                                                                FILED
Pursuant to Ind.Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before                        Feb 20 2013, 9:25 am
any court except for the purpose of
establishing the defense of res judicata,                            CLERK
                                                                   of the supreme court,
collateral estoppel, or the law of the case.                       court of appeals and
                                                                          tax court




ATTORNEYS FOR APPELLANT:                                ATTORNEYS FOR APPELLEE:

STEPHEN T. OWENS                                        GREGORY F. ZOELLER
Public Defender of Indiana                              Attorney General of Indiana

KELLY A. KELLY                                          ELLEN H. MEILAENDER
Deputy Public Defender                                  Deputy Attorney General
Indianapolis, Indiana                                   Indianapolis, Indiana



                               IN THE
                     COURT OF APPEALS OF INDIANA

EFREN RADILLO DIAZ,                                )
                                                   )
       Appellant-Petitioner,                       )
                                                   )
               vs.                                 )   No. 20A05-1209-PC-458
                                                   )
STATE OF INDIANA,                                  )
                                                   )
       Appellee-Respondent.                        )


                      APPEAL FROM THE ELKHART CIRCUIT COURT
                          The Honorable Terry C. Shewmaker, Judge
                               Cause No. 20C01-0407-FA-88
                               Cause No. 20C01-0701-PC-3


                                        February 20, 2013

                 MEMORANDUM DECISION - NOT FOR PUBLICATION

BAILEY, Judge
                                         Case Summary

       Efren Radillo Diaz (“Diaz”), an illegal alien who at the time of the relevant offenses

spoke only Spanish, pled guilty to two counts of Dealing in Methamphetamine, as Class A

felonies.1 After a direct appeal, this Court ordered his sentences run concurrently.

       After resentencing upon remand, Diaz pursued post-conviction relief on the bases that

he did not knowingly and intelligently plead guilty to one of the two charges as a result of

poor translation of the proceedings and ineffective assistance of trial counsel. The post-

conviction court heard testimony and denied relief, as did this Court. The Indiana Supreme

Court granted transfer and ordered that the post-conviction court upon remand commission

translations of Diaz’s guilty plea and sentencing hearings and review Diaz’s petition for post-

conviction relief.

       The post-conviction court commissioned and reviewed the transcripts and received

argument of counsel, after which it again denied Diaz’s petition for post-conviction relief.

Diaz again appeals.

       We affirm.

                                               Issues

       Diaz raises two issues for our review, which we restate as whether the post-conviction

court erroneously denied his petition for relief because:




1
 Ind. Code §§ 35-48-4-1(1) & (2) (2005). Specifically, Diaz was charged for dealing in methamphetamine
and possession of methamphetamine with intent to deliver the same. The offense of Dealing in
Methamphetamine was subsequently recodified by our legislature effective July 1, 2006. P.L. 151-2006
§§ 22 & 23.

                                                  2
        I.   He did not knowingly, intelligently, and voluntarily plead guilty to the
             two counts in this case; and

       II.   His trial counsel, after learning that Diaz was unsure whether he had
             pled guilty to one or two offenses, was ineffective for failing to take
             appropriate action to clarify Diaz’s intentions or seek the vacation of
             Diaz’s plea.

                             Facts and Procedural History

       We take a portion of our statement of the facts and procedural history from the

Indiana Supreme Court’s opinion in Diaz v. State, 934 N.E.2d 1089 (Ind. 2010), vacating

Cause No. 20C01-0407-FA-88, Slip Op. (Ind. Ct. App. 2009):

      Efren Diaz was born in Mexico and his native language is Spanish. Diaz
      moved to the United States in 2000 and lived in the State of Washington,
      where he worked as a day laborer. In 2004, he moved to Elkhart County,
      Indiana in search of employment. In June 2004, Diaz was arrested for
      possessing methamphetamine weighing 11,511 grams (almost 26 pounds) and
      for dealing. Diaz indicated that he believed the drugs found in his possession
      were worth about $120,000. He was the subject of an investigation suggesting
      a multi-million dollar interstate methamphetamine operation. The chief
      investigator reportedly valued the methamphetamine and cutting agent
      recovered at over $2 million.

