MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                    FILED
regarded as precedent or cited before any                           Nov 09 2018, 10:14 am
court except for the purpose of establishing                             CLERK
the defense of res judicata, collateral                              Indiana Supreme Court
                                                                        Court of Appeals
estoppel, or the law of the case.                                         and Tax Court




APPELLANT PRO SE                                        ATTORNEYS FOR APPELLEE
Laurentino Zuniga                                       Curtis T. Hill, Jr.
Michigan City, Indiana                                  Attorney General of Indiana
                                                        James B. Martin
                                                        Deputy Attorney General
                                                        Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Laurentino Zuniga,                                      November 9, 2018
Appellant-Petitioner,                                   Court of Appeals Case No.
                                                        02A03-1711-PC-2844
        v.                                              Appeal from the Allen Superior
                                                        Court
State of Indiana,                                       The Honorable John F. Surbeck,
Appellee-Respondent.                                    Judge
                                                        Trial Court Cause No.
                                                        02D04-0410-FA-60



Tavitas, Judge.




Court of Appeals of Indiana | Memorandum Decision 02A03-1711-PC-2844 | November 9, 2018      Page 1 of 15
                                             Case Summary
[1]   Laurentino Zuniga, pro se, appeals the post-conviction court’s (“PC court”)

      denial of his petition for post-conviction relief (“PCR”). We affirm.


                                                    Issues
[2]   Zuniga raises two issues on appeal, which we restate as follows:


              I.      Whether Zuniga entered his guilty plea with knowledge of his
                      Boykin rights.

              II.     Whether Zuniga received ineffective assistance of counsel.

                                                     Facts
[3]   Zuniga was born in Mexico, and his native language is Spanish. The facts as

      stated in Zuniga’s direct appeal are as follows:


              In October 2004, while the [nine year-old] victim was sleeping in
              her bed, Zuniga woke her up, took her to his bedroom, and
              assaulted her. Specifically, Zuniga first placed his penis in the
              victim’s vagina. He later placed his penis in the victim’s anus.
              When the victim asked him to stop because it hurt, Zuniga
              refused. After the sexual assault, Zuniga cut the victim’s finger
              with a pin and made her “blood swear” not to tell anyone what
              he had done. Zuniga then pulled a religious medallion out of his
              wallet and forced the victim to kiss it and swear not to tell
              anyone what he had done. Zuniga also threatened to kill the
              victim if she told anyone what had happened.


              When the victim’s mother returned home, she found the naked
              victim standing in her bedroom with blood running down her
              legs. When her mother asked her what had happened, the victim
              held out her finger and said, “Mommy, I can't tell you. I can’t
              tell you.” The victim was taken to the hospital where it took
      Court of Appeals of Indiana | Memorandum Decision 02A03-1711-PC-2844 | November 9, 2018   Page 2 of 15
               hours of surgery to stop the bleeding and repair her vagina. She
               was in severe pain for a week after surgery and uncomfortable for
               several weeks after that because of a series of infections, and has
               suffered a permanent loss of hymenal tissue. The victim still
               screams out in the middle of the night, and her mother now takes
               medications for depression and anxiety.


      Zuniga v. State, No. 02A03-0509-CR-410, slip op. at 2-3 (Ind. Ct. App. Mar. 6,

      2006) (internal citations omitted). On October 15, 2004, Zuniga was charged

      with two counts of child molesting, Class A felonies, and one count of child

      molesting, a Class C felony.


[4]   The trial court conducted Zuniga’s initial hearing on October 20, 2004.

      Beforehand, Zuniga watched a Spanish language advisement of rights video

      recording (“advisements video”). A Spanish-English interpreter was present as

      Zuniga watched the advisements video. Zuniga did not express any confusion

      or need for clarification. Under questioning, the interpreter represented to the

      trial court that Zuniga had both watched and understood the advisements

      video. See Exhibits p. 92. The English translation of the advisements video,

      which included an advisement of a defendant’s Boykin 1 rights, provided as

      follows:




      1
        In Boykin v. Alabama, the United States Supreme Court declared that the record for a guilty plea must show
      that the defendant voluntarily and understandingly waived the following federal constitutional rights: (1) “the
      privilege against compulsory self-incrimination”; (2) “the right to trial by jury”; and (3) “the right to confront
      one’s accusers.” Ponce v. State, 9 N.E.3d 1265, 1269 n.3 (Ind. 2014) (quoting Boykin v. Alabama, 395 U.S. 238,
      242-43 (1969)).

