculpatory
witness because defendant had given police a statement "that he did not know
the individuals [he] dropped off at the T-Mobile [s]tore, including his own
brother." Therefore, Mitchell's testimony would have contradicted what
defendant told police and contradicted Mitchell's own statement to police,
admitting defendant's involvement in the robberies. The judge also noted "the
State provided ample evidence [at trial], including text messages, proceeds from
the robberies, and a video of the three defendants together in McDonalds, acting
out a robbery and laughing, just moments before the . . . T-Mobile robbery."
The PCR judge rejected the assertions of PCR counsel and defendant's pro
se argument defense counsel was ineffective for not seeking to charge the jury
on a lesser-included offense for the robbery. The transcripts of the pre-trial
A-3593-22 5 charging conference revealed the matter was discussed and rejected by the
defense. The defense viewed the indictment as "all or nothing," meaning the
jury would either convict or acquit defendant of the robbery. Giving the jury
the option to convict on theft concerned the defense because "they may just settle
to give him that instead of finding him not guilty" on the robbery. The PCR
judge noted the trial judge nonetheless charged the jury on the lesser -included
offense over the defense's objection.
The PCR judge found there was no "rational basis" for the jury to convict
defendant on the lesser-included offense because "[t]he evidence that
[defendant] conspired with his co-defendants to commit armed robbery is
extensive. The facts that support the armed robbery . . . simply do not fit the
charge of theft . . . ." Moreover, "[t]he fact that trial counsel did not request the
lesser[-]included charge is simply an indication that trial counsel understood the
futility of such a request." For these reasons, the PCR judge also concluded
appellate counsel was not ineffective.
The prosecutor emailed defense counsel, stating he would consider
"another [ten years of imprisonment] on top of the [S]omerset charge," for which
defendant received twenty-five years, subject to the No Early Release Act
(NERA), N.J.S.A. 2C:43-7.2. The PCR judge found this was not evidence of
A-3593-22 6 ineffective assistance of counsel because it was not a formal offer. He reasoned
"[i]f the minutia[e] of each negotiation or communication between [p]rosecutor
and [d]efense [a]ttorney was considered a 'formal offer' that requires disclosure
to . . . defendant, effective . . . negotiation would cease." More importantly,
defendant turned down an offer of "a potential [thirty-]year concurrent
[sentence], which [was] essentially the same terms discussed in the email."
Similarly, the judge found defense counsel was not ineffective for failing
to consolidate the Middlesex and Somerset cases. Nothing in the record
suggested defendant "desired a global plea offer or [that] one would even be
offered by the State. Even if he had, [defendant] specifically declined a potential
[thirty]-year [c]oncurrent offer." The judge concluded this was a bald assertion
because "all indications are that any reasonable offer by the State would have
been rejected by" defendant.
The PCR judge rejected each of defendant's pro se claims. He found
defense counsel was not ineffective for failing to object to jury instructions
because the jury had the indictment, which stated the degree of each crime.
Defendant claimed the State presented false testimony to the grand jury
through a detective who showed the grand jury a video of the December 8 T-
Mobile store robbery and identified the individuals in the video. The judge
A-3593-22 7 rejected the argument defense counsel was ineffective for not raising this issue
because defense counsel argued the issue on her motion to dismiss. Moreover,
there was a superseding indictment, which did not include testimony identifying
the individuals in the December 8 T-Mobile robbery, and "[o]verwhelming
evidence was properly put forth before the grand jury resulting in the
indictment."
The judge also rejected defendant's pro se claim defense counsel did not
investigate statements made by Bowers. He found "[t]rial counsel thoroughly
cross-examined the inconsistencies between the statements made by Bowers
. . . and his trial testimony."
The ten-day break in jury deliberations was occasioned by the trial
schedule. The judge rejected this PCR claim because there was "no showing
that this break prejudiced [defendant] in any way."
The judge found trial counsel was not ineffective for failing to seek a
cautionary instruction when Detective Todd testified that he believed defendant
was on the telephone with co-defendants during the robberies. He found this
was a form of lay opinion testimony based on the detective's rational perception.
The judge concluded "trial counsel had a rational reason to not give these
instructions—she could have perceived these cautionary instructions as opinions
A-3593-22 8 . . . or could have viewed it strategically as to not cause pointless objection, or
perhaps viewed [it] . . . as trivial." Regardless, defendant was not prejudiced by
lack of a cautionary instruction.
The PCR judge rejected the notion there was cumulative error, which
warranted relief. The judge could not identify an error committed by trial
counsel, and "the specific examples cited by [defendant were] . . . nothing more
than [defendant's] complaint that trial counsel could have done things
differently." It was "baseless" to suggest defendant was convicted because his
counsel was ineffective because the State's evidence "was strong and the
convictions are well supported."
