                                                                     FILED
                                                                Mar 05 2019, 12:23 pm

                                                                     CLERK
                                                                 Indiana Supreme Court
                                                                    Court of Appeals
                                                                      and Tax Court




                                IN THE

        Indiana Supreme Court
                  Supreme Court Case No. 19S-PC-128

                         Angelo Bobadilla,
                           Appellant (Petitioner),

                                    –v–

                           State of Indiana,
                           Appellee (Respondent).


              Argued: June 19, 2018 | Decided: March 5, 2019

                 Appeal from the Hamilton Superior Court,
                          No. 29D04-1612-PC-9318
                 The Honorable J. Richard Campbell, Judge.

         On Petition to Transfer from the Indiana Court of Appeals,
                          No. 29A02-1706-PC-1203



                          Opinion by Justice Goff
                Chief Justice Rush and Justice David concur.
Justice Massa dissents with separate opinion in which Justice Slaughter joins.
Goff, Justice.

    “Life changes in the instant. The ordinary instant.” 1 Perhaps nothing is
more ordinary in Indiana’s justice system than a guilty-plea hearing, but
these everyday proceedings undoubtedly alter peoples’ lives. Over three
years ago, Angelo Bobadilla entered an Indiana courtroom to plead guilty
to two low-level misdemeanors. But when the then-teenager exited the
courtroom, he didn’t know that his guilty plea made him a deportable
felon under federal immigration law.

   Bobadilla’s life changed the moment he pleaded guilty to stealing less
than $20 of merchandise from Walmart. Upon realizing his plea’s dire
implications, a desperate Bobadilla sought post-conviction relief, alleging
ineffective assistance of counsel: his attorney provided deficient
performance that prejudiced him. We agree.

   Today we hold that counsel rendered ineffective assistance to
Bobadilla. On the trial court’s standard advisement of rights form, counsel
affirmatively marked as “not applicable” the warning about potential
immigration consequences from a criminal conviction—without so much
as asking Bobadilla’s citizenship status. This mistake prejudiced Bobadilla
because the record shows a reasonable probability that, had he known his
plea’s full consequences, he would have rejected that plea bargain and
instead insisted on going to trial.


Factual and Procedural History
  On March 1, 2016, nineteen-year-old Angelo Bobadilla entered
Hamilton Superior Court 4 intending to plead guilty to two
misdemeanors. Eight months earlier, a Walmart loss prevention employee
detained Bobadilla on suspicion of shoplifting after seeing him conceal a
pack of underwear and a pack of t-shirts, then walk past all points of sale
without paying. Westfield police officer Joseph Hopkins responded to the




1   Joan Didion, THE YEAR OF MAGICAL THINKING p. 3 (2005).



Indiana Supreme Court | Case No. 19S-PC-128 | March 5, 2019         Page 2 of 23
store and arrested Bobadilla, who admitted taking “the merchandise in
question because he needed them.” Probable Cause Affidavit, State v.
Bobadilla, No. 29D04-1507-CM-6199 (Super. Ct. July 20, 2015). 2 During the
search-incident-to-arrest Officer Hopkins found in Bobadilla’s backpack a
small plastic bag containing marijuana, a pipe smelling of burnt
marijuana, and one Vicodin tablet, which Bobadilla admitted had not been
prescribed to him.

  After transporting Bobadilla to the Hamilton County Jail, Officer
Hopkins completed a Book-In Slip listing Bobadilla’s birthplace as
Cuernavaca, Mexico.

   The next day the State charged Bobadilla with four counts: Theft and
Possession of a Controlled Substance, both Class A Misdemeanors;
Possession of Marijuana, a Class B Misdemeanor; and Possession of
Paraphernalia, a Class C Misdemeanor. The State’s charging information
contained a partially redacted social security number. During discovery,
the State released these documents (the charging information, the
probable cause affidavit, and Book-In Slip) to Bobadilla’s counsel.

   Bobadilla had as trial counsel a criminal defense attorney with over
thirty years’ experience. Trial counsel negotiated a plea agreement
whereby Bobadilla agreed to plead guilty to two counts in exchange for
dismissal of the remaining counts, but he would receive the maximum
sentence allowed—albeit a completely suspended sentence.

   When Bobadilla arrived at the courthouse on March 1st for his guilty
plea hearing, his attorney presented him with the Hamilton County
Superior Court’s standard advisement of rights form, titled
“Misdemeanors and Level 6 Felony Advisement Form.” Appellant’s App.
Vol. II, pp. 115–16; Petitioner’s Ex. 1. Prior to handing the form to
Bobadilla to read and then sign, counsel identified certain advisements he
believed did not pertain to Bobadilla by marking them “N/A” for “not
applicable.” Appellant’s App. Vol. II, pp. 115–16; Petitioner’s Ex. 1; Tr. pp.




2   As noted infra page 5, the post-conviction court judicially noticed this document.



Indiana Supreme Court | Case No. 19S-PC-128 | March 5, 2019                              Page 3 of 23
5-7. Most notably—without first talking with Bobadilla—counsel marked
“N/A” next to the following advisement:


       If you are not a U.S. citizen, a criminal conviction may have
       immigration consequences, including deportation. You should
       discuss this possibility with your attorney because if you do
       plead guilty, it will result in a criminal conviction.


Appellant’s App. Vol. II, pp. 26, 116; Petitioner’s Ex. 1. What trial counsel
did not know was that Bobadilla was not a United States citizen, but a
“Dreamer” under the Department of Homeland Security’s Deferred
Action for Childhood Arrivals (DACA) program. Bobadilla read and
signed the form, pleaded guilty, and received the promised suspended
sentence—one year for A-Misdemeanor Theft and 180 days for B-
Misdemeanor Marijuana Possession. By all accounts, the guilty-plea
hearing went as expected—quickly and routinely. At the end, the court
wished Bobadilla good luck, Bobadilla thanked the judge, and he left the
courthouse.

   Bobadilla, however, soon learned his routine guilty plea posed a
serious problem for him. Following a probation violation, Bobadilla
consulted different legal counsel and learned his A-Misdemeanor Theft
conviction and its concomitant one-year sentence amounted to an
“aggravated felony” under federal immigration law, making him
deportable.3 Bobadilla immediately filed a verified petition for post-
conviction relief, alleging he received ineffective assistance of trial counsel
under Strickland v. Washington, 466 U.S. 668 (1984), because he was not
adequately advised of the consequences of his plea. Specifically, he argued




3“Any alien (including an alien crewman) in and admitted to the United States shall, upon the
order of the Attorney General, be removed if the alien is within one or more of the following
classes of deportable aliens: Any alien who is convicted of an aggravated felony at any time
after admission is deportable.” 8 U.S.C.A. § 1227(a)(2)(A)(iii) (West 2017).
    “The term ‘aggravated felony’ means—a theft offense (including receipt of stolen
property) or burglary offense for which the term of imprisonment [is] at least one year.” Id. §
1101(a)(43)(G).



