                                                                            FILED
                                                                        Dec 21 2018, 9:31 am

                                                                            CLERK
                                                                        Indiana Supreme Court
                                                                           Court of Appeals
                                                                             and Tax Court




ATTORNEYS FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Kevin C. Munoz                                            Curtis T. Hill, Jr.
Emma Jo Ann Mahern                                        Attorney General of Indiana
Munoz Legal, LLC                                          Jesse R. Drum
Indianapolis, Indiana                                     Deputy Attorney General
                                                          Indianapolis, Indiana



                                            IN THE
    COURT OF APPEALS OF INDIANA

Romana Balderas,                                          December 21, 2018
Appellant-Petitioner,                                     Court of Appeals Case No.
                                                          17A-PC-3014
        v.                                                Appeal from the Clinton Circuit
                                                          Court
State of Indiana,                                         The Honorable Bradley K. Mohler,
Appellee-Respondent                                       Judge
                                                          Trial Court Cause No.
                                                          12C01-1705-PC-444



Baker, Judge.




Court of Appeals of Indiana | Opinion 17A-PC-3014 | December 21, 2018                           Page 1 of 7
[1]   Romana Balderas appeals the post-conviction court’s denial of her petition for

      post-conviction relief after Balderas pleaded guilty to conspiracy to commit

      forgery, a Class C felony. Balderas argues that the laches defense does not apply

      to her case and that her trial counsel provided ineffective assistance pursuant to

      Padilla v. Kentucky, 559 U.S. 356 (2010), by not advising her of the severe

      deportation consequences that could accompany a guilty plea. Finding that

      laches bars Balderas’s case, we affirm.


                                                     Facts1
[2]   On January 5, 2005, a confidential informant working with the Indiana State

      Police sold Balderas a fake Social Security card and a woman’s resident alien

      ID card for $200. At the time, Balderas was not yet a lawful, permanent

      resident in the United States. On January 11, 2005, the State charged her with

      two counts of Class C felony conspiracy to commit forgery and one count of

      Class C felony corrupt business influence. While her criminal case was pending,

      Balderas worked with an immigration attorney to become a lawful, permanent

      resident.


[3]   On March 15, 2006, Balderas pleaded guilty to one count of Class C felony

      conspiracy to commit forgery pursuant to a written plea agreement. In

      exchange for pleading guilty, the State dismissed the other charges. If found




      1
        We held oral argument for this case on December 3, 2018, in Indianapolis. We thank both parties for their
      stimulating conversations and willingness to answer our questions.

      Court of Appeals of Indiana | Opinion 17A-PC-3014 | December 21, 2018                            Page 2 of 7
      guilty at trial, Balderas could have been sentenced up to eight years for each

      Class C felony count with a potential aggregate sentence of twenty-four years.2

      Balderas claims that at some point, she informed her criminal attorney that she

      was not a lawful, permanent resident and that her attorney did not advise her of

      the severe deportation consequences that accompany a guilty plea.


[4]   The trial court sentenced her to a two-year term fully suspended to probation.

      The State, thinking the case was completed, returned Balderas’s property and

      destroyed pertinent evidence such as recordings, cassette tapes, and

      photographs. The State retained only photocopies of certain documents.

      Balderas became a lawful, permanent resident in March 2015 after marrying her

      husband, a U.S. citizen.


[5]   On April 28, 2017, Balderas filed a petition for post-conviction relief, arguing

      that her trial counsel was ineffective for not advising her that she could be

      deported if she pleaded guilty. She also claims that she would not have pleaded

      guilty had she known this information. Though Balderas has not been deported,

      she is at risk of deportation if Immigration and Customs Enforcement (ICE)

      brings an action against her.


[6]   At the post-conviction hearing, the State raised the defense of laches and

      claimed that it would be prejudiced because Balderas waited almost twelve

      years before she petitioned for post-conviction relief. Additionally, the State had




      2
          Ind. Code § 35-50-2-6(a).


      Court of Appeals of Indiana | Opinion 17A-PC-3014 | December 21, 2018      Page 3 of 7
      already destroyed key evidence that it would need to defend against a post-

      conviction action. The post-conviction court denied Balderas’s petition for post-

      conviction relief, agreeing with the State that laches barred her action from

      proceeding.


[7]   The post-conviction court further held that Balderas’s claim for ineffective

      assistance of counsel fails because (1) even if the criminal attorney did not warn

      her about the deportation consequences, surely the immigration attorney did;

      (2) Balderas’s testimony that she would not have pleaded guilty had she known

      about the deportation consequences was not enough to show prejudice; (3) the

      State had ample evidence with which to convict Balderas had she gone to trial;

      and (4) Balderas received a better bargain by pleading guilty. Balderas now

      appeals.


                               Discussion and Decision
[8]   Balderas argues that the post-conviction court erroneously denied her petition

      for post-conviction relief, claiming that laches does not bar her case from

      proceeding. She also argues that the Padilla standard for ineffective assistance of

      counsel should be retroactively applied to her case.


