FOR PUBLICATION
ATTORNEY FOR APPELLANT:                          ATTORNEYS FOR APPELLEE:

ERIC C. BOHNET                                   GREGORY F. ZOELLER
Indianapolis, Indiana                            Attorney General of Indiana

                                                 ERIC P. BABBS
                                                 Deputy Attorney General
                                                 Indianapolis, Indiana
                                                                           FILED
                                                                        Feb 18 2013, 9:21 am


                                                                                 CLERK
                               IN THE                                          of the supreme court,
                                                                               court of appeals and
                                                                                      tax court

                     COURT OF APPEALS OF INDIANA

ALEX CARRILLO,                                   )
                                                 )
       Appellant-Defendant/Cross-Appellee,       )
                                                 )
               vs.                               )       No. 49A02-1112-PC-1209
                                                 )
STATE OF INDIANA,                                )
                                                 )
       Appellee-Plaintiff/Cross-Appellant.       )


                     APPEAL FROM THE MARION SUPERIOR COURT
                          The Honorable James B. Osborn, Judge
                        The Honorable John J. Boyce, Commissioner
                             Cause No. 49F15-0605-PC-81380


                                     February 18, 2013


                             OPINION - FOR PUBLICATION


CRONE, Judge
                                             Case Summary

        In 2006, Alex Carrillo, a citizen of Ecuador who immigrated to the United States

when he was one year old, pled guilty to resisting law enforcement and operating a vehicle

while intoxicated. Carrillo now appeals the denial of his petition for post-conviction relief

(“PCR”), in which he argued that his guilty plea counsel provided ineffective assistance by

failing to advise him that there could be negative immigration consequences as a result of his

guilty plea. The post-conviction court concluded that because Carrillo’s attorney did not

know, and had no reason to suspect, that Carrillo was not a native-born citizen of the United

States, his attorney’s performance was not deficient. On appeal, Carrillo argues that the post-

conviction court improperly considered his attorney’s knowledge of his noncitizen status in

determining whether he received ineffective assistance.                    We conclude that the post-

conviction court properly considered Carrillo’s attorney’s knowledge in assessing whether

his attorney’s performance was deficient, and that the court did not err in concluding that

Carrillo failed to carry his burden to show that he received ineffective assistance of counsel.

Therefore, we affirm the denial of Carrillo’s PCR petition.1

                                    Facts and Procedural History

        Carrillo was born in Ecuador. In 1965, during his first year of life, he immigrated to

the United States and has lived here ever since. Carrillo remains a citizen of Ecuador.




        1
           Because of our resolution of Carrillo’s claim, we need not address the State’s cross-appeal, in which
it argues that the post-conviction court erred in finding that Carrillo suffered prejudice from his attorney’s
failure to advise him of the risk of deportation arising from his guilty plea.


                                                       2
        On May 6, 2006, police observed Carrillo commit a traffic offense while driving in

Marion County. Police attempted to pull over Carrillo, but he did not stop. Police pursued

him, using emergency equipment. Carrillo eventually stopped. Police noticed that Carrillo

had slurred speech, bloodshot and glassy eyes, poor dexterity, and unsteady balance. The

State charged Carrillo with class D felony resisting law enforcement, class A misdemeanor

operating a vehicle while intoxicated, class A misdemeanor driving with a suspended license,

and class B misdemeanor public intoxication.

        On October 12, 2006, Carrillo pled guilty to class D felony resisting law enforcement

and class A misdemeanor operating a vehicle while intoxicated. Pursuant to the plea

agreement, Carrillo would receive a 365-day sentence, all suspended with credit for time

served, and a ninety-day suspension of his driver’s license, and the parties were free to argue

whether alternative misdemeanor sentencing should be applied to the class D felony. The

State dismissed the remaining charges. The trial court accepted Carrillo’s guilty plea,

sentenced him to 365 days in jail, with credit for six days served and the remainder

suspended to probation, and entered judgment of conviction for resisting law enforcement as

a class A misdemeanor.