Indiana Supreme Court | Case No. 19S-PC-128 | March 5, 2019                          Page 4 of 23
his trial attorney rendered deficient performance that prejudiced him by
failing to ascertain his citizenship status before marking “N/A” next to the
advisement of rights form’s paragraph regarding citizenship and
immigration status.

   Just one year after initially pleading guilty, on March 7, 2017, Bobadilla
returned to the same court for a hearing on his petition for post-conviction
relief. Trial counsel testified first and confirmed that he wrote “N/A” next
to the advisement on citizenship status without ever asking Bobadilla
about his citizenship or immigration status. He said he simply assumed
Bobadilla was a United States citizen and did not understand that
“Bobadilla” was a Hispanic name. Counsel testified he would not have
marked “N/A” had he known Bobadilla was not a U.S. citizen.

   Bobadilla testified next and corroborated that his trial attorney never
asked him about his citizenship status. Bobadilla said he understood
“N/A” to mean “not applicable.” He testified he read those paragraphs
marked “N/A”, but he relied on counsel’s advice that those paragraphs
did not apply to him and he did not ask about them. Bobadilla testified
that if the citizenship paragraph had not been marked “N/A”, he would
have reacted differently and “take[n] a different approach to that.” Tr. at
pp. 16–17.

   Bobadilla informed the court that his DACA status was at risk and he
was now deportable following his theft conviction. Bobadilla reported he
had not been contacted by Immigration and Customs Enforcement (ICE)
and he was not, at that moment, subject to imminent deportation. Before
resting his case, Bobadilla’s post-conviction counsel asked the court to
take judicial notice of the criminal court cause number file and the State
supported that motion.

   On April 17, 2017, the court issued an order denying Bobadilla post-
conviction relief. The court acknowledged that United States Supreme
Court precedent requires an attorney to inform the noncitizen criminal
defendant whether a guilty plea carries a risk of deportation. But the court
phrased the issue before it narrowly as “whether an attorney must first
affirmatively ascertain whether his client is a U.S. citizen in the absence of



Indiana Supreme Court | Case No. 19S-PC-128 | March 5, 2019         Page 5 of 23
any evidence that he is not, before the attorney would have to advise his
client of the risk of deportation.” Appellant’s App. Vol. II, p. 38.

   In its factual findings the postconviction court repeatedly noted that
Bobadilla spoke with no foreign accent and that he could read and
understand English. It further found “that the charging information and
the probable cause affidavit contain no information that would suggest
that [Bobadilla] was not a U.S. citizen.” Id. at 36. With these and other
facts, the court concluded that trial counsel did not render deficient
performance because he “did not know, and had no reason to suspect,
that [Bobadilla] was not a native-born citizen of the United States.” Id. at
40. Because the post-conviction court found no deficient performance, it
did not consider Strickland’s prejudice prong.

   Meanwhile, Bobadilla’s situation grew more precarious. On May 3,
2017, he was transferred from the Hamilton County Jail into ICE’s
custody. That same day, ICE processed him and issued a Notice of Intent
to Issue a Final Administrative Removal Order. With this turn of events, at
12 p.m. on Friday, May 12, 2017, Bobadilla filed with the post-conviction
court an emergency motion to correct error and a request for an expedited
hearing.

   Bobadilla attached to his motion the Book-In Slip listing Mexico as his
birthplace. He used this form, which the State released to trial counsel
during discovery, to argue that trial counsel had reason to know he was
not a U.S. citizen—contrary to the court’s conclusion. Bobadilla also
attached to the motion ICE’s removal order. The emergency motion
informed the court the order would become final on May 17, 2017, and
executable fourteen days after that, meaning Bobadilla could be removed
from the United States as soon as May 31, 2017. Citing information from
ICE’s FAQ webpage, the motion stated: “[a]fter removal from the U.S.
Bobadilla will have no effective immigration remedy . . . any favorable
decision on this motion or on appeal will likely be meaningless.” Id. at 46.
Without a hearing, and without explanation, the post-conviction court
denied Bobadilla’s motion the following Monday, May 15, 2017.

  Bobadilla was deported, and the record is silent on his current
whereabouts.


Indiana Supreme Court | Case No. 19S-PC-128 | March 5, 2019          Page 6 of 23
   Bobadilla’s appellate counsel nevertheless filed an appeal on his behalf.
A divided Court of Appeals affirmed the post-conviction court’s decision,
albeit on different legal grounds. Bobadilla v. State, 93 N.E.3d 783 (Ind. Ct.
App. 2018). Unlike the lower court, the Court of Appeals decided the
matter on Strickland’s prejudice prong. Id. at 786–87. The court noted “the
State concedes that counsel’s performance here may have been deficient,”
Id. at 786 n.5 (citing Appellee’s Br. pp. 11, 13), and so declined to address
whether the post-conviction court erred in finding no deficient
performance, id. The majority ultimately held that Bobadilla failed to
show that he was prejudiced by trial counsel’s failure to advise him that
his guilty plea carried the risk of deportation. Id. at 786. Chief Judge
Vaidik dissented, believing Bobadilla received deficient performance and
suffered prejudice because, had he been properly advised, he would have
rejected the plea agreement and gone to trial. Id. at 788–90.

   Bobadilla now petitions for transfer, which we grant, thereby vacating
the Court of Appeals opinion. Ind. Appellate Rule 58(A).


Standard of Review
   Post-conviction actions are civil proceedings, meaning the petitioner
(the prior criminal defendant) must prove his claims by a preponderance
of the evidence. Ind. Post-Conviction Rule 1(5); Wilkes v. State, 984 N.E.2d
1236, 1240 (Ind. 2013). If he fails to meet this burden and receives a denial
of post-conviction relief, then he proceeds from a negative judgment and
on appeal must prove “that the evidence, as a whole, unmistakably and
unerringly points to a conclusion contrary to the post-conviction court’s
decision.” Wilkes, 984 N.E.2d at 1240 (quoting Ben-Yisrayl v. State, 738
N.E.2d 253, 258 (Ind. 2000)). When reviewing the court’s order denying
relief, we will “not defer to the post-conviction court’s legal conclusions,”
and the “findings and judgment will be reversed only upon a showing of
clear error—that which leaves us with a definite and firm conviction that a
mistake has been made.” Humphrey v. State, 73 N.E.3d 677, 682 (Ind. 2017)
(quoting Ben-Yisrayl v. State, 729 N.E.2d 102, 106 (Ind. 2000)).




