Williams v. State

• Decision Date: 11 October 1994
• Docket Number: No. 49A05-9310-PC-391,49A05-9310-PC-391
• Parties: Clifford WILLIAMS, Glenn Barker and Michael Whyte aka Rupert Williams, Appellants-Defendants, v. STATE of Indiana, Appellee-Plaintiff.
• Court: Indiana Appellate Court

Page 44

641 N.E.2d 44

Clifford WILLIAMS, Glenn Barker and Michael Whyte aka Rupert

Williams, Appellants-Defendants, v. STATE of Indiana, Appellee-Plaintiff.

No. 49A05-9310-PC-391.

Court of Appeals of Indiana,

Fifth District.

Oct. 11, 1994.

Transfer Denied Jan. 11, 1995.

A. Luis Ortiz, Indianapolis, for appellants.

Pamela Carter, Atty. Gen., Mary Dreyer, Deputy Atty. Gen., Indianapolis, for appellee.

SHARPNACK, Chief Judge.

Clifford Williams, Glen Barker, and Michael Whyte appeal the denial of their petitions for post-conviction relief. We affirm.

Williams, Barker, and Whyte (collectively, the petitioners) present three issues for our review, which we consolidate and restate as

1. whether the petitioners submitted their guilty pleas knowingly, intelligently, and voluntarily when the trial court did not advise them in the plea proceeding of the possibility of deportation; and

2. whether the petitioners received the effective assistance of counsel.

The facts most favorable to the judgment are as follows. The petitioners, noncitizens of the United States, were arrested following an investigation by police into a large-scale Jamaican cocaine distribution network operating in the Indianapolis metropolitan area. At the petitioners' guilty plea hearing on April 23, 1991, the petitioners each pleaded guilty to conspiracy to commit dealing in cocaine, a class A felony. Pursuant to their separate plea agreements, on May 31, 1991, Williams received a sentence of twenty years with fifteen years suspended and five years executed, Whyte was sentenced to twenty-five years imprisonment, and Barker was sentenced to twenty years imprisonment.

At the guilty plea hearing, Barker and Whyte were represented by attorney Lonnie Randolph, Williams by attorney Thomas Alsip. The court advised each petitioner of the charge to which he was pleading guilty and questioned each petitioner individually concerning whether the guilty plea was given knowingly, intelligently, and voluntarily, as required by Ind.Code § 35-35-1-2(a) and the Indiana Supreme Court's holding in White v. State (1986), Ind., 497 N.E.2d 893. The court did not mention the deportation consequences of the guilty plea, nor did any of the petitioners or their counsel raise the matter of deportation at the guilty plea hearing.

As a result of their convictions, deportation proceedings were brought against the petitioners by the United States Immigration and Naturalization Service. The petitioners were ordered to be deported after completing their sentences of imprisonment.

On October 29, 1992, Barker and Whyte filed petitions for post-conviction relief. Williams filed his petition for post-conviction relief on December 4, 1992. Post-conviction hearings were held on May 21, 1993, and June 25, 1993. The judge denied each of the petitions.

The petitioner bears the burden of proof in a petition for post-conviction relief. Popplewell v. State (1981), Ind., 428 N.E.2d 15, 16. The post-conviction court is the trier of fact and the sole judge of the weight and credibility of the evidence. Id. Where the petitioner appeals the denial of a post-conviction relief petition, he appeals from a negative judgment. In such cases, it is only where the evidence is without conflict and leads to but one conclusion, and the court below has reached the opposite conclusion, that we will disturb the decision of the post-conviction court as being contrary to law. Id.

I

We first address the petitioners' argument that they could not have submitted their guilty pleas knowingly, intelligently, and voluntarily when the trial court did not advise them in the plea proceeding of the possibility of deportation.

Indiana's guilty plea statute, I.C. § 35-35-1-2, sets forth a series of determinations that a court must make before accepting a guilty plea, including the determination that the accused has been informed of certain constitutional rights as mandated by Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969), and of the possible criminal penalties resulting from the guilty plea. The petitioners concede that the court advised them of the rights enumerated in this statute, but argue that due process requires the court to inform noncitizens of the deportation consequences of a guilty plea. We disagree.

