MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                       FILED
regarded as precedent or cited before any                               Feb 20 2019, 8:39 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




ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Alexander E. Budzenski                                   Curtis T. Hill, Jr.
Indianapolis, Indiana                                    Attorney General of Indiana

                                                         Matthew B. MacKenzie
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana


                                           IN THE
    COURT OF APPEALS OF INDIANA

Jose Angel Hernandez,                                    February 20, 2019
Appellant-Petitioner,                                    Court of Appeals Case No.
                                                         18A-PC-1357
        v.                                               Appeal from the
                                                         Tippecanoe Superior Court
State of Indiana,                                        The Honorable Laura W. Zeman,
Appellee-Respondent.                                     Judge
                                                         Trial Court Cause No.
                                                         79D04-1701-PC-5



Altice, Judge.




Court of Appeals of Indiana | Memorandum Decision 18A-PC-1357 | February 20, 2019               Page 1 of 27
                                             Case Summary
[1]   Jose Angel Hernandez, a citizen of Mexico, entered the United States with his

      parents in 2002, when he was sixteen years old. In August 2014, he pled guilty

      to possession of cocaine and synthetic identity deception, both Class D felonies.

      Hernandez filed a petition for post-conviction relief, in which he argued that (1)

      his guilty plea counsel failed to properly advise him of the immigration

      consequences associated with his guilty plea, and (2) the trial court should have

      provided him with a Spanish-language interpreter at his hearings to “ensur[e]

      that he understood his Boykin rights prior to entering his plea of guilty.”

      Appellant’s Appendix Vol. 2 at 16. Following the denial of his petition,

      Hernandez appeals and raises the following restated issues:


              I. Whether Hernandez received ineffective assistance of trial
              counsel; and


              II. Whether Hernandez established that, because he did not have
              an interpreter at trial court hearings, he did not knowingly and
              voluntarily waive his Boykin rights.


[2]   We affirm.


                                   Facts & Procedural History
[3]   Hernandez, born in October 1985, is a native of Mexico and remains a citizen

      of Mexico. He came to the United States in 2002 with his parents, and he has

      not returned to Mexico since he left. Hernandez did not have a green card or

      visa when he entered the United States, and he has not obtained one since his


      Court of Appeals of Indiana | Memorandum Decision 18A-PC-1357 | February 20, 2019   Page 2 of 27
      arrival here. He attended Jefferson High School in Lafayette until leaving

      sometime in the twelfth grade. His classes were taught in English, but at a

      slower pace.


[4]   Between 2004 and 2011, Hernandez had multiple encounters with the criminal

      justice system. In June 2005, he was convicted of operating a motor vehicle

      without ever having received a license. In July 2005, he was charged with Class

      B misdemeanor false informing, Class B misdemeanor public intoxication, and

      Class C misdemeanor minor consumption, and those charges were resolved by

      a diversion agreement. In August 2010, Hernandez pled guilty to Class A

      misdemeanor operating while intoxicated and Class C misdemeanor failure to

      stop at the scene of an accident, and several other charges were dropped. At the

      guilty plea hearing, after Hernandez acknowledged to the court that he had

      read, understood, and signed his Advisement of Rights form, and after the trial

      court informed him that if he was not a citizen of the United States “any

      disposition of your case could affect your ability to stay here in the United

      States,” Hernandez responded, “I’m a citizen.” Exhibit Vol. 1 at 102. In some

      of the proceedings, Hernandez’s Advisement of Rights form was in Spanish and

      in others it was in English. In some proceedings, Hernandez utilized an

      interpreter and in others he did not. He sometimes provided law enforcement

      with a false name, Juan A. Rodriguez Merced, and sometimes provided an

      incorrect date of birth.


[5]   In October 2012, Hernandez pled guilty (under the name of Juan A. Rodriguez

      Merced) under cause number 79D06-1112-FD-321 (Cause 321) to Class D

      Court of Appeals of Indiana | Memorandum Decision 18A-PC-1357 | February 20, 2019   Page 3 of 27
      felony operating while intoxicated with a prior conviction. Hernandez was

      represented by attorney Brian Dekker, who could speak Spanish but conversed

      with Hernandez in English. During the October 2012 guilty plea hearing,

      Hernandez used a translator, but because the court noticed that his Advisement

      of Rights form was in English, the court asked Hernandez if he was bilingual

      and understood English and Spanish. Hernandez responded, “Yes.” Id. at 121.

      During the hearing, the trial court advised, “If you’re not an actual United

      States citizen a judgment of conviction in a criminal case can impact your legal

      status here in the states. Has Mr. Dekker covered with you, to your

      satisfaction, the impact that these judgments of convictions might have in the

      event that you are not a legal resident?” Id. at 128. That inquiry was translated

      into Spanish, and Hernandez responded, “I’m an American citizen.” Id. The

      court accepted Hernandez’s guilty plea and sentenced him on the Class D

      felony to a 730-day jail term with 180 days executed.


