MEMORANDUM DECISION
                                                                     Feb 18 2015, 6:02 am
Pursuant to Ind. Appellate Rule 65(D), this
Memorandum Decision shall not be regarded as
precedent or cited before any court except for the
purpose of establishing the defense of res judicata,
collateral estoppel, or the law of the case.



ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Joel Schumm                                              Gregory F. Zoeller
Indiana University Robert H. McKinney                    Attorney General of Indiana
School of Law
                                                         Katherine M. Cooper
Paul T. Babcock
                                                         Deputy Attorney General
Certified Legal Intern, Appellate Clinic
                                                         Indianapolis, Indiana
Indianapolis, Indiana




                                             IN THE
    COURT OF APPEALS OF INDIANA

Ivan Sanchez,                                            February 18, 2015

Appellant-Petitioner,                                    Court of Appeals Cause No.
                                                         29A04-1409-PC-426
        v.                                               Appeal from the Hamilton Superior
                                                         Court.
                                                         The Honorable Gail Bardach, Judge.
State of Indiana,                                        Cause No. 29D06-1406-PC-4318
Appellee-Respondent.




Barteau, Senior Judge




Court of Appeals of Indiana | Memorandum Decision 29A04-1409-PC-426|February 18, 2015       Page 1 of 13
                                      Statement of the Case
[1]   Ivan Sanchez appeals from the trial court’s order denying his petition for post-

      conviction relief, contending that the post-conviction court erred by concluding

      that he did not receive ineffective assistance of trial counsel. Concluding as we

      do, however, that Sanchez has failed to demonstrate that the post-conviction

      court erred, we affirm.


                               Facts and Procedural History
[2]   Sanchez is a nineteen-year-old citizen of Mexico who had received the status of

      Deferred Action for Childhood Arrival (“DACA”) prior to his arrest in

      Hamilton County. Sanchez was charged with one count of fraud and five

      counts of attempted fraud related to his theft of a debit card from a wallet found

      in the vehicle of another person. Sanchez pleaded guilty to one count of fraud

      as a Class D felony on March 20, 2014. The trial court sentenced Sanchez to

      730 days with credit for seventy-four days served and the remainder of the time

      suspended to probation. After his conviction, Sanchez was detained and

      removal proceedings were instituted against him. Sanchez filed a petition for

      post-conviction relief which was denied by the post-conviction court after a

      hearing. Sanchez now appeals.


                                   Discussion and Decision
[3]   Sanchez contends that he received ineffective assistance of trial counsel because

      he alleges he was not fully advised that by pleading guilty to fraud, a crime of



      Court of Appeals of Indiana | Memorandum Decision 29A04-1409-PC-426|February 18, 2015   Page 2 of 13
      moral turpitude, he faced immigration consequences including the possibility of

      automatic deportation.


[4]   Sanchez, who speaks English, was represented by attorney Eugene Kress at his

      guilty plea hearing and his sentencing hearing. Kress met with Sanchez twice

      and, after determining that Sanchez was not a U.S. Citizen, Kress advised

      Sanchez that there could be immigration consequences including deportation if

      he was convicted of this crime. Kress did not advise Sanchez that he was

      certain to be deported as a consequence of the conviction, but advised him of

      that possibility.


[5]   Sanchez pleaded guilty to one count of Class D felony fraud and signed the

      misdemeanor and Class D felony advisement form, initialing each term. That

      form included the following advisement:

              If you are not a U.S. citizen, a criminal conviction may have
              immigration consequences, including deportation. You should discuss
              this possibility with your attorney because if you do plead guilty, it will
              result in a criminal conviction.


      Appellant’s App. at 27.


[6]   Sanchez testified at his guilty plea hearing that he had read the advisement and

      that Kress had explained it to him. After reviewing the advisement form with

      Sanchez, Kress asked him if he had any questions. Sanchez did not express any

      concerns about pleading guilty and did not ask any questions about

      deportation. Kress told Sanchez that he did not know whether Sanchez would

      be deported because “[i]n some of these cases it happens, and in others it
      Court of Appeals of Indiana | Memorandum Decision 29A04-1409-PC-426|February 18, 2015   Page 3 of 13
      doesn’t.” State’s Ex. 1 at 14. After Sanchez’s guilty plea hearing and

      sentencing, federal immigration authorities placed Sanchez in mandatory

      detention and initiated removal proceedings.


[7]   Sanchez argues that the post-conviction court erred by denying his petition for

      post-conviction relief because he contends he met his burden of proving that

      Kress provided ineffective assistance by failing to advise him that his conviction

      for fraud would result in automatic deportation from the country.