      Court of Appeals of Indiana | Memorandum Decision 02A03-1711-PC-2844 | November 9, 2018              Page 3 of 15
              You have the right to a speedy and public trial by a court or by a
              jury in the county where the crime was committed.


              If there is a trial you are presumed innocent unless and until the
              state of Indiana proves your guilt beyond a reasonable doubt.
              You have the right to confront all the witnesses against you and
              to see, listen to, question and cross-examine those witnesses.
              You have the right to demand that the witnesses are present in
              any hearing or trial and to witness in your favor and the court
              will help you in that right to issue citations. You have the right
              to remain silent [sic] they can’t demand that you give any
              testimony or that you make any statement against yourself or
              against any other person. On the other hand, you have the right
              to be heard yourself alone or your attorney in any hearing or
              trial. Please remember, however that, anything that you say may
              be used against you in the court.


      Id. at 87.


[5]   On December 27, 2004, the State tendered to Zuniga’s counsel a thirty-year

      plea offer that was written in English. Under the plea offer, Zuniga would

      plead guilty to one count of child molesting, a Class A felony, and one count of

      child molesting, a Class C felony, and Zuniga would serve concurrent sentences

      totaling thirty years. Zuniga alleges that, without providing an interpreter and

      without explaining the associated risks, benefits, and implications, Attorney

      Miller threw the plea offer down in front of Zuniga and instructed Zuniga to

      sign. Zuniga rejected the plea offer.


[6]   On May 17, 2005, Zuniga pleaded guilty, pursuant to an open plea, to two

      counts of child molesting, Class A felonies, and one count of child molesting, a

      Class C felony. No written plea agreement was tendered to the trial court.

      Zuniga appeared at the guilty plea hearing with counsel, Attorney P. Stephen
      Court of Appeals of Indiana | Memorandum Decision 02A03-1711-PC-2844 | November 9, 2018   Page 4 of 15
       Miller. An interpreter translated the guilty plea hearing. During the hearing,

       Zuniga occasionally and readily expressed confusion and sought additional

       clarification. See Appellant’s App. Vol. II p. 106 (“At the hearing, on several

       occasions, Zuniga asked the court to repeat questions because he did not

       understand.”).


[7]    On June 17, 2005, Zuniga moved to withdraw his guilty plea; the trial court

       denied Zuniga’s motion. At the sentencing hearing, on June 20, 2005, the trial

       court imposed consecutive thirty-year sentences on the two Class A felonies and

       a concurrent four-year sentence on the Class C felony. Zuniga, thus, received

       an aggregate sixty-year sentence.


[8]    On direct appeal in 2006, Zuniga argued that the trial court erred in imposing

       consecutive sentences. We concluded that the trial court found three proper

       aggravating circumstances that supported its imposition of consecutive

       sentences, and we affirmed Zuniga’s sentence. Zuniga, No. 02A03-0509-CR-

       410, slip op. at 6-7.


[9]    On November 20, 2015, Zuniga filed a PCR petition by affidavit, wherein he

       alleged that: (1) he was not properly advised in Spanish of his Boykin rights; (2)

       Attorney Miller failed to properly explain the State’s first thirty-year plea offer,

       which Zuniga would have accepted, had he understood it; and (3) Zuniga

       watched the advisements video, but did not understand the advisements.


[10]   In opposition to Zuniga’s PCR petition, the State tendered the affidavit of

       Attorney Miller. Attorney Miller averred that he did not provide an interpreter

       Court of Appeals of Indiana | Memorandum Decision 02A03-1711-PC-2844 | November 9, 2018   Page 5 of 15
       when he discussed the State’s first plea offer with Zuniga because Attorney

       Miller believed that Zuniga could and did understand the discussion. Attorney

       Miller also denied that he instructed Zuniga to sign the plea offer without first

       explaining the associated risks, benefits, and implications.


