MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any Nov 09 2018, 10:14 am court except for the purpose of establishing CLERK the defense of res judicata, collateral Indiana Supreme Court Court of Appeals estoppel, or the law of the case. and Tax Court
APPELLANT PRO SE ATTORNEYS FOR APPELLEE Laurentino Zuniga Curtis T. Hill, Jr. Michigan City, Indiana Attorney General of Indiana James B. Martin Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Laurentino Zuniga, November 9, 2018 Appellant-Petitioner, Court of Appeals Case No. 02A03-1711-PC-2844 v. Appeal from the Allen Superior Court State of Indiana, The Honorable John F. Surbeck, Appellee-Respondent. Judge Trial Court Cause No. 02D04-0410-FA-60
Tavitas, Judge.
Court of Appeals of Indiana | Memorandum Decision 02A03-1711-PC-2844 | November 9, 2018 Page 1 of 15 Case Summary [1] Laurentino Zuniga, pro se, appeals the post-conviction court’s (“PC court”)
denial of his petition for post-conviction relief (“PCR”). We affirm.
Issues [2] Zuniga raises two issues on appeal, which we restate as follows:
I. Whether Zuniga entered his guilty plea with knowledge of his Boykin rights.
II. Whether Zuniga received ineffective assistance of counsel.
Facts [3] Zuniga was born in Mexico, and his native language is Spanish. The facts as
stated in Zuniga’s direct appeal are as follows:
In October 2004, while the [nine year-old] victim was sleeping in her bed, Zuniga woke her up, took her to his bedroom, and assaulted her. Specifically, Zuniga first placed his penis in the victim’s vagina. He later placed his penis in the victim’s anus. When the victim asked him to stop because it hurt, Zuniga refused. After the sexual assault, Zuniga cut the victim’s finger with a pin and made her “blood swear” not to tell anyone what he had done. Zuniga then pulled a religious medallion out of his wallet and forced the victim to kiss it and swear not to tell anyone what he had done. Zuniga also threatened to kill the victim if she told anyone what had happened.
When the victim’s mother returned home, she found the naked victim standing in her bedroom with blood running down her legs. When her mother asked her what had happened, the victim held out her finger and said, “Mommy, I can't tell you. I can’t tell you.” The victim was taken to the hospital where it took Court of Appeals of Indiana | Memorandum Decision 02A03-1711-PC-2844 | November 9, 2018 Page 2 of 15 hours of surgery to stop the bleeding and repair her vagina. She was in severe pain for a week after surgery and uncomfortable for several weeks after that because of a series of infections, and has suffered a permanent loss of hymenal tissue. The victim still screams out in the middle of the night, and her mother now takes medications for depression and anxiety.
Zuniga v. State, No. 02A03-0509-CR-410, slip op. at 2-3 (Ind. Ct. App. Mar. 6,
2006) (internal citations omitted). On October 15, 2004, Zuniga was charged
with two counts of child molesting, Class A felonies, and one count of child
molesting, a Class C felony.
[4] The trial court conducted Zuniga’s initial hearing on October 20, 2004.
Beforehand, Zuniga watched a Spanish language advisement of rights video
recording (“advisements video”). A Spanish-English interpreter was present as
Zuniga watched the advisements video. Zuniga did not express any confusion
or need for clarification. Under questioning, the interpreter represented to the
trial court that Zuniga had both watched and understood the advisements
video. See Exhibits p. 92. The English translation of the advisements video,
which included an advisement of a defendant’s Boykin 1 rights, provided as
follows:
1 In Boykin v. Alabama, the United States Supreme Court declared that the record for a guilty plea must show that the defendant voluntarily and understandingly waived the following federal constitutional rights: (1) “the privilege against compulsory self-incrimination”; (2) “the right to trial by jury”; and (3) “the right to confront one’s accusers.” Ponce v. State, 9 N.E.3d 1265, 1269 n.3 (Ind. 2014) (quoting Boykin v. Alabama, 395 U.S. 238, 242-43 (1969)).
