MEMORANDUM DECISION FILED Pursuant to Ind. Appellate Rule 65(D), Apr 15 2016, 7:52 am this Memorandum Decision shall not be CLERK regarded as precedent or cited before any Indiana Supreme Court Court of Appeals court except for the purpose of establishing and Tax Court
the defense of res judicata, collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Kevin Munoz Gregory F. Zoeller Indianapolis, Indiana Attorney General of Indiana
J.T. Whitehead Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Jose Carreno, April 15, 2016 Appellant-Defendant, Court of Appeals Case No. 49A04-1509-CR-1337 v. Appeal from the Marion Superior Court State of Indiana, The Honorable Jose Salinas, Judge Appellee-Plaintiff Trial Court Cause No. 49G14-0812-FD-288153
Bailey, Judge.
Court of Appeals of Indiana | Memorandum Decision 49A04-1509-CR-1337 | April 15, 2016 Page 1 of 7 Case Summary [1] Jose Carreno (“Carreno”) appeals the denial of his motion for post-conviction
relief, which challenged his plea of guilty to Possession of a Controlled
Substance.1 He presents the sole issue of whether he was denied the effective
assistance of counsel because counsel failed to advise Carreno of the possibility
of deportation.2 We affirm.
Facts and Procedural History [2] On February 12, 2009, Carreno pled guilty to Possession of a Controlled
Substance, as a Class D felony. He was sentenced to 180 days imprisonment,
with 178 days suspended to probation. He subsequently filed a motion to
modify the felony conviction to a misdemeanor conviction. On the date of
hearing on that motion, Carreno filed a petition for post-conviction relief.
Hearings were conducted on June 5, 2015 and on June 26, 2015. On August 7,
2015, the post-conviction court entered its findings, conclusions, and order
denying Carreno post-conviction relief. This appeal ensued.
Discussion and Decision
1 Ind. Code § 35-48-4-7. 2 The U.S. Immigration and Nationality Act provides that an alien is deportable for violating “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.” 8 U.S.C.A. § 1227(a)(2)(B)(i) (2008).
Court of Appeals of Indiana | Memorandum Decision 49A04-1509-CR-1337 | April 15, 2016 Page 2 of 7 Standard of Review [3] The petitioner in a post-conviction proceeding bears the burden of establishing
the grounds for relief by a preponderance of the evidence. Ind. Post-Conviction
Rule 1(5); Fisher v. State, 810 N.E.2d 674, 679 (Ind. 2004). When appealing
from the denial of post-conviction relief, the petitioner stands in the position of
one appealing from a negative judgment. Id. On review, we will not reverse
the judgment of the post-conviction court unless the evidence as a whole
unerringly and unmistakably leads to a conclusion opposite that reached by the
post-conviction court. Id. A post-conviction court’s findings and judgment will
be reversed only upon a showing of clear error, that which leaves us with a
definite and firm conviction that a mistake has been made. Id. In this review,
findings of fact are accepted unless they are clearly erroneous and no deference
is accorded to conclusions of law. Id. The post-conviction court is the sole
judge of the weight of the evidence and the credibility of witnesses. Id.
Effectiveness of Trial Counsel [4] Carreno sought post-conviction relief based upon his claim that, had his counsel
advised him that deportation was a potential consequence of his guilty plea, he
would not have so pled. Carreno’s counsel testified that he communicated with
Carreno through an interpreter, but he did not inquire into the immigration
status of his clients.
[5] To prevail on a claim of ineffectiveness of counsel, a petitioner must
demonstrate both that his counsel’s performance was deficient and that he was
Court of Appeals of Indiana | Memorandum Decision 49A04-1509-CR-1337 | April 15, 2016 Page 3 of 7 prejudiced thereby. Strickland v. Washington, 466 U.S. 668 (1984)). “Because an
inability to satisfy either prong of this test is fatal to an ineffective assistance
claim, this court need not even evaluate counsel’s performance if the petitioner
suffered no prejudice from that performance.” Suarez v. State, 967 N.E.2d 552,
555 (Ind. Ct. App. 2012).
[6] When a petitioner has pled guilty, we must analyze his claim under Segura v.
State, 749 N.E.2d 496 (Ind. 2001). Segura recognizes two main categories of
ineffectiveness in relation to a guilty plea, the second of which is implicated
here. Clarke v. State, 974 N.E.2d 562, 565 (Ind. Ct. App. 2012). This second
category relates to improper advisement of penal consequences, which may
involve “claims of intimidation by exaggerated penalty or enticement by an
understated maximum exposure” or “claims of incorrect advice as to the law.”
