MEMORANDUM DECISION Feb 18 2015, 6:02 am Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited before any court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Joel Schumm Gregory F. Zoeller Indiana University Robert H. McKinney Attorney General of Indiana School of Law Katherine M. Cooper Paul T. Babcock Deputy Attorney General Certified Legal Intern, Appellate Clinic Indianapolis, Indiana Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Ivan Sanchez, February 18, 2015
Appellant-Petitioner, Court of Appeals Cause No. 29A04-1409-PC-426 v. Appeal from the Hamilton Superior Court. The Honorable Gail Bardach, Judge. State of Indiana, Cause No. 29D06-1406-PC-4318 Appellee-Respondent.
Barteau, Senior Judge
Court of Appeals of Indiana | Memorandum Decision 29A04-1409-PC-426|February 18, 2015 Page 1 of 13 Statement of the Case [1] Ivan Sanchez appeals from the trial court’s order denying his petition for post-
conviction relief, contending that the post-conviction court erred by concluding
that he did not receive ineffective assistance of trial counsel. Concluding as we
do, however, that Sanchez has failed to demonstrate that the post-conviction
court erred, we affirm.
Facts and Procedural History [2] Sanchez is a nineteen-year-old citizen of Mexico who had received the status of
Deferred Action for Childhood Arrival (“DACA”) prior to his arrest in
Hamilton County. Sanchez was charged with one count of fraud and five
counts of attempted fraud related to his theft of a debit card from a wallet found
in the vehicle of another person. Sanchez pleaded guilty to one count of fraud
as a Class D felony on March 20, 2014. The trial court sentenced Sanchez to
730 days with credit for seventy-four days served and the remainder of the time
suspended to probation. After his conviction, Sanchez was detained and
removal proceedings were instituted against him. Sanchez filed a petition for
post-conviction relief which was denied by the post-conviction court after a
hearing. Sanchez now appeals.
Discussion and Decision [3] Sanchez contends that he received ineffective assistance of trial counsel because
he alleges he was not fully advised that by pleading guilty to fraud, a crime of
Court of Appeals of Indiana | Memorandum Decision 29A04-1409-PC-426|February 18, 2015 Page 2 of 13 moral turpitude, he faced immigration consequences including the possibility of
automatic deportation.
[4] Sanchez, who speaks English, was represented by attorney Eugene Kress at his
guilty plea hearing and his sentencing hearing. Kress met with Sanchez twice
and, after determining that Sanchez was not a U.S. Citizen, Kress advised
Sanchez that there could be immigration consequences including deportation if
he was convicted of this crime. Kress did not advise Sanchez that he was
certain to be deported as a consequence of the conviction, but advised him of
that possibility.
[5] Sanchez pleaded guilty to one count of Class D felony fraud and signed the
misdemeanor and Class D felony advisement form, initialing each term. That
form included the following advisement:
If you are not a U.S. citizen, a criminal conviction may have immigration consequences, including deportation. You should discuss this possibility with your attorney because if you do plead guilty, it will result in a criminal conviction.
Appellant’s App. at 27.
[6] Sanchez testified at his guilty plea hearing that he had read the advisement and
that Kress had explained it to him. After reviewing the advisement form with
Sanchez, Kress asked him if he had any questions. Sanchez did not express any
concerns about pleading guilty and did not ask any questions about
deportation. Kress told Sanchez that he did not know whether Sanchez would
be deported because “[i]n some of these cases it happens, and in others it Court of Appeals of Indiana | Memorandum Decision 29A04-1409-PC-426|February 18, 2015 Page 3 of 13 doesn’t.” State’s Ex. 1 at 14. After Sanchez’s guilty plea hearing and
sentencing, federal immigration authorities placed Sanchez in mandatory
detention and initiated removal proceedings.
[7] Sanchez argues that the post-conviction court erred by denying his petition for
post-conviction relief because he contends he met his burden of proving that
Kress provided ineffective assistance by failing to advise him that his conviction
for fraud would result in automatic deportation from the country.
[8] At the hearing on Sanchez’s petition, Sanchez testified that when questioned by
Kress he told Kress that he was a citizen of Mexico, but did not tell Kress about
having received DACA status. He further testified that pertaining to
deportation Kress had advised him that “if [he] took the plea, there would be a
50-50 chance that [he] would be deported.” Tr. p. 9. Kress told him that being
removed or deported from the United States “could be a possibility, but he
didn’t tell me that I was gonna [sic] get [] deported for sure.” Id. at 10.
