STATE OF NEW JERSEY VS. EDUARDO LAGO (11-04-0450, UNION COUNTY AND STATEWIDE) ( 2021 )

NOT FOR PUBLICATION WITHOUT THE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-3394-18T1
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
EDUARDO LAGO, a/k/a
CHULEY EDDIE, EDGARDO
LAGO, EDUARDO L. LAGO,
and EDUARDO LAGOS,
Defendant-Appellant.
__________________________
Submitted November 18, 2020 – Decided January 5, 2021
Before Judges Vernoia and Enright.
On appeal from the Superior Court of New Jersey, Law
Division, Union County, Indictment No. 11-04-0450.
Joseph E. Krakora, Public Defender, attorney for
appellant (John J. Bannan, Designated Counsel, on the
brief).
Lyndsay V. Ruotolo, Acting Union County Prosecutor,
attorney for respondent (Michele C. Buckley, Special
Deputy Attorney General/Acting Assistant Prosecutor,
of counsel and on the brief).
PER CURIAM
Defendant Eduardo Lago appeals from a February 12, 2019 denial of his
petition for post-conviction relief (PCR) without an evidentiary hearing. We
affirm, substantially for the reasons set forth in the well-reasoned opinion of
Judge Regina Caulfield. We add the following remarks.
Yessina Feliciano was murdered early in the morning of November 14,
2010, while at the home of her sister, Gloria Francisco. The victim and her sister
answered the door at Francisco's home when the doorbell rang. They were
confronted by three men, and Francisco immediately recognized defendant as
one of the men. She saw defendant lift his arms with something in his hands,
and heard a single gunshot before the three men fled. Feliciano died at the scene
from a gunshot wound.
Following a jury trial before Judge Caulfield, defendant was convicted of
first-degree knowing or purposeful murder, N.J.S.A. 2C:11-3(a) or (b) (count
one); second-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(b)
(count two); and second-degree possession of a weapon for an unlawful purpose,
N.J.S.A. 2C:39-4(a) (count three).
After the conclusion of trial, defense counsel reportedly suffered from
mental health issues and was unavailable to appear with defendant on the
A-3394-18T1
2
original sentencing date. Accordingly, Judge Caulfield postponed defendant's
sentencing. Successor counsel appeared on the adjourned sentencing date, and
argued against consecutive sentences for counts one and two, as well as the
merger of counts one and three. Further, he requested that defendant serve the
mandatory minimum sentence for murder. Judge Caulfield merged count three
into count one and imposed a forty-year prison term, subject to the No Early
Release Act, N.J.S.A. 2C:43-7.2. Additionally, the judge sentenced defendant
to a concurrent seven-year sentence term, with a three-year parole disqualifier,
on count two. We affirmed defendant's convictions on his direct appeal. State
v. Lago, No. A-2321-14 (App. Div. Aug. 1, 2017) (slip op. at 25). The Supreme
Court denied defendant's petition for certification in January 2018. State v.
Lago, 232 N.J. 145 (2017).
Defendant filed a pro se petition for PCR, which was amended in October
2018 by assigned counsel, who claimed defendant's trial, sentencing, and
appellate counsel were ineffective. After Judge Caulfield heard oral argument
on the petition, she issued a comprehensive written decision on February 12,
2019, denying defendant's request for PCR relief.
On appeal, defendant raises the following arguments:
A-3394-18T1
3
POINT I
BECAUSE DEFENDANT RECEIVED
INEFFECTIVE ASSISTANCE OF COUNSEL, THE
PCR COURT ERRED IN DENYING DEFENDANT'S
PETITION FOR PCR.
(A) Legal Standards Governing Applications For
[PCR].
(B) Trial Counsel was Ineffective When He Failed to
Properly Prepare for this Case Pre-trial by Failing to
Investigate the Case and Failing to Prepare and Litigate
this Case During Trial and Through to Sentencing.
POINT II
BECAUSE THERE ARE GENUINE ISSUES OF
MATERIAL FACT IN DISPUTE, THE PCR COURT
ERRED IN DENYING AN EVIDENTIARY
HEARING.
(A) Legal Standards Governing [PCR] Evidentiary
Hearings.
(B) Petitioner is Entitled to an Evidentiary Hearing.
It is well established that PCR proceedings are not a substitute for a direct
appeal. R. 3:22-3; State v. Afanador, 151 N.J. 41, 50 (1997). Thus, defendant
is barred from raising new issues in his PCR appeal which should have been
raised on direct appeal. R. 3:22-4(a). Moreover, to the extent defendant raises
A-3394-18T1
4
issues which we previously addressed in his direct appeal, he is barred from
relitigating those issues. R. 3:22-5.
To establish a claim of ineffective assistance of counsel, a defendant must
satisfy a two-part test: (1) "counsel made errors so serious that counsel was not
functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment,"
and (2) "the deficient performance prejudiced the defense." Strickland v.