Indiana Supreme Court | Case No. 19S-PC-128 | March 5, 2019          Page 7 of 23
   Discussion and Decision
   The criminal defendant’s right to counsel is foundational to our
criminal justice system, giving it legitimacy and fairness. The Sixth
Amendment to the United States Constitution guarantees criminal
defendants the right to counsel and mandates “that ‘the right to counsel is
the right to the effective assistance of counsel.’” Strickland, 466 U.S. at 686
(quoting McMann v. Richardson, 397 U.S. 759, 771 n.14 (1970)). Criminal
defendants deserve—and the Constitution demands—assistance from a
competent attorney to help them through the justice system.

  When evaluating a defendant’s ineffective-assistance-of-counsel claim,
we apply the well-established, two-part Strickland test. Humphrey, 73
N.E.3d at 682. The defendant must prove: (1) counsel rendered deficient
performance, meaning counsel’s representation fell below an objective
standard of reasonableness as gauged by prevailing professional norms;
and (2) counsel’s deficient performance prejudiced the defendant, i.e., but
for counsel’s errors the result of the proceeding would have been
different. Ward v. State, 969 N.E.2d 46, 51 (Ind. 2012) (citing Strickland, 466




Indiana Supreme Court | Case No. 19S-PC-128 | March 5, 2019           Page 8 of 23
U.S. at 687).4 The Strickland standard is not limited to the trial or appellate
phases in criminal proceedings, but also applies when defendants allege
ineffective assistance during the guilty plea phase. Segura v. State, 749
N.E.2d 496, 500–01 (Ind. 2001). See also Padilla v. Kentucky, 559 U.S. 356, 373
(2010) (“[W]e have long recognized that the negotiation of a plea bargain
is a critical phase of litigation for purposes of the Sixth Amendment right
to effective assistance of counsel.”).

  Here Bobadilla alleges his trial counsel proved ineffective for failing to
advise him that his plea agreement made him subject to deportation.
Specifically, he alleges that counsel’s failure to advise him on possible
deportation and affirmatively marking “N/A” next to the citizenship
status advisement amounted to deficient performance. He also contends
that his attorney’s deficient performance prejudiced him.

   Bobadilla’s ineffective-assistance-of-counsel arguments, arising from
his situation of having unwittingly made himself a deportable felon by
reason of a misdemeanor guilty plea, take us into an area of law that has




4 Of course, there are extreme circumstances where courts may presume ineffectiveness,
thereby removing the case from Strickland’s two-part analysis. Ward, 969 N.E.2d at 77 (“[I]n
certain limited circumstances of extreme magnitude, prejudice to a criminal defendant is so
likely that an inquiry into counsel’s actual performance is not required.”) (quoting United
States v. Cronic, 466 U.S. 648, 658–62 (1984)). In other words, if an attorney’s performance
effectively amounted to a complete denial of counsel at a critical stage of the proceedings,
courts can presume deficiency and prejudice. Cronic, 466 U.S. at 658–59. But Cronic is rarely
applied since it imposes “an extremely heavy burden” on defendants. Ward, 969 N.E.2d at 77.
Here Bobadilla’s appellate counsel nearly broached a Cronic argument during rebuttal at oral
argument, saying:
        Sometimes the prejudice is inherent in the incompetence. You don’t
        necessarily need in every case to show some other type of prejudice. . . . If
        our trial counsel does not know enough about our immigration status to
        inform us correctly to make a knowing, intelligent, and voluntary decision to
        plead guilty, we have suffered prejudice. Plain and simple. It’s inherent in
        that specific type of incompetence.
Oral Argument 31:26–32:03. But, unfortunately, counsel did not flesh-out a Cronic theory or
cite to authority in that presentation. Nor did counsel brief Cronic before this Court or the
Court of Appeals to give the State a chance to respond. Since neither party adequately raised
Cronic, waiver principles and judicial restraint prevent us from considering it now. See St. John
v. State, 523 N.E.2d 1353, 1355 (Ind. 1988).



Indiana Supreme Court | Case No. 19S-PC-128 | March 5, 2019                          Page 9 of 23
seen recent changes. We therefore find it beneficial to parse the applicable
law and update our jurisprudence where necessary, looking first at
Strickland’s deficiency prong and then its prejudice prong.


I. Attorneys render constitutionally deficient
   performance if they do not advise clients about
   potential immigration consequences from pleading
   guilty.
   Like a trial, the guilty-plea process presents dangers for attorneys to
commit errors. One potential pitfall is incorrectly advising clients as to
consequences of pleading guilty, particularly immigration consequences.
See Padilla, 559 U.S. at 373–74 (likening the severity of deportation to
banishment or exile).

   In Padilla, the United States Supreme Court considered whether counsel
provided ineffective assistance by giving inaccurate advice to a client
about immigration consequences resulting from a criminal conviction.
There counsel failed to tell her client, a native of Honduras, that he could
be deported as a consequence of pleading guilty to drug charges, and
even told him he did not need to worry about his immigration status. Id.
at 359. Like here, the client sought post-conviction relief when he realized
he faced deportation.

   Even eight years ago the high Court observed: “[C]hanges to our
immigration law have dramatically raised the stakes of a noncitizen’s
criminal conviction.” Id. at 364. It explained: “The ‘drastic measure’ of
deportation or removal . . . is now virtually inevitable for a vast number of
noncitizens convicted of crimes.” Id. at 360 (internal citation omitted). And
the Court went on to say: “The importance of accurate legal advice for
non-citizens accused of crimes has never been more important.” Id. at 364.
Because the stakes for noncitizen criminal defendants remain high,
accurate legal advice about immigration consequences is just as important
today.




Indiana Supreme Court | Case No. 19S-PC-128 | March 5, 2019        Page 10 of 23
   The Padilla Court first determined that, even though immigration
consequences are technically collateral and not direct consequences of a
conviction, “advice regarding deportation” falls within “the ambit of the
Sixth Amendment right to counsel.” Id. at 366. Accordingly, a claim like
Padilla’s—that counsel’s failure to advise on immigration consequences
amounted to ineffective assistance—was subject to Strickland’s two-part
analysis.

   During its deficient-performance evaluation, the Court opined: “It is
quintessentially the duty of counsel to provide her client with available
advice about an issue like deportation, and the failure to do so ‘clearly
satisfies the first prong of the Strickland analysis.’” Id. at 371 (citation
omitted). The Court ultimately held that counsel rendered deficient
performance by providing erroneous advice (or even no advice) about a
client’s immigration status. Id. at 373–74. Speaking in absolute terms, the
Supreme Court said: “[C]ounsel must inform her client whether his plea
carries a risk of deportation.” Id. at 374 (emphasis added). The Padilla
Court did not reach Strickland’s prejudice prong but remanded the case for
that inquiry. Id. at 374–75.


