                                                                                         FILED
                                                                                    Jan 25 2018, 10:40 am

                                                                                         CLERK
                                                                                     Indiana Supreme Court
                                                                                        Court of Appeals
                                                                                          and Tax Court




      ATTORNEYS FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
      John L. Tompkins                                           Curtis T. Hill, Jr.
      The Law Office of John L. Tompkins                         Attorney General of Indiana
      Indianapolis, Indiana                                      Monika Prekopa Talbot
      Kevin C. Muñoz                                             Supervising Deputy Attorney
      Muñoz Legal, LLC                                           General
      Indianapolis, Indiana                                      Indianapolis, Indiana



                                                  IN THE
          COURT OF APPEALS OF INDIANA

      Angelo Bobadilla,                                          January 25, 2018
      Appellant-Defendant,                                       Court of Appeals Case No.
                                                                 29A02-1706-PC-1203
              v.                                                 Appeal from the Hamilton
                                                                 Superior Court
      State of Indiana,                                          The Honorable J. Richard
      Appellee-Plaintiff.                                        Campbell, Judge
                                                                 Trial Court Cause No.
                                                                 29D04-1612-PC-9318



      Mathias, Judge.


[1]   Angelo Bobadilla (“Bobadilla”) appeals the Hamilton Superior Court’s denial

      of his petition for post-conviction relief, arguing that his trial counsel was

      ineffective and that he was prejudiced by the inadequate representation.




      Court of Appeals of Indiana | Opinion 29A02-1706-PC-1203 | January 25, 2018                            Page 1 of 15
[2]   We affirm.


                                  Facts and Procedural History
[3]   Bobadilla was born in Mexico in 1996, and for the last ten years, he has been

      living in the United States, now legally as an undocumented immigrant under

      the Deferred Action for Childhood Arrivals (“DACA”) program. On March 1,

      2016, Bobadilla pleaded guilty to Class A misdemeanor theft and Class B

      misdemeanor possession of marijuana.1 As part of the plea process, Bobadilla—

      with counsel—filled out a standard advisement form which contained several

      paragraphs advising him of the consequences and rights lost as a result of

      pleading guilty. Next to each paragraph contained either Bobadilla’s initials, or

      “NA” because Bobadilla’s trial counsel believed that section was not applicable

      to his client. The back page of the advisement form contains the following

      statement:


              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.




      1
       Because of the plea agreement, the State dropped one count of Class A misdemeanor possession of a
      controlled substance and one count of Class B misdemeanor possession of paraphernalia.



      Court of Appeals of Indiana | Opinion 29A02-1706-PC-1203 | January 25, 2018                  Page 2 of 15
      Appellant’s App. p. 26. Bobadilla’s trial counsel never inquired into Bobadilla’s

      immigration status, and he incorrectly marked “NA” next to this statement. 2

      The court accepted the guilty plea the next day.


[4]   On December 19, 2016, Bobadilla filed a petition for post-conviction relief,

      alleging that he had received ineffective assistance from his trial counsel

      because he was not advised of the immigration consequences of his guilty plea.

      An evidentiary hearing was held on March 7, 2017, where both Bobadilla’s trial

      counsel and Bobadilla testified. Bobadilla’s counsel indicated: (1) that he

      personally marked “NA” in the boxes on the advisement form not containing

      Bobadilla’s initials, (2) that he never asked Bobadilla about his citizenship

      status, (3) that Bobadilla spoke fluent English and was familiar with American

      customs, (4) that he did not understand Bobadilla was a Hispanic name at the

      time, and (5) that Bobadilla never informed him that he was not a naturalized

      citizen.


[5]   Bobadilla explained during the hearing that his DACA status was at risk as a

      result of the conviction.3 He also told the court that he did not read the

      statements on the advisement form marked with an “NA” because his trial




      2
       Bobadilla’s trial counsel had a copy of the Officer’s Arrest Report Book-In Slip which indicated Bobadilla’s
      place of birth as Cuernavaca, Mexico. See Appellant’s App. pp. 49, 51.
      3
        The Immigration and Nationality Act provides that an alien is deportable when convicted of
      an aggravated felony. 8 U.S.C. § 1227(a)(2)(A)(iii). Bobadilla’s theft conviction, although a misdemeanor, is
      considered an “aggravated felony” for immigration purposes because it is a “crime of violence” for which he
      received a sentence of a year or more. See 8 U.S.C. § 1101(a)(43)(G).



