FOR PUBLICATION
ATTORNEY FOR APPELLANT:                        ATTORNEYS FOR APPELLEE:

ERIC C. BOHNET                                 GREGORY F. ZOELLER
Indianapolis, Indiana                          Attorney General of Indiana

                                               ERIC P. BABBS
                                               Deputy Attorney General
                                               Indianapolis, Indiana

                                                                             FILED
                                                                         Feb 18 2013, 9:22 am


                               IN THE                                            CLERK
                                                                               of the supreme court,
                                                                               court of appeals and

                     COURT OF APPEALS OF INDIANA                                      tax court




ALEX CARRILLO,                                 )
                                               )
       Appellant-Defendant,                    )
                                               )
               vs.                             )       No. 49A05-1108-PC-437
                                               )
STATE OF INDIANA,                              )
                                               )
       Appellee-Plaintiff.                     )


                     APPEAL FROM THE MARION SUPERIOR COURT
                         The Honorable Marc T. Rothenberg, Judge
                        The Honorable Anne Flannelly, Commissioner
                             Cause No. 49F09-9705-PC-65844



                                   February 18, 2013


                              OPINION - FOR PUBLICATION


CRONE, Judge
                                       Case Summary

          In 1997, Alex Carrillo, a citizen of Ecuador who immigrated to the United States

when he was one year old, pled guilty to possession of cocaine. Carrillo now appeals the

denial of his petition for post-conviction relief (“PCR”), in which he argued that his guilty

plea counsel provided ineffective assistance by failing to advise him that there could be

negative immigration consequences as a result of his guilty plea. On appeal, he argues that

the post-conviction court erred in concluding that he failed to establish prejudice resulting

from his attorney’s failure to advise him. Concluding that Carrillo failed to show an

objectively reasonable probability that but for his counsel’s failure to advise him of possible

adverse immigration consequences, he would have decided to decline his guilty plea, we

affirm.

                                Facts and Procedural History

          Carrillo was born in Ecuador in 1965. He immigrated to the United States when he

was one year old. He has lived his entire life in the United States but remains a citizen of

Ecuador.

          On May 7, 1997, Indianapolis police reported to the scene of a motorcycle accident.

The police found Carrillo at the scene and determined that he had been the motorcycle driver.

Carrillo appeared to be intoxicated, and he was arrested for public intoxication. During a

search incident to arrest, the police saw Carrillo drop a clear plastic baggie containing what

appeared to be crack cocaine. The substance later tested positive for cocaine and weighed

0.18 grams.


                                               2
        The State charged Carrillo with class D felony possession of cocaine and class B

misdemeanor public intoxication. Carrillo was represented by a public defender. At the

post-conviction hearing, Carrillo’s public defender testified that he had filed a motion for

Carrillo’s resident alien identification to be returned to him on September 12, 1997, and

therefore, there was “a really good chance” that he knew that Carrillo was not a United States

citizen. Tr. at 9.

        In September 1997, Carrillo pled guilty to class D felony possession of cocaine

pursuant to a plea agreement that provided that Carrillo would receive alternative

misdemeanor sentencing and a suspended 365-day sentence. The State dismissed the public

intoxication charge. The trial court entered judgment of conviction for class A misdemeanor

possession of cocaine and sentenced Carrillo to 365 days, suspended.

        On April 11, 2011, Carrillo was detained by federal immigration authorities. He faces

deportation proceedings based in part upon his 1997 conviction for possession of cocaine.1

        On May 10, 2011, Carrillo filed a PCR petition alleging that his guilty plea counsel

did not provide effective assistance of counsel in failing to advise him that pleading guilty

could adversely affect his immigration status and could result in deportation. Following a

hearing, the post-conviction court issued an order denying Carrillo’s petition. The post-

conviction court concluded in relevant part that Carrillo failed to establish that prejudice




        1
           The U.S. Immigration and Nationality Act provides that an alien is subject to deportation for
violating “any law or regulation of a State, the United States, or a foreign country relating to a controlled
substance (as defined in section 802 of Title 21), other than a single offense involving possession for one’s
own use of 30 grams or less of marijuana.” 8 U.S.C.A. § 1227(a)(2)(B)(i).

                                                     3
resulted from his counsel’s failure to advise him of the possible deportation consequences of

his guilty plea.

       Carrillo appeals. Additional facts will be provided as necessary.

                                 Discussion and Decision

       This is an appeal from the denial of a PCR petition.

               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) (citations omitted).