Court of Appeals of Indiana | Memorandum Decision 02A03-1711-PC-2844 | November 9, 2018 Page 3 of 15 You have the right to a speedy and public trial by a court or by a jury in the county where the crime was committed.
If there is a trial you are presumed innocent unless and until the state of Indiana proves your guilt beyond a reasonable doubt. You have the right to confront all the witnesses against you and to see, listen to, question and cross-examine those witnesses. You have the right to demand that the witnesses are present in any hearing or trial and to witness in your favor and the court will help you in that right to issue citations. You have the right to remain silent [sic] they can’t demand that you give any testimony or that you make any statement against yourself or against any other person. On the other hand, you have the right to be heard yourself alone or your attorney in any hearing or trial. Please remember, however that, anything that you say may be used against you in the court.
Id. at 87.
[5] On December 27, 2004, the State tendered to Zuniga’s counsel a thirty-year
plea offer that was written in English. Under the plea offer, Zuniga would
plead guilty to one count of child molesting, a Class A felony, and one count of
child molesting, a Class C felony, and Zuniga would serve concurrent sentences
totaling thirty years. Zuniga alleges that, without providing an interpreter and
without explaining the associated risks, benefits, and implications, Attorney
Miller threw the plea offer down in front of Zuniga and instructed Zuniga to
sign. Zuniga rejected the plea offer.
[6] On May 17, 2005, Zuniga pleaded guilty, pursuant to an open plea, to two
counts of child molesting, Class A felonies, and one count of child molesting, a
Class C felony. No written plea agreement was tendered to the trial court.
Zuniga appeared at the guilty plea hearing with counsel, Attorney P. Stephen Court of Appeals of Indiana | Memorandum Decision 02A03-1711-PC-2844 | November 9, 2018 Page 4 of 15 Miller. An interpreter translated the guilty plea hearing. During the hearing,
Zuniga occasionally and readily expressed confusion and sought additional
clarification. See Appellant’s App. Vol. II p. 106 (“At the hearing, on several
occasions, Zuniga asked the court to repeat questions because he did not
understand.”).
[7] On June 17, 2005, Zuniga moved to withdraw his guilty plea; the trial court
denied Zuniga’s motion. At the sentencing hearing, on June 20, 2005, the trial
court imposed consecutive thirty-year sentences on the two Class A felonies and
a concurrent four-year sentence on the Class C felony. Zuniga, thus, received
an aggregate sixty-year sentence.
[8] On direct appeal in 2006, Zuniga argued that the trial court erred in imposing
consecutive sentences. We concluded that the trial court found three proper
aggravating circumstances that supported its imposition of consecutive
sentences, and we affirmed Zuniga’s sentence. Zuniga, No. 02A03-0509-CR-
410, slip op. at 6-7.
[9] On November 20, 2015, Zuniga filed a PCR petition by affidavit, wherein he
alleged that: (1) he was not properly advised in Spanish of his Boykin rights; (2)
Attorney Miller failed to properly explain the State’s first thirty-year plea offer,
which Zuniga would have accepted, had he understood it; and (3) Zuniga
watched the advisements video, but did not understand the advisements.
[10] In opposition to Zuniga’s PCR petition, the State tendered the affidavit of
Attorney Miller. Attorney Miller averred that he did not provide an interpreter
Court of Appeals of Indiana | Memorandum Decision 02A03-1711-PC-2844 | November 9, 2018 Page 5 of 15 when he discussed the State’s first plea offer with Zuniga because Attorney
Miller believed that Zuniga could and did understand the discussion. Attorney
Miller also denied that he instructed Zuniga to sign the plea offer without first
explaining the associated risks, benefits, and implications.
[11] On or about October 11, 2014, the trial court learned that the interpreter, who
assisted at Zuniga’s guilty plea hearing, had incorrectly translated portions of
the guilty plea proceedings, including the Boykin advisements. 2 On April 14,
2016, the PC court determined that an evidentiary hearing was necessary on the
limited question of whether Zuniga was properly advised of his Boykin rights
before Zuniga entered his guilty plea. The PC court conducted the evidentiary
hearing on November 18, 2016.
