                                                                                 FILED
                                                                            Jul 24 2019, 9:13 am

                                                                                 CLERK
                                                                             Indiana Supreme Court
                                                                                Court of Appeals
                                                                                  and Tax Court




      ATTORNEYS FOR APPELLANT                                     ATTORNEYS FOR APPELLEE
      Nancy A. McCaslin                                           Curtis T. Hill, Jr.
      McCaslin & McCaslin                                         Attorney General
      Elkhart, Indiana                                            Chandra K. Hein
                                                                  Deputy Attorney General
                                                                  Indianapolis, Indiana



                                                   IN THE
           COURT OF APPEALS OF INDIANA

      Pedro Rayo Zagal,                                           July 24, 2019
      Appellant-Petitioner,                                       Court of Appeals Case No.
                                                                  19A-PC-694
              v.                                                  Appeal from the
                                                                  Elkhart Superior Court
      State of Indiana,                                           The Honorable
      Appellee-Respondent                                         Charles Carter Wicks, Judge
                                                                  Trial Court Cause No.
                                                                  20D05-1809-PC-46



      Vaidik, Chief Judge.



                                            Case Summary
[1]   In 2007, Pedro Rayo Zagal pled guilty to possession of cocaine. More than ten

      years later, he filed a petition for post-conviction relief alleging that his trial

      counsel was ineffective for failing to advise him that his guilty plea carried a risk

      Court of Appeals of Indiana | Opinion 19A-PC-694 | July 24, 2019                               Page 1 of 8
      of deportation, and the post-conviction court denied him relief. Because Rayo

      Zagal admitted that the advisements of rights at his initial hearing and in his

      plea agreement informed him that he could be deported as a result of his guilty

      plea and conviction and that he read these advisements, we affirm the post-

      conviction court.



                             Facts and Procedural History
[2]   Rayo Zagal came to the United States from Mexico in 1994, when he was seven

      years old. Rayo Zagal is in the country under the United States Department of

      Homeland Security’s Deferred Action for Childhood Arrivals (DACA)

      program.


[3]   On January 30, 2007, the State charged Rayo Zagal, then nineteen years old,

      with Class D felony possession of cocaine. At his February 2 initial hearing,

      Rayo signed an Advisement of Rights and Penalties, which contained the

      following advisement: “If you are an illegal alien you may be deported if

      convicted of a crime.” Appellant’s App. Vol. II p. 16.


[4]   In April 2007, the State and Rayo Zagal, who was represented by counsel,

      entered into a written plea agreement. The agreement stated that Rayo Zagal

      was born in Mexico and a citizen of Mexico. Id. at 19. The agreement

      contained a section entitled “Defendant’s Rights.” Rayo Zagal wrote his

      initials next to the following provision:




      Court of Appeals of Indiana | Opinion 19A-PC-694 | July 24, 2019          Page 2 of 8
              The defendant understands that if he/she is not a legal citizen of
              the United States, he/she may be deported as a result of his/her
              plea of guilty.


      Id. at 21. In addition, Rayo Zagal wrote his initials next to the

      acknowledgments that he had “received and read, or had read to him,” the plea

      agreement and that the plea agreement “was translated into Spanish, my native

      language, before I signed it.” Id. at 20, 22. Both Rayo Zagal and his trial

      counsel then signed the plea agreement.


[5]   At the guilty-plea hearing, Rayo Zagal acknowledged that he read over the plea

      agreement “carefully,” understood what he read, and initialed and signed it.

      Tr. pp. 4-5. The trial court noted that Rayo Zagal was born in Mexico and a

      citizen of Mexico but was “completely fluent in English.” Tr. p. 12. The court

      took the plea under advisement and set the matter for sentencing.


[6]   At the sentencing hearing in May 2007, the trial court explained that given

      Rayo Zagal’s age and immaturity, it “was reluctant to hang a felony conviction

      on [him] at this point.” Id. at 22. The court told Rayo Zagal that if he was

      willing to accept “certain conditions,” it was “willing to continue sentencing for

      a while to give [him] a chance to maybe avoid a felony conviction.” Id. Rayo

      Zagal accepted the conditions, including that he stay away from drugs and

      alcohol, submit to chemical tests, obtain his GED, and perform community

      service, and the court “reset sentencing” for one year. Id. at 23.




      Court of Appeals of Indiana | Opinion 19A-PC-694 | July 24, 2019             Page 3 of 8
[7]   At the reset sentencing hearing in May 2008, the trial court found that Rayo

      Zagal had satisfied the conditions, entered judgment of conviction for

      possession of cocaine as a Class A misdemeanor, and sentenced Rayo Zagal to

      one year of incarceration, all suspended to probation. Appellant’s App. Vol. II

      p. 23.


[8]   Ten years later, in the summer of 2018, Rayo Zagal spoke with an immigration

      attorney, who told him that he couldn’t become a United States citizen due to

      his possession-of-cocaine conviction and that his “road ends at DACA and if

      that gets thrown out, [he’s] in jeopardy of being deported.” Tr. p. 54. In

      September 2018, Rayo Zagal filed a petition for post-conviction relief alleging

      that his trial counsel was ineffective for not “advis[ing] [him] of the

      immigration consequences of entering a guilty plea.” Appellant’s App. Vol. II

      p. 32.


