STATE OF NEW JERSEY VS. MICHAEL A. ASKINS (07-09-2234, MONMOUTH COUNTY AND STATEWIDE) (RECORD IMPOUNDED)

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE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-3879-17T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

MICHAEL A. ASKINS, a/k/a
MICHAEL A. ELLIS,

Defendant-Appellant.
______________________________

Submitted March 11, 2019 – Decided July 9, 2019

Before Judges Sabatino and Sumners.

On appeal from the Superior Court of New Jersey, Law
Division, Monmouth County, Indictment No. 07-09-
2234.

Joseph E. Krakora, Public Defender, attorney for
appellant (Monique D. Moyse, Designated Counsel, on
the brief).

Christopher J. Gramiccioni, Monmouth County
Prosecutor, attorney for respondent (Monica Lucinda
do Outeiro, Assistant Prosecutor, of counsel and on the
brief).
PER CURIAM

Defendant Michael Askins appeals the denial of his petition for post-

conviction relief (PCR) without an evidentiary hearing. Defendant pled guilty

to various sexual offenses for which he was sentenced to a ten-year prison term

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

the completion of his sentence, he was involuntarily committed to the Special

Treatment Unit (STU) as a sexually violent predator pursuant to the Sexually

Violent Predator Act, N.J.S.A. 30:4-27.24 to -27.38. He then filed a petition for

PCR alleging that his trial counsel was ineffective for failing to advise him that

he could be subject to civil commitment after serving his sentence. His petition

was denied without an evidentiary hearing. Because we conclude that the plea

judge fully explained to defendant that civil commitment was a possibility after

serving his sentence, we affirm substantially for the thoughtful reasons set forth

in PCR Judge Thomas F. Scully's oral decision.

I

This matter returns to us following our unpublished opinion, State v.

Askins, No. A-2594-09, (App. Div. July 5, 2012), where we reversed defendant's

conviction for sexual assault and other various offenses committed against five

women on five separate dates in Asbury Park because the trial court erred in

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denying his motion for severance based, in part, upon its finding that the separate

assaults were admissible at a single trial to bolster each victim's credibility. 1 We

also held that the court's ruling caused a cumulative impact of prejudicial errors

by repeatedly instructing the jury in the final charge that evidence of each assault

could be considered as proof of a "plan" under N.J.R.E. 404(b). We remanded

for retrial with instructions to the court: "(1) to reconsider defendant's severance

motion without taking into account whether a combined trial would bolster the

victims' credibility; and (2) regardless of the extent to which separate new trials

are ordered, to fashion appropriate Rule 404(b) jury instructions that omit any

reference to the 'plan' exception under that Rule."

At the first retrial for one of the victims, defendant was acquitted. Rather

than trying defendant on the remaining four victims, the State and defendant

reached a plea agreement to four counts of second-degree sexual assault, which

reduced his prison term exposure from forty or more years to a recommendation

of a ten-year NERA term, with concurrent ten-year sentences. Had defendant

gone to trial and been found guilty of first-degree aggravated sexual assault at

four separate trials, he would have faced a potential aggregate prison term of

1
In addition, the jury found defendant guilty of harassment as to the two
arresting enforcement officers, which we affirmed, but found him not guilty as
to an alleged sixth victim.
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eighty years. And since defendant would have jail credit of about eight years

under the plea agreement, he would be very close to completing the eighty-five

percent NERA parole ineligibility period.

In the Additional Questions for Certain Sexual Offenses (AQCSO) plea

form defendant executed, he circled "yes" in response to the question number 7,

which asked whether he understood that upon completion of his prison term, he

could "be civilly committed to another facility for up to life if the court finds,

after a hearing, that you are in need of involuntary civil commitment."

During his lengthy plea colloquy, Judge John R. Tassini confirmed with

defendant the customary responses that he: understood the nature of the plea;

reviewed and signed the plea forms; and was entering into the plea voluntarily,

had an opportunity to discuss the matter with his attorney and had no other

questions. Judge Tassini went through the plea forms in detail, which included

reading into the record defendant's response to question number 7

acknowledging that he could be civilly committed. After reciting the last

sentence in the introductory paragraph of the AQCSO plea form stating,

"Question 7 includes the offense of felony murder if the underlying crime is

sexual assault," the judge commented it was not pertinent to defendant, as

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defendant's offense was not felony murder. The judge also reviewed in detail

defendant's responses to supplemental forms for NERA and sexual offenses.

Defendant was later sentenced in accordance with the plea agreement by

another judge, and was given the aforementioned jail credit. He did not appeal

his conviction or sentence.