2 As the PC court later found:
The guilty plea transcript indicates that the three rights designated in Boykin v. Alabama, 395 US. 238 (1969) – the right to trial by jury, the right to confront and cross-examine witnesses, and the right against compelled self-incrimination – were not correctly translated.
As to the right to a jury trial, Mr. Zuniga was advised only that he had “el derecho a ir a un juzgado” (the right to go to a courthouse). He was advised that he had “el derecho a tener testigos en contra suya y a favor” (the right to have witnesses against you and in your favor), but nothing was said about cross- examining the witnesses. The right to remain silent (el derecha de permanecer en silencio) was correctly translated, but the remainder of the advisement on that point (“no puede decir nada a favor suyo o en contra suyo,” “you cannot say anything on your behalf or against you”) appeared to deny Mr. Zuniga the right to testify on his own behalf.
Appellant’s App. Vol. II p. 47 (internal citations omitted); Exhibits pp. 6-7.
Court of Appeals of Indiana | Memorandum Decision 02A03-1711-PC-2844 | November 9, 2018 Page 6 of 15 [12] On October 23, 2017, the PC court entered its findings of fact and conclusions
of law. The PC court concluded that: (1) although Zuniga’s Boykin rights were
incorrectly translated at the guilty plea hearing, the Boykin rights were correctly
stated in the advisements video; (2) Zuniga acknowledged that he was shown
the advisements video and “made no complaint about not understanding the
advisement at that time”; (3) “[a]side from the Boykin rights, Mr. Zuniga . . .
identified no specific matters as to which he lacked knowledge as a result of
inadequate translation of advisements given by the Court at the guilty plea
hearing”; (4) Zuniga failed to show that such knowledge would have changed
his decision to plead guilty; and (5) Attorney Miller did not render ineffective
assistance of counsel. Appellant’s App. Vol. II p. 52. Thus, the PC court denied
Zuniga’s petition for PCR. Zuniga now appeals. 3
Analysis [13] Zuniga appeals the denial of his PCR petition. Our supreme court has stated:
The petitioner in a post-conviction proceeding bears the burden of establishing grounds for relief by a preponderance of the evidence. When appealing from the denial of post-conviction relief, the petitioner stands in the position of one appealing from a negative judgment. To prevail on appeal from the denial of post-conviction relief, a petitioner must show that the evidence as a whole leads unerringly and unmistakably to a conclusion
3 After submitting his appellant’s brief, Zuniga filed a motion to enter facts outside the record with a verified affidavit. Zuniga’s motion is denied, as the record on appeal is sufficient to address the dispositive issues discussed in this opinion.
Court of Appeals of Indiana | Memorandum Decision 02A03-1711-PC-2844 | November 9, 2018 Page 7 of 15 opposite that reached by the post-conviction court. [Where, as here, a post-conviction court has made findings of fact and conclusions of law in accordance with Indiana Post-Conviction Rule 1(6), we] do not defer to the post-conviction court’s legal conclusions[.] 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.
Hollowell v. State, 19 N.E.3d 263, 268-69 (Ind. 2014) (internal quotations and
citations omitted). As the clearly erroneous standard “is a review for
sufficiency of evidence, we neither reweigh the evidence nor determine the
credibility of witnesses.” State v. Greene, 16 N.E.3d 416, 418 (Ind. 2014).
“Rather, we ‘consider only the evidence that supports that judgment and the
reasonable inferences to be drawn from that evidence.’” Id. (quoting Ben-Yisrayl
v. State, 738 N.E.2d 253, 258-59 (Ind. 2000)).
I. Boykin Rights
[14] Zuniga argues that he did not enter his guilty plea knowingly or voluntarily
because the interpreter at his guilty plea hearing failed to correctly translate the
trial court’s Boykin advisement. A PC proceeding is a proper vehicle for
challenging a guilty plea, and we look at the evidence before the PC court that
supports its determination that a guilty plea was voluntary, knowing, and
intelligent. Moffitt v. State, 817 N.E.2d 239, 248-49 (Ind. Ct. App. 2004), trans.
denied.
