Pursuant to Ind.Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before                     Nov 26 2014, 10:46 am
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:

JAMES E. PORTER                                  GREGORY F. ZOELLER
Epstein Cohen Seif & Flora                       Attorney General of Indiana
Indianapolis, Indiana
                                                 MONIKA PREKOPA TALBOT
                                                 Deputy Attorney General
                                                 Indianapolis, Indiana




                              IN THE
                    COURT OF APPEALS OF INDIANA

SUKHJINDER SINGH,                                )
                                                 )
       Appellant-Petitioner,                     )
                                                 )
              vs.                                )        No. 47A05-1404-PC-168
                                                 )
STATE OF INDIANA,                                )
                                                 )
       Appellee-Respondent.                      )


                 APPEAL FROM THE LAWRENCE SUPERIOR COURT
                         The Honorable William G. Sleva, Judge
     Cause Nos. 47D02-1311-PC-1418, 47D02-1311-PC-1419, and 47D02-1311-PC-1420



                                      November 26, 2014


                MEMORANDUM DECISION - NOT FOR PUBLICATION


NAJAM, Judge
                            STATEMENT OF THE CASE

      Sukhjinder Singh appeals the post-conviction court’s denial of his petition for

post-conviction relief. Singh raises a single issue for our review, which we restate as the

following two issues:

      1.      Whether he knowingly, voluntarily, and intelligently entered into his
              guilty plea without an interpreter.

      2.      Whether he knowingly, voluntarily, and intelligently entered into his
              guilty plea without an advisement from the trial court of the
              collateral immigration consequences of his guilty plea.

      We affirm.

                        FACTS AND PROCEDURAL HISTORY

      Singh immigrated to the United States from India in 2009 and is a legal permanent

resident of the United States. He has an Indiana driver’s license, which required him to

pass written tests and oral driving tests that were administered in English. During 2012

and 2013, Singh was the manager of his family’s Indiana business. Jennifer Eubanks, an

employee at the business, frequently conversed with Singh in English and observed Singh

read and write in English. She further observed Singh interact with customers and

friends in English and not “in any other language.” P-C Tr. at 131. She thought Singh

was “talkative” and “talked to everybody.” Id.

      On October 25, 2012, Officer J.D. England of the Mitchell Police Department

initiated a traffic stop of a vehicle driven by Singh. Detective Aaron Shoults of the

Lawrence County Sheriff’s Department was present with Officer England at the traffic

stop. Both Officer England and Detective Shoults communicated with Singh in English

and without “any problems.” Id. at 162. These communications included advising Singh
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of his Miranda rights, which Singh stated he understood, and discussing an apparent gun

in the back of Singh’s car, which Singh explained was actually a toy gun.

      On January 22, 2013, Detective Wigley of the Lawrence County Sheriff’s

Department called Singh following a complaint of sexual battery against Singh.

Detective Wigley communicated with Singh in English and asked Singh to come to the

Lawrence County Sheriff’s Department to discuss the complaint. Following that phone

call, Detective Wigley received a phone call from attorney Nick Herthel, who informed

Detective Wigley that he was now representing Singh.

      On February 15, 2013, Detective Justin Dodd of the Bedford Police Department,

along with Detective Shoults, executed a search warrant for Singh’s family business.

Singh was present and communicated with the detectives in English. Detective Dodd

conducted a pat-down of Singh. Detective Dodd asked Singh if there were any objects in

Singh’s pockets that might stick Detective Dodd during the pat-down. Singh responded

that there was, and Detective Dodd found what appeared to be a synthetic drug in Singh’s

pocket. Detective Shoults drove Singh to the Lawrence County Jail, and during the drive

Singh asked Detective Shoults about the arrest.

      Singh repeatedly communicated in English at the Lawrence County Jail. Two

officers asked Singh, and he answered, standard booking questions relating to his

physical and mental health. The officers would have noted in the booking information

whether an arrestee had difficulty communicating in English. The officers made no such

notation for Singh.    While on house arrest for several months thereafter, Singh

communicated frequently and exclusively in English with his supervisor.            And,


                                            3
throughout his legal proceedings, Singh communicated with Herthel, his attorney, in

English. Singh did not suggest, and Herthel saw no need for, an interpreter.

       On June 3, 2013, Singh pleaded guilty to dealing in a synthetic drug, as a Class D

felony; possession of a synthetic drug, as a Class D felony; and battery, as a Class B

misdemeanor, each of which was under a separate cause number. At his ensuing guilty

plea hearing, the parties and the court communicated exclusively in English. Singh

established a factual basis for his plea in English.         The court read, and Singh

acknowledged, his rights in English. The court asked Singh questions in English, and he

responded appropriately, in English.

       Following the trial court’s acceptance of Singh’s guilty plea, on October 18, 2013,

officers from Immigration and Customs Enforcement detained Singh. He now faces

deportation as a result of his Indiana convictions. At no time prior to his detention by the

United States was Singh informed of the immigration consequences of his guilty plea.