[11]   On or about October 11, 2014, the trial court learned that the interpreter, who

       assisted at Zuniga’s guilty plea hearing, had incorrectly translated portions of

       the guilty plea proceedings, including the Boykin advisements. 2 On April 14,

       2016, the PC court determined that an evidentiary hearing was necessary on the

       limited question of whether Zuniga was properly advised of his Boykin rights

       before Zuniga entered his guilty plea. The PC court conducted the evidentiary

       hearing on November 18, 2016.




       2
           As the PC court later found:

                  The guilty plea transcript indicates that the three rights designated in Boykin v. Alabama,
                  395 US. 238 (1969) – the right to trial by jury, the right to confront and cross-examine
                  witnesses, and the right against compelled self-incrimination – were not correctly
                  translated.

                  As to the right to a jury trial, Mr. Zuniga was advised only that he had “el derecho a ir a un
                  juzgado” (the right to go to a courthouse). He was advised that he had “el derecho a tener
                  testigos en contra suya y a favor” (the right to have witnesses against you and in your favor),
                  but nothing was said about cross- examining the witnesses. The right to remain silent (el
                  derecha de permanecer en silencio) was correctly translated, but the remainder of the
                  advisement on that point (“no puede decir nada a favor suyo o en contra suyo,” “you cannot
                  say anything on your behalf or against you”) appeared to deny Mr. Zuniga the right to
                  testify on his own behalf.

       Appellant’s App. Vol. II p. 47 (internal citations omitted); Exhibits pp. 6-7.




       Court of Appeals of Indiana | Memorandum Decision 02A03-1711-PC-2844 | November 9, 2018                  Page 6 of 15
[12]   On October 23, 2017, the PC court entered its findings of fact and conclusions

       of law. The PC court concluded that: (1) although Zuniga’s Boykin rights were

       incorrectly translated at the guilty plea hearing, the Boykin rights were correctly

       stated in the advisements video; (2) Zuniga acknowledged that he was shown

       the advisements video and “made no complaint about not understanding the

       advisement at that time”; (3) “[a]side from the Boykin rights, Mr. Zuniga . . .

       identified no specific matters as to which he lacked knowledge as a result of

       inadequate translation of advisements given by the Court at the guilty plea

       hearing”; (4) Zuniga failed to show that such knowledge would have changed

       his decision to plead guilty; and (5) Attorney Miller did not render ineffective

       assistance of counsel. Appellant’s App. Vol. II p. 52. Thus, the PC court denied

       Zuniga’s petition for PCR. Zuniga now appeals. 3


                                                        Analysis
[13]   Zuniga appeals the denial of his PCR petition. Our supreme court has stated:


                The petitioner in a post-conviction proceeding bears the burden
                of establishing grounds for relief by a preponderance of the
                evidence. When appealing from the denial of post-conviction
                relief, the petitioner stands in the position of one appealing from
                a negative judgment. 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



       3
         After submitting his appellant’s brief, Zuniga filed a motion to enter facts outside the record with a verified
       affidavit. Zuniga’s motion is denied, as the record on appeal is sufficient to address the dispositive issues
       discussed in this opinion.




       Court of Appeals of Indiana | Memorandum Decision 02A03-1711-PC-2844 | November 9, 2018              Page 7 of 15
                 opposite that reached by the post-conviction court. [Where, as
                 here, a post-conviction court has made findings of fact and
                 conclusions of law in accordance with Indiana Post-Conviction
                 Rule 1(6), 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.


       Hollowell v. State, 19 N.E.3d 263, 268-69 (Ind. 2014) (internal quotations and

       citations omitted). As the clearly erroneous standard “is a review for

       sufficiency of evidence, we neither reweigh the evidence nor determine the

       credibility of witnesses.” State v. Greene, 16 N.E.3d 416, 418 (Ind. 2014).

       “Rather, we ‘consider only the evidence that supports that judgment and the

       reasonable inferences to be drawn from that evidence.’” Id. (quoting Ben-Yisrayl

       v. State, 738 N.E.2d 253, 258-59 (Ind. 2000)).