[15] “In considering the voluntariness of a guilty plea, we start with the standard
that the record of the guilty plea proceeding must demonstrate that the Court of Appeals of Indiana | Memorandum Decision 02A03-1711-PC-2844 | November 9, 2018 Page 8 of 15 defendant was advised of his constitutional rights and knowingly and
voluntarily waived them.” Ponce v. State, 9 N.E.3d 1265, 1272 (Ind. 2014)
(citing Boykin, 395 U.S. at 242). “[A] formal advisement and waiver are not
required; rather, the defendant ‘must have only known that he was waiving his
Boykin rights by pleading guilty.’” Dewitt v. State, 755 N.E.2d 167, 171 (Ind.
2001). Boykin requires that a trial court accepting a guilty plea “must be
satisfied that an accused is aware of his right against self-incrimination, his right
to trial by jury, and his right to confront his accusers.” Winkleman v. State, 22
N.E.3d 844, 851 (Ind. Ct. App. 2014) (citing Boykin, 395 U.S. at 243).
[16] Where a defendant demonstrates that the trial court failed to properly give a
Boykin advisement during the guilty plea hearing, the defendant has met his
threshold burden for obtaining PCR. Ponce, 9 N.E.3d at 1270. The State,
however, may prove “that the petitioner nonetheless knew that he was waiving
such rights.” Id. at 1273; see Youngblood v. State, 542 N.E.2d 188, 189 (Ind.
1989) (“. . . [O]nce a state prisoner has demonstrated that the plea taking was
not conducted in accordance with Boykin, the [S]tate may, if it affirmatively
proves in a post-conviction hearing that the plea was voluntary and intelligent,
obviate the necessity of vacating the plea.”). “[W]here the record of the guilty
plea hearing itself does not establish that a defendant was properly advised of
and waived his rights, evidence outside of that record may be used to establish a
defendant’s understanding.” Ponce, 9 N.E.3d at 1272.
[17] Here, although the trial court gave the Boykin advisements at Zuniga’s guilty
plea hearing, it is undisputed that the interpreter failed to translate them Court of Appeals of Indiana | Memorandum Decision 02A03-1711-PC-2844 | November 9, 2018 Page 9 of 15 correctly. Thus, the trial court effectively failed to give the advisement. See id.
at 1273 (finding no difference between a translated “advisement from the
mouth of the court-appointed interpreter” and the same advisement from the
trial court).
[18] To prove that Zuniga made a knowing waiver of his Boykin rights, the State
introduced:
. . . (1) the rights advisement videotape played before the initial hearing; (2) a DVD copy of the rights advisement videotape, produced for the convenience of the Court in viewing the rights advisement; (3) testimony of Jon Hallett, who produced the DVD copy, that it contained a true and accurate copy of the contents of the videotape; (4) an affidavit of certified Spanish- English translator Diana Vegas, stating that she had listened to the DVD copy of the rights advisement and produced a Spanish transcript and an English translation of the portion of the advisement related to constitutional rights, both of which were attached to the affidavit; and (5) a transcript of Mr. Zuniga’s initial hearing.
Appellant’s App. Vol. II pp. 47-48. The State also presented evidence that: (1)
an interpreter was present when Zuniga viewed the video recording; (2) the trial
court asked the interpreter whether Zuniga understood the advisements; (3) the
interpreter responded affirmatively; and (4) Zuniga did not contradict the
interpreter or otherwise indicate to the trial court – as Zuniga did ably at the
guilty plea hearing – that Zuniga was confused by the advisements video.
