Bautista v. State

• Decision Date: 29 January 2021
• Docket Number: Court of Appeals Case No. 20A-PC-1542
• Citation: 163 N.E.3d 892
• Parties: Israel BAUTISTA, Appellant-Petitioner, v. STATE of Indiana, Appellee-Respondent
• Court: Indiana Appellate Court

163 N.E.3d 892

Israel BAUTISTA, Appellant-Petitioner,

v.STATE of Indiana, Appellee-Respondent

Court of Appeals Case No. 20A-PC-1542

Court of Appeals of Indiana.

FILED January 29, 2021

Attorneys for Appellant: Amy E. Karozos, Public Defender of Indiana, James T. Acklin, Chief Deputy Public Defender, Indianapolis, Indiana

Attorneys for Appellee: Theodore E. Rokita, Attorney General of Indiana, Jodi Kathryn Stein, Supervising Deputy Attorney General, Indianapolis, Indiana

Crone, Judge.

Case Summary

[1] Israel Bautista appeals the denial of his petition for post-conviction relief (PCR). He asserts that the post-conviction court erred by concluding that his guilty plea was entered into knowingly, intelligently, and voluntarily. Specifically, he contends that the Spanish translation he received at his guilty plea hearing did not adequately communicate the three constitutional rights that he was waiving by pleading guilty as required by Boykin v. Alabama , 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969). Concluding that Bautista was not adequately advised of one of the Boykin rights, namely, the right to confront the witnesses against him, we reverse the denial of post-conviction relief and remand with instructions to vacate his guilty plea.

Facts and Procedural History

[2] In November 2011, the State charged Bautista with two counts of class A felony child molesting. A public defender was appointed to represent him. In February 2012, Bautista's counsel filed a motion to appoint an interpreter at public expense, averring, "[Bautista] is Hispanic and unable to understand the English language making it difficult for counsel to explain [his] options to him in his case." Ex. Vol. 3 at 45. The trial court granted the motion and appointed Nellie DeBord to serve as Bautista's interpreter.¹ DeBord interpreted for Bautista during client conferences with counsel, the guilty plea and sentencing hearings, and the presentence investigation report interview. In April 2012, Bautista and the State entered into a written plea agreement, in which Bautista agreed to plead guilty as charged with an aggregate executed sentence to be capped at thirty years but otherwise left open to the trial court. The plea agreement was written in English, and a Spanish language plea agreement was not provided.

[3] In May 2012, the trial court held a guilty plea hearing, during which the trial court provided the following advisement in English:

Your constitutional rights are that you have the right to a public and speedy trial by jury. You have the right to face all witnesses against you, to see; hear; question and cross examine them; to have your own witnesses appear and testify for you ..., and if you had a trial, the State would have to prove your guilt beyond a reasonable doubt before you can be found guilty and you have the right to testify for yourself. You also have the right to remain silent. Those are your constitutional rights, do you understand your rights?

Id. at 89-90 (Pet. Ex. C). DeBord translated this advisement as follows:

The rights of your consultation are that you have the right to have an appointment of a jury quickly, ask questions and call witnesses in this case, and if you want witnesses to do-help in this case, they can call you and make the witness in this case. And you also have the right to keep the silence in this case. The State has to teach without a doubt that you're guilty before you could be found guilty in this charge. These are the rights of your consultation. Do you understand it?

Id. at 108 (Pet. Ex. E). Bautista, through the interpreter, answered yes. The trial court asked Bautista, "Do you understand that by pleading guilty you waive your rights?" Id. at 90. The interpreter translated this question as "Do you understand that by accepting this offer, you are, uh to say that you're guilty ‘ultando ’ [sic] those rights?"² Id. at 108. Bautista again answered yes through the interpreter. The trial court accepted the plea agreement and found Bautista guilty as charged. At a subsequent sentencing hearing, the trial court sentenced him to concurrent executed terms of thirty years for each conviction.

[4] In August 2015, Bautista filed a pro se PCR petition, which took its final form in January 2020 after being amended twice by counsel. Appellant's App. Vol. 2 at 55. In February 2020, the post-conviction court held a hearing. Bautista appeared in person and by counsel. No witnesses testified on his behalf, but his five exhibits were admitted as evidence, including the transcript of the guilty plea hearing (Petitioner's Exhibit C), the affidavit of his guilty plea counsel (Petitioner's Exhibit D), and a verbatim translation/transcript of DeBord's Spanish translation at the guilty plea hearing (Petitioner's Exhibit E). Petitioner's Exhibit E is a chart consisting of three columns: a transcription of the English spoken at the guilty plea hearing, a transcription of DeBord's corresponding Spanish translation, and a corresponding English translation of the Spanish. Ex. Vol. 3 at 107-12. Petitioner's Exhibit E was prepared by Irene Bublik, an interpreter certified by the Indiana supreme court, and was reviewed by Christina Courtright, also a certified interpreter, who agreed with Bublik's English translation of DeBord's Spanish.³ Tr. Vol. 2 at 8-9. In Petitioner's Exhibit D, Bautista's guilty plea counsel attested as follows:

