Court of Appeals of Indiana | Opinion 19A

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- 694 | July 24, 2019 Page 1 of 8

A TTORNEY S FOR A PPELLANT Nancy A . McCaslin McCaslin & McCaslin Elkhart, Indiana A TTORNEY S FOR A PPELLEE Curtis T. Hill, Jr. Attorney General Chandra K. Hein Deputy Attorney General Indianapolis, Indiana



### I N T H E 

# COURT OF APPEALS OF INDIANA

Pedro Rayo Zagal , Appellant

- Petitioner ,

v. 

### State of Indiana , Appellee

- Respondent July 24, 2019 Court of Appeals Ca se No. 19A

- PC

- 694 Appeal from the Elkhart Superior Court The Honorable Charles Carter Wicks, Judge Trial Court Cause No. 20D05

- 1809

- PC

- 46

Vaidik , Chief Judge
. 

# Case Summary

[1] In 2007, Pedro Rayo Zagal pled guilty to possession of cocaine . More than ten years later, he filed a petition for post

- conviction relief alleging that his trial counsel was ineffective for failing to advise him that his guilty plea carried a riskCourt of Appeals of Indiana | Opinion 19A

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of deportation , and t he post

- conviction court denied him relief. Because Rayo Zagal admit ted that the advisement s of rights at his initial hearin g and in his plea agreement informed him that he could be deported as a result of his guilty plea and conviction and that he read th e s e advisement s , we affirm the post

conviction court. 

# Facts and Procedural History

[2] Rayo Zagal came to the United States from Mexico in 1994, when he was seven years old. Rayo Zagal is in the country under the United States Department of Homeland Security’s Deferred Action for Childhood Arrivals (DACA)
program.

[3] On January 30, 2007, the State charge d Rayo Zagal , then nineteen years old, with Class D felony possession of cocaine. At his February 2 initial hearing, Rayo signed an Advisement of Rights and Penalties , which contain ed the following advisement: “ If you are an illegal alien you may be depor ted if convicted of a crime.” Appellant’s App. Vol. II p. 16.

[4] In April 2007 , the State and Rayo Zagal , who was represented by counsel, entered into a written plea agreement. The agreement stated that Rayo Zagal was born in Mexico and a citizen of Mexic o. Id. at 19. The agreement contained a section entitled “Defendant’s Rights.” Rayo Zagal wrote his initials next to the following provision :Court of Appeals of Indiana | Opinion 19A

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The defendant understands that if he/she is not a legal citizen of the United States, he/she may be deported as a result of his/her plea of guilty.

Id. at 21. In addition, Rayo Zagal wrote his initials next to the acknowledgment s that he had “received and read, or had read to him,” the plea agreement and that the plea agreement “was translated into Spanish, my native language, before I signed it.” Id. at 20 , 22

. Both Rayo Zagal and his trial counsel then signed the plea agreement.

[5] At the guilty

- plea hearing, Rayo Zagal acknowledged that he read over the plea agreement “car efully,” understood what he read, and initialed and signed it. Tr. pp. 4

- 5. The trial court noted that Rayo Zagal was born in Mexico and a citizen of Mexico but was “completely fluent in English.” Tr. p. 12. The court took the plea under advisement and set the matter for sentencing.

[6] At the sentencing hearing in May 20 0 7 , t he trial court explained that given Rayo Zagal ’s age and immaturity, it “was reluctant to hang a felony conviction on [him] at this point.” Id. at 22. The court told Rayo Zagal tha t if he was willing to accept “certain conditions,” it was “willing to continue sentencing for a while to give [him] a chance to maybe avoid a felony conviction.” Id. Rayo Zagal accepted the conditions, including that he stay away from drugs and alcohol, submit to chemical tests, obtain his GED, and perform community service, and the court “reset sentencing” for one year. Id. at 23.Court of Appeals of Indiana | Opinion 19A

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[7] At the reset sentencing hearing in May 20 0 8 , the trial court found that Rayo Zagal had satisfi ed the conditions , entered judgment of conviction for possession of cocaine as a Class A misdemeanor, and sentenced Rayo Zagal to
one year of incarceration, all suspended to probation . Appellant’s App. Vol. II p. 23.

[8] Ten years later, in the summer o f 2018, Rayo Zagal spoke with an immigration attorney, who told him that he couldn’t become a United States citizen due to his possession

- of

- cocaine conviction and that his “road ends at DACA and if that gets thrown out , [he’s] in jeopardy of being deporte d. ” Tr. p. 54. In September 2018, Rayo Zagal filed a petition for post

- conviction relief alleging that his trial counsel was ineffective for not “advis[ing] [him] of the immigration consequences of entering a guilty plea.” Appellant’s App. Vol. II p. 32

.

[9] At the post

- conviction hearing, Rayo Zagal testified that his trial counsel did not advise him of the immigration consequences of pleading guilty to possession of cocaine

. Tr. p. 58 . However, Rayo Zagal admitted that he read and wr ote his initials next to the provision i n his plea agreement that he understood that if he was not a legal citizen of the United States, he may be deported as a result of his plea

. I d. at 62

- 63

. Despite agreeing that th is language was not ambiguous, Rayo Zagal claimed th at he “did not know to what degree that meant not until [he] spoke with an immigration lawyer.” Id.

at 63

. Rayo Zagal also admitted reading and signing the Advisement of Rights and Penalties at his initial hearing , which similarly advised him that if he wasCourt of Appeals of Indiana | Opinion 19A

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an illegal alien, he may be deported if convicted of a crime

. Id. 64

- 66

. In an order dated March 1, 2019, the post

- conviction court found that Rayo Zagal ’s trial counsel did not perform deficiently and denied him relief.

