Segura v. State

• Decision Date: 26 June 2001
• Docket Number: No. 10S01-0009-PC-515.,10S01-0009-PC-515.
• Parties: Jose Daniel SEGURA, Appellant (Petitioner Below), v. STATE of Indiana, Appellee (Respondent Below).
• Court: Indiana Supreme Court

749 N.E.2d 496

Jose Daniel SEGURA, Appellant (Petitioner Below), v. STATE of Indiana, Appellee (Respondent Below).

No. 10S01-0009-PC-515.

Supreme Court of Indiana.

June 26, 2001.

Susan K. Carpenter, Public Defender of Indiana, Stephen T. Owens, Deputy Public Defender, Indianapolis, IN, Attorneys for Appellant.

Jeffrey A. Modisett, Attorney General of Indiana, Teresa Dashiell Giller, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.

ON PETITION TO TRANSFER

BOEHM, Justice.

Jose Daniel Segura pleaded guilty to dealing in cocaine. He appeals the denial of his successive petition for postconviction relief, raising one issue: whether his trial counsel was ineffective for failing to inform him of the possibility of deportation if he pleaded guilty. In State v. Van Cleave, 674 N.E.2d 1293, 1306 (Ind.1996), we held that in order to upset a conviction based on a claim of ineffective assistance of counsel, a petitioner who pleads guilty must show a reasonable probability that he would not have been convicted if he had gone to trial. We hold today that the United States Supreme Court's recent decision in Williams v. Taylor, 529 U.S. 362, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000), does not affect the Van Cleave standard for evaluating ineffective assistance of counsel claims as to errors or omissions of counsel that overlook or impair a defense. As to those claims, we remain of the view that in order to establish that the guilty plea would not have been entered if counsel had performed adequately, the petitioner must show that a defense was overlooked or impaired and that the defense would likely have changed the outcome of the proceeding. Similarly, if counsel's shortcomings are claimed to have resulted in a lost opportunity to mitigate the penalty, in order to obtain a new sentencing hearing, the petitioner must show a reasonable probability that the oversight would have affected the sentence.

This case presents a claim that counsel's incorrect advice as to the penal consequences led the petitioner to plead guilty when he otherwise would not have done so. However, this is not a claim that, through erroneous advice, a sentence less than the potential maximum was promised or predicted to induce a plea. Rather, the claim is that the maximum was misdescribed by trial counsel. This error in advice would have weighed equally in the calculation of the consequences of conviction after trial and conviction after a plea. As to such a claim, we conclude that a finding of prejudice requires evidence demonstrating a reasonable probability that the erroneous or omitted advice materially affected the decision to plead guilty.

Factual and Procedural Background

In 1995, Segura pleaded guilty to dealing in cocaine.¹ He was sentenced to a term of ten years imprisonment. In 1996, Segura filed an unsuccessful petition for postconviction relief. In September 1998, the Court of Appeals, pursuant to Post-Conviction Rule 1, section 12, granted Segura permission to file a successive petition for postconviction relief. Segura's second petition contended that his trial counsel was ineffective because he failed to inform Segura that he could be deported as a result of his guilty plea. At the hearing, Segura's trial counsel testified that the two had never discussed deportation as a possible consequence of the guilty plea.

The postconviction court denied the second petition and the Court of Appeals affirmed in a not-for-publication opinion. Segura v. State, No. 10A01-9906-PC-218 (Ind. Ct.App. April 4, 2000). In so doing, the Court of Appeals relied on the standard set forth by this Court in State v. Van Cleave, 674 N.E.2d 1293 (Ind.1996), for evaluating a claim of ineffective assistance of counsel by a petitioner who had pleaded guilty. Two weeks later, on April 18, 2000, the United States Supreme Court issued Williams v. Taylor, 529 U.S. 362, 120 S.Ct. 1495, 146 L.Ed.2d 389. On May 1, Segura filed a petition for rehearing in light of the Williams decision. The Court of Appeals granted the petition and again affirmed the denial of relief. Segura v. State, 729 N.E.2d 594, 597 (Ind.Ct.App. 2000). The Court of Appeals acknowledged that this Court's opinion in Van Cleave had relied in part on an interpretation of Lockhart v. Fretwell, 506 U.S. 364, 113 S.Ct. 838, 122 L.Ed.2d 180 (1993), that was inconsistent with Williams. Segura, 729 N.E.2d at 596-97

. The Court of Appeals noted the possible effect of Williams, but held that any change in the doctrine announced in Van Cleave must come from this Court. Id. On September 1, 2000, this Court granted transfer.