Washington, 466 U.S. 668, 687 (1984); accord State v. Fritz, 105 N.J. 42, 58-59
(adopting the Strickland test in New Jersey). The defendant must establish "a
reasonable probability that, but for counsel's unprofessional errors, the result of
the proceeding would have been different." Strickland, 466 U.S. at 694. The
defendant must affirmatively prove prejudice to the defense. Ibid.Rule 3:22-10(b) provides that a defendant is only entitled to an evidentiary
hearing on a PCR petition if he establishes a prima facie case in support of PCR.
To establish a prima facie case, a defendant must demonstrate "the reasonable
likelihood of succeeding under the test set forth in Strickland[.]" State v.
Preciose, 129 N.J. 451, 463 (1992). Moreover, there must be "material issues
of disputed fact that cannot be resolved by reference to the existing record," and
the court must determine that "an evidentiary hearing is necessary to resolve the
A-3394-18T1
5
claims for relief." State v. Porter, 216 N.J. 343, 354 (2013) (quoting Rule 3:22-
10(b)).
When determining whether to grant an evidentiary hearing, the PCR court
must consider the facts in the light most favorable to the defendant. Preciose,
129 N.J. at 462-63. "If the court perceives that holding an evidentiary hearing
will not aid the court's analysis of whether the defendant is entitled to [PCR], or
that the defendant's allegations are too vague, conclusory, or speculative to
warrant an evidentiary hearing, then an evidentiary hearing need not be granted."
State v. Marshall, 148 N.J. 89, 158 (1997) (citations omitted). The denial of an
evidentiary hearing for a PCR petition is reviewed for an abuse of discretion.
State v. Brewster, 429 N.J. Super. 387, 401 (App. Div. 2013) (citing Marshall,
148 N.J. at 157-58).
Judge Caulfield's opinion reflects her thorough analysis of the issues
raised by defendant, so we need only highlight some of her findings to give
context to our decision.
In response to defendant's argument that trial counsel was ineffective for
failing to properly investigate and prepare for trial, the judge noted defendant
failed to produce affidavits or certifications from any witnesses who would have
supported his defense that he was not responsible for the victim's murder.
A-3394-18T1
6
Accordingly, the judge deemed the claim that counsel was deficient for failing
to conduct an adequate investigation "nothing more than a 'bald assertion.'"
Likewise, the judge found defendant's assertion that trial counsel was ineffective
for failing to investigate the criminal histories of the State's witnesses to be
"without merit." She observed, for example, that when defendant's trial counsel
commenced cross-examination of one particular witness, "defense counsel
brought [that witness's] pending robbery and burglary charges in Essex County
to the [c]ourt's attention. Counsel had been provided a copy of [the witness's]
criminal history . . . . [and] questioned [him] at length about the charges."
Judge Caulfield further determined "the trial record makes clear that
counsel developed a reasonable strategy, through his cross-examination of the
State's witnesses, that defendant may have been present at the scene but was not
the individual who fired the gun." The judge outlined how trial counsel
vigorously cross-examined several witnesses to challenge their credibility and
to lend credence to defendant's claim he was not the shooter.
Defendant also asserted his trial counsel's performance during a Gross1
hearing was ineffective. However, Judge Caulfield found this claim to be
"vague." Moreover, the judge determined defendant failed to establish
1
State v. Gross, 216 N.J. Super. 90 (App. Div. 1987) aff'd, 121 N.J. 1 (1990).
A-3394-18T1
7
"counsel's performance at such hearing was either deficient or that it prejudiced
the defense." She recalled that while trial counsel
expressed some uncertainty about how to proceed with
[one] witness, same is understandable given [that
witness's] vacillation . . . between remembering parts of
what he had told the police in his statement, and not
recalling other parts, and then a few days later, . . .
stating that he could not recall anything about the
statement. Counsel asked for a moment and then
proceeded with his questions.
The judge also confirmed defense counsel's initial uncertainty during the Gross
hearing did not constitute an error "so serious that [he] was not functioning as
the counsel guaranteed by the Sixth Amendment." State v. Pierre, 223 N.J. 560,
578 (2015), quoting Strickland, 466 U.S. at 687; State v. Nash, 212 N.J. 518,
542 (2013) (citation omitted). Similarly, Judge Caulfield rejected as "without
merit" defendant's argument that trial counsel was ineffective for failing to file
a Wade2 motion. Further, she disagreed trial counsel should have filed a motion
to suppress Francisco's identification of defendant. Noting defendant did not
allege suggestive identification procedures were utilized by law enforcement
and that there was "no issue" as to Francisco's ability to identify defendant, the
2
U.S. v. Wade, 388 U.S. 218 (1967).
A-3394-18T1
8
judge properly recognized, "[i]t is not ineffective assistance for an attorney to
fail to file a motion that lacks merit." State v. O'Neal, 190 N.J. 601, 619 (2007).
Regarding defendant's contention his trial attorney's mental health issues
caused him to be ineffective, Judge Caulfield found defendant failed to show
trial counsel's mental health issues were present before or during trial. Having
presided over the trial, the judge recalled "trial counsel conducted a focused
cross-examination of each witness, pointed out inconsistencies in their
testimony, attacked their credibility, and did everything he could to establish
that another individual had shot and killed the victim." Judge Caulfield added:
as the record makes clear, counsel provided clear,
direct, and coherent opening and closing statements,
appropriately cross-examined the State's witnesses
through the trial and lodged appropriate and often
successful objections during the direct examination of
the State's witnesses. In addition, the court notes that
at no point during the trial did the court make any
observations concerning trial counsel's alleged mental
health issues.
