Court of Appeals of Indiana | Opinion 29A02-1706-P C -1 203 | January 25, 201 8 Page 1 of 15

A TTORNEY S FOR A PPELLANT John L. Tompkins The Law Office of John L. Tompkins Indianapolis, Indiana Kevin C

. Mu ñ oz Muñ oz Legal, LLC Indianapolis, Indiana A TTORNEY S FOR A PPELLEE Curtis T. Hill, Jr. Attorney General of Indiana Monika Prekopa Talbot Supervising Deputy Attorney General Indianapolis, Indiana



### I N T H E 

# COURT OF APPEALS OF INDIANA

Angelo Bobadilla , Appellant

- Defendant,

v.


### State of Indiana , Appellee

- Plaintiff

. January 25, 201 8 Court of Appeals Ca se No. 29A02

- 1706

- PC

- 1203 Appeal from the Hamilton Superior Court The Honorable J. Richard Campbell, Judge Trial Court Cause No. 29D04

- 1612

- PC

- 9318

Mathias , Judge.

[1] Angelo Bobadilla (“Bobadilla”) appeals the Hamilton Superior Court’s den ial of his petition for post

- conviction relief , arguing that his trial counsel was ineffective and that he was prejudiced by the inadequate representation

.Court of Appeals of Indiana | Opinion 29A02-1706-P C -1 203 | January 25, 201 8 Page 2 of 15

[2] We affirm. 

### Facts and Procedural History

[3] Bobadilla was born in Mexico in 1996 , and for the last ten years, he has been living in the United States , now legally as an undocumented immigrant under the Deferred Action for Childhood Arrivals (“DACA” ) program. On March 1, 2016, Bobadilla pleaded guilty to Class A misdemeanor theft and Class B misdemeanor possession of marijuana. 1 As part of the plea process, Bobadilla

— with counsel

— filled out a standard advisement form which contained several paragraphs advising him of the consequences and rights lost as a result of pleading guilty. Next to ea ch paragraph contained either Bobadill a’s initials, or “N A ” because Bobadilla’s trial counsel believed that section was not applicable to his client. The back page of the advisement form contains the following

statement:
If you are not a U.S. citizen, a criminal conviction may have immigration consequences, including deportation. You should discuss thi s possibility with your attorney because if you do plead guilty, it will result in a criminal conviction.

1 Because of the plea agreement, the State dropped one c ount of Class A misdemeanor possession of a controlled substance and one c ount of Class B misdemeanor possession of paraphernalia

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Appellant’s App. p. 26. Bobadilla’s trial counsel never inquired into Bobadilla’s immigration status, and he incorrectly marked “NA” next to this statement. 2 The court accepted the guilty plea the next day.

[4] On December 19, 2016, Bobadilla filed a petition for post

- conviction relief, alleging that he had received ineffective assistance from his trial counsel because he was not advised of the immigration consequences of his guilty plea. An evidentiary hearing was held on March 7, 2017, where both Bobadilla’s trial counsel and Bobadilla testified. Bobadilla’ s counsel indicated: (1) that he personally marke d “N A ” in the boxes on the advisement form not containing Bobadilla’s initials , (2) that he never asked Bobadilla about his citizenship status, (3) that Bobadilla spoke fluent English and was familiar with A merican customs, (4 ) that he did not understand Bobadilla was a H ispanic name at the time, and (5 ) that Bobadilla never informed him that he was not a naturalized citizen.

[5] Bobadilla explained during th e hearing that his DACA status wa s at risk as a result of the conviction. 3 He also told the court that he did not read the statements on the advisement form marked with an “NA” because his trial

2 Bobadilla’s trial counsel had a copy of the Officer’s Arrest Report Book

- In Slip which indicated Bobadilla’s place of birth as Cuernavaca, Mexico. See Appellant’s App. pp. 49, 51.

3 The Immigration and Na tionality Act provides that an alien is deportable when convicted of
an aggravated felony

. 8 U.S.C. § 1227(a)(2)(A)(iii). Bobadilla’s theft conviction , although a misdemeanor, is considered an “ aggravated felony ” for immigration purposes because it is a “ crime of violence ” for which he received a sentence of a year or more. See 8 U.S.C. § 1101 (a)(43)(G )

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counsel told Bobadilla that they were not applicable to him

— instead, he only read the statements next to which he pe rsonally initialed. However, Bobadilla admitted to reading the certification statement at the end of the advisement form indicating that he had read and understood each paragraph on the form

— h e then initialed next to it, and signed his name underneath.