[9] Sanchez further testified on direct examination at the hearing on his petition as
follows:
Q: Did Mr. Kress tender any other options besides the plea agreement to decide your case? A: No. Q: Did he mention going to trial? A: I was planning [on] going to trial if, like, there was not an option. THE COURT: I’m sorry, I didn’t understand your answer. You were planning to go to trial, but what? A: If there was another option, like, like—I was planning on going to trial if I couldn’t get out on probation, because he told me I was
Court of Appeals of Indiana | Memorandum Decision 29A04-1409-PC-426|February 18, 2015 Page 4 of 13 supposed to get on probation. THE COURT: So your answer is you were planning to go to trial if you couldn’t get on probation? A: Yeah.
Tr. p. 11.
[10] Kress’s deposition was introduced into evidence during the hearing on
Sanchez’s petition. Kress explained his observations during his twenty years of
practicing law as follows:
I can only offer an explanation of what my experience is. When all of these cases, with people that I believe are here illegally, you know, my experience is I think the same experience of a lot of lawyers. Sometimes people are deported for crimes, and sometimes they’re not. Sometimes they’re deported for crimes that [] fit squarely within the statute as to what is or is not moral turpitude, and sometimes they are not deported for that. I’ve inquired of immigration lawyers about how we can know definitively what happens, and many times they tell me they don’t know definitively what happens. It’s really—my experience has been is that, you know, all I can do is tell my clients that are here illegally that there will be immigration consequences and leave it at that and then try to answer questions as best I can because I, frankly, have not seen anything that could tell me definitively that a person’s going to be deported when they’re convicted of any crime.
State’s Ex. 1 at 15. Kress also stated that he did not know the list of crimes of
moral turpitude “off the top of [his] head” and that he did not conduct any
research on Sanchez’s case. Id. at 7.
[11] Linda Kelly, a professor of immigration law at the Indiana University Robert
H. McKinney School of Law and practicing immigration attorney, testified as
an expert witness at the hearing on Sanchez’s petition. Kelly also represented
Court of Appeals of Indiana | Memorandum Decision 29A04-1409-PC-426|February 18, 2015 Page 5 of 13 Sanchez in his removal proceedings. Kelly stated that non-citizens who are
convicted of a crime involving moral turpitude are subject to automatic
mandatory detention and are subject to removal proceedings. However, Kelly
further testified that some people who otherwise qualify for mandatory
detention and removal proceedings are overlooked.
[12] The post-conviction court denied Sanchez’s petition after concluding that the
evidence showed he had been advised that there could be immigration
consequences if he pleaded guilty.
[13] A post-conviction proceeding is not a substitute for a direct appeal and does not
provide a petitioner with a “super-appeal.” Reed v. State, 856 N.E.2d 1189,
1194 (Ind. 2006). The post-conviction rules contemplate a narrow remedy for
subsequent collateral challenges to convictions. Id.
[14] Post-conviction proceedings are, by nature, civil proceedings in which the
defendant must establish grounds for relief by a preponderance of the evidence.
Wilkes v. State, 984 N.E.2d 1236, 1240 (Ind. 2013). When appealing the denial
of post-conviction relief, the petitioner stands in the position of one appealing
from a negative judgment. Id. On appeal, 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. Kubsch v. State, 934 N.E.2d 1138,
1144 (Ind. 2010).
[15] To prevail on a claim of ineffective assistance of trial counsel, a defendant must
demonstrate that counsel performed deficiently and that the deficiency resulted
Court of Appeals of Indiana | Memorandum Decision 29A04-1409-PC-426|February 18, 2015 Page 6 of 13 in prejudice. Lee v. State, 892 N.E.2d 1231, 1233 (Ind. 2008). To establish
deficient performance, the defendant must show that counsel’s representation
fell below an objective standard of reasonableness based on prevailing
professional norms. Grinstead v. State, 845 N.E.2d 1027, 1031 (Ind. 2006). To
establish prejudice, the defendant must show that there is a reasonable
probability (i.e., a probability sufficient to undermine confidence in the
outcome) that, but for counsel’s errors, the result of the proceeding would have
been different. Id. Counsel’s performance is presumed effective, and a
defendant must offer strong and convincing evidence to overcome this
presumption. Kubsch, 934 N.E.2d at 1147. An inability to establish either
deficient performance or prejudice is fatal to a claim of ineffective assistance.
Rowe v. State, 912 N.E.2d 441, 443 (Ind. Ct. App. 2009), aff’d on reh’g, 915
N.E.2d 561 (2009), trans. denied (2010).
