Carrillo v. State, 49A05–1108–PC–437.

• Citation: 982 N.E.2d 461
• Decision Date: 18 February 2013
• Docket Number: No. 49A05–1108–PC–437.,49A05–1108–PC–437.
• Parties: Alex CARRILLO, Appellant–Defendant, v. STATE of Indiana, Appellee–Plaintiff.
• Court: Court of Appeals of Indiana

982 N.E.2d 461

Alex CARRILLO, Appellant–Defendant,

v.STATE of Indiana, Appellee–Plaintiff.

No. 49A05–1108–PC–437.

Court of Appeals of Indiana.

Feb. 18, 2013.

Eric C. Bohnet, Indianapolis, IN, Attorney for Appellant.

Gregory F. Zoeller, Attorney General of Indiana, Eric P. Babbs, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.

OPINION

CRONE, Judge.

Case Summary

In 1997, Alex Carrillo, a citizen of Ecuador who immigrated to the United States when he was one year old, pled guilty to possession of cocaine. 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. On appeal, he argues that the post-conviction court erred in concluding that he failed to establish prejudice resulting from his attorney's failure to advise him. Concluding that Carrillo failed to show an objectively reasonable probability that but for his counsel's failure to advise him of possible adverse immigration consequences, he would have decided to decline his guilty plea, we affirm.

Facts and Procedural History

Carrillo was born in Ecuador in 1965. He immigrated to the United States when he was one year old. He has lived his entire life in the United States but remains a citizen of Ecuador.

On May 7, 1997, Indianapolis police reported to the scene of a motorcycle accident. The police found Carrillo at the scene and determined that he had been the motorcycle driver. Carrillo appeared to be intoxicated, and he was arrested for public intoxication. During a search incident to arrest, the police saw Carrillo drop a clear plastic baggie containing what appeared to be crack cocaine. The substance later tested positive for cocaine and weighed 0.18 grams.

The State charged Carrillo with class D felony possession of cocaine and class B misdemeanor public intoxication. Carrillo was represented by a public defender. At the post-conviction hearing, Carrillo's public defender testified that he had filed a motion for Carrillo's resident alien identification to be returned to him on September 12, 1997, and therefore, there was “a really good chance” that he knew that Carrillo was not a United States citizen. Tr. at 9.

In September 1997, Carrillo pled guilty to class D felony possession of cocaine pursuant to a plea agreement that provided that Carrillo would receive alternative misdemeanor sentencing and a suspended 365–day sentence. The State dismissed the public intoxication charge. The trial court entered judgment of conviction for class A misdemeanor possession of cocaine and sentenced Carrillo to 365 days, suspended.

On April 11, 2011, Carrillo was detained by federal immigration authorities. He faces deportation proceedings based in part upon his 1997 conviction for possession of cocaine.¹

On May 10, 2011, Carrillo filed a PCR petition alleging that his guilty plea counsel did not provide effective assistance of counsel in 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 an order denying Carrillo's petition. The postconviction court concluded in relevant part that Carrillo failed to establish that prejudice resulted from his counsel's failure to advise him of the possible deportation consequences of his guilty plea.

Carrillo appeals. Additional facts will be provided as necessary.

Discussion and Decision

This is an appeal from the denial of a PCR petition.

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, 104 S.Ct. 2052, 80 L.Ed.2d 674 (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). Prejudice results where there is “a reasonable probability that, but for counsel's unprofessional errors, the result of the proceedings would have been different.” Id. “A reasonable probability is a probability sufficient to undermine confidence in the outcome.” 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. Thus, if the petitioner cannot establish prejudice, we need not evaluate counsel's performance. Bryant v. State, 959 N.E.2d 315, 319 (Ind.Ct.App.2011). In this case, we decide Carrillo's ineffective assistance claim based on the prejudice prong.²

Carrillo argues that his attorney was ineffective for failing to inform him that pleading guilty could carry adverse immigration consequences. To establish prejudice for such ineffective assistance claims,

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 competentrepresentation would have caused the petitioner not to enter a plea.

Segura v. State, 749 N.E.2d 496, 507 (Ind.2001). In other words, “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.’ ” Id. (quoting Hill v. Lockhart, 474 U.S. 52, 59, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985)). Accordingly, Carrillo's self-serving testimony that he would not have pled guilty had his attorney advised him of the risk of deportation is by itself insufficient to establish prejudice.

In Sial v. State, 862 N.E.2d 702, 706 (Ind.Ct.App.2007), we held that the defendant did establish objective facts, or “special circumstances” to satisfy the prejudice prong of an ineffective assistance claim based on the failure to advise of the possible adverse immigration consequences from pleading guilty. The Sial court reasoned as follows:

Sial testified that he has a wife and a thirteen-year-old daughter. Inasmuch as Sial has been in the United States for over twenty years, we infer that his daughter was likely born here and, consequently, would be an American citizen. If deported, Sial would be forced either to leave his wife and child behind or to uproot them from this country—most likely the only home his daughter has ever known. We believe that these are sufficient special circumstances and specific facts to establish a reasonable probability that if Sial's attorney had advised him that deportation is a possible consequence of a felony conviction, Sial would have chosen to proceed to trial rather than to plead guilty.

Id. (citation omitted).

In contrast, the court in Trujillo v. State, 962 N.E.2d 110, 116 (Ind.Ct.App.2011), concluded that the defendant “failed to demonstrate the presence of special circumstances within the meaning of Segura and therefore failed to demonstrate that he suffered prejudice” from counsel's failure to advise him regarding the immigration consequences of pleading guilty. There, Trujillo came to the United States when he was sixteen years old. When he pled guilty in 2008, he was fifty-two years old and had lived in the United States for thirty-four years. The Trujillo court did not find the length of time that the defendant lived in the United States to be a special circumstance in light of the defendant's family situation. The Trujillo court concluded that the defendant's family ties did not amount to special circumstances, explaining that at the time of his guilty plea,

he lived with his mother and did not mention a spouse or children, much less minor children, and thus failed to establish that he had a spouse or children. The prospect of forcibly separating from one's nuclear family that includes minor children is the sort of compelling circumstance that might indeed motivate one to forego whatever advantages may attach to pleading guilty, and instead to face whatever hazards attend a trial on the merits. The prospect of a middle-aged man separating from his mother and relatives other than a spouse or children are not nearly so compelling. Therefore, Trujillo's family situation is fundamentally different from the petitioner's in Sial.

Id.

Since Sial and Trujillo, this Court has further developed the analysis used to determine whether, but...