   A. Padilla affects Indiana’s jurisprudence.
   Padilla undoubtedly prompted a sea change in Sixth Amendment
ineffective assistance of counsel jurisprudence everywhere. But examining
Indiana precedent, we see that Padilla produced smaller waves here
because our state’s case law already contained Padilla-esque requirements.

   Remarkably, our Court of Appeals presaged Padilla sixteen years
earlier. Considering a factually similar ineffective assistance claim—i.e.,
noncitizen criminal defendant collaterally attacking his guilty plea by
claiming his attorney failed to advise him of deportation consequences—
the Court of Appeals said an attorney’s “’guiding hand’ would be a poor
one indeed if it did not point out to the accused the deportation
consequences of a guilty plea.” Williams v. State, 641 N.E.2d 44, 49 (Ind. Ct.
App. 1994). Relying upon the Indiana Constitution, particularly Article I,
Section 13’s effective-assistance-of-counsel guarantee to criminal
defendants, the court concluded: “It is our firm belief that the consequence


Indiana Supreme Court | Case No. 19S-PC-128 | March 5, 2019          Page 11 of 23
of deportation, whether labelled collateral or not, is of sufficient
seriousness that it constitutes ineffective assistance for an attorney to fail
to advise a noncitizen defendant of the deportation consequences of a
guilty plea.” Id. Though lying fallow here, the Indiana Constitution has
mandated that attorneys advise clients of the immigration consequences
of a criminal conviction since 1994.

   Several years later in Segura v. State, this Court agreed with the Williams
Court, but not in absolute terms. 749 N.E.2d at 500. Defendant Segura
brought an ineffective-assistance-of-counsel claim under the Sixth
Amendment rather than Article I, Section 13. He sought post-conviction
relief from his guilty plea and subsequent ten-year sentence for dealing in
cocaine because his trial counsel never told him that deportation could be
a consequence of pleading guilty. Id. at 499. We, therefore, considered
“whether [a defendant’s] trial counsel was ineffective for failing to inform
him of the possibility of deportation if he pleaded guilty.” Id. at 498. In
applying Strickland’s deficiency prong, we recognized that ineffective-
assistance-of-counsel claims are “fact sensitive and turn[] on a number of
factors.” Id. at 500. We concluded that “the failure to advise of the
consequences of deportation can, under some circumstances, constitute
deficient performance.” Id. at 500 (emphasis added).

   Segura predated Padilla by nine years and the holdings roughly align,
although Padilla spoke in absolute terms while Segura used relative terms.
To the extent Segura left the door open for courts to decide when failing to
advise a defendant on possible deportation or giving erroneous
deportation advice amounts to deficient performance, Padilla seemingly
closed that door. We are now bound by Padilla—attorneys must advise
their clients of immigration consequences from a guilty plea; otherwise,
they render constitutionally deficient performance.

   But we observe that Padilla proceeds on the supposition that counsel
knows his client is not a citizen. See Padilla, 559 U.S. at 370 (rejecting the
government’s affirmative-misadvice argument by stating that “[w]hen
attorneys know that their clients face possible exile from this country and
separation from their families, they should not be encouraged to say
nothing at all”); id. at 387 (Alito, J., concurring) (“When a criminal defense



Indiana Supreme Court | Case No. 19S-PC-128 | March 5, 2019          Page 12 of 23
attorney is aware that a client is an alien, the attorney should advise the
client that a criminal conviction may have adverse consequences under
the immigration laws . . . .”). And, so, under Padilla, if counsel knows a
client is a non-citizen, then “counsel must inform [the] client whether [the]
plea carries a risk of deportation.” Id. at 374; see id. at 372 (“For at least the
past 15 years, professional norms have generally imposed an obligation on
counsel to provide advice on the deportation consequences of a client’s
plea.”). Given Padilla’s imperative mandate, the best practice is to ask
citizenship status of every defendant—no matter name, birthplace,
appearance, accent, racial classification, or language—and never presume
citizenship.

    Ultimately, though, Bobadilla’s counsel did not know his client’s
citizenship status (but simply assumed it); thus, this case is not completely
controlled by Padilla. So, we are left with the following question: When
counsel is unaware of a client’s citizenship status, under what
circumstances will counsel’s failure to inform a client of deportation
consequences be deficient performance?


   B. Even when counsel is unaware of a client’s citizenship
      status, unilaterally marking “N/A” next to a standard
      advisement on immigration consequences amounts to
      deficient performance.
   Even though failing to ask a client’s citizenship status may not be per se
deficient, it certainly was here under these facts. The standard advisement
of rights form that Bobadilla’s attorney gave him contained a Padilla
warning. And since Bobadilla had counsel, his attorney also had to read
and sign the form. This means the Hamilton County Superior Court’s own
form required him to inquire into Bobadilla’s citizenship status. He could
not competently complete and sign the form without doing so.

   Because the Padilla warning on the advisement of rights form required
that counsel inquire about citizenship status to render competent
performance, he could satisfy the requirement in two ways: either by
explicit inquiry (asking the client) or implicit inquiry (letting the client



Indiana Supreme Court | Case No. 19S-PC-128 | March 5, 2019            Page 13 of 23
read and mark the advisement). At the very least, counsel need only read
the form to his client or stand by patiently while the client reads the
unmarked form to satisfy Padilla’s mandate. See Padilla, 559 U.S. at 369
(acknowledging immigration law’s complexity and explaining that when
the law is unclear on whether a client faces deportation, “a criminal
defense attorney need do no more than advise a noncitizen client that
pending criminal charges may carry a risk of adverse immigration
consequences”). Reading the form puts the client on notice that a guilty
plea amounts to a criminal conviction that might have immigration
consequences and the client should consult an attorney.

   Here Bobadilla’s attorney did not simply fail to read the form to his
client or wait patiently for Bobadilla to read an unmarked form, it is
worse. He made the affirmative decision that the warning was “not
applicable” to Bobadilla—without so much as asking him, even when the
record contained clues that young Bobadilla might not be a U.S. citizen.
Recall, the State served trial counsel with discovery on September 3, 2015,
that included the Book-In Slip listing Bobadilla’s birthplace as
“Cuernavaca, Mexico”—a document the court judicially noticed. Yes, as
the postconviction court noted, the record included a partially redacted
Social Security number, but the information about his birthplace at the
very least suggested that Bobadilla might not be a U.S. citizen and should
have halted counsel from unilaterally marking “N/A” next to the
citizenship advisement.

   With that said, prudence requires that we briefly address other “facts”
the post-conviction court relied upon in considering Strickland’s deficient
performance prong—specifically, Bobadilla’s name, accent, familiarity
with U.S. customs, and ability to read and speak English. Since we live in
a diverse country, these simplistic observations lose probative value in a
citizenship inquiry. Yet the court credited them as useful facts, so we
acknowledge them but in no way endorse them as proper criteria for
gauging a person’s citizenship status. The best practice is to never assume
a client’s citizenship status: always ask. In this case, that fact is made self-
evident by the warning’s inclusion in the advisement of rights form.
Hamilton County Superior Court’s standard advisement form alone



Indiana Supreme Court | Case No. 19S-PC-128 | March 5, 2019           Page 14 of 23
demanded an inquiry into Bobadilla’s citizenship status, yet Bobadilla’s
counsel affirmatively marked that provision as “not applicable.”