        On April 11, 2011, Carrillo was detained by federal immigration authorities. He faces

deportation proceedings based in part upon his conviction for resisting law enforcement.2


        2
          The Immigration and Nationality Act provides that an alien is deportable who is convicted of an
aggravated felony. 8 U.S.C. § 1227 (a)(2)(A)(iii). Carrillo’s conviction for resisting law enforcement is
considered an aggravated felony because it is a crime of violence for which he received a sentence of a year or
more. See 8 U.S.C. § 1101(a)(43)(F) (defining “aggravated felony” as a “crime of violence” for which the
term of imprisonment is at least one year); 18 U.S.C.A. § 16 (defining “crime of violence”).


                                                      3
        On May 9, 2011, Carrillo filed a PCR petition alleging that his guilty plea counsel

failed to provide effective assistance of counsel by failing to advise him that pleading guilty

could adversely affect his immigration status and could result in deportation. Following a

hearing, the post-conviction court issued its judgment, concluding that Carrillo established

that prejudice resulted from counsel’s failure to advise him of the possible deportation

consequences of his guilty plea.3 Nevertheless, the post-conviction court denied relief

because it concluded the Carrillo failed to establish that counsel’s failure to advise him of the

risk of deportation constituted ineffective assistance based on the following considerations:

        i.         As a threshold matter, a petitioner must first prove trial counsel knew
                   she or he was not a citizen of the United States. “Whether [advice of
                   counsel] 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 as an alien.” Sial v. State, 862 N.E.2d 702
                   (Ind. Ct. App. 2007), citing Segura v. State, 749 N.E.2d 496, 500 (Ind.
                   2001). (emphasis added)

        ….


        22.        Throughout [Carrillo’s] testimony the court observed that neither Mr.
                   Carrillo’s grammar, syntax, or pronunciation gave any hint he was not a
                   native born [United States] citizen. The fact of a Spanish surname,


        3
             The post-conviction court concluded that

                 At the time of the guilty plea hearing Mr. Carrillo had lived in the United States for at
        least forty years. He had married and was the father of five children, three of whom were still
        minors. He was firmly established in the United States and had no family or friends in his
        native country of Ecuador. These facts establish the prejudice prong of Strickland analysis[.]

Appellant’s App. at 23. In contrast, in a companion case that we also decide today, Carrillo v. State, No.
49A05-1108-PC-437 (Ind. Ct. App. Feb. 18, 2013), Carrillo failed to provide evidence of the ages of his
children at the guilty plea hearing. That was an important omission in that case due to the many years, nearly
fourteen, between his guilty plea and the post-conviction hearing.


                                                        4
                alone, was insufficient to cause him to appear to be anything other than
                a native born citizen of this land rich in national and cultural influences.

        23.     In his Petition, Mr. Carrillo claims; “He grew up in the United States,
                attended schools in the United States, and culturally considers himself
                to be an American.” Having observed his testimony, the Court finds
                Mr. Carrillo’s self-description to be entirely accurate. Nothing about
                the petitioner’s speech or mannerisms suggested he was anything other
                than a native of the [United States].

        24.     Neither party presented any evidence that, at the time of Mr. Carrillo’s
                guilty plea hearing, an objective standard of reasonableness or a
                prevailing professional norm demanded that an attorney inquire as to
                the immigration status of every client regardless of whether any factors
                existed to indicate that immigration consequences may be relevant to
                that client’s representation.

        25.     Thus, this court must find Mr. Carrillo has failed to prove this threshold
                matter of knowledge of his immigration status. Unlike the counsel in
                Padilla,[4] [Carrillo’s counsel] had no knowledge of, nor any reason to
                inquire about, his client’s immigration status. This court cannot now
                impose upon Mr. Carrillo’s counsel a duty to know facts withheld by
                his client, even inadvertently, where no independent indicators existed
                to suggest to counsel that his client was not a citizen of the United
                States.

Appellant’s App. at 20, 22-23.

                                       Discussion and Decision

        Carrillo appeals from the denial of his PCR petition.


        4
           In Padilla v. Kentucky, 130 S. Ct. 1473, 1483 (2010), the Supreme Court held that counsel’s
performance was deficient for failing to advise Padilla that his plea of guilty to drug distribution made him
subject to automatic deportation, where the consequences of Padilla’s plea could easily be determined from
reading the relevant immigration statute, his deportation was presumptively mandatory, and his counsel’s
advice was incorrect. The Padilla court also held more broadly that “counsel must inform her client whether
his plea carries a risk of deportation.” Id. at 1486. The Padilla court also clarified, “When the law is not
succinct and straightforward (as it is in many of the scenarios posited by Justice ALITO), 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.” Id. at 1483.