[6] Th e post

- conviction court denied Bobadilla’s petition on April 17 with findings of fact and conclusions of law. Bobadilla then filed an emergency motion to correct error and a request for an e xpedited hearing on May 12

. 4 The post

conviction court denied the motion to correct error three days later without a hearing. Bobadilla now appeals.



### Discussion and Decision

[7] The post

- conviction petitioner bears the burden of establishing grounds for relief by a preponderance of the evidence. Willoughby v. State , 792 N.E. 2d 560, 562 (Ind. Ct. App. 2003), trans. denied . When a petitioner appeals the denial of a petition for post

- conviction relief, the petitioner stands in the position of one appealing from a negative judgment. Id . On appeal, we do not reweigh evidence nor judge the credibility of witness; therefore, to prevail, Bobadilla must show

4 Bobadilla’s emergency motion to correct error indicated that Bobadilla was transferred to the custody of U.S. Immigration and Customs Enforcement on Ma y 3. Appellant’s App. p. 45. It also stated that Bobadilla was processed, and was eligible for deportation as soon as May 31. Id. at 46. Although Bobadilla’s whe reabouts are not clear from the record , his brief indicates that Bobadilla has been deported

. A ppellant’s Br. at 6.Court of Appeals of Indiana | Opinion 29A02-1706-P C -1 203 | January 25, 201 8 Page 5 of 15

that the evidence as a whole leads unerringly and unmistakably to a conclusion opposite that reached by the post

- conviction court. Id

.

[8] Where here, the post

- conviction court made specific findings of fact and conclusions of law in accordance with Indiana Post

- Conviction Rule 1(6), we must determine if the court’s findings are sufficient to support its judgment. Graham v. State , 941 N.E.2d 1091, 1096 (Ind. Ct. App. 2011), aff’d on reh’g , 947 N.E.2d 962. Although we do not defer to the post

- conviction court’s legal conclusions, we review the post

- conviction court’s factual findings for clear

error. Id. Accordingly, we will consider only the probative evidence and reasonable inferences flowing therefrom that support the post

- conviction court’s decision. Id.

[9] A claim of ineffective assistance of trial counsel here requires a showing that: (1) Bobadilla’s trial counsel’s performance was deficien t by fal ling below an objec tive standard of reasonableness; and (2) that the deficient performance prejudiced Bobadilla such that “there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have be en different.” Strickland v. Washington , 466 U.S. 668, 694 (1984). Failure to satisfy either of the two elements will cause the claim to fail. French v. State , 778 N.E.2d 816, 824 (Ind. 2002). And when it is easier to dispose of an ineffectiveness claim on t he lack of prejudice, then this is the course we should follow . Trujillo v. State , 962 N.E.2d 110, 114 (Ind. Ct. App. 2011).Court of Appeals of Indiana | Opinion 29A02-1706-P C -1 203 | January 25, 201 8 Page 6 of 15

[10] Because Bobadilla’s claims are based on his contention that he received ineffective assistance of counsel as part of his guilty pl ea, we examine his claims under our supreme court’s decision in Segura v. S tate , 749 N.E.2d 496 (Ind. 2001)

. Segura categorizes two types of ineffective assistance of trial counsel claims made in the context of guilty pleas: (1) the failure to advise the d efendant on an issue that impairs or overlooks a defense, and (2) an incorrect advisement of penal consequences. Id. at 500; see also Manzano v. State , 12 N.E.3d 321, 326 (Ind. Ct. App. 2014) , trans. denied

.

[11] Bobadilla contends that his trial counsel’s failure to advise him of the potential immigration consequences of his plea was prejudicial because he “was taken into custody by US Immigration and Customs Enforcement on May 3, 2017, as a result of his conviction for theft that was entered based on his g uilty plea in this case.” Appellant’s Br. at 10

. 5 Thus, Bobadilla ’s claim falls under Segura’s second category where “a petitioner must establish, by objective facts, circumstances that support the conclusion that counsel’s errors in advice as to penal con sequences were material to the decision to plead.” Segura , 749 N.E.2d