[10] Rayo Zagal now appeals.



# Discussion and Decision

[11] A defendant who files a petition for post

- conviction relief has the burden of establishing the grounds for relief by a preponderance of the evidence. Hollowell
v. State , 19 N.E.3d 263, 268

- 69 (Ind. 2014). If the post

- conviction co urt denies relief, and the petitioner appeals, the petitioner must show that the evidence leads unerringly and unmistakably to a conclusion opposite that reached by the post

- conviction court. Id. at 269.

[12] Rayo Zagal contends that the post

- conviction court should have granted him relief because his trial counsel was ineffective

. When evaluating a defendant ’ s ineffective

- assistance

- of

- counsel claim, we apply the well

- established, two

part test from Strickland v. Washington , 466 U.S. 668 (1984)

. Bobadilla v. State , 117 N.E.3d 1272, 1280 (Ind. 2019). The defendant must prove that (1) counsel rendered deficient performance, meaning counsel ’ s representation fell below an objective standard of reasonableness as gauged by prevailing professional norms and (2) cou nsel ’ s deficient performance prejudiced the defendant, i.e., but for counsel ’ s errors , the result of the proceeding would have been different. Id.Court of Appeals of Indiana | Opinion 19A

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[13] Rayo Zagal argues that his trial counsel performed deficiently because he did not advise him that his guil ty plea carried a risk of deportation. In Padilla v. Kentucky , the United States Supreme Court held that “counsel must inform her client whether his plea carries a risk of deportation” and that failure to do so “clearly satisfies the first prong of the St rickland analysis. ” 559 U.S. 356, 371, 374 (2010). In Bobadilla , the Indiana Supreme Court held that it is “bound by Padilla

— attorneys must advise their clients of immigration cons e quences from a guilty plea; otherwise, they render constitutionally deficient performance.” Bobadilla , 117 N.E.3d at 1282.

[14] Rayo Zagal ’s brief relies heavily on Bobadilla

. That decision was issued on March 5, 2019, four days after the post

- conviction court’s order in this case. More importantly, it was issued alm ost twelve years after Rayo Zagal pled guilty in 2007

. In addition, Bobadilla relies heavily on P adilla , which the United States Supreme Court decided in 2010 and has since ruled is not retroactive.
See Chaidez v. United States , 568 U.S. 342 (2013). Nevertheless, our Supreme Court stated in Bobadilla that when Padilla was decided “our state’s case law already contained Padilla

- esque requirements” in Segura v. State , 749 N.E.2d 496 (Ind. 2001). Bobadilla , 117 N.E.3d at 1281. A s the Court explained, “ Segura predated Padilla by nine years and the holdings roughly align . . . .” Id. at 1282. Arguably , then, the principles discussed by our S up reme Court in Bobadilla are relevant. But even considering Bobadilla , Rayo Zagal is not entitled to relief.

[15] Notably, Rayo Zagal does not dispute that the Advisement of Rights and Penalties at his initial hearing and the “Defendant’s Rights” section of his pleaCourt of Appeals of Indiana | Opinion 19A

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agreement informed him that he could be deported as a result of his guilty plea and conviction

. He also does not dispute that he read these a dvisements

. His argument therefore appears to be that trial counsel should have separately advised him of the immigration consequences of pleading guilty

. Rayo Zagal, however, does not cite a ny authority to support such an argument

. Indeed, the Indiana Supreme Court held in Bobadilla tha t trial counsel can satisfy Padilla by “letting the client read and mark [an] advisement” form that contains a Padilla warning :
At the very least, counsel need only read the form to his client or stand by patiently while the client reads the unmarked form to satisfy Padilla ’ s mandate. See Padilla , 559 U.S. at 369 (acknowledging immigration law ’ s complexity and explaining that when the law is unclear on whet her a client faces deportation, “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”). Reading the form puts the client on notice that a guilty ple a amounts to a criminal conviction that might have immigration consequences and the client should consult an attorney.

Bobadilla , 117 N.E.3d at 1283

.

[16] Here, even assuming that trial counsel did not separately advise Rayo Zagal, Rayo Zagal admitted that he r ead the advisements at his initial hearing and inCourt of Appeals of Indiana | Opinion 19A

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his plea agreement

. This is all that is required. Trial counsel was not deficient

. 1 We therefore affirm the post

- conviction court

. Riley, J., and Bradford, J., concur

.

1 Rayo Zagal also argues that his trial counsel was ineffective for failing t o object when the trial court entered judgment of conviction for possession of cocaine as a Class A misdem eanor
. Citing Indiana Code section s 35

- 3 8

- 1

- 1.5 and 35

- 50

- 2

- 7 , Rayo Zagal claims tha t the trial court could have only entered judgment of conviction as a Class D felony. Even if Rayo Zagal is correct, which the State disputes, Rayo Zagal has not established how entering judgment of conviction as a Class A misdemeanor instead of a Class D felony has prejudiced him.