   Based on all the facts, we cannot endorse the post-conviction court’s
clearly erroneous findings or its conclusion that counsel had “no reason to
suspect” Bobadilla was not a United States citizen. We hold that
Bobadilla’s counsel rendered constitutionally deficient performance under
Strickland and Padilla by independently marking “N/A”, without first
inquiring into his client’s citizenship status. The post-conviction court
clearly erred in finding otherwise.


II. To prove prejudice from counsel’s erroneous or
    nonexistent advice about immigration
    consequences during the plea stage, a defendant
    must show a reasonable probability that he would
    have rejected the plea and insisted on going to
    trial.
   Although we conclude Bobadilla’s trial counsel provided deficient
performance, the analysis does not end there. We must address
Strickland’s second prong—did counsel’s mistake prejudice Bobadilla? To
answer that question, we look to two United States Supreme Court cases.
First, we discuss Hill v. Lockhart, which set forth the prejudice standard for
cases where a defendant claims his attorney’s deficient performance
caused him to accept a guilty plea. We then examine the recently decided
Lee v. United States, a deportation-consequences case that directly relied on
Hill.


    A. The United States Supreme Court opinions in Lee and
       Hill provide a different prejudice standard for claims
       like Bobadilla’s.
  In Hill v. Lockhart, the defendant pleaded guilty to charges of murder
and theft. 474 U.S. 52, 53 (1985). During the plea discussions, Hill’s



Indiana Supreme Court | Case No. 19S-PC-128 | March 5, 2019         Page 15 of 23
counsel told him he would become parole-eligible after serving one-third
of his sentence. Id. Two years after pleading guilty, however, Hill learned
he had to serve one-half of his sentence before reaching parole-eligibility.
He sought post-conviction relief. Id.

   In considering Hill’s ineffective-assistance-of-counsel claim, the
Supreme Court, for the first time, explained that a defendant shows
prejudice from mis-advice during the guilty-plea stage by showing a
reasonable probability that he would have rejected the guilty plea and
insisted on going to trial instead. Id. at 59 (noting a handful of cases from
the federal circuit courts of appeals articulating that rule). Applying that
standard, the Court determined that Hill did not show prejudice because
he “alleged no special circumstances that might support the conclusion
that he placed particular emphasis on his parole eligibility in deciding
whether or not to plead guilty.” Id. at 60. In other words, Hill did not
establish why he would have insisted on trial.

   From Hill we glean that in order to prove they would have rejected the
guilty plea and insisted on trial, defendants must show some special
circumstances that would have supported that decision. Defendants
cannot simply say they would have gone to trial, they must establish
rational reasons supporting why they would have made that decision.

   In Lee v. United States, the Court relied upon Hill in considering a
similar prejudice question, albeit in a factually distinguishable scenario.
137 S. Ct. 1958 (2017). There Defendant Lee was indicted on a single count
of possessing ecstasy with intent to distribute. He retained counsel,
informed counsel he was not a citizen, and instructed counsel to begin
plea negotiations with the government. Id. at 1963. During the plea
discussions, Lee repeatedly asked his attorney whether he would face
deportation. Id. Though not a lawful citizen, Lee had lived in the United
States since he moved here with his parents at age thirteen. Id. at 1962.
After graduating high school, he began working in a restaurant and
eventually became a successful restaurateur in Memphis, Tennessee. Id. at
1962–63. And since moving to the United States, Lee had never returned
to his native South Korea. Id. at 1963.




Indiana Supreme Court | Case No. 19S-PC-128 | March 5, 2019         Page 16 of 23
   Only when Lee’s attorney assured him that he would not be deported,
did Lee finally agree to plead guilty. Id. The District Court accepted the
plea and sentenced Lee to one year and one day in prison. Id. But just like
Bobadilla here, Lee soon learned that his guilty plea made him subject to
deportation under federal law. Id. He then moved to vacate his conviction
and sentence, alleging ineffective assistance of counsel.

   The government conceded that Lee’s counsel provided deficient
performance when he erroneously advised Lee he would not be deported.
Id. at 1964. The Supreme Court, therefore, had to decide whether Lee was
prejudiced by that advice. Id. It held he was. Id. at 1969.

   Ordinarily, to prove prejudice under Strickland, the defendant must
show “a reasonable probability that, but for counsel’s unprofessional
errors, the result of the proceeding would have been different.” Id. But
since Lee’s counsel’s errors occurred in the guilty-plea stage, thereby
denying Lee a trial, the Court determined that the ordinary standard
could not apply and applied Hill. So the Court explained that defendants,
like Lee and now Bobadilla, “can show prejudice by demonstrating a
‘reasonable probability that, but for counsel’s errors, he would not have
pleaded guilty and would have insisted on going to trial.’” Id. at 1965
(quoting Hill, 474 U.S. at 59). Then, per Hill, the Court evaluated whether
Lee showed sufficient special circumstances to prove that had he been
properly advised, he would have rejected the guilty plea and insisted on
trial. As we see it, Lee did not break new ground, but took its prejudice
standard directly from Hill, except Lee substituted “unusual
circumstances” for “special circumstances.” 137 S. Ct. at 1965, 1967.

   The Court outlined Lee’s unusual circumstances: his age (13) when
coming to the United States; he had lived here nearly 35 years and never
returned to South Korea; he was educated here; he owned and operated
two restaurants here; and, finally, as their only family member living in
the U.S., he alone could care for his elderly parents who still lived here. Id.
at 1968. Based upon this evidence, the high Court observed Lee enjoyed
“strong connections to the United States” while there was “no indication
that he had any ties to South Korea.” Id. The Court concluded Lee’s
unusual circumstances supported his claim that he placed paramount



Indiana Supreme Court | Case No. 19S-PC-128 | March 5, 2019          Page 17 of 23
importance on staying in the U.S. and would have rejected a guilty plea
that resulted in certain deportation. Id. at 1965, 1967–69. The Supreme
Court, therefore, held that “Lee has demonstrated a ‘reasonable
probability that, but for [his] counsel’s errors, he would not have pleaded
guilty and would have insisted on going to trial.’” Id. at 1969 (quoting Hill,
474 U.S. at 59).


    B. Lee provides practical guidance.

   But how do other defendants make this prejudice showing? And how
should reviewing courts evaluate similar prejudice claims? Though
limited, Lee provides some generalized guidance for assessing whether a
defendant sufficiently proved prejudice from erroneous immigration
advice during the guilty-plea phase. As we read it, the Lee Court provided
three helpful pieces of guidance to the bench and bar.