The judge rejected the arguments related to appellate counsel and the
dismissal of the indictment. He noted the judge who considered the issue pre-
trial found the Mitchell and Bowers affidavits were not "clearly exculpatory."
The affidavits were inconsistent with Detective Todd observing Mitchell and
Bowers exiting defendant's car. Defendant remained in the area throughout the
robberies. Both men gave police statements implicating defendant and did not
provide an explanation for retracting their statements. The affidavits were
identical in their language, typeface, and typographical errors, which suggested
"they were not prepared personally by each of the people making the retractions,
A-3593-22 9 but by someone else and submitted to . . . Mitchell and . . . Bowers for their
signature."
The PCR judge concurred with these findings. He further concluded the
affidavits lacked "any [i]ndicia[,] . . . reliability[,] or credibility[,]" and "were
properly excluded from the grand jury presentment." Therefore, appellant
counsel was not ineffective for not raising this issue on direct appeal.
The PCR judge denied defendant's petition without an evidentiary hearing
because he did not establish there were material issues of disputed facts outside
the record. Defendant "only put forth allegations [that] are vague, conclusory,
and speculative."
On appeal, defendant raises the following points in his counseled brief:
POINT I
TRIAL COUNSEL FAILED TO ASK THE TRIAL COURT FOR A THIRD-PARTY GUILT INSTRUCTION.
POINT II
TRIAL COUNSEL FAILED TO INVESTIGATE AND PRESENT . . . MITCHELL AS AN EXCULPATORY WITNESS.
POINT III
TRIAL COUNSEL FAILED TO COMMUNICATE A FAVORABLE PLEA OFFER.
A-3593-22 10 POINT IV
TRIAL COUNSEL ALLOWED THE SOMERSET AND MIDDLESEX CHARGES TO BE HANDLED BY THE RESPECTIVE PROSECUTOR'S OFFICES, DENYING [DEFENDANT] THE OPPORTUNITY TO NEGOTIATE A GLOBAL PLEA AGREEMENT.
POINT V
THE CUMULATIVE INEFFECTIVENESS IN THIS CASE PREJUDICED [DEFENDANT].
POINT VI
THE PCR COURT ERRED IN DENYING PCR, BECAUSE APPELLATE COUNSEL WAS INEFFECTIVE.
POINT VII[]
AT A MINIMUM, [DEFENDANT] WAS ENTITLED TO AN EVIDENTIARY HEARING TO RESOLVE A GENUINE ISSUE OF MATERIAL FACT.
Defendant raises the following points in his pro se brief:
[DEFENDANT] WAS DENIED HIS CONSTITUTIONAL RIGHT TO THE EFFECTIVE ASSISTANCE OF COUNSEL . . . AND BECAUSE HE WAS PREJUDICED THEREBY, THE COURT SHOULD GRANT HIS PETITION FOR [PCR]. IN THE ALTERNATIVE, BECAUSE [DEFENDANT] HAS PRESENTED . . . PRIMA FACIE PROOF[,] . . . THE COURT SHOULD GRANT . . . AN EVIDENTIARY HEARING.
A-3593-22 11 A. [Defendant] Received Ineffective Assistance of Counsel Because [Trial Counsel] Failed to Raise an Objection to the Trial Court's Amendment of the Indictment of the Robbery Counts Thereby Violating his Rights to the Presentment of the Indictment to the Grand Jurors.
B. [Trial Counsel] and/or Appellate Counsel Failed to Raise an Objection to the Jury Instructions Provided Ineffective Assistance of Counsel Because the Jurors were Precluded from Considering a lesser Included Offense of Second-Degree Robbery.
C. [Trial Counsel] and/or Appellate Counsel Provided Ineffective Assistance of Counsel by Failing to Adequately Argue a Motion to Dismiss the Indictment Because of Perjured Testimony and False Evidence Admitted by the State and Detective[s] . . . that [Misled] the Grand Jurors.
D. [Trial Counsel] was Ineffective for Failing to Investigate the Surrounding Facts of the Robberies Which Allowed the State to Bring in Inconsistent Statements of the Detectives[,] Which Lead to Defendant's Conviction.
E. [Trial Counsel] was Ineffective by Failing to Have the Court Issue a Cautionary Instruction as to Detective . . . Todd's Testimony.
F. [Trial Counsel] Provided Ineffective Assistance by Fail[ing] to Object to the Trial Court's Dispos[al] of the Jury for Ten Days During Jury Deliberations.
A-3593-22 12 G. [Trial Counsel] Provided Ineffective Assistance by Failing to Investigate . . . Statements Made by . . . Bowers.
CUMULATIVE ERROR DEPRIVED . . . DEFENDANT DUE PROCESS OF LAW AND A FAIR [TRIAL].
I.
We review the denial of PCR without an evidentiary hearing de novo.
