Court of Appeals of Indiana | Memorandum Decision 18A-PC-1357 | February 20, 2019 Page 1 of 27

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.

ATTORNEY FOR APPELLANT

Alexander E. Budzenski

Indianapolis, Indiana

ATTORNEYS FOR APPELLEE

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 Case No.

18A-PC-1357

Appeal from the

Tippecanoe Superior Court

The Honorable Laura W. Zeman, 

Judge

Trial Court Cause No.

79D04-1701-PC-5

Altice, Judge.
Court of Appeals of Indiana | Memorandum Decision 18A-PC-1357 | February 20, 2019 Page 2 of 27

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 the immigration 

consequences 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.” 

Appellant’s Appendix Vol. 2 at 16. Following the denial of his petition, 

Hernandez appeals and raises the following restated issues:

I. Whether Hernandez received ineffective assistance of trial 

counsel; and 

II. Whether Hernandez established that, because he 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 his 
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arrival here. He attended Jefferson High School in Lafayette until leaving 

sometime in the twelfth grade. His classes were taught in English, but at a 

slower pace.

[4] Between 2004 and 2011, 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 diversion 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 Hernandez acknowledged to the court that he had 

read, understood, and signed his Advisement of Rights 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 here 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 

interpreter 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 2012, Hernandez pled guilty (under the name of Juan A. Rodriguez 

Merced) under cause number 79D06-1112-FD-321 (Cause 321) to Class D 
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felony operating while intoxicated with a prior conviction. Hernandez was 

represented by 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 noticed that his Advisement 

of Rights form was in English, the court asked Hernandez if he was bilingual 

and understood English and Spanish. Hernandez responded, “Yes.” Id. at 121.

During the hearing, the 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 been 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 substance 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. 
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[7] On May 30, 2013, Hernandez received an Immigration and Customs 

Enforcement detainer and a Notice to Appear 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 79D04-1312-FD000313 (Cause 313) with possession of cocaine as a Class D felony, possession 

of synthetic identifying information as a Class D felony, possession of 

paraphernalia as a Class A misdemeanor, and false informing as a Class A 

misdemeanor. The January 2014 initial hearing was conducted in English, and 

the Advisement of Rights 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 affect your immigration status.” Exhibits Vol. 1 at 11.

[9] On June 25, 2014, Hernandez appeared with counsel, attorney Timothy 

Broden, at the immigration court in Chicago for a hearing. At the beginning 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 entering 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 time or place 

other than as designated by the Attorney General.” Exhibits Vol. 4 at 106. 
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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 present in the 

United States, or a resident alien, or present on a student visa, 

he/she is not eligible for community corrections or placement on 

probation. Defendant understands that he/she has a right to 

contact his/her consulate before pleading guilty, and that 

pleading guilty to a crime may affect his/her immigration status 

or result in 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, although the 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 within the court’s discretion. At the 

time that Hernandez pled guilty, he was living with and supporting his thengirlfriend, Christina, and her two children, and Christina was also pregnant 

with her first child with Hernandez. 

 

2 DACA refers to Deferred Action for Childhood Arrivals.
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[12] On October 27, 2014, the trial court held a sentencing hearing in Cause 313. 

Hernandez did not request or use the services of an interpreter for the 

sentencing hearing. At the beginning of the hearing, as the trial court reviewed

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 terms, 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 immigration court in Chicago for a hearing. 

After asking Hernandez his name, the immigration 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 immigration judge reviewed with Hernandez 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 

officer.” Id. at 88-89. Hernandez admitted that the allegations were true, and 

his counsel, on Hernandez’s behalf, conceded removability. The immigration 

court explained to Hernandez that, as to his removability, “there is no waiver” 

due to his criminal offense, nor did the court believe that Hernandez was 
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eligible to file for permanent residency, such that Hernandez’s options were 

either to request to leave the country voluntarily or be deported at government 

expense. Id. at 91. The immigration 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 another

hearing before the immigration court. The judge asked Hernandez if he spoke 

English, and he replied, “Yes.” Id. at 96. The immigration judge discussed 

matters associated with Hernandez’s application for asylum, including directing 

him where to file it, and it reset the matter 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 immigration court held another 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 on January 31, 

2017, a petition for postconviction relief, asking the post-conviction court to 

vacate and set aside his judgments of conviction and sentences in Cause 313. 

The petition raised two issues: (1) whether Hernandez 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. 
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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 Christina and her two children.3 

At that time, he 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 Christina had been together since around 2009 and that they married in 

2017. Their first child together was born in May 2015, and they had twins in 

2016. Hernandez stated that his parents have lived 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 testified 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 eligible because of the drug conviction (Cause 313). He 

testified that Dekker did not advise him that his guilty plea would come with 

immigration consequences, 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 testified that he would 

 

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

hearing that, at that time, she had DACA status.
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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 the 

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 had 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 attorney. Dekker discussed that, during 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 advisement 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 

pursuant 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 immigration court in Chicago and, in June 2014, Broden 
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sent a letter to Dekker advising 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 

consequences. 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 was admitted during the postconviction 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 

that 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 consequences” 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 petitioner must 

“establish, by objective facts, circumstances that support a 
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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)], Trujillo 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 of 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 account 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, the 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 

been 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 false identity.
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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 

violation for a prior felony conviction. Mr. Dekker 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 convictions as misdemeanors which if 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 an 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 acknowledged 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] 313.” Id. at 161. The trial court also observed 

that (1) in some of his previous criminal court matters, Hernandez had used the 

services of an interpreter thereby demonstrating that he knew an interpreter 

would be available if he felt the need for one, and (2) he had participated 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 told 
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the immigration court that he spoke English. The post-conviction court denied 

Hernandez’s petition, and he 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 conclusion. 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 postconviction 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 that 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 falls 
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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 

reasonableness 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 unprofessional 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 Dekker 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 postconviction claim of ineffective assistance, based on counsel’s failure to properly 

advise him of immigration consequences, must be analyzed under Segura). 
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Segura categorizes two main types of ineffective assistance of counsel cases.

