STATE OF NEW JERSEY VS. ANDREW A. KRAMER (14-02-0158, GLOUCESTER COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE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-0233-18T4
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
ANDREW A. KRAMER, a/k/a
ANDREW D. KRAMER, and
ANDREW KRAEMER,
Defendant-Appellant.
___________________________
Submitted November 7, 2019 – Decided December 16, 2019
Before Judges Whipple and Gooden Brown.
On appeal from the Superior Court of New Jersey, Law
Division, Gloucester County, Indictment No. 14-02-
0158.
Joseph E. Krakora, Public Defender, attorney for
appellant (Angela Maione Costigan, Designated
Counsel, on the brief).
Charles A. Fiore, Gloucester County Prosecutor,
attorney for respondent (Dana R. Anton, Senior
Assistant Prosecutor, on the brief).
PER CURIAM
Defendant Andrew Kramer appeals from the July 30, 2018 Law Division
order denying his petition for post-conviction relief (PCR) without an
evidentiary hearing. We affirm.
We glean these facts from the record. On February 26, 2014, defendant
was charged in a seven-count indictment with first-degree robbery, N.J.S.A.
2C:15-1(a); fourth-degree aggravated assault, N.J.S.A. 2C:12-1(b)(4); third-
degree criminal restraint, N.J.S.A. 2C:13-2(a); second-degree possession of a
firearm for an unlawful purpose, N.J.S.A. 2C:39-4(a); second-degree unlawful
possession of a firearm, N.J.S.A. 2C:39-5(b); third-degree theft, N.J.S.A. 2C:20-
3(a); and third-degree terroristic threats, N.J.S.A. 2C:12-3(b). The charges
stemmed from a woman, whose granddaughter defendant had dated, accusing
defendant of tying her up in her home with rope, muzzling her with a bandana,
stealing her bank cards and car at gunpoint, and fleeing the scene in the car.
When he was apprehended, defendant admitted to the theft, but denied the
robbery or the use of a weapon, and attributed his actions to his drug addiction.
No gun was recovered, but the bandana used to gag the victim had defendant's
DNA.
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On January 30, 2015, defendant entered a negotiated guilty plea to the
armed robbery charge and was sentenced to ten years' imprisonment, subject to
an eighty-five percent period of parole ineligibility pursuant to the No Early
Release Act (NERA), N.J.S.A. 2C:43-7.2. In accordance with the terms of the
plea agreement, the remaining counts of the indictment were dismissed , and
defendant was sentenced to concurrent terms of imprisonment on two unrelated
indictments and an accusation. Defendant did not file a direct appeal. 1
However, his subsequent motion to reduce his sentence based on his history of
addiction at the time of the crime and his rehabilitation while incarcerated was
denied.
Defendant filed a timely PCR petition. In his supporting certification,
defendant asserted "[he] would have proceeded to trial rather than enter a guilty
plea" "[i]f not for the ineffectiveness of [his] trial counsel[.]" Defendant
certified that despite "inform[ing] [his] attorney that [he] did not wish to plead
to the robbery or weapons offenses [he] did not commit," his attorney "just
continually told [him] to plead [guilty.]" According to defendant, "[he] was
incarcerated for [585] days pending [trial,]" during which time his attorney "did
not come to see [him] in the jail," and "refused to discuss trial strategy with
1
Under the plea agreement, defendant agreed to waive his right to appeal.
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[him]." Additionally, defendant asserted he was undergoing "withdraw[a]l" and
"suffer[ing] with depression" at the time. Defendant averred "[he] felt that [he]
had no choice but to plead guilty" because "[he] was afraid to insult [his]
attorney on the record for fear that it would hurt [his] case, or further damage
his representation of [him]." According to defendant, "[he] did not trust [his
attorney] to represent [him] at trial[,]" and although he "asked for a new
attorney" and "advised the probation officer who interviewed [him] for [his] pre -
sentence report[,] . . . no one addressed [his] issues."
In his counseled brief, defendant argued his attorney was ineffective in
the pre-trial, plea, and sentencing phases of the proceedings by: 1) "failing to
prepare for the trial" and address the weaknesses in the State's case, including
the fact that a gun was never recovered and the victim was biased against him
because of the dating relationship with her granddaughter; 2) "failing to meet
with [defendant]" while he was incarcerated in order to "discuss trial strategy,"
defenses, and mitigating factors, including defendant's drug addiction, mental
health issues, and learning disabilities; and 3) failing to file a motion to
withdraw his guilty plea under Slater2 and to withdraw as his attorney after
2
State v. Slater, 198 N.J. 145 (2009).
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defendant indicated to the probation officer during his pre-sentence interview
that he was misled and misrepresented and wanted a different attorney.
