Appeal from the Elkhart Circuit Court, No. 20C01-1001-PC-1. The Honorable Terry C. Shewmaker, Judge. On Petition To Transfer from the Indiana Court of Appeals, No. 20A04-1208-PC-396.
ATTORNEYS FOR APPELLANT: Stephen T. Owens, Public Defender of Indiana, James T. Acklin, Chief Deputy Public Defender, Indianapolis, Indiana.
ATTORNEYS FOR APPELLEE: Gregory F. Zoeller, Attorney General of Indiana, Joseph Y. Ho, Deputy Attorney General, Indianapolis, Indiana.
Rucker, Justice. Dickson, C.J., and David, Massa and Rush, JJ., concur.
Victor Ponce is a non-native English speaker who pleaded guilty under terms of an agreement. He appeals the denial of his petition for post-conviction relief essentially contending that the Spanish translation of the rights he was waiving by entering the plea was so inaccurate his plea of guilty was not entered knowingly, intelligently, and voluntarily. We agree and reverse the judgment of the post-conviction court.
Over the last few decades, language diversity across the country has grown rapidly and non-English languages increasingly play a " continuing and growing role . . . as part of the national fabric." Camille Ryan, U.S. Census Bureau, Language Use in the United States: 2011 15 (August 2013). English speaking abilities vary
throughout the country and like most states across our nation Indiana is no stranger to language diversity. For example in 2011, 8.2% of Indiana's population spoke a language other than English at home and when asked to classify their level of English proficiency nearly 17% responded " not well" or " not at all." Id. at 2, 11. These linguistic barriers limit individuals' ability to participate fully in an English-speaking society and have a direct impact on their education, employment opportunities, poverty status, and even medical care. Id. at 10.
Among the most significant obstacles that persons of Limited English Proficiency (commonly referred to as " LEP" ) must overcome are the challenges to meaningful access to the courts. Impaired access to justice resulting from language inequalities is particularly damaging in the criminal context when someone's very liberty is at stake and a faulty trial can have irrevocable consequences. Essentially, for " the 'language-impaired' . . . due process is an empty charade because of their inability to communicate effectively or to comprehend the proceedings against them." Virginia E. Hench, What Kind of Hearing? Some Thoughts on Due Process for the Non-English-Speaking Criminal Defendant, 24 T. Marshall L. Rev. 251, 253 (1999). Due process is far more than a term of art. " [T]he fundamental requirement of procedural due process is the opportunity to be heard at a meaningful time and in a meaningful manner."
Perdue v. Gargano, 964 N.E.2d 825, 832 (Ind. 2012) (citing Goldberg v. Kelly,
397 U.S. 254, 267, 90 S.Ct. 1011, 25 L.Ed.2d 287 (1970)). In order for this constitutional protection to have meaning for the LEP litigant, due process must include not only the opportunity to be heard but also the opportunity to hear .
Both federal and state courts recognize the daunting challenges faced by LEP individuals; and courts are working diligently to eliminate those challenges. At the forefront of this initiative is an effort to provide competent interpreters for all LEP litigants. State and federal systems as well as independent agencies are working collaboratively to provide guidance in developing interpreter services. See generally Nat'l Ctr. for State Courts, A National Call to Action Access to Justice for Limited English Proficient Litigants: Creating Solutions to Language Barriers in State Courts (2013); Standing Committee on Legal Aid and Indigent Defendants, American Bar Association, Standards for Language Access in Courts (February 2012) [hereinafter " ABA Standards" ]. Ensuring competent interpretation services is " an essential component of a functional and fair justice system." ABA Standards, supra, 1. The lack of qualified interpreters affects the system of justice as a whole. Id. " Judges cannot administer justice when litigants in their courtrooms are unable to understand what is going on, or to convey crucial information to the court." Laura Abel, Brennan Center for Justice, Language Access in State Courts 5 (2009). This is equally damaging to the State's interests as well as those of the defendant.
See, e.g., Arrieta v. State, 878 N.E.2d 1238, 1240 n.2 ...