4

The 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 subcategory.

[24] Specifically, Hernandez contends that Dekker performed deficiently because he 

failed to advise Hernandez that, pursuant 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 defense known as 

cancellation of removal. The Segura court recognized that counsel’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 into 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) 
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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, 

advised him that his plea may or could have deportation consequences, this 

advice was incorrect 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 will, therefore, undoubtedly be numerous 

situations in which the deportation consequences of a particular 

plea are unclear or uncertain. The duty of the private practitioner 

in such cases is more limited. When the law is not succinct and 

straightforward, . . . a criminal defense attorney need do no more than 

advise a noncitizen client that pending criminal charges may carry a risk 

of adverse immigration consequences. But when the deportation 

consequence is truly clear . . . the duty to give correct advice is equally 

clear.

Id. at 369 (emphasis added).

[26] Hernandez argues that, in his case, the deportation consequences were clear

under federal immigration laws. In particular, he claims that possession of 

cocaine and synthetic identity deception “obviously” fall within the plain 

language of 8 U.S.C. § 1182(a)(2)(A)(i), which renders inadmissible certain 
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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 both of his convictions “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, only “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 “when the consequences are 

clear, as they are in Mr. Hernandez’s case, the duty to give correct 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 attempt 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.”)
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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 controlled substance, and the Padilla Court held, “This 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 previously 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 

deportation, 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 retained 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

In 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 been 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 offense under 8 U.S.C. § 1227(a)(2)B)(i).” Id. at 361 n.2. 
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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 establish 

that Dekker’s failure to so advise him resulted in prejudice. To 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, simply alleging that the petitioner would 

not have pled will not be sufficient. Id. “Rather, specific facts, in addition to 

the petitioner’s conclusory 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. 

However, as Hernandez acknowledges on appeal, pursuant to Segura, he must 

also show specific facts that establish an objective reasonable probability that 

competent representation would have caused the petitioner not to enter a plea. 

The 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 would not have pled guilty.

[30] Whether a failure to advise a defendant of possible deportation consequences 

constitutes deficient performance by an attorney is “fact sensitive.” Segura, 749 
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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 circumstances.” For instance, 

in 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. However, in 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 

suffered prejudice” from counsel’s failure to advise 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 considered 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 Sial.” 962 N.E.2d at 116. 

[31] After Sial and Trujillo, this court in 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 defendant from pleading 

guilty. Clarke was thirty-three years old when he pled guilty to dealing in 
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cocaine and had been living in the United States for eleven years. At the time of 

his guilty plea, he had two children who were still in-utero, but he was not 

married to either of the women carrying his child. For purposes of the appeal, 

the Clarke court assumed, without deciding, that these were special 

circumstances, but then examined the strength of the case against him and the 

benefit he received by pleading guilty: 

The 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 years on probation. In summary, Clarke received a 

substantial benefit from his guilty plea.

Id. at 568. The Clarke court concluded that Clarke would have pled guilty even 

if he had been advised of the risk of deportation considering the strength 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 circumstances 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 counsel’s failure to advise him that his guilty plea to theft would result in 
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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 became naturalized citizens. Gulzar’s participation in 

the crimes was documented on surveillance video, the items purchased with the 

stolen credit card were 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 that “[i]f deported, Gulzar 

would be forced either to leave his family behind or to uproot them from the 

country that has been their home for more than a decade,” but concluded that, 

even if those facts “may indeed be special circumstances,” Gulzar had not 

proven prejudice, given the strength of the case and benefit of the plea. 971 

N.E.2d at 1262. In reaching its decision, the 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 likewise find that Hernandez’s case is “not one of those extreme cases” 

where a truly innocent 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 Christina 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 benefit of his plea. The 
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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 

information. 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 been 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 established special circumstances related to 

his job and family, we conclude that, in light of the evidence establishing his 

guilt and the benefit he received, he has failed to demonstrate prejudice. 

Accordingly, we 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” waived 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 against compulsory selfincrimination; (2) the right to trial by jury; and (3) the right to confront one’s accusers. 395 U.S. 238, 242-243 
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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 rights] 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] Our 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. 

Hernandez argues that his native language is Spanish, he used the services 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 “should 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 that the defendant has been informed he is waiving certain rights). 
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[37] In this case, there 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 examine 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 hearing 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 321 sentencing 

hearing, which occurred in October 2012, the trial court noticed that Hernandez 

was using a translator and Hernandez’s Advisement of Rights form was in 

English. The court then asked Hernandez whether he was bilingual and could 

understand both English 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] At the same time as matters were proceeding in Cause 313, Hernandez was 

appearing, with counsel, for hearings in the Chicago immigration court. He 
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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 [Hernandez] did not understand his Boykin rights.” Appellee’s Brief

at 13. Accordingly, we 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.