[9]   At the post-conviction hearing, Rayo Zagal testified that his trial counsel did

      not advise him of the immigration consequences of pleading guilty to

      possession of cocaine. Tr. p. 58. However, Rayo Zagal admitted that he read

      and wrote his initials next to the provision in his plea agreement that he

      understood that if he was not a legal citizen of the United States, he may be

      deported as a result of his plea. Id. at 62-63. Despite agreeing that this

      language was not ambiguous, Rayo Zagal claimed that he “did not know to

      what degree that meant not until [he] spoke with an immigration lawyer.” Id.

      at 63. Rayo Zagal also admitted reading and signing the Advisement of Rights

      and Penalties at his initial hearing, which similarly advised him that if he was

      Court of Appeals of Indiana | Opinion 19A-PC-694 | July 24, 2019             Page 4 of 8
       an illegal alien, he may be deported if convicted of a crime. Id. 64-66. In an

       order dated March 1, 2019, the post-conviction court found that Rayo Zagal’s

       trial counsel did not perform deficiently and denied him relief.


[10]   Rayo Zagal now appeals.



                                   Discussion and Decision
[11]   A defendant who files a petition for post-conviction relief has the burden of

       establishing the grounds for relief by a preponderance of the evidence. Hollowell

       v. State, 19 N.E.3d 263, 268-69 (Ind. 2014). If the post-conviction court denies

       relief, and the petitioner appeals, the petitioner must show that the evidence

       leads unerringly and unmistakably to a conclusion opposite that reached by

       the post-conviction court. Id. at 269.


[12]   Rayo Zagal contends that the post-conviction court should have granted him

       relief because his trial counsel was ineffective. When evaluating a defendant’s

       ineffective-assistance-of-counsel claim, we apply the well-established, two-

       part test from Strickland v. Washington, 466 U.S. 668 (1984). Bobadilla v. State,

       117 N.E.3d 1272, 1280 (Ind. 2019). The defendant must prove that (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. Id.




       Court of Appeals of Indiana | Opinion 19A-PC-694 | July 24, 2019           Page 5 of 8
[13]   Rayo Zagal argues that his trial counsel performed deficiently because he did

       not advise him that his guilty plea carried a risk of deportation. In Padilla v.

       Kentucky, the United States Supreme Court held that “counsel must inform her

       client whether his plea carries a risk of deportation” and that failure to do so

       “clearly satisfies the first prong of the Strickland analysis.” 559 U.S. 356, 371,

       374 (2010). In Bobadilla, the Indiana Supreme Court held that it is “bound by

       Padilla—attorneys must advise their clients of immigration consequences from a

       guilty plea; otherwise, they render constitutionally deficient performance.”

       Bobadilla, 117 N.E.3d at 1282.


[14]   Rayo Zagal’s brief relies heavily on Bobadilla. That decision was issued on

       March 5, 2019, four days after the post-conviction court’s order in this case.

       More importantly, it was issued almost twelve years after Rayo Zagal pled

       guilty in 2007. In addition, Bobadilla relies heavily on Padilla, which the United

       States Supreme Court decided in 2010 and has since ruled is not retroactive.

       See Chaidez v. United States, 568 U.S. 342 (2013). Nevertheless, our Supreme

       Court stated in Bobadilla that when Padilla was decided “our state’s case law

       already contained Padilla-esque requirements” in Segura v. State, 749 N.E.2d 496

       (Ind. 2001). Bobadilla, 117 N.E.3d at 1281. As the Court explained, “Segura

       predated Padilla by nine years and the holdings roughly align . . . .” Id. at 1282.

       Arguably, then, the principles discussed by our Supreme Court in Bobadilla are

       relevant. But even considering Bobadilla, Rayo Zagal is not entitled to relief.


[15]   Notably, Rayo Zagal does not dispute that the Advisement of Rights and

       Penalties at his initial hearing and the “Defendant’s Rights” section of his plea
       Court of Appeals of Indiana | Opinion 19A-PC-694 | July 24, 2019            Page 6 of 8
       agreement informed him that he could be deported as a result of his guilty plea

       and conviction. He also does not dispute that he read these advisements. His

       argument therefore appears to be that trial counsel should have separately

       advised him of the immigration consequences of pleading guilty. Rayo Zagal,

       however, does not cite any authority to support such an argument. Indeed, the

       Indiana Supreme Court held in Bobadilla that trial counsel can satisfy Padilla by

       “letting the client read and mark [an] advisement” form that contains a Padilla

       warning:


               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.


       Bobadilla, 117 N.E.3d at 1283.


[16]   Here, even assuming that trial counsel did not separately advise Rayo Zagal,

       Rayo Zagal admitted that he read the advisements at his initial hearing and in




       Court of Appeals of Indiana | Opinion 19A-PC-694 | July 24, 2019              Page 7 of 8
his plea agreement. This is all that is required. Trial counsel was not deficient.1

We therefore affirm the post-conviction court.


Riley, J., and Bradford, J., concur.




1
  Rayo Zagal also argues that his trial counsel was ineffective for failing to object when the trial court entered
judgment of conviction for possession of cocaine as a Class A misdemeanor. Citing Indiana Code sections
35-38-1-1.5 and 35-50-2-7, Rayo Zagal claims that the trial court could have only entered judgment of
conviction as a Class D felony. Even if Rayo Zagal is correct, which the State disputes, Rayo Zagal has not
established how entering judgment of conviction as a Class A misdemeanor instead of a Class D felony has
prejudiced him.

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