Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
                                                               FILED
                                                             Jan 09 2013, 9:00 am
regarded as precedent or cited before
any court except for the purpose of
establishing the defense of res judicata,
                                                                    CLERK
                                                                  of the supreme court,
                                                                  court of appeals and
                                                                         tax court
collateral estoppel, or the law of the case.


APPELLANT PRO SE:                                   ATTORNEYS FOR APPELLEE:

JUAN C. DUARTE-LOPEZ                                GREGORY F. ZOELLER
Bunker Hill, Indiana                                Attorney General of Indiana

                                                    NICOLE M. SCHUSTER
                                                    Deputy Attorney General
                                                    Indianapolis, Indiana


                               IN THE
                     COURT OF APPEALS OF INDIANA

JUAN C. DUARTE-LOPEZ,                               )
                                                    )
       Appellant-Defendant,                         )
                                                    )
               vs.                                  )      No. 20A03-1205-PC-238
                                                    )
STATE OF INDIANA,                                   )
                                                    )
       Appellee-Plaintiff.                          )


                     APPEAL FROM THE ELKHART CIRCUIT COURT
                         The Honorable Terry C. Shewmaker, Judge
                              Cause No. 20C01-0808-FA-38


                                         January 9, 2013

                MEMORANDUM DECISION - NOT FOR PUBLICATION

PYLE, Judge
                             STATEMENT OF THE CASE

       Juan C. Duarte-Lopez (“Duarte-Lopez”) appeals from the post-conviction court’s

order denying his petition for post-conviction relief, which sought to set aside his guilty

plea to class A felony dealing in cocaine based on a claim of ineffective assistance of

counsel in advising him of certain consequences of his guilty plea.

       We affirm.

                                         ISSUE

       Whether the post-conviction court erred by denying Duarte-Lopez’s
       petition for post-conviction relief.

                                         FACTS

       In August 2008, the State charged Duarte-Lopez, who was a Mexican immigrant

and living in the United States illegally, with three counts of class A felony dealing in

cocaine. In July 2009, Duarte-Lopez pled guilty, pursuant to a written plea agreement, to

one count of class A felony dealing in cocaine. In exchange, the State agreed to dismiss

the remaining two charges and agreed to a sentencing cap of thirty-three (33) years

executed at the Department of Correction. As part of the plea agreement, Duarte-Lopez

initialed the following term: “The defendant understands that if he is not a legal citizen

of the United States, he may be deported as a result of his plea of guilty[.]” (App. 76).

Duarte-Lopez also agreed to waive his right to appeal his sentence and initialed a term

stating the same.

       During Duarte-Lopez’s guilty plea hearing, the trial court provided a certified

Spanish translator to assist Duarte-Lopez. Duarte-Lopez testified that he had reviewed


                                            2
the plea agreement with his attorney before he signed it and that he did not have any

questions about the terms of the agreement. Duarte-Lopez confirmed that he understood

the charge and penalty of the offense to which he was pleading guilty. The trial court

specifically reviewed the risk of deportation with Duarte-Lopez:

       THE COURT:           Do you understand that you could be deported as a
                            result of the conviction entered in this case if you’re
                            not a citizen of this country or if you’re here illegally?

       MR. DUARTE-LOPEZ:           Yes.

                                          *****

       THE COURT:           Mr. Duarte-Lopez, are you here in this country
                            legally?

       MR. DUARTE-LOPEZ:           No.

       THE COURT:           And do you understand that may subject you to
                            deportation proceedings?

       MR. DUARTE-LOPEZ:           Yes.

(Exhibit Volume, Plea Hearing at 11-12). Duarte-Lopez also testified that his plea was

voluntary and not coerced and that he was satisfied with his trial counsel’s representation.

The trial court then accepted Duarte-Lopez’s plea to class A felony dealing in cocaine.

       At Duarte-Lopez’s sentencing hearing, the trial court again provided the same

certified interpreter to assist Duarte-Lopez. The trial court imposed a thirty-two (32) year

executed sentence in the Department of Correction and stated that it would not suspend

any portion of Duarte-Lopez’s sentence because “the defendant will be deported at the

conclusion of serving his sentence.” (Exhibit Volume, Sentencing Hearing at 11).



                                             3
       In April 2010, Duarte-Lopez, pro se, filed a petition for post-conviction relief, and

the trial court appointed the State Public Defender to represent him. After the Public

Defender withdrew its appearance under Post-Conviction Rule 1(9)(c), Duarte-Lopez

moved to withdraw his post-conviction petition without prejudice in January 2011. The

trial court granted Duarte-Lopez’s motion over the State’s objection.

       In April 2011, Duarte-Lopez, pro se, filed another petition for post-conviction

relief. The trial court again appointed the State Public Defender, who later withdrew its

appearance under Post-Conviction Rule 1(9)(c). Thereafter, in August 2011, Duarte-

Lopez filed a motion to withdraw his post-conviction petition without prejudice, which

the trial court denied.