                                              I.       Boykin Rights

[14]   Zuniga argues that he did not enter his guilty plea knowingly or voluntarily

       because the interpreter at his guilty plea hearing failed to correctly translate the

       trial court’s Boykin advisement. A PC proceeding is a proper vehicle for

       challenging a guilty plea, and we look at the evidence before the PC court that

       supports its determination that a guilty plea was voluntary, knowing, and

       intelligent. Moffitt v. State, 817 N.E.2d 239, 248-49 (Ind. Ct. App. 2004), trans.

       denied.


[15]   “In considering the voluntariness of a guilty plea, we start with the standard

       that the record of the guilty plea proceeding must demonstrate that the
       Court of Appeals of Indiana | Memorandum Decision 02A03-1711-PC-2844 | November 9, 2018   Page 8 of 15
       defendant was advised of his constitutional rights and knowingly and

       voluntarily waived them.” Ponce v. State, 9 N.E.3d 1265, 1272 (Ind. 2014)

       (citing Boykin, 395 U.S. at 242). “[A] formal advisement and waiver are not

       required; rather, the defendant ‘must have only known that he was waiving his

       Boykin rights by pleading guilty.’” Dewitt v. State, 755 N.E.2d 167, 171 (Ind.

       2001). Boykin requires that a trial court accepting a guilty plea “must be

       satisfied that an accused is aware of his right against self-incrimination, his right

       to trial by jury, and his right to confront his accusers.” Winkleman v. State, 22

       N.E.3d 844, 851 (Ind. Ct. App. 2014) (citing Boykin, 395 U.S. at 243).


[16]   Where a defendant demonstrates that the trial court failed to properly give a

       Boykin advisement during the guilty plea hearing, the defendant has met his

       threshold burden for obtaining PCR. Ponce, 9 N.E.3d at 1270. The State,

       however, may prove “that the petitioner nonetheless knew that he was waiving

       such rights.” Id. at 1273; see Youngblood v. State, 542 N.E.2d 188, 189 (Ind.

       1989) (“. . . [O]nce a state prisoner has demonstrated that the plea taking was

       not conducted in accordance with Boykin, the [S]tate may, if it affirmatively

       proves in a post-conviction hearing that the plea was voluntary and intelligent,

       obviate the necessity of vacating the plea.”). “[W]here the record of the guilty

       plea hearing itself does not establish that a defendant was properly advised of

       and waived his rights, evidence outside of that record may be used to establish a

       defendant’s understanding.” Ponce, 9 N.E.3d at 1272.


[17]   Here, although the trial court gave the Boykin advisements at Zuniga’s guilty

       plea hearing, it is undisputed that the interpreter failed to translate them
       Court of Appeals of Indiana | Memorandum Decision 02A03-1711-PC-2844 | November 9, 2018   Page 9 of 15
       correctly. Thus, the trial court effectively failed to give the advisement. See id.

       at 1273 (finding no difference between a translated “advisement from the

       mouth of the court-appointed interpreter” and the same advisement from the

       trial court).


[18]   To prove that Zuniga made a knowing waiver of his Boykin rights, the State

       introduced:


               . . . (1) the rights advisement videotape played before the initial
               hearing; (2) a DVD copy of the rights advisement videotape,
               produced for the convenience of the Court in viewing the rights
               advisement; (3) testimony of Jon Hallett, who produced the
               DVD copy, that it contained a true and accurate copy of the
               contents of the videotape; (4) an affidavit of certified Spanish-
               English translator Diana Vegas, stating that she had listened to
               the DVD copy of the rights advisement and produced a Spanish
               transcript and an English translation of the portion of the
               advisement related to constitutional rights, both of which were
               attached to the affidavit; and (5) a transcript of Mr. Zuniga’s
               initial hearing.


       Appellant’s App. Vol. II pp. 47-48. The State also presented evidence that: (1)

       an interpreter was present when Zuniga viewed the video recording; (2) the trial

       court asked the interpreter whether Zuniga understood the advisements; (3) the

       interpreter responded affirmatively; and (4) Zuniga did not contradict the

       interpreter or otherwise indicate to the trial court – as Zuniga did ably at the

       guilty plea hearing – that Zuniga was confused by the advisements video.


