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Osmanov v. State

Court of Appeals of Indiana

July 22, 2015

Abdullatip Osmanov, Appellant-Defendant,
v.
State of Indiana, Appellee-Plaintiff

Appeal from the Huntington Superior Court. Lower Court Cause No. 35D01-1410-PC-14. The Honorable Jeffrey R. Heffelfinger, Judge.

ATTORNEY FOR APPELLANT: Rodolfo S. Monterrosa, Jr., South Bend, Indiana.

ATTORNEYS FOR APPELLEE: Gregory F. Zoeller, Attorney General of Indiana; James B. Martin, Deputy Attorney General, Indianapolis, Indiana.

OPINION

Page 905

Pyle, Judge.

Statement of the Case

[¶1] Abdullatip Osmanov (" Osmanov" ), a United States permanent resident who pled guilty to a felony and a misdemeanor, filed a petition for post-conviction relief, in which he claimed that his plea was entered unknowingly and that his trial counsel was ineffective, with both claims dependent on his contention that he had not been advised of the risk of deportation. Before the State filed a response to the petition, the post-conviction court--relying on a written advisement and waiver of rights form and the transcript from Osmanov's guilty plea--summarily denied Osmanov's post-conviction petition because the advisement/waiver form contained an advisement that a felony conviction could result in the possibility of deportation and because Osmanov stated during the guilty plea hearing that he had read the advisement and discussed it with his attorney. On appeal, Osmanov challenges both the propriety of the post-conviction court's entry of a summary denial and the denial of his two post-conviction claims. We find Osmanov's issue regarding the summary disposition to be dispositive and conclude that the post-conviction court erred by summarily denying Osmanov's post-conviction petition. Accordingly, we reverse the post-conviction

Page 906

court's judgment and remand for further proceedings.

[¶2] We reverse and remand.

Issue[1]

Whether the post-conviction court erred by summarily denying Osmanov's post-conviction petition.

Facts

[¶3] In April 2013, the State charged Osmanov, who was a United States permanent resident, with Class D felony theft[2] and Class B misdemeanor failure to stop after an accident resulting in non-vehicle damage.[3] In May 2013, Osmanov pled guilty, pursuant to a written plea agreement, to the crimes as charged. When doing so, he filed a " Written Advisement and Waiver of Rights" form with the trial court. (App. 4). The trial court sentenced Osmanov to three (3) years, with two (2) years and 357 days suspended to probation, for Osmanov's Class D felony conviction and to 180 days, with ...


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