Court of Appeals of Indiana | Opinion on Remand 49A04-1612-CR-2862 | October 5, 2018 Page 1 of 11

ATTORNEY FOR APPELLANT

H. Samuel Ansell 

Indianapolis, Indiana 

ATTORNEYS FOR APPELLEE

Curtis T. Hill, Jr. 

Attorney General of Indiana

Christina D. Pace 

Larry D. Allen 

Monika P. Talbot 

Deputy Attorneys General 

Indianapolis, Indiana 

I N T H E 

COURT OF APPEALS OF INDIANA 

Riley, Judge. 

 OPINION ON REMAND 

Umesh Kaushal,

Appellant-Defendant, 

v. 

State of Indiana, 

Appellee-Plaintiff. 

October 5, 2018

Court of Appeals Case No.

49A04-1612-CR-2862

Appeal from the Marion Superior 

Court

The Honorable Sheila Carlisle, 

Judge

The Honorable Stanley E. Kroh, 

Magistrate

Trial Court Cause No.

49G03-1508-F4-28287
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[1] This case is before us on remand from the United States Supreme Court. In 

Kaushal v. State, No. 49A04-1612-CR-2862, 2017 WL 3028623 (Ind. Ct. App. 

July 18, 2017), this court affirmed the trial court’s denial of Kaushal’s motion to 

withdraw his guilty plea which was based in part upon a claim that his guilty 

plea counsel had been ineffective. The Indiana Supreme Court denied his 

petition for transfer, and Kaushal subsequently filed a petition for writ of 

certiorari with the United States Supreme Court. On June 28, 2018, the 

Supreme Court granted the certiorari petition and remanded this case “for 

further consideration in light of Jae Lee v. United States, 582 U.S. ___ [, 137 S. 

Ct. 1958] (2017).” Kaushal v. Indiana, 138 S. Ct. 2567 (2018). Accordingly, we 

reconsider Kaushal’s appeal. 

[2] The facts of the case as set out by this court in its original opinion are as 

follows: 

Kaushal, a citizen of India, has lived in the United States for 

nearly a decade and has a Green Card. On August 11, 2015, the 

State filed an Information, charging Kaushal with child 

molesting as a Level 4 felony. The State alleged that Kaushal 

had fondled his thirteen-year-old stepdaughter’s breast. Shortly 

after his arrest, Kaushal posted bond and retained an attorney. 

Kaushal, who owns and operates several convenience stores in 

Indianapolis, Marion County, Indiana, made it clear to his 

attorney that his priority was to avoid any amount of 

incarceration so that he could continue to run his businesses and 

care for his mother. Given Kaushal’s insistence against 

imprisonment, along with his professional opinion that Kaushal 

was not likely to succeed at trial, Kaushal’s attorney focused on 

negotiating a deal with the State. 
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On May 4, 2016, Kaushal entered into a plea agreement with the 

State, pursuant to which he agreed to plead guilty to the child 

molesting offense. The agreement provided that Kaushal would 

receive a four-year sentence, with a one-year cap on executed 

time and with placement for the executed time to be determined 

by the trial court. However, after conferring with his attorney 

and realizing that he could be confined for a portion of his 

sentence, Kaushal withdrew from the plea agreement. 

On June 29, 2016, Kaushal entered into another plea agreement 

with the State, pursuant to which he again agreed to plead guilty 

to the offense of child molesting as a Level 4 felony. In 

exchange, Kaushal would receive a four-year suspended 

sentence, of which three years would be served on probation with 

a condition of home detention and one year on non-reporting 

probation. On June 30, 2016, the trial court conducted a hearing 

on Kaushal’s guilty plea. The trial court advised Kaushal of the 

implications of pleading guilty, including his obligation to 

comply with the Sex and Violent Offender Registry; his waiver of 

his right to appeal his conviction and/or sentence; and his waiver 

of certain constitutional rights, such as the right to a trial by jury 

and the right to confront and cross-examine witnesses. These 

warnings were also included in the written plea agreement, and 

Kaushal initialed next to each one to affirm his understanding. 

