MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before any                               FILED
court except for the purpose of establishing                       Jun 28 2017, 6:37 am

the defense of res judicata, collateral                                 CLERK
estoppel, or the law of the case.                                   Indiana Supreme Court
                                                                       Court of Appeals
                                                                         and Tax Court




ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Kevin McShane                                            Curtis T. Hill, Jr.
Indianapolis, Indiana                                    Attorney General of Indiana
                                                         Larry D. Allen
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Noe Rico-Navarro,                                        June 28, 2017
Appellant-Petitioner,                                    Court of Appeals Case No.
                                                         49A02-1609-CR-2201
        v.                                               Appeal from the Marion Superior
                                                         Court
State of Indiana,                                        The Honorable Angela Davis,
Appellee-Respondent.                                     Judge
                                                         Trial Court Cause No.
                                                         49G16-1008-CM-64036



Robb, Judge.




Court of Appeals of Indiana | Memorandum Decision 49A02-1609-CR-2201 | June 28, 2017        Page 1 of 7
                                Case Summary and Issue
[1]   Noe Rico-Navarro appeals the post-conviction court’s denial of his petition for

      post-conviction relief, raising one issue for our review, which we restate as

      whether the post-conviction court erred in concluding Rico-Navarro’s trial

      counsel was not ineffective. Concluding Rico-Navarro did not receive

      ineffective assistance of counsel, we affirm.



                            Facts and Procedural History
[2]   In 2010, the State charged Rico-Navarro with battery as a Class A

      misdemeanor and Rico-Navarro pleaded guilty pursuant to a plea agreement.

      In addition to signing the plea agreement, Rico-Navarro specifically signed his

      initials next to the following two provisions contained within the plea

      agreement:

              If the Defendant is not a United States citizen, this criminal
              conviction could affect the defendant’s immigration status
              including, but not limited to, the Defendant being deported from
              the United States, the Defendant being denied re-entry into the
              United States, and the Defendant being prohibited from
              becoming a citizen of the United States.

              Defendant has discussed fully with his/her counsel the effect of
              signing this agreement on his/her citizenship status.




      Court of Appeals of Indiana | Memorandum Decision 49A02-1609-CR-2201 | June 28, 2017   Page 2 of 7
      Appellant’s Appendix, Volume 2 at 13.1


[3]   At the guilty plea hearing, Rico-Navarro indicated to the trial court, via a

      translator, that he had reviewed the plea agreement in the presence of an

      interpreter and his attorney, and understood the plea agreement. The trial court

      accepted Rico-Navarro’s guilty plea, entered judgment of conviction, and

      sentenced him to 357 days in the Indiana Department of Correction, with the

      entirety of the sentence suspended to probation.


[4]   Nearly five years later, Rico-Navarro filed a petition for post-conviction relief

      alleging he was deprived of due process of law and received ineffective

      assistance of trial counsel when neither the trial court nor trial counsel advised

      him of potential adverse immigration consequences. At an evidentiary hearing

      on July 8, 2016, Rico-Navarro testified he was a Mexican citizen at the time he

      pleaded guilty, neither the trial court nor his trial counsel warned him of the

      potential consequences of his guilty plea on his immigration status, he was

      currently seeking to gain residential status in the United States, and he only

      learned after he pleaded guilty that his battery conviction might affect his ability

      to become a United States citizen. Apart from this testimony, Rico-Navarro

      did not admit any additional evidence. The State then moved the post-




      1
        We note the plea agreement is not included in the record on appeal, but both the State and Rico-Navarro
      cite with approval to the post-conviction court’s order denying Rico-Navarro’s petition where the post-
      conviction court quoted the relevant portions of the plea agreement. Rico-Navarro also acknowledges he
      signed his initials next to the provisions noted above. See Brief of Appellant at 6. We therefore cite to the
      quoted portions of the plea agreement as provided in the post-conviction court’s order. See Appellant’s App.,
      Vol. 2 at 13.

      Court of Appeals of Indiana | Memorandum Decision 49A02-1609-CR-2201 | June 28, 2017              Page 3 of 7
      conviction court to take judicial notice of the case file, including the plea

      agreement, which the post-conviction court granted. No other evidence was

      admitted. On August 29, 2016, the post-conviction court entered its findings of

      fact and conclusions of law denying Rico-Navarro’s petition for post-conviction

      relief. This appeal ensued.



                                 Discussion and Decision
                                     I. Standard of Review
[5]   “Post-conviction proceedings do not afford the petitioner an opportunity for a

      super appeal, but rather, provide the opportunity to raise issues that were

      unknown or unavailable at the time of the original trial or the direct

      appeal.” Turner v. State, 974 N.E.2d 575, 581 (Ind. Ct. App. 2012), trans.

      denied. Post-conviction procedures create a narrow remedy for subsequent

      collateral challenges to convictions, and those challenges must be based on the

      grounds enumerated in post-conviction rules. Id. The petitioner must establish

      his claims by a preponderance of the evidence. Ind. Post-Conviction Rule 1(5).


[6]   A petitioner who has been denied post-conviction relief faces a “rigorous

      standard of review” on appeal. Dewitt v. State, 755 N.E.2d 167, 169 (Ind. 2001).

