                                                                                    FILED
                                                                               Oct 05 2018, 9:30 am

                                                                                    CLERK
                                                                                Indiana Supreme Court
                                                                                   Court of Appeals
                                                                                     and Tax Court




     ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
     H. Samuel Ansell                                          Curtis T. Hill, Jr.
     Indianapolis, Indiana                                     Attorney General of Indiana

                                                               Christina D. Pace
                                                               Larry D. Allen
                                                               Monika P. Talbot
                                                               Deputy Attorneys General
                                                               Indianapolis, Indiana


                                                  INTHE

          COURT OF APPEALS OF INDIANA
     Umesh Kaushal,                                            October 5, 2018
     Appellant-Defendant,                                      Court of Appeals Case No.
                                                               49A04-1612-CR-2862
              v.                                               Appeal from the Marion Superior
                                                               Court
     State of Indiana,                                         The Honorable Sheila Carlisle,
     Appellee-Plaintiff.                                       Judge
                                                               The Honorable Stanley E. Kroh,
                                                               Magistrate
                                                               Trial Court Cause No.
                                                               49G03-1508-F4-28287



     Riley, Judge.



                                 OPINION ON REMAND


Court of Appeals of Indiana | Opinion on Remand 49A04-1612-CR-2862 | October 5, 2018                    Page 1 of 11
[1]        This case is before us on remand from the United States Supreme Court. In

           Kaushal v. State, No. 49A04-1612-CR-2862, 2017 WL 3028623 (Ind. Ct. App.

           July 18, 2017), this court affirmed the trial court’s denial of Kaushal’s motion to

           withdraw his guilty plea which was based in part upon a claim that his guilty

           plea counsel had been ineffective. The Indiana Supreme Court denied his

           petition for transfer, and Kaushal subsequently filed a petition for writ of

           certiorari with the United States Supreme Court. On June 28, 2018, the

           Supreme Court granted the certiorari petition and remanded this case “for

           further consideration in light of Jae Lee v. United States, 582 U.S. ___ [, 137 S.

           Ct. 1958] (2017).” Kaushal v. Indiana, 138 S. Ct. 2567 (2018). Accordingly, we

           reconsider Kaushal’s appeal.


[2]        The facts of the case as set out by this court in its original opinion are as

           follows:


                    Kaushal, a citizen of India, has lived in the United States for
                    nearly a decade and has a Green Card. On August 11, 2015, the
                    State filed an Information, charging Kaushal with child
                    molesting as a Level 4 felony. The State alleged that Kaushal
                    had fondled his thirteen-year-old stepdaughter’s breast. Shortly
                    after his arrest, Kaushal posted bond and retained an attorney.
                    Kaushal, who owns and operates several convenience stores in
                    Indianapolis, Marion County, Indiana, made it clear to his
                    attorney that his priority was to avoid any amount of
                    incarceration so that he could continue to run his businesses and
                    care for his mother. Given Kaushal’s insistence against
                    imprisonment, along with his professional opinion that Kaushal
                    was not likely to succeed at trial, Kaushal’s attorney focused on
                    negotiating a deal with the State.


      Court of Appeals of Indiana | Opinion on Remand 49A04-1612-CR-2862 | October 5, 2018   Page 2 of 11
              On May 4, 2016, Kaushal entered into a plea agreement with the
              State, pursuant to which he agreed to plead guilty to the child
              molesting offense. The agreement provided that Kaushal would
              receive a four-year sentence, with a one-year cap on executed
              time and with placement for the executed time to be determined
              by the trial court. However, after conferring with his attorney
              and realizing that he could be confined for a portion of his
              sentence, Kaushal withdrew from the plea agreement.


              On June 29, 2016, Kaushal entered into another plea agreement
              with the State, pursuant to which he again agreed to plead guilty
              to the offense of child molesting as a Level 4 felony. In
              exchange, Kaushal would receive a four-year suspended
              sentence, of which three years would be served on probation with
              a condition of home detention and one year on non-reporting
              probation. On June 30, 2016, the trial court conducted a hearing
              on Kaushal’s guilty plea. The trial court advised Kaushal of the
              implications of pleading guilty, including his obligation to
              comply with the Sex and Violent Offender Registry; his waiver of
              his right to appeal his conviction and/or sentence; and his waiver
              of certain constitutional rights, such as the right to a trial by jury
              and the right to confront and cross-examine witnesses. These
              warnings were also included in the written plea agreement, and
              Kaushal initialed next to each one to affirm his understanding.
              Also, among the written warnings was an advisement that, as a
              non-citizen, Kaushal could face deportation, denial of re-entry,
              prohibition of citizenship, or loss of immigration benefits as a
              result of the conviction. After questioning Kaushal, the trial
              court found that his guilty plea was made knowingly and
              voluntarily, and Kaushal agreed that there was a factual basis to
              support his conviction and that he was guilty of committing the
              charged offense. Accordingly, the trial court accepted the plea
              agreement and entered a judgment of conviction for child
              molesting as a Level 4 felony.




