FILED May 16 2023, 10:13 am
CLERK Indiana Supreme Court Court of Appeals and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Alexander E. Budzenski Theodore E. Rokita Indianapolis, Indiana Attorney General of Indiana
Jesse R. Drum Assistant Section Chief, Criminal Appeals Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Porfirio Marin, May 16, 2023 Appellant-Petitioner, Court of Appeals Case No. 22A-PC-3006 v. Appeal from the Marion Superior Court State of Indiana, The Honorable Matthew E. Appellee-Respondent. Symons, Magistrate Trial Court Cause No. 49D29-2001-PC-3926
Opinion by Judge Bradford Judges May and Mathias concur.
Bradford, Judge.
Court of Appeals of Indiana | Opinion 22A-PC-3006 | May 16, 2023 Page 1 of 20 Case Summary [1] In October of 2004, Porfiro Marin pled guilty to Class D felony attempted
sexual misconduct with a minor. Fifteen years later, Marin filed a petition for
post-conviction relief (“PCR”), in which he alleged that the factual basis that
had been entered in connection to his guilty plea was insufficient to support his
conviction and that his trial counsel had provided him with ineffective
assistance. Following a hearing, the post-conviction court denied Marin’s PCR
petition. We affirm.
Facts and Procedural History [2] Marin was born in Mexico on September 15, 1984. Marin has resided in the
United States since he was four years old and has resided in Indianapolis since
1999. Marin received his permanent-resident status on or about November 28,
2003.
[3] On April 7, 2004, the State charged Marin with one count of Class B felony
child molestation, alleging that “on or about April 1, 2004, [Marin] did perform
or submit to sexual intercourse with [S.D.], and [S.D.] was a child who was
then under the age of fourteen (14) years, that is thirteen (13) years of age[.]”1
Ex. Vol. p. 56. Six months later, on October 7, 2004, the State and Marin
entered into a plea agreement, under the terms of which the State would dismiss
1 S.D. was born on August 17, 1990.
Court of Appeals of Indiana | Opinion 22A-PC-3006 | May 16, 2023 Page 2 of 20 the Class B felony charge and Marin would plead guilty to Class D felony
attempted sexual misconduct with a minor. The plea agreement left sentencing
to the trial court but capped the executed portion of Marin’s sentence at 364
days.
[4] On November 5, 2004, the trial court conducted a guilty-plea hearing at which
the following exchange occurred:
THE COURT: … Before I can consider accepting your plea, it’s real important that you understand everything that’s going on. If you don’t understand anything, please interrupt me through your attorney and through the interpreter, and we’ll take time to explain it to you.
You are the defendant, Porfirio Marin?
THE INTERPRETER: Yes.
****
THE COURT: … I’m going to read this to you through the interpreter, what you’re offering to plead guilty to: On or about April l, 2004, in Marion County, [S]tate of Indiana, the following named defendant, Porfirio Marin, who was at the time over the age of 18 years, attempted to commit the crime of sexual misconduct with a minor with another person, to-wit: S.D., who legally to be between the ages of 14 and 16, by submitting her to touching and fondling with the intent of satisfying his own sexual desires.
That, sir, is a Class D felony you’re offering to plead guilty to. Do you understand that?
Court of Appeals of Indiana | Opinion 22A-PC-3006 | May 16, 2023 Page 3 of 20 THE COURT: Do you understand in order for you to be guilty of what you’d like to plead guilty to, the facts I’ve read to you must be true? Do you understand?
THE COURT: And by pleading guilty, you’re admitting true the facts that I just read to you. Do you understand that?
Ex. Vol. pp. 13–15.2 Marin indicated that he understood that although he had
originally been charged with Class B felony child molestation, pursuant to the
terms of his plea agreement, he had agreed to plead guilty to Class D felony
attempted sexual misconduct with a minor. Marin further indicated that he
was satisfied with the manner in which his attorney had represented him,
understood the terms of his plea agreement, and wished to plead guilty.