Following oral argument, Judge Kevin T. Smith denied defendant's
petition. In a July 24, 2018 twenty-five page written opinion, the judge reviewed
the factual background, applied the applicable legal principles, and concluded
defendant failed to "establish[] a prima facie case that he was denied effective
assistance of counsel[,]" and failed to satisfy either prong of the two-part test
set forth in Strickland v. Washington, 466 U.S. 668, 687 (1984), and adopted by
our Supreme Court in State v. Fritz, 105 N.J. 42, 49-53 (1987). Additionally, in
rejecting defendant's request for an evidentiary hearing, the judge concluded
"[defendant] ha[d] not raised any arguments, provided any evidence, or claimed
evidence would come out during an evidentiary hearing which would rebut the
record."
As to the first Strickland prong, the judge found defendant made
"unsupported assertions" and assertions "which the record clearly
contradict[ed]." Specifically, the judge determined "[t]he record contradict[ed]
[defendant's] claim that trial counsel failed to meet with him, failed to discuss
strategy, and was not prepared to proceed to trial." Relying on defendant's plea
colloquy at the January 30, 2015 plea hearing, Judge Smith found defendant
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"affirmed under oath that trial counsel reviewed the plea agreement with him in
such detail that [defendant] understood."
Further, the judge explained:
[Defendant] stated that he had sufficient time to meet
with trial counsel and discuss the case, ask questions,
discuss the charges, discuss the discovery, and analyze
the strengths and weaknesses of the case. Most
significantly, [defendant] confirmed he was satisfied
with trial counsel's services. In addition to confirming
this under oath, [defendant] also signed or initialed
every page of his plea agreement, [3] including page five,
question twenty-four, which asks "are you satisfied
with the advice you received from your lawyer?" The
answer circled is "yes." In court, [defendant] was given
the opportunity to raise any of the issues he now
complains of. He also was free to not sign the plea deal.
Instead, he confirmed under oath that counsel did the
exact things [defendant] now claims did not happen.
In addressing defendant's specific contention that trial counsel did not
visit him in jail, Judge Smith acknowledged "the practical reality . . . that most
attorney-client meetings involving [public defender attorneys as here]
occur[red] in the courthouse." The judge also acknowledged trial counsel's
"obligation to discuss evidence, exposure, and strategy" with his client. The
3
During the plea colloquy, although defendant indicated "[he] had learning
disabilities growing up[,]" he acknowledged that he graduated from high school ,
and that his reading ability was sufficient that he understood the documents that
he read.
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judge explained that, "[w]hile ideally, trial counsel could have visited
[defendant] in jail to discuss the case," defendant "[did] not claim trial counsel
failed to meet with him at all." On the contrary, "by [defendant's] own sworn
testimony such discussions did occur." The judge therefore concluded that
"[t]rial counsel's failure to visit [defendant in] . . . jail [did] not amount to
deficient performance."
The judge also rejected defendant's contention that trial counsel "was not
prepared to proceed to trial." The judge explained that "trial counsel's filling
out both the pre-trial memorandum and plea agreement form at the pre-trial
conference" was "indicative of his preparedness, not lack thereof." According
to the judge, "[b]y filling out both documents, trial counsel gave [defendant] the
opportunity to proceed with either option." Additionally, the judge noted that
trial counsel also "demonstrated his preparedness during [the] plea colloquy"
when "[defendant] expressed hesitancy when asked to establish a factual basis
for the armed robbery[.]" The judge pointed out that when "[defendant]
continued to deny having [a] gun" for purposes of the factual basis, trial counsel
advised that he had filled out the pre-trial memorandum, . . . a necessary step to
placing the case on the trial list." According to the judge, "[b]y saying this, trial
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counsel indicated to the court that he was ready to proceed to trial if they could
not establish a factual basis for the plea." 4
Turning to the second Strickland prong, the judge determined defendant
"failed to make a prima facie case that but for counsel's errors[,] he would not
have pled guilty, and that the decision to reject the plea bargain would have been
rational under the circumstances." First, the judge found that "[defendant's]
conduct contradict[ed] his claim that he would have gone to trial." According
to the judge,
[w]hile [defendant] did express hesitancy about
admitting to having a gun during his plea colloquy, . . .
this was not due to a genuine claim of innocence or a
wavering desire to follow through with the plea.
Instead, this was due to a misunderstanding of whether
the weapons charges would be dismissed if [defendant]
admitted to having a gun. . . . During the lengthy
discussion with the court, [defendant] never indicated
that his hesitancy was in any way due to a desire to
proceed to trial or frustration with trial counsel's
services. Only now, after the fact, does [defendant]
claim he would have gone to trial.