Willoughby v. State, 792 N.E.2d 560, 563 (Ind. Ct. App. 2003). The failure to
advise a client of the possibility of deportation in the event of a conviction may,
under certain circumstances, constitute ineffective assistance of counsel. Segura,
749 N.E.2d at 500.
[7] A petitioner seeking post-conviction relief on grounds that a plea was entered
upon incorrect legal advice may not simply allege that he or she would not have
pled guilty with proper advice, nor is the petitioner’s conclusory testimony to
that effect sufficient to prove prejudice. Clarke, 974 N.E.2d at 565. Rather, the
petitioner must establish, by objective facts, circumstances that support the
conclusion that erroneous advice as to penal consequences was material to the
decision to plead. Id. It is appropriate to consider, along with the special
Court of Appeals of Indiana | Memorandum Decision 49A04-1509-CR-1337 | April 15, 2016 Page 4 of 7 circumstances presented, the strength of the State’s case, which a reasonable
defendant would take into account when pondering a guilty plea, and the
benefit conferred upon the defendant. Suarez, 967 N.E.2d at 556. “[I]f the post-
conviction court finds that the petitioner would have pleaded guilty even if
competently advised as to the penal consequences, the error in advice is
immaterial to the decision to plead and there is no prejudice.” Segura, 749
N.E.2d at 505.
[8] Carreno contends that special circumstances existed in his case, akin to those
present in Sial v. State, 862 N.E.2d 702 (Ind. Ct. App. 2007). The defendant in
Sial was a non-citizen resident of the United States who pled guilty to theft as a
Class D felony. His attorney did not advise him of the possibility of
deportation and Sial filed a post-conviction petition on grounds that he had
received ineffective assistance of counsel. The petition was denied and Sial
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MEMORANDUM DECISION FILED Pursuant to Ind. Appellate Rule 65(D), Apr 15 2016, 7:52 am this Memorandum Decision shall not be CLERK regarded as precedent or cited before any Indiana Supreme Court Court of Appeals court except for the purpose of establishing and Tax Court
the defense of res judicata, collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Kevin Munoz Gregory F. Zoeller Indianapolis, Indiana Attorney General of Indiana
J.T. Whitehead Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Jose Carreno, April 15, 2016 Appellant-Defendant, Court of Appeals Case No. 49A04-1509-CR-1337 v. Appeal from the Marion Superior Court State of Indiana, The Honorable Jose Salinas, Judge Appellee-Plaintiff Trial Court Cause No. 49G14-0812-FD-288153
Bailey, Judge.
Court of Appeals of Indiana | Memorandum Decision 49A04-1509-CR-1337 | April 15, 2016 Page 1 of 7 Case Summary [1] Jose Carreno (“Carreno”) appeals the denial of his motion for post-conviction
relief, which challenged his plea of guilty to Possession of a Controlled
Substance.1 He presents the sole issue of whether he was denied the effective
assistance of counsel because counsel failed to advise Carreno of the possibility
of deportation.2 We affirm.
Facts and Procedural History [2] On February 12, 2009, Carreno pled guilty to Possession of a Controlled
Substance, as a Class D felony. He was sentenced to 180 days imprisonment,
with 178 days suspended to probation. He subsequently filed a motion to
modify the felony conviction to a misdemeanor conviction. On the date of
hearing on that motion, Carreno filed a petition for post-conviction relief.
Hearings were conducted on June 5, 2015 and on June 26, 2015. On August 7,
2015, the post-conviction court entered its findings, conclusions, and order
denying Carreno post-conviction relief. This appeal ensued.
Discussion and Decision
1 Ind. Code § 35-48-4-7. 2 The U.S. Immigration and Nationality Act provides that an alien is deportable for violating “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.” 8 U.S.C.A. § 1227(a)(2)(B)(i) (2008).
Court of Appeals of Indiana | Memorandum Decision 49A04-1509-CR-1337 | April 15, 2016 Page 2 of 7 Standard of Review [3] The petitioner in a post-conviction proceeding bears the burden of establishing
the grounds for relief by a preponderance of the evidence. Ind. Post-Conviction
Rule 1(5); Fisher v. State, 810 N.E.2d 674, 679 (Ind. 2004). When appealing
from the denial of post-conviction relief, the petitioner stands in the position of
one appealing from a negative judgment. Id. On review, we will not reverse
the judgment of the post-conviction court unless the evidence as a whole
unerringly and unmistakably leads to a conclusion opposite that reached by the
post-conviction court. Id. A post-conviction court’s findings and judgment will
be reversed only upon a showing of clear error, that which leaves us with a
definite and firm conviction that a mistake has been made. Id. In this review,
findings of fact are accepted unless they are clearly erroneous and no deference
is accorded to conclusions of law. Id. The post-conviction court is the sole
judge of the weight of the evidence and the credibility of witnesses. Id.
Effectiveness of Trial Counsel [4] Carreno sought post-conviction relief based upon his claim that, had his counsel
advised him that deportation was a potential consequence of his guilty plea, he
would not have so pled. Carreno’s counsel testified that he communicated with
Carreno through an interpreter, but he did not inquire into the immigration
status of his clients.