State v. Jackson, 454 N.J. Super. 284, 291 (App. Div. 2018). To reverse a
conviction based on ineffective assistance of counsel, a defendant must
demonstrate that both: (1) "counsel's performance was deficient" and (2)
counsel's "errors were so serious as to deprive the defendant of a fair trial."
Strickland v. Washington, 466 U.S. 668, 687 (1984); see also State v. Fritz, 105
N.J. 42, 58 (1987) (adopting the two-part Strickland test). Under the first prong,
counsel's representation must be objectively unreasonable. State v. Pierre, 223
N.J. 560, 578 (2015). Under the second prong, a "reasonable probability [must
exist] that, but for counsel's unprofessional errors, the result of the proceeding
would have been different." Id. at 583 (quoting Strickland, 466 U.S. at 694).
The Strickland standard applies in the case of appellate counsel as well,
but "appellate counsel does not have a constitutional duty to raise every
A-3593-22 13 nonfrivolous issue requested by the defendant." State v. Morrison, 215 N.J.
Super. 540, 549 (App. Div. 1987) (citing Jones v. Barnes, 463 U.S. 745, 752-54
(1983)). Appellate counsel will not be found ineffective for failure to raise a
meritless issue or errors an appellate court would deem harmless. State v.
Echols, 199 N.J. 344, 361 (2009).
Pursuant to these principles, we affirm substantially for the reasons
expressed in the PCR judge's written opinion. We add the following comments.
II.
"If counsel thoroughly investigates law and facts, considering all possible
options, [their] trial strategy is 'virtually [unchallengeable].'" State v. Savage,
120 N.J. 594, 617-18 (1990) (quoting Strickland, 466 U.S. at 690-91). The
investigation process includes counsel's duty to make "reasonable investigations
or to make a reasonable decision that makes particular investigations
unnecessary." Ibid. Trial counsel's strategic choices are entitled to deference
and assessed for reasonableness, including their determination to perform a
limited investigation. State v. Petrozelli, 351 N.J. Super. 14, 22 (App. Div.
2002).
A defendant is not entitled to PCR relief if there is no "reasonable
probability that, but for counsel's unprofessional errors, the result of the
A-3593-22 14 proceeding would have been different." Strickland, 466 U.S. at 694. "[I]t is
difficult to establish ineffective assistance when counsel's overall performance
indicates active and capable advocacy." Harrington v. Richter, 562 U.S. 86, 111
(2011). "The quality of counsel's performance cannot be fairly assessed by
focusing on a handful of issues while ignoring the totality of counsel's
performance in the context of the State's evidence of defendant's guilt." State v.
Castagna, 187 N.J. 293, 314 (2006).
Like the PCR judge, we are as convinced that trial counsel's decision not
to call Mitchell or Bowers was sound. Calling them would have hurt rather than
helped the defense because their statements to police contradicted their
affidavits and did not overcome the weight of the evidence bearing on
defendant's guilt. For these reasons, appellate counsel's performance was also
not deficient.
III.
A.
"[A]s a general rule, defense counsel has the duty to communicate formal
offers from the prosecution . . . ." Missouri v. Frye, 566 U.S. 134, 145 (2012).
The duty entails advising a defendant of the consequences associated with
accepting and rejecting such offers. Padilla v. Kentucky, 559 U.S. 356, 374
A-3593-22 15 (2010). This includes "inform[ing] the defendant of the strengths and
weaknesses of the case against [them], as well as the alternative sentences to
which [they] will most likely be exposed." Purdy v. United States, 208 F.3d 41,
44-45 (2nd. Cir. 2000).
Defendant was already convicted of first-degree robbery in Somerset
County before his Middlesex arraignment. At the May 16, 2014 arraignment on
the Middlesex offenses, the State offered defendant twenty-five years subject to
NERA, which would run consecutive to the Somerset County sentence. This
offer was also reflected in the pre-trial memorandum defendant signed at the
arraignment. It was there, the judge advised defendant he was facing a
mandatory sentence of life without parole. He then asked defendant if he was
"willing to do a [thirty-year sentence] concurrent" with his Somerset sentence,
which the State also indicated it would accept, and he refused.
On May 30, 2014, defendant received a twenty-five-year sentence subject
to NERA in the Somerset case to run consecutive with his Middlesex conviction.
On June 3, 2014, the prosecutor in the Middlesex case emailed defense counsel
as follows: "No go on the [twenty-five]. If [defendant] were willing to take
another [ten] on top of the Somerset charge, I'd consider it." In other words, the
State would have accepted a global resolution of thirty years. This was the same
A-3593-22 16 offer the State extended at the arraignment, evidencing it would not take less,
which he previously refused.
It is obvious defendant was not amenable to a consolidated plea offer
when he declined a global resolution. We reject his assertion counsel was
ineffective because the offer was clearly communicated at the arraignment, and
there is no evidence the facts had changed such that he would have accepted it
when it was reiterated via email four days later.
