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

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). 

NOT FOR PUBLICATION WITHOUT THE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.

December 16, 2019
2

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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); thirddegree 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. 
3

A-0233-18T4

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.
4

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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] presentence 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 Slater2and to withdraw as his attorney after 

2

 State v. Slater, 198 N.J. 145 (2009).
5

A-0233-18T4

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 
6

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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.
7

A-0233-18T4

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 
8

A-0233-18T4

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."
9

A-0233-18T4

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.
10 A-0233-18T4

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 
11 A-0233-18T4

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."). 
12 A-0233-18T4

2. DEFENSE COUNSEL FAILED TO 

DISCUSS AND MEET HIS CLIENT 

PRIOR TO HIS PLEA.

3. DEFENSE COUNSEL FAILED TO 

APPRISE THE COURT AT THE PRETRIAL/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, 
13 A-0233-18T4

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 twoprong 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 
14 A-0233-18T4

'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 
15 A-0233-18T4

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.