   First, the Supreme Court re-emphasized that these Lee prejudice
inquiries require “a ‘case-by-case examination’ of the ‘totality of the
evidence.’” Id. at 1966 (quoting Williams v. Taylor, 529 U.S. 362, 391 (2000)).
Reviewing courts, therefore, should be “asking what an individual
defendant would have done,” not what hypothetical defendants would do
in similar situations. Id. at 1967 (emphasis added). What is rational for one
defendant may not be rational for the next—it depends on the defendant’s
particular circumstances. For example, in Lee we see that the defendant’s
special circumstances showed he “had strong connections to this country
and no other,” id. at 1968, that, for him, made deportation just as dire as
prison.

   Second, the Court expressly rejected any categorical rules whereby the
prosecution could negate a defendant’s prejudice claim by pointing out
that he had no viable trial defense or that the government had a
particularly strong case against him. Rather, Lee acknowledged that a
defendant’s reasons for choosing trial over a favorable guilty plea may not
depend upon the likelihood of conviction or acquittal. Id. at 1966–67.
Deportation is a severe penalty, and, in some circumstances, an individual
defendant may prioritize avoiding removal over avoiding jail time. Id. at
1968. Lee, therefore, instructs that even a defendant who faced slim


Indiana Supreme Court | Case No. 19S-PC-128 | March 5, 2019         Page 18 of 23
chances of winning at trial can still show prejudice—i.e., that he would
have rejected a plea and insisted on trial—where his particular
circumstances show that it would have been rational for him to take a
chance on a trial resulting in possible deportation over a guilty-plea
resulting in mandatory deportation. Id. at 1966, 1968.

   Third, the Court cautioned that defendants cannot establish prejudice
in these situations by merely claiming, “Had I been advised correctly, I
would have gone to trial.” Defendants must produce evidence supporting
such claims. Indeed, Lee tells us, “Courts should not upset a plea solely
because of post hoc assertions from a defendant about how he would have
pleaded but for his attorney’s deficiencies. Judges should instead look to
contemporaneous evidence to substantiate a defendant’s expressed
preferences.” Id. at 1967.

   Viewing this guidance in light of Hill’s and Lee’s facts, we surmise that
defendants prove prejudice by presenting evidence of special
circumstances that corroborate their claims that they would have rejected
a guilty plea and insisted upon trial, if the plea would result in
deportation. Each defendant’s special circumstances should show why it
could have been rational for that defendant to take his chances at trial and
perhaps be deported rather than plead guilty and certainly be deported.
Finally, we see that special circumstances can include (but are not limited
to) a defendant’s ties to the United States versus those to his native
country.


   C. Lee curbs Segura’s applicability in these cases.
   We pause briefly to address how Lee affects Indiana precedent.

   Like the United States Supreme Court in Lee, we too leaned heavily
upon Hill when deciding Segura v. State, essentially embracing the same
rule. There we said:

      [I]n order to state a claim for postconviction relief a petitioner
      may not simply allege that a plea would not have been entered.
      Nor is the petitioner’s conclusory testimony to that effect



Indiana Supreme Court | Case No. 19S-PC-128 | March 5, 2019          Page 19 of 23
      sufficient to prove prejudice. To state a claim of prejudice from
      counsel’s omission or misdescription of penal consequences
      that attaches to both a plea and a conviction at trial, the
      petitioner must allege, in Hill’s terms, ‘special circumstances,’
      or, as others have put it, ‘objective facts’ supporting the
      conclusion that the decision to plead was driven by the
      erroneous advice.


749 N.E.2d at 507 (footnotes omitted). Segura provided that “a petitioner
may be entitled to relief if there is an objectively credible factual and legal
basis from which it may be concluded that ‘there is a reasonable
probability that, but for counsel’s errors, he would not have pleaded
guilty and would have insisted on going to trial.’” Id. (quoting Hill, 474
U.S. at 59).

   Unlike Lee, though, Segura favored an objective prejudice standard over
a subjective one. That is, Segura said: “[t]here must be a showing of facts
that support a reasonable probability that the hypothetical reasonable
defendant would have elected to go to trial if properly advised.” 749
N.E.2d at 507. With the benefit of hindsight (and Lee), we see two flaws in
Segura.

   First and foremost, Segura’s hypothetical-reasonable-defendant
standard does not square with Lee’s this-rational-defendant inquiry.
Second, regrettably, the dicta in Segura made the holding difficult to
apply. For example, despite a clear rule, we commented that “[w]e see no
reason to require revising a guilty plea if, at the end of the day, the
inevitable result is conviction and the same sentence.” Id. Likewise, in
dicta, we also suggested that prejudice may be found only “in extreme
cases, [where] a credible scenario can be posited that results in a truly
innocent defendant pleading guilty because of incorrect advice as to the
consequences.” Id. Looking back, it becomes apparent that these
statements do not fit within Segura’s holding and they understandably
misled lower courts, causing them to rely too heavily on the strength of
the State’s case when evaluating prejudice. See e.g., Bobadilla, 93 N.E.3d at
787–88; Gulzar v. State, 971 N.E.2d 1258, 1262 (Ind. Ct. App. 2012); Suarez v.
State, 967 N.E.2d 552, 556–57 (Ind. Ct. App. 2012).


Indiana Supreme Court | Case No. 19S-PC-128 | March 5, 2019          Page 20 of 23
   Lee now establishes that when a defendant alleges ineffective assistance
of counsel based on his counsel’s failure to advise him that pleading guilty
could result in deportation, the prejudice inquiry is a subjective test,
turning upon whether that particular defendant’s special circumstances
support his claim that, had he been properly advised, he would have
rejected the plea and insisted on going to trial. Lee further clarified that the
ultimate result at trial (conviction versus acquittal) is not the
determinative factor in these prejudice inquiries because some defendants
would rather be convicted and face a seemingly harsher sentence than
receive a lesser sentence but face certain deportation.

   To the extent Segura departs from Lee, we disapprove it.


    D. Bobadilla suffered prejudice from counsel’s deficient
       performance.
   Now turning our attention to Bobadilla’s claim that he suffered
prejudice from trial counsel’s deficient performance, we see that the
record contains few details about Bobadilla’s life before his guilty plea.
For example, we know little of his special circumstances such as his
education, employment history, family obligations, and the like. Recall,
the post-conviction court resolved the matter on Strickland’s deficiency
prong, and it did not reach the second prong, so it made no findings or
conclusions relating to prejudice. Bobadilla directs us to his statement in
the post-conviction hearing, “I would take a different approach to that,”
Tr. p. 17, line 2, as sufficient proof of prejudice, Trans. Pet. pp. 7–9. For
two reasons, we cannot count Bobadilla’s statement as evidence that he
would have rejected the plea and insisted on going to trial.