Court of Appeals of Indiana | Opinion on Remand 49A04-1612-CR-2862 | October 5, 2018   Page 3 of 11
              According to Kaushal, on July 1, 2016, he met with an attorney
              who focuses on immigration matters and learned that, as a result
              of his conviction for child molesting, he was likely to be
              immediately “picked up” by immigration officials. Thus, on July
              21, 2016, Kaushal filed a Verified Motion to Withdraw Plea of
              Guilty. Kaushal argued that “[o]utside of a vague advisement
              that the conviction may have immigration consequences, [he]
              was not advised of potential immigration consequences and
              would not have pled guilty to the charged crime had he known it
              would subject him to automatic detention, revocation of his
              permanent resident status, and certain deportation.” Kaushal
              further stated that he pled guilty “in order to avoid prison
              without having knowledge that his ability to legally reside in the
              United States would end. Kaushal owns several businesses and
              considers the United States to be his home. Although he has
              [pled] guilty, Kaushal maintains his innocence and wishes to
              proceed to trial.” Kaushal added that withdrawing the plea
              would not prejudice the State because the case could still proceed
              to trial, and he insisted that withdrawal was necessary to correct
              a manifest injustice.


              On August 5, 2016, and September 9, 2016, the trial court held
              hearings on Kaushal’s motion to withdraw his guilty plea.
              Kaushal testified that his attorney never discussed the
              immigration consequences in urging Kaushal to plead guilty.
              Yet, in response to another question about conversations with his
              attorney regarding his Green Card, Kaushal also stated, “I think
              I’m not going to be ever U.S. citizen, or I’m never going to be
              deported after, like—in that quick until I—I just find immigration
              stuff.” Kaushal clarified that, while he understood there would
              be “a hard road after” pleading guilty, he did not realize “that it’s
              going to be that hard—[that he would get] deported that quick.”
              On the other hand, Kaushal’s attorney testified that he went
              through each paragraph of the plea agreement with Kaushal,
              including the paragraph regarding possible immigration
              consequences, and Kaushal did not have any questions as to
              what he was signing. Moreover, Kaushal’s attorney testified that

Court of Appeals of Indiana | Opinion on Remand 49A04-1612-CR-2862 | October 5, 2018   Page 4 of 11
                    Kaushal had informed him that he was contemporaneously
                    conferring with immigration attorneys. Although Kaushal’s
                    attorney stated that he does not practice immigration law, he
                    specifically told Kaushal that his Green Card would not be
                    renewed prior to Kaushal signing the plea agreement.


                    On November 7, 2016, the trial court issued an Order Denying
                    Verified Motion to Withdraw Guilty Plea. The trial court
                    determined that even though the State had conceded that
                    Kaushal’s attorney ineffectively advised Kaushal on the
                    immigration consequences of pleading guilty, Kaushal failed to
                    establish that he was prejudiced by his attorney’s advice. On
                    December 2, 2016, Kaushal filed a motion to correct error, which
                    the trial court denied on December 15, 2016.


           Kaushal, 2018 WL 3028623, at *1-2 (record citations and internal footnote

           omitted). Additional facts will be provided as necessary.


[3]        The issue relevant to our review on remand is whether, in light of Jae Lee,

           Kaushal adequately established that he was prejudiced by his counsel’s deficient

           performance such that his guilty plea must be set aside.


[4]        We affirm.


                                     DISCUSSION AND DECISION

[5]        In our original opinion, we did not address the issue of whether Kaushal’s

           counsel’s performance was deficient because we concluded that, regardless,

           Kaushal had not demonstrated that he had been prejudiced by his counsel’s

           performance. Id. at *6. We began our analysis by setting out the general


      Court of Appeals of Indiana | Opinion on Remand 49A04-1612-CR-2862 | October 5, 2018   Page 5 of 11
           Strickland standard for assessing prejudice, namely that a defendant must

           establish that, but for his counsel’s error, the result of the proceeding would

           have been different. Id. at *4. Relying upon Segura v. State, 749 N.E.2d 496,

           500 (Ind. 2001), and Gulzar v. State, 971 N.E.2d 1258, 1261 (Ind. Ct. App.

