MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                     FILED
regarded as precedent or cited before any
                                                                     Jul 18 2017, 9:13 am
court except for the purpose of establishing
the defense of res judicata, collateral                                   CLERK
                                                                      Indiana Supreme Court
estoppel, or the law of the case.                                        Court of Appeals
                                                                           and Tax Court




ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
H. Samuel Ansell                                         Curtis T. Hill, Jr.
Indianapolis, Indiana                                    Attorney General of Indiana
                                                         Christina D. Pace
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Umesh Kaushal,                                           July 18, 2017
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         49A04-1612-CR-2862
        v.                                               Appeal from the Marion Superior
                                                         Court
State of Indiana,                                        The Honorable Sheila Carlisle,
Appellee-Plaintiff.                                      Judge
                                                         The Honorable Stanley E. Kroh,
                                                         Magistrate
                                                         Trial Court Cause No.
                                                         49G03-1508-F4-28287



Riley, Judge.




Court of Appeals of Indiana | Memorandum Decision 49A04-1612-CR-2862 | July 18, 2017          Page 1 of 18
                                STATEMENT OF THE CASE
[1]   Appellant-Defendant, Umesh Kaushal (Kaushal), appeals the trial court’s

      denial of his motion to withdraw his guilty plea to child molesting, a Level 4

      felony, Ind. Code § 35-42-4-3(b).


[2]   We affirm.


                                                    ISSUE
[3]   Kaushal raises two issues on appeal, which we consolidate and restate as the

      following issue: Whether the trial court abused its discretion by denying

      Kaushal’s motion to withdraw his guilty plea.


                      FACTS AND PROCEDURAL HISTORY
[4]   Kaushal, a citizen of India, has lived in the United States for nearly a decade

      and has a Green Card. On August 11, 2015, the State filed an Information,

      charging Kaushal with child molesting as a Level 4 felony. The State alleged

      that Kaushal had fondled his thirteen-year-old stepdaughter’s breast. Shortly

      after his arrest, Kaushal posted bond and retained an attorney. Kaushal, who

      owns and operates several convenience stores in Indianapolis, Marion County,

      Indiana, made it clear to his attorney that his priority was to avoid any amount

      of incarceration so that he could continue to run his businesses and care for his

      mother. Given Kaushal’s insistence against imprisonment, along with his

      professional opinion that Kaushal was not likely to succeed at trial, Kaushal’s

      attorney focused on negotiating a deal with the State.


      Court of Appeals of Indiana | Memorandum Decision 49A04-1612-CR-2862 | July 18, 2017   Page 2 of 18
[5]   On May 4, 2016, Kaushal entered into a plea agreement with the State,

      pursuant to which he agreed to plead guilty to the child molesting offense. The

      agreement provided that Kaushal would receive a four-year sentence, with a

      one-year cap on executed time and with placement for the executed time to be

      determined by the trial court. However, after conferring with his attorney and

      realizing that he could be confined for a portion of his sentence, Kaushal

      withdrew from the plea agreement.


[6]   On June 29, 2016, Kaushal entered into another plea agreement with the State,

      pursuant to which he again agreed to plead guilty to the offense of child

      molesting as a Level 4 felony. In exchange, Kaushal would receive a four-year

      suspended sentence, of which three years would be served on probation with a

      condition of home detention and one year on non-reporting probation. On

      June 30, 2016, the trial court conducted a hearing on Kaushal’s guilty plea.

      The trial court advised Kaushal of the implications of pleading guilty, including

      his obligation to comply with the Sex and Violent Offender Registry; his waiver

      of his right to appeal his conviction and/or sentence; and his waiver of certain

      constitutional rights, such as the right to a trial by jury and the right to confront

      and cross-examine witnesses. These warnings were also included in the written

      plea agreement, and Kaushal initialed next to each one to affirm his

      understanding. Also, among the written warnings was an advisement that, as a

      non-citizen, Kaushal could face deportation, denial of re-entry, prohibition of

      citizenship, or loss of immigration benefits as a result of the conviction. After

      questioning Kaushal, the trial court found that his guilty plea was made


      Court of Appeals of Indiana | Memorandum Decision 49A04-1612-CR-2862 | July 18, 2017   Page 3 of 18
      knowingly and voluntarily, and Kaushal agreed that there was a factual basis to

      support his conviction and that he was guilty of committing the charged

      offense. Accordingly, the trial court accepted the plea agreement and entered a

      judgment of conviction for child molesting as a Level 4 felony.


