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

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). 

NOT FOR PUBLICATION WITHOUT THE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.

January 5, 2021
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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
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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:
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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 
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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 
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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. 
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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). 
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"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). 
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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."
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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 
11 A-3394-18T1

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 
12 A-3394-18T1

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 [sentencing] 

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."). 
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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.