Court of Appeals of Indiana | Opinion 19A-PC-694 | July 24, 2019 Page 1 of 8

ATTORNEYS FOR APPELLANT

Nancy A. McCaslin

McCaslin & McCaslin

Elkhart, Indiana

ATTORNEYS FOR APPELLEE

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 Case 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 risk 
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of deportation, and the post-conviction court denied him relief. Because Rayo 

Zagal admitted that the advisements of rights at his initial hearing 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 these advisements, we affirm the postconviction 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 charged 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 contained the 

following advisement: “If you are an illegal alien you may be deported 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 Mexico. Id. at 19. The agreement 

contained a section entitled “Defendant’s Rights.” Rayo Zagal wrote his 

initials next to the following provision:
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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 

acknowledgments 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 “carefully,” 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 2007, the 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 that 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.
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[7] At the reset sentencing hearing in May 2008, the trial court found that Rayo

Zagal had satisfied 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 of 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 deported.” 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 wrote his initials next to the provision in 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. Id. at 62-63. Despite agreeing that this

language was not ambiguous, Rayo Zagal claimed that 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 was 
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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 court 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, twopart 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) counsel’s deficient performance prejudiced the defendant, i.e., but for 

counsel’s errors, the result of the proceeding would have been different. Id. 
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[13] Rayo Zagal argues that his trial counsel performed deficiently because he did 

not advise him that his guilty 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 Strickland 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 consequences 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 almost twelve years after Rayo Zagal pled 

guilty in 2007. In addition, Bobadilla relies heavily on Padilla, 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. As the Court explained, “Segura

predated Padilla by nine years and the holdings roughly align . . . .” Id. at 1282. 

Arguably, then, the principles discussed by our Supreme 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 plea 
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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 advisements. 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 any authority to support such an argument. Indeed, the 

Indiana Supreme Court held in Bobadilla that 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 whether 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 plea 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 read the advisements at his initial hearing and in 
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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 to object when the trial court entered 

judgment of conviction for possession of cocaine as a Class A misdemeanor. Citing Indiana Code sections

35-38-1-1.5 and 35-50-2-7, Rayo Zagal claims that 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.