[7]   According to Kaushal, on July 1, 2016, he met with an attorney who focuses on

      immigration matters and learned that, as a result of his conviction for child

      molesting, he was likely to be immediately “picked up” by immigration

      officials. (Tr. Vol. II, p. 30). Thus, on July 21, 2016, Kaushal filed a Verified

      Motion to Withdraw Plea of Guilty. Kaushal argued that “[o]utside of a vague

      advisement that the conviction may have immigration consequences, [he] was

      not advised of potential immigration consequences and would not have pled

      guilty to the charged crime had he known it would subject him to automatic

      detention, revocation of his permanent resident status, and certain

      deportation.” (Appellant’s App. Vol. II, p. 16). Kaushal further stated that he

      pled guilty “in order to avoid prison without having knowledge that his ability

      to legally reside in the United States would end. Kaushal owns several

      businesses and considers the United States to be his home. Although he has

      [pled] guilty, Kaushal maintains his innocence and wishes to proceed to trial.”

      (Appellant’s App. Vol. II, p. 16). Kaushal added that withdrawing the plea

      would not prejudice the State because the case could still proceed to trial, and

      he insisted that withdrawal was necessary to correct a manifest injustice.




      Court of Appeals of Indiana | Memorandum Decision 49A04-1612-CR-2862 | July 18, 2017   Page 4 of 18
[8]   On August 5, 2016, and September 9, 2016, the trial court held hearings on

      Kaushal’s motion to withdraw his guilty plea. 1 Kaushal testified that his

      attorney never discussed the immigration consequences in urging Kaushal to

      plead guilty. Yet, in response to another question about conversations with his

      attorney regarding his Green Card, Kaushal also stated, “I think I’m not going

      to be ever U.S. citizen, or I’m never going to be deported after, like—in that

      quick until I—I just find immigration stuff.” (Tr. Vol. II, p. 28). Kaushal

      clarified that, while he understood there would be “a hard road after” pleading

      guilty, he did not realize “that it’s going to be that hard—[that he would get]

      deported that quick.” (Tr. Vol. II, p. 29). On the other hand, Kaushal’s

      attorney testified that he went through each paragraph of the plea agreement

      with Kaushal, including the paragraph regarding possible immigration

      consequences, and Kaushal did not have any questions as to what he was

      signing. Moreover, Kaushal’s attorney testified that Kaushal had informed him

      that he was contemporaneously conferring with immigration attorneys.

      Although Kaushal’s attorney stated that he does not practice immigration law,

      he specifically told Kaushal that his Green Card would not be renewed prior to

      Kaushal signing the plea agreement.


[9]   On November 7, 2016, the trial court issued an Order Denying Verified Motion

      to Withdraw Guilty Plea. The trial court determined that even though the State




      1
        By this time, Kaushal had retained new representation. In this decision, references to Kaushal’s attorney
      denotes his former attorney, who negotiated the plea agreement.

      Court of Appeals of Indiana | Memorandum Decision 49A04-1612-CR-2862 | July 18, 2017             Page 5 of 18
       had conceded that Kaushal’s attorney ineffectively advised Kaushal on the

       immigration consequences of pleading guilty, Kaushal failed to establish that he

       was prejudiced by his attorney’s advice. On December 2, 2016, Kaushal filed a

       motion to correct error, which the trial court denied on December 15, 2016.


[10]   On December 21, 2016, Kaushal filed his Notice of Appeal. On January 6,

       2017, Kaushal filed a motion to stay the proceedings pending appeal. Kaushal

       argued that “[u]pon the imposition of a sentence, [he] will be subject to

       mandatory detention and removal by Immigration and Customs Enforcement

       which, for all practical purposes, will result in the complete denial of his right to

       pursue the appellate review, afforded to him by statute, of the trial court’s

       denial of his motion to withdraw his guilty plea prior to sentencing.”