[19] Based on the foregoing, we conclude that, although Zuniga carried his initial
burden of demonstrating that he was improperly advised of his Boykin rights at
Court of Appeals of Indiana | Memorandum Decision 02A03-1711-PC-2844 | November 9, 2018 Page 10 of 15 the guilty plea hearing, the State successfully demonstrated that Zuniga
understood his constitutional rights at the initial hearing. Zuniga’s testimony,
at the PCR hearing—that he viewed, but did not understand, the advisements
video—is an invitation to us to reweigh the evidence, which we cannot do. See
Ben-Yisrayl, 738 N.E.2d at 258-59.
[20] The PC court’s finding that Zuniga understood and waived his Boykin rights is
not clearly erroneous. Considering the evidence that supports the judgment and
the reasonable inferences therefrom, we cannot say that the evidence, as a
whole, leads unerringly and unmistakably to a decision opposite that reached
by the PC court.
II. Ineffective Assistance of Counsel
[21] Zuniga also appeals the PC court’s denial of his claim of ineffective assistance
of trial counsel. Specifically, Zuniga maintains that, because Attorney Miller
did not provide an interpreter, Zuniga unwittingly rejected the State’s favorable
plea offer that would have allowed Zuniga to serve concurrent sentences,
totaling thirty years, for a Class A felony and a Class C felony. Zuniga
ultimately pleaded guilty, with sentencing open to the trial court, to two Class
A felonies and a Class C felony, and he was sentenced to an aggregate sentence
of sixty years.
[22] To prevail on a claim of ineffective assistance of counsel, a petitioner must
demonstrate both that: (1) his or her counsel’s performance was deficient, and
(2) the petitioner was prejudiced by the deficient performance. Ben-Yisrayl v.
Court of Appeals of Indiana | Memorandum Decision 02A03-1711-PC-2844 | November 9, 2018 Page 11 of 15 State, 729 N.E.2d 102, 106 (Ind. 2000) (citing Strickland v. Washington, 466 U.S.
668, 687, 104 S. Ct. 2052, 2064 (1984)), reh’g denied, cert. denied, 534 U.S. 830,
122 S. Ct. 73 (2001). The failure to satisfy either prong will cause the claim to
fail. Grinstead v. State, 845 N.E.2d 1027, 1031 (Ind. 2006). Ineffective
assistance of counsel claims, thus, can be resolved by a prejudice analysis alone.
Id.
[23] An attorney’s performance is deficient if it falls below an objective standard of
reasonableness based on prevailing professional norms. Woodson v. State, 961
N.E.2d 1035, 1041 (Ind. 2012). A strong presumption arises that counsel
rendered adequate assistance and made all significant decisions in the exercise
of reasonable professional judgment. McCullough v. State, 973 N.E.2d 62, 74
(Ind. Ct. App. 2012), trans. denied. “[A] defendant must offer strong and
convincing evidence to overcome this presumption.” Id. Isolated poor strategy,
inexperience, or bad tactics does not necessarily constitute ineffective assistance
of counsel. Id.
[24] In analyzing prejudice in the context of a guilty plea, we review such ineffective
assistance of counsel claims under Segura v. State, 749 N.E.2d 496 (Ind. 2001).
Segura created two categories of claims and enunciated different treatments of
each respective category, depending upon whether the ineffective assistance
allegation related to (1) an unutilized defense or failure to mitigate a penalty, or
(2) an improper advisement of penal consequences. Willoughby v. State, 792
N.E.2d 560, 563 (Ind. Ct. App. 2003) (citing Segura, 749 N.E.2d at 507), trans.
denied. Court of Appeals of Indiana | Memorandum Decision 02A03-1711-PC-2844 | November 9, 2018 Page 12 of 15 [25] Further, as a panel of this court recently opined:
“To show prejudice from ineffective assistance of counsel where a plea offer has lapsed or been rejected because of counsel’s deficient performance, defendants must demonstrate a reasonable probability they would have accepted the earlier plea offer had they been afforded effective assistance of counsel.” In addition to showing a reasonable probability that the deal would not have been cancelled by the prosecutor or rejected by the trial court, defendants must “show a reasonable probability that the end result of the criminal process would have been more favorable by reason of a plea to a lesser charge or a sentence of less prison time.”