      Court of Appeals of Indiana | Opinion 29A02-1706-PC-1203 | January 25, 2018                      Page 3 of 15
      counsel told Bobadilla that they were not applicable to him—instead, he only

      read the statements next to which he personally initialed. However, Bobadilla

      admitted to reading the certification statement at the end of the advisement

      form indicating that he had read and understood each paragraph on the form—

      he then initialed next to it, and signed his name underneath.


[6]   The post-conviction court denied Bobadilla’s petition on April 17 with findings

      of fact and conclusions of law. Bobadilla then filed an emergency motion to

      correct error and a request for an expedited hearing on May 12.4 The post-

      conviction court denied the motion to correct error three days later without a

      hearing. Bobadilla now appeals.


                                       Discussion and Decision
[7]   The post-conviction petitioner bears the burden of establishing grounds for

      relief by a preponderance of the evidence. Willoughby v. State, 792 N.E.2d 560,

      562 (Ind. Ct. App. 2003), trans. denied. When a petitioner appeals the denial of a

      petition for post-conviction relief, the petitioner stands in the position of one

      appealing from a negative judgment. Id. On appeal, we do not reweigh evidence

      nor judge the credibility of witness; therefore, to prevail, Bobadilla must show




      4
       Bobadilla’s emergency motion to correct error indicated that Bobadilla was transferred to the custody of
      U.S. Immigration and Customs Enforcement on May 3. Appellant’s App. p. 45. It also stated that Bobadilla
      was processed, and was eligible for deportation as soon as May 31. Id. at 46. Although Bobadilla’s
      whereabouts are not clear from the record, his brief indicates that Bobadilla has been deported. Appellant’s
      Br. at 6.



      Court of Appeals of Indiana | Opinion 29A02-1706-PC-1203 | January 25, 2018                      Page 4 of 15
      that the evidence as a whole leads unerringly and unmistakably to a conclusion

      opposite that reached by the post-conviction court. Id.


[8]   Where here, the post-conviction court made specific findings of fact and

      conclusions of law in accordance with Indiana Post-Conviction Rule 1(6), we

      must determine if the court’s findings are sufficient to support its judgment.

      Graham v. State, 941 N.E.2d 1091, 1096 (Ind. Ct. App. 2011), aff’d on reh’g, 947

      N.E.2d 962. Although we do not defer to the post-conviction court’s legal

      conclusions, we review the post-conviction court’s factual findings for clear

      error. Id. Accordingly, we will consider only the probative evidence and

      reasonable inferences flowing therefrom that support the post-conviction court’s

      decision. Id.


[9]   A claim of ineffective assistance of trial counsel here requires a showing that:

      (1) Bobadilla’s trial counsel’s performance was deficient by falling below an

      objective standard of reasonableness; and (2) that the deficient performance

      prejudiced Bobadilla such that “there is a reasonable probability that, but for

      counsel’s unprofessional errors, the result of the proceeding would have been

      different.” Strickland v. Washington, 466 U.S. 668, 694 (1984). Failure to satisfy

      either of the two elements will cause the claim to fail. French v. State, 778

      N.E.2d 816, 824 (Ind. 2002). And when it is easier to dispose of an

      ineffectiveness claim on the lack of prejudice, then this is the course we should

      follow. Trujillo v. State, 962 N.E.2d 110, 114 (Ind. Ct. App. 2011).




      Court of Appeals of Indiana | Opinion 29A02-1706-PC-1203 | January 25, 2018   Page 5 of 15
[10]   Because Bobadilla’s claims are based on his contention that he received

       ineffective assistance of counsel as part of his guilty plea, we examine his claims

       under our supreme court’s decision in Segura v. State, 749 N.E.2d 496 (Ind.

       2001). Segura categorizes two types of ineffective assistance of trial counsel

       claims made in the context of guilty pleas: (1) the failure to advise the defendant

       on an issue that impairs or overlooks a defense, and (2) an incorrect advisement

       of penal consequences. Id. at 500; see also Manzano v. State, 12 N.E.3d 321, 326

       (Ind. Ct. App. 2014), trans. denied.


[11]   Bobadilla contends that his trial counsel’s failure to advise him of the potential

       immigration consequences of his plea was prejudicial because he “was taken

       into custody by US Immigration and Customs Enforcement on May 3, 2017, as

       a result of his conviction for theft that was entered based on his guilty plea in