       On November 19, 2013, Singh filed his petition for post-conviction relief, which

he later amended. According to Singh’s amended petition, he did not enter into his guilty

plea knowingly, voluntarily, or intelligently because he did not have an interpreter

present during his guilty plea hearing and, alternatively, because he was not informed of

the potential immigration consequences of his guilty plea.          And Singh expressly

disavowed any claims that he did not receive the effective assistance of counsel in his

amended petition.     After an evidentiary hearing, the post-conviction court entered

findings of fact and conclusions of law in which the court rejected Singh’s arguments.

This appeal ensued.


                                             4
                            DISCUSSION AND DECISION

                                         Overview

       Singh appeals the post-conviction court’s denial of his petition for post-conviction

relief. Our standard of review in such appeals is clear:

       [The petitioner] bore the burden of establishing the grounds for post-
       conviction relief by a preponderance of the evidence. See Ind. Post-
       Conviction Rule 1(5); Timberlake v. State, 753 N.E.2d 591, 597 (Ind.
       2001). Post-conviction procedures do not afford a petitioner with a super-
       appeal, and not all issues are available. Timberlake, 753 N.E.2d at 597.
       Rather, subsequent collateral challenges to convictions must be based on
       grounds enumerated in the post-conviction rules. Id. If an issue was
       known and available, but not raised on direct appeal, it is waived. Id. If it
       was raised on appeal, but decided adversely, it is res judicata. Id.

              In reviewing the judgment of a post-conviction court, appellate
       courts consider only the evidence and reasonable inferences supporting the
       post-conviction court’s judgment. Hall v. State, 849 N.E.2d 466, 468 (Ind.
       2006). The post-conviction court is the sole judge of the evidence and the
       credibility of the witnesses. Id. at 468-69. Because he is now appealing
       from a negative judgment, to the extent his appeal turns on factual issues
       [the petitioner] must convince this court that the evidence as a whole leads
       unerringly and unmistakably to a decision opposite that reached by the
       post-conviction court. See Timberlake, 753 N.E.2d at 597. We will disturb
       the decision only if the evidence is without conflict and leads only to a
       conclusion contrary to the result of the post-conviction court. Id.

Lindsey v. State, 888 N.E.2d 319, 322 (Ind. Ct. App. 2008), trans. denied.

       In his petition for post-conviction relief, Singh argued that his guilty plea should

be set aside because he did not knowingly, voluntarily, and intelligently enter into the

plea. In particular, Singh asserted that he was entitled to an interpreter at his guilty plea

hearing and that he was not properly advised of the immigration consequences of his

guilty plea. We address each issue in turn.




                                              5
                                       Issue One: Interpreter

        Singh first asserts that he did not enter into his guilty plea knowingly, voluntarily,

and intelligently because he does not understand English and he did not have an

interpreter present at his guilty plea hearing. The post-conviction court rejected Singh’s

argument after it found that he did understand English, which the court based on the

testimony of numerous police officers, Singh’s attorney, an employee at Singh’s family

business, and the court’s own interaction with Singh at the guilty plea hearing. Singh’s

argument on appeal is merely a request for this court to reweigh that evidence, which we

will not do. We affirm the post-conviction court on this issue.

                    Issue Two: Immigration Consequences Advisement

        Singh also asserts that he did not enter into his guilty plea knowingly, voluntarily,

and intelligently because he was not advised of the possible immigration consequences of

his guilty plea. But despite the recent holding of the United States Supreme Court that

this failure might demonstrate ineffective assistance of trial counsel, Padilla v. Kentucky,

559 U.S. 356 (2010),1 Singh expressly disavowed any claim of ineffective assistance of

counsel in his amended petition for post-conviction relief, Appellant’s App. at 69.

Instead, he argues only that he “was not advised at any time by . . . the trial court that

pleading guilty would result in his removal from the United States.” Appellant’s Br. at

11-12 (emphasis added).

        Singh’s argument is not supported by Indiana law. This court has long held that

“the trial court [is] not required to advise the accused of the collateral consequences of

        1
           The failure of an attorney to advise a client of the possible immigration consequences of a
guilty plea has been recognized as a potential basis for ineffective assistance of counsel in Indiana for at
least twenty years. Williams v. State, 641 N.E.2d 44, 48 (Ind. Ct. App. 1994), trans. denied.
                                                     6
his plea.” Williams v. State, 641 N.E.2d 44, 47 (Ind. Ct. App. 1994), trans. denied.

Indeed, in Williams we expressly held that we would not “impose upon the courts the

additional duty of inquiring into the citizenship and immigration status of criminal

defendants.” Id.; see also Trujillo v. State, 962 N.E.2d 110, 117 (Ind. Ct. App. 2011)

(“We agree with this aspect of Williams.”). And Singh’s reliance on case law on appeal

is misplaced because the cases on which he relies discuss issues of effective assistance of

counsel, not a trial court’s obligations during a guilty plea hearing. Accordingly, Singh’s

argument must fail. We affirm the judgment of the post-conviction court.

       Affirmed.

BAILEY, J., and PYLE, J., concur.




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