Lindsey v. State, 71 N.E.3d 428, 434 (Ind. Ct. App. 2017) (quoting Missouri v.
Frye, 566 U.S. 134, 132 S. Ct. 1399 (2012)), (internal citations omitted), trans.
denied, cert. denied, 138 S. Ct. 636 (2018).
[26] On appeal, Zuniga argues, at-length, that Attorney Miller’s failure to provide an
interpreter “den[ied] Zuniga access to the Court.” Appellant’s Br. p. 29.
Zuniga argues:
At no time did counsel communicate with Zuniga during pretrial in a language that Zuniga clearly understood. Counsel failed to understand that although Zuniga understood some basic English words, Zuniga did not understand enough of the English language, and in particular the professional language of the legal system, to clearly and completely communicate.
Appellant’s App. Vol. II p. 154. It is difficult to reconcile Zuniga’s contentions
now, in which he characterizes himself as rendered virtually absent from his
Court of Appeals of Indiana | Memorandum Decision 02A03-1711-PC-2844 | November 9, 2018 Page 13 of 15 own proceedings, versus Zuniga’s PCR petition, in which he recounts his
discussions with Attorney Miller in great detail as follows:
Counsel informed Zuniga that “you have no defense, you must plea[d] guilty. If you plead guilty, you will spend only a few years in prison. If you go to trial, you will spend the rest of your life in prison.”
*****
Counsel abandoned Zuniga’s interests from the very beginning in this case, and after failing to perform any pretrial investigation, [Counsel] informed Zuniga “there is no defense. I will get you a plea bargain. You cannot go to trial with this. If you do, you will spend the rest of your life in prison.”
Appellant’s App. Vol. II pp. 157, 159 (emphasis added).
[27] As the PC court found, the record calls into question Zuniga’s claim of being
rendered virtually absent from his own proceedings and, instead, supports
Attorney Miller’s averment that Zuniga possessed sufficient English-language
capacity to comprehend, digest, and later recount Attorney Miller’s discussions.
As the State argues, “despite [Zuniga’s] claimed lack of proficiency in English,
[Zuniga] purports to quote [Attorney] Miller verbatim . . . with respect to
advisements Miller gave [Zuniga] with respect to the plea offer[.]” Appellee’s
Br. p. 19. As the PC court found, and we agree, “Zuniga has shown only that
he now wishes—too late—that he had accepted the 30-year offer.” Appellant’s
App. Vol. II pp. 52-54 (internal citations omitted).
Court of Appeals of Indiana | Memorandum Decision 02A03-1711-PC-2844 | November 9, 2018 Page 14 of 15 [28] Our supreme court recently reiterated Indiana’s commitment to ensuring “a
foreign language defendant’s capacity to understand and appreciate the
proceedings, to participate with his counsel, to confront his accusers, and to
waive rights knowingly and intelligently”; these rights are “undermined without
an interpreter actively participating in his defense.” Ponce, 9 N.E.3d at 1272. In
our view, Zuniga has attempted here to exaggerate his challenges with the
English language in an effort to invoke and exploit Indiana’s commitment to
fair access for foreign language defendants. From its vantage point of being
able to view and hear the witnesses and to assess their credibility, the PC court
regarded Zuniga’s account with skepticism and did not find him credible.
[29] Based on the foregoing, the PC court’s finding that Attorney Miller did not
render ineffective assistance of counsel is not clearly erroneous and does not
leave us with a definite and firm conviction that a mistake has been made. See
Ben-Yisrayl, 719 N.E.2d at 106.
Conclusion [30] The PC court properly denied Zuniga’s claims that Zuniga did not enter his
guilty plea with knowledge of his Boykin rights and that Zuniga received
ineffective assistance of trial counsel. We affirm.
[31] Affirmed.
[32] Brown, J., and Altice, J., concur.
Court of Appeals of Indiana | Memorandum Decision 02A03-1711-PC-2844 | November 9, 2018 Page 15 of 15