       this case.” Appellant’s Br. at 10.5 Thus, Bobadilla’s claim falls under Segura’s

       second category where “a petitioner must establish, by objective facts,

       circumstances that support the conclusion that counsel’s errors in advice as to

       penal consequences were material to the decision to plead.” Segura, 749 N.E.2d




       5
         Bobadilla also argues that the post-conviction court made several errors when it denied his petition for post-
       conviction relief. Appellant’s Br. at 8–11. However, the post-conviction court never addressed the “prejudice”
       prong of Strickland. Appellant’s App. p. 40. Because we decide this case on the prejudicial impact counsel’s
       alleged error had on Bobadilla, we decline to specifically address any error the trial court made in its denial of
       his petition for post-conviction relief. However, we do note that the State concedes that counsel’s
       performance here may have been deficient. See Appellee’s Br. at 11,13. Additionally, during the post-
       conviction hearing, Bobadilla’s trial counsel admitted that marking “NA” next to the paragraph regarding
       immigration status on the advisement form “fell below the norms and standards for a criminal defense
       attorney at that time.” Tr. p. 7. The State, however, objected to this testimony, and the objection was
       sustained by the post-conviction court.



       Court of Appeals of Indiana | Opinion 29A02-1706-PC-1203 | January 25, 2018                          Page 6 of 15
       at 507. Under this category, it is also appropriate to consider “the strength of

       the State’s case,” which a reasonable defendant would take into account when

       pondering a guilty plea, and “the benefit conferred upon the defendant.” Suarez

       v. State, 967 N.E.2d 552, 556 (Ind. Ct. App. 2012), trans. denied.


[12]   Bobadilla has failed to show that was he was prejudiced by trial counsel’s

       failure to advise him of the risk of deportation. We initially note that Bobadilla

       never asserted that he would have proceeded to trial had he known the potential

       consequences of his plea. When asked if he would have reacted differently had

       the statement pertaining to immigration consequences not been marked NA by

       trial counsel on the advisement form, Bobadilla merely stated, “Yes, I would. I

       would take a different approach to that.” Tr. p. 17. However, the approach

       Bobadilla would have taken is unclear, and his general statement is insufficient

       to establish prejudice based on improper advice from trial counsel.

       See Segura, 749 N.E.2d at 508 (Segura failed to meet required standard to show

       prejudice based on improper advice from counsel on penal consequences

       because he “offer[ed] nothing more than the naked allegation that his decision

       to plead would have been affected by counsel’s advice.”); see also Gulzar v. State,

       971 N.E.2d 1258, 1261 (Ind. Ct. App. 2012), trans. denied; State v. Bonilla, 957

       N.E.2d 682, 685 (Ind. Ct. App. 2011).


[13]   Moreover, the State’s case against Bobadilla was strong, and he received a

       substantial benefit by choosing to plea. At his plea hearing, Bobadilla agreed

       with the State’s factual basis for his theft and possession of marijuana



       Court of Appeals of Indiana | Opinion 29A02-1706-PC-1203 | January 25, 2018   Page 7 of 15
       convictions. And the State dropped two additional misdemeanor counts

       because Bobadilla accepted a plea agreement. Thus, Bobadilla admitted to the

       facts forming the basis of the crimes for which he was convicted, he received the

       benefit of avoiding two more convictions on his record, and he received an

       entirely suspended sentence from the court. See Clarke v. State, 974 N.E.2d 562,

       568 (Ind. Ct. App. 2012), trans. denied; Gulzar, 971 N.E.2d at 1262. Under our

       supreme court’s decision in Segura, Bobadilla has failed to establish that he

       would have proceeded to trial had he known of the adverse immigration risks,

       and he has failed to allege any special circumstances warranting post-conviction

       relief. Accordingly, we cannot say that Bobadilla was prejudiced by his trial

       counsel’s failure to advise him of the risk of deportation.


[14]   Bobadilla also contends that he has sufficiently proven prejudice under the

       United States Supreme Court’s recent decision in Lee v. U.S., 137 S. Ct. 1958

       (2017), which he argues lowers the bar for what must be shown in an

       immigration action to establish prejudice. Appellant’s Br. at 10. In that case,

       Lee was living in the United States as a lawful permanent resident when he was

       arrested for possessing ecstasy with intent to distribute. Lee entered into plea

       discussions with the Government, during which he repeatedly informed his

       attorney of his noncitizen status and his fear that he would be deported because

       of the criminal proceedings. Lee’s attorney incorrectly told him that he would

       not be deported as a result of pleading guilty. Based on his attorney’s

       assurances, Lee decided to plead guilty. Because Lee pleaded guilty to what

       qualified as an aggravated felony under the Immigration and Nationality Act,


       Court of Appeals of Indiana | Opinion 29A02-1706-PC-1203 | January 25, 2018   Page 8 of 15
       he was subject to mandatory deportation. Lee filed a motion in federal court

       arguing that he had been provided constitutionally ineffective assistance of

       counsel.


[15]   The Supreme Court found that Lee’s counsel had performed deficiently and

       that it was prejudicial because Lee had “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 v. Lockhart, 474 U.S.

