Court of Appeals of Indiana | Opinion 29A02-1706-PC-1203 | January 25, 2018 Page 1 of 15

ATTORNEYS FOR APPELLANT

John L. Tompkins

The Law Office of John L. Tompkins

Indianapolis, Indiana

Kevin C. Muñoz

Muñoz Legal, LLC

Indianapolis, Indiana

ATTORNEYS FOR APPELLEE

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, 2018

Court of Appeals Case 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 denial 

of his petition for post-conviction relief, arguing that his trial counsel was 

ineffective and that he was prejudiced by the inadequate representation.
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[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 each paragraph contained either Bobadilla’s initials, or 

“NA” 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 this 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 count of Class A misdemeanor possession of a 

controlled substance and one count 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 marked “NA” 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 American 

customs, (4) that he did not understand Bobadilla was a Hispanic name at the 

time, and (5) that Bobadilla never informed him that he was not a naturalized 

citizen.

[5] Bobadilla explained during the hearing that his DACA status was 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 Nationality 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 personally 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—

he then initialed next to it, and signed his name underneath. 

[6] The 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 expedited hearing on May 12.

4 The postconviction 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 May 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 

whereabouts are not clear from the record, his brief indicates that Bobadilla has been deported. Appellant’s 

Br. at 6. 
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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 deficient by falling below an 

objective 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 been

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 the lack of prejudice, then this is the course we should 

follow. Trujillo v. State, 962 N.E.2d 110, 114 (Ind. Ct. App. 2011). 
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[10] Because Bobadilla’s claims are based on his contention that he received 

ineffective assistance of counsel as part of his guilty plea, we examine his claims 

under our supreme court’s decision in Segura v. State, 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 defendant 

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 guilty 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 consequences 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 postconviction relief. Appellant’s Br. at 8–11. However, the post-conviction court never addressed the “prejudice” 

prong of Strickland. Appellant’s App. p. 40. Because 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. However, we do note that the State concedes that counsel’s 

performance here may have been deficient. See Appellee’s Br. at 11,13. Additionally, during the postconviction hearing, Bobadilla’s trial counsel admitted that marking “NA” 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 this testimony, and the objection was 

sustained by the post-conviction court. 
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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 NA by 

trial 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 counsel. 

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 would 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 marijuana 
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convictions. And the State dropped 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, and 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. Under 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 States 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 ecstasy with intent to distribute. Lee entered into plea 

discussions with the Government, during which he repeatedly informed his 

attorney of his noncitizen status and his fear that he would be deported because 

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 

assurances, Lee decided to plead guilty. Because Lee pleaded guilty to what 

qualified as an aggravated felony under the Immigration and Nationality Act, 
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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 

that, 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” and 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 deported,” 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 attorney for advice. Only when 

Lee’s counsel 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 agreement 
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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 decision to accept 

a plea agreement, (2) Lee had strong connections to the United States and not 

his “home” country 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, although Bobadilla may have strong ties to the United 

States and not Mexico; unlike Lee, Bobadilla has failed to show that 

deportation was a determinative issue in his decision to plead guilty. Rather, 

the evidence shows that his decision to plead guilty was more likely heavily 

influenced by the State’s agreement to drop two additional 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 

between 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., dissents with opinion. 
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ATTORNEY FOR APPELLANT

John L. Tompkins

The Law Office of John L. Tompkins

Indianapolis, Indiana

Kevin C. Muñoz

Muñoz Legal, LLC

Indianapolis, Indiana

ATTORNEYS FOR APPELLEE

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 Case 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

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”—not 
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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 asking 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 

deported. See Lee v. United States, 137 S. Ct. 1958, 1967 (2017). Eighteen-yearold 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 possession 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 certification 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. 
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deportable offense which was essentially 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 postconviction 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 

Enforcement, 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. 
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[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 they 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.