Trujillo v. State

• Decision Date: 28 November 2011
• Docket Number: No. 71A03–1102–PC–73.,71A03–1102–PC–73.
• Parties: Manuel TRUJILLO, Appellant–Defendant, v. STATE of Indiana, Appellee–Plaintiff.
• Court: Indiana Appellate Court

962 N.E.2d 110

Manuel TRUJILLO, Appellant–Defendant,

v.STATE of Indiana, Appellee–Plaintiff.

No. 71A03–1102–PC–73.

Court of Appeals of Indiana.

Nov. 28, 2011.

Rodolfo S. Monterrosa, Jr., South Bend, IN, Attorney for Appellant.

Gregory F. Zoeller, Attorney General of Indiana, Joby D. Jerrells, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.

OPINION

FRIEDLANDER, Judge.

This is a consolidated appeal of the denial of Manuel Trujillo's petitions for postconviction relief (PCR), by which he challenged two separate convictions under two separate cause numbers for Conspiracy to Deal Marijuana, ¹ the first one as a class D felony and the second as a class C felony. Trujillo pleaded guilty to the class D felony offense in 1999 and to the class C felony offense in 2008. Trujillo challenges each conviction on the same grounds. We restate those issues as follows:

1. Did trial counsel render ineffective assistance in failing to advise Trujillo with respect to the possibility of deportation in the event he pleaded guilty?

2. Must Trujillo's guilty plea be set aside because it was not entered knowingly and intelligently?

We affirm.

The facts are that Trujillo immigrated to the United States from Mexico in 1974, when he was approximately sixteen years old. He has lived in the United States ever since. In 1999, while living in South Bend, Indiana, he pleaded guilty to conspiracy to deal marijuana, a class D felony. Trujillo agreed with the State's representation that the case against him was “very strong”. PCR Transcript² at 35. At the time of the guilty plea, his attorney failed to advise him of the adverse immigration consequences of pleading guilty.

In 2008, still living in South Bend, Trujillo pleaded guilty to a second charge of conspiracy to deal marijuana, this time as a class C felony. He was represented by different counsel in the 2008 case. His 2008 counsel, Michael Tuszynski, was aware of possible negative consequences to non-citizens as a result of a felony conviction, but was unaware that Trujillo was not a citizen. Therefore, he did not discuss the immigration consequences of a guilty plea with Trujillo. The presentence investigation report (the PSI) prepared for the 2008 case indicated that Trujillo was a U.S. citizen. Trujillo reviewed the PSI prior to sentencing and indicated to his attorney and to the court that it was correct.

Trujillo eventually was deported to Mexico after the 2008 conviction. On June 2, 2010, he filed PCR petitions in both causes on grounds that the failure to inform him of the adverse immigration consequences in each case rendered his guilty pleas invalid. Following a consolidated hearing, the court denied both PCR petitions. In its order, the trial court made the following findings with respect to the 1999 conviction:

The Petitioner further testified that his 1999 conviction caused him to lose his permanent legal status, though he only became aware of the fact following his 2008 conviction ..., when he became subject to Removal Proceedings in Illinois in 2009. Petitioner testified that his attorney in 1999 never asked if he was a citizen, nor discuss [sic] with him his immigration status.

Finally, as it related to his 1999 conviction, Petitioner, in response to both his attorney and the State, testified at the hearing on his Petition, that had he been told in 1999 that he could have been deported as a result of this conviction that he still would have pled guilty.

Appellant's Appendix at 54. The court entered the following findings of fact with respect to the 2008 conviction:

[Attorney] Tuszynski testified at the hearing that he was aware in 2008 there could be negative consequences to non-citizens due to a felony conviction. He testified that he was not aware that Petitioner was a legal, non-citizen resident; and did not discuss non-citizenship status nor the implications of the conviction to a non-citizen with Petitioner. Counsel testified that he had no reason to believe Petitioner was not a U.S. citizen.

Id. The court also noted that Trujillo acknowledged at the hearing that the PSI indicated he was a U.S. citizen and that he had indicated it was correct. Trujillo claimed, however, that he simply did not review the PSI closely enough to discover the error. Finally, Trujillo claimed he “gave no thought that there could be immigration consequences as there had been none following the 1999 conviction.” Id. at 55. Trujillo appeals the post-conviction court's denial of his petitions.

1.