       Carrillo contends that the post-conviction court erred in finding that he was not denied

the effective assistance of trial counsel. “The petitioner for post-conviction relief has the

burden of establishing his grounds for relief by a preponderance of the evidence.” State v.

Holmes, 728 N.E.2d 164, 168 (Ind. 2000) (citing Ind. Post-Conviction Rule 1(5)). To prevail

on a claim of ineffective assistance of counsel, a petitioner must demonstrate both that his

counsel’s performance was deficient and that the petitioner was prejudiced by the deficient

performance. Ben-Yisrayl v. State, 729 N.E.2d 102, 106 (Ind. 2000) (citing Strickland v.

Washington, 466 U.S. 668, 687 (1984)), cert. denied (2001). Counsel’s performance is

deficient if it falls below an objective standard of reasonableness based on prevailing

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


                                              4
where there is “a reasonable probability that, but for counsel’s unprofessional errors, the

result of the proceedings would have been different.” Id. “A reasonable probability is a

probability sufficient to undermine confidence in the outcome.” Perez v. State, 748 N.E.2d

853, 854 (Ind. 2001). “Failure to satisfy either prong will cause the claim to fail.” French,

778 N.E.2d at 824. Thus, if the petitioner cannot establish prejudice, we need not evaluate

counsel’s performance. Bryant v. State, 959 N.E.2d 315, 319 (Ind. Ct. App. 2011). In this

case, we decide Carrillo’s ineffective assistance claim based on the prejudice prong.2

        Carrillo argues that his attorney was ineffective for failing to inform him that pleading

guilty could carry adverse immigration consequences. To establish prejudice for such

ineffective assistance claims,

        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.

Segura v. State, 749 N.E.2d 496, 507 (Ind. 2001). In other words, “a petitioner may be

entitled to relief if there is an objectively credible factual and legal basis from which it may

be concluded that ‘there is a reasonable probability that, but for counsel’s errors, he would

not have pleaded guilty and would have insisted on going to trial.’” Id. (quoting Hill v.


        2
            Several years before Carrillo entered his guilty plea, another panel of this Court held that an
attorney’s failure to advise a noncitizen defendant of the deportation consequences of a guilty plea may
constitute ineffective assistance. Williams v. State, 641 N.E.2d 44, 49 (Ind. Ct. App. 1994) trans. denied
(1995). Because we decide Carrillo’s claim on the basis of prejudice, we express no opinion as to whether
Carrillo’s attorney’s performance was deficient.


                                                    5
Lockhart, 474 U.S. 52, 59 (1985)). Accordingly, Carrillo’s self-serving testimony that he

would not have pled guilty had his attorney advised him of the risk of deportation is by itself

insufficient to establish prejudice.

       In Sial v. State, 862 N.E.2d 702, 706 (Ind. Ct. App. 2007), we held that the defendant

did establish objective facts, or “special circumstances” to satisfy the prejudice prong of an

ineffective assistance claim based on the failure to advise of the possible adverse

immigration consequences from pleading guilty. The Sial court reasoned as follows:

       Sial testified that he has a wife and a thirteen-year-old daughter. Inasmuch as
       Sial has been in the United States for over twenty years, we infer that his
       daughter was likely born here and, consequently, would be an American
       citizen. If deported, Sial would be forced either to leave his wife and child
       behind or to uproot them from this countrymost likely the only home his
       daughter has ever known. We believe that these are sufficient special
       circumstances and specific facts to establish a reasonable probability that if
       Sial’s attorney had advised him that deportation is a possible consequence of a
       felony conviction, Sial would have chosen to proceed to trial rather than to
       plead guilty.

Id. (citation omitted).

       In contrast, the court in Trujillo v. State, 962 N.E.2d 110, 116 (Ind. Ct. App. 2011),

concluded that the defendant “failed to demonstrate the presence of special circumstances

within the meaning of Segura and therefore failed to demonstrate that he suffered prejudice”

from counsel’s failure to advise him regarding the immigration consequences of pleading

guilty. There, Trujillo came to the United States when he was sixteen years old. When he

pled guilty in 2008, he was fifty-two years old and had lived in the United States for thirty-

four years. The Trujillo court did not find the length of time that the defendant lived in the

United States to be a special circumstance in light of the defendant’s family situation. The

                                              6
Trujillo court concluded that the defendant’s family ties did not amount to special

circumstances, explaining that at the time of his guilty plea,

        he lived with his mother and did not mention a spouse or children, much less
        minor children, and thus failed to establish that he had a spouse or children.
        The prospect of forcibly separating from one’s nuclear family that includes
        minor children is the sort of compelling circumstance that might indeed
        motivate one to forego whatever advantages may attach to pleading guilty, and
        instead to face whatever hazards attend a trial on the merits. The prospect of a
        middle-aged man separating from his mother and relatives other than a spouse
        or children are not nearly so compelling. Therefore, Trujillo’s family situation
        is fundamentally different from the petitioner’s in Sial.