[5] The State then offered the following factual basis:
Were the State to proceed to trial, it would prove beyond a reasonable doubt that on or about April 1, 2004, in Marion County, [S]tate of Indiana, at the Days Inn Motel on South Keystone, the defendant, Porfirio Marin, did engage in sexual contact with S.D., whom at the time he believed to have been between the ages of 14 and 16 years old, by engaging in sexual contact, which included touching and fondling, with the intent of
2 The trial court also confirmed that Marin understood that by pleading guilty, he would waive the following rights: the right to a public and speedy trial, the right to confront and cross-examine the witnesses against him, the right to have compulsory process for obtaining witnesses in his favor, the right to require the State to prove his guilty beyond a reasonable doubt, the right to remain silent, the right to present evidence on his behalf, and the right to appeal his conviction.
Court of Appeals of Indiana | Opinion 22A-PC-3006 | May 16, 2023 Page 4 of 20 satisfying his own sexual desires.
Further, Your Honor, the State would prove that Mr. Marin, the defendant, was over the age of 18 at the time of this offense.
The State would also present testimony that Mr. Marin did confess to Detective John Arvin of the Indianapolis Police Department that he did engage in sexual contact with S.D.[,] all of which is contrary to the stated laws of Indiana.
Ex. Vol. pp. 21–22. The following exchange then took place between Marin
and the trial court:
THE COURT: Did you hear the factual basis as read by the prosecutor?
THE COURT: Are those facts correct?
THE COURT: Having heard the factual basis, do you still wish to enter into a guilty plea?
THE COURT: Do you have any questions regarding your rights or any other matters?
THE DEFENDANT: No.
THE COURT: Well, I’m going to make a finding there is a factual basis to accept your guilty plea to the amended information, Attempted Sexual Misconduct with a Minor, Class
Court of Appeals of Indiana | Opinion 22A-PC-3006 | May 16, 2023 Page 5 of 20 D felony, enter judgment of conviction, and accept the plea agreement made between Mr. Marin and [ ]the State.
Ex. Vol. pp. 22–23.
[6] After accepting Marin’s guilty plea, the trial court conducted a sentencing
hearing, during which Marin apologized and indicated that he understood that
he had “used poor judgment.” Ex. Vol. p. 25. Marin’s counsel argued that
Marin was a good candidate for probation and requested that the trial court
sentence him to 364 days of probation. Marin’s counsel further argued that
“the lesson has been learned … has been captured pretty well by my client that
this was a very stupid act, very young, foolish, immature and … just
irresponsible poor judgment on his part that he will not repeat again[.]” Ex.
Vol. pp. 28–29. In response, the State argued that
[T]his is a situation where there … are two people. The victim in this case, S.D., is under the age of 14. It was defendant’s belief at the time, according to the plea, that she was between the ages of 14 and 16.
So at the very least what this Court is aware of is that the defendant did engage in a course of conduct that he sought with someone he thought was between the age of 16 and 14 at a time when he was … over 18. And it’s the State’s concern with this, Your Honor, that … this be very clearly shown to the defendant as being the wrong course of conduct.
And the State does have concerns that the period of 364 days on sex offender probation, or on probation of any kind, will not be sufficient to clarify for the defendant how egregious his action was. We would ask that the maximum be imposed in this case
Court of Appeals of Indiana | Opinion 22A-PC-3006 | May 16, 2023 Page 6 of 20 and that 364 days be executed.
… I don’t think the 364 days probation is going to give [Marin] sufficient time to change in accordance to what’s necessary for him not to commit this in the future.
And I don’t think there is any … indication on his history that this is a pattern, this is recurring. But I don’t think that’s necessary to show at this point given the situation, Your Honor.
Ex. Vol. pp. 34–36. The trial court sentenced Marin “to a year on Community
Corrections.”3 Ex. Vol. p. 37.
[7] More than a decade later, during the COVID-19 pandemic, Marin traveled to
Mexico for his grandmother’s funeral. On his return to the United States,
Marin was detained by federal immigration authorities. Marin claims that he
was told “to clear [his] case” in order to “get [his] green card back.” PCR Tr. p.
8.
[8] Thereafter, on January 28, 2020, Marin filed a PCR petition, in which he
alleged that the factual basis entered during the guilty-plea hearing had been
insufficient to support his conviction and that his trial counsel had provided
him with ineffective assistance. The post-conviction court conducted an
evidentiary hearing on January 18, 2022, at which both Marin and his trial
3 The abstract of judgment was subsequently amended to reflect that the executed portion of Marin’s sentence was 364 days rather than a year.