           20012), trans. denied, for the standard for assessing prejudice more specifically in

           the context of counsel’s failure to warn a defendant of penal consequences,

           including immigration consequences, prior to entering a guilty plea, we noted

           that “‘specific facts, in addition to the [defendant’s] conclusory allegation, must

           establish an objective reasonable probability that competent representation

           would have caused the [defendant ] not to enter a plea.’” Id. at *5 (quoting

           Gulzar).


[6]        We considered Kaushal’s ties to the United States and the scant factual basis in

           the record for his guilty plea, which we noted militated in favor of finding

           prejudice. Id. at *6. However, we held that the substantial benefit Kaushal

           received from his plea, evidence of his knowledge before entering his plea that

           his Green Card would not be renewed, his review of his plea agreement with

           counsel and the trial court prior to entering his plea, and his concession at an

           evidentiary hearing on his motion that he knew that he would “face hurdles”

           with his immigration status after entering his plea all established that Kaushal

           knew that his immigration status could be affected by his plea but that “he was

           apparently willing to accept those risks in order to avoid spending any amount




      Court of Appeals of Indiana | Opinion on Remand 49A04-1612-CR-2862 | October 5, 2018   Page 6 of 11
           of time incarcerated.” Id. We concluded that Kaushal had not demonstrated

           adequate prejudice because he had been advised of the possibility that he could

           be deported if he pled guilty but chose to plead guilty anyway. Id.


[7]        After briefing was completed in this matter but before our decision was handed

           down, the United States Supreme Court decided Jae Lee, in which it clarified

           the standards for assessing prejudice in cases where a defendant relied upon his

           counsel’s deficient performance in deciding to forgo trial and to instead enter a

           guilty plea. Kaushal sought rehearing, arguing that Jae Lee afforded him relief.

           (Appellant’s Petition for Rehearing pp. 6-9). After considering Jae Lee, we

           denied Kaushal’s petition for rehearing. Kaushal’s subsequent petition for

           transfer to our supreme court also cited Jae Lee. (Petition to Transfer pp. 5-7).

           Our supreme court also denied relief.


[8]        Lee, a longtime lawful permanent resident of the United States, was charged

           with one count of possessing ecstasy with intent to distribute, an offense that, if

           he were convicted, would subject him to mandatory deportation. Lee, 137 S.

           Ct. at 1962-63. Lee had admitted that the drugs found in his home were his and

           that he had given ecstasy to his friends. Id. at 1963. His counsel advised him

           that his chances of success at trial were slim but that he would not be deported

           if he pled guilty and served his sentence. Id. After pleading guilty and being

           sentenced, Lee learned that he was subject to mandatory deportation following

           his conviction. Id. Lee sought relief from his conviction and sentence based

           upon a claim that his guilty plea counsel was ineffective. Id.


      Court of Appeals of Indiana | Opinion on Remand 49A04-1612-CR-2862 | October 5, 2018   Page 7 of 11
[9]        In its decision granting that relief, the Supreme Court clarified that a defendant

           alleging that his counsel’s deficient performance led him to enter a guilty plea in

           lieu of going to trial must establish “a reasonable probability that, but for

           counsel’s errors, he would not have pleaded guilty and would have insisted on

           going to trial.” Id. at 1965 (quoting Hill v. Lockhart, 474 U.S. 52, 59 (1985)).

           Courts reviewing such claims do not focus on the defendant’s chances of

           success at some hypothetical trial. Id. at 1967. Rather, it must be determined

           whether the defendant made an adequate showing that, if properly advised, he

           would have elected to go to trial. Id. The focus is on the defendant’s

           decisionmaking, which may not be based solely upon the likelihood of

           conviction. Id. at 1966. In order to establish prejudice, a defendant may not

           rely merely on post hoc claims that he would not have pled guilty had he been

           better advised. Id. at 1967. Rather, he must substantiate his claim that he

           would not have pled guilty with contemporaneous evidence. Id.


[10]       Under what it characterized as “the unusual circumstances” of Lee’s case, the

           Court held that Lee had established adequate prejudice because the record

           reflected a reasonable probability that, but for his counsel’s errors, Lee would

           have insisted on going to trial. Id. at 1967-68. Prior to accepting his plea, Lee

           asked his counsel repeatedly whether he would be deported following his guilty

           plea. Id. at 1967. At his guilty plea hearing, Lee was confused and sought the

           advice of his counsel when the trial court warned him as part of his plea

           colloquy that he could be deported as a result of his conviction. Id. at 1968. In

           addition, at an evidentiary hearing, both Lee and his attorney testified that

      Court of Appeals of Indiana | Opinion on Remand 49A04-1612-CR-2862 | October 5, 2018   Page 8 of 11
       avoiding deportation was the determinative factor for Lee in deciding to plead

       guilty and that Lee would have gone to trial had he known about the

       deportation consequences of his decision to plead guilty. Id. at 1967-68. The

       Court also noted that Lee had strong connections to the United States, having

       resided here for over thirty years, having established two businesses, and having

       been the sole family caretaker for his elderly parents. Id. at 1968. The Court

       reasoned that for defendants like Lee, whose primary goal is to avoid

       deportation, it may be worth the risk of going to trial despite a low chance of

       success rather than plead guilty and face certain deportation. Id. at 1968-69.