       (Appellant’s App. Vol. II, p. 33). This, according to Kaushal, “would cause

       irreparable harm.” (Appellant’s App. Vol. II, p. 33). On January 10, 2017, the

       trial court granted Kaushal’s motion to stay and vacated the sentencing hearing

       pending appellate review. Additional facts will be provided as necessary.


                               DISCUSSION AND DECISION
                                             I. Standard of Review

[11]   Indiana Code section 35-35-1-4(b) governs the withdrawal of guilty pleas where

       such motions are filed after the plea has been entered but prior to sentencing.

       This statute provides that, upon a written and verified motion to withdraw a

       guilty plea, the trial court may allow withdrawal “for any fair and just reason

       unless the state has been substantially prejudiced by reliance upon the

       defendant’s plea.” I.C. § 35-35-1-4(b). This decision by the trial court is subject
       Court of Appeals of Indiana | Memorandum Decision 49A04-1612-CR-2862 | July 18, 2017   Page 6 of 18
       to review only for an abuse of discretion. I.C. § 35-35-1-4(b). “However, the

       court shall allow the defendant to withdraw his plea of guilty, or guilty but

       mentally ill at the time of the crime, whenever the defendant proves that

       withdrawal of the plea is necessary to correct a manifest injustice.” I.C. § 35-

       35-1-4(b). In other words, the trial court is required to grant a motion to

       withdraw a guilty plea prior to sentencing


               “only if the defendant proves that withdrawal of the plea ‘is
               necessary to correct a manifest injustice.’ The court must deny a
               motion to withdraw a guilty plea if the withdrawal would result
               in substantial prejudice to the State. Except under these polar
               circumstances, disposition of the petition is at the discretion of
               the trial court.”


       Craig v. State, 883 N.E.2d 218, 221 (Ind. Ct. App. 2008) (quoting Weatherford v.

       State, 697 N.E.2d 32, 34 (Ind. 1998)).


[12]   “A trial court’s ruling on a motion to withdraw a guilty plea ‘arrives in this

       [c]ourt with a presumption in favor of the ruling.’” Brightman v. State, 758

       N.E.2d 41, 44 (Ind. 2001) (quoting Coomer v. State, 652 N.E.2d 60, 62 (Ind.

       1995)). “We will not disturb the court’s ruling where it was based on

       conflicting evidence.” McGraw v. State, 938 N.E.2d 1218, 1220 (Ind. Ct. App.

       2010), trans. denied. Rather, unless the trial court has abused its discretion in

       denying a motion to withdraw a guilty plea, we will uphold its decision. Centers

       v. State, 501 N.E.2d 415, 419 (Ind. 1986). Kaushal bears the burden of

       establishing the grounds for relief by a preponderance of the evidence. I.C. §

       35-35-1-4(e).

       Court of Appeals of Indiana | Memorandum Decision 49A04-1612-CR-2862 | July 18, 2017   Page 7 of 18
                                                II. Manifest Injustice

[13]   “Manifest injustice” is “necessarily [an] imprecise standard[], and an appellant

       seeking to overturn a trial court’s decision [faces] a high hurdle under the

       current statute and its predecessors.” Craig 883 N.E.2d at 221 (quoting

       Weatherford, 697 N.E.2d at 34). Pursuant to Indiana Code section 35-35-1-4(c),

       withdrawal of a plea is required to correct a manifest injustice, in pertinent part,

       when a convicted person has been denied the effective assistance of counsel or

       when a plea was not knowingly and voluntarily made. “Unless the defendant

       proves a manifest injustice by a preponderance of the evidence, the trial court

       has discretion to grant or deny the request.” Bland v. State, 708 N.E.2d 880, 882

       (Ind. Ct. App. 1999). On appeal, Kaushal argues that his plea must be

       withdrawn because his plea was not knowing and voluntary and because he

       was denied the effective assistance of counsel.