       In October 2011, Duarte-Lopez amended his post-conviction petition.           In his

amended petition, Duarte-Lopez alleged that his trial counsel was ineffective because

counsel failed to properly advise him in regard to his plea and failed to ensure that he

understood the plea. Specifically, Duarte-Lopez alleged that trial counsel told him that

that he would receive a sentence of 150 years if he went to trial and that the State would

suspend twelve years from his sentence if he pled guilty. Duarte-Lopez also alleged that

trial counsel was ineffective because he failed to inform him that he had a right to contact

the Mexican Consulate and that he could be deported. Duarte-Lopez did not allege that

he would not have pled guilty if counsel would have advised him otherwise. Thereafter,

Duarte-Lopez filed a request for the issuance of a subpoena to his trial counsel, Juan

Garcia, Jr. (“Attorney Garcia”), and the trial court granted the request.



                                              4
       The post-conviction court held a post-conviction hearing on March 8, 2012.

Attorney Garcia was present at the hearing, but Duarte-Lopez did not call him as a

witness. Duarte-Lopez did not testify, call any witnesses, or present any evidence.

Instead, he stated that he was appealing his sentence because it was “unfair” and that he

had received ineffective assistance of trial counsel because he “did not have the

opportunity to talk to the Mexican Consulate at the time.” (Tr. 7). The parties agreed

that the trial court would rule on Duarte-Lopez’s petition based on its consideration of the

record from his case.

       On May 4, 2012, the post-conviction court issued an order denying post-

conviction relief to Duarte-Lopez. Duarte-Lopez now appeals.

                                        DECISION

       Duarte-Lopez appeals from the post-conviction court’s order denying post-

conviction relief on his claims of ineffective assistance of counsel. Our standard of

review in post-conviction proceedings is well settled.

       We observe that post-conviction proceedings do not grant a petitioner a
       “super-appeal” but are limited to those issues available under the Indiana
       Post-Conviction Rules. Post-conviction proceedings are civil in nature, and
       petitioners bear the burden of proving their grounds for relief by a
       preponderance of the evidence. Ind. Post–Conviction Rule 1(5). A
       petitioner who appeals the denial of PCR faces a rigorous standard of
       review, as the reviewing court may consider only the evidence and the
       reasonable inferences supporting the judgment of the post-conviction court.
       The appellate court must accept the post-conviction court’s findings of fact
       and may reverse only if the findings are clearly erroneous. If a PCR
       petitioner was denied relief, he or she must show that the evidence as a
       whole leads unerringly and unmistakably to an opposite conclusion than
       that reached by the post-conviction court.



                                             5
Shepherd v. State, 924 N.E.2d 1274, 1280 (Ind. Ct. App. 2010) (internal citations

omitted), trans. denied.

       A claim of ineffective assistance of trial counsel requires a showing that: (1)

counsel’s performance was deficient by falling below an objective standard of

reasonableness based on prevailing professional norms; and (2) counsel’s performance

prejudiced the defendant such that “‘there is a reasonable probability that, but for

counsel’s unprofessional errors, the result of the proceeding would have been different.’”

Davidson v. State, 763 N.E.2d 441, 444 (Ind. 2002) (quoting Strickland v. Washington,

466 U.S. 668, 687 (1984)), reh’g denied, cert. denied. “Failure to satisfy either of the

two prongs will cause the claim to fail.” Gulzar v. State, 971 N.E.2d 1258, 1261 (Ind. Ct.

App. 2012) (citing French v. State, 778 N.E.2d 816, 824 (Ind. 2002)). Most ineffective

assistance of counsel claims can be resolved by a prejudice inquiry alone. French, 778

N.E.2d at 824.

       Duarte-Lopez argues that he received ineffective assistance of counsel because his

trial counsel failed to properly advise him in regard to his plea. Specifically, he asserts

that his trial counsel was ineffective because counsel: (1) informed him that he would

receive a sentence of 150 years if he went to trial; (2) informed him that the State would

suspend twelve years from his sentence if he pled guilty; (3) failed to inform him that he

had a right to contact the Mexican Consulate; and (4) failed to inform him that he could

be deported.

       Because Duarte-Lopez’s claims for post-conviction relief are based on his

contention that he received ineffective assistance of counsel as part of his guilty plea, we

                                             6
examine his claims under Segura v. State, 749 N.E.2d 496 (Ind. 2001).               Segura

categorizes two main types of ineffective assistance of counsel cases, (1) claims of “an

unutilized defense or failure to mitigate a penalty” and (2) claims of “an improper

advisement of penal consequences,” the second which is applicable here. Willoughby v.

State, 792 N.E.2d 560, 563 (Ind. Ct. App. 2003) (citing Segura, 749 N.E.2d at 507),

trans. denied. The second category is divided into two subcategories: (1) “claims of

promised leniency;” and (2) “claims of incorrect advice as to the law.” Segura, 749

N.E.2d at 504.

      Duarte-Lopez’s claims of ineffective assistance of counsel fall under the second

subcategory of the improper advisement of penal consequences.           In regard to post-

conviction claims under this subcategory, the Segura Court explained that

      in 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. To state a claim of prejudice from counsel’s omission or
      misdescription of penal consequences that attaches to both a plea and a
      conviction at trial, the petitioner must allege . . . “special circumstances,”
      or, as others have put it, “objective facts” supporting the conclusion that the
      decision to plead was driven by the erroneous advice.