[19]   Based on the foregoing, we conclude that, although Zuniga carried his initial

       burden of demonstrating that he was improperly advised of his Boykin rights at

       Court of Appeals of Indiana | Memorandum Decision 02A03-1711-PC-2844 | November 9, 2018   Page 10 of 15
       the guilty plea hearing, the State successfully demonstrated that Zuniga

       understood his constitutional rights at the initial hearing. Zuniga’s testimony,

       at the PCR hearing—that he viewed, but did not understand, the advisements

       video—is an invitation to us to reweigh the evidence, which we cannot do. See

       Ben-Yisrayl, 738 N.E.2d at 258-59.


[20]   The PC court’s finding that Zuniga understood and waived his Boykin rights is

       not clearly erroneous. Considering the evidence that supports the judgment and

       the reasonable inferences therefrom, we cannot say that the evidence, as a

       whole, leads unerringly and unmistakably to a decision opposite that reached

       by the PC court.


                                   II.     Ineffective Assistance of Counsel

[21]   Zuniga also appeals the PC court’s denial of his claim of ineffective assistance

       of trial counsel. Specifically, Zuniga maintains that, because Attorney Miller

       did not provide an interpreter, Zuniga unwittingly rejected the State’s favorable

       plea offer that would have allowed Zuniga to serve concurrent sentences,

       totaling thirty years, for a Class A felony and a Class C felony. Zuniga

       ultimately pleaded guilty, with sentencing open to the trial court, to two Class

       A felonies and a Class C felony, and he was sentenced to an aggregate sentence

       of sixty years.


[22]   To prevail on a claim of ineffective assistance of counsel, a petitioner must

       demonstrate both that: (1) his or her counsel’s performance was deficient, and

       (2) the petitioner was prejudiced by the deficient performance. Ben-Yisrayl v.


       Court of Appeals of Indiana | Memorandum Decision 02A03-1711-PC-2844 | November 9, 2018   Page 11 of 15
       State, 729 N.E.2d 102, 106 (Ind. 2000) (citing Strickland v. Washington, 466 U.S.

       668, 687, 104 S. Ct. 2052, 2064 (1984)), reh’g denied, cert. denied, 534 U.S. 830,

       122 S. Ct. 73 (2001). The failure to satisfy either prong will cause the claim to

       fail. Grinstead v. State, 845 N.E.2d 1027, 1031 (Ind. 2006). Ineffective

       assistance of counsel claims, thus, can be resolved by a prejudice analysis alone.

       Id.


[23]   An attorney’s performance is deficient if it falls below an objective standard of

       reasonableness based on prevailing professional norms. Woodson v. State, 961

       N.E.2d 1035, 1041 (Ind. 2012). A strong presumption arises that counsel

       rendered adequate assistance and made all significant decisions in the exercise

       of reasonable professional judgment. McCullough v. State, 973 N.E.2d 62, 74

       (Ind. Ct. App. 2012), trans. denied. “[A] defendant must offer strong and

       convincing evidence to overcome this presumption.” Id. Isolated poor strategy,

       inexperience, or bad tactics does not necessarily constitute ineffective assistance

       of counsel. Id.


[24]   In analyzing prejudice in the context of a guilty plea, we review such ineffective

       assistance of counsel claims under Segura v. State, 749 N.E.2d 496 (Ind. 2001).

       Segura created two categories of claims and enunciated different treatments of

       each respective category, depending upon whether the ineffective assistance

       allegation related to (1) an unutilized defense or failure to mitigate a penalty, or

       (2) an improper advisement of penal consequences. Willoughby v. State, 792

       N.E.2d 560, 563 (Ind. Ct. App. 2003) (citing Segura, 749 N.E.2d at 507), trans.

       denied.
       Court of Appeals of Indiana | Memorandum Decision 02A03-1711-PC-2844 | November 9, 2018   Page 12 of 15
[25]   Further, as a panel of this court recently opined:


               “To show prejudice from ineffective assistance of counsel where
               a plea offer has lapsed or been rejected because of counsel’s
               deficient performance, defendants must demonstrate a reasonable
               probability they would have accepted the earlier plea offer had
               they been afforded effective assistance of counsel.” In addition to
               showing a reasonable probability that the deal would not have
               been cancelled by the prosecutor or rejected by the trial court,
               defendants must “show a reasonable probability that the end
               result of the criminal process would have been more favorable by
               reason of a plea to a lesser charge or a sentence of less prison
               time.”