Also, among the written warnings was an advisement that, as a 

non-citizen, Kaushal could face deportation, denial of re-entry, 

prohibition of citizenship, or loss of immigration benefits as a 

result of the conviction. After questioning Kaushal, the trial 

court found that his guilty plea was made knowingly and 

voluntarily, and Kaushal agreed that there was a factual basis to 

support his conviction and that he was guilty of committing the 

charged offense. Accordingly, the trial court accepted the plea 

agreement and entered a judgment of conviction for child 

molesting as a Level 4 felony. 
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According to Kaushal, on July 1, 2016, he met with an attorney 

who focuses on immigration matters and learned that, as a result 

of his conviction for child molesting, he was likely to be 

immediately “picked up” by immigration officials. Thus, on July 

21, 2016, Kaushal filed a Verified Motion to Withdraw Plea of 

Guilty. Kaushal argued that “[o]utside of a vague advisement 

that the conviction may have immigration consequences, [he] 

was not advised of potential immigration consequences and 

would not have pled guilty to the charged crime had he known it 

would subject him to automatic detention, revocation of his 

permanent resident status, and certain deportation.” Kaushal 

further stated that he pled guilty “in order to avoid prison 

without having knowledge that his ability to legally reside in the 

United States would end. Kaushal owns several businesses and 

considers the United States to be his home. Although he has 

[pled] guilty, Kaushal maintains his innocence and wishes to 

proceed to trial.” Kaushal added that withdrawing the plea 

would not prejudice the State because the case could still proceed 

to trial, and he insisted that withdrawal was necessary to correct 

a manifest injustice. 

On August 5, 2016, and September 9, 2016, the trial court held 

hearings on Kaushal’s motion to withdraw his guilty plea. 

Kaushal testified that his attorney never discussed the 

immigration consequences in urging Kaushal to plead guilty. 

Yet, in response to another question about conversations with his 

attorney regarding his Green Card, Kaushal also stated, “I think 

I’m not going to be ever U.S. citizen, or I’m never going to be 

deported after, like—in that quick until I—I just find immigration 

stuff.” Kaushal clarified that, while he understood there would 

be “a hard road after” pleading guilty, he did not realize “that it’s 

going to be that hard—[that he would get] deported that quick.” 

On the other hand, Kaushal’s attorney testified that he went 

through each paragraph of the plea agreement with Kaushal, 

including the paragraph regarding possible immigration 

consequences, and Kaushal did not have any questions as to 

what he was signing. Moreover, Kaushal’s attorney testified that 
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Kaushal had informed him that he was contemporaneously 

conferring with immigration attorneys. Although Kaushal’s 

attorney stated that he does not practice immigration law, he 

specifically told Kaushal that his Green Card would not be 

renewed prior to Kaushal signing the plea agreement. 

On November 7, 2016, the trial court issued an Order Denying 

Verified Motion to Withdraw Guilty Plea. The trial court 

determined that even though the State had conceded that 

Kaushal’s attorney ineffectively advised Kaushal on the 

immigration consequences of pleading guilty, Kaushal failed to 

establish that he was prejudiced by his attorney’s advice. On 

December 2, 2016, Kaushal filed a motion to correct error, which 

the trial court denied on December 15, 2016. 

Kaushal, 2018 WL 3028623, at *1-2 (record citations and internal footnote 

omitted). Additional facts will be provided as necessary. 

[3] The issue relevant to our review on remand is whether, in light of Jae Lee,

Kaushal adequately established that he was prejudiced by his counsel’s deficient 

performance such that his guilty plea must be set aside. 

[4] We affirm. 

DISCUSSION AND DECISION 

[5] In our original opinion, we did not address the issue of whether Kaushal’s 

counsel’s performance was deficient because we concluded that, regardless, 

Kaushal had not demonstrated that he had been prejudiced by his counsel’s 

performance. Id. at *6. We began our analysis by setting out the general 
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Strickland standard for assessing prejudice, namely that a defendant must 

establish that, but for his counsel’s error, the result of the proceeding would 

have been different. Id. at *4. Relying upon Segura v. State, 749 N.E.2d 496, 

500 (Ind. 2001), and Gulzar v. State, 971 N.E.2d 1258, 1261 (Ind. Ct. App. 