B.
Rule 3:25A-1 states, "when a defendant has charges pending in more than
one county at any stage prior to sentencing, either [party] . . . may move before
the presiding judge of the criminal part in the county in which consolidation is
sought." By opting to proceed with a trial in Somerset prior to his arraignment
in Middlesex and then rejecting the plea offer in Middlesex, defendant
ostensibly negated the possibility of consolidation. Moreover, as the State
pointed out at oral argument, the facts in the Somerset case were different than
the Middlesex case, which also militated against consolidation. Defendant was
implicated in entering and robbing the store in the Somerset case, whereas in the
Middlesex robberies, he was not identified as one of the robbers inside the
stores.
A-3593-22 17 C.
None of the facts related to the plea negotiations or the consolidation issue
demonstrate a prima facie showing of ineffective assistance of counsel. The
PCR judge correctly declined to hold an evidentiary hearing on these issues.
IV.
"[I]ndictments are presumed valid and should be dismissed only upon the
clearest and plainest ground and only if palpably defective. . . . As long as an
indictment alleges all of the essential facts of the crime, the charge is deemed
sufficiently stated." State v. Schenkolewski, 301 N.J. Super. 115, 137 (App.
Div. 1997). The State must present "'some evidence' as to each element of its
prima facie case. The quantum of this evidence, though, need not be great."
Ibid. "[A] prosecutor enjoys broad discretion in presenting a matter to the grand
jury . . . ." State v. Smith, 269 N.J. Super. 86, 92 (App. Div. 1993).
Appellate counsel was not deficient for failing to argue there was alleged
perjury before the grand jury because there was no evidence to substantiate the
claim. More importantly, there was a plethora of evidence presented to the grand
jury beyond the detective's testimony supporting the indictment.
A-3593-22 18 V.
There is no evidence PCR relief was warranted because there was a ten-
day break in the deliberations. Rule 1:8-6(b) states: "[f]ollowing the instructing
of the jury . . . and during the course of deliberations, the court may, in its
discretion, . . . permit the dispersal of the jury for the night, for meals, and during
other authorized intermissions in the deliberations."
Deliberations began Wednesday, November 18, 2015, and continued the
following day. The following week was Thanksgiving week, which included
mandatory judicial college training that occurred Monday, November 23
through Wednesday, November 25. Thereafter, the court was closed for
Thanksgiving on Thursday and Friday, November 26 and 27. As a result, the
trial judge excused the jury until November 30. The record reflects that, no one,
jury members included, objected to the delay. Before the court recessed on
November 19, the trial judge reminded the jury of his early instruction not to
discuss the case or perform any research about it.
When deliberations resumed on November 30, after approximately ninety
minutes, the jury advised it had reached a verdict on four counts but hung on
fifteen other counts. The trial judge advised counsel he intended to instruct the
jury to continue with deliberations. Both sides agreed, and the judge instructed
A-3593-22 19 the jury accordingly. Approximately ninety minutes later, the jury advised it
was "moving along and deliberating to a verdict" but wanted to take lunch. The
jury continued deliberating until the end of the day and the judge instructed them
to return the following day.
On December 1, deliberations continued for approximately two hours and
the jury delivered its verdict. It acquitted defendant of robbery, conspiracy to
commit robbery, and possession of a weapon for unlawful purposes in relation
to the December 8, 2011 incident. It likewise acquitted him of the December 19
robbery. However, the jury convicted defendant of theft related to the December
8 incident, conspiracy to commit the December 19 robbery, theft, and possession
of a weapon for an unlawful purpose related to that incident. Regarding the
January 5, 2012 incident, the jury deadlocked on whether defendant was guilty
of robbery, conspiracy to commit the robbery, and possession of a weapon for
an unlawful purpose, but convicted him of theft. The jury convicted defendant
of all the offenses associated with the January 12 incident, namely: robbery,
conspiracy to commit robbery, theft by unlawful taking, and possession of a
weapon for an unlawful purpose.
None of these facts convince us the delay resulted in a prejudicial
outcome. We presume the jury followed the trial judge's instructions not to
A-3593-22 20 violate its oath when it dispersed for the Thanksgiving break. See State v. Burns,
192 N.J. 312, 335 (2007). And the fact that they returned, deadlocked, and then
delivered a mixed verdict, evidences they deliberated and were not impacted by
the break. For these reasons, trial counsel was not ineffective for failing to
object to the delay in deliberations, and we discern no error by the PCR judge
and no basis to reverse.
VI.
Finally, to the extent we have not addressed an issue raised in either
defendant's counseled or pro se briefs, it is because it lacks sufficient merit to
warrant discussion in a written opinion. R. 2:11-3(e)(2).
Affirmed.
A-3593-22 21