Court of Appeals of Indiana | Opinion 22A-PC-3006 | May 16, 2023 Page 7 of 20 counsel testified. On November 17, 2022, the post-conviction court denied
Marin’s PCR petition.
Discussion and Decision [9] “Post-conviction procedures do not afford the petitioner with a super-appeal.”
Williams v. State, 706 N.E.2d 149, 153 (Ind. 1999). “Instead, they create a
narrow remedy for subsequent collateral challenges to convictions, challenges
which must be based on grounds enumerated in the post-conviction rules.” Id.
A petitioner who has been denied post-conviction relief appeals from a negative
judgment and as a result, faces a rigorous standard of review on appeal. Dewitt
v. State, 755 N.E.2d 167, 169 (Ind. 2001); Collier v. State, 715 N.E.2d 940, 942
(Ind. Ct. App. 1999), trans. denied.
[10] Post-conviction proceedings are civil in nature. Stevens v. State, 770 N.E.2d 739,
745 (Ind. 2002). Therefore, in order to prevail, a petitioner must establish his
claims by a preponderance of the evidence. Ind. Post-Conviction Rule 1(5);
Stevens, 770 N.E.2d at 745. When appealing from the denial of a PCR petition,
a petitioner must convince this court that the evidence, taken as a whole, “leads
unerringly and unmistakably to a decision opposite that reached by the post-
conviction court.” Stevens, 770 N.E.2d at 745. “In other words, the defendant
must convince this Court that there is no way within the law that the court
below could have reached the decision it did.” Id. (emphasis in original). “It is
only where the evidence is without conflict and leads to but one conclusion,
and the post-conviction court has reached the opposite conclusion, that its
Court of Appeals of Indiana | Opinion 22A-PC-3006 | May 16, 2023 Page 8 of 20 decision will be disturbed as contrary to law.” Godby v. State, 809 N.E.2d 480,
482 (Ind. Ct. App. 2004), trans. denied. “The post-conviction court is the sole
judge of the weight of the evidence and the credibility of the witnesses.” Fisher
v. State, 810 N.E.2d 674, 679 (Ind. 2004).
I. Sufficient Factual Basis [11] At all times relevant to the instant matter, Indiana Code section 35-35-1-3(b)
has provided that an Indiana court cannot accept a guilty plea unless it is
satisfied that there is an adequate factual basis for the plea.
The purpose of the factual basis requirement is to ensure that a person who pleads guilty is truly guilty. Butler v. State, 658 N.E.2d 72[, 76] (Ind. 1995). As the ABA standards put it, the court should satisfy itself that “the defendant could be convicted if he or she elected to stand trial.” ABA Standards for Criminal Justice Pleas of Guilty 65 (3d. ed. 1999). “[A] factual basis exists when there is evidence about the elements of the crime from which a court could conclude that the defendant is guilty.” Butler, 658 N.E.2d at 77. The presentation about facts need not prove guilt beyond a reasonable doubt. Id. The original trial court’s determination that the factual basis was adequate is clothed with the presumption of correctness. See id. We will only set aside the trial court’s acceptance of a guilty plea for an abuse of discretion. Id.
State v. Cooper, 935 N.E.2d 146, 150 (Ind. 2010). “In light of those declared
purposes for the factual basis requirements, claims about omissions in the
factual basis have been unavailing when the omissions do not seem to
demonstrate doubt about actual guilt.” Id. “[R]elatively minimal evidence has
Court of Appeals of Indiana | Opinion 22A-PC-3006 | May 16, 2023 Page 9 of 20 sometimes been held adequate” to establish a factual basis. Butler, 658 N.E.2d
at 77. Moreover, “prejudice must be established before post-conviction relief
can be granted on grounds of failure to establish a factual basis for a guilty
plea.” State v. J.E., 723 N.E.2d 863, 864 (Ind. 2000).
[12] Marin pled guilty to Class D felony attempted sexual misconduct with a minor.
