Court of Appeals of Indiana | Memorandum Decision 18A

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### MEMORANDUM DECISION 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.

A TTORNEY FOR A PPELLANT Alexander E. Budzenski Indianapolis, Indiana A TTORNEY S FOR A PPELLEE Curtis T. Hill, Jr. Attorney General of Indiana
Matthew B. MacKenzie Deputy Attorney General Indianapolis, Indiana



### I N T H E 

# COURT OF APPEALS OF INDIANA

Jose Angel Hernandez , Appellant

- Petitioner ,

v.


### State of Indiana , Appellee

- Respondent. February 20, 2019 Court of Appeals Ca se No. 18A

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- 1357 Appeal from the Tippecanoe Superior Court The Honorable Laura W. Zeman, Judge Trial Court Cause No. 79D04

- 1701

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A ltice , Judge
.Court of Appeals of Indiana | Memorandum Decision 18A

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### Case Summary

[1] Jose Angel Hernandez, a citizen of Mexico, entered the United States with his parents in 2002, when he was sixteen years old. In August 2014, he pled guilty to possession of cocaine and synthetic identity deception, both Class D felonies. Hernandez filed a petition for post

- conviction relief, in which he argued that (1) his guilty plea counsel failed to properly advise him of th e immigration
consequence s associated with his guilty plea , and (2) the trial court should have provided him with a Spanish

- language interpreter at his hearings to “ensur[e] that he understood his Boykin rights prior to entering his plea of guilty.” Appel lant’s Appendix Vol. 2 at 16

. Following the denial of his petition, Hernandez appeals and raises the following restated issue s :

I. Whether Hernandez received ineffective assistance of trial counsel ; and

II. Whether Hernandez established that , because h e did not have an interpreter at trial court hearings, he did not knowingly and voluntarily waive his Boykin rights.

[2] We affirm. 

### Facts & Procedural History

[3] Hernandez , born in October 1985, is a native of Mexico and remains a citizen of Mexico. He came to the United States in 2002 with his parents, and he has

not returned to Mexico since he left. Hernandez did not have a green card or visa when he entered the United States , and he has not obtained one since hisCourt of Appeals of Indiana | Memorandum Decision 18A

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arrival here. He attended Jefferson High Sch ool in Lafayette until leaving sometime in the twelfth grade. His classes were taught in English, but at a slower pace.

[4] Between 200 4 and 201 1 , Hernandez had multiple encounters with the criminal justice system. In June 2005, he was convicted of operating a motor vehicle without ever having received a license . In July 2005, he was charged with Class B misdemeanor false informing, Class B misdemeanor public intoxication, and Class C misdemeanor minor consumption, and those charges were resolved by a divers ion agreement. In August 2010, Hernandez pled guilty to Class A misdemeanor operating while intoxicated and Class C misdemeanor failure to stop at the scene of an accident , and several other charges were dropped . At the guilty plea hearing, after Hernand ez acknowledged to the court that he had read, understood, and signed his A dvi sement of R ights form , and after the trial court informed him that if he was not a citizen of the United States “any disposition of your case could affect your ability to stay he re in the United States,” Hernandez responded, “I’m a citizen.” Exhibit Vol. 1 at 102. In some of the proceedings, Hernandez’s Advisement of Rights form was in Spanish and in others it was in English. In some proceedings , Hernandez utilized an interpret er and in others he did not. He sometimes provided law enforcement with a false name, Juan A. Rodriguez Merced, and sometimes provided an incorrect date of birth.

[5] In October 201 2 , Hernandez pled guilty (under the name of Juan A. Rodriguez Merced) under cause number 79D06

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felony operating while intoxicated with a prior conviction. Hernandez was represented b y attorney Brian Dekker, who could speak Spanish but conversed with Hernandez in English . During the October 2012 guilty plea hearing, Hernandez used a translator, but because the court not iced that his Advisement of Rights form was in English , the court asked Hernandez if he was biling ual and understood English and Spanish. Hernandez responded, “Yes.” Id . at 121. During the hearing, t he trial court advised , “If you’re not an actual United States citizen a judgment of conviction in a criminal case can impact your legal status here in the states. Has Mr. Dekker covered with you, to your satisfaction, the impact that these judgments of convictions might have in the event that you are not a legal resident ? ” Id. at 128. That inquiry was translated into Spanish , and Hernandez responded , “I’m an American citizen

. ” Id. The court accepted Hernandez’s guilty plea and sentenced him on the Class D felony to a 730

- day jail term with 180 days executed

.