4
The judge noted that, ultimately, after conferring with trial counsel, defendant
was able to establish a factual basis, and acknowledged that his prior denial "was
all due to a misunderstanding on his part" that "if he admitted to having the gun,
the State would have grounds to re-charge him with weapons offenses."
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Next, the judge found defendant "has not proved his decision to reject the
plea would have been rational under the circumstances." Recounting
defendant's potential penal exposure, the judge explained:
[Defendant] was facing a seven[-]count indictment
including a first degree armed robbery charge. On that
alone, [defendant] was facing a potential exposure of
[twenty] years imprisonment had he gone to trial. . . .
Additionally, [defendant] was charged with two
second[-]degree [weapons] charges . . . which each
exposed [him] to ten years imprisonment and were
subject to the Graves Act. . . . On top of that,
[defendant] had sentencing pending on three other
indictments.[5] Despite the lengthy exposure
[defendant] was facing, mandatory parole ineligibility,
and the real potential for consecutive sentences given
the other pending indictments, trial counsel managed to
negotiate a very favorable plea for [defendant].
Defendant's plea agreement had six of the seven counts
dismissed, gave [defendant] the minimum statutory
term allowable for a first[-]degree offense, which was
eight years less that the State's initial offer, and had this
term run concurrent with the three other indictments.
In evaluating "the evidence in [the] case[,]" the judge acknowledged that
the State's case was "certainly weakened" by the fact that "the firearm
[defendant] allegedly used was never recovered and his DNA was not found on
the rope allegedly used to bind [the victim]." However, the judge pointed out
that "had [defendant] gone to trial[,] [he] would have conceded guilt on some of
5
The judge was referring to the two unrelated indictments and one accusation.
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the charges[,]" by virtue of his admission that "he went to [the victim's]
residence, stole her purse, took her vehicle . . . and used her ATM cards to
purchase drugs." Further, there was physical evidence based on "a DNA
[l]aboratory [r]eport" identifying defendant's "DNA as the DNA found on the
bandana used to restrain [the victim,]" which "evidence contradicted
[defendant's] claim of partial innocence" and corroborated the victim's account.
The judge concluded that
considering [defendant's] potential exposure, the
potential for consecutive sentences on his other wholly
unrelated indictments, his proposed defense at trial, the
victim's identification of [defendant], and [defendant's]
DNA being found on the bandana, it would not have
been rational for [defendant] to reject the generous plea
agreement trial counsel successfully negotiated on his
behalf.
Judge Smith also rejected defendant's claim that based on defendant's
"criticism" of him during his pre-sentence interview, "trial counsel was
operating under a conflict of interest" and was "ineffective" by failing to "fil[e]
a Slater motion to withdraw [defendant's] plea and withdraw[] as counsel." The
judge explained:
[T]he court and trial counsel's conduct during
sentencing are indicative that no conflict of interest
existed. At sentencing, the trial court noted the
statement [defendant] made in the pre-sentence report.
In response, the court reminded [defendant] all that trial
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counsel had done for him and how trial counsel
negotiated him a generous plea. . . . That the trial court
did not inquire into [defendant's] complaint further, and
instead reiterated the job trial counsel did, suggests the
court did not find any issue with trial counsel's
representation. Also, despite [defendant's] comments
in the pre-sentence report[,] trial counsel continued to
advocate on [defendant's] behalf, such as contesting the
amount of restitution owed and advocating for
placement in a prison close to [defendant's] family.
Additionally, the judge determined "even had trial counsel filed a Slater motion,
the result would not have been different" because the Slater "factors weigh[ed]
against allowing [defendant] to withdraw his plea."6
On appeal, defendant raises the following points for our consideration:
I: THE LOWER COURT ERRED IN FAILING TO
FIND THAT DEFENSE COUNSEL WAS
INEFFECTIVE.
A. DEFICIENCY PRONG
1. IN THE PLEA PHASE, DEFENSE
COUNSEL FAILED TO CONSIDER
THAT NO GUN WAS EVER FOUND
AND THAT THERE WERE
SIGNIFICANT DISCREPANCIES IN
THE WITNESS STATEMENT.
6
See Slater, 198 N.J. at 157-58 (establishing four factors trial judges must
"consider and balance . . . in evaluating motions to withdraw a guilty plea[,]"
namely "(1) whether the defendant has asserted a colorable claim of innocence;
(2) the nature and strength of defendant's reasons for withdrawal; (3) the
existence of a plea bargain; and (4) whether withdrawal would result in unfair
prejudice to the State or unfair advantage to the accused.").
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2. DEFENSE COUNSEL FAILED TO
DISCUSS AND MEET HIS CLIENT
PRIOR TO HIS PLEA.