5 Bobadilla also argues that the post

- conviction court made several errors when it denied his petition for post

conviction relief. Appellant’s Br. at 8

– 11. However, the post

- conviction court never addressed the “prejudice” prong of St

rickland . Appellant’s App. p. 40. B ecause we decide this case on the prejudicial impact counsel’s alleged error had on Bobadilla , we decline to specifically address any error the trial court made in its denial of his petition for post

- conviction relief. Ho wever, we do note that the State concedes that counsel’s performanc e here may have been deficient. S ee Appellee’s Br. at 11,13. Additionally, during the post

conviction hearing, Bobadilla’s trial counsel admitted that marking “ N A ” next to the paragraph regarding immigration status on the advisement form “fell below the norms and standards for a criminal defense attorney at that time.” Tr. p. 7. The State, however, objected to t his testimony , and the objection was sustained by the p ost

- conviction court.Court of Appeals of Indiana | Opinion 29A02-1706-P C -1 203 | January 25, 201 8 Page 7 of 15

at 507. Under this category, it is also appropriate to consider “ the strength of the State’ s case,” which a reasonable defendant would take into account when pondering a guilty plea, and “the benefit conferred upon the defendant.” Suarez v. State, 967 N.E.2d 552, 556 (Ind. Ct. App. 2012), trans. denied.

[12] Bobadilla has failed to show that was he was prejudiced by trial counsel’s failure to advise him of the risk of deportation. We initially note that Bobadilla

never asserted that he would have proceeded to trial had he known the potential consequences of his plea. When asked if he would have reacted differently had the statement pertaining to immigration consequences not been marked N A by

tr ial counsel on the advisement form, Bobadilla merely stated, “Yes, I would. I would take a different approach to that.” Tr. p. 17. However, the approach Bobadilla would have taken is unclear, and his general statement is insufficient to establish prejudice based on improper advice from trial counse l

. See Segura, 749 N.E.2d at 508 (Segura failed to meet required standard to show prejudice based on improper advice from counsel on penal consequences because he “offer[ed] nothing more than the naked allegation that his decision to plead woul d have been affected by counsel’ s advice.”) ; see also Gulzar v. State , 971 N.E.2d 1258, 1261 (Ind. Ct. App. 2012), trans. denied ; State v. Bonilla , 957 N.E.2d 682, 685 (Ind. Ct. App. 2011).

[13] Moreover, the State’s case against Bobadilla was strong, and he received a substantial benefit by choosing to plea. At his plea hearing, Bobadilla agreed with the State’s factual basis for his theft and possession of marijuanaCourt of Appeals of Indiana | Opinion 29A02-1706-P C -1 203 | January 25, 201 8 Page 8 of 15

convictions. And the State dr opped two additional misdemeanor counts because Bobadilla accepted a plea agreement. Thus, Bobadilla admitted to the facts forming the basis of the crimes for which he was convicted, he received the benefit of avoiding two more convictions on his record, a nd he received an entirely suspended sentence from the court. See Clarke v. State , 974 N.E.2d 562, 568 (Ind. Ct. App. 2012), trans. denied ; Gulzar , 971 N.E.2d at 1262

. U nder our supreme court’s decision in Segura , Bobadilla has failed to establish that he would have proceeded to trial had he known of the adverse immigration risks, and he has failed to allege any special circumstances warranting post

- conviction relief. Accordingly, we cannot say that Bobadilla was prejudiced by his trial counsel’s failure to advise him of the risk of deportation.

[14] Bobadilla also contends that he has sufficiently proven prejudice under the United State s Supreme Court’s recent decision in Lee v. U.S. , 137 S. Ct. 1958 (2017) , which he argues lowers the bar for what must be shown in an immigration action to establish prejudice

. Appellant’s Br. at 10. In that case, Lee was living in the United States as a lawful permanent resident when he was arrested for possessing ec stasy with intent to distribute . Lee entered into plea discussi ons with the Government, during which he repeatedly informed his attorney of his noncitizen status and his fear that he would be deported beca use of the criminal proceedings

. Lee’s attorney incorrectly told him that he would not be deported as a result of pleading guilty. Based on his attorney’s

assuranc es, Lee decided to plead guilty. Because Lee pleaded guilty to what
qua lified as an aggravated felony under the Immigration and Nationality Act,Court of Appeals of Indiana | Opinion 29A02-1706-P C -1 203 | January 25, 201 8 Page 9 of 15

he was subject to mandatory deportation. Lee filed a motion in federal court arguing that he had been provided constitutionally ineffective assistance of counsel.