      On July 7, 2004, the State charged Diaz with (1) possession of
      methamphetamine weighing three grams or more with intent to deliver and (2)
      dealing in methamphetamine weighing three grams or more, both counts as
      class A felonies under Indiana Code § 35–48–4–1 (2008). After his arrest,
      Diaz hired attorney David Newman [hereinafter, “Newman”] to represent him.
       Newman’s firm employed an interpreter to help them in their regular
      representation of Spanish-speaking clients. Newman met with Diaz in jail on
      several occasions. The two communicated through the firm’s interpreter,
      Josephine Navarro [hereinafter, “Navarro”]. Navarro had previously worked
      helping with translations in the traffic and misdemeanor courts at the St.
      Joseph County Courthouse, but she did not have any formal training on how to
      interpret.

      Beatrice Lara [hereinafter, “Lara”] served as the interpreter for the guilty plea
      hearing under an appointment by the court. She provided the court and Diaz


                                             3
       with Spanish interpreting of the proceeding. Lara proffered her qualifications
       to the trial court, explaining her native language was English, that she learned
       Spanish from her father, and that she had spoken Spanish while staying in
       Mexico for a few months. Lara had translated for courts, “about 20 times” in
       the last two or three years.

       Diaz pled guilty to the two charges on January 14, 2005, in exchange for the
       State’s agreement not to file an additional charge for conspiracy or additional
       charges for another delivery of methamphetamine, or for the various drug
       paraphernalia recovered during the multi-state investigation (things like cutting
       agents, scales, and packaging materials).

       A few weeks after pleading guilty, Diaz sent his attorney a letter with the aid
       of other inmates. The letter, dated February 8, 2005, stated that Diaz had
       questions concerning the content of his plea as reported in the Elkhart Truth
       newspaper and that he thought that he and his attorney “had problems with
       language interpretation.” The following day, Diaz gave a proffer to federal
       authorities in hopes of receiving a better recommendation from the State at
       sentencing.

       On March 24, 2005, the court sentenced Diaz to 30 years for possession and 20
       years for dealing, to be served consecutively for an aggregate of 50 years.

       On direct appeal, the Court of Appeals found need for clarification of the
       sentencing order. Diaz v. State, 839 N.E.2d 1277 (Ind. Ct. App. 2005). On
       remand the trial court ordered the sentences to be served concurrently.

Id. at 1091-92 (record citations and footnotes omitted).

       After this, Diaz filed a petition for post-conviction relief on January 26, 2007. In the

petition, he claimed that he did not knowingly and intelligently enter his guilty plea and that

he had received ineffective assistance of trial counsel. On January 17, 2008, Diaz amended

his petition to allege that the guilty plea hearing had not been properly translated, and that

this led to Diaz’s plea.

       Evidentiary hearings were conducted on March 26 and October 7, 2008. Prior to the

hearings, Christina Courtright (“Courtright”) had been retained by Diaz’s post-conviction


                                              4
counsel to review the quality of the translation Lara had provided to Diaz during his guilty

plea hearing. Courtright concluded Lara’s translation work had substantial shortcomings,

including significant mistranslations, separate conversations with Diaz, and instructions to

Diaz that he reply “yes” to questions from the trial court. During the evidentiary hearing,

Courtright provided testimony concerning her opinions to the post-conviction court, and

Diaz’s post-conviction counsel sought to introduce into evidence a chart summarizing

Courtright’s conclusions. The post-conviction court ruled the chart inadmissible.

       Also during the evidentiary hearing, Newman, who served as Diaz’s trial counsel,

provided testimony concerning his and his secretary’s communications with Diaz about

Diaz’s guilty plea. As our supreme court observed, “Newman did not recall Diaz expressing

any concerns regarding his plea during their meetings.” Id. at 1093. One of these meetings

occurred only a day after the letter Diaz sent to Newman concerning the February 8, 2005

article in the Elkhart Truth newspaper about Diaz’s plea.

       Diaz also testified at the hearing. During his testimony, he indicated that he believed

he understood Lara during his guilty plea hearing, but that his intent had been to plead guilty

only to one of the two charges against him—the charge for Dealing in Methamphetamine (for

which he received the shorter of the two sentences). Diaz testified that he was unaware of

any concerns with either the work of Newman’s secretary in providing translations to him, or

the interpreter’s work during his sentencing hearing.

       On February 4, 2009, the post-conviction court entered findings and conclusions

denying Diaz’s petition. Diaz appealed, and a panel of this Court affirmed the post-


                                              5
conviction court’s decision. Diaz sought transfer from the Indiana Supreme Court; Diaz’s

petition for transfer was granted, and our opinion was vacated. Diaz, 934 N.E.2d at 1093.