                                 A. Knowing, Voluntary, and Intelligent Plea

[14]   Kaushal contends that he “presented uncontroverted evidence that he had

       grossly misapprehended the immigration consequences of his guilty plea. The

       disparity between what he expected when he pled guilty and what he would

       receive as an immigration consequence is such that his decision to plead guilty

       was not made knowingly and intelligently.” (Appellant’s Br. pp. 14-15). 2




       2
         We reject the State’s assertion that Kaushal is precluded from raising the claim that he did not knowingly
       or intelligently plead guilty because such a claim must be pursued through a petition for post-conviction
       relief. A motion to withdraw a plea made after a sentence has been imposed must be treated as a petition for
       post-conviction relief. I.C. § 35-35-1-4(c). Here, however, Kaushal filed his motion to withdraw after
       acceptance of the plea but prior to sentencing. Thus, his direct appeal is the appropriate forum to challenge

       Court of Appeals of Indiana | Memorandum Decision 49A04-1612-CR-2862 | July 18, 2017              Page 8 of 18
       Because “[a] guilty plea constitutes a waiver of constitutional rights,” the trial

       court must “evaluate the validity of every plea before accepting it.” Davis v.

       State, 675 N.E.2d 1097, 1102 (Ind. 1996). In order for a guilty plea to be valid,

       “the defendant’s decision to plead guilty must be knowing, voluntary[,] and

       intelligent.” Id. (citing Boykin v. Alabama, 395 U.S. 238, 242-44 (1969)).

       Indiana law provides that a trial court cannot accept a guilty plea “without first

       determining that the defendant understands the nature of the charges against

       him and that pleading guilty waives a number of valuable constitutional rights.”

       Id. (citing I.C. § 35-35-1-2(a)). “[C]oncerns about injustice carry greater weight

       when accompanied by credible evidence of involuntariness, or when the

       circumstances of the plea reveal that the rights of the accused were violated.”

       Coomer, 652 N.E.2d at 62.


[15]   Prior to accepting Kaushal’s guilty plea, the trial court examined Kaushal in

       accordance with Indiana Code section 35-35-1-2(a). Specifically, in response to

       questions posed by the trial court, Kaushal testified that he was thirty-four years

       old and had completed “a little bit of college.” (Tr. Vol. II, p. 5). The trial

       court asked Kaushal whether he had read the entire plea agreement; whether he

       had personally initialed the agreement next to certain paragraphs in the

       agreement; and whether he understood everything in the plea agreement.

       Kaushal answered “Yes, sir” to each of these questions. (Tr. Vol. II, p. 5). The




       the voluntariness of his guilty plea. See Brightman, 758 N.E.2d at 44. As to the State’s alternative argument,
       to the extent that Kaushal has not developed a cogent argument with adequate citations to authority as
       required by Indiana Appellate Rule 46(A)(8)(a), we elect to address the merits of Kaushal’s argument.

       Court of Appeals of Indiana | Memorandum Decision 49A04-1612-CR-2862 | July 18, 2017               Page 9 of 18
       trial court further questioned Kaushal as to whether he understood that he

       would be admitting the allegations contained in the charging Information as

       true and—after reviewing the penalty range for a Level 4 felony, the sentencing

       terms of the plea agreement, the requirement that he register as a sex offender,

       and the special conditions for probation—asked Kaushal whether he

       understood the punishment. Again, Kaushal answered affirmatively. Kaushal

       also stated that he understood that he would be waiving his right to a public and

       speedy trial by jury; his right to confront and cross-examine witnesses; his right

       to utilize the compulsory process for obtaining witnesses; his right to require the

       State to prove the allegations beyond a reasonable doubt; his rights to testify or

       remain silent at trial; and his right to appeal the conviction. Kaushal agreed

       that he “had enough time to talk with [his] attorney . . . about the facts of the

       case and the plea agreement itself” and that he had “told [his attorney]

       everything that [he knew] about the case.” (Tr. Vol. II, p. 10). Kaushal stated

       that he was satisfied with the legal services that his attorney had provided.

       Finally, Kaushal stated that he was not pleading guilty because of force, threat,

       or promise by another; that he was not under the influence of alcohol or drugs;

       and that he did not suffer from any mental health issues. See Coomer, 652

       N.E.2d at 62 (discussing the trial court’s duty to examine a defendant prior to

       accepting the defendant’s guilty plea to confirm that the defendant is acting

       freely and knowingly).