20012), trans. denied, for the standard for assessing prejudice more specifically in 

the context of counsel’s failure to warn a defendant of penal consequences,

including immigration consequences, prior to entering a guilty plea, we noted 

that “‘specific facts, in addition to the [defendant’s] conclusory allegation, must 

establish an objective reasonable probability that competent representation 

would have caused the [defendant ] not to enter a plea.’” Id. at *5 (quoting 

Gulzar). 

[6] We considered Kaushal’s ties to the United States and the scant factual basis in 

the record for his guilty plea, which we noted militated in favor of finding 

prejudice. Id. at *6. However, we held that the substantial benefit Kaushal 

received from his plea, evidence of his knowledge before entering his plea that 

his Green Card would not be renewed, his review of his plea agreement with 

counsel and the trial court prior to entering his plea, and his concession at an 

evidentiary hearing on his motion that he knew that he would “face hurdles” 

with his immigration status after entering his plea all established that Kaushal 

knew that his immigration status could be affected by his plea but that “he was 

apparently willing to accept those risks in order to avoid spending any amount 
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of time incarcerated.” Id. We concluded that Kaushal had not demonstrated 

adequate prejudice because he had been advised of the possibility that he could 

be deported if he pled guilty but chose to plead guilty anyway. Id. 

[7] After briefing was completed in this matter but before our decision was handed 

down, the United States Supreme Court decided Jae Lee, in which it clarified 

the standards for assessing prejudice in cases where a defendant relied upon his 

counsel’s deficient performance in deciding to forgo trial and to instead enter a 

guilty plea. Kaushal sought rehearing, arguing that Jae Lee afforded him relief. 

(Appellant’s Petition for Rehearing pp. 6-9). After considering Jae Lee, we 

denied Kaushal’s petition for rehearing. Kaushal’s subsequent petition for 

transfer to our supreme court also cited Jae Lee. (Petition to Transfer pp. 5-7). 

Our supreme court also denied relief. 

[8] Lee, a longtime lawful permanent resident of the United States, was charged 

with one count of possessing ecstasy with intent to distribute, an offense that, if 

he were convicted, would subject him to mandatory deportation. Lee, 137 S. 

Ct. at 1962-63. Lee had admitted that the drugs found in his home were his and 

that he had given ecstasy to his friends. Id. at 1963. His counsel advised him 

that his chances of success at trial were slim but that he would not be deported 

if he pled guilty and served his sentence. Id. After pleading guilty and being 

sentenced, Lee learned that he was subject to mandatory deportation following 

his conviction. Id. Lee sought relief from his conviction and sentence based 

upon a claim that his guilty plea counsel was ineffective. Id. 
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[9] In its decision granting that relief, the Supreme Court clarified that a defendant 

alleging that his counsel’s deficient performance led him to enter a guilty plea in 

lieu of going to trial must establish “a reasonable probability that, but for 

counsel’s errors, he would not have pleaded guilty and would have insisted on 

going to trial.” Id. at 1965 (quoting Hill v. Lockhart, 474 U.S. 52, 59 (1985)). 

Courts reviewing such claims do not focus on the defendant’s chances of 

success at some hypothetical trial. Id. at 1967. Rather, it must be determined 

whether the defendant made an adequate showing that, if properly advised, he 

would have elected to go to trial. Id. The focus is on the defendant’s 

decisionmaking, which may not be based solely upon the likelihood of 

conviction. Id. at 1966. In order to establish prejudice, a defendant may not 

rely merely on post hoc claims that he would not have pled guilty had he been 

better advised. Id. at 1967. Rather, he must substantiate his claim that he 

would not have pled guilty with contemporaneous evidence. Id. 