I. Deportation as a Penal Consequence

Because Segura alleges prejudice from advice as to deportation, we must decide as a threshold issue whether a failure to counsel about the possibility of deportation constitutes deficient performance as required under Hill. There is a split of authority on this point. The majority of federal circuit courts hold that, as a matter of law, failure to advise of the prospect of deportation as a result of conviction is not deficient performance by counsel in connection with a guilty plea. United States v. George, 869 F.2d 333, 337 (7th Cir.1989); United States v. Yearwood, 863 F.2d 6, 7-8 (4th Cir.1988); United States v. Campbell, 778 F.2d 764, 768-69 (11th Cir.1985). State courts are also split on the issue. Compare, e.g., Alanis v. State, 583 N.W.2d 573, 579 (Minn.1998),

with State v. Figueroa, 639 A.2d 495, 499-500 (R.I.1994).

The question has never been addressed by this Court, but the Indiana Court of Appeals has 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). We agree with the Court of Appeals that the 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. The postconviction court found no deficient performance on the part of Segura's counsel. It is not clear, however, whether this was a holding that, as a matter of law, the failure to advise Segura of the risk of deportation was merely a collateral matter, or whether this was a finding of adequate performance on the facts of this case.² Because we conclude that Segura failed to establish the prejudice prong, we need not resolve this issue. Strickland v. Washington, 466 U.S. 668, 697, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

II. Prejudice in a Guilty Plea Setting

A. Precedent to Date

To prevail on a claim of ineffective assistance of counsel, a petitioner must show two things: (1) the lawyer's performance fell below an "objective standard of reasonableness," Strickland v. Washington, 466 U.S. 668, 687-88, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); and (2) "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694, 104 S.Ct. 2052. Effectiveness of counsel is a mixed question of law and fact. Id. at 698, 104 S.Ct. 2052. The specific problem presented today is the relationship of Williams v. Taylor, 529 U.S. 362, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000), to our decision in State v. Van Cleave, 674 N.E.2d 1293 (Ind.1996), as it relates to the "prejudice" prong of the analysis. Van Cleave held that to set aside a conviction, a petitioner who has pleaded guilty must establish that there is a reasonable probability that he would not have been convicted had he gone to trial. 674 N.E.2d at 1306. Until Van Cleave, most Indiana courts had cited the passage from Hill v. Lockhart, 474 U.S. 52, 59, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985), described below, to the effect that it was sufficient to set aside a conviction if the postconviction court concluded that there was a reasonable probability the petitioner would not have pleaded guilty and would have gone to trial. Most, if not all, of these statements were in the course of denying relief for failure to meet even that standard, and do not address how this showing could be made. Nonetheless, this mantra was repeated a number of times without challenge. See, e.g., Burse v. State, 515 N.E.2d 1383, 1385-86 (Ind.1987)

.

Van Cleave, 674 N.E.2d at 1297-98, rejected the Burse formulation, and in doing so relied in part on Lockhart v. Fretwell, 506 U.S. 364, 369, 113 S.Ct. 838, 122 L.Ed.2d 180 (1993). In Fretwell, the United States Supreme Court elaborated on the prejudice prong of Strickland: "[A]n analysis focusing solely on mere outcome determination, without attention to whether the result of the proceeding was fundamentally unfair or unreliable, is defective." Fretwell, 506 U.S. at 369, 113 S.Ct. 838. This Court took the view that Fretwell amplified Strickland's prejudice prong by requiring the petitioner to show that the result of a proceeding was "fundamentally unfair or unreliable," in addition to showing that the outcome would have been different but for counsel's mistakes. Williams, however, made clear that Fretwell did not alter the preexisting Strickland showing. In Williams, the United States Supreme Court held that Fretwell did not require a showing that the conviction or sentence was "unfair or unreliable" to establish the prejudice prong of a claim of ineffective assistance of counsel in all cases. 529 U.S. at 391-93, 120...