MEMORANDUM DECISION
                                                                                FILED
Pursuant to Ind. Appellate Rule 65(D), this                                Jan 29 2019, 9:28 am
Memorandum Decision shall not be regarded as
precedent or cited before any court except for the                              CLERK
                                                                            Indiana Supreme Court
purpose of establishing the defense of res judicata,                           Court of Appeals
                                                                                 and Tax Court
collateral estoppel, or the law of the case.



ATTORNEY FOR APPELLANT                                 ATTORNEYS FOR APPELLEE
Johnny W. Ulmer                                        Curtis T. Hill, Jr.
Ulmer Law Office, Inc.                                 Attorney General of Indiana
Bristol, Indiana
                                                       J.T. Whitehead
                                                       Deputy Attorney General
                                                       Indianapolis, Indiana



                                             IN THE
    COURT OF APPEALS OF INDIANA

Javier Gonzalez,                                           January 29, 2019

Appellant-Petitioner,                                      Court of Appeals Case No.
                                                           18A-PC-2284

        v.                                                 Appeal from the Elkhart Superior
                                                           Court
State of Indiana,                                          The Hon. Charles C. Wicks, Judge
                                                           Trial Court Cause No.
Appellee-Respondent.
                                                           20D05-1804-PC-20




Bradford, Judge.




Court of Appeals of Indiana | Memorandum Decision 18A-PC-2284 | January 29, 2019                    Page 1 of 5
                                          Case Summary
[1]   In 2003, Javier Gonzalez, who was (and is) in the United States illegally, pled

      guilty in Elkhart County to Class D felony cocaine possession, a conviction that

      was eventually reduced to a misdemeanor. In 2018, Gonzalez petitioned for

      post-conviction relief (“PCR”), claiming that he had received ineffective

      assistance from his trial counsel because she failed to inquire about his

      immigration status or advise him of the possibility of deportation if he pled

      guilty. During a hearing on Gonzalez’s PCR petition, neither he nor his trial

      counsel could recall if she had inquired about his immigration status. The post-

      conviction court denied Gonzalez’s PCR petition. Gonzalez claims that the

      post-conviction court erred in denying his PCR petition. Because we disagree,

      we affirm.



                            Facts and Procedural History
[2]   On August 25, 2003, Gonzalez pled guilty to Class D felony cocaine

      possession. Gonzalez did not directly appeal his conviction or sentence.

      Gonzalez managed to have his conviction reduced from a felony to a

      misdemeanor in 2012 or 2013. On April 19, 2018, Gonzalez petitioned for

      PCR, alleging that his trial counsel had been deficient in failing to warn him

      that his conviction might result in his deportation and that he would not have

      pled guilty had he known. An evidentiary hearing on Gonzalez’s PCR petition

      was held on June 15, 2018. At the hearing, his trial counsel testified that she

      did not recall if she had asked Gonzalez about his immigration status before he

      Court of Appeals of Indiana | Memorandum Decision 18A-PC-2284 | January 29, 2019   Page 2 of 5
      pled guilty. When asked, Gonzalez himself could not recall if his trial counsel

      had asked him about his immigration status or whether he was a United States

      citizen. On August 29, 2018, the post-conviction court denied Gonzalez’s PCR

      petition.



                                 Discussion and Decision
[3]   Our standard for reviewing the denial of a PCR petition is well-settled:


              In reviewing the judgment of a post-conviction court, appellate
              courts consider only the evidence and reasonable inferences
              supporting its judgment. The post-conviction court is the sole
              judge of the evidence and the credibility of the witnesses. 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. […] 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.

      Hall v. State, 849 N.E.2d 466, 468–69 (Ind. 2006) (internal citations and

      quotations omitted).


[4]   Gonzalez claims that he received ineffective assistance of trial counsel. We

      review claims of ineffective assistance of counsel based upon the principles

      enunciated in Strickland v. Washington, 466 U.S. 668 (1984):


              Under Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80
              L. Ed. 2d 674 (1984), a claim of ineffective assistance of counsel
              requires a showing that: (1) counsel’s performance was deficient
      Court of Appeals of Indiana | Memorandum Decision 18A-PC-2284 | January 29, 2019   Page 3 of 5
              by falling below an objective standard of reasonableness based on
              prevailing professional norms; and (2) counsel’s performance
              prejudiced the defendant so much that “there is a reasonable
              probability that, but for counsel’s unprofessional errors, the result
              of the proceeding would have been different.” Id. at 687, 694,
              104 S. Ct. 2052; Lowery v. State, 640 N.E.2d 1031, 1041 (Ind.
              1994). […] Failure to satisfy either prong will cause the claim to
              fail. Vermillion v. State, 719 N.E.2d 1201, 1208 (Ind. 1999).

      French v. State, 778 N.E.2d 816, 824 (Ind. 2002).


[5]   Gonzalez claims that his trial counsel was ineffective for failing to inquire about

      his immigration status and advise him before he pled guilty that his conviction

      could potentially subject him to deportation. The factual assertions on which

      this claim is based are not supported by the record. Even if the post-conviction

      court had been required to believe evidence supporting Gonzalez’s claim

      (which it was not), the record does not contain any such evidence. When

      asked, his trial counsel replied that she did not recall if she asked Gonzalez

      about his immigration status before he pled guilty, and Gonzalez himself could

      not recall if his trial counsel asked him about his immigration status or whether

      he was a United States citizen. As for any advisement about possible

      deportation, there is no evidence one way or the other. Any finding favorable

      to Gonzalez’s claim of ineffective assistance of trial counsel would be based on

      nothing more than speculation. Because Gonzalez has failed to carry his

      burden to show deficient performance by his trial counsel, we need not evaluate

      his claim of prejudice.


[6]   The judgment of the post-conviction court is affirmed.


      Court of Appeals of Indiana | Memorandum Decision 18A-PC-2284 | January 29, 2019   Page 4 of 5
Bailey, J., and Brown, J., concur.




Court of Appeals of Indiana | Memorandum Decision 18A-PC-2284 | January 29, 2019   Page 5 of 5