[5] To prevail on a claim of ineffectiveness of counsel, a petitioner must
demonstrate both that his counsel’s performance was deficient and that he was
Court of Appeals of Indiana | Memorandum Decision 49A04-1509-CR-1337 | April 15, 2016 Page 3 of 7 prejudiced thereby. Strickland v. Washington, 466 U.S. 668 (1984)). “Because an
inability to satisfy either prong of this test is fatal to an ineffective assistance
claim, this court need not even evaluate counsel’s performance if the petitioner
suffered no prejudice from that performance.” Suarez v. State, 967 N.E.2d 552,
555 (Ind. Ct. App. 2012).
[6] When a petitioner has pled guilty, we must analyze his claim under Segura v.
State, 749 N.E.2d 496 (Ind. 2001). Segura recognizes two main categories of
ineffectiveness in relation to a guilty plea, the second of which is implicated
here. Clarke v. State, 974 N.E.2d 562, 565 (Ind. Ct. App. 2012). This second
category relates to improper advisement of penal consequences, which may
involve “claims of intimidation by exaggerated penalty or enticement by an
understated maximum exposure” or “claims of incorrect advice as to the law.”
Willoughby v. State, 792 N.E.2d 560, 563 (Ind. Ct. App. 2003). The failure to
advise a client of the possibility of deportation in the event of a conviction may,
under certain circumstances, constitute ineffective assistance of counsel. Segura,
749 N.E.2d at 500.
[7] A petitioner seeking post-conviction relief on grounds that a plea was entered
upon incorrect legal advice may not simply allege that he or she would not have
pled guilty with proper advice, nor is the petitioner’s conclusory testimony to
that effect sufficient to prove prejudice. Clarke, 974 N.E.2d at 565. Rather, the
petitioner must establish, by objective facts, circumstances that support the
conclusion that erroneous advice as to penal consequences was material to the
decision to plead. Id. It is appropriate to consider, along with the special
Court of Appeals of Indiana | Memorandum Decision 49A04-1509-CR-1337 | April 15, 2016 Page 4 of 7 circumstances presented, the strength of the State’s case, which a reasonable
defendant would take into account when pondering a guilty plea, and the
benefit conferred upon the defendant. Suarez, 967 N.E.2d at 556. “[I]f the post-
conviction court finds that the petitioner would have pleaded guilty even if
competently advised as to the penal consequences, the error in advice is
immaterial to the decision to plead and there is no prejudice.” Segura, 749
N.E.2d at 505.
[8] Carreno contends that special circumstances existed in his case, akin to those
present in Sial v. State, 862 N.E.2d 702 (Ind. Ct. App. 2007). The defendant in
Sial was a non-citizen resident of the United States who pled guilty to theft as a
Class D felony. His attorney did not advise him of the possibility of
deportation and Sial filed a post-conviction petition on grounds that he had
received ineffective assistance of counsel. The petition was denied and Sial
appealed. A panel of this Court reversed the denial, concluding that Sial had
sufficiently demonstrated special circumstances consistent with Segura, because
Sial was a twenty-year resident of the United States and had a wife and child in
this country. Id. at 706.
[9] Here, Carreno did not testify, but submitted an affidavit averring that he would
not have pled guilty had he been advised of the possibility of deportation.
Carreno’s wife testified, stating that she and Carreno had married in the United
Court of Appeals of Indiana | Memorandum Decision 49A04-1509-CR-1337 | April 15, 2016 Page 5 of 7 States and had a child soon thereafter.3 However, even if special circumstances
were found to exist, this does not end the inquiry. See Clarke, 974 N.E.2d at
566.
[10] The State’s evidence against Carreno developed when an Indiana State Police
officer responded to a report of a single-vehicle crash. He found Carreno, who
tested positive for consumption of alcohol, also in possession of hydrocodone.
Carreno did not produce a valid prescription for the drug, but offered an
explanation that it was his wife’s medication and he had been taking it for tooth
pain. Carreno initially faced charges of possession of a controlled substance,
speeding, operating a vehicle without a valid license, and failure to signal.
Carreno pled guilty to the most serious charge and the other charges were
dismissed. Upon pleading guilty, Carreno was given a minimal sentence for his
Class D felony, 180 days. I.C. § 35-50-2-7. He received actual credit and good
time credit for the day he was incarcerated, and was ordered to serve the
remaining 178 days on probation. Carreno was afforded the opportunity to
subsequently apply for alternative misdemeanor sentencing.
[11] The post-conviction court found that Carreno had demonstrated no prejudice
stemming from a lack of advice. We agree. Given the strength of the State’s
case and the benefits to Carreno accruing from his decision to plead guilty, we
conclude that Carreno has failed to show that there is an objectively reasonable
3 She did not testify as to Carreno’s country of origin or how long he had been in the United States.
Court of Appeals of Indiana | Memorandum Decision 49A04-1509-CR-1337 | April 15, 2016 Page 6 of 7 probability that he would have insisted on going to trial had his counsel advised
him of possible deportation.
Conclusion [12] Carreno has not established grounds for post-conviction relief.
[13] Affirmed.
Bradford, J., and Altice, J., concur.
Court of Appeals of Indiana | Memorandum Decision 49A04-1509-CR-1337 | April 15, 2016 Page 7 of 7