[6]   On May 19, 2013, in the course of investigating a hit-and-run accident, police

      went to Hernandez’s home looking for a man named Felipe, who was

      suspected to have been involved in the accident. During the investigation,

      police saw in plain view a rolled currency bill and a plastic baggie with white

      residue. The officers observed Hernandez shove these items in his pocket.

      Police also observed a white powdery substance on Hernandez’s nostrils, and

      he admitted to having used cocaine. Hernandez was arrested, and, pursuant to

      a search warrant, police found cocaine, a digital scale, and more corner baggies

      with white residue.


      Court of Appeals of Indiana | Memorandum Decision 18A-PC-1357 | February 20, 2019   Page 4 of 27
[7]   On May 30, 2013, Hernandez received an Immigration and Customs

      Enforcement detainer and a Notice to Appear before an immigration judge in

      Chicago. The Notice charged Hernandez with removability as a result of his

      illegal status in the United States.1


[8]   Stemming from the police visit to his home on May 19, the State charged

      Hernandez on December 23, 2013, under cause number 79D04-1312-FD-

      000313 (Cause 313) with possession of cocaine as a Class D felony, possession

      of synthetic identifying information as a Class D felony, possession of

      paraphernalia as a Class A misdemeanor, and false informing as a Class A

      misdemeanor. The January 2014 initial hearing was conducted in English, and

      the Advisement of Rights form signed by Hernandez was in English. The

      Advisement form contained the provision advising that “[i]f you are not a U.S.

      citizen, a conviction could affect your immigration status.” Exhibits Vol. 1 at 11.


[9]   On June 25, 2014, Hernandez appeared with counsel, attorney Timothy

      Broden, at the immigration court in Chicago for a hearing. At the beginning of

      the hearing, the immigration judge asked Hernandez, “And you speak and

      understand English?” and Hernandez replied, “Yes.” Exhibit Vol. 3 at 77. The

      court advised Hernandez that he was under removal proceedings and that he

      could be deported for entering the country without inspection, noting to




      1
        More specifically, the Notice alleged that Hernandez was subject to removal from the United States
      pursuant to “212(a)(6)(A)(i) of the Immigration and Nationality Act, . . . in that you are an alien present in
      the United States without being admitted or paroled, or who arrived in the United States at any time or place
      other than as designated by the Attorney General.” Exhibits Vol. 4 at 106.

      Court of Appeals of Indiana | Memorandum Decision 18A-PC-1357 | February 20, 2019                 Page 5 of 27
       Hernandez that his circumstances did not indicate that he was eligible for

       DACA,2 but the court continued the matter “to see the outcome of

       [Hernandez’s] drug case.” Id. at 81.


[10]   On August 18, 2014, Hernandez entered into a plea agreement in Cause 313,

       pursuant to which he pled guilty to the two Class D felonies and the other two

       charges were dismissed. The plea agreement included the following provision:


                  The Defendant acknowledges that if illegally present in the
                  United States, or a resident alien, or present on a student visa,
                  he/she is not eligible for community corrections or placement on
                  probation. Defendant understands that he/she has a right to
                  contact his/her consulate before pleading guilty, and that
                  pleading guilty to a crime may affect his/her immigration status
                  or result in deportation from the United States.


       Exhibit Vol. 1 at 9.


[11]   Due to a technical issue, neither a recording nor a transcript of the guilty plea

       hearing in Cause 313 exists, although the parties appear to agree that an

       interpreter was not used. Under terms of the plea agreement, the length and

       placement of Hernandez’s sentence was within the court’s discretion. At the

       time that Hernandez pled guilty, he was living with and supporting his then-

       girlfriend, Christina, and her two children, and Christina was also pregnant

       with her first child with Hernandez.




       2
           DACA refers to Deferred Action for Childhood Arrivals.

       Court of Appeals of Indiana | Memorandum Decision 18A-PC-1357 | February 20, 2019   Page 6 of 27
[12]   On October 27, 2014, the trial court held a sentencing hearing in Cause 313.

       Hernandez did not request or use the services of an interpreter for the

       sentencing hearing. At the beginning of the hearing, as the trial court reviewed

       with Hernandez his age, address, and purpose of the hearing, the court asked

       him, “Do you read and write and understand the English language?” Id. at 84.

       Hernandez replied, “Yep.” Id. The trial court sentenced Hernandez on the two

       Class D felonies to concurrent 730-day terms, with 550 days suspended to

       probation. The court committed Hernandez to community corrections for the

       remaining 180 days.


[13]   On February 19, 2015, Hernandez appeared, with counsel Jacob Meah of the

       Law Office of Al Kola, before the immigration court in Chicago for a hearing.