   First, as we have discussed, Lee is not a magic-words test that allows a
petitioner to utter the right phrase and automatically receive relief.
Second, reading the transcript closely, we see that Bobadilla was not
saying he would have rejected the plea and insisted on trial when he said,
“I would take a different approach to that.” Bobadilla made that statement
in the context of questioning about whether he read the advisement of
rights form, whether he trusted his attorney’s advice that certain
advisements were “not applicable” to him, and whether he would have


Indiana Supreme Court | Case No. 19S-PC-128 | March 5, 2019          Page 21 of 23
asked trial counsel about the immigration status advisement had it not
been marked “N/A.” Tr. pp. 16–17. Saying he would have reacted
differently and taken a different approach to the advisement form does
not equate to him saying he would have rejected the plea agreement
altogether and insisted on a trial. Nevertheless, there is enough evidence
in the record for us to draw conclusions about Bobadilla’s special
circumstances, particularly how they would have led him to reject a guilty
plea resulting in deportation and to insist on going to trial.

   At his guilty-plea hearing, Angelo Bobadilla was a teenager facing his
“first criminal charge.” Appellant’s App. Vol. II, p. 22. Specifically, he
faced four low-level misdemeanor charges that would likely not result in
significant jail time, considering the many sentencing options available to
trial courts. Bobadilla was gainfully employed. Id. He had lived in the
United States since he was a young boy—at least ten years. Tr. pp. 19–20.
During those ten years he requested and received the DACA benefit from
the United States government. Id. at 17; Appellant’s App. Vol. II, pp. 14,
96. With just these few facts, we conclude that Bobadilla’s special
circumstances revealed he had significant ties to the United States, not
Mexico. Therefore, there is a reasonable probability that he would have
rejected a guilty plea that could subject him to deportation and insisted on
going to trial instead. 5

   To be sure, even if Bobadilla lost at trial, his counsel (a veteran
attorney) likely could have secured a different sentence for his young,
inexperienced client—a different outcome that would not expose
Bobadilla to deportation. Remarkably, to avoid making his client



5We acknowledge, of course, “a defendant has no right to be offered a plea.” Missouri v. Frye,
566 U.S. 134, 148 (2012) (citing Weatherford v. Bursey, 429 U.S. 545, 561 (1977) (“But there is no
constitutional right to plea bargain.”)). But we note that when offered a plea agreement, a
defendant may reject an unfavorable agreement in hopes of securing a better one. For
instance, had Bobadilla’s counsel known his client’s citizenship status, he could have tried to
negotiate a different agreement with the prosecutor—one that did not implicate deportation.
See Padilla, 559 U.S. at 373 (“[I]nformed consideration of possible deportation can only benefit
both the State and noncitizen defendants during the plea-bargaining process” because “the
defense and prosecution may well be able to reach agreements that better satisfy the interests
of both parties.”).



Indiana Supreme Court | Case No. 19S-PC-128 | March 5, 2019                           Page 22 of 23
deportable, counsel would have only needed to convince the judge at
sentencing to impose a sentence of 364 days rather than 365 days. Just one
day would have taken deportation off the table for this young defendant.
Given the wide array of sentencing alternatives available to this nineteen-
year-old with no criminal history, it appears reasonable that he would’ve
taken a chance at trial rather than enter a plea agreement that ensures
deportation.


Conclusion
   Angelo Bobadilla’s life instantly changed in drastic, unforeseen ways
when he pleaded guilty to two misdemeanors in Hamilton County
Superior Court 4. Though Indiana law considered young Bobadilla a
misdemeanant deserving a second chance to live a law-abiding life,
federal immigration law considered him a felon subject to deportation.
Bobadilla petitioned for post-conviction relief when he learned he faced
possible deportation because his trial counsel failed to properly advise
him about the immigration consequences of a misdemeanor guilty-plea.
The lower courts denied his petition, finding he did not prove he received
ineffective assistance of counsel under Strickland v. Washington—deficient
performance that prejudiced him.

   We, however, agree with Bobadilla on both points. First, his attorney
rendered constitutionally deficient performance as a matter of law by
independently marking “N/A” next to the citizenship advisement on the
standard advisement of rights form before inquiring into Bobadilla’s
citizenship status. Second, counsel’s deficient performance prejudiced
Bobadilla because the record reveals special circumstances demonstrating
a reasonable probability that had Bobadilla been fully informed of his
plea’s consequences, he would have rejected it and insisted on trial.

   For these reasons, we reverse the post-conviction court and remand for
further proceedings consistent with this opinion.


Rush, C.J., and David, J., concur.
Massa, J., dissents with separate opinion in which Slaughter, J., joins.


Indiana Supreme Court | Case No. 19S-PC-128 | March 5, 2019      Page 23 of 23
Massa, J., dissenting.

   The Court’s analysis of our Segura precedent in the light of subsequent
decisions of the United States Supreme Court is correct. But I respectfully
part company in applying this updated standard to the facts of this sad
case. Reversing a court on post-conviction requires that the facts and law
point unerringly to a different outcome, Campbell v. State, 19 N.E.3d 271,
274 (Ind. 2014), and they don’t on this record. There’s enough factual and
legal uncertainty that our deference must mean something and compel
that the post-conviction court be affirmed.

   The appellant presents a seductively sympathetic case at a time when
the issue of illegal immigration convulses the nation—a DACA Dreamer
in the country for most of his life who ends up deported for boosting a
bag of boxers or briefs. As the Court notes, had Bobadilla pled to 364 days
suspended (instead of 365!) he’d likely still be in Hamilton County with
his family. It is thus an act of compassion that our Court performs today,
giving Bobadilla a chance, however remote, of getting back in the country.
But the near impossibility of that occurring makes this holding all the
more questionable. His own lawyers call today’s relief “meaningless.” 1
We alter the rules with little chance that anyone will benefit. And that
should be avoided by a court of legal doctrine.




1 As Bobadilla noted in his “Emergency Motion to Correct Error and Request For Expedited
Hearing on the Matter,” his post-deportation prospects are dim. Appellant’s App. Vol. 2, p.46
(“After removal from the U.S.[,] Bobadilla will have no effective immigration remedy [and]
any subsequent favorable decision on this motion or on appeal will likely be meaningless.”).
Despite the vacatur of his conviction through post-conviction relief, Bobadilla may still risk
possible prosecution for illegal reentry under Section 1326 of Title 8 of the United States Code,
rendering him deportable and subject to removal. See 8 U.S.C. § 1326(b)(2). And Bobadilla’s
post-conviction DACA standing is unclear under the record. If Bobadilla—without being
properly admitted or without being paroled (facilitating his entry into, and permitting him to
temporarily remain in, the United States) by the Secretary of Homeland Security—enters the
United States as a non-Dreamer, he may be “inadmissible” and subject to removal under
Section 1182 of Title 8. See 8 U.S.C. §§ 1182(a)(6)(A), (d)(5)(A). See also 6 U.S.C. § 202
(transferring authority for immigration matters to the Secretary of Homeland Security). And,
in any event, even if he successfully returns to the United States, Bobadilla could still be
convicted at trial, lose his DACA status, and possibly be deported again.
  The post-conviction court should be affirmed because Bobadilla
presented insufficient evidence to sustain his burden of proof on both
prongs of the Strickland test: deficient performance and prejudice.

