Carrillo v. State

• Decision Date: 18 February 2013
• Docket Number: No. 49A02–1112–PC–1209.,49A02–1112–PC–1209.
• Parties: Alex CARRILLO, Appellant–Defendant/Cross–Appellee, v. STATE of Indiana, Appellee–Plaintiff/Cross–Appellant.
• Court: Indiana Appellate Court

982 N.E.2d 468

Alex CARRILLO, Appellant–Defendant/Cross–Appellee,

v.STATE of Indiana, Appellee–Plaintiff/Cross–Appellant.

No. 49A02–1112–PC–1209.

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 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 postconviction court improperly considered his attorney's knowledge of his noncitizen status in determining whether he received ineffective assistance. We conclude that the postconviction 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.

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

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, 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.

In reviewing the judgment of a post-conviction court, appellate courts consideronly 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). “[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.” 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.Ct.App.1994)trans....