       After asking Hernandez his name, the immigration judge asked him, “Do you

       speak English,” and Hernandez replied “fluently.” Exhibits Vol. 3 at 85. The

       judge asked Hernandez about the status of the Indiana drug charge (Cause 313),

       and Hernandez explained that it was completed, having been sentenced in

       October 2014. The immigration judge reviewed with Hernandez the allegations

       in the Notice to Appear, which “charges that you are not a citizen of the United

       States and you’re a native and citizen of Mexico; that you crossed the border on

       an unknown date without being inspected or admitted by an immigration

       officer.” Id. at 88-89. Hernandez admitted that the allegations were true, and

       his counsel, on Hernandez’s behalf, conceded removability. The immigration

       court explained to Hernandez that, as to his removability, “there is no waiver”

       due to his criminal offense, nor did the court believe that Hernandez was


       Court of Appeals of Indiana | Memorandum Decision 18A-PC-1357 | February 20, 2019   Page 7 of 27
       eligible to file for permanent residency, such that Hernandez’s options were

       either to request to leave the country voluntarily or be deported at government

       expense. Id. at 91. The immigration court continued the matter in order to

       allow Hernandez and his counsel to discuss the possibility of filing for asylum

       or withholding of removal.


[14]   On May 28, 2015, Hernandez and his counsel, Al Kola, appeared for another

       hearing before the immigration court. The judge asked Hernandez if he spoke

       English, and he replied, “Yes.” Id. at 96. The immigration judge discussed

       matters associated with Hernandez’s application for asylum, including directing

       him where to file it, and it reset the matter for a subsequent hearing to allow

       Hernandez “to come back and testify in support of [his] application.” Id. at 99-

       100. On November 3, 2015, the immigration court held another hearing, at the

       conclusion of which it ordered Hernandez’s removal, finding that Hernandez

       did not qualify for any of the available exceptions. Hernandez began an appeal

       process of the decision.


[15]   While Hernandez’s immigration appeal was pending, he filed on January 31,

       2017, a petition for postconviction relief, asking the post-conviction court to

       vacate and set aside his judgments of conviction and sentences in Cause 313.

       The petition raised two issues: (1) whether Hernandez received ineffective

       assistance of counsel because he did not receive accurate advice regarding the

       immigration consequences of his plea agreement; and (2) whether Hernandez

       should have had a Spanish-language interpreter present at his hearings before

       the trial court.

       Court of Appeals of Indiana | Memorandum Decision 18A-PC-1357 | February 20, 2019   Page 8 of 27
[16]   On January 25, 2018, the trial court held an evidentiary hearing on

       Hernandez’s petition. During the hearing Hernandez used the services of the

       court’s interpreter. Hernandez testified that, when he pled guilty in August

       2014, he was living with and helping to support Christina and her two children.3

       At that time, he owned and operated a cell phone repair business and had been

       working in the cell phone repair industry since 2012. Hernandez testified that

       he and Christina had been together since around 2009 and that they married in

       2017. Their first child together was born in May 2015, and they had twins in

       2016. Hernandez stated that his parents have lived in Lafayette, Indiana, since

       they arrived in the United States in 2002, and that some of his siblings, aunts,

       and uncles also live in Lafayette. Hernandez testified that he had never been

       back to Mexico since leaving in 2002 and that he does not have any close

       family members still living in Mexico. Hernandez stated that his immigration

       appeal was still pending and, when asked if he had applied for an immigration

       defense called cancellation of removal or deportation, he said that he had not

       because he was not eligible because of the drug conviction (Cause 313). He

       testified that Dekker did not advise him that his guilty plea would come with

       immigration consequences, or that it would prohibit his use of a common

       defense to deportation. He also testified that he did not ask Broden (his

       immigration attorney) for legal advice on the effect that his convictions in

       Cause 313 would have on his removability. Hernandez testified that he would



       3
        Christina was born in 1986 and came to the United States in 1997. She testified at the post-conviction
       hearing that, at that time, she had DACA status.

       Court of Appeals of Indiana | Memorandum Decision 18A-PC-1357 | February 20, 2019               Page 9 of 27
       not have accepted the plea agreement in Cause 313 and would have preferred to

       go to trial had he known about the immigration consequences of pleading

       guilty. When asked whether he spoke English fluently when he entered into the

       plea agreement, he said “I would say no.” Transcript Vol. 2 at 25. He stated

       that he did not read the Advisement of Rights form or plea agreement before

       signing those documents.


[17]   Dekker, Hernandez’s guilty plea counsel, testified that he could speak Spanish

       but that he always conversed with Hernandez in English. He said that

       Hernandez never asked for an interpreter, but if he had, Dekker “absolutely”

       would have sought one, noting that his firm had had an “in-house” interpreter

       for fifteen years. Transcript Vol. 2 at 14. Dekker testified that it was his practice

       to inform all of his clients that he was not an immigration attorney and that if

       they were not in the country legally or if they had a permit or visa, that they

       should consult with an immigration attorney. Dekker discussed that, during the

       course of his representation of Hernandez in Cause 313, he sent Hernandez five

       letters dated April 9, 2014, May 19, 2014, June 30, 2014, August 18, 2014, and

       October 6, 2014, all of which contained a bold advisement that read: “Note: If

       you are not a citizen, you are hereby advised that a conviction of the offense for

       which you have been charged may have the consequences of deportation,

       exclusion from admission to the United States, or denial of naturalization

       pursuant to the laws of the United States.” Exhibit Vol. 4 at 110-14. Dekker was

       aware during the pendency of Cause 313 that Hernandez was involved in

       proceedings with the immigration court in Chicago and, in June 2014, Broden


       Court of Appeals of Indiana | Memorandum Decision 18A-PC-1357 | February 20, 2019   Page 10 of 27
       sent a letter to Dekker advising him that he was representing Hernandez in the

       removal proceedings.