Our federal courts have largely considered deportation to be a "collateral" consequence of a guilty plea. United States v. Del Rosario (D.C.Cir.1990), 902 F.2d 55, cert. den., 498 U.S. 942, 111 S.Ct. 352, 112 L.Ed.2d 316; Fruchtman v. Kenton (9th Cir.1976), 531 F.2d 946, cert. den., 429 U.S. 895, 97 S.Ct. 256, 50 L.Ed.2d 178; Michel v. United States (2d Cir.1974), 507 F.2d 461. Collateral consequences attending a guilty plea in some circumstances may be far less onerous than deportation. As noted in Del Rosario, supra, such collateral consequences "may include the loss of civil service employment, of the right to vote and to travel freely abroad, of the right to a driver's license, and of the right to possess firearms." 902 F.2d at 59 (citations omitted). In Indiana, however, the term "collateral consequences" has been applied in the guilty plea context to certain "subsequent negative consequences of an earlier conviction," Pike v. State (1990), Ind.App., 557 N.E.2d 1, 3, vacated on other grounds, 569 N.E.2d 650.

"[W]e have often held that one who pleads guilty need not be advised [by the court] that the conviction might have adverse but future collateral consequences. See Arnold v. State (1989) 2 Dist.Ind.App., 539 N.E.2d 969, trans. denied, and cases cited therein. Such holdings are unquestionably premised upon the rationale that the immediate conviction is the lone concern and future or contemplated but uncertain consequences need not be considered or made subject of discussion or advisement. Such considerations are irrelevant to the validity, vel non of the particular conviction in dispute."

Id., 557 N.E.2d at 3. Such collateral consequences have been as severe as the imposition of consecutive sentences resulting from prior convictions, Stockey v. State (1987), Ind., 508 N.E.2d 793; the revocation of parole, Jones v. State (1989), Ind.App., 536 N.E.2d 1051, reh'g denied; and the possibility that the defendant's parole board could require him to serve part of the paroled sentence before commencing his sentence in the current offense, Morlan v. State (1986) Ind., 499 N.E.2d 1084, and Arnold, supra. In all of the above Indiana cases, the courts on appeal found that the trial court was not required to advise the accused of the collateral consequences of his plea. In Jones, supra, Judge Miller stated that "[t]he revocation of parole (or probation) is a collateral consequence of a guilty plea and as such a court has no duty to inform the defendant of any consequences he may face as a result of such revocation." 536 N.E.2d at 1053. In Morlan, supra, the Indiana Supreme Court held that the possibility that the defendant's parolee status could result in the imposition of a consecutive sentence was a collateral consequence of the defendant's plea, and thus the trial court was not required to advise the defendant of it. 499 N.E.2d at 1086.

The responsibilities of a trial court in accepting a guilty plea are set forth with great specificity in our statutes and case law. See White, supra, and Herman v. State (1988), Ind., 526 N.E.2d 1183. We may not impose upon the courts the additional duty of inquiring into the citizenship and immigration status of criminal defendants.

In the present case, the record shows that the trial court went to great lengths to establish that the petitioners' guilty pleas were made knowingly, voluntarily, and intelligently. The trial court did not err in accepting the petitioner's guilty pleas.

II

The petitioners also argue that they did not receive effective assistance of counsel because their attorneys did not advise them of the federal deportation consequences of pleading guilty to a felony. This is a question of first impression in Indiana.

Our standard of review governing challenges to the adequacy of legal representation was stated by the Indiana Supreme Court as follows:

"The United States Supreme Court has established a two-part standard by which claims of ineffective assistance of counsel are evaluated. Preliminarily, appellant must make a showing that the performance of his trial counsel was deficient. Appellant then must show that he suffered prejudice as a result. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). This Court has stated that judicial scrutiny of counsel's performance is highly deferential and should not be exercised through distortions of hindsight. Counsel is presumed competent, and appellant must present strong and convincing evidence to rebut the presumption. Duncan v. State (1987), Ind., 514 N.E.2d 1252."

Clark v. State (1990), Ind., 561 N.E.2d 759, 762. To overcome the presumption of competency, the defendant must identify the act or omission and the court must determine from all the circumstances whether the act or omission was outside the range of professionally competent assistance. Maez v. State (1988), Ind.App., 530 N.E.2d 1203, 1211, trans. denied.

The Strickland test was found applicable to the guilty plea situation in Hill v. Lockhart, 474 U.S. 52, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985). There, the Court set forth the relevant standard:

"Where, as here, a defendant is represented by counsel during the plea process and enters his plea upon the advice of counsel, the voluntariness of the plea depends on whether counsel's advice 'was within the range of competence demanded of attorneys in criminal cases.' McMann v. Richardson, 397 U.S. 759, 771 [90 S.Ct. 1441, 1449, 25 L.Ed.2d 763] (1970). As we explained in Tollett v. Henderson, 411 U.S. 258 [93 S.Ct. 1602, 36 L.Ed.2d 235] (1973), a defendant who pleads guilty upon the advice of counsel 'may only attack the voluntary and intelligent...