      We believe a showing of prejudice from incorrect advice as to the penal
      consequences is to be judged by an objective standard, i.e., there must be a
      showing of facts that support a reasonable probability that the hypothetical
      reasonable defendant would have elected to go to trial if properly advised.
      Nevertheless, as we understand Strickland and Hill as informed by
      Williams, a petitioner may be entitled to relief if there is an objectively
      credible factual and legal basis from which it may be concluded that “there
      is a reasonable probability that, but for counsel’s errors, he would not have
      pleaded guilty and would have insisted on going to trial.” Hill, 474 U.S. at
      59, 106 S.Ct. 366.



                                            7
       . . . [F]or claims relating to penal consequences, a petitioner must establish,
       by objective facts, circumstances that support the conclusion that counsel’s
       errors in advice as to penal consequences were material to the decision to
       plead. Merely alleging that the petitioner would not have pleaded is
       insufficient.     Rather, specific facts, in addition to the petitioner’s
       conclusory allegation, must establish an objective reasonable probability
       that competent representation would have caused the petitioner not to enter
       a plea.

Segura, 749 N.E.2d at 507 (footnotes omitted).

       In Segura, our Indiana Supreme Court held that Segura had failed to meet the

required standard to show prejudice in his ineffective assistance of counsel claim based

on improper advisement of penal consequences because Segura “offer[ed] nothing more

than the naked allegation that his decision to plead would have been affected by counsel’s

advice.” Id. at 508.

       Here, Duarte-Lopez offers even less than that. At no point during this post-

conviction proceeding—not in his post-conviction petition, during the post-conviction

hearing, or in his appellate brief—did Duarte-Lopez even make a “naked allegation” that

he would not have pled guilty had trial counsel properly advised him. Indeed, during the

post-conviction hearing, Duarte-Lopez presented absolutely no evidence or testimony to

support his claims of ineffective assistance of counsel. While the post-conviction court

took judicial notice of the record of Duarte-Lopez’s case below, this offered no support

for Duarte-Lopez’s claims. To be sure, in regard to Duarte-Lopez’s claim that he was not

informed of the risk of deportation, the record clearly establishes that Duarte-Lopez was

made aware of the risk of deportation in his plea agreement, which he initialed, and

during his guilty plea hearing and sentencing hearing. Additionally, although Duarte-


                                             8
Lopez’s trial counsel was present at the post-conviction hearing, Duarte-Lopez did not

call counsel as a witness. Therefore, we, as the trial court did, may infer that trial counsel

would not have corroborated Duarte-Lopez’s ineffective counsel allegations. See Oberst

v. State, 935 N.E.2d 1250, 1254 (Ind. Ct. App. 2010), trans. denied.

       Aside from Duarte-Lopez’s complete lack of evidence to support his alleged

claims of being improperly advised regarding sentencing consequences, right to contact

the Mexican Consulate, and risk of deportation, he also failed to meet his burden of

demonstrating prejudice—as set forth in Segura—as a result of counsel’s alleged

incorrect advice. See, e.g., Gulzar, 971 N.E.2d at 1262 (holding petitioner had failed to

demonstrate prejudice as a result of counsel’s failure to advise that guilty plea would

result in deportation); Trujillo, 962 N.E.2d at 116 (affirming denial of post-conviction

relief where petitioner failed to demonstrate prejudice as a result of counsel’s failure to

advise regarding adverse immigration consequences of pleading guilty); see also Evans v.

State, 809 N.E.2d 338, 343-44 (Ind. Ct. App. 2004) (holding that the post-conviction did

not err by denying petition for post-conviction relief where petitioner failed to present

any evidence in support of his claims), trans. denied. Because Duarte-Lopez failed to

establish his claim of ineffective assistance of trial counsel, we affirm the post-conviction

court’s denial of his petition for post-conviction relief.




                                               9
        Affirmed.1

ROBB, C.J., and MAY, J., concur.




1
  We note that the post-conviction court and the State both cited to Olvera v. State, 899 N.E.2d 708 (Ind.
Ct. App. 2009) to support the assertion that our Court has held that a defendant who raises a post-
conviction claim alleging that trial counsel was ineffective for failing to inform the defendant of his right
to contact his consulate must show that (1) the defendant did not know of his right to contact the
consulate; (2) the defendant would have availed himself of the right had he known; and (3) there was a
likelihood that the consulate would have assisted him. See App. 51-52; State’s Br. at 10. While Olvera
contains this three-part test, it is contained as a quote from the post-conviction court’s conclusions of law,
not part of our Court’s holding. In Olvera, the defendant did not challenge the post-conviction court’s
determination of his claim that his trial counsel was ineffective for failing to inform him of his right to
contact the Mexican consulate. Further, while our Court has cited to this three-part test in Zavala v. State,
739 N.E.2d 135 (Ind. Ct. App. 2000), we did so in the context of a direct appeal claim of fundamental
error, not in reviewing the defendant’s ineffective assistance of counsel claim.
                                                     10