[18]   Dekker testified that, during negotiations with the State in Cause No. 313, the

       State did not offer any agreement that would have had no immigration

       consequences. Dekker was satisfied with the ultimate result that Hernandez

       received, concurrent 730-day sentences with 550-days suspended, considering

       “the facts of the case and [his] priors” as well as a pending petition to revoke

       probation in Cause No. 321. Transcript Vol. 2 at 14. A transcript of

       Hernandez’s removal proceedings in Chicago was admitted during the post-

       conviction hearing.


[19]   On May 14, 2018, the post-conviction court issued detailed findings and

       conclusions denying Hernandez’s petition. With regard to Hernandez’s claim

       that Dekker did not properly advise him of immigration consequences

       associated with his guilty plea, the post-conviction court concluded that “there

       is ample evidence that Mr. Dekker did directly and affirmatively advise

       [Hernandez] of the immigration consequences” and that, even if he did not,

       “[Hernandez] had actual knowledge of the immigration consequences before

       signing the plea agreement,” given his prior plea agreements and advisements

       of rights. Appellant’s Appendix Vol. II at 158. Further, the court determined,


               12. “[I]n order to state a claim for postconviction relief a
               petitioner may not simply allege that a plea would not have been
               entered, nor is the petitioner’s conclusory testimony to that effect
               sufficient to prove prejudice. Instead, the petitioner must
               “establish, by objective facts, circumstances that support a

       Court of Appeals of Indiana | Memorandum Decision 18A-PC-1357 | February 20, 2019   Page 11 of 27
        conclusion that [trial] counsel’s errors in advice as to penal
        consequences were material to the decision to plead guilty.”
        Segura v. State, 749 N.E.2d [496, 507 (Ind. 2001)], Trujillo v. State,
        962 N.E.2d 110 (Ind. App. 201l), Gulzar v. State, 971 N.E.2d
        1256 (Ind. App. 2012).


        “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. 749 N.E.2d at 507. That is, the Court acknowledged
        that it is only in “extreme cases” that “a truly innocent
        defendant” pleads guilty “because of incorrect advice as to the
        consequences.” Gulzar, 971 N.E.2d at 1262.


        13. Even if Mr. Dekker had not advised the Petitioner of the
        immigration consequences, the court concludes the Petitioner has
        not stated any objective facts to support that his decision to plead
        guilty would have been changed if Mr. Dekker had advised him.


        14. Under the category of objective facts, “it is also appropriate to
        consider “the strength of the State’s case,” which a reasonable
        defendant would take into a account when pondering a guilty
        plea, and “the benefit conferred upon the defendant.” Suarez v.
        State, 967 N.E.2d 552 (Ind. App. 2012).


        15. Here, the Petitioner did not testify to any “objective facts” to
        demonstrate that ‘but for’ Mr. Dekker not telling him about the
        immigration consequences, he would have proceeded to trial and
        that a different outcome (that is, a not guilty verdict) would have
        been likely given the facts of the case. Police went to the
        Petitioner’s home looking for another person and found cocaine
        in plain view and physically on and in the Petitioner’s person
        while in possession of official looking documents showing the
        use of a false identity.




Court of Appeals of Indiana | Memorandum Decision 18A-PC-1357 | February 20, 2019   Page 12 of 27
               Mr. Dekker negotiated a guilty plea while the Petitioner was still
               on probation that included concurrent sentences for [two] new []
               felony convictions and no sanction in his pending probation
               violation for a prior felony conviction. Mr. Dekker testified that
               earlier plea agreement offers were not accepted by the Petitioner
               because of immigration consequences. The “open” plea
               agreement would also have given discretion to the trial court to
               enter the felony convictions as misdemeanors which if entered as
               a misdemeanor could be beneficial to the Petitioner when
               arguing against his “removal” during immigration proceedings.


       Id. at 159-60.


[20]   With regard to Hernandez’s post-conviction claim that he should have been

       provided with an interpreter during the Cause 313 trial court proceedings, the

       post-conviction court determined that Hernandez was advised of his Boykin

       rights in the Advisement of Rights form, where he acknowledged that he reads,

       writes, and understands English, and “[t]here is nothing in the record of the

       proceedings in [Cause] 313 or the proceedings in the current post-conviction

       relief that shows the Petitioner ever requested and was denied an interpreter for

       his guilty plea hearing in [Cause] 313.” Id. at 161. The trial court also observed

       that (1) in some of his previous criminal court matters, Hernandez had used the

       services of an interpreter thereby demonstrating that he knew an interpreter

       would be available if he felt the need for one, and (2) he had participated in four

       immigration proceedings – one of which was before the guilty plea hearing in

       Cause 313 and the other three were within fifteen months of it – and at none of

       those hearings did Hernandez request an interpreter and, in fact, repeatedly told



       Court of Appeals of Indiana | Memorandum Decision 18A-PC-1357 | February 20, 2019   Page 13 of 27
       the immigration court that he spoke English. The post-conviction court denied

       Hernandez’s petition, and he now appeals.