[16]   Although the trial court did not specifically question Kaushal about his

       understanding of potential immigration consequences, he did ensure that


       Court of Appeals of Indiana | Memorandum Decision 49A04-1612-CR-2862 | July 18, 2017   Page 10 of 18
       Kaushal read and understood the contents of the plea agreement in their

       entirety. One paragraph of the plea agreement, which Kaushal initialed,

       stipulated: “Defendant affirms that if he/she is not a citizen of the United

       States, he/she wishes to enter a guilty plea even if a conviction in this case

       results in deportation, denial of re-entry, prohibition of citizenship, or loss of

       any future immigration benefit(s).” (Appellant’s Supp. App. Vol. II, p. 15).

       Accordingly, we agree with the trial court that Kaushal knowingly, voluntarily,

       and intelligently entered a guilty plea and, therefore, has failed to prove a

       manifest injustice on this basis.


                                      B. Ineffective Assistance of Counsel

[17]   Kaushal next contends that withdrawal of his guilty plea is necessary to correct

       a manifest injustice because his trial counsel rendered ineffective assistance by

       failing to advise him of the specific immigration consequences that he would

       incur by pleading guilty to a felony charge of child molestation. To prevail on a

       claim of ineffective assistance of counsel, a defendant must establish that his

       counsel’s performance was deficient and that such deficient performance

       resulted in prejudice to the defendant. Brightman, 758 N.E.2d at 46. Deficient

       performance is defined as that which “falls below an objective standard of

       reasonableness.” Id. (citing Strickland v. Washington, 466 U.S. 668, 687 (1984)).

       “Prejudice exists when a defendant shows ‘there is a reasonable probability

       [i.e., probability sufficient to undermine confidence in the outcome] that, but

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

       been different.’” Id. (alteration in original) (quoting Strickland, 466 U.S. at 694).


       Court of Appeals of Indiana | Memorandum Decision 49A04-1612-CR-2862 | July 18, 2017   Page 11 of 18
       Our court presumes that counsel rendered competent assistance, “and whether

       a lawyer performed reasonably under the circumstances is determined by

       examining the whole of the lawyer's work on a case.” Id. (citing Strickland, 466

       U.S. at 690). The defendant is required to “offer strong and convincing

       evidence to overcome the presumption that counsel prepared and executed an

       effective defense.” Id. (citing Burris v. State, 558 N.E.2d 1067, 10720 (Ind.

       1990), cert. denied, 516 U.S. 922 (1995)).


[18]   Kaushal argues that

               [t]he evidence of ineffective assistance of counsel by [his trial
               attorney] is overwhelming. He failed to correctly advise Kaushal
               of the immigration consequences of his plea, which by [federal]
               statute are presumptive detention and deportation. [The
               attorney’s] immigration advice that Kaushal’s [G]reen [C]ard
               would not be renewed, as well as the agreed sentence of three
               years of home detention while on probation, caused Kaushal to
               grossly mistake the severity and immediacy of the immigration
               consequences he would face.


       (Appellant’s Br. p. 16). Kaushal insists that he “would not have waived [his]

       trial rights had he not been grossly misinformed and misled by ineffective

       counsel as to the severe immigration consequences of his guilty plea.”

       (Appellant’s Br. p. 23). On the other hand, the State argues that Kaushal was

       aware of the immigration consequences prior to pleading guilty and now simply

       regrets his decision.


[19]   In Segura v. State, 749 N.E.2d 496, 500 (Ind. 2001), our supreme court stated

       that “the failure to advise of the consequence of deportation can, under some
       Court of Appeals of Indiana | Memorandum Decision 49A04-1612-CR-2862 | July 18, 2017   Page 12 of 18
circumstances, constitute deficient performance [of counsel].” Whether such a

failure to advise does actually constitute deficient performance “in a given case

is fact sensitive and turns on a number of factors. These presumably include the

knowledge of the lawyer of the client’s status as an alien, the client’s familiarity

with the consequences of conviction, the severity of criminal penal

consequences, and the likely subsequent effects of deportation.” Id. Recently,

our court stated:

        Defense attorneys have an obligation to advise their clients
        regarding the possible penal consequences of standing trial. One
        of the most important roles a defense attorney plays is to help
        clients navigate this complex decision-making process. It is
        incumbent upon the attorney to describe the best and worst case
        scenarios as to penal consequences the client would face whether
        the client pleads guilty, with or without a plea agreement, or
        stands trial.