[9]   “A petitioner appealing the denial of post-conviction relief stands in the

      position of one appealing from a negative judgment.” Mauricio v. State, 941

      N.E.2d 497, 498 (Ind. 2011). The petitioner seeking review of a denial of post-

      conviction relief must show that the evidence, taken as a whole, “leads


      Court of Appeals of Indiana | Opinion 17A-PC-3014 | December 21, 2018        Page 4 of 7
       unerringly and unmistakably to a conclusion opposite that reached by the trial

       court.” Henley v. State, 881 N.E.2d 639, 643-44 (Ind. 2008).


[10]   Balderas first argues that the post-conviction court erroneously found that

       laches bars her from seeking relief. We note that Balderas did not challenge the

       post-conviction court’s laches reasoning in her initial appellate brief, which

       constitutes waiver of that argument. See Bunch v. State, 778 N.E.2d 1285, 1290

       (Ind. 2002). However, because the argument is relevant to the appeal and

       because the waiver is of the procedural default variety, id., we choose to address

       it now.


[11]   Our Supreme Court defines the equitable doctrine of laches as:

               . . . the neglect for an unreasonable or unexplained length of time,
               under circumstances permitting diligence, to do what in law
               should have been done. It is an implied waiver arising from
               knowledge of existing conditions and an acquiescence in them, the
               neglect to assert a right, as taken in conjunction with the lapse of
               time, more or less great, and other circumstances causing
               prejudice to the adverse party and thus operating as a bar in a
               court of equity.

       Perry v. State, 512 N.E.2d 841, 842 (Ind. 1987). To raise a successful laches

       defense, the State had to prove by a preponderance of the evidence that

       Balderas unreasonably delayed in seeking relief and that the State has been

       prejudiced by the delay. Williams v. State, 716 N.E.2d 897, 901 (Ind. 1999). On

       review, we do not reweigh the evidence or judge the credibility of the witnesses.

       Id. We only consider evidence that is most favorable to the judgment, together

       with all inferences drawn from that judgment. Id.


       Court of Appeals of Indiana | Opinion 17A-PC-3014 | December 21, 2018     Page 5 of 7
[12]   First, we find that the State proved that Balderas unreasonably delayed filing

       her petition for post-conviction relief. Nearly twelve years passed from the time

       Balderas originally pleaded guilty (2005) to the moment when she petitioned for

       post-conviction relief (2017). We and our Supreme Court have held that such a

       length of time can constitute an unreasonable delay warranting the application

       of laches. See, e.g., Ware v. State, 567 N.E.2d 803, 805 (Ind. 1991) (“nearly ten

       years”); Adams v. State, 512 N.E.2d 404, 405 (Ind. 1987) (“more than five

       years”); Oliver v. State, 853 N.E.2d 581, 587-88 (Ind. Ct. App. 2006) (ten years).

       Balderas has not offered a credible explanation for the twelve-year delay.

       Though she claims that, at the time of her criminal proceedings, she was not

       aware of her attorney’s potential duty to inform her about deportation

       consequences, she nonetheless continuously faced the risk of deportation and

       had more than a decade to petition for relief. The post-conviction court did not

       err by finding that the delay was unreasonable.


[13]   Second, the State proved by a preponderance of the evidence that it was

       prejudiced by the delay. Though the State retained some photocopies of

       documents it used in Balderas’s original prosecution, it has already destroyed

       and/or returned significant evidence such as recordings, cassette tapes, and

       photographs. See Stewart v. State, 548 N.E.2d 1171, 1176 (Ind. Ct. App. 1990)

       (holding that the State was prejudiced by delay where it no longer has all the

       evidence needed to prosecute defendant). Moreover, significant time has passed

       since the State initially prosecuted Balderas, so witnesses’ memories may have

       faded, priorities may have changed, and the State’s resources may have shifted


       Court of Appeals of Indiana | Opinion 17A-PC-3014 | December 21, 2018      Page 6 of 7
       to more pressing criminal matters. Thus, we find that the unreasonable delay

       prejudiced the State, that the post-conviction court’s application of laches was

       not erroneous, and that Balderas is not entitled to relief. 3


[14]   The judgment of the post-conviction court is affirmed.


       May, J., and Robb, J., concur.




       3
        Because we find that laches operates as a bar to Balderas’s case, we need not address her other arguments.
       We note briefly, however, that deciding whether Padilla retroactively applies to Indiana state criminal cases is
       unnecessary. In Segura v. State, 749 N.E.2d 496 (Ind. 2001), our Supreme Court established a duty for
       attorneys to advise a client about deportation consequences before pleading guilty, well before the United
       States Supreme Court decided Padilla in 2010. Therefore, this obligation already existed in Indiana; to
       determine Padilla’s retroactivity would be a redundant exercise.

       Court of Appeals of Indiana | Opinion 17A-PC-3014 | December 21, 2018                               Page 7 of 7