                                        Discussion & Decision
                                    I. Ineffective Assistance of Counsel

[21]   “The standard of review for a petitioner denied post-conviction relief is

       rigorous.” Trujillo v. State, 962 N.E.2d 110, 113 (Ind. Ct. App. 2011).

       Appellate courts consider only the evidence and reasonable inferences

       supporting the judgment. Carrillo v. State, 982 N.E.2d 461, 464 (Ind. Ct. App.

       2013). The post-conviction court is the sole judge of the evidence and the

       credibility of the witnesses. Id. We will disturb the post-conviction court’s

       decision only if the evidence is without conflict and leads to but one conclusion,

       and the post-conviction court has reached the opposite conclusion. Gulzar v.

       State, 971 N.E.2d 1258, 1260 (Ind. Ct. App. 2012), trans. denied.


[22]   Hernandez 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 bears the burden of establishing grounds for relief by a

       preponderance of the evidence. Ind. Post-Conviction Rule 1(5); Gulzar , 971

       N.E.2d at 1260. 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). Counsel’s performance is deficient if it falls


       Court of Appeals of Indiana | Memorandum Decision 18A-PC-1357 | February 20, 2019   Page 14 of 27
       below an objective standard of reasonableness based on prevailing professional

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

       review requires us to presume that counsel rendered adequate assistance and

       made all significant decisions in the exercise of reasonable professional

       judgment. Pennycuff v. State, 745 N.E.2d 804, 811 (Ind. 2001). We judge the

       reasonableness of counsel’s challenged conduct on the facts of the particular

       case, viewed at the time of counsel’s conduct and not through the lens of

       hindsight. Id. at 811-12. Prejudice results 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 one

       that is sufficient to undermine confidence in the outcome.” Kubsch v. State, 934

       N.E.2d 1138, 1147 (Ind. 2010) (quoting Strickland, 466 U.S. at 694). “Failure to

       satisfy either prong will cause the claim to fail.” French, 778 N.E.2d at 824.


[23]   Hernandez contends that Dekker provided ineffective assistance because he

       failed to properly advise Hernandez of the immigration consequences

       associated with his guilty plea. Because Hernandez was convicted pursuant to

       a guilty plea, we examine his claim under Segura v. State, 749 N.E.2d 496 (Ind.

       2001). See Trujillo, 962 N.E.2d at 114 (recognizing that defendant’s post-

       conviction claim of ineffective assistance, based on counsel’s failure to properly

       advise him of immigration consequences, must be analyzed under Segura).




       Court of Appeals of Indiana | Memorandum Decision 18A-PC-1357 | February 20, 2019   Page 15 of 27
       Segura categorizes two main types of ineffective assistance of counsel cases.4

       The second category, at issue here, relates to “an improper advisement of penal

       consequences” and is further divided into two subcategories: (1) claims of

       intimidation by exaggerated penalty or enticement by an understated maximum

       exposure, and (2) claims of incorrect advice as to the law. Willoughby v. State,

       792 N.E.2d 560, 563 (Ind. Ct. App. 2003), trans. denied. Hernandez’s challenge

       falls under the latter subcategory.


[24]   Specifically, Hernandez contends that Dekker performed deficiently because he

       failed to advise Hernandez that, pursuant to federal immigration laws, pleading

       guilty to possession of cocaine and synthetic identity deception would subject

       him to deportation and also render him ineligible for a defense known as

       cancellation of removal. The Segura court recognized that counsel’s failure to

       advise regarding possible adverse immigration consequences could constitute

       deficient performance “under some circumstances.” Carrillo v. State, 982

       N.E.2d 468, 473 (Ind. Ct. App. 2013) (citing Segura, 749 N.E.2d at 500).

       Specifically, the Segura court stated:


                [T]he failure to advise of the consequence of deportation can,
                under some circumstances, constitute deficient performance.
                Otherwise stated, we cannot say that this failure as a matter of
                law never constitutes deficient performance. Whether it is
                deficient in a given case is fact sensitive and turns on a number of



       4
         Segura categorizes ineffective assistance of counsel claims made in the context of a guilty plea into two
       categories: (1) the failure to advise the defendant on an issue that impairs or overlooks a defense, and (2) an
       incorrect advisement of penal consequences. Segura v. State, 749 N.E.2d 496, 500 (Ind. 2001)

       Court of Appeals of Indiana | Memorandum Decision 18A-PC-1357 | February 20, 2019                  Page 16 of 27
               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.
               Other factors undoubtedly will be relevant in given
               circumstances.