[6] On May 19, 2013, in the course of investigating a hit

- and

- run accident , police went to Hernandez’s home looking for a man named Felipe, who was suspected to have be en involved in the accident. During the investigation, police saw in plain view a rolled currency bill and a plastic baggie with white residue . The officers observed Hernandez shove these items in his pocket. Police also observed a white powdery substan ce on Hernandez’s nostrils , and he admitted to having used cocaine. Hernandez was arrested , and, pursuant to a search warrant, police found cocaine, a digital scale, and more corner baggies with white residue.Court of Appeals of Indiana | Memorandum Decision 18A

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[7] On May 30, 2013, Hernandez received a n Imm igration and Customs Enforcement detainer and a No tice to A ppear before an immigration judge in Chicago. The Notice charged Hernandez with removability as a result of his illegal status in the United States

. 1

[8] Stemming from the police visit to his home on May 19 , the State charged Hernandez on December 23, 2013 , under cause number 79D04

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000313 (Cause 313) with possession of cocaine as a Class D felony, possession of synthetic identifying information as a Class D felony, possession of paraphernali a as a Class A misdemeanor, and false informing as a Class A misdemeanor. The January 2014 initial hearing was conducted in English , and

t he A dvisement of Ri ghts form signed by Hernandez was in English. The Advisement form contained the provision advising that “[i]f you are not a U.S. citizen, a conviction could affe c t your immigration status.” Exhibits Vol. 1 at 11.

[9] O n June 25, 2014, Hernandez appeared with counsel, attorney Timothy Broden, at the i mmigration court in Chicago for a hearing. At the begin ning of the hearing, the immigration judge asked Hernandez, “And you speak and understand English?” and Hernandez replied, “Yes.” Exhibit Vol. 3 at 77. The court advised Hernandez that he was under removal proceedings and that he could be deported for en tering the country without inspection, noting to

1 More specifically, the Notice alleged that Hernandez was subject to removal from the United States pursuant to “212(a)(6)(A)(i) of the Immigration and Nationality Act, . . . in that you are an alien present in the United States without being admitted or paroled, or who arrived in the United States at any ti me or place other than as designated by the Attorney General.” Exhibits Vol. 4 at 106.Court of Appeals of Indiana | Memorandum Decision 18A

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Hernandez that his circumstances did not indicate that he was eligible for DACA, 2 but the court continued the matter “to see the outcome of [Hernandez’s] drug case.” Id . at 81.

[10] On August 18, 2014, Hernandez entered into a plea agreement in Cause 313, pursuant to which he pled guilty to the two Class D felonies and the other two charges were dismissed. The plea agreement included the following provision:
The Defendant acknowledges that if illegally p resent in the United States, o r a resident alien, or present o n a student v is a, he/she i s not eligible for community corrections or placement on probation

. Defendant understands that he/she has a right to contact his/her consulate before plead in g guilty, and th at pleading guilty to a crime may affect his/her immig r ation status or result i n deportation from the United States.

Exhibit Vol. 1 at 9.

[11] Due to a technical issue , neither a recording nor a transcript of the guilty plea hearing in Cause 313 exists, altho ugh t he parties appear to agree that an interpreter was not used. Under terms of the plea agreement, the length and placement of Hernandez’s sentence was with in the court’s discretion

. At the time that Hernandez pled guilty, he was living with and suppor ting his then

girlfriend, C h ristina, and her two children , and C h ristina was also pregnant with her first child with Hernandez.

2 DACA refers to Deferred Action for Childhood Arrivals.Court of Appeals of Indiana | Memorandum Decision 18A

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[12] On October 27, 2014, the trial court held a sentencing hearing i n Cause 313. Hernandez did not request or use the services of an interprete r for the sentencing hearing

. At the beginning of the hearing, as the trial court review ed with Hernandez his age, address, and purpose of the hearing, the court asked him, “Do you read and write and understand the English language?” Id

. at 84. Hernandez replied, “Yep.” Id . The trial court sentenced Hernandez on the two Class D felonies to concurrent 730

- day term s , with 550 days suspended to probation

. The court committed Hernandez to community corrections for the remaining 180 days.

[13] On February 19, 2015, Hernandez appeared , with counsel Jacob Meah of the Law Office of Al Kola, before the i mmigration c ourt in Chicago for a hearing. After asking Hernandez his name, the i mmigration judge asked him, “Do you speak English,” and Hernandez replied “fluently.” Exhibits Vol. 3 at 85. The judge asked Hernandez about the status of the Indiana drug charge (Cause 313) , and Hernandez explained that it was completed, having been sentenced in October 2014. The i mmigration judge review ed with Hern andez the allegations in the Notice to Appear, which “charges that you are not a citizen of the United States and you’re a native and citizen of Mexico; that you crossed the border on an unknown date without being inspected or admitted by an immigration of ficer.” Id . at 88

- 89. Hernandez admitted that the allegations were true, and his counsel, on Hernandez’s behalf, conceded removability. The i mmigration

court explained to Hernandez that, as to his removability, “ there is no waiver ” due to his criminal o ffense, nor did the court believe that H ernandez wasCourt of Appeals of Indiana | Memorandum Decision 18A

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eligible to file for permanent residency, such that Hernandez’s option s were either to request to leave the country voluntarily or be deported at government
expense. Id . at 91. The i mmigration court continued the matter in order to allow Hernandez and his counsel to discuss the possibility of filing for asylum or withholding of removal.