       In its decision on transfer, the Indiana Supreme Court reversed the trial court’s denial

of post-conviction relief. The court did not, however, conclude that Diaz was entitled to

relief. Rather, the court concluded that Courtright’s chart was properly admissible as a

demonstrative exhibit necessary for properly conveying her opinions concerning the quality

of Lara’s interpreting work during Diaz’s guilty plea hearing. The court went on to hold that

the post-conviction court’s review of Diaz’s petition for relief required a determination

concerning whether Diaz “was provided with accurate interpreting” and whether, taken with

“evidence about what occurred during the guilty plea hearing, and during the sentencing

hearing, and in his lawyer’s office, and in writing,” Diaz was entitled to post-conviction

relief. Id. at 1096. The court therefore remanded the case for a new post-conviction hearing.

       Upon remand, the parties agreed that, with the admissibility of Courtright’s opinion

and demonstrative exhibit determined by the Indiana Supreme Court’s opinion on transfer,

there was no additional evidence to submit for the post-conviction court’s consideration. The

parties therefore agreed to proceed with the case by submitting proposed findings of fact and

conclusions of law to the post-conviction court. Diaz submitted his proposed findings and

conclusions on April 17, 2012. The State filed its proposal on May 16, 2012, and Diaz filed

responsive briefing on June 1, 2012.

       On August 15, 2012, the post-conviction court entered its order, finding that Diaz had

entered his guilty pleas knowingly and intelligently and that he had not received ineffective


                                              6
assistance of counsel, and denied Diaz’s petition. Diaz appeals.

                                  Discussion and Decision

                                     Standard of Review

       Our standard of review in post-conviction proceedings is well-established.

       In reviewing the judgment of a post-conviction court, appellate courts consider
       only the evidence and reasonable inferences supporting its judgment. Conner
       v. State, 711 N.E.2d 1238, 1245 (Ind. 1999). The post-conviction court is the
       sole judge of the evidence and the credibility of the witnesses. Fisher v. State,
       810 N.E.2d 674, 679 (Ind. 2004). To prevail on appeal from denial of post-
       conviction relief, the petitioner must show that the evidence as a whole leads
       unerringly and unmistakably to a conclusion opposite to that reached by the
       post-conviction court. Graves v. State, 823 N.E.2d 1193, 1197 (Ind. 2005).
       Where, as here, the post-conviction court enters findings and conclusions in
       accordance with Indiana Post–Conviction Rule (1)(6), we will reverse “upon a
       showing of clear error—that which leaves us with a definite and firm
       conviction that a mistake has been made.” Ben–Yisrayl v. State, 729 N.E.2d
       102, 106 (Ind. 2000) (quotation omitted), cert. denied, 534 U.S. 830, 122 S.Ct.
       73, 151 L.Ed.2d 38 (2001). Only where the evidence is without conflict and
       leads to but one conclusion, and the post-conviction court has reached the
       opposite conclusion, will its findings or conclusions be disturbed as being
       contrary to law. Miller v. State, 702 N.E.2d 1053, 1058 (Ind. 1998).

Hall v. State, 849 N.E.2d 466, 468-69 (Ind. 2006).

       Here, Diaz challenges his guilty plea on two grounds: first, that he did not knowingly

and intelligently enter his plea because of poor translation during the guilty plea hearing; and

second, that his trial counsel was ineffective for failing to take action to address his concerns

with the plea after the Elkhart Truth newspaper reported that he had pleaded guilty to both

Dealing in Methamphetamine and Possession of Methamphetamine counts, rather than a

single count of Dealing. We address each of Diaz’s contentions in turn.




                                               7
                            Translation of the Guilty Plea Hearing

       We first address Diaz’s contention that his plea was not knowingly and intelligently

entered because of the poor translation provided by the interpreter during his guilty plea

hearing.

       Whether a guilty plea is valid depends upon “‘whether the plea represents a voluntary

and intelligent choice among the alternative courses of action open to the defendant.’” Diaz,

934 N.E.2d at 1094 (quoting North Carolina v. Alford, 400 U.S. 25, 31 (1970)). The Indiana

Code provides that a court “shall not accept a plea of guilty … without first determining that

the defendant” (1) understands the nature of the charges against him; (2) has been informed

that certain due process rights will be waived by entering a plea; and (3) has been apprised of

the maximum and minimum sentences associated with the offenses, as well as the

possibilities of an increased sentence due to prior criminal conduct and the imposition of

consecutive sentences. I.C. § 35-35-1-2(a). Any deviation from the requirements of the

statute that does not violate a defendant’s constitutional rights is not a basis for setting aside a

guilty plea unless the defendant was prejudiced by that deviation. I.C. § 35-35-1-2(c);

Jackson v. State, 676 N.E.2d 745, 753 (Ind. Ct. App. 1997), trans. denied. When reviewing a

guilty plea, we look at all the evidence before the post-conviction court. Moffitt v. State, 817

N.E.2d 239, 249 (Ind. Ct. App. 2004), trans. denied. If there is evidence in the record to

support the post-conviction court’s determination that the defendant’s plea was voluntary, we

will not reverse the denial of relief on that ground. Id.