       749 N.E.2d at 500.


[25]   In this case, Hernandez contends that, although his trial counsel, Dekker,

       advised him that his plea may or could have deportation consequences, this

       advice was incorrect under Padilla v. Kentucky, 559 U.S. 356 (2010), in which

       the Court explained:


               Immigration law can be complex, and it is a legal specialty of its
               own. . . . There will, therefore, undoubtedly be numerous
               situations in which the deportation consequences of a particular
               plea are unclear or uncertain. The duty of the private practitioner
               in such cases is more limited. When the law is not succinct and
               straightforward, . . . a criminal defense attorney need do no more than
               advise a noncitizen client that pending criminal charges may carry a risk
               of adverse immigration consequences. But when the deportation
               consequence is truly clear . . . the duty to give correct advice is equally
               clear.


       Id. at 369 (emphasis added).


[26]   Hernandez argues that, in his case, the deportation consequences were clear

       under federal immigration laws. In particular, he claims that possession of

       cocaine and synthetic identity deception “obviously” fall within the plain

       language of 8 U.S.C. § 1182(a)(2)(A)(i), which renders inadmissible certain


       Court of Appeals of Indiana | Memorandum Decision 18A-PC-1357 | February 20, 2019   Page 17 of 27
noncitizens with convictions for crimes involving moral turpitude and

convictions relating to controlled substances.5 Reply Brief at 6. Hernandez

argues that both of his convictions “rendered [him] inadmissible to and

removable from the United States.” Id. Furthermore, he asserts, the

convictions “rendered him ineligible for cancelation of removal under 8 U.S.C.

§ 1229b(b)(1).” Id. Hernandez maintains that, under Padilla, only “when the

law is not succinct and straightforward” is it sufficient for a criminal defense

attorney to advise a noncitizen client “that pending criminal charges may carry

a risk of adverse immigration consequences,” but “when the consequences are

clear, as they are in Mr. Hernandez’s case, the duty to give correct advice is




5
    8 U.S.C. § 1182(a)(2)(A)(i) provides:

                    (i) Except as provided in clause (ii), any alien convicted of, or who admits
                    having committed, or who admits committing acts which constitute the essential
                    elements of--


                             (I) a crime involving moral turpitude (other than a purely political
                             offense) or an attempt or conspiracy to commit such a crime, or


                             (II) a violation of (or a conspiracy or attempt to violate) 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),


                    is inadmissible.


See also, 8 U.S.C. § 1227(a)(2)(A)(II) (“Any alien who . . . is convicted of a crime for which a sentence of one
year or longer may be imposed[] is deportable.”)




Court of Appeals of Indiana | Memorandum Decision 18A-PC-1357 | February 20, 2019                    Page 18 of 27
       equally clear.” Appellant’s Brief at 14 (citing Padilla, 559 U.S. at 369).

       Hernandez notes that Padilla’s offense was, like his own, an offense relating to

       a controlled substance, and the Padilla Court held, “This is not a hard case in

       which to find deficiency: The consequences of Padilla’s plea could easily be

       determined from reading the removal statute [and] his deportation was

       presumptively mandatory[.]”6 559 U.S. at 368-69. Therefore, Hernandez

       maintains, Dekker’s advice was incorrect and amounted to deficient

       representation.


[27]   The State responds that, contrary to Hernandez’s characterization, the situation

       was not “clear” given that (1) Hernandez had previously told the court and

       Dekker that he was a citizen, (2) Dekker advised Hernandez in multiple letters

       that “[i]f you are not a citizen, you are hereby advised that a conviction of the

       offense for which you have been charged may have the consequences of

       deportation, exclusion from admission to the United States, or denial of

       naturalization pursuant to the laws of the United States,” and prior advisements

       and pleas had also advised that a conviction could affect his immigration status,

       and (3) Hernandez had retained an immigration attorney prior to the time he

       voluntarily chose to plead guilty. Exhibit Vol. 4 at 110-14. Under these

       circumstances, the State urges, Dekker’s performance was not deficient.



       6
         In Padilla v. Kentucky, 559 U.S. 356 (2010), the defendant pled guilty to drug distribution, and in seeking
       post-conviction relief, he claimed his counsel not only failed to advise him of the deportation consequence
       but also told him that he “did not have to worry about immigration status since he had been in the country so
       long.” Id. at 359. In finding that counsel provided deficient performance, the Padilla Court noted that
       “Padilla’s crime, like virtually every drug offense except for only the most insignificant marijuana offenses, is
       a deportable offense under 8 U.S.C. § 1227(a)(2)B)(i).” Id. at 361 n.2.

       Court of Appeals of Indiana | Memorandum Decision 18A-PC-1357 | February 20, 2019                  Page 19 of 27
[28]   Even if we were to agree that Dekker was deficient by failing to specifically

       advise Hernandez that pleading guilty to possession of cocaine and synthetic

       identity deception would subject him to deportation and render him ineligible

       for cancellation of removal defense, Hernandez also would need to establish

       that Dekker’s failure to so advise him resulted in prejudice. To state a claim for

       post-conviction relief under this subcategory, 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.”

       Segura, 749 N.E.2d at 507. That is, simply alleging that the petitioner would

       not have pled will not be sufficient. Id. “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.; see also Trujillo, 962 N.E.2d at 114-15.


[29]   Hernandez testified at the post-conviction hearing that he would not have pled

       guilty had Dekker properly advised him of the deportation consequences.