[14] On May 28, 2015, Hernandez and his counsel, Al Kola, appeared for a nother hearing before the i m migration court. The judge asked Hernandez if he spoke English, and he replied, “Yes.” Id . at 96. The i mmigration judge discussed matters associated with Hernandez’s application for asylum, including directing him where to file it, and it reset the matt er for a subsequent hearing to allow Hernandez “to come back and testify in support of [his] application.” Id . at 99

- 100. On November 3, 2015, the i mmigration c ourt held a nother hearing, at the conclusion of which it ordered Hernandez’s removal, finding that Hernandez did not qualify for any of the available exceptions. Hernandez began an appeal process of the decision.

[15] While Hernandez’s immigration appeal was pending, he filed o n January 31,
201 7 , a petition for postconviction relief , asking the po st

- conviction court to vacate and set aside his judgments of conviction and sentences in C ause 313. The petition raised two issues: (1) whether Her nandez received ineffective assistance of counsel because he did not receive accurate advice regarding the immigration consequences of his plea agreement; and (2) whether Hernandez should have had a Spanish

- language interpreter present at his hearings before the trial court.Court of Appeals of Indiana | Memorandum Decision 18A

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[16] On January 25, 2018, the trial court held an evidentiary hearing on Hernandez’s petition

. During the hearing Hernandez used the services of the court’s interpreter. Hernandez testified that, when he pled guilty in August 2014, he was living with and helping to support C h ristina and her two children. 3 At that time, h e owned and operated a cell phone repair business and had been working in the cell phone repair industry since 2012. Hernandez testified that he and C h ristina had been together since around 2009 and that they married in 2017. Their first child together w as born in May 2015 , and they had twins in 2016. Hernandez stated that his parents have live d in Lafayette, Indiana, since they arrived in the United States in 2002, and that some of his siblings, aunts , and uncles also live in Lafayette . Hernandez testi fied that he had never been back to Mexico since leaving in 2002 and that he does not have any close family members still living in Mexico. Hernandez stated that his immigration appeal was still pending and, when asked if he had applied for an immigration defense called cancellation of removal or deportation, he said that he had not because he was not eligi ble because of the drug conviction ( Cause 313). He testified that Dekker did not advise him that his guilty plea would come with immigration consequenc es, or that it would prohibit his use of a common defense to deportation. He also testified that he did not ask Broden (his immigration attorney) for legal advice on the effect that his convictions in Cause 313 would have on his removability. Hernandez t estified that he would

3 Christina was born in 1986 and came to the United States in 1997. She testified at the post

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not have accepted the plea agreement in Cause 313 and would have preferred to go to trial had he known about the immigration consequences of pleading guilty . When asked whether he spoke English fluently when he entered into t he plea agreement, he said “I would say no.” Transcript Vol. 2 at 25. He stated that he did not read the Advisement of Rights form or plea agreement before signing those documents.

[17] Dekker, Hernandez’s guilty plea counsel, testified that he could speak Spanish but that he always conversed with Hernandez in English . He said that Hernandez never asked for an interpreter , but if he had, Dekker “absolutely” would have sought one, noting that his firm ha d had an “in

- house” interpreter for fifteen years

. Transcript Vol. 2 at 14. Dekker testified that it was his practice to inform all of his clients that he was not an immigration attorney and that if they were not in the country legally or if they had a permit or visa, that they should consult with an immigration at torney. Dekker discussed that, d uring the course of his representation of Hernandez in Cause 313, he sent Hernandez five letters dated April 9, 2014, May 19, 2014, June 30, 2014, August 18, 2014, and October 6, 2014, all of which contained a bold adviseme nt that read: “Note: If you are not a citizen, you are hereby advised that a conviction of the offense for which you have been charged may have the consequences of deportation, exclusion from admission to the United States, or denial of naturalization
pur suant to the laws of the United States

. ” Exhibit Vol. 4 at 110

- 14

. Dekker was aware during the pendency of Cause 313 that Hernandez was involved in proceedings with the i mmigration court in Chicago and, in June 2014, BrodenCourt of Appeals of Indiana | Memorandum Decision 18A

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sent a letter to Dekker advisi ng him that he was representing Hernandez in the removal proceedings.

[18] Dekker testified that, during negotiations with the State in Cause No. 313, the State did not offer any agreement that would have had no immigration
consequen ces . Dekker was satisfied with the ultimate result that Hernandez received , concurrent 730

- day sentences with 550

- days suspended , considering “the facts of the case and [his] priors” as well as a pending petition to revoke probation in Cause No. 321. Transcript Vol. 2 at 14

. A transcript of Hernandez’s removal proceedings in Chicago w as admitted during the post

conviction hearing.

[19] On May 14, 2018, the post

- conviction court issued detailed findings and conclusions denying Hernandez’s petition. With regard to Hernandez’s claim
th at Dekker did not properly advise him of immigration consequences associated with his guilty plea , the post

- conviction court concluded that “there is ample evidence that Mr. Dekker did directly and affirmatively advise [Hernandez] of the immigration conseq uences” and that, even if he did not, “[Hernandez] had actual knowledge of the immigration consequences before signing the plea agreement , ” given his prior plea agreements and advisements of rights. Appellant’s Appendix Vol. II at 158. Further, the court determined,
12. “[I]n order to state a claim for postconviction relief a petitioner may not simply allege that a plea would not have been entered, nor is the petitioner’s conclusory testimony to that effect sufficient to prove prejudice. Instead, the pe titioner must “establish, by objective facts, circumstances that support aCourt of Appeals of Indiana | Memorandum Decision 18A

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conclusion that [trial] counsel’s errors in advice as to penal consequences were material to the decision to plead guilty.” Segura v. State , 749 N.E.2d [496, 507 (Ind. 2001)] , Truji llo v. State , 962 N.E.2d 110 (Ind. App. 201l), Gulzar v. State , 971 N.E.2d 1256 (Ind. App. 2012).
“We see no reason to require revisiting a guilty plea if, at the end of the day, the inevitable result is conviction and the same sentence. 749 N.E.2d at 507

. That is, the Court acknowledged that it is only in “extreme cases” that “a truly innocent defendant” pleads guilty “because of incorrect advice as to the consequences.” Gulzar

, 971 N.E.2d at 1262.

13. Even if Mr. Dekker had not advised the Petitioner o f the immigration consequences, the court concludes the Petitioner has not stated any objective facts to support that his decision to plead guilty would have been changed if Mr. Dekker had advised him.
14. Under the category of objective facts, “it is also appropriate to consider “the strength of the State’s case,” which a reasonable defendant would take into a a ccount when pondering a guilty plea, and “the benefit conferred upon the defendant.” Suarez v. State , 967 N.E.2d 552 (Ind. App. 2012).

15. Here, t he Petitioner did not testify to any “objective facts” to demonstrate that ‘but for’ Mr. Dekker not telling him about the immigration consequences, he would have proceeded to trial and that a different outcome (that is, a not guilty verdict) would have bee n likely given the facts of the case. Police went to the Petitioner’s home looking for another person and found cocaine in plain view and physically on and in the Petitioner’s person while in possession of official looking documents showing the use of a f alse identity.Court of Appeals of Indiana | Memorandum Decision 18A

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Mr. Dekker negotiated a guilty plea while the Petitioner was still on probation that included concurrent sentences for [two] new [] felony convictions and no sanction in his pending probation
v iolation for a prior felony conviction. Mr. Dek ker testified that earlier plea agreement offers were not accepted by the Petitioner because of immigration consequences. The “open” plea agreement would also have given discretion to the trial court to enter the felony c onvictions as misdemeanors which i f entered as a misdemeanor could be beneficial to the Petitioner when arguing against his “removal” during immigration proceedings

.

Id . at 159

- 60.

[20] With regard to Hernandez’s post

- conviction claim that he should have been provided with a n interpreter during the Cause 313 trial court proceedings , the post

- conviction court determined that Hernandez was advised of his Boykin rights in the Advisement of Rights form , where he ackn o w l edged that he reads, writes, and understands English , and “ [t] here is nothing in the record of the proceedings in [Cause] 313 or the proceedings in the current post

- conviction relief that shows the Petitioner ever requested and was denied an interpreter for his guilty plea hearing in [Cause] 3 1 3. ” I d. at 161

. The t rial court also observed that (1) in some of his previous criminal court matters, Hernandez had used the services of an interpreter thereby demonstrat ing that he knew an interpreter would be available if he felt the need for one, and (2) he had participate d in four immigration proceedings

– one of which was before the guilty plea hearing in Cause 313 and the other three were within fifteen months of it

– and at none of those hearings did Hernandez request an interpreter and , in fact, repeatedly toldCourt of Appeals of Indiana | Memorandum Decision 18A

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the imm igration court that he spoke English. The post

- conviction court denied Hernandez’s petition , and h e now appeals.



### Discussion & Decision I. Ineffective Assistance of Counsel

[21] “The standard of review for a petitioner denied post

- conviction relief is rigorous .” Trujillo v. State , 962 N.E.2d 110, 113 (Ind. Ct. App. 2011). Appellate courts consider only the evidence and reasonable inferences supporting the judgment. Carrillo v. State , 982 N.E.2d 461, 464 (Ind. Ct. App. 2013). The post

- conviction court is the sole judge of the evidence and the credibility of the witnesses. Id. We will disturb the post

- conviction court’s decision only if the evidence is without conflict and leads to but one conclusion , and the post

- conviction court has reached the opposite co nclusion. Gulzar v.
State , 971 N.E.2d 1258, 1260 (Ind. Ct. App. 2012), trans. denied

.

[22] Hernandez contends that the post

- conviction court erred in finding that he was not denied the effective assistance of trial counsel. The petitioner for post

convictio n relief bears the burden of establishing grounds for relief by a preponderance of the evidence. Ind. Post

- Conviction Rule 1(5); Gulzar , 971 N.E.2d at 1260. To prevail on a claim of ineffective assistance of counsel, a petitioner must demonstrate both t hat his counsel ’ s performance was deficient and that the petitioner was prejudiced by the deficient performance. Ben

- Yisrayl v. State, 729 N.E.2d 102, 106 (Ind. 2000) (citing Strickland v. Washington, 466 U.S. 668, 687, (1984)), cert. denied ). Counsel ’ s performance is deficient if it fallsCourt of Appeals of Indiana | Memorandum Decision 18A

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below an objective standard of reasonableness based on prevailing professional

norms. French v. State, 778 N.E.2d 816, 824 (Ind. 2002). Our standard of review requires us to presume that counsel rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment. Pennycuff v. State , 745 N.E.2d 804, 811 (Ind. 2001). We judge the reasonablene ss of counsel’s challenged conduct on the facts of the particular case, viewed at the time of counsel’s conduct and not through the lens of hindsight. Id . at 811

- 12. Prejudice results where there is “a reasonable probability that, but for counsel ’ s unpro fessional errors, the result of the proceedings would have been different.” Id. “A reasonable probability is one that is sufficient to undermine confidence in the outcome.” Kubsch v. State , 934 N.E.2d 1138, 1147 (Ind. 2010) (quoting Strickland , 466 U.S. at 694). “Failure to satisfy either prong will cause the claim to fail.” French, 778 N.E.2d at 824.

[23] Hernandez contends that Dekke r provided ineffective assistance because he failed to properly advise Hernandez of the immigration consequences associated with his guilty plea. Because Hernandez was convicted pursuant to a guilty plea, we examine his claim under Segura v. State , 749 N.E.2d 496 (Ind. 2001). See Trujillo , 962 N.E.2d at 114 (recognizing that defendant’s post

conviction claim of ineffective a ssistance, based on counsel’s failure to properly advise him of immigration consequences, must be analyzed under Segura ).Court of Appeals of Indiana | Memorandum Decision 18A

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Segura categorizes two main types of ineffective assistance of counsel cases

. 4
Th e second category , at issue here, relates to “an improper advisement of penal consequences” and is further divided into two subcategories: (1) claims of intimidation by exaggerated penalty or enticement by an understated maximum
exposure , and (2) claims of incorrect advice as to the law. Willoughby v. State , 792 N.E.2d 560, 563 (Ind. Ct. App. 2003), trans. denied

. Hernandez’s challenge falls under the latter sub category.

[24] Specifically , Hernandez contends that Dekker performed deficient ly because he failed to advise Hernandez that , pursu ant to federal immigration laws, pleading guilty to possession of cocaine and synthetic identity deception would subject him to deportation and also render him ineligible for a d efense known as cancellation of removal. The Segura court recognized that cou nsel ’ s failure to advise regarding possible adverse immigration consequences could constitute deficient performance “under some circumstances.” Carrillo v. State , 982 N.E.2d 468, 473 (Ind. Ct. App. 2013) (citing Segura , 749 N.E.2d at 500 )

. Specifically, the Segura court stated:
[T]he failure to advise of the consequence of deportation can, under some circumstances, constitute deficient performance. 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

4 Segura categorizes ineffective assistance of counsel claims made in the context of a guilty plea in to two categories: ( 1) the failure to advise the defendant on an issue that impairs or overlooks a defense, and ( 2) an incorrect advisement of penal consequences. Segura v. State, 749 N.E.2d 496, 500 (Ind. 2001)Court of Appeals of Indiana | Memorandum Decision 18A

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factors. These presumably include the knowledge of the lawyer of the client ’ s status 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.

749 N.E.2d at 500.

[25] In this case, Hernandez contends that , although his trial counsel, Dekker, advi sed him that his plea may or could have deportation consequences, this advice was i ncorrect under Padilla v. Kentucky , 559 U.S. 356 (2010) , in which the Court explained:
Immigration law can be complex, and it is a legal specialty of its
own.

. . . There w ill, 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 . . . the duty to give correct advice is equally clear

.

Id . at 369 (emphasis added)

.

[26] Hernandez argues that, in his case, the deportation consequen ces were clear under federal immigration laws . In particular, he claims that p ossession of

c ocaine and synthetic identity deception “ obviously ” fa ll within the plain language of 8 U.S.C. § 1182(a)(2)(A)(i) , which render s inadmissible certainCourt of Appeals of Indiana | Memorandum Decision 18A

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noncitizens with convictions for crimes involving moral turpitude and convictions relating to controlled substances

. 5 Reply Brief at 6. Hernandez
argues that b oth of his c onvictions “ rendered [him] inadmissible to and removable from the United States .” Id . Furthermore, he asserts, the
convictions “ rendered him ineligible for cancelation of removal under 8 U.S.C. § 1229b(b)(1)

. ” Id. Hernandez maintains that, under Padilla , o nly “when the law is not succinct and straightforward” is it sufficient for a criminal defense attorney to advise a noncitizen client “that pending criminal charges may carry a risk of adverse immigration consequences , ” but “w hen the conse quences are clear, as they are in Mr. Hernandez’s case, the duty to give corr ect advice is

5 8 U.S.C. § 1182(a)(2)(A)(i) provides:

(i) Except as provided in clause (ii), any alien convicted of, or who admits having committed, or who admits committing acts which constitute the essential elements of

--

(I) a crime involving moral turpitude (other than a purely political offense) or an at tempt or conspiracy to commit such a crime, or

(II) 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 (as defined in section 802 of Title 21),

is inadmissible.

See also , 8 U.S.C. § 1227(a)(2)(A)(II) (“Any alien who . . . is convicted of a crime for which a sentence of one year or longer may be imposed[] is deportable.”)Court of Appeals of Indiana | Memorandum Decision 18A

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equally clear.” Appellant’s Brief at 14 (citing Padilla , 559 U.S. at 369). Hernandez notes that Padilla’s offense was, like his own, an offense relating to

a cont rolled substance , and the Padilla Court held, “ T his is not a hard case in which to find deficiency: The consequences of Padilla’s plea could easily be determined from reading the removal statute [and] his deportation was presumptively mandatory [.] ” 6 559 U.S. at 368

- 69. Therefore, Hernandez maintains, Dekker’s advice was incorrect and amounted to deficient representation.

[27] The State responds that, contrary to Hernandez’s characterization, the situation was not “clear” given that (1) Hernandez had previou sly told the court and Dekker that he was a citizen, (2) Dekker advised Hernandez in multiple letters that “[i] f you are not a citizen, you are hereby advised that a conviction of the offense for which you have been charged may have the consequences of dep ortation, exclusion from admission to the United States, or denial of naturalization pursuant to the laws of the United States , ” and prior advisements and pleas had also advised that a conviction could affect his immigration status , and (3) Hernandez had r etained an immigration attorney prior to the time he voluntarily chose to plead guilty

. Exhibit Vol. 4 at 110

- 14

. Under these circumstances, the State urges, Dekker’s performance was not deficient.

6 I n Padilla v. Kentucky, 559 U.S. 356 (2010), the defendant pled guilty to drug distribution, and in seeking post

- conviction relief, he claimed his counsel not only failed to advise him of the deportation consequence but also told him that he “did not have to worry about immigration status since he had b een in the country so long.” Id . at 359. In finding that counsel provided deficient performance, the Padilla Court noted that “Padilla’s crime, like virtually every drug offense except for only the most insignificant marijuana offenses, is a deportable o ffense under 8 U.S.C. § 1227(a)(2)B)(i).” Id . at 361 n.2.Court of Appeals of Indiana | Memorandum Decision 18A

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[28] Even if we were to agree that Dekker was deficient by failing to specifically advise Hernandez that pleading guilty to possession of cocaine and synthetic identity deception would subject him to deportation and render him ineligible for cancellation of removal defense , Hernandez also would need to establis h that Dekker’s failure to so advise him resulted in prejudice. T o state a claim for post

- conviction relief under this subcategory, a petitioner must “establish, by objective facts, circumstances that support the conclusion that counsel ’ s errors in advice as to penal consequences were material to the decision to plead.” Segura , 749 N.E.2d at 507. That is, s imply alleging that the petitioner would not have pled will not be sufficient. Id

. “Rather, specific facts, in addition to the petitioner ’ s concluso ry allegation, must establish an objective reasonable probability that competent representation would have caused the petitioner not to enter a plea.” Id .; see also Trujillo , 962 N.E.2d at 114

- 15.

[29] Hernandez testified at the post

- conviction hearing that he would not have pled guilty had Dekker properly advised him of the deportation consequences.
H owever, as Hernandez acknowledges on appeal, pursuant to Segura , he must also show specific facts that establish an objective reasonable probability that
compe tent representation would have caused the petitioner not to enter a plea

. T he relevant circumstances to examine are those that existed when he pled guilty in 2014 and whether those circumstances establish an objectively reasonable probability that he woul d not have pled guilty

.

[30] W hether a failure to advise a defendant of possible deportation consequences constitute s deficient performance by an attorney is “fact sensitive

. ” Segura , 749Court of Appeals of Indiana | Memorandum Decision 18A

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N.E.2d at 500. A number of decisions from this court have addressed whether the petitioner had shown the necessary “special circumst a nces .” For instance,
i n Sial v. State, 862 N.E.2d 702, 706 (Ind. Ct. App. 2007), where the petitioner had been in the United States for twenty years and had a daughter who was born here, we held that the defendant did establish objective facts, or “special circumstances” to satisfy the prejudice prong of an ineffective assistance claim based on the failure to advise of the possible adverse immigration consequences from pleading guilty

. Howe ver, i n contrast, the court in Trujillo , concluded that the petitioner “failed to demonstrate the presence of special circumstances within the meaning of Segura and therefore failed to demonstrate that he

s uffered prejudice” from counsel’ s failure to advis e him regarding the immigration consequences of pleading guilty

. 962 N.E.2d at 116. In Trujillo , defendant came to the United States when he was fifteen and pled guilty when he was fifty

- two, but the court did not find the length of time that he lived in the United States to be a special circumstance when con s i d ered with his family situation, which was that he did not have a spouse or children. The Trujillo court thus determined that his “situation was ‘ fundamentally different ’ from the petitioner’s in Si

al .” 962 N.E.2d at 116.

[31] After Sial and Trujillo, this c our t i n Clarke v. State, 974 N.E.2d 562, 566 (Ind. Ct. App. 2012), recognized additional factors that a reasonable defendant would consider in deciding whether to plead guilty are (1) the strength of the State ’ s case against the defendant , and (2) the benefit to the defendan t from pleading guilt y. Clarke was thirty

- three years old when he pled guilty to dealing inCourt of Appeals of Indiana | Memorandum Decision 18A

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cocaine and had been living in the United States for eleven years

. A t the time of
hi s guilty plea, he had two children who were still in

- utero, but he was not married to either of the women carrying his child. F or purposes of the appeal, the Clarke court assumed, without deciding, that t hese were special circumstances, but then examined the strength of the case against him and the benefit he received by pleading guilty:

T he evidence against Clarke included the contraband, the large amount of cash found in the vehicle, and, we presume, the testimony of the two officers at the scene of the stop and arrest. Based upon the nature and strength of this evidence, we conclude that the objective probability of success at trial was low. Moreover, Clarke received a significant benefit in exchange for his guilty plea. The State agreed to reduce the dealing charge from a class A to a class B felony, and agreed to dismiss the marijuana charge and the resisting charge. The reduction in the dealing charge alone reduced his sentence exposure from an advisory sentence of thirty years to an advisory sentence of ten years. As it was, he was sentenced to six years, all suspended, and two year s on probation. In summary, Clarke received a substantial benefit from his guilty plea.

Id. at 568. T he Clarke court concluded that Clarke would have pled guilty even if he had been advised of the risk of deportation considering t he s trength of the case against him and the substantial benefit he received from pleading guilty

.

[32] Similarly, in Gulzar , this court, after considering not only the circumst a nces of the defendant’s life in the United States, but also the evidence establishing his guilt, determined that Gulzar had failed to demonstrate prejudice as a result of trial coun s el’s failure to advise him that his guilty plea to theft would result inCourt of Appeals of Indiana | Memorandum Decision 18A

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automatic deportation. There, the defendant entered the United States in 2000 with his parents and siblings, and he pled guilty in 2006 to theft

. At some point, his parents and siblings becam e naturalized citizens. Gulzar’s participation in the crimes was documented on surveillance video, the items purchased with the stolen credit card we re found in his apartment , and Gulzar never denied his involvement. He was charged with three Class D felonies, but pled guilty to one and was sentenced to eighteen months, all suspended, and probation, which he completed. The Gulzar court recognized tha t “ [i] f deported, Gulzar would be forced either to leave his family behind or to uproot them from the country that has been th eir home for more than a decade,” but concluded that, even if those facts “may indeed b e special circumstances , ” Gulzar had not
pr oven prejudice, given the strength of the case and benefit of the plea

. 971 N.E.2d at 1262. In reaching its decision, t he Gulzar court noted that it is only in “extreme cases” that “a truly innocent defendant” pleads guilty “because of incorrect advice as to the consequences” and found that Gulzar’s case “is not one of those extreme cases.” Id. (citing Segura , 749 N.E.2d at 507).

[33] We likewis e find that Hernandez’s case is “not one of those ext reme cases” where a truly innoc ent defendant pled guilty because of incorrect advice as to
consequences. Hernandez came to the United States from Mexico in 2002 when he was sixteen. He was with C h risti na at the time he pled guilty in 2014 , although not married to her yet, and she was pregnant with their first child. He was also operating a cell phone repair business. In addition , we must also consider the strength of the case against him and the benef it of his plea. TheCourt of Appeals of Indiana | Memorandum Decision 18A

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case against Hernandez was strong. Cocaine was found in his residence and on his person. A white powdery substance was also observed on his nostrils, and he admitted to using cocaine

. He also possessed synthetic identifying informat ion. He pled guilty to two Class D felonies, and the two misdemeanor counts were dismissed. The plea gave the trial court discretion to enter the felony convictions as misdemeanors. That agreement also resolved a petition to revoke probation that had bee n filed in Hernandez’ s prior felony operating while intoxicated offense. The trial court sentenced Hernandez to a 730

- day term with 550 days suspended to probation and the remainder served on community corrections.

[34] Even if we assume that Hernandez establi shed special circumstances related to his job and family, we conclud e that, in light of the evidence establishing his guilt and the benefit he received , he has failed to demonstrate prejudice. Accordingly, w e affirm the post

- conviction court ’s determination that he did not receive ineffective assistance of counsel

. 

### II. Interpreter

[35] Hernandez claims that because he did not have an interpreter present at his hearings in Cause 313, “the record does not reflect that he knowingly and voluntarily” wa ived his Boykin rights

. 7 Appellant’s Brief at 20. The failure to

7 In Boykin v. Alabama , the United States Supreme Court held that a trial court must be satisfied that an accused is aware of three rights before accepting a guilty plea: (1) the privilege again st compulsory self

incrimination; (2) the right to trial by jury; and (3) the right to confront one’s accusers. 395 U.S. 238, 242

- 243Court of Appeals of Indiana | Memorandum Decision 18A

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advise a criminal defendant of his constitutional rights in accordance with Boykin prior to accepting a guilty plea will result in reversal of the conviction.
Ponce v. State , 9 N.E.3d 1265, 1270 (Ind. 2014). Boykin does not require that the record of the guilty plea proceeding show that the accused was formally advised that entry of his guilty plea waives certain constitutional rights or that “the record contain a formal waiver of [ Boykin r ights] by the accused.” Winkleman v.
State , 22 N.E.3d 844, 851 (Ind. Ct. App. 2014) , trans. denied

. Rather, Boykin requires a conviction to be vacated only if the defendant “did not know or was not advised at the time of his plea that he was waiving his Boykin rights.” Id

. (citing Dewitt v. State , 755 N.E.2d 167, 171 (Ind. 2001)).

[36] O ur Supreme Court has directed that “a defendant who cannot speak or understand English has [the] right to have his proceedings simultaneously translated to allow for effective participation.” Ponce , 9 N.E.3d at 1272.
He rnandez argues that his native language is Spanish, he used the servi ces of an interpreter in other cases, and although he did speak “some English,” he did not speak English fluently enough “to understand legal matters.” Appellant’s Brief at 20. Therefore, he claims that he “s hould have had [] an interpreter present at his hearings, particularly at his guilty plea hearing , ” and that the record does not reflect that he knowingly and voluntarily waived his rights

. Id . We disagree.

(1969); see also Ind. Code § 35

- 35

- 1

- 2 (requiring that a trial court not accept a guilty plea without first determining t hat the defendant has been informed he is waiving certain rights).Court of Appeals of Indiana | Memorandum Decision 18A

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[37] In this case , t here is no recording or transcript of the August 2014 guilty plea hearing. “[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 1273

. We thus e xamine the surrounding hearings and
circumstances.

[38] In some of Hernandez’s criminal proceedings that preceded Cause 313 , he used an interpreter and, in others, he did not. Hernandez’s attorney in Cause 313 , Dekker , testified at the post

- conviction hearin g that , although he could speak Spanish , he and Hernandez only conversed in English

. Dekker stated that at no time in either Cause 313 or Cause 321 did Hernandez indicate that he would like to utilize the services of an interpreter. At the Cause 3 21 sentencing hearing, which occurred in October 201 2 , the trial court noticed that Hernandez was using a translator and Hernandez’s Advisement of Rights form was in English

. T he court then asked Hernandez whether he was bilingual and could understand both E nglish and Spanish , and Hernandez replied in the affirmative. At the beginning of the Cause 313 sentencing hearing, which occurred in October 2014, the trial court asked him, “Do you read and write and understand the English language?” Exhibit Vol. 1 at 84. Hernandez replied, “Yep.” Id

. Hernandez’s Advisement of Rights form was in English and he signed it and filed it with the trial court.

[39] A t the same time as matters were proceeding in Cause 313, Hernandez was appearing , with counsel, for hearings in the C hicago immigration court. HeCourt of Appeals of Indiana | Memorandum Decision 18A

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appeared on June 25, 2014, which was before his August 2014 guilty plea hearing in Cause 313 , and then again in February, May, and November 2015 , which followed his October 2014 sentencing hearing

. At each, he conversed with the court only in English and repeatedly told the court that he could speak English, once responding by stating “fluently.” Exhibit Vol. 3 at 85.

[40] Given the record before us, we agree with the State that “[t]he record in no way reflects that [Her nandez] did not understand his Boykin rights.” Appellee’s Brief
at 13. Accordingly, w e find no error with the trial court’s decision that Hernandez was not entitled to post

- conviction relief on this basis.

[41] Judgment affirmed.

Brown, J. and Tavitas, J., concur.