At the time of his guilty plea, the State was required to prove that Marin was at
least eighteen years of age and that “with a child at least fourteen (14) years of
age but less than sixteen (16) years of age,” he attempted4 to perform or submit
to “any fondling or touching, of either the child or the older person, with intent
to arouse or to satisfy the sexual desires of either the child or the older person.”
Ind. Code § 35-42-4-9(b) (2003).
[13] Again, during the guilty-plea hearing, the State offered the following factual
basis for Marin’s guilty plea:
Were the State to proceed to trial, it would prove beyond a reasonable doubt that on or about April 1, 2004, in Marion County, [S]tate of Indiana, at the Days Inn Motel on South Keystone, the defendant, Porfirio Marin, did engage in sexual contact with S.D., whom at the time he believed to have been between the ages of 14 and 16 years old, by engaging in sexual contact, which included touching and fondling, with the intent of satisfying his own sexual desires.
4 “A person attempts to commit a crime when, acting with the culpability required for commission of the crime, he engages in conduct that constitutes a substantial step toward commission of the crime.” Ind. Code § 35-41-5-1(a) (2003). “An attempt to commit a crime is a felony … of the same class as the crime attempted.” Ind. Code § 35-41-5-1(a) (2003).
Court of Appeals of Indiana | Opinion 22A-PC-3006 | May 16, 2023 Page 10 of 20 Further, Your Honor, the State would prove that Mr. Marin, the defendant, was over the age of 18 at the time of this offense.
The State would also present testimony that Mr. Marin did confess to Detective John Arvin of the Indianapolis Police Department that he did engage in sexual contact with S.D.[,] all of which is contrary to the stated laws of Indiana.
Ex. Vol. pp. 21–22. Marin stated during the guilty-plea hearing that he agreed
with the factual basis and wished to plead guilty. Marin also stated that he
understood that in order to plead guilty, the facts contained in the factual basis
must be true. Marin did not challenge the sufficiency of the factual basis at the
time he entered his guilty plea.
[14] Marin now contends that the factual basis was inadequate because its wording
included both criminal and non-criminal behavior, i.e., attempted sexual
intercourse with a child under the age of sixteen and attempted sexual
intercourse with a sixteen-year-old. The State concedes that it was error to use
language in establishing the factual basis that included the age of sixteen but
asserts that Marin has “failed to prove that he was prejudiced by the error” as
the record clearly established that he was alleged to have engaged in sexual
conduct with a child under the age of sixteen. Appellee’s Br. p. 12. We agree
with the State.
[15] In an apparent effort to limit his potential criminal exposure, Marin agreed to
plead guilty to Class D felony attempted sexual misconduct with a minor in
exchange for dismissal of the Class B felony charge. In negotiating a guilty
Court of Appeals of Indiana | Opinion 22A-PC-3006 | May 16, 2023 Page 11 of 20 plea, “[e]ach party bargains to include or exclude certain terms and each party
receives substantial benefits by arriving at an agreement.” Bethea v. State, 983
N.E.2d 1134, 1144 (Ind. 2013) (citing Wright v. State, 700 N.E.2d 1153, 1155
(Ind. Ct. App. 1998)). “[A] plea agreement is a contract, ‘an explicit agreement
between the State and defendant,’ which, if accepted by the trial court, is
binding upon all parties.” Id. (quoting Griffin v. State, 756 N.E.2d 572, 574 (Ind.
Ct. App. 2001), trans. denied). The parties negotiated the terms of their
agreement, and each received substantial benefits. Through the parties’ plea
negotiations, Marin lessened his criminal exposure from a Class B felony to a
Class D felony and capped the executed portion of his sentence at 364 days.
After the trial court accepted the plea agreement, it entered judgment of
conviction against Marin for a Class D felony and sentenced him in accordance
with the terms of the parties’ agreement. Marin, therefore, received the benefit
of his bargain.
[16] We note that Class D felony sexual misconduct with a minor involves victims
of a different age range than Class B felony child molesting and is therefore not
actually a lesser-included offense of Class B felony child molesting. However,
the parties seem to have treated it as such, allowing Marin the opportunity to
plead guilty to a lower-level offense. We thereby find this case to be
comparable to State v. Sanders, 596 N.E.2d 225 (Ind. 1992), a case in which a
defendant pled guilty to a lesser-included offense for which he was never
actually charged in exchange for dismissal of a more serious criminal charge.
In Sanders, the Indiana Supreme Court considered whether Sanders’s guilty plea
Court of Appeals of Indiana | Opinion 22A-PC-3006 | May 16, 2023 Page 12 of 20 to involuntary manslaughter was supported by the record. Sanders had been
charged with murder after he had shot and killed Indianapolis police officer
Matthew Faber. Sanders, 596 N.E.2d at 225. Prior to trial, “Sanders pled guilty
to involuntary manslaughter in exchange for the State’s dismissal of all other
charges.” Id. Sanders “was never formally charged with involuntary
manslaughter, but pled guilty to involuntary manslaughter as a lesser-included
offense of murder.” Id. at 225–26. The trial court accepted Sanders’s guilty
plea and sentenced him “to a term of seven years imprisonment.” Id. at 226.
[17] Sanders subsequently sought PCR, with his counsel arguing that his “guilty
plea should be set aside because at the time of the guilty plea hearing there was
no charging document (either information or indictment) that charged Sanders
with involuntary manslaughter.” Id. “Sanders[’s] legal premise was that, as a
matter of law, a defendant cannot knowingly enter into a guilty plea to the
charge of involuntary manslaughter unless there is an information or indictment
charging him with the crime of involuntary manslaughter.” Id. The post-
conviction court granted Sanders relief and this court affirmed. On transfer,
however, the Indiana Supreme Court concluded that because Sanders was
pleading guilty to a lesser-included offense of the crime of murder, “no separate
information or indictment was necessary in order to put Sanders on notice of
the charges.” Id. at 227. In reaching this conclusion, the Court found that it
was clear from the record that Sanders was aware of the elements of the offense
to which he pled guilty. Id. at 228.
Court of Appeals of Indiana | Opinion 22A-PC-3006 | May 16, 2023 Page 13 of 20 [18] Similarly, in this case, despite the error in the wording used by the State in
establishing the factual basis, we believe that Marin had adequately been made
aware of the elements of the offense to which he pled guilty. Marin indicated at
the guilty-plea hearing that he understood that he had originally been charged
with Class B felony child molestation under Indiana Code 35-42-4-3 which, at
the time Marin was charged, provided that “[a] person who, with a child under
fourteen (14) years of age, performs or submits to sexual intercourse or deviate
sexual conduct commits child molesting, a Class B felony.” The probable cause
affidavit that was filed in conjunction with the original charging information
clearly stated that S.D., who was born on August 17, 1990, was thirteen years
old on the date in question. Thus, before plea negotiations had even
commenced, Marin had been put on notice that the State was alleging that he
had committed sexual acts with a child who was under the age of sixteen. As
such, even though the State erred by using language in establishing the factual
basis that included the age of sixteen, we cannot say that Marin was prejudiced
by this error because he knew, or at the very least should have known, that the
State had alleged that his criminal acts involved a child under the age of sixteen.
[19] Furthermore, while Marin correctly states that at the time he pled guilty to
Class D felony attempted sexual misconduct with a minor, Indiana Code
section 35-42-4-9(c) provided that “[i]t is a defense that the accused person
reasonably believed that the child was at least sixteen (16) years of age at the
time of the conduct,” we conclude that by pleading guilty, Marin waived his
right to raise this affirmative defense. It is well-established that “[d]efendants
Court of Appeals of Indiana | Opinion 22A-PC-3006 | May 16, 2023 Page 14 of 20 who bargain to plead guilty in return for favorable outcomes give up a plethora
of substantive claims and procedural rights.” Hawkins v. State, 990 N.E.2d 508,
509 (Ind. Ct. App. 2013), trans. denied. For instance, when a defendant pleads
guilty, he waives the right to challenge his conviction on double jeopardy
grounds. See Mapp v. State, 770 N.E.2d 332, 334 (Ind. 2002) (providing that a
defendant “waived his right to challenge is convictions on double jeopardy
grounds when he entered his plea agreement” and “there is no exception to this
rule for ‘facially duplicative’ charges”); Games v. State, 743 N.E.2d 1132, 1135
(Ind. 2001) (providing that a defendant “who enters a plea agreement to achieve
an advantageous position must keep the bargain” and “[o]nce the defendant
bargains for a reduced charge, he cannot then challenge the sentence on double
jeopardy grounds”). Likewise, “[w]hen a defendant pleads guilty and agrees to
a specific sentence, he waives his right to challenge the propriety of his
sentence.” Creech v. State, 887 N.E.2d 73, 75 (Ind. 2008).
[20] Again, the record indicates that from the beginning of the criminal proceedings,
Marin knew or should have known that the State was alleging that S.D. was
thirteen years old when he engaged in sexual acts with her. At no point prior to
pleading guilty did Marin raise the affirmative defense that he believed that
S.D. had been sixteen and, when questioned by the trial court, Marin indicated
that he understood the charges against him and wished to plead guilty. By
pleading guilty, Marin waived the right to challenge his conviction on the
ground that he had reasonably believed that S.D. had been sixteen years old on
the date in question.
Court of Appeals of Indiana | Opinion 22A-PC-3006 | May 16, 2023 Page 15 of 20 II. Ineffective Assistance of Counsel [21] “The right to effective counsel is rooted in the Sixth Amendment to the United
States Constitution.” Taylor v. State, 840 N.E.2d 324, 331 (Ind. 2006). “‘The
Sixth Amendment recognizes the right to the assistance of counsel because it
envisions counsel’s playing a role that is critical to the ability of the adversarial
system to produce just results.’” Id. (quoting Strickland v. Washington, 466 U.S.
668, 685 (1984)). “‘The benchmark for judging any claim of ineffectiveness
must be whether counsel’s conduct so undermined the proper functioning of the
adversarial process that the trial cannot be relied on as having produced a just
result.’” Id. (quoting Strickland, 466 U.S. at 686).
[22] A successful claim for ineffective assistance of counsel must satisfy two
components. Reed v. State, 866 N.E.2d 767, 769 (Ind. 2007). Under the first
prong, the petitioner must establish that counsel’s performance was deficient by
demonstrating that counsel’s representation “fell below an objective standard of
reasonableness, committing errors so serious that the defendant did not have
the ‘counsel’ guaranteed by the Sixth Amendment.” Id. (internal quotation
omitted). “We recognize that even the finest, most experienced criminal
defense attorneys may not agree on the ideal strategy or most effective way to
represent a client,” and therefore, under this prong, we will assume that counsel
performed adequately and defer to counsel’s strategic and tactical decisions.
Smith v. State, 765 N.E.2d 578, 585 (Ind. 2002). “Isolated mistakes, poor
strategy, inexperience, and instances of bad judgment do not necessarily render
representation ineffective.” Id.
Court of Appeals of Indiana | Opinion 22A-PC-3006 | May 16, 2023 Page 16 of 20 [23] Under the second prong, the petitioner must show that the deficient
performance resulted in prejudice. Reed, 866 N.E.2d at 769. A petitioner may
show prejudice by demonstrating 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.
(emphasis added, internal quotation omitted). A petitioner’s failure to satisfy
either prong will cause the ineffective assistance of counsel claim to fail. See
Williams, 706 N.E.2d at 154. Stated differently, “[a]lthough the two parts of the
Strickland test are separate inquires, a claim may be disposed of on either
prong.” Grinstead v. State, 845 N.E.2d 1027, 1031 (Ind. 2006) (citing Williams,
706 N.E.2d at 154).
[24] Marin contends that his trial counsel provided deficient performance and that
he was prejudiced by counsel’s deficient performance. As it relates to allegedly
deficient performance, the Indiana Supreme Court has held that “under [Padilla
v. Kentucky, 559 U.S. 356 (2010)], if counsel knows a client is a non-citizen,
then counsel must inform the client whether the plea carries a risk of
deportation.” Bobadilla v. State, 117 N.E.3d 1272, 1282 (Ind. 2019) (cleaned
up).
[25] Marin was represented at trial by the Honorable Jose Salinas, when Judge
Salinas was a practicing attorney specializing in immigration and criminal law,
with over ninety percent of his clients being Hispanic. Marin testified during
the post-conviction hearing that he had never been advised that his guilty plea
could result in deportation and that he did not learn of the immigration
Court of Appeals of Indiana | Opinion 22A-PC-3006 | May 16, 2023 Page 17 of 20 consequences until he had re-entered the United States after attending his
grandmother’s funeral in Mexico. As it related to Marin, Judge Salinas stated
that
I do not recall independently giving any advisements to this particular client. But I will say that it was my practice, because I did immigration -- that it was my routine to always inquire (1) as to the immigration status of my clients, (2) as to whether or not they wanted -- what was their priority.… Was their … priority to stay out of jail, or you know, try to fight for whatever immigration benefits they may have at the time or may have in the future.
PCR Tr. pp. 4–5. Judge Salinas further stated that it would have been his
routine practice to advise non-citizen clients of potential immigration
repercussions following a criminal conviction.
[26] The post-conviction court found that Judge Salinas provided Marin with
adequate performance, noting that Marin’s assertion “that he was not advised
of the immigration consequences by Judge Salinas is admittedly self-serving”
and “comes after immigration proceedings being initiated against [him] based
solely on this conviction.” Appellant’s App. Vol. III p. 141. The post-
conviction court weighed the evidence and found Judge Salinas’s testimony
regarding his routine with clients facing immigration issues to be more credible
than Marin’s testimony. Again, when appealing from the denial of a PCR
petition, a petitioner must convince us that the evidence, taken as a whole,
“leads unerringly and unmistakably to a decision opposite that reached by the
Court of Appeals of Indiana | Opinion 22A-PC-3006 | May 16, 2023 Page 18 of 20 post-conviction court.” Stevens, 770 N.E.2d at 745. Marin has failed to meet
this heavy burden.
[27] Furthermore, even if Marin had established deficient performance, he has failed
to convince us that he was prejudiced by Judge Salinas’s representation.
In the context of a guilty plea, the prejudice prong of the Strickland test focuses on whether counsel’s deficient performance affected the outcome of the plea process. To satisfy the prejudice requirement, the petitioner therefore must show that there is a reasonable probability that, but for counsel’s errors, he would not have pled guilty. To prove they would have rejected the guilty plea and insisted on trial, defendants must show some special circumstances that would have supported that decision. Defendants cannot simply say they would have gone to trial, they must establish rational reasons supporting why they would have made that decision.
Jones v. State, 151 N.E.3d 790, 797 (Ind. Ct. App. 2020) (cleaned up), trans.
denied.
[28] The record reveals that by pleading guilty to a Class D felony rather than
having potentially been found guilty of a Class B felony, Marin received a
substantial benefit, effectively reducing his potential period of incarceration
from twenty years to 364 days. In attempting to show prejudice, Marin
indicated that he did not “really know much of Mexico” and had never wanted
to live in Mexico. PCR Tr. p. 18. When asked “why do you think we should
believe you that you would’ve gone to trial with that risk … instead of taking
Court of Appeals of Indiana | Opinion 22A-PC-3006 | May 16, 2023 Page 19 of 20 the agreement,” Marin responded “[b]ecause I got all my family here. I’ve …
been here the rest of my life. So I … would’ve fought my case.” PCR Tr. p. 18.
[29] Given the substantial benefit Marin received, coupled with the fact that he had
made a recorded confession to investigating officers, the post-conviction court
did not find Marin’s claim that he would not have pled guilty but rather would
have fought the Class B felony charge to be credible. The post-conviction court
found, and we agree, that Marin has failed to “show special circumstances”
supporting his decision or “establish rational reasons supporting why [he]
would have made that decision.” Jones, 151 N.E.3d at 797. Marin has
therefore again failed to meet the heavy burden of convincing us that the
evidence, taken as a whole, “leads unerringly and unmistakably to a decision
opposite that reached by the post-conviction court.” Stevens, 770 N.E.2d at 745.
[30] The judgment of the post-conviction court is affirmed.
May, J., and Mathias, J., concur.
Court of Appeals of Indiana | Opinion 22A-PC-3006 | May 16, 2023 Page 20 of 20