                                                     5
               In reviewing the judgment of a post-conviction court, appellate courts
       consider only the evidence and reasonable inferences supporting its judgment.
       The post-conviction court is the sole judge of the evidence and the credibility
       of the witnesses. To prevail on appeal from denial of post-conviction relief,
       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. …. Only where the evidence is without conflict and leads to but one
       conclusion, and the post-conviction court has reached the opposite conclusion,
       will its findings or conclusions be disturbed as being contrary to law.

Hall v. State, 849 N.E.2d 466, 468-69 (Ind. 2006) (citations omitted).

       Carrillo contends that the post-conviction court erred in finding that he was not denied

the effective assistance of trial counsel. “The petitioner for post-conviction relief has the

burden of establishing his grounds for relief by a preponderance of the evidence.” State v.

Holmes, 728 N.E.2d 164, 168 (Ind. 2000) (citing Ind. Post-Conviction Rule 1(5)). To prevail

on a claim of ineffective assistance of counsel, a petitioner must demonstrate both that his

counsel’s performance was deficient and that the petitioner was prejudiced by the deficient

performance. Ben-Yisrayl v. State, 729 N.E.2d 102, 106 (Ind. 2000) (citing Strickland v.

Washington, 466 U.S. 668, 687 (1984)), cert. denied (2001). Counsel’s performance is

deficient if it falls below an objective standard of reasonableness based on prevailing

professional norms. French v. State, 778 N.E.2d 816, 824 (Ind. 2002). “[C]ounsel’s

performance is presumed effective, and a defendant must offer strong and convincing

evidence to overcome this presumption.” Williams v. State, 771 N.E.2d 70, 73 (Ind. 2002).

Prejudice results where there is “a reasonable probability that, but for counsel’s

unprofessional errors, the result of the proceeding would have been different.” Id. “A

reasonable probability is a probability sufficient to undermine confidence in the outcome.”


                                              6
Perez v. State, 748 N.E.2d 853, 854 (Ind. 2001). “Failure to satisfy either prong will cause

the claim to fail.” French, 778 N.E.2d at 824. In this case, we resolve Carrillo’s claim based

on the deficient performance prong.

        Carrillo argues that his attorney’s performance was deficient because he failed to

inform Carrillo that pleading guilty could have adverse immigration consequences.

Specifically, he contends that “[c]ontrary to the trial court’s holding, Carrillo was not

required to show that his attorney knew that he was a noncitizen or to produce evidence

establishing a prevailing professional norm that an attorney make such an inquiry.”

Appellant’s Br. at 7.5 Carrillo asserts that the post-conviction court improperly relied on

dicta from Sial, 862 N.E.2d at 705, to support its consideration of his counsel’s knowledge of

Carrillo’s noncitizen status as a factor in its ineffective assistance analysis.

        The portion of Sial to which Carrillo refers quoted our supreme court’s opinion in

Segura, 749 N.E.2d 496. Segura was the first time our supreme court addressed whether

counsel’s failure to advise a client that pleading guilty may carry the risk of deportation is

deficient performance. Before Segura, another panel of this court had held that “the

consequence of deportation, whether [labeled] 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.” Williams v. State, 641 N.E.2d 44, 49 (Ind.




        5
           Carrillo failed to include a table of contents and table of authorities in his appellant’s brief in
violation of Indiana Appellate Rule 46(A)(1) and (2).


                                                      7
Ct. App. 1994) trans. denied (2005).6 The Segura court agreed with Williams that counsel’s

failure to advise regarding possible adverse immigration consequences could constitute

deficient performance “under some circumstances.” 749 N.E.2d at 500. Specifically, the

Segura court stated:

        [T]he failure to advise of the consequence of deportation can, under some
        circumstances, constitute deficient performance. 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 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.