       However, as Hernandez acknowledges on appeal, pursuant to Segura, he must

       also show specific facts that establish an objective reasonable probability that

       competent representation would have caused the petitioner not to enter a plea.

       The relevant circumstances to examine are those that existed when he pled

       guilty in 2014 and whether those circumstances establish an objectively

       reasonable probability that he would not have pled guilty.


[30]   Whether a failure to advise a defendant of possible deportation consequences

       constitutes deficient performance by an attorney is “fact sensitive.” Segura, 749

       Court of Appeals of Indiana | Memorandum Decision 18A-PC-1357 | February 20, 2019   Page 20 of 27
       N.E.2d at 500. A number of decisions from this court have addressed whether

       the petitioner had shown the necessary “special circumstances.” For instance,

       in Sial v. State, 862 N.E.2d 702, 706 (Ind. Ct. App. 2007), where the petitioner

       had been in the United States for twenty years and had a daughter who was

       born here, 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. However, in contrast, the court in Trujillo, concluded that

       the petitioner “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. 962 N.E.2d at 116. In Trujillo,

       defendant came to the United States when he was fifteen and pled guilty when

       he was fifty-two, but the court did not find the length of time that he lived in the

       United States to be a special circumstance when considered with his family

       situation, which was that he did not have a spouse or children. The Trujillo

       court thus determined that his “situation was ‘fundamentally different’ from the

       petitioner’s in Sial.” 962 N.E.2d at 116.


[31]   After Sial and Trujillo, this court in Clarke v. State, 974 N.E.2d 562, 566 (Ind. Ct.

       App. 2012), recognized additional factors that a reasonable defendant would

       consider in deciding whether to plead guilty are (1) the strength of the State’s

       case against the defendant, and (2) the benefit to the defendant from pleading

       guilty. Clarke was thirty-three years old when he pled guilty to dealing in


       Court of Appeals of Indiana | Memorandum Decision 18A-PC-1357 | February 20, 2019   Page 21 of 27
       cocaine and had been living in the United States for eleven years. At the time of

       his guilty plea, he had two children who were still in-utero, but he was not

       married to either of the women carrying his child. For purposes of the appeal,

       the Clarke court assumed, without deciding, that these were special

       circumstances, but then examined the strength of the case against him and the

       benefit he received by pleading guilty:


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


       Id. at 568. The Clarke court concluded that Clarke would have pled guilty even

       if he had been advised of the risk of deportation considering the strength of the

       case against him and the substantial benefit he received from pleading guilty.


[32]   Similarly, in Gulzar, this court, after considering not only the circumstances of

       the defendant’s life in the United States, but also the evidence establishing his

       guilt, determined that Gulzar had failed to demonstrate prejudice as a result of

       trial counsel’s failure to advise him that his guilty plea to theft would result in

       Court of Appeals of Indiana | Memorandum Decision 18A-PC-1357 | February 20, 2019   Page 22 of 27
       automatic deportation. There, the defendant entered the United States in 2000

       with his parents and siblings, and he pled guilty in 2006 to theft. At some point,

       his parents and siblings became naturalized citizens. Gulzar’s participation in

       the crimes was documented on surveillance video, the items purchased with the

       stolen credit card were found in his apartment, and Gulzar never denied his

       involvement. He was charged with three Class D felonies, but pled guilty to

       one and was sentenced to eighteen months, all suspended, and probation,

       which he completed. The Gulzar court recognized that “[i]f deported, Gulzar

       would be forced either to leave his family behind or to uproot them from the

       country that has been their home for more than a decade,” but concluded that,

       even if those facts “may indeed be special circumstances,” Gulzar had not

       proven prejudice, given the strength of the case and benefit of the plea. 971

       N.E.2d at 1262. In reaching its decision, the Gulzar court noted that it is only in

       “extreme cases” that “a truly innocent defendant” pleads guilty “because of

       incorrect advice as to the consequences” and found that Gulzar’s case “is not

       one of those extreme cases.” Id. (citing Segura, 749 N.E.2d at 507).


[33]   We likewise find that Hernandez’s case is “not one of those extreme cases”

       where a truly innocent defendant pled guilty because of incorrect advice as to

       consequences. Hernandez came to the United States from Mexico in 2002

       when he was sixteen. He was with Christina at the time he pled guilty in 2014,

       although not married to her yet, and she was pregnant with their first child. He

       was also operating a cell phone repair business. In addition, we must also

       consider the strength of the case against him and the benefit of his plea. The


       Court of Appeals of Indiana | Memorandum Decision 18A-PC-1357 | February 20, 2019   Page 23 of 27
       case against Hernandez was strong. Cocaine was found in his residence and on

       his person. A white powdery substance was also observed on his nostrils, and

       he admitted to using cocaine. He also possessed synthetic identifying

       information. He pled guilty to two Class D felonies, and the two misdemeanor

       counts were dismissed. The plea gave the trial court discretion to enter the

       felony convictions as misdemeanors. That agreement also resolved a petition to

       revoke probation that had been filed in Hernandez’s prior felony operating

       while intoxicated offense. The trial court sentenced Hernandez to a 730-day

       term with 550 days suspended to probation and the remainder served on

       community corrections.