[16] The State appears to have conceded at the hearing that Sanchez had established
the prejudice part of the Strickland test. The following is the exchange between
the State and the post-conviction court on the prejudice part of the test:
THE STATE: I don’t believe there was any testimony today that there was—I know how Defendant will argue—but I don’t think Mr. Sanchez-Campis testified today that there was actually prejudice done. So we look at whether or not there was a deficient performance by Mr. Kress. THE COURT: Or, isn’t—isn’t whether Mr. Sanchez-Campis—He identified himself as Campis-Sanchez, not Sanchez-Campis. THE STATE: Oh, excuse me, Judge. THE COURT: So, I’m not sure, but isn’t the testimony of Ms. Kelly that he was ordered removed? And that he wouldn’t have been— THE STATE: Well, I don’t know if there’s any evidence today—
Court of Appeals of Indiana | Memorandum Decision 29A04-1409-PC-426|February 18, 2015 Page 7 of 13 THE COURT: — and that he wouldn’t—and that he wouldn’t have been ordered removed but for his conviction of the credit card fraud case. Wasn’t that her testimony? THE STATE: I think, yes. I think that was her testimony. THE COURT: Doesn’t—does that not establish prejudice to him? THE STATE: I don’t know if he test—he didn’t testify today that— THE COURT: Does he have to testify to it, or— THE STATE: No. THE COURT: — do I just have to find that there’s prejudice? THE STATE: You just have to find that there’s prejudice. THE COURT: And does that not constitute prejudice? THE STATE: I think that probably would. THE COURT: Okay. So, let’s not waste any time with that argument, okay? THE STATE: Okay.
Tr. pp. 38-40.
[17] Therefore, we turn now to the part of the Strickland test dealing with deficient
performance. Sanchez attempted to support his claim by citing to Padilla v.
Kentucky, 559 U.S. 356, 130 S. Ct. 1473, 176 L. Ed. 2d 284 (2010). In Padilla,
the petitioner, a native of Honduras, had been a lawful permanent resident of
the United States for more than forty years during which he served in the
Vietnam War as a member of the U.S. Armed Forces. Padilla ultimately
pleaded guilty to the transportation of a large amount of marijuana in his
tractor-trailer. He pleaded guilty after counsel not only failed to advise him of
the automatic deportation consequences of pleading guilty, but told him that he
need not worry about his immigration status after being in the United States for
so long. The United States Supreme Court found that Padilla was entitled to
post-conviction relief because he had sufficiently demonstrated that his
Court of Appeals of Indiana | Memorandum Decision 29A04-1409-PC-426|February 18, 2015 Page 8 of 13 counsel’s performance was deficient by failing to inform Padilla that his plea
carried a risk of deportation. 559 U.S. at 374. Indeed, the United States
Supreme Court stated that “[t]he weight of prevailing professional norms
supports the view that counsel must advise her client regarding the risk of
deportation.” 559 U.S. at 367.
[18] In Padilla’s situation, the removal consequence for his conviction was clear. 8
United States Code section 1227(a)(2)(B)(i) provides that “[a]ny alien who at
any time after admission has been convicted of a violation of (or a conspiracy or
attempt to violate) any law or regulation of a State, the United States, or a
foreign country relating to a controlled substance . . ., other than a single
offense involving possession for one’s own use of 30 grams or less of marijuana,
is deportable.” Thus, not only the failure to advise, but the erroneous
advisement not to worry about deportation consequences amounted to deficient
performance in Padilla.
[19] Sanchez, on the other hand, pleaded guilty to fraud. 8 United States Code
section 1227(a)(2)(A)(i) provides that with respect to criminal offenses, “[a]ny
alien who is convicted of a crime involving moral turpitude committed within
five years . . . after the date of admission, and is convicted of a crime for which
a sentence of one year or longer may be imposed, is deportable.” Sanchez is
correct that Jordan v. De George, 341 U.S. 223, 232, 71 S. Ct. 703, 708, 95 L. Ed.
886 (1951) holds that “the decided cases make it plain that crimes in which
fraud was an ingredient have always been regarded as involving moral
turpitude.” However, unlike the code section in Padilla, the crimes involving
Court of Appeals of Indiana | Memorandum Decision 29A04-1409-PC-426|February 18, 2015 Page 9 of 13 moral turpitude are not specifically set forth in the statute. The United States
Supreme Court acknowledged in Padilla the following:
Immigration law can be complex, and it is a legal specialty of its own. Some members of the bar who represent clients facing criminal charges, in either state or federal court or both, may not be well versed in it. There will, therefore, undoubtedly be numerous situations in which the deportation consequences of a particular plea are unclear or uncertain. The duty of the private practitioner in such cases is more limited. When the law is not succinct and straightforward . . ., a criminal defense attorney need do no more than advise a noncitizen client that pending criminal charges may carry a risk of adverse immigration consequences. But when the deportation consequence is truly clear, as it was in this case, the duty to give correct advice is equally clear.
