Bobadilla v. State

          Argued: June 19, 2018

          Appeal from the Hamilton Superior Court, No. 29D04-1612-PC-9318 The Honorable J. Richard Campbell, Judge.

          On Petition to Transfer from the Indiana Court of Appeals, No. 29A02-1706-PC-1203

          ATTORNEYS FOR APPELLANT Kevin C. Muñoz Muñoz Legal, LLC Indianapolis, