      MEMORANDUM DECISION                                                       FILED
                                                                            Jun 08 2016, 8:08 am
      Pursuant to Ind. Appellate Rule 65(D), this
      Memorandum Decision shall not be regarded as                              CLERK
                                                                            Indiana Supreme Court
      precedent or cited before any court except for the                       Court of Appeals
                                                                                 and Tax Court
      purpose of establishing the defense of res judicata,
      collateral estoppel, or the law of the case.



      ATTORNEYS FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
      David E. Deal                                             Gregory F. Zoeller
      Indianapolis, Indiana                                     Attorney General of Indiana
      Rodney T. Sarkovics                                       Angela Sanchez
      Sarkovics Law                                             Deputy Attorney General
      Carmel, Indiana                                           Indianapolis, Indiana


                                                   IN THE
          COURT OF APPEALS OF INDIANA

      Byung Soo Kim,                                           June 8, 2016

      Appellant-Petitioner,                                    Court of Appeals Case No.
                                                               79A02-1511-PC-1817
              v.                                               Appeal from the Tippecanoe
                                                               Superior Court.
                                                               The Honorable Sean M. Persin,
      State of Indiana,                                        Judge.
      Appellee-Respondent.                                     Cause No. 79D05-1504-PC-1




      Friedlander, Senior Judge

[1]   Byung Soo Kim appeals from the post-conviction court’s order denying his

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

      ineffective and that he was prejudiced by the inadequate representation. The




      Court of Appeals of Indiana | Memorandum Decision 79A02-1511-PC-1817 | June 8, 2016           Page 1 of 11
      sole issue Kim raises on review is whether he received ineffective assistance of

      trial counsel. We affirm.


[2]   Kim is from South Korea. He came to the United States on an F-1 Visa to

      attend Purdue University in Lafayette, Indiana. On April 26, 2012, Kim

      removed a laptop that belonged to another student from the lobby of a

      residence hall. At the time the incident occurred, Kim was a sophomore at the

      university. Kim had the laptop in his possession for approximately three or

      four days before he was apprehended by campus police when he attempted to

      logon to the laptop using his personal credentials. Kim admitted to police he

      took the laptop.

                                                                                      1
[3]   On May 1, 2012, Kim was charged with Class D felony theft. Kim retained

      attorney Russell Stults to represent him in the matter. Kim eventually entered

      into a written plea agreement and agreed to plead guilty to Class A
                                          2
      misdemeanor conversion. The theft charge was dismissed. A guilty plea

      hearing was held on February 20, 2013. The trial court accepted the guilty plea

      and sentenced Kim to ninety days in jail, which was suspended to unsupervised

      probation. Kim graduated from Purdue University in May 2015.


[4]   Kim filed a petition for post-conviction relief on April 10, 2015, arguing

      ineffective assistance of trial counsel. Kim claimed counsel failed to properly




      1
          Ind. Code § 35-43-4-2(a) (West, Westlaw 2009).
      2
          Ind. Code § 35-43-4-3(a) (West, Westlaw 2011).


      Court of Appeals of Indiana | Memorandum Decision 79A02-1511-PC-1817 | June 8, 2016   Page 2 of 11
      advise him of the impact a criminal conviction would have on his immigration

      status. He further claimed that had he been properly advised, there is a

      reasonable probability he “would have pursued alternative dispositions.” See

      Appellant’s App. p. 11, Verified Petition for Post-Conviction Relief. A hearing

      was held on the matter on July 16, 2015. On October 6, 2015, the post-

      conviction court issued written findings of fact and conclusions of law denying

      Kim’s request for post-conviction relief.


[5]   The findings of fact and conclusions of law provide, in relevant part, as follows:

                                           FINDINGS OF FACT
              1.       At all relevant times herein, Petitioner has been a Korean
                       national. He was admitted to the United States on an F-1
                       student visa for the limited purpose of attending Purdue
                       University.
              2.       Petitioner studied English as a second language in Korea
                       starting at the age of 10. He attended a college preparatory
                       school in Canada for three year [sic], then attended Purdue
                       University and graduated with a G.P.A. of 2.68.
                       Petitioner was required to read, write and speak the
                       English [sic] while attending school in Canada and the
                       United States.
              3.       The Court takes judicial notice of 79D05-1205-FD-213[,
                                                        3
                       Kim’s guilty plea case].
              4.       As part of the Initial Hearing in FD-213, Petitioner read an
                       Advice of Rights form, which advised: “If you are not a
                       United States citizen, a conviction may affect your



      3
       The post-conviction court took judicial notice of, and relied upon, documents outside of the post-conviction
      proceeding.

      Court of Appeals of Indiana | Memorandum Decision 79A02-1511-PC-1817 | June 8, 2016              Page 3 of 11
                 immigration status.” Petitioner signed the Advice of
                 Rights form, acknowledging that he read the form and
                 understood his rights.
        5.       Prior to his guilty plea, Petitioner read another Advice of
                 Rights form, which advised: “If you are not a United
                 States citizen, a conviction may affect your immigration
                 status.” Petitioner signed this Advice of Rights form,
                 acknowledging that he read the form and understood his
                 rights.
        6.       Petitioner did not request an interpreter for the guilty plea
                 hearing. A review of the transcript shows Petitioner
                 appropriately responded to questions in court. Petitioner
                 understood the proceedings.
        7.       Petitioner was represented by an attorney at the guilty plea
                 hearing.
        8.       Although it is unclear what immigration advice Mr.
                 Stult[s] provided, Petitioner clearly discussed his
                 immigration status with Mr. Stult[s] prior to the guilty plea
                 hearing, and Petitioner’s mother was included in those
                 discussions.
        9.       Petitioner was not deported as a result of his conviction for
                 Conversion as a Class A misdemeanor and 90 day
                 suspended sentence. Rather, he was allowed to stay in the
                 United States and receive his degree from Purdue
                 University.
                                                                     4
        10.      Petitioner has now returned to Korea, and he has no
                 immediate plans to return to the United States.
        11.      Petitioner testified that he has filed this request for post-
                 conviction relief because he is embarrassed by his
                 conviction. He has not shown any prejudice resulting



4
  At the time Kim’s post-conviction hearing was held, he had completed his probation. Kim was scheduled
to leave the country and return to Korea approximately two weeks after the post-conviction hearing was held.

Court of Appeals of Indiana | Memorandum Decision 79A02-1511-PC-1817 | June 8, 2016            Page 4 of 11
                 from the advice he received from his prior attorney, Mr.
                 Stult[s].
        12.      Petitioner received the benefit of a plea agreement that
                 dismissed a felony theft charge, resulted in no jail time,
                 and allowed him to graduate from Purdue University,
                 despite strong evidence, including a confession to law
                 enforcement officers. Petitioner has failed to present
                 credible evidence that he would have acted differently
                 upon receiving different advice from his prior attorney,
                 Mr. Stult[s].


                                 CONCLUSIONS OF LAW
        13.      Petitioner was informed that pleading guilty to Conversion
                 as a Class A misdemeanor could affect his immigration
                 status, and he understood his rights.
        14.      Based on the post-conviction evidence presented by
                 Petitioner, the Court cannot say that trial counsel was
                 ineffective under the Segura [v. State, 749 N.E.2d 496 (Ind.
                 2001)] or Padilla [v. Kentucky, 559 U.S. 356, 130 S.Ct.
                 1473, 176 L. Ed. 2d 284 (2010)] standards.
        15.      Petitioner has failed to show any prejudice resulting [sic]
                 the advice of [his trial counsel] or the plea agreement,
                 which dismissed a felony charge, resulted in no additional
                 jail time, and allowed him to graduate from Purdue
                 University.
        16.      Petitioner is most concerned about the stigma of having a
                 criminal conviction on his record. The Court notes that
                 nothing in this Order shall prevent Petitioner from filing a
                 petition to expunge the records once he [sic] eligible to do
                 so.
        Accordingly, the Court now DENIES Petitioner’s request for
        post-conviction relief.


Id. pp. 6-7. Kim appeals the denial of his petition for post-conviction relief.
Court of Appeals of Indiana | Memorandum Decision 79A02-1511-PC-1817 | June 8, 2016   Page 5 of 11
[6]   “The petitioner in a post-conviction proceeding bears the burden of establishing

      grounds for relief by a preponderance of the evidence.” Campbell v. State, 19

      N.E.3d 271, 273-74 (Ind. 2014). “When appealing the denial of post-conviction

      relief, the petitioner stands in the position of one appealing from a negative

      judgment.” Id. at 274. “To prevail on appeal from the denial of post-

      conviction relief, a petitioner must show that the evidence as a whole leads

      unerringly and unmistakably to a conclusion opposite that reached by the post-

      conviction court.” Id. The post-conviction court in this case made findings of

      fact and conclusions of law. “Although we do not defer to the post-conviction

      court’s legal conclusions, ‘[a] post-conviction court’s findings and judgment will

      be reversed only upon a showing of clear error – that which leaves us with a

      definite and firm conviction that a mistake has been made.’” Id. (quoting Ben-

      Yisrayl v. State, 729 N.E.2d 102, 106 (Ind. 2000), (internal quotation omitted)).


[7]   A claim of ineffective assistance of trial counsel requires a showing that: (1)

      counsel’s performance was deficient by falling below an objective standard of

      reasonableness based on prevailing professional norms; and (2) counsel’s

      performance prejudiced the defendant such that “‘there is a reasonable

      probability that, but for counsel’s unprofessional errors, the result of the

      proceeding would have been different.’” Davidson v. State, 763 N.E.2d 441, 444

      (Ind. 2002), (quoting Strickland v. Washington, 466 U.S. 668, 694, 104 S.Ct.

      2052, 2068, 80 L. Ed. 2d 674 (1984)). Failure to satisfy either of the two

      elements will cause the claim to fail. Gulzar v. State, 971 N.E.2d 1258, 1261

      (Ind. Ct. App. 2012) (citing French v. State, 778 N.E.2d 816, 824 (Ind. 2002)),

      Court of Appeals of Indiana | Memorandum Decision 79A02-1511-PC-1817 | June 8, 2016   Page 6 of 11
       trans. denied. “If it is easier to dispose of an ineffectiveness claim on the ground

       of lack of sufficient prejudice, that course should be followed.” Trujillo v. State,

       962 N.E.2d 110, 114 (Ind. Ct. App. 2011) (citing Landis v. State, 749 N.E.2d

       1130, 1134 (Ind. 2001)). “There is a strong presumption that counsel rendered

       adequate service.” Bethea v. State, 983 N.E.2d 1134, 1139 (Ind. 2013).


[8]    Kim contends his trial counsel was ineffective because he failed to “properly

       advise [him] of the immigration consequences associated with his criminal

       misdemeanor conviction.” Appellant’s Br. p. 5. According to Kim, he learned

       after signing his plea agreement his conviction could preclude his reentry into

       the United States. Kim maintains he would not have pled guilty had he been

       properly advised.


[9]    Because Kim’s claims for post-conviction relief are based on his contention that

       he received ineffective assistance of counsel as part of his guilty plea, we

       examine his claims under Segura v. State, 749 N.E.2d 496 (Ind. 2001). Segura

       categorizes two main types of ineffectiveness in relation to a guilty plea, the

       second of which is implemented here. See Clarke v. State, 974 N.E.2d 562, 565

       (Ind. Ct. App. 2012). This second category relates to claims of improper

       advisement of penal consequences, and is divided into two subcategories: (1)

       “claims of promised leniency;” and (2) “claims of incorrect advice as to the

       law.” Segura, 749 N.E.2d at 504.


[10]   Kim’s claim of ineffective assistance of counsel falls under the second

       subcategory of the improper advisement of penal consequences. To state a


       Court of Appeals of Indiana | Memorandum Decision 79A02-1511-PC-1817 | June 8, 2016   Page 7 of 11
       claim for post-conviction relief under this subcategory, a petitioner must

       “establish, by objective facts, circumstances that support the conclusion that

       counsel’s error in advice as to penal consequences were material to the decision

       to plead.” Id. at 507. It is appropriate to consider, along with the special

       circumstances presented, “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. “[I]f the post-conviction court finds that the

       petitioner would have pleaded guilty even if competently advised as to the penal

       consequences, the error in advice is immaterial to the decision to plead and

       there is no prejudice.” Segura, 749 N.E.2d at 505.


[11]   Regarding Kim’s allegation that his trial counsel’s performance was deficient,

       we disagree. Although it is unclear what immigration advice Kim’s counsel

       provided him, the post-conviction court found Kim’s trial counsel discussed

       potential immigration consequences with Kim and that Kim’s mother was
                                                                                                    5
       included in the discussions. Also, Kim was not facing deportation; and, it

       appears, contrary to Kim’s belief, his conviction may not affect his eligibility to
                                            6
       return to the United States . Furthermore, Kim’s trial counsel did not testify at



       5
         Cf. Padilla v. Kentucky, 559 U.S. 356, 369, 130 S. Ct. 1473, 1483, 176 L. Ed. 2d 284, 296 (2010) (where client
       is a noncitizen, and law as to immigration consequences of plea is unambiguous, defense counsel must advise
       that deportation “will” result from a conviction; but where immigration consequences of a conviction are
       unclear, counsel must advise that deportation “may” result), emphasis added.
       6
         In his post-conviction relief petition, Kim implies that under 8 U.S.C. § 1182(a), his conviction for
       conversion would prevent him from being able to return to the United States. However, it appears under this
       section of the code, Kim would be eligible to return to the United States. The provision provides in relevant

       Court of Appeals of Indiana | Memorandum Decision 79A02-1511-PC-1817 | June 8, 2016                Page 8 of 11
                                              7
       the post-conviction hearing. From this, we may infer trial counsel would not

       have corroborated Kim’s ineffective counsel allegations. See Oberst v. State, 935

       N.E.2d 1250, 1254 (Ind. Ct. App. 2010) (when counsel is not called to testify in

       support of petitioner’s arguments, post-conviction court may infer counsel

       would not have corroborated petitioner’s allegations), trans. denied.


[12]   Even assuming, arguendo, that Kim’s trial counsel performed below prevailing

       professional norms by not discussing more fully the potential immigration

       consequences of pleading guilty, Kim has shown no prejudice. Kim offers only

       general statements that he would not have pled guilty had he been properly

       advised by trial counsel. At his post-conviction hearing, Kim testified: “If I

       [had been informed that pleading guilty could preclude my ability to reenter the

       United States at a later date,] I would have asked my [trial counsel] if I had

       other options.” Tr. p. 33. In his Verified Petition for Post-Conviction Relief,

       Kim states he “would have . . . decided not to give up his right to trial” had he



       part: “. . . aliens who are inadmissible under the following paragraphs are ineligible to receive visas and
       ineligible to be admitted to the United States: . . . any alien convicted of, or who admits having committed,
       or who admits committing acts which constitute the essential elements of . . . a crime involving moral
       turpitude (other than a purely political offense) or an attempt or conspiracy to commit such a crime . . . .” See
       8 U.S.C. 1182(a), 8 U.S.C. 1182(a)(2)(A)(i)(I). This clause, however, does not apply “to an alien who
       committed only one crime if . . . the maximum penalty possible for the crime of which the alien was
       convicted . . . did not exceed imprisonment for one year and, if the alien was convicted of such crime, the
       alien was not sentenced to a term of imprisonment in excess of 6 months . . . .” See 8 U.S.C. §
       1182(a)(2)(A)(ii)(II).
       7
         The prosecutor attempted to subpoena Kim’s trial counsel to testify at the post-conviction hearing and
       attempted to enter into evidence an affidavit from trial counsel. Regarding the subpoena, defense counsel
       argued, “We certainly didn’t subpoena [trial counsel] because I don’t believe we need him to make our PCR
       petition.” Tr. p. 3. Regarding trial counsel’s affidavit, defense counsel stated, “I was provided [the affidavit]
       . . . at approximately three or four p.m. [sic] maybe a little later. . . And so, we object for not only the late
       notice but also the fact that I don’t [sic] any way to cross[-]examine [trial counsel].” Id. The affidavit was
       not admitted.

       Court of Appeals of Indiana | Memorandum Decision 79A02-1511-PC-1817 | June 8, 2016                  Page 9 of 11
       been properly advised by his trial counsel. Appellant’s App. p. 9. Kim’s

       general statements, however, are insufficient to establish prejudice based on

       improper advice from 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.”)


[13]   Furthermore, the post-conviction record indicates Kim was advised by the trial

       court of the immigration consequences of pleading guilty. Prior to pleading

       guilty, Kim signed two Advice of Rights forms that advised: “If you are not a

       United States citizen, a conviction could affect your immigration status.”

       Appellant’s App. p. 6. By signing the forms, Kim acknowledged that he read

       and understood the information contained in the forms. At the guilty plea

       hearing, the trial court asked Kim if he understood his rights as explained in the
                                                                                         8
       Advice of Rights forms. Kim answered in the affirmative.


[14]   Regarding the State’s case against Kim, the amount of incriminating evidence,

       including a confession to campus police, strongly supports the presumption that




       8
        In his affidavit in support of his petition for post-conviction relief and at his post-conviction hearing, Kim
       maintained he did not “understand what was going on” when he was talking to the judge during the guilty
       plea proceedings and that he had difficulty understanding what occurred at this guilty plea hearing. See
       Appellant’s App. p. 13 and Tr. pp. 38-39. But, Kim did not request an interpreter at his guilty plea hearing.
       An interpreter was present for Kim’s post-conviction relief hearing.



       Court of Appeals of Indiana | Memorandum Decision 79A02-1511-PC-1817 | June 8, 2016                Page 10 of 11
       Kim would not have risked proceeding to trial on a charge of Class D felony

       theft. Furthermore, Kim derived great benefit from the guilty plea. By

       accepting the plea deal, Kim received a ninety-day jail sentence that was

       suspended to unsupervised probation, and he was allowed to continue pursuing

       his education at Purdue University. In addition, Kim testified that he has no

       plans to return to the United States. Kim has failed to meet his burden of

       demonstrating prejudice as a result of counsel’s alleged failure to properly

       advise him regarding immigration consequences.


[15]   We find Kim’s trial counsel’s performance was not deficient and Kim has failed

       to show how any alleged deficient performance prejudiced him.


[16]   Judgment affirmed.


[17]   Robb, J., and Bailey, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 79A02-1511-PC-1817 | June 8, 2016   Page 11 of 11