[8]   At the hearing on Sanchez’s petition, Sanchez testified that when questioned by

      Kress he told Kress that he was a citizen of Mexico, but did not tell Kress about

      having received DACA status. He further testified that pertaining to

      deportation Kress had advised him that “if [he] took the plea, there would be a

      50-50 chance that [he] would be deported.” Tr. p. 9. Kress told him that being

      removed or deported from the United States “could be a possibility, but he

      didn’t tell me that I was gonna [sic] get [] deported for sure.” Id. at 10.


[9]   Sanchez further testified on direct examination at the hearing on his petition as

      follows:

              Q:       Did Mr. Kress tender any other options besides the plea
              agreement to decide your case?
              A:       No.
              Q:       Did he mention going to trial?
              A:       I was planning [on] going to trial if, like, there was not an
              option.
              THE COURT:               I’m sorry, I didn’t understand your answer. You
              were planning to go to trial, but what?
              A:       If there was another option, like, like—I was planning on going
              to trial if I couldn’t get out on probation, because he told me I was

      Court of Appeals of Indiana | Memorandum Decision 29A04-1409-PC-426|February 18, 2015   Page 4 of 13
               supposed to get on probation.
               THE COURT:             So your answer is you were planning to go to
               trial if you couldn’t get on probation?
               A:       Yeah.


       Tr. p. 11.


[10]   Kress’s deposition was introduced into evidence during the hearing on

       Sanchez’s petition. Kress explained his observations during his twenty years of

       practicing law as follows:

               I can only offer an explanation of what my experience is. When all of
               these cases, with people that I believe are here illegally, you know, my
               experience is I think the same experience of a lot of lawyers.
               Sometimes people are deported for crimes, and sometimes they’re not.
               Sometimes they’re deported for crimes that [] fit squarely within the
               statute as to what is or is not moral turpitude, and sometimes they are
               not deported for that. I’ve inquired of immigration lawyers about how
               we can know definitively what happens, and many times they tell me
               they don’t know definitively what happens. It’s really—my experience
               has been is that, you know, all I can do is tell my clients that are here
               illegally that there will be immigration consequences and leave it at
               that and then try to answer questions as best I can because I, frankly,
               have not seen anything that could tell me definitively that a person’s
               going to be deported when they’re convicted of any crime.


       State’s Ex. 1 at 15. Kress also stated that he did not know the list of crimes of

       moral turpitude “off the top of [his] head” and that he did not conduct any

       research on Sanchez’s case. Id. at 7.


[11]   Linda Kelly, a professor of immigration law at the Indiana University Robert

       H. McKinney School of Law and practicing immigration attorney, testified as

       an expert witness at the hearing on Sanchez’s petition. Kelly also represented

       Court of Appeals of Indiana | Memorandum Decision 29A04-1409-PC-426|February 18, 2015   Page 5 of 13
       Sanchez in his removal proceedings. Kelly stated that non-citizens who are

       convicted of a crime involving moral turpitude are subject to automatic

       mandatory detention and are subject to removal proceedings. However, Kelly

       further testified that some people who otherwise qualify for mandatory

       detention and removal proceedings are overlooked.


[12]   The post-conviction court denied Sanchez’s petition after concluding that the

       evidence showed he had been advised that there could be immigration

       consequences if he pleaded guilty.


[13]   A post-conviction proceeding is not a substitute for a direct appeal and does not

       provide a petitioner with a “super-appeal.” Reed v. State, 856 N.E.2d 1189,

       1194 (Ind. 2006). The post-conviction rules contemplate a narrow remedy for

       subsequent collateral challenges to convictions. Id.


[14]   Post-conviction proceedings are, by nature, civil proceedings in which the

       defendant must establish grounds for relief by a preponderance of the evidence.

       Wilkes v. State, 984 N.E.2d 1236, 1240 (Ind. 2013). When appealing the denial

       of post-conviction relief, the petitioner stands in the position of one appealing

       from a negative judgment. Id. On appeal, 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. Kubsch v. State, 934 N.E.2d 1138,

       1144 (Ind. 2010).


[15]   To prevail on a claim of ineffective assistance of trial counsel, a defendant must

       demonstrate that counsel performed deficiently and that the deficiency resulted

       Court of Appeals of Indiana | Memorandum Decision 29A04-1409-PC-426|February 18, 2015   Page 6 of 13
       in prejudice. Lee v. State, 892 N.E.2d 1231, 1233 (Ind. 2008). To establish

       deficient performance, the defendant must show that counsel’s representation

       fell below an objective standard of reasonableness based on prevailing

       professional norms. Grinstead v. State, 845 N.E.2d 1027, 1031 (Ind. 2006). To

       establish prejudice, the defendant must show that there is a reasonable

       probability (i.e., a probability sufficient to undermine confidence in the

       outcome) that, but for counsel’s errors, the result of the proceeding would have

       been different. Id. Counsel’s performance is presumed effective, and a

       defendant must offer strong and convincing evidence to overcome this

       presumption. Kubsch, 934 N.E.2d at 1147. An inability to establish either

       deficient performance or prejudice is fatal to a claim of ineffective assistance.