       The Indiana Supreme Court has recognized in Diaz’s case that “the court system is


                                                 8
difficult enough for native English speakers,” and has “highlighted the importance of having

qualified interpreters.” Diaz, 934 N.E.2d at 1095 (citing Arrieta v. State, 878 N.E.2d 1238,

1241 (Ind. 2008)). “Having a capable interpreter is crucial when a defendant is entering a

guilty plea,” and the availability of a capable interpreter “would act to limit questions of the

type that now surround Diaz’s plea.” Id. Yet our supreme court did not conclude that only

the conduct of the plea hearing was relevant to a review of Diaz’s claims upon remand;

rather, the post-conviction court was instructed to look not only to the guilty plea hearing but

also events “during the sentencing hearing, and in his lawyer’s office, and in writing, and

otherwise.” Id. at 1096.

       On appeal from the post-conviction court’s denial of his petition upon remand from

the Indiana Supreme Court, Diaz contends that he did not knowingly and intelligently enter

his guilty plea because of the poor quality of the translation Lara provided during the guilty

plea hearing. Specifically, Diaz argues that the interpreter’s inability “to translate legal terms

of art and legal concepts” rendered his plea void. (Appellant’s Br. at 14.) Diaz notes that,

among other deficiencies, Lara did not translate the phrase “right to a jury trial” in idiomatic

Spanish, but rather used an incorrect Spanish word for “trial” and simply repeated the word

“jury” in English. He thus contends that he cannot have knowingly and intelligently waived

his due process rights because Lara did not convey to him proper advisements of those rights.

       We do not agree. We acknowledge that the translation provided to Diaz during the

plea hearing was of poor quality. However, the translation the post-conviction court

commissioned of the guilty plea hearing establishes that Diaz was told that he was pleading


                                                9
guilty to two counts, not one. After being informed of the elements of the charged offenses

to which Diaz would be pleading guilty, Lara told Diaz during an advisement of the penalties

associated with the charges, “‘Each’ (in English) charge that you have for I and II, are fifty

years plus ten thousand…(inaudible).” (App. at 57.)

       Later in the hearing, Lara translated the following:

       [COURT:] All right, Mr. Radillo, do you understand that it is possible the
       sentences on your two cases could be consecutive?

       ***

       [TRANSLATION:] Do you understand you are going to jail for both
       charges…. (inaudible).

       [DIAZ:] Yes.

(App. at 60.) Still later, the following exchange occurred:

       [COURT:] Do you still want to plead guilty to these two crimes?

       ***

       [INTERPRETER:] Do you still want to say guilty of the charges?

       [DIAZ:] Yes.

(App. at 63.) From these exchanges, it is clear that Diaz was made aware by the court on

multiple occasions that he was pleading guilty to more than one charge.

       Further, during the post-conviction evidentiary hearing, the State introduced testimony

from Navarro, who worked as an assistant to Diaz’s trial counsel, Newman, providing

Spanish-to-English and English-to-Spanish translation services for counsel and Diaz.

Navarro testified that she and Newman met with Diaz before the plea hearing and reviewed

the plea agreement, with Navarro translating the terms of the agreement for Diaz and

                                             10
facilitating questions and answers between Diaz and Newman. The plea agreement is clear

in its statements that Diaz would be entering guilty pleas to both the Dealing in

Methamphetamine and Possession of Methamphetamine charges, and that as a result of his

pleas Diaz would also waive his right to a jury trial on the charges against him. And while

Diaz testified that he had difficulty understanding Lara, who was unable to translate such key

terms as “jury,” he did not have difficulty or complaints about Navarro’s translations.

       We recognize the numerous defects in the translations provided during the guilty plea

hearing, and the importance of assuring that proper translation is provided to non-English-

speaking defendants in our criminal courts. In light of the evidence presented to the post-

conviction court, however, we cannot conclude that the poor translation work during Diaz’s

plea hearing leads inevitably to a conclusion that the plea was not knowingly and intelligently

given. We therefore affirm the post-conviction court’s decision on the voluntariness of

Diaz’s plea.