[15] The Supreme Court found that Lee’s counsel had performed deficiently and that it was prejudicial because Lee had “demonstrated a reasonable probability tha t, but for [his] counsel’s errors, he would not have pleaded guilty and would have insisted on going to trial.” Id. at 1969 (quoting Hill v. Lockhart , 474 U.S. 52, 59 (1985)). In finding prejudice, the Court noted the “unusual circumstances of this case” a nd explained that Lee had demonstrated that avoiding deportation was the determinative factor in his decision to accept the Government’s plea. Id. at 1968. The Court explained:
When the judge warned him that a conviction “could result in your being deport ed,” and asked “[d]oes that at all affect your decision about whether you want to plead guilty or not,” Lee answered “Yes, Your Honor.” When the judge inquired “[h]ow does it affect your decision,” Lee responded “I don’ t understand,” and turned to his atto rney for advice. Only when Lee’ s cou nsel assured him that the judge’ s statement was a “standard warning” was Lee willing to proceed to plead guilty.

Id. (citations omitted).

[16] Finally, the Court rejected the Government’s argument that it would have been irrational for Lee to reject the plea offer in favor of trial because the evidence weighed so heavily against him. Id. The Court stated, “ But for his attorney’ s incompetence, Lee would have known that accepting the plea agreementCourt of Appeals of Indiana | Opinion 29A02-1706-P C -1 203 | January 25, 201 8 Page 10 of 15

would certainly lead to deportation. Going to trial? Almost certainly. ” Id. (emphasis in original). The Court remarked that not all individuals may choose

to reject a plea in Lee’s circumstances, but it was not irrational for him to do so because: (1) Deportation was the determinative issue in Lee’s deci sion to accept a plea agreement, (2) Lee had strong connections to the United States and not his “home” coun try South Korea, and (3) Lee’s potential consequences at trial were not markedly harsher then pleading guilty. Id. at 1968

– 69.

[17] In the case before us, a lthough Bobadilla may have strong ties to the United States and not Mexico; unlike Lee, Bobadilla has fa iled to show that deportation was a determinative issue in his decision to plead guilty. Rather, the evidence shows that his decision to plead guil ty was more likely heavily influenced by the State ’s agreement to drop two addition al misdemeanor charges and its agreement to an entirely suspended sentence to probation. Importantly, Bobadilla never divulged his immigration status to his trial counsel , he never asked his attorney about deportation, and he also has never alleged that he would have gone to trial had he been properly informed of the immigration consequences of his plea. Further, Bobadilla’s potential consequences at trial were greater because he faced the prospect of two additional misdemeanor convictions. Accordingly , these factual distinctions b etween Bobadilla’s circumstances and Lee’s lead us to the conclusion that Bobadilla has failed to establish prejudice under Lee

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### Conclusion

[18] Because Bobadilla has failed to establish that he was prejudiced by his trial counsel’s deficient performance, he was not subjected to ineffective assistance of counsel. We therefore affirm the post

- conviction court.

Crone, J., concurs.
Vaidik, C.J., diss ents with opinion.Court of Appeals of Indiana | Opinion 29A02-1706-P C -1 203 | January 25, 201 8 Page 12 of 15

A TTORNEY FOR A PPELLANT John L. Tompkins The Law Office of John L. Tompkins Indianapolis, Indiana Kevin C. Muñoz Muñoz Legal, LLC Indianapolis, Indiana A TTORNEY S FOR A PPELLEE Curtis T. Hill, Jr. Attorney General of Indiana Monika Prekopa Talbot Supervising Deputy Attorney General Indianapolis, Indiana



### I N T H E 

# COURT OF APPEALS OF INDIANA

Angelo Bobadilla, Appellant

- Defendant,

v. 

### State of Indiana, Appellee

- Plaintiff

. January 25, 2017 Court of Appeals Ca se No. 29A02

- 1706

- PC

- 1203 Appe al from the Hamilton Superior Court The Honorable J. Richard Campbell, Judge Trial Court Cause No. 29D04

- 1612

- PC

- 9318

Vaidik , Chief Judge , dissenting
.