Id.

        Since Sial and Trujillo, this Court has further developed the analysis used to determine

whether, but for counsel’s failure to advise a defendant of the possible adverse immigration

consequences of pleading guilty, a reasonable defendant would have declined to enter a

guilty plea. In Clarke v. State, 974 N.E.2d 562, 566 (Ind. Ct. App. 2012), the court stated

that the strength of the State’s case against the defendant and the benefit to the defendant

from pleading guilty were also factors that a reasonable defendant would consider in deciding

whether to plead guilty.3 See also Segura, 749 N.E.2d at 507 (“We see no reason to require

revisiting a guilty plea if, at the end of the day, the inevitable result is conviction and the

same sentence.”).

        In Clarke, at the time of the defendant’s guilty plea to dealing in cocaine, he was

thirty-three years old and had lived in the United States for eleven years. The Clarke court


        3
           These factors were also part of the analysis in Suarez v. State, 967 N.E.2d 552, 556 (Ind. Ct. App.
2012), trans. pending, and Gulzar v. State, 971 N.E.2d 1258 1261-62 (Ind. Ct. App. 2012), trans. pending. In
each case, the court concluded that the defendant failed to establish prejudice resulting from counsel’s failure
to advise that pleading guilty carried the risk of deportation.

                                                       7
did not find that his eleven years in the United States was so long that it constituted a special

circumstance standing alone. Also at the time of his guilty plea, the defendant had two

children who were still in-utero, but he was not married to either of the women carrying his

child. The Clarke court believed that these facts weakened the defendant’s argument that his

ties to his children were special circumstances, but for purposes of the appeal, the court

assumed, without deciding, that these were special circumstances. Nevertheless, because of

the strength of the case against the defendant and the substantial benefit he received from

pleading guilty, the Clarke court concluded that the defendant would have pled guilty even if

he had been advised of the risk of deportation.

       Clarke had been charged with class A felony dealing in cocaine and pled guilty to

class B felony dealing in cocaine and was sentenced to six years in prison, all but two days

suspended, and ordered to serve two years on probation. He later pled guilty to resisting law

enforcement, and in so doing, violated his probation for his dealing conviction. Pursuant to

the plea agreement for resisting law enforcement, the trial court ordered the defendant to

serve five years of the previously suspended sentence consecutive to the one-year sentence

for resisting law enforcement. The Clarke court reasoned that

               [t]he evidence against Clarke included the contraband, the large amount
       of cash found in the vehicle, and, we presume, the testimony of the two
       officers at the scene of the stop and arrest. Based upon the nature and strength
       of this evidence, we conclude that the objective probability of success at trial
       was low. Moreover, Clarke received a significant benefit in exchange for his
       guilty plea. The State agreed to reduce the dealing charge from a class A to a
       class B felony, and agreed to dismiss the marijuana charge and the resisting
       charge. The reduction in the dealing charge alone reduced his sentence
       exposure from an advisory sentence of thirty years to an advisory sentence of
       ten years. As it was, he was sentenced to six years, all suspended, and two

                                               8
       years on probation. In summary, Clarke received a substantial benefit from his
       guilty plea.

               Even assuming Clarke has established special circumstances with
       respect to his unborn children, considering the strength of the evidence against
       him and the significant benefit conferred upon him under the plea agreement,
       we conclude that the knowledge of the risk of deportation would not have
       affected a reasonable defendant’s decision to plead guilty. Although
       deportation would be a considerable inconvenience for Clarke, it is reasonable
       to assume he would be in a better position to provide for his then-unborn
       children from Barbados than from prison. Accordingly, Clarke has not
       established that he was prejudiced by trial counsel’s failure to advise him of
       the risk of deportation.

Id. at 568.