       Rowe v. State, 912 N.E.2d 441, 443 (Ind. Ct. App. 2009), aff’d on reh’g, 915

       N.E.2d 561 (2009), trans. denied (2010).


[16]   The State appears to have conceded at the hearing that Sanchez had established

       the prejudice part of the Strickland test. The following is the exchange between

       the State and the post-conviction court on the prejudice part of the test:

               THE STATE: I don’t believe there was any testimony today that there
               was—I know how Defendant will argue—but I don’t think Mr.
               Sanchez-Campis testified today that there was actually prejudice done.
               So we look at whether or not there was a deficient performance by Mr.
               Kress.
               THE COURT: Or, isn’t—isn’t whether Mr. Sanchez-Campis—He
               identified himself as Campis-Sanchez, not Sanchez-Campis.
               THE STATE: Oh, excuse me, Judge.
               THE COURT: So, I’m not sure, but isn’t the testimony of Ms. Kelly
               that he was ordered removed? And that he wouldn’t have been—
               THE STATE: Well, I don’t know if there’s any evidence today—

       Court of Appeals of Indiana | Memorandum Decision 29A04-1409-PC-426|February 18, 2015   Page 7 of 13
               THE COURT: — and that he wouldn’t—and that he wouldn’t have
               been ordered removed but for his conviction of the credit card fraud
               case. Wasn’t that her testimony?
               THE STATE: I think, yes. I think that was her testimony.
               THE COURT: Doesn’t—does that not establish prejudice to him?
               THE STATE: I don’t know if he test—he didn’t testify today that—
               THE COURT: Does he have to testify to it, or—
               THE STATE: No.
               THE COURT: — do I just have to find that there’s prejudice?
               THE STATE: You just have to find that there’s prejudice.
               THE COURT: And does that not constitute prejudice?
               THE STATE: I think that probably would.
               THE COURT: Okay. So, let’s not waste any time with that
               argument, okay?
               THE STATE: Okay.


       Tr. pp. 38-40.


[17]   Therefore, we turn now to the part of the Strickland test dealing with deficient

       performance. Sanchez attempted to support his claim by citing to Padilla v.

       Kentucky, 559 U.S. 356, 130 S. Ct. 1473, 176 L. Ed. 2d 284 (2010). In Padilla,

       the petitioner, a native of Honduras, had been a lawful permanent resident of

       the United States for more than forty years during which he served in the

       Vietnam War as a member of the U.S. Armed Forces. Padilla ultimately

       pleaded guilty to the transportation of a large amount of marijuana in his

       tractor-trailer. He pleaded guilty after counsel not only failed to advise him of

       the automatic deportation consequences of pleading guilty, but told him that he

       need not worry about his immigration status after being in the United States for

       so long. The United States Supreme Court found that Padilla was entitled to

       post-conviction relief because he had sufficiently demonstrated that his


       Court of Appeals of Indiana | Memorandum Decision 29A04-1409-PC-426|February 18, 2015   Page 8 of 13
       counsel’s performance was deficient by failing to inform Padilla that his plea

       carried a risk of deportation. 559 U.S. at 374. Indeed, the United States

       Supreme Court stated that “[t]he weight of prevailing professional norms

       supports the view that counsel must advise her client regarding the risk of

       deportation.” 559 U.S. at 367.


[18]   In Padilla’s situation, the removal consequence for his conviction was clear. 8

       United States Code section 1227(a)(2)(B)(i) provides that “[a]ny alien who at

       any time after admission has been convicted of 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 . . ., other than a single

       offense involving possession for one’s own use of 30 grams or less of marijuana,

       is deportable.” Thus, not only the failure to advise, but the erroneous

       advisement not to worry about deportation consequences amounted to deficient

       performance in Padilla.


[19]   Sanchez, on the other hand, pleaded guilty to fraud. 8 United States Code

       section 1227(a)(2)(A)(i) provides that with respect to criminal offenses, “[a]ny

       alien who is convicted of a crime involving moral turpitude committed within

       five years . . . after the date of admission, and is convicted of a crime for which

       a sentence of one year or longer may be imposed, is deportable.” Sanchez is

       correct that Jordan v. De George, 341 U.S. 223, 232, 71 S. Ct. 703, 708, 95 L. Ed.

       886 (1951) holds that “the decided cases make it plain that crimes in which

       fraud was an ingredient have always been regarded as involving moral

       turpitude.” However, unlike the code section in Padilla, the crimes involving

       Court of Appeals of Indiana | Memorandum Decision 29A04-1409-PC-426|February 18, 2015   Page 9 of 13
       moral turpitude are not specifically set forth in the statute. The United States

       Supreme Court acknowledged in Padilla the following:

               Immigration law can be complex, and it is a legal specialty of its own.
               Some members of the bar who represent clients facing criminal
               charges, in either state or federal court or both, may not be well versed
               in it. 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, as it was in this case, the duty to give correct advice is
               equally clear.