After defendant completed his sentence, the State transferred him to the

STU and successfully moved for an order of involuntary civil commitment. In

response, defendant filed for PCR, claiming that: counsel was ineffective for not

advising him that he could be subject to civil commitment; there was no factual

basis for his plea; and the court made no finding that he committed a sexually

violent act.2

Judge Scully denied PCR without an evidentiary hearing based upon the

well-known two-prong PCR standard articulated in Strickland v. Washington,

466 U.S. 668 (1984), and State v. Fritz, 105 N.J. 42, 58 (1987), as well as the

well-settled standard set forth in State v. Preciose, 129 N.J. 451, 462-463 (1992),

that an evidentiary hearing is only required when a prima facie case of

ineffective assistance of counsel is established. The judge explained in his oral

2
On appeal, defendant does not argue there was no finding he committed a
sexually violent act. In fact, the argument is without merit as sexual assault is
defined by statue as a sexually violent act. N.J.S.A. 30:4-27.26(a), (b).
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decision that it was clearly indicated in defendant's plea form and during his

plea colloquy that the possibility of civil commitment existed upon the

completion of his sentence. As "the alleged acts or omissions by defense counsel

[were] not professionally unreasonable" under Strickland's first prong, the judge

reasoned the "analysis under [the] second Strickland prong[, the prejudice

suffered by defendant, was] irrelevant." The judge found the plea colloquy

demonstrated "a sufficient factual basis supporting [defendant's] guilty plea."

Thus, the judge held "there was no reasonable probability that but for counsel's

errors[, defendant] would not have pled guilty and would have insisted on going

to trial; therefore, an evidentiary hearing need not be granted."

II

Before us, defendant argues in a single point:

[DEFENDANT] IS ENTITLED TO AN
EVIDENTIARY HEARING ON HIS CLAIM THAT
HIS TRIAL ATTORNEY RENDERED
INEFFECTIVE ASSISTANCE OF COUNSEL FOR
FAILING TO ADVISE HIM ADEQUATELY OF THE
CIVIL COMMITMENT CONSEQUENCES OF HIS
PLEA

In particular, defendant claims that he pled guilty because he expected to

be released after serving his ten-year NERA prison term based upon his

counsel's advice. He further asserts that when Judge Tassini made a comment

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that part of the AQCSO plea form pertaining to felony murder was not applicable

to his situation, he believed the judge meant that the offense he pled to did not

expose him to civil commitment.

We find no merit in defendant's argument, and affirm substantially based

on Judge Scully's legally sound oral decision that is well-supported by the

record. We add only the following comments.

In cases where the PCR judge does not conduct an evidentiary hearing,

we review the judge's legal and factual determinations de novo. State v.

Jackson, 454 N.J. Super. 284, 291 (App. Div. 2018) (citation omitted). A PCR

defendant faces the burden to establish the grounds for relief by a preponderance

of the credible evidence. State v. Goodwin, 173 N.J. 583, 593 (2002) (citations

omitted). To set aside a plea based on ineffective assistance of counsel, "a

defendant must show that (i) counsel's assistance was not 'within the range of

competence demanded of attorneys in criminal cases'; and (ii) 'that there is a

reasonable probability that, but for counsel's errors, [the defendant] would not

have pled guilty and would have insisted on going to trial.'" State v. Nuñez-

Valdéz, 200 N.J. 129, 139 (2009) (alteration in original) (quoting State v.

DiFrisco, 137 N.J. 434, 457 (1994)). In other words, "a [defendant] must

convince the court that a decision to reject the plea bargain would have been

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rational under the circumstances." State v. O'Donnell, 435 N.J. Super. 351, 371

(App. Div. 2014) (quoting Padilla v. Kentucky, 559 U.S. 356, 372 (2010)).

Applying these principles, we see no reason to disturb Judge Scully's

findings that defendant failed to present a prima facie case to set aside the plea

due to ineffective assistance of counsel. Defendant's bald allegation that counsel

did not advise him of the possible civil commitment repercussion of his plea

agreement is insufficient. State v. Cummings, 321 N.J. Super. 154, 170 (App.

Div. 1999). He failed to submit a certification or affidavit supporting his

assertion. See R. 3:22-10(c) ("Any factual assertion that provides the predicate

for a claim of relief must be made by an affidavit or certification pursuant to

Rule 1:4-4 and based upon personal knowledge of the declarant before the court

may grant an evidentiary hearing."). Further, if it was not intended that

defendant's plea would implicate the prospects of a civil commitment upon

completion of his sentence, the pertinent language about civil commitment

would have been stricken from the plea form and not addressed at his plea.

Consequently, the judge did not abuse his discretion in denying an evidentiary

hearing, as defendant failed to establish a prima facie basis for relief.

Affirmed.

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