    Regarding deficient performance, we have in the dock a respected
criminal defense attorney with three decades of experience. His client was
nineteen, spoke perfect English and never gave the lawyer any reason to
believe he was in the country illegally (and thus vulnerable to deportation
if his negotiated sentence exceeded a particular threshold). But in order to
find deficient performance, we today all but adopt a new standard for
Indiana lawyers—that they ask their clients if they are citizens, whatever
their age, surname, or fluency. That is a bridge too far, and we should not
impose this duty to determine the citizenship status of every client on
defense lawyers in every case. In attempting to do justice, we
unfortunately, unintentionally, but unmistakably malign a lawyer whose
only real mistake was in failing to notice a single entry on a jail booking
sheet noting Mexico as his client’s place of birth. This was an oversight, to
be sure. Does it establish he was constitutionally deficient and ineffective
as a matter of law when he negotiated a fully suspended sentence for his
client? I don’t believe so.

   If we are to impose a requirement to inquire with or to advise
unapparent non-citizens, the obligation should rest with our trial courts.
Just as judges are required to inform defendants of other consequences of
their guilty pleas under Boykin v. Alabama, 395 U.S. 238 (1969), so too can
they be entrusted to advise defendants of those pleas’ potential
immigration consequences. Indeed, Padilla notes that, in addition to
Kentucky, “many States require trial courts to advise defendants of




Indiana Supreme Court | Case No. 19S-PC-128 | March 5, 2019          Page 2 of 4
possible immigration consequences.” 2 And, in the wake of Padilla, the
federal rules of criminal procedure now require a District Court, before
accepting a guilty plea, to “inform the defendant of, and determine that
the defendant understands,” that “if convicted, a defendant who is not a
United States citizen may be removed from the United States, denied
citizenship, and denied admission to the United States in the future.” Fed.
R. Crim. P. 11(b)(1)(O). There is no reason Indiana, like our federal
brethren and several sister states, cannot provide this warning. This
would be a better way to impose a new protection than retroactively
declaring a competent lawyer ineffective. 3

    As for prejudice (if deficiency were established), the law as declared by
the United States Supreme Court now requires a petitioner to prove that,
had he been properly advised of deportation consequences, he would
have gone to trial rather than plead guilty to otherwise favorable terms.
See Lee v. United States, 137 S. Ct. 1958, 1965 (2017) (“[W]hen a defendant
claims that his counsel’s deficient performance deprived him of a trial by
causing him to accept a plea, the defendant can show prejudice by
demonstrating a reasonable probability that, but for counsel’s errors, he
would not have pleaded guilty and would have insisted on going to
trial.”) (internal quotation marks omitted). Petitioner here said no such




2Padilla v. Kentucky, 559 U.S. 356, 374 n.15 (2010) (“See, e.g., Alaska Rule Crim. Proc.
11(c)(3)(C) (2009–2010); Cal. Penal Code Ann. § 1016.5 (West 2008); Conn. Gen. Stat. § 54–1j
(2009); D.C. Code § 16–713 (2001); Fla. Rule Crim. Proc. 3.172(c)(8) (Supp. 2010); Ga. Code
Ann. § 17–7–93(c) (1997); Haw. Rev. Stat. Ann. § 802E–2 (2007); Iowa Rule Crim. Proc.
2.8(2)(b)(3) (Supp. 2009); Md. Rule 4–242 (Lexis 2009); Mass. Gen. Laws, ch. 278, § 29D (2009);
Minn. Rule Crim. Proc. 15.01 (2009); Mont. Code Ann. § 46–12–210 (2009); N.M. Rule Crim.
Form 9–406 (2009); N.Y. Crim. Proc. Law Ann. § 220.50(7) (West Supp. 2009); N.C. Gen. Stat.
Ann. § 15A–1022 (Lexis 2007); Ohio Rev. Code Ann. § 2943.031 (West 2006); Ore. Rev. Stat. §
135.385 (2007); R.I. Gen. Laws § 12–12–22 (Lexis Supp. 2008); Tex. Code. Ann. Crim. Proc., Art.
26.13(a)(4) (Vernon Supp. 2009); Vt. Stat. Ann., Tit. 13, § 6565(c)(1) (Supp. 2009); Wash. Rev.
Code § 10.40.200 (2008); Wis. Stat. § 971.08 (2005–2006).”).
3The trial court below is already providing this warning, to a degree, by placing a box to be
checked by defense counsel in consultation with the client. But this allows for
misunderstandings, as occurred in this case when the client failed to disclose his status to the
lawyer. If the court reads the warning in the guilty plea colloquy, this danger is removed.




Indiana Supreme Court | Case No. 19S-PC-128 | March 5, 2019                           Page 3 of 4
thing, but we decide for him anyhow. 4 What this means for future cases
on post-conviction relief remains to be seen.


Slaughter, J., joins.



ATTORNEYS FOR APPELLANT
Kevin C. Muñoz
Muñoz Legal, LLC
Indianapolis, Indiana

John L. Tompkins
The Law Office of John L. Tompkins
Indianapolis, Indiana

ATTORNEYS FOR APPELLEE
Curtis T. Hill, Jr.
Attorney General of Indiana

Monika Prekopa Talbot
Supervising Deputy Attorney General
Indianapolis, Indiana




4The Court must infer that Bobadilla would have gone to trial, in the absence of any such
assertion, in order to reach an admirable and equitable outcome when other government
actors better suited than a court of last resort might have helped avoid this perfect storm,
assuming there isn’t more to this story. See Sargent v. State, 27 N.E.3d 729, 734–36 (Ind. 2015)
(Massa, J., dissenting). An agreed sentencing modification, or forbearance by immigration
officials, would have mooted the issue. See Ginger Thompson and Sarah Cohen, More
Deportations Follow Minor Crimes, Records Show, N.Y. Times (Apr. 6, 2014),
https://www.nytimes.com/2014/04/07/us/more-deportations-follow-minor-crimes-data-
shows.html. It is fair to ask the authorities involved: did it have to come to this?



Indiana Supreme Court | Case No. 19S-PC-128 | March 5, 2019                             Page 4 of 4