        Ultimately, the Segura court affirmed the denial of the defendant’s PCR petition on

prejudice grounds and therefore did not have to decide whether counsel’s performance was

deficient.7 Nevertheless, our supreme court clearly meant to provide guidance in future cases

with regard to determining whether a particular counsel’s performance was deficient.8


        6
            In Williams, the court concluded that the attorneys’ performances were not deficient because “a
sufficient showing was made that the petitioners were put on notice by their attorneys regarding the deportation
consequences of their guilty pleas.” 641 N.E.2d at 51.
        7
          Likewise in Sial, deficient performance was not at issue because the defendant’s attorney admitted at
the post-conviction hearing that he failed to provide effective assistance because he did not advise his client
about the immigration consequence. 862 N.E.2d at 705.
        8
           Since Segura, Indiana courts have yet to analyze the deficient performance prong as part of an
ineffective assistance claim based on failure to advise of adverse immigration consequences. See Suarez v.
State, 967 N.E.2d 552, 557 (Ind. Ct. App. 2012) (affirming denial of PCR petition based on failure to establish
prejudice), trans. pending; Gulzar v. State, 971 N.E.2d 1258, 1262 (Ind. Ct. App. 2012) (same), trans.
pending; Clarke v. State, 974 N.E.2d 562, 568 (Ind. Ct. App. 2012) (same); Trujillo v. State, 962 N.E.2d 110,
114, 116 (Ind. Ct. App. 2011) (same); State v. Bonilla, 957 N.E.2d 682, 685 (Ind. Ct. App. 2011) (reversing
grant of PCR petition based on failure to show prejudice).


                                                       8
Carrillo argues that counsel’s knowledge of a client’s noncitizen status should not be part of

the deficient performance analysis because the consequences of deportation are so severe,

citing Williams for the statement that “deportation may be a penalty more severe than a

prison sentence.” 641 N.E.2d at 48. It seems clear that the Segura court was fully cognizant

of the harshness of deportation given its agreement with Williams. Carrillo fails to persuade

us that we should discount the instruction provided by our supreme court in Segura.9

Accordingly, we will follow Segura’s direction in considering counsel’s knowledge of a

client’s noncitizen status as a factor in assessing deficient performance.10

        Here, it is undisputed that counsel had no knowledge that Carrillo was not a native-

born United States citizen. Carrillo did not inform counsel of his resident alien status.

Having lived here since he was one year old, Carrillo acted and spoke like a native-born

citizen. There was nothing about Carrillo that would have made his counsel suspect that he

was not a United States citizen. There are no circumstances that would have indicated that

immigration consequences would have been relevant to Carrillo’s decision to plead guilty.

        Carrillo argues that “this Court should explicitly hold that the duty to inform criminal

clients of immigration consequences does not depend upon the attorney’s knowledge or


        9
          Carrillo urges us to apply the holding in Padilla. We need not address the retroactive application of
Padilla, as its holding is consistent with Segura and Williams. See State v. Bonilla, 957 N.E.2d 682, 684 n.2
(Ind. Ct. App. 2011) (declining to address retroactive application of Padilla because it was consistent with
Indiana decisions that predated it).
        10
            The post-conviction court’s framework for its ineffective assistance analysis is different than what
we think the Segura court intended, in that the post-conviction court considered knowledge of noncitizen status
as a third prong, or a threshold matter to be determined before addressing whether counsel failed to describe or
misdescribe the adverse immigration consequences attaching to the guilty plea. We think knowledge of the
client’s status is part of the deficient performance analysis, not a prelude to it. In this case, the post-conviction
court’s choice of framework did not affect its decision or ours.

                                                         9
suspicions of his client’s citizenship.” Appellant’s Br. at 10. In Clarke v. State, 974 N.E.2d