The judge concluded, "defendant's claims, without more, and with no
support in the trial record - do not establish that his trial attorney's representation
fell below an objective standard of reasonableness under the Strickland/Fritz
analysis." Consequently, the judge determined there was "no basis to order the
production of [trial counsel's] treatment records, if same even exist."
A-3394-18T1
9
Defendant also contends for the first time on appeal that trial counsel was
ineffective because he failed to argue defendant was intoxicated at the time of
the shooting and should have requested jury charges on intoxication. Defendant
claims "the intoxication defense would have dovetailed nicely with the rest of
the defense, because one can be intoxicated without being the shooter. It was
not trial strategy to forego the intoxication defense, and even if it was, this would
be an unsound strategy."
"Appellate review is not limitless. The jurisdiction of appellate courts
rightly is bounded by the proofs and objections critically explored on the record
before the trial court by the parties themselves." See State v. Robinson, 200 N.J.
1, 19 (2009); see also Zaman v. Felton, 219 N.J. 199, 226-27 (2014).
Accordingly, we need not address defendant's argument about trial counsel's
decision not to advance the theory that defendant was intoxicated at the time of
the murder.
If we were to consider this newly-minted intoxication argument, we do
not find it persuasive, as it is not tethered to any showing of prejudice under the
second Strickland prong. Moreover, we have long recognized trial strategy is
clearly within the presumptive discretion of competent trial counsel. See State
v. Coruzzi, 189 N.J. Super. 273, 321 (App. Div. 1983). Strategic decisions are
A-3394-18T1
10
presumed to fall "within the wide range of reasonable professional assistance[.]"
State v. Arthur, 184 N.J. 307, 318-19 (2005) (citations omitted). Upon review
of the record, we are satisfied any strategic decision made by trial counsel to
refrain from arguing there was evidence of defendant's intoxication at the time
of the murder was valid, particularly since defendant maintained he was not the
shooter. We further note that mere strategic miscalculations are insufficient to
warrant reversal. State v. Allegro, 193 N.J. 352, 367 (2008) ("As a general rule,
strategic miscalculations or trial mistakes are insufficient to warrant reversal
except in those rare instances where they are of such magnitude as to thwart the
fundamental guarantee of a fair trial.").
Defendant also contends that sentencing counsel was ineffective for
failing to present mitigating factors for the judge's consideration, such as his
youthful age at the time of the murder. We are satisfied Judge Caulfield properly
rejected this argument. The judge recalled that at sentencing, counsel argued
for a minimal aggregate sentence and asked her to apply mitigating factor three
(defendant acted under a strong provocation), N.J.S.A. 2C:44-1(b)(3). She
rejected mitigating factor three after reviewing her "copious notes" from the
trial, and added that "[t]here were no other mitigating factors that counsel could
reasonably have argued." Further, the judge noted, "[t]he fact that defendant
A-3394-18T1
11
was 17 at the time of the homicide is not a statutory mitigating factor, and was
a fact the court was well aware of." Accordingly, the judge determined
defendant "failed to establish a case of ineffective assistance of [sent encing]
counsel."
Additionally, defendant contends that both his trial and appellate counsel
were ineffective for failing to assert the factual basis for his murder charge was
insufficient to support a conviction. We agree with Judge Caulfield that this
argument lacks merit. As the judge aptly noted, the State's case against
defendant was strong. Indeed, it involved testimony from various witnesses,
including the eyewitness testimony of the victim's sister, "who knew defendant
well, recognized him on the morning of the shooting, and saw him raise an object
in his hand immediately before her sister was shot."
Although defendant is entitled to the effective assistance of trial and
appellate counsel, "counsel does not have a constitutional duty to raise every
non[-]frivolous 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, 754
(1983)); see also State v. Gaither, 396 N.J. Super. 508, 516 (App. Div. 2007)
(holding that appellate counsel is not "required to advance every claim insisted
upon by a client on appeal.").
A-3394-18T1
12
Absent an evidentiary hearing, our review of the factual inferences drawn
by the PCR court from the record is de novo. State v. Blake, 444 N.J. Super.
285, 294 (App. Div. 2016). Likewise, we review the legal conclusions of a PCR
court de novo. State v. Harris, 181 N.J. 391, 419 (2004) (citing Manalapan
Realty, LP v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995)).
Having carefully reviewed the record and conducted a de novo review, we
perceive no basis to disturb Judge Caulfield's well-supported finding that
defendant failed to establish the performance of trial, sentencing or appellate
counsel was deficient or that their alleged respective errors prejudiced him.
Accordingly, defendant was not entitled to an evidentiary hearing and his PCR
petition was properly denied.
To the extent we have not addressed defendant's arguments, we conclude
they are without sufficient merit to warrant discussion in a written opinion. R.
2:11-3(e)(2).
Affirmed.
A-3394-18T1
13