Trujillo contends that trial counsel rendered ineffective assistance in failing to advise him of the possibility of deportation in the event he pleaded guilty.³ We begin by noting that in a post-conviction proceeding, the petitioner bears the burden of establishing grounds for relief by a preponderance of the evidence. Ritchie v. State, 875 N.E.2d 706 (Ind.2007). A petitioner who has been denied post-conviction relief is in the position of appealing from a negative judgment. Id. The standard of review for a petitioner denied post-conviction relief is rigorous. For this court to reverse, the petitioner must prove that the evidence unerringly and unmistakably leads to the opposite conclusion. Id.

A petitioner who claims that his plea was involuntary and unintelligent but can only establish that the trial court failed to give an advisement in accordance with Ind.Code Ann. § 35–35–1–2 (West, Westlaw through end of 2011 1st Regular Sess.) has not met the burden of proof. White v. State, 497 N.E.2d 893 (Ind.1986). The petitioner must plead specific facts from which a fact-finder could conclude that the trial court's failure to make a full inquiry in accordance with I.C. § 35–35–1–2(a) rendered the petitioner's decision involuntary or unintelligent. Id. The petitioner must prove that any erroneous or omitted advisements, if corrected, would have changed his or her decision to enter the plea. State v. Lime, 619 N.E.2d 601 (Ind.Ct.App.1993), trans. denied (citing Followell v. State, 578 N.E.2d 646 (Ind.1991)).

Trujillo couches his claim in terms of ineffective assistance of counsel. In order to prevail on a claim of ineffective assistance of counsel, a petitioner must demonstrate both that his counsel's performance was deficient and that he was prejudiced thereby. French v. State, 778 N.E.2d 816 (Ind.2002) (citing Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)); see also Taylor v. State, 840 N.E.2d 324 (Ind.2006) (the failure to satisfy either component will cause an ineffective assistance of counsel claim to fail). This is the so-called Strickland test. 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. To establish the requisite prejudice, a petitioner must show 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.” Smith v. State, 765 N.E.2d 578, 585 (Ind.2002). The two elements of Strickland are separate and independent inquiries. Thus, if it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, that course should be followed. Landis v. State, 749 N.E.2d 1130 (Ind.2001).

With the foregoing in mind, we can quickly dispose of Trujillo's challenge concerning the 1999 conviction. Trujillo admitted at the post-conviction hearing that he would have pleaded guilty even if he had been advised at the time about the immigration implications of his conviction. Thus, the advisement would not have changed Trujillo's decision to plead guilty. Accordingly, he cannot establish that he was prejudiced by counsel's failure to advise him in the 1999 prosecution that his immigration status might be implicated. Having failed to establish prejudice, his ineffective assistance of counsel claim must fail. See id.

We turn now to the 2008 conviction. Trujillo contends that the failure to explain the full penal consequences in this case, i.e., the risk of deportation, caused him to accept a plea agreement that he would have rejected if he had been properly advised. Because Trujillo was convicted pursuant to a guilty plea, we must analyze this particular claim under Segura v. State, 749 N.E.2d 496 (Ind.2001). Segura categorizes two main types of ineffective assistance of counsel cases, the second of which applies here. Smith v. State, 770 N.E.2d 290 (Ind.2002). This category relates to “an improper advisement of penal consequences,” and is divided into two subcategories: (1) “claims of intimidation by exaggerated penalty or enticement by an understated maximum exposure” and (2) “claims of incorrect advice as to the law.” Willoughby v. State, 792 N.E.2d 560, 563 (Ind.Ct.App.2003), trans. denied. Therefore, Trujillo's challenge qualifies under subsection (2) of the second category, i.e., an improper advisement of penal consequences relating to incorrect advice as to the law.

In Segura, our Supreme Court held that in order to state a claim for post-conviction relief under this subcategory, a petitioner may not simply allege that a plea would not have been entered, nor is the petitioner's conclusory testimony to that effect sufficient to prove prejudice. Instead, the petitioner must “establish, by objective facts, circumstances that support the conclusion that [trial] counsel's errors in advice as to penal consequences were material to the decision to plead.” Segura v. State, 749 N.E.2d at 507. In so doing, the petitioner “must establish an objective reasonable probability that competent representation would have caused the petitioner not to enter a plea.” Id. Under this analysis, we focus upon whether the petitioner proffered specific facts indicating that a reasonable defendant would have rejected the petitioner's plea had the petitioner...