[34]   Even if we assume that Hernandez established special circumstances related to

       his job and family, we conclude that, in light of the evidence establishing his

       guilt and the benefit he received, he has failed to demonstrate prejudice.

       Accordingly, we affirm the post-conviction court’s determination that he did

       not receive ineffective assistance of counsel.


                                                     II. Interpreter

[35]   Hernandez claims that because he did not have an interpreter present at his

       hearings in Cause 313, “the record does not reflect that he knowingly and

       voluntarily” waived his Boykin rights.7 Appellant’s Brief at 20. The failure to




       7
         In Boykin v. Alabama, the United States Supreme Court held that a trial court must be satisfied that an
       accused is aware of three rights before accepting a guilty plea: (1) the privilege against compulsory self-
       incrimination; (2) the right to trial by jury; and (3) the right to confront one’s accusers. 395 U.S. 238, 242-243

       Court of Appeals of Indiana | Memorandum Decision 18A-PC-1357 | February 20, 2019                   Page 24 of 27
       advise a criminal defendant of his constitutional rights in accordance with

       Boykin prior to accepting a guilty plea will result in reversal of the conviction.

       Ponce v. State, 9 N.E.3d 1265, 1270 (Ind. 2014). Boykin does not require that the

       record of the guilty plea proceeding show that the accused was formally advised

       that entry of his guilty plea waives certain constitutional rights or that “the

       record contain a formal waiver of [Boykin rights] by the accused.” Winkleman v.

       State, 22 N.E.3d 844, 851 (Ind. Ct. App. 2014), trans. denied. Rather, Boykin

       requires a conviction to be vacated only if the defendant “did not know or was

       not advised at the time of his plea that he was waiving his Boykin rights.” Id.

       (citing Dewitt v. State, 755 N.E.2d 167, 171 (Ind. 2001)).


[36]   Our Supreme Court has directed that “a defendant who cannot speak or

       understand English has [the] right to have his proceedings simultaneously

       translated to allow for effective participation.” Ponce, 9 N.E.3d at 1272.

       Hernandez argues that his native language is Spanish, he used the services of an

       interpreter in other cases, and although he did speak “some English,” he did not

       speak English fluently enough “to understand legal matters.” Appellant’s Brief at

       20. Therefore, he claims that he “should have had[] an interpreter present at his

       hearings, particularly at his guilty plea hearing,” and that the record does not

       reflect that he knowingly and voluntarily waived his rights. Id. We disagree.




       (1969); see also Ind. Code § 35-35-1-2 (requiring that a trial court not accept a guilty plea without first
       determining that the defendant has been informed he is waiving certain rights).

       Court of Appeals of Indiana | Memorandum Decision 18A-PC-1357 | February 20, 2019                     Page 25 of 27
[37]   In this case, there is no recording or transcript of the August 2014 guilty plea

       hearing. “[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 1273. We thus examine the surrounding hearings and

       circumstances.


[38]   In some of Hernandez’s criminal proceedings that preceded Cause 313, he used

       an interpreter and, in others, he did not. Hernandez’s attorney in Cause 313,

       Dekker, testified at the post-conviction hearing that, although he could speak

       Spanish, he and Hernandez only conversed in English. Dekker stated that at no

       time in either Cause 313 or Cause 321 did Hernandez indicate that he would

       like to utilize the services of an interpreter. At the Cause 321 sentencing

       hearing, which occurred in October 2012, the trial court noticed that Hernandez

       was using a translator and Hernandez’s Advisement of Rights form was in

       English. The court then asked Hernandez whether he was bilingual and could

       understand both English and Spanish, and Hernandez replied in the affirmative.

       At the beginning of the Cause 313 sentencing hearing, which occurred in

       October 2014, the trial court asked him, “Do you read and write and

       understand the English language?” Exhibit Vol. 1 at 84. Hernandez replied,

       “Yep.” Id. Hernandez’s Advisement of Rights form was in English and he

       signed it and filed it with the trial court.


[39]   At the same time as matters were proceeding in Cause 313, Hernandez was

       appearing, with counsel, for hearings in the Chicago immigration court. He

       Court of Appeals of Indiana | Memorandum Decision 18A-PC-1357 | February 20, 2019   Page 26 of 27
       appeared on June 25, 2014, which was before his August 2014 guilty plea

       hearing in Cause 313, and then again in February, May, and November 2015,

       which followed his October 2014 sentencing hearing. At each, he conversed

       with the court only in English and repeatedly told the court that he could speak

       English, once responding by stating “fluently.” Exhibit Vol. 3 at 85.


[40]   Given the record before us, we agree with the State that “[t]he record in no way

       reflects that [Hernandez] did not understand his Boykin rights.” Appellee’s Brief

       at 13. Accordingly, we find no error with the trial court’s decision that

       Hernandez was not entitled to post-conviction relief on this basis.


[41]   Judgment affirmed.


       Brown, J. and Tavitas, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 18A-PC-1357 | February 20, 2019   Page 27 of 27