[10] Under what it characterized as “the unusual circumstances” of Lee’s case, the 

Court held that Lee had established adequate prejudice because the record 

reflected a reasonable probability that, but for his counsel’s errors, Lee would 

have insisted on going to trial. Id. at 1967-68. Prior to accepting his plea, Lee 

asked his counsel repeatedly whether he would be deported following his guilty 

plea. Id. at 1967. At his guilty plea hearing, Lee was confused and sought the 

advice of his counsel when the trial court warned him as part of his plea 

colloquy that he could be deported as a result of his conviction. Id. at 1968. In 

addition, at an evidentiary hearing, both Lee and his attorney testified that 
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avoiding deportation was the determinative factor for Lee in deciding to plead 

guilty and that Lee would have gone to trial had he known about the 

deportation consequences of his decision to plead guilty. Id. at 1967-68. The 

Court also noted that Lee had strong connections to the United States, having 

resided here for over thirty years, having established two businesses, and having 

been the sole family caretaker for his elderly parents. Id. at 1968. The Court 

reasoned that for defendants like Lee, whose primary goal is to avoid 

deportation, it may be worth the risk of going to trial despite a low chance of 

success rather than plead guilty and face certain deportation. Id. at 1968-69. 

The Court noted that “[n]ot everyone in Lee’s position would make the choice 

to reject the plea. But we cannot say it would be irrational to do so.” Id. at 

1969. 

[11] In addressing the case at hand, we begin by noting that Kaushal has lived in the 

United States for approximately ten years, owns several businesses, cares for his 

mother, and now insists that he would not have pled guilty had he known he 

would be deported. However, we cannot conclude that these circumstances 

alone establish a reasonable probability that, but for his counsel’s performance, 

he would have insisted on going to trial. See id. at 1965. The contemporaneous 

evidence in the record reflects that avoiding imprisonment, not deportation, 

was the determinative issue for Kaushal in resolving his criminal case and 
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ultimately deciding to enter a guilty plea.1

 Some of the evidence which 

illustrates this is that at one of the evidentiary hearings in this matter, Kaushal’s 

counsel testified that “Mr. Kaushal’s first goal, in my opinion, always was that 

he didn’t want to go to prison” and “The whole thing was him not going to jail 

was – was what he wanted the whole time in my office. He didn’t want to 

spend one day in jail . . . was his major . . . number one.” (Transcript Vol. 2, 

pp. 53, 96). Kaushal testified at a hearing in this matter that he pled guilty 

because he was afraid of going to prison and that “It’s all about I’m scared to go 

to prison.” (Tr. Vol. 2, pp. 28, 35). 

[12] Apart from this testimony, Kaushal’s actions before seeking to set aside his plea 

affirm that avoiding prison was his primary objective in resolving his criminal 

case. Kaushal withdrew from his first plea agreement because he would have 

been required to execute a portion of his sentence in prison. Kaushal signed his 

second plea agreement which provided for an entirely-suspended sentence after 

being advised by his guilty plea counsel that his Green Card would not be 

renewed and after he had reviewed the paragraph in his plea agreement 

pertaining to possible immigration consequences. Unlike Jae Lee, Kaushal 

exhibited no confusion about the terms of his plea agreement during his plea 

 1

 The contemporaneous evidence relied upon in Jae Lee was uncontroverted. Id. at 1968-69. Inasmuch as 

any of the evidence we rely upon in reaching our decision was disputed, we note that we do not disturb the

trial court’s ruling on a motion to set aside a guilty plea simply because it was based upon conflicting 

evidence. Weatherford v. State, 697 N.E.2d 32, 34 (Ind. 1998). 
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colloquy. Rather, he confirmed to the trial court that he had read the plea 

agreement and understood it. 

[13] Kaushal was aware prior to entering his guilty plea that he faced a “hard road” 

regarding his immigration status if he pled, (Tr. Vol. 2, p. 29), but the record 

simply does not reflect that deportation was an overriding concern for him in 

deciding whether to plead guilty or to go to trial. Unlike Jae Lee, whose 

chances of achieving his ultimate goal of avoiding deportation were increased 

by going to trial, Kaushal had no increased chance of achieving his ultimate 

goal of avoiding prison by going to trial. Rather, the opposite is true because 

his plea agreement guaranteed that he would not be imprisoned. 

[14] The contemporaneous evidence in the record does not establish a reasonable 

probability that, but for his counsel’s errors, Kaushal would not have pled guilty 

and would have insisted on going to trial. Lee, 137 S. Ct. at 1965. We conclude 

that Kaushal did not establish, even in light of Jae Lee, that he was prejudiced by 

his counsel’s performance. As such, the trial court did not err in declining to set 

aside his guilty plea. 

[15] Affirmed. 

[16] Najam, J. and Bradford, J. concur