2. Mr. Bautista was not able to speak or understand English during the representation. As a result, it was necessary to utilize a Spanish language interpreter to communicate with him. During attorney-client meetings, interpreter Nellie DeBord interpreted conversations between Mr. Bautista and I. Ms. DeBord also was utilized as proceedings interpreter during the court hearings in the case.

3. The plea agreement in the case was written only in English, not Spanish.

Id. at 104. At the close of the hearing, the post-conviction court took the matter under advisement, and the parties subsequently submitted proposed findings of fact and conclusions of law.

[5] In July 2020, the post-conviction court issued findings of fact and conclusions of law denying Bautista relief. This appeal ensued.

Discussion and Decision

[6] "Post-conviction proceedings are civil proceedings in which a defendant may present limited collateral challenges to a conviction and sentence." Gibson v. State , 133 N.E.3d 673, 681 (Ind. 2019) (citing Ind. Post-Conviction Rule 1(1)(b) ). "The scope of potential relief is limited to issues unknown at trial or unavailable on direct appeal." Id. A defendant who files a petition for post-conviction relief "bears the burden of establishing grounds for relief by a preponderance of the evidence." Ind. Post-Conviction Rule 1(5) ; Humphrey v. State , 73 N.E.3d 677, 681 (Ind. 2017). Because the defendant is appealing from the denial of post-conviction relief, he is appealing from a negative judgment:

Thus, the defendant must establish that the evidence, as a whole, unmistakably and unerringly points to a conclusion contrary to the post-conviction court's decision. In other words, the defendant must convince this Court that there is no way within the law that the court below could have reached the decision it did. We review the post-conviction court's factual findings for clear error, but do not defer to its conclusions of law.

Wilkes v. State , 984 N.E.2d 1236, 1240 (Ind. 2013) (citations and quotation marks omitted).

[7] Bautista argues that his guilty plea was not knowingly, intelligently, and voluntarily entered because the Spanish translation he received at his guilty plea hearing did not adequately advise him of his Boykin rights. Our supreme court has explained what is required under Boykin :

"In considering the voluntariness of a guilty plea we start with the standard that the record of the guilty plea proceeding must demonstrate that the defendant was advised of his constitutional rights and knowingly and voluntarily waived them." Turman v. State , 271 Ind. 332, 392 N.E.2d 483, 484 (1979) (citing Boykin , 395 U.S. at 242, 89 S. Ct. 1709 ). And Boykin requires that a trial court accepting a guilty plea "must be satisfied that an accused is aware of his right against self-incrimination, his right to trial by jury, and his right to confront his accusers."^[4]Dewitt v. State , 755 N.E.2d 167, 171 (Ind. 2001) (citing Boykin , 395 U.S. at 243, 89 S. Ct. 1709 ). The failure to advise a criminal defendant of his constitutional rights in accordance with Boykin prior to accepting a guilty plea will result in reversal of the conviction. Youngblood v. State , 542 N.E.2d 188, 188 (Ind. 1989) (quoting White v. State , 497 N.E.2d 893, 905 (Ind. 1986) ). Accordingly, a defendant who demonstrates that the trial court failed to properly give a Boykin advisement during the guilty plea hearing has met his threshold burden for obtaining post-conviction relief.

....

"[O]nce a state prisoner has demonstrated that the plea taking was not conducted in accordance with Boykin , the state may, if it affirmatively proves in a post-conviction hearing that the plea was voluntary and intelligent, obviate the necessity of vacating the plea." Youngblood , 542 N.E.2d at 189 (quoting Todd v. Lockhart , 490 F.2d 626, 628 (8th Cir. 1974) ). Stated somewhat differently, once the defendant demonstrates that the trial court did not advise him that he was waiving his Boykin rights by pleading guilty, the burden shifts to the State to prove that the petitioner nonetheless knew that he was waiving such rights. And where the record of the guilty plea hearing itself does not establish that a defendant was properly advised of and waived his rights, evidence outside of that record may be used to establish a defendant's understanding. Seeid. (affirming denial of post-conviction relief where no Boykin advisement was given at the plea hearing but trial counsel testified at the post-conviction hearing that they had explained these rights to defendant prior to the

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