559 U.S. at 369, 130 S. Ct. at 1483.
[20] Kress testified that in his twenty years of practicing law he had consulted
immigration attorneys for an explanation why certain non-citizens who could
be deported were not, while others were. He testified that he was unable to
obtain a definitive explanation for that observation. Kelly, an immigration
lawyer and law professor, testified as an expert witness that Sanchez’s offense
made him subject to automatic removal. However, she offered additional
expert testimony that not all non-citizens who are convicted of crimes of moral
turpitude are deported for a variety of reasons such as their convictions being
overlooked. Thus, under Padilla, Kress properly advised Sanchez that his plea
carried a risk of deportation.
Court of Appeals of Indiana | Memorandum Decision 29A04-1409-PC-426|February 18, 2015 Page 10 of 13 [21] In Segura v. State, 749 N.E.2d 496, 500 (Ind. 2001), our Supreme Court noted
that we had addressed the deficient performance part of the Strickland test in the
context of advisement of deportation consequences in Williams v. State, 641
N.E.2d 44 (Ind. Ct. App. 1994), trans. denied (1995). In Williams, we concluded
that the “consequence of deportation, whether labelled 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.” 641 N.E.2d at 49. We affirmed the post-conviction court’s order
denying the three petitioners relief because although the petitioners claimed
their attorneys failed to advise them, the testimony of the attorneys showed that
“the subject of deportation was explicitly discussed by Randolph and his clients
and touched upon by Alsip and his client.” Id. at 50. Randolph specifically
testified that he informed his clients that by pleading guilty they would serve
their time in jail and would then have to go through deportation proceedings.
Alsip discussed with his client the fact that “the Immigration Service would be
interested” if the client was convicted and “it could affect his status in the
United States.” Id.
[22] The Segura Court agreed that “the failure to advise of the consequence of
deportation can, under some circumstances, constitute deficient performance.”
749 N.E.2d at 500. The Supreme Court went on to say as follows:
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
Court of Appeals of Indiana | Memorandum Decision 29A04-1409-PC-426|February 18, 2015 Page 11 of 13 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.
Id. at 500. However, the Supreme Court did not analyze Segura’s claim under
the deficient performance part of the test, but decided the appeal under the
prejudice part of the Strickland test.
[23] Here, because Sanchez bore the burden of proving the allegations of his petition
by a preponderance of the evidence and did not prevail, he appeals from a
negative judgment. Thus, on appeal he must show that the evidence as a whole
leads unerringly and unmistakably to a conclusion opposite that reached by the
post-conviction court.
[24] The evidence at the post-conviction hearing established that Kress met with
Sanchez twice and, after learning of Sanchez’s immigration status, advised him
that there could be immigration consequences including deportation if he was
convicted of fraud. Kress reviewed the advisement form with Sanchez, who
signed it, and initialed each paragraph including the provision discussing the
immigration consequences of pleading guilty. When questioned by the trial
court at the guilty plea hearing, Sanchez indicated that he had read the
advisement form and that Kress had explained it to him.
[25] Sanchez testified at the post-conviction hearing that Kress had told him there
was a “50-50 chance” of being deported if he pleaded guilty to fraud. Tr. at 9.
In his deposition testimony, Kress explained that in some cases, people who
Court of Appeals of Indiana | Memorandum Decision 29A04-1409-PC-426|February 18, 2015 Page 12 of 13 should face deportation after conviction are not deported, while others are.
Kress stated that he did not tell Sanchez that he would absolutely face
deportation after pleading guilty because in his experience deportation could
happen, but might not. However, Kress did tell Sanchez that there could be
immigration consequences including deportation if he was convicted of this
crime. Under these circumstances, Kress’s advisements regarding deportation
did not amount to deficient performance.
[26] Sanchez has failed to establish that the evidence as a whole leads unerringly
and unmistakably to a conclusion opposite to that reached by the post-
conviction court.
Conclusion [27] In light of the foregoing, the post-conviction court’s order denying the petition
for post-conviction relief is affirmed.
[28] Affirmed.
Riley, J., and Barnes, J., concur.
Court of Appeals of Indiana | Memorandum Decision 29A04-1409-PC-426|February 18, 2015 Page 13 of 13