       The Court noted that “[n]ot everyone in Lee’s position would make the choice

       to reject the plea. But we cannot say it would be irrational to do so.” Id. at

       1969.


[11]   In addressing the case at hand, we begin by noting that Kaushal has lived in the

       United States for approximately ten years, owns several businesses, cares for his

       mother, and now insists that he would not have pled guilty had he known he

       would be deported. However, we cannot conclude that these circumstances

       alone establish a reasonable probability that, but for his counsel’s performance,

       he would have insisted on going to trial. See id. at 1965. The contemporaneous

       evidence in the record reflects that avoiding imprisonment, not deportation,

       was the determinative issue for Kaushal in resolving his criminal case and




  Court of Appeals of Indiana | Opinion on Remand 49A04-1612-CR-2862 | October 5, 2018   Page 9 of 11
       ultimately deciding to enter a guilty plea. 1 Some of the evidence which

       illustrates this is that at one of the evidentiary hearings in this matter, Kaushal’s

       counsel testified that “Mr. Kaushal’s first goal, in my opinion, always was that

       he didn’t want to go to prison” and “The whole thing was him not going to jail

       was – was what he wanted the whole time in my office. He didn’t want to

       spend one day in jail . . . was his major . . . number one.” (Transcript Vol. 2,

       pp. 53, 96). Kaushal testified at a hearing in this matter that he pled guilty

       because he was afraid of going to prison and that “It’s all about I’m scared to go

       to prison.” (Tr. Vol. 2, pp. 28, 35).


[12]   Apart from this testimony, Kaushal’s actions before seeking to set aside his plea

       affirm that avoiding prison was his primary objective in resolving his criminal

       case. Kaushal withdrew from his first plea agreement because he would have

       been required to execute a portion of his sentence in prison. Kaushal signed his

       second plea agreement which provided for an entirely-suspended sentence after

       being advised by his guilty plea counsel that his Green Card would not be

       renewed and after he had reviewed the paragraph in his plea agreement

       pertaining to possible immigration consequences. Unlike Jae Lee, Kaushal

       exhibited no confusion about the terms of his plea agreement during his plea




       1
         The contemporaneous evidence relied upon in Jae Lee was uncontroverted. Id. at 1968-69. Inasmuch as
       any of the evidence we rely upon in reaching our decision was disputed, we note that we do not disturb the
       trial court’s ruling on a motion to set aside a guilty plea simply because it was based upon conflicting
       evidence. Weatherford v. State, 697 N.E.2d 32, 34 (Ind. 1998).

  Court of Appeals of Indiana | Opinion on Remand 49A04-1612-CR-2862 | October 5, 2018                 Page 10 of 11
       colloquy. Rather, he confirmed to the trial court that he had read the plea

       agreement and understood it.


[13]   Kaushal was aware prior to entering his guilty plea that he faced a “hard road”

       regarding his immigration status if he pled, (Tr. Vol. 2, p. 29), but the record

       simply does not reflect that deportation was an overriding concern for him in

       deciding whether to plead guilty or to go to trial. Unlike Jae Lee, whose

       chances of achieving his ultimate goal of avoiding deportation were increased

       by going to trial, Kaushal had no increased chance of achieving his ultimate

       goal of avoiding prison by going to trial. Rather, the opposite is true because

       his plea agreement guaranteed that he would not be imprisoned.


[14]   The contemporaneous evidence in the record does not establish a reasonable

       probability that, but for his counsel’s errors, Kaushal would not have pled guilty

       and would have insisted on going to trial. Lee, 137 S. Ct. at 1965. We conclude

       that Kaushal did not establish, even in light of Jae Lee, that he was prejudiced by

       his counsel’s performance. As such, the trial court did not err in declining to set

       aside his guilty plea.


[15]   Affirmed.


[16]   Najam, J. and Bradford, J. concur




  Court of Appeals of Indiana | Opinion on Remand 49A04-1612-CR-2862 | October 5, 2018   Page 11 of 11