[19] I respectfully dissent. First, I believe that Bobadilla has demonstrated deficient performance, in other words, that his trial counsel’s performance fell below an objective standard of reasonableness. The State apparently believes so, too. See Appellee’ s Br. pp. 11, 13

- 14. That is, trial counsel wrote “N/A”

— notCourt of Appeals of Indiana | Opinion 29A02-1706-P C -1 203 | January 25, 201 8 Page 13 of 15

applicable

—

next to the advisement “If you are not a U.S. citizen, a criminal conviction may have immigration consequences, including deportation,” Appellant’s App. Vol. II p. 26, without first as king Bobadilla whether this advisement applied to him. See Padilla v. Kentucky , 559 U.S. 356, 367 (2010) (“The weight of prevailing professional norms supports the view that counsel must advise her client regarding the risk of deportation.”). As a result of trial counsel marking “N/A,” Bobadilla did not read the advisement before pleading guilty. 6

[20] Second, I am fully convinced that Bobadilla has demonstrated a reasonable probability that he would have rejected the plea had he known that he would be depo rted. See Lee v. United States , 137 S. Ct. 1958, 1967 (2017). Eighteen

- year old Bobadilla faced four misdemeanor charges: Class A misdemeanor theft, Class A misdemeanor possession of a controlled substance, Class B misdemeanor possession of marijuana, and Class C misdemeanor possessio n of paraphernalia. Two of these offenses were not deportable under the Immigration and Nationality Act

— possession of marijuana and possession of paraphernalia. See 8 U.S.C. § 1227(a)(2). Bobadilla pled guilty to theft, a

6 The majority notes that Bobadilla “admitted to reading the certification statement at the end of the advisement form indicating that he had read and understood each paragraph on the form.” Slip op. at 4 (emphasis added). The cert ification is not so broad. It provides: I hereby certify . . . that I have read the above statements or that they were translated or read to me, that I understand each paragraph that applies to my case, and that I do waive and give up each and every right listed. Appellant’s App. Vol. II p. 26 (emphasis added). Bobadilla did not read the advisements marked “N/A” by his trial counsel.Court of Appeals of Indiana | Opinion 29A02-1706-P C -1 203 | January 25, 201 8 Page 14 of 15

deportable offense which was es sentially shoplifting from Wal

- Mart, see Appellant’s App. Vol. II p. 21 (factual basis for theft), and possession of marijuana, and the trial court sentenced him to one year of probation. When Bobadilla pled guilty, he was nineteen years old, was legally in the United States as a “Dreamer” under the Deferred Action for Childhood Arrivals (DACA) program, and had lived here for at least ten years.

[21] After Bobadilla pled guilty and was sentenced to probation, he spoke to an immigration attorney, who informed him that his DACA status was at risk and that he was subject to deportation. Bobadilla then filed a petition for post

conviction relief alleging ineffective assistance of trial counsel. Bobadilla claimed that had he been properly advised of the risk of deportation, he would have “declined to accept the plea,” Appellant’s App. Vol. II p. 14, in other words, he would have rejected it. The post

- conviction court denied Bobadilla relief. Within nine days of being detained by U.S. Immigration and Customs Enf orcement, Bobadilla asked for an emergency hearing to reconsider the denial of his post

- conviction petition. All this leads me to the conclusion that Bobadilla would have rejected the plea and either insisted on going to trial or attempted to negotiate a plea that did not include deportable offenses. Indeed, Bobadilla testified at the post

- conviction hearing that had trial counsel advised him of the risk of deportation, he would have “reacted differently” and “take[n] a different approach.” Tr. Vol. II p . 17.Court of Appeals of Indiana | Opinion 29A02-1706-P C -1 203 | January 25, 201 8 Page 15 of 15

[22] The majority suggests that Bobadilla would have accepted the plea even had he been advised of the risk of deportation because of “the State’s agreement to drop two additional misdemeanor charges” and “its agreement to an entirely suspended sentence to probation.” Slip op. at 10. But this conclusion is at odds not only with Bobadilla’s post

- conviction petition and testimony but also with everyday experience. Most people in his situation would see removal to a country they have not lived in since t hey were children to be a serious enough punishment to justify the rejection of an arguably “favorable” misdemeanor plea and taking their chances at trial. See Lee , 137 S. Ct. at 1968 (explaining that it would not be irrational for the defendant to choose “almost certain[]” deportation after a trial over “certain[]” deportation under a plea agreement). Therefore, while it is theoretically possible that Bobadilla would have accepted the plea had he been properly advised of the risk of deportation, there is most definitely “a reasonable probability” that he would have rejected it. See id. at 1967. As such, I would reverse the judgment of the post

- conviction court.