      In reviewing the judgment of a post-conviction court, we consider only the

      evidence and reasonable inferences supporting the judgment. Hall v. State, 849

      N.E.2d 466, 468 (Ind. 2006). We may not reweigh the evidence or reassess the

      credibility of the witnesses. Id. The post-conviction court’s denial of post-

      conviction relief will be affirmed unless the evidence leads “unerringly and
      Court of Appeals of Indiana | Memorandum Decision 49A02-1609-CR-2201 | June 28, 2017   Page 4 of 7
      unmistakably to a decision opposite that reached by the post-conviction

      court.” McCary v. State, 761 N.E.2d 389, 391 (Ind. 2002). Only where the

      evidence is without conflict and leads to but one conclusion, and the post-

      conviction court reached the opposite conclusion, will the court’s findings or

      conclusions be disturbed as being contrary to law. Hall, 849 N.E .2d at 469.

      Finally, we do not defer to the post-conviction court’s legal conclusions, but do

      accept its factual findings unless they are clearly erroneous. Ind. Trial Rule

      52(A); Stevens v. State, 770 N.E.2d 739, 746 (Ind. 2002), cert. denied, 540 U.S.

      830 (2003).


                    II. Ineffective Assistance of Trial Counsel
[7]   We review claims of ineffective assistance of counsel under the two-prong test

      set forth in Strickland v. Washington, 466 U.S. 668 (1984). To prevail on such a

      claim, the petitioner must show 1) his counsel’s performance was deficient, and

      2) the deficient performance prejudiced him. Id. at 687-88. To satisfy the first

      prong, the petitioner must show counsel’s performance fell below an objective

      standard of reasonableness and counsel’s errors were so serious as to deprive

      the petitioner of his Sixth Amendment right to counsel. Garrett v. State, 992

      N.E.2d 710, 719 (Ind. 2013). Under this standard, we recognize a strong

      presumption counsel rendered adequate legal assistance, Timberlake v. State, 753

      N.E.2d 591, 603 (Ind. 2001), cert. denied, 537 U.S. 839 (2002), and to overcome

      this presumption, the petitioner must offer strong and convincing evidence,

      Smith v. State, 822 N.E.2d 193, 202 (Ind. Ct. App. 2005), trans. denied. To

      satisfy the second prong, the petitioner must show a reasonable probability that,

      Court of Appeals of Indiana | Memorandum Decision 49A02-1609-CR-2201 | June 28, 2017   Page 5 of 7
      but for counsel’s errors, the result of the proceeding would have been different.

      Id. “A reasonable probability is a probability sufficient to undermine

      confidence in the outcome.” Strickland, 466 U.S. at 694.


[8]   Rico-Navarro contends trial counsel rendered ineffective assistance in failing to

      explain any potential adverse consequences of his guilty plea on his ability to

      become a United States citizen. The Supreme Court of the United States has

      recognized that, “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.” Padilla v. Kentucky, 559 U.S. 356, 369 (2010). Thus, at the very

      least, counsel should inform any noncitizen client that criminal charges and

      criminal convictions risk adverse immigration consequences. See id.


[9]   Here, we certainly acknowledge Rico-Navarro testified his attorney never

      informed him pleading guilty risked adverse immigration consequences.

      However, the post-conviction court was not required to give weight to this

      testimony, especially in light of the fact that Rico-Navarro signed the plea

      agreement stating that he discussed with his counsel and understood the effect

      his guilty plea could have on his immigration status. For this reason, Rico-

      Navarro’s argument is merely a request for this court to reweigh the evidence

      and reassess witness credibility, which we will not do. Hall, 849 N.E.2d at 468.

      In addition, Rico-Navarro did not present any other evidence, including

      evidence establishing whether he was and is, in fact, a citizen of Mexico, and

      even if true, whether counsel was aware of his immigration status. We

      Court of Appeals of Indiana | Memorandum Decision 49A02-1609-CR-2201 | June 28, 2017   Page 6 of 7
       conclude Rico-Navarro has not offered strong and convincing evidence

       sufficient to overcome the presumption his counsel rendered effective assistance

       and therefore the post-conviction court did not err in denying his petition for

       post-conviction relief. 2



                                                  Conclusion
[10]   Because Rico-Navarro failed to demonstrate he received ineffective assistance

       of trial counsel, we affirm the post-conviction court’s denial of his petition for

       post-conviction relief.


[11]   Affirmed.


       Vaidik, C.J., and Bailey, J., concur.




       2
         Rico-Navarro also briefly contends the trial court was required to advise him his immigration status could
       be jeopardized if he pleaded guilty and cites to Barajas v. State, 987 N.E.2d 176 (Ind. Ct. App. 2013). There, a
       panel of this court determined that even assuming the defendant’s trial counsel rendered ineffective assistance
       in failing to advise him of adverse immigration consequences, the defendant failed to show prejudice because
       the trial court had informed the defendant prior to his guilty plea of such consequences. Id. at 181. We do
       not read Barajas as creating a rule requiring trial courts to inform criminal defendants of potential adverse
       immigration consequences and Rico-Navarro fails to cite to any case adopting such a rule. This argument
       fails.

       Court of Appeals of Indiana | Memorandum Decision 49A02-1609-CR-2201 | June 28, 2017                Page 7 of 7