Black v. State, 54 N.E.3d 414, 427 (Ind. Ct. App. 2016), trans. denied. Likewise,

our court “caution[ed]” in Carrillo v. State, 982 N.E.2d 468, 474-75 (Ind. Ct.

App. 2013) (citing Padilla v. Kentucky, 559 U.S. 356, 369 (2010)), that while “it

would be proper for the judiciary to play a part in ensuring that noncitizen

defendants are adequately advised of the immigration consequences of guilty

pleas,” “it would still be incumbent upon the defendant’s attorney to accurately

inform the noncitizen defendant of the deportation consequences of pleading

guilty where they can be easily determined from reading the relevant

immigration statute.” However, “‘[w]hen the law is not succinct and

straightforward . . . , a criminal defense attorney need do no more than advise a


Court of Appeals of Indiana | Memorandum Decision 49A04-1612-CR-2862 | July 18, 2017   Page 13 of 18
       noncitizen client that pending criminal charges may carry a risk of adverse

       immigration consequences.’” Id. at 475 (ellipsis in original) (quoting Padilla,

       559 U.S. at 369).


[20]   In Segura, the defendant accused his trial counsel of being ineffective for—as in

       the present case—failing to advise him of the immigration consequences prior

       to pleading guilty. Segura, 749 N.E.2d at 500. However, the Segura court did

       not address the deficiency of counsel’s performance because it found that, even

       if counsel’s performance was deficient, the defendant had failed to prove that he

       had been prejudiced. Id. The Segura court set the standard for establishing

       prejudice in cases concerning counsel’s errors in advice as to penal

       consequences:

               [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.
               Merely alleging that the petitioner would not have pleaded is
               insufficient. Rather, specific facts, in addition to the petitioner’s
               conclusory allegation, must establish an objective reasonable
               probability that competent representation would have caused the
               petitioner not to enter a plea.


       Id. at 507.


[21]   In Gulzar v. State, 971 N.E.2d 1258, 1259-60 (Ind. Ct. App. 2012), trans. denied,

       after pleading guilty and being sentenced for felony theft, the defendant—an

       immigrant from Pakistan—filed a petition for post-conviction relief, asserting

       that he had received ineffective assistance of trial counsel. Similar to the case at


       Court of Appeals of Indiana | Memorandum Decision 49A04-1612-CR-2862 | July 18, 2017   Page 14 of 18
       hand, the attorney in Gulzar did inform the defendant that the guilty plea could

       affect his immigration status but did not specify that the conviction would

       subject him to automatic deportation. Id. at 1260. The defendant claimed that

       his counsel’s failure to explain the risk of deportation was prejudicial because

       he would have otherwise rejected the plea agreement. Id. at 1261. Our court

       noted that “[s]imply alleging that the [defendant] would not have pled [guilty]”

       was insufficient to establish that the defendant has been prejudiced by any error

       in counsel’s failure to advise the defendant of penal consequences. Id. Rather,

       “specific facts, in addition to the [defendant’s] conclusory allegation, must

       establish an objective reasonable probability that competent representation

       would have caused the [defendant] not to enter a plea.” Id. The defendant in

       Gulzar argued that deportation “would be especially difficult for him and [his

       nuclear family].” Id. Notwithstanding these “special circumstances related to

       his family,” our court found that “the evidence establishing his guilt” supported

       a finding that, “at the end of the day, the inevitable result is conviction and the

       same sentence.” Id. at 1262. Furthermore, the defendant “secure[d] a

       significant benefit by reducing his liability” through the guilty plea. Id. Thus,

       we found the defendant failed to establish that he was prejudiced by his

       counsel’s failure to advise him that a guilty plea would result in automatic

       deportation. Id.


[22]   In the present case, assuming arguendo that his attorney’s failure to specifically

       advise Kaushal of the immediate possibility of deportation was deficient, we

       find that certain factors do favor a finding that Kaushal was prejudiced.

       Court of Appeals of Indiana | Memorandum Decision 49A04-1612-CR-2862 | July 18, 2017   Page 15 of 18
Although Kaushal’s appellate brief is devoid of any argument regarding special

circumstances that would support a conclusion that he would not have pled

guilty absent the faulty advice of his attorney, 3 his motion to withdraw contends

that he pled “guilty in order to avoid prison without having knowledge that his

ability to legally reside in the United States would end. Kaushal owns several

businesses and considers the United States to be his home. Although he has

[pled] guilty, Kaushal maintains his innocence and wishes to proceed to trial.”

(Appellant’s App. Vol. II, p. 16). In addition, evidence elicited during the

hearing on Kaushal’s motion to withdraw indicates that Kaushal takes care of

his mother. Kaushal’s ties to this country—namely his business and his

mother—are “special circumstances” that could support a finding that Kaushal

was prejudiced by his attorney’s failure to adequately advise him of the penal

consequences of his plea. See Gulzar, 971 N.E.2d at 1261. Moreover, we note

that the factual basis set forth by the State to support Kaushal’s guilty plea

simply provided that “on August 8, 2015, . . . Kaushal did perform or submit to

fondling or touching with M.S., a child under the age of [fourteen] years,

specifically [thirteen] years, with the intent to arouse or satisfy the sexual

desires of . . . Kaushal or M.S. All of that occurred in Marion County and is

contrary to the laws of the State of Indiana.” (Tr. Vol. II, p. 13). This ‘factual

basis’ amounts more to a recitation of the elements necessary to prove the



3
  Rather, Kaushal’s argument focuses on accusing his trial counsel of collecting his fee and then “urgent[ly]”
advising a reluctant Kaushal to plead guilty in order to avoid having to prepare for a trial. (Appellant’s Br. p.
20). We find Kaushal’s claims regarding the efforts of his counsel to be irrelevant to the matter of whether
Kaushal received ineffective advice as to the penal consequences of pleading guilty.

Court of Appeals of Indiana | Memorandum Decision 49A04-1612-CR-2862 | July 18, 2017               Page 16 of 18
       offense rather than a statement of facts to prove those elements. Thus, unlike in

       Gulzar, we can hardly say that there is overwhelming evidence of his guilt such

       that the ultimate result would have likely been the same regardless of whether

       Kaushal pled guilty or proceeded to trial.


[23]   Nevertheless, Kaushal undoubtedly received a substantial benefit by pleading

       guilty, as he received an entirely suspended sentence for an offense that carries a

       possible term of incarceration of two to twelve years. See I.C. § 35-50-2-5.5.

       Furthermore, Kaushal’s counsel testified that he informed Kaushal, prior to

       pleading guilty, that Kaushal’s Green Card would not be renewed, and when he

       reviewed the contents of the plea agreement with Kaushal, including the

       paragraph indicating a risk of deportation, Kaushal affirmed his understanding.

       Moreover, the trial court confirmed that Kaushal had read, understood, and

       signed the provision of the plea agreement discussing the possibility of

       deportation. See Barajas v. State, 987 N.E.2d 176, 181 (Ind. Ct. App. 2013)

       (finding that even if trial counsel had performed below prevailing professional

       norms by failing to explain the potential immigration consequences of pleading

       guilty, the defendant was not prejudiced because the trial court explained that

       his guilty plea could possibly result in deportation). In addition, Kaushal

       conceded that he was aware that he would face hurdles with respect to his

       immigration status, despite his mistaken belief that he would have the time and

       ability to appeal any immigration consequences with immigration officials, but

       he was apparently willing to accept those risks in order to avoid spending any

       amount of time incarcerated. Thus, although his attorney did not advise of the


       Court of Appeals of Indiana | Memorandum Decision 49A04-1612-CR-2862 | July 18, 2017   Page 17 of 18
       specific immigration consequences, it is clear that Kaushal was advised of the

       possibility that he would be deported if he pled guilty but chose to do so

       regardless. Accordingly, because he has failed to establish that he was

       prejudiced by his attorney’s performance, he has not proven that the withdrawal

       of his guilty plea was necessary to correct a manifest injustice. Therefore, the

       trial court had discretion to deny Kaushal’s motion to withdraw his guilty plea.


                                             CONCLUSION
[24]   Based on the foregoing, we conclude that the trial court acted within its

       discretion in denying Kaushal’s motion to withdraw his guilty plea.


[25]   Affirmed.


[26]   Najam, J. and Bradford, J. concur




       Court of Appeals of Indiana | Memorandum Decision 49A04-1612-CR-2862 | July 18, 2017   Page 18 of 18