       Turning now to the facts of this case, Carrillo argues that at the time of his guilty plea

in 1997, he had lived in the United States for thirty years and had not been to Ecuador since

1990. Citing to the post-conviction hearing transcript, he notes that he has a wife, five

children, parents, sisters, and other relatives that all live in the United States and claims that

being deported to Ecuador would be like being in exile. Tr. at 11-13. Our review of the

transcript shows that Carrillo testified regarding his family situation as it existed at the time

of the post-conviction hearing, not as it was in 1997. The post-conviction hearing was held

in June 2011, nearly fourteen years after his guilty plea. To decide whether Carrillo was

prejudiced by counsel’s failure to advise him of the possible deportation consequences of

pleading guilty, the relevant circumstances are those that existed in 1997 and whether those

circumstances establish an objectively reasonable probability that Carrillo would not have

pled guilty if he had been advised that adverse immigration consequences could result from

pleading guilty.


                                                9
        Our review of the record before us shows that Carrillo did not testify as to whether he

was married in 1997. He testified that he was currently married but separated and that he and

his wife had four children together. Id. at 11. He did not testify as to the ages of those

children.4 He did testify that he had a fifth child who at the time of the post-conviction

hearing was twenty years old. Id. at 12. That child would have been around six years old in

1997. However, there is nothing in the record regarding whether Carrillo lived with or

supported that child or had any relationship with that child’s mother at the time he pled

guilty. All the record establishes is that in 1997 Carrillo had lived in the United States for

thirty years, had not been to Ecuador in seven years, and had an eleven-year-old child.

Carrillo’s family circumstances are not as compelling as the defendant’s in Sial, but are more

compelling than those of the defendants in Trujillo and Clarke.

        Taking into account the age at which Carrillo came to the United States, the length of

time that he has lived here, and the fact that he had an eleven-year old child, it seems

reasonable that the possibility of having to leave the United States would be a factor that a

reasonable defendant would pause to consider when deciding whether or not to accept a

guilty plea that would have negative immigration consequences.5 Whether a reasonable


        4
           In Carrillo’s companion case that we decide today, Carrillo v. State, No. 49A02-1112-PC-1209 (Ind.
Ct. App. Feb. 18, 2013), Carrillo testified to the ages of his children at his post-conviction hearing. He did not
do so in this case, however, and we must make our decision based upon the evidence presented to the post-
conviction court in this case. See Schaefer v. Kumar, 804 N.E.2d 184, 187 n.3 (Ind. Ct. App. 2004) (“It is well
settled that matters outside the record cannot be considered by this court on appeal.”).
        5
           The State argues that in 1997, Carrillo already had two convictions for misdemeanor conversion,
which, being crimes of moral turpitude, made him eligible for deportation. Therefore, the State asserts, the
immigration consequences would not have been a decisive factor regarding whether to plead guilty. However,
there is no evidence that Carrillo knew that he had deportable convictions.


                                                       10
defendant in Carrillo’s place would have decided to reject the guilty plea and go to trial must

now be evaluated in light of the strength of the case against Carrillo and the benefit that he

received from pleading guilty.

        The State had a very strong case that Carrillo committed possession of cocaine. The

police saw him drop a clear plastic baggie that contained a substance that tested positive for

cocaine. The officers’ testimony, the cocaine, and the laboratory report would have been

overwhelming evidence of Carrillo’s guilt. Carrillo also benefited by pleading guilty. He

received alternate misdemeanor sentencing and a fully suspended sentence thereby avoiding a

first felony conviction and incarceration. The State also dismissed the misdemeanor public

intoxication charge. Accordingly, we conclude that Carrillo has failed to show that there is

an objectively reasonable probability that but for his counsel’s failure to advise him of

possible adverse immigration consequences, he would have decided not to plead guilty.6

Therefore, we affirm the denial of Carrillo’s petition for post-conviction relief.

        Affirmed.

KIRSCH, J., and MATHIAS, J., concur.


        6
           Carrillo argues that if he had known that he could be deported as a result of pleading guilty to
possession of cocaine, he could have negotiated a guilty plea to the public intoxication charge. Appellant’s Br.
at 9-10. Carrillo relies on Padilla v. Kentucky, 130 S. Ct. 1473, 1486 (2010), in which the Supreme Court
observed that defense counsel “may be able to plea bargain creatively with the prosecutor in order to craft a
conviction and sentence that reduce the likelihood of deportation, as by avoiding a conviction for an offense
that automatically triggers the removal consequence.” The Padilla court made that observation in considering
whether counsel’s failure to inform a defendant that adverse immigration consequences could result from
pleading guilty was deficient performance. The issue of prejudice was not before the Supreme Court because it
had not been ruled on by the court below. Thus, the possibility of various plea agreements was not considered
in the context of prejudice. In addition, whether the State would have agreed to allow Carrillo to plead guilty
to public intoxication and dismiss the possession of cocaine charge is pure speculation, in which we will not
engage.


                                                      11