                             Ineffective Assistance of Counsel

       Diaz also contends that Newman, his trial counsel, rendered ineffective assistance in

this case. Specifically, Diaz argues that Newman “had a duty to ensure that the interpreter

appointed by the court was qualified to provide an accurate translation of the proceedings”

and “a continuing duty to ensure that Mr. Diaz understood the proceedings,” but failed to

uphold that duty. (Appellant’s Br. at 16-17.)

       A defendant who seeks post-conviction relief on a claim of ineffective assistance of

counsel must show that “(1) the lawyer’s performance fell below an ‘objective standard of


                                              11
reasonableness,’ … and (2) ‘there is a reasonable probability that, but for counsel’s

unprofessional errors, the result of the proceeding would have been different.’” Segura v.

State, 749 N.E.2d 496, 501 (Ind. 2001) (quoting Strickland v. Washington, 466 U.S. 668,

687-88, 694 (1984)). The two prongs of the test are separate and independent inquiries.

Timberlake v. State, 753 N.E.2d 591, 603 (Ind. 2001). If a claim of ineffective assistance of

counsel can be disposed of under the second prong of the test—the prejudice prong—“‘that

course should be followed.’” Id. (quoting Williams v. State, 706 N.E.2d 149, 154 (Ind.

1999)).

       Where, as here, a defendant has entered a guilty plea and seeks to overturn it on the

basis of ineffective assistance of trial counsel, we apply the standard set forth by our supreme

court in Segura. There are two main categories of ineffective assistance of counsel in such

circumstances. Maloney v. State, 872 N.E.2d 647, 650 (Ind. Ct. App. 2007) (citing Smith v.

State, 770 N.E.2d 290, 295 (Ind. 2002)). The first category is where trial counsel fails to

advise a defendant on an issue, and that failure impairs or overlooks a defense. Id. The

second is where trial counsel fails to correctly advise the defendant of the penal

consequences of a plea. Id.

       Here, Diaz argues that Newman failed to respond appropriately to his letter

concerning his confusion over the Elkhart Truth’s report that he had pled guilty to two

offenses. Diaz argues that “[d]espite the fact that counsel received notice twice … counsel

failed to take an action to clarify the proceedings or try to withdraw the guilty plea.”

(Appellant’s Br. at 17.) Diaz asserts this “falls below prevailing professional standards,” and


                                              12
the outcome “would have been different because Mr. Diaz would not have pled guilty had he

understood the proceedings.” (Appellant’s Br. at 17.)

       As our supreme court noted, Diaz’s argument largely boils down to a contention that

he intended to plead guilty only to the charge for Dealing in Methamphetamine, for which

Diaz was sentenced to twenty years imprisonment, and not to the charge for Possession of

Methamphetamine, for which he was sentenced to thirty years imprisonment. To the extent

this argument fits into either of the categories set forth by Segura, because Diaz makes no

claim that a defense was overlooked or impaired by counsel’s conduct, his contention more

closely adheres to the failure of trial counsel to properly advise Diaz as to the penal

consequences of a guilty plea.

       Again, we cannot agree with Diaz that the post-conviction court erroneously denied

his petition for relief. Diaz argues that he did not understand his case because information

“was translated so poorly” and other facts showed his “lack of understanding.” (Appellant’s

Br. at 18.) Yet Diaz directs us to no authority that establishes that counsel is responsible for

assuring the quality of a court-appointed interpreter’s translation. Moreover, testimony from

Navarro and Diaz himself during the post-conviction hearing indicates that the consequences

of the plea agreement were explained to Diaz before he entered his plea and that Diaz

understood this explanation. Nor does Diaz present anything beyond a bare assertion that he

would not have pled guilty to the Possession of Methamphetamine charge to support his

claim that he was prejudiced by counsel’s alleged violation of professional standards.

       Given this, we cannot conclude that the post-conviction court erred when it concluded


                                              13
that Diaz was not entitled to relief as a result of his claim of ineffective assistance of counsel.

We therefore affirm the post-conviction court’s decision.

                                          Conclusion

       While the translation work afforded to Diaz at his guilty plea hearing was deficient,

the post-conviction court did not err when it concluded that the work of the interpreter did

not render his plea involuntary. Nor did the post-conviction court err when it concluded that

Diaz did not receive ineffective assistance of trial counsel.

       Affirmed.

VAIDIK, J., and BROWN, J., concur.




                                                14