       52, 59 (1985)). In finding prejudice, the Court noted the “unusual circumstances

       of this case” and explained that Lee had demonstrated that avoiding

       deportation was the determinative factor in his decision to accept the

       Government’s plea. Id. at 1968. The Court explained:


               When the judge warned him that a conviction “could result in
               your being deported,” and asked “[d]oes that at all affect your
               decision about whether you want to plead guilty or not,” Lee
               answered “Yes, Your Honor.” When the judge inquired “[h]ow
               does it affect your decision,” Lee responded “I don’t
               understand,” and turned to his attorney for advice. Only when
               Lee’s counsel assured him that the judge’s statement was a
               “standard warning” was Lee willing to proceed to plead guilty.


       Id. (citations omitted).


[16]   Finally, the Court rejected the Government’s argument that it would have been

       irrational for Lee to reject the plea offer in favor of trial because the evidence

       weighed so heavily against him. Id. The Court stated, “But for his attorney’s

       incompetence, Lee would have known that accepting the plea agreement


       Court of Appeals of Indiana | Opinion 29A02-1706-PC-1203 | January 25, 2018   Page 9 of 15
       would certainly lead to deportation. Going to trial? Almost certainly.” Id.

       (emphasis in original). The Court remarked that not all individuals may choose

       to reject a plea in Lee’s circumstances, but it was not irrational for him to do so

       because: (1) Deportation was the determinative issue in Lee’s decision to accept

       a plea agreement, (2) Lee had strong connections to the United States and not

       his “home” country South Korea, and (3) Lee’s potential consequences at trial

       were not markedly harsher then pleading guilty. Id. at 1968–69.


[17]   In the case before us, although Bobadilla may have strong ties to the United

       States and not Mexico; unlike Lee, Bobadilla has failed to show that

       deportation was a determinative issue in his decision to plead guilty. Rather,

       the evidence shows that his decision to plead guilty was more likely heavily

       influenced by the State’s agreement to drop two additional misdemeanor

       charges and its agreement to an entirely suspended sentence to probation.

       Importantly, Bobadilla never divulged his immigration status to his trial

       counsel, he never asked his attorney about deportation, and he also has never

       alleged that he would have gone to trial had he been properly informed of the

       immigration consequences of his plea. Further, Bobadilla’s potential

       consequences at trial were greater because he faced the prospect of two

       additional misdemeanor convictions. Accordingly, these factual distinctions

       between Bobadilla’s circumstances and Lee’s lead us to the conclusion that

       Bobadilla has failed to establish prejudice under Lee.




       Court of Appeals of Indiana | Opinion 29A02-1706-PC-1203 | January 25, 2018   Page 10 of 15
                                                  Conclusion
[18]   Because Bobadilla has failed to establish that he was prejudiced by his trial

       counsel’s deficient performance, he was not subjected to ineffective assistance

       of counsel. We therefore affirm the post-conviction court.


       Crone, J., concurs.


       Vaidik, C.J., dissents with opinion.




       Court of Appeals of Indiana | Opinion 29A02-1706-PC-1203 | January 25, 2018   Page 11 of 15
       ATTORNEY FOR APPELLANT                                     ATTORNEYS FOR APPELLEE
       John L. Tompkins                                           Curtis T. Hill, Jr.
       The Law Office of John L. Tompkins                         Attorney General of Indiana
       Indianapolis, Indiana                                      Monika Prekopa Talbot
       Kevin C. Muñoz                                             Supervising Deputy Attorney
       Muñoz Legal, LLC                                           General
       Indianapolis, Indiana                                      Indianapolis, Indiana



                                                   IN THE
           COURT OF APPEALS OF INDIANA

       Angelo Bobadilla,                                          January 25, 2017
       Appellant-Defendant,                                       Court of Appeals Case No.
                                                                  29A02-1706-PC-1203
               v.                                                 Appeal from the Hamilton
                                                                  Superior Court
       State of Indiana,                                          The Honorable J. Richard
       Appellee-Plaintiff.                                        Campbell, Judge
                                                                  Trial Court Cause No.
                                                                  29D04-1612-PC-9318



       Vaidik, Chief Judge, dissenting.