562 (Ind. Ct. App. 2012), another panel of this Court observed,

               The State asks us to focus upon the clause, “the knowledge of the
       lawyer of the client’s status as an alien” [from Segura] as one of the facts a
       court should consider when deciding whether the failure to advise constitutes
       deficient performance. We need not address this question in the present case
       because the post-conviction court’s decision is affirmable on other grounds.
       We note, however, that this issue is percolating in other states and the early
       trend seems to be in favor of imposing a duty on criminal defense attorneys to
       ascertain the citizenship status of their clients. See, e.g., Commonwealth v.
       Clarke, 460 Mass. 30, 949 N.E.2d 892, 905 (2011) (“[t]hat the defendant’s
       counsel failed to ascertain that the defendant was not a United States citizen
       may be sufficient to satisfy the first prong of the Saferian standard because
       effective representation requires counsel to gather at least enough personal
       information to represent him”); State v. Paredez, 136 N.M. 533, 101 P.3d 799,
       805 (2004) (“[w]e hold that criminal defense attorneys are obligated to
       determine the immigration status of their clients. If a client is a non-citizen,
       the attorney must advise that client of the specific immigration consequences
       of pleading guilty, including whether deportation would be virtually certain”);
       Salazar v. State, 361 S.W.3d 99, 102 (Tex. App. 2011) (the argument that
       there was no deficient performance because there was no indication the
       attorney knew the defendant had less than five years of legal resident status “is
       not persuasive because the counsel’s duty to give correct legal advice where
       the consequences of a guilty plea with respect to deportation are clear carries
       with it the obligation to investigate what the deportation consequences to the
       client would be given the client’s individual circumstances”); but see State v.
       Stephens, 46 Kan. App. 2d 853, 265 P.3d 574, 577 (2011), review denied
       (”[t]he Padilla Court did not extend its ruling to obligate defense counsel to
       correctly predict a client’s probation or prison sentence, nor did the Padilla
       Court impose upon counsel the duty to investigate the citizenship or
       immigration status of every client in a criminal case).

Id. at 568-69.

       Given the State’s interest in safeguarding the integrity of its criminal convictions, we

think that it would be proper for the judiciary to play a part in ensuring that noncitizen

defendants are adequately advised of the immigration consequences of guilty pleas. The


                                              10
2009 edition of the Indiana Criminal Benchbook, developed by the Indiana Judicial Center

and distributed to trial judges in early 2010, began recommending that the trial court’s guilty

plea dialogue with a criminal defendant include a query as to whether he or she is a United

States citizen, and if the answer is no, to follow up with questions regarding whether the

possibility of deportation had been discussed with counsel. Ind. Crim. Benchbook §§

50.20.050, 50.70.300, 50.50.350, 50.50.400 (2011). If the defendant has not received

immigration advice, the Benchbook Committee recommends that the judge continue the

hearing to allow the defendant to have such a discussion. Id., §§ 50.70.300, 50.50.350,

50.50.400.

       Even with these safeguards, we caution that it would still be incumbent upon the

defendant’s attorney to accurately inform the noncitizen defendant of the deportation

consequences of pleading guilty where they can be easily determined from reading the

relevant immigration statute. Padilla v. Kentucky, 130 S. Ct. at 1483. “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.” Id. Hopefully, this procedure will prospectively eliminate a situation like

this where the defendant’s counsel is unaware of the defendant’s noncitizen status.

       However, the question before us is whether the prevailing professional norms in 2006

required attorneys to ask every client whether he or she was a United States citizen. Carrillo

has failed to persuade us that the prevailing professional norms in 2006 required attorneys to




                                              11
do so.11 Therefore, we conclude that Carrillo’s counsel did not provide deficient performance

in failing to advise him regarding the risk of deportation where counsel did not know, and

had no reason to suspect, that Carrillo was not a native-born citizen of the United States.12

Accordingly, we affirm the denial of post-conviction relief.

        Affirmed.

KIRSCH, J., and MATHIAS, J., concur.




        11
              If knowledge of the client’s noncitizen status remains a factor in assessing whether counsel’s
performance was deficient, Carrillo asks us to hold that his attorney was deficient due to the severity of the
impact on Carrillo, the relatively light penal consequences at stake, and Carrillo’s belonging to an ethnic group
that includes relatively high percentages of immigrants. Appellant’s App. at 10. He has waived this argument
by failing to support it with cogent reasoning. See Lyles v. State, 834 N.E.2d 1035, 1050 (Ind. Ct. App. 2005)
(“A party waives an issue where the party fails to develop a cogent argument or provide adequate citation to
authority and portions of the record.”); Ind. Appellate Rule 46(A)(8) (“The argument must contain the
contentions of the appellant on the issues presented supported by cogent reasoning.”).
        12
           We reject Carrillo’s contention that his surname, standing alone, was sufficient to put his attorney
on notice that he might not be a United States citizen.

                                                       12