3. DEFENSE COUNSEL FAILED TO
APPRISE THE COURT AT THE PRE-
TRIAL/PLEA AND THE SENTENCING
PHASE THAT DEFENDANT WAS NOT
COMPETENT TO ENTER INTO A PLEA
AGREEMENT.
4. DEFENSE COUNSEL WAS NOT
PREPARED FOR TRIAL.
5. DEFENSE COUNSEL FAILED TO
FILE A MOTION TO WITHDRAW
DEFENDANT'S GUILTY PLEA.
6. DEFENSE COUNSEL FAILED TO
WITHDRAW.
B. PREJUDICE PRONG.
II. THE LOWER COURT ERRED IN FAILING TO
HOLD AN EVIDENTIARY HEARING.
Merely raising a claim for PCR does not entitle a defendant to an
evidentiary hearing. See State v. Cummings, 321 N.J. Super. 154, 170 (App.
Div. 1999). Rather, trial courts should grant evidentiary hearings only if the
defendant has presented a prima facie claim of ineffective assistance of counsel
(IAC), material issues of disputed fact lie outside the record, and resolution of
those issues necessitates a hearing. R. 3:22-10(b); State v. Porter, 216 N.J. 343,
A-0233-18T4
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355 (2013). A PCR court deciding whether to grant an evidentiary hearing
"should view the facts in the light most favorable to a defendant." State v.
Preciose, 129 N.J. 451, 463 (1992). However, "[a] court shall not grant an
evidentiary hearing" if "the defendant's allegations are too vague, conclusory or
speculative[.]" R. 3:22-10(e)(2).
In turn, we review under the abuse of discretion standard the PCR court's
determination to proceed without an evidentiary hearing. State v. Marshall, 148
N.J. 89, 157 (1997). We also typically review a PCR petition with "deference
to the trial court's factual findings . . . 'when supported by adequate, substantial
and credible evidence.'" State v. Harris, 181 N.J. 391, 415 (2004) (quoting Toll
Bros., Inc. v. Twp. of W. Windsor, 173 N.J. 502, 549 (2002)). However, where,
as here, "no evidentiary hearing has been held, we 'may exercise de novo review
over the factual inferences drawn from the documentary record by the [PCR
judge].'" State v. Reevey, 417 N.J. Super. 134, 146-47 (App. Div. 2010)
(quoting Harris, 181 N.J. at 421). We also review de novo the legal conclusions
of the PCR judge. Harris, 181 N.J. at 415-16 (citing Toll Bros., 173 N.J. at 549).
To establish a prima facie claim of IAC, defendant must satisfy the two-
prong Strickland test: he must show that (l) "counsel's performance was
deficient" and he "made errors so serious that counsel was not functioning as the
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'counsel' guaranteed . . . by the Sixth Amendment" to the United States
Constitution; and (2) "there is a reasonable probability that, but for counsel's
unprofessional errors, the result of the proceeding would have been different."
Strickland, 466 U.S. at 687, 694; see also Fritz, 105 N.J. at 52. A reasonable
probability is defined as "a probability sufficient to undermine confidence in the
outcome." Id. at 694.
Under the first Strickland prong, "counsel is strongly presumed to have
rendered adequate assistance and made all significant decisions in the exercise
of reasonable professional judgment." Strickland, 466 U.S. at 690. Adequate
assistance of counsel must be measured by a standard of "reasonable
competence." State v. Jack, 144 N.J. 240, 248 (1996) (quoting Fritz, 105 N.J.
at 53). "'Reasonable competence' does not require the best of attorneys[.]" State
v. Davis, 116 N.J. 341, 351 (1989). Under the second Strickland prong,
defendant must prove prejudice. Fritz, 105 N.J. at 52. In order to establish the
Strickland prejudice prong to set aside a guilty plea, "'a [defendant] must
convince the court that a decision to reject the plea bargain'" and "insist on going
to trial" would have been "rational under the circumstances." State v. Maldon,
422 N.J. Super. 475, 486 (App. Div. 2011) (quoting Padilla v. Kentucky, 559
U.S. 356, 372 (2010)). That determination should be "based on evidence, not
A-0233-18T4
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speculation." Ibid. Because there is a strong presumption that counsel "rendered
adequate assistance and made all significant decisions in the exercise of
reasonable professional judgment[,]" Strickland, 466 U.S. at 690, a defendant
"bears the burden of proving" both prongs of an IAC claim "by a preponderance
of the evidence." State v. Gaitan, 209 N.J. 339, 350 (2012).
Applying these standards, we affirm substantially for the reasons
expressed in Judge Smith's thoughtful and thorough written opinion. We have
considered all of defendant's contrary arguments in light of the record and
applicable legal principles, and conclude they are without sufficient merit to
warrant further discussion. R. 2:11-3(e)(2).
Affirmed.
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