       Lindsey v. State, 71 N.E.3d 428, 434 (Ind. Ct. App. 2017) (quoting Missouri v.

       Frye, 566 U.S. 134, 132 S. Ct. 1399 (2012)), (internal citations omitted), trans.

       denied, cert. denied, 138 S. Ct. 636 (2018).


[26]   On appeal, Zuniga argues, at-length, that Attorney Miller’s failure to provide an

       interpreter “den[ied] Zuniga access to the Court.” Appellant’s Br. p. 29.

       Zuniga argues:


                At no time did counsel communicate with Zuniga during pretrial
               in a language that Zuniga clearly understood. Counsel failed to
               understand that although Zuniga understood some basic English
               words, Zuniga did not understand enough of the English
               language, and in particular the professional language of the legal
               system, to clearly and completely communicate.


       Appellant’s App. Vol. II p. 154. It is difficult to reconcile Zuniga’s contentions

       now, in which he characterizes himself as rendered virtually absent from his



       Court of Appeals of Indiana | Memorandum Decision 02A03-1711-PC-2844 | November 9, 2018   Page 13 of 15
       own proceedings, versus Zuniga’s PCR petition, in which he recounts his

       discussions with Attorney Miller in great detail as follows:

               Counsel informed Zuniga that “you have no defense, you must plea[d]
               guilty. If you plead guilty, you will spend only a few years in prison. If
               you go to trial, you will spend the rest of your life in prison.”


                                                      *****


               Counsel abandoned Zuniga’s interests from the very beginning in
               this case, and after failing to perform any pretrial investigation,
               [Counsel] informed Zuniga “there is no defense. I will get you a plea
               bargain. You cannot go to trial with this. If you do, you will spend the
               rest of your life in prison.”


       Appellant’s App. Vol. II pp. 157, 159 (emphasis added).


[27]   As the PC court found, the record calls into question Zuniga’s claim of being

       rendered virtually absent from his own proceedings and, instead, supports

       Attorney Miller’s averment that Zuniga possessed sufficient English-language

       capacity to comprehend, digest, and later recount Attorney Miller’s discussions.

       As the State argues, “despite [Zuniga’s] claimed lack of proficiency in English,

       [Zuniga] purports to quote [Attorney] Miller verbatim . . . with respect to

       advisements Miller gave [Zuniga] with respect to the plea offer[.]” Appellee’s

       Br. p. 19. As the PC court found, and we agree, “Zuniga has shown only that

       he now wishes—too late—that he had accepted the 30-year offer.” Appellant’s

       App. Vol. II pp. 52-54 (internal citations omitted).




       Court of Appeals of Indiana | Memorandum Decision 02A03-1711-PC-2844 | November 9, 2018   Page 14 of 15
[28]   Our supreme court recently reiterated Indiana’s commitment to ensuring “a

       foreign language defendant’s capacity to understand and appreciate the

       proceedings, to participate with his counsel, to confront his accusers, and to

       waive rights knowingly and intelligently”; these rights are “undermined without

       an interpreter actively participating in his defense.” Ponce, 9 N.E.3d at 1272. In

       our view, Zuniga has attempted here to exaggerate his challenges with the

       English language in an effort to invoke and exploit Indiana’s commitment to

       fair access for foreign language defendants. From its vantage point of being

       able to view and hear the witnesses and to assess their credibility, the PC court

       regarded Zuniga’s account with skepticism and did not find him credible.


[29]   Based on the foregoing, the PC court’s finding that Attorney Miller did not

       render ineffective assistance of counsel is not clearly erroneous and does not

       leave us with a definite and firm conviction that a mistake has been made. See

       Ben-Yisrayl, 719 N.E.2d at 106.


                                                 Conclusion
[30]   The PC court properly denied Zuniga’s claims that Zuniga did not enter his

       guilty plea with knowledge of his Boykin rights and that Zuniga received

       ineffective assistance of trial counsel. We affirm.


[31]   Affirmed.


[32]   Brown, J., and Altice, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 02A03-1711-PC-2844 | November 9, 2018   Page 15 of 15