       559 U.S. at 369, 130 S. Ct. at 1483.


[20]   Kress testified that in his twenty years of practicing law he had consulted

       immigration attorneys for an explanation why certain non-citizens who could

       be deported were not, while others were. He testified that he was unable to

       obtain a definitive explanation for that observation. Kelly, an immigration

       lawyer and law professor, testified as an expert witness that Sanchez’s offense

       made him subject to automatic removal. However, she offered additional

       expert testimony that not all non-citizens who are convicted of crimes of moral

       turpitude are deported for a variety of reasons such as their convictions being

       overlooked. Thus, under Padilla, Kress properly advised Sanchez that his plea

       carried a risk of deportation.




       Court of Appeals of Indiana | Memorandum Decision 29A04-1409-PC-426|February 18, 2015   Page 10 of 13
[21]   In Segura v. State, 749 N.E.2d 496, 500 (Ind. 2001), our Supreme Court noted

       that we had addressed the deficient performance part of the Strickland test in the

       context of advisement of deportation consequences in Williams v. State, 641

       N.E.2d 44 (Ind. Ct. App. 1994), trans. denied (1995). In Williams, we concluded

       that the “consequence of deportation, whether labelled collateral or not, is of

       sufficient seriousness that it constitutes ineffective assistance for an attorney to

       fail to advise a noncitizen defendant of the deportation consequences of a guilty

       plea.” 641 N.E.2d at 49. We affirmed the post-conviction court’s order

       denying the three petitioners relief because although the petitioners claimed

       their attorneys failed to advise them, the testimony of the attorneys showed that

       “the subject of deportation was explicitly discussed by Randolph and his clients

       and touched upon by Alsip and his client.” Id. at 50. Randolph specifically

       testified that he informed his clients that by pleading guilty they would serve

       their time in jail and would then have to go through deportation proceedings.

       Alsip discussed with his client the fact that “the Immigration Service would be

       interested” if the client was convicted and “it could affect his status in the

       United States.” Id.


[22]   The Segura Court agreed that “the failure to advise of the consequence of

       deportation can, under some circumstances, constitute deficient performance.”

       749 N.E.2d at 500. The Supreme Court went on to say as follows:

               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 factors. These
               presumably include the knowledge of the lawyer of the client’s status

       Court of Appeals of Indiana | Memorandum Decision 29A04-1409-PC-426|February 18, 2015   Page 11 of 13
               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.


       Id. at 500. However, the Supreme Court did not analyze Segura’s claim under

       the deficient performance part of the test, but decided the appeal under the

       prejudice part of the Strickland test.


[23]   Here, because Sanchez bore the burden of proving the allegations of his petition

       by a preponderance of the evidence and did not prevail, he appeals from a

       negative judgment. Thus, on appeal he must show that the evidence as a whole

       leads unerringly and unmistakably to a conclusion opposite that reached by the

       post-conviction court.


[24]   The evidence at the post-conviction hearing established that Kress met with

       Sanchez twice and, after learning of Sanchez’s immigration status, advised him

       that there could be immigration consequences including deportation if he was

       convicted of fraud. Kress reviewed the advisement form with Sanchez, who

       signed it, and initialed each paragraph including the provision discussing the

       immigration consequences of pleading guilty. When questioned by the trial

       court at the guilty plea hearing, Sanchez indicated that he had read the

       advisement form and that Kress had explained it to him.


[25]   Sanchez testified at the post-conviction hearing that Kress had told him there

       was a “50-50 chance” of being deported if he pleaded guilty to fraud. Tr. at 9.

       In his deposition testimony, Kress explained that in some cases, people who

       Court of Appeals of Indiana | Memorandum Decision 29A04-1409-PC-426|February 18, 2015   Page 12 of 13
       should face deportation after conviction are not deported, while others are.

       Kress stated that he did not tell Sanchez that he would absolutely face

       deportation after pleading guilty because in his experience deportation could

       happen, but might not. However, Kress did tell Sanchez that there could be

       immigration consequences including deportation if he was convicted of this

       crime. Under these circumstances, Kress’s advisements regarding deportation

       did not amount to deficient performance.


[26]   Sanchez has failed to establish that the evidence as a whole leads unerringly

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

       conviction court.


                                                Conclusion
[27]   In light of the foregoing, the post-conviction court’s order denying the petition

       for post-conviction relief is affirmed.


[28]   Affirmed.


       Riley, J., and Barnes, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 29A04-1409-PC-426|February 18, 2015   Page 13 of 13