[19]   I respectfully dissent. First, I believe that Bobadilla has demonstrated deficient

       performance, in other words, that his trial counsel’s performance fell below an

       objective standard of reasonableness. The State apparently believes so, too. See

       Appellee’s Br. pp. 11, 13-14. That is, trial counsel wrote “N/A”—not

       Court of Appeals of Indiana | Opinion 29A02-1706-PC-1203 | January 25, 2018            Page 12 of 15
       applicable—next to the advisement “If you are not a U.S. citizen, a criminal

       conviction may have immigration consequences, including deportation,”

       Appellant’s App. Vol. II p. 26, without first asking Bobadilla whether this

       advisement applied to him. See Padilla v. Kentucky, 559 U.S. 356, 367 (2010)

       (“The weight of prevailing professional norms supports the view that counsel

       must advise her client regarding the risk of deportation.”). As a result of trial

       counsel marking “N/A,” Bobadilla did not read the advisement before pleading

       guilty.6


[20]   Second, I am fully convinced that Bobadilla has demonstrated a reasonable

       probability that he would have rejected the plea had he known that he would be

       deported. See Lee v. United States, 137 S. Ct. 1958, 1967 (2017). Eighteen-year-

       old Bobadilla faced four misdemeanor charges: Class A misdemeanor theft,

       Class A misdemeanor possession of a controlled substance, Class B

       misdemeanor possession of marijuana, and Class C misdemeanor possession of

       paraphernalia. Two of these offenses were not deportable under the

       Immigration and Nationality Act—possession of marijuana and possession of

       paraphernalia. See 8 U.S.C. § 1227(a)(2). Bobadilla pled guilty to theft, a




       6
         The majority notes that Bobadilla “admitted to reading the certification statement at the end of the
       advisement form indicating that he had read and understood each paragraph on the form.” Slip op. at 4
       (emphasis added). The certification is not so broad. It provides:
             I hereby certify . . . that I have read the above statements or that they were translated or read to
             me, that I understand each paragraph that applies to my case, and that I do waive and give up
             each and every right listed.
       Appellant’s App. Vol. II p. 26 (emphasis added). Bobadilla did not read the advisements marked “N/A” by
       his trial counsel.



       Court of Appeals of Indiana | Opinion 29A02-1706-PC-1203 | January 25, 2018                        Page 13 of 15
       deportable offense which was essentially shoplifting from Wal-Mart, see

       Appellant’s App. Vol. II p. 21 (factual basis for theft), and possession of

       marijuana, and the trial court sentenced him to one year of probation. When

       Bobadilla pled guilty, he was nineteen years old, was legally in the United

       States as a “Dreamer” under the Deferred Action for Childhood Arrivals

       (DACA) program, and had lived here for at least ten years.


[21]   After Bobadilla pled guilty and was sentenced to probation, he spoke to an

       immigration attorney, who informed him that his DACA status was at risk and

       that he was subject to deportation. Bobadilla then filed a petition for post-

       conviction relief alleging ineffective assistance of trial counsel. Bobadilla

       claimed that had he been properly advised of the risk of deportation, he would

       have “declined to accept the plea,” Appellant’s App. Vol. II p. 14, in other

       words, he would have rejected it. The post-conviction court denied Bobadilla

       relief. Within nine days of being detained by U.S. Immigration and Customs

       Enforcement, Bobadilla asked for an emergency hearing to reconsider the

       denial of his post-conviction petition. All this leads me to the conclusion that

       Bobadilla would have rejected the plea and either insisted on going to trial or

       attempted to negotiate a plea that did not include deportable offenses. Indeed,

       Bobadilla testified at the post-conviction hearing that had trial counsel advised

       him of the risk of deportation, he would have “reacted differently” and “take[n]

       a different approach.” Tr. Vol. II p. 17.




       Court of Appeals of Indiana | Opinion 29A02-1706-PC-1203 | January 25, 2018   Page 14 of 15
[22]   The majority suggests that Bobadilla would have accepted the plea even had he

       been advised of the risk of deportation because of “the State’s agreement to

       drop two additional misdemeanor charges” and “its agreement to an entirely

       suspended sentence to probation.” Slip op. at 10. But this conclusion is at odds

       not only with Bobadilla’s post-conviction petition and testimony but also with

       everyday experience. Most people in his situation would see removal to a

       country they have not lived in since they were children to be a serious enough

       punishment to justify the rejection of an arguably “favorable” misdemeanor

       plea and taking their chances at trial. See Lee, 137 S. Ct. at 1968 (explaining

       that it would not be irrational for the defendant to choose “almost certain[]”

       deportation after a trial over “certain[]” deportation under a plea agreement).

       Therefore, while it is theoretically possible that Bobadilla would have accepted

       the plea had he been properly advised of the risk of deportation, there is most

       definitely “a reasonable probability” that he would have rejected it. See id. at

       1967. As such, I would reverse the judgment of the post-conviction court.




       Court of Appeals of Indiana | Opinion 29A02-1706-PC-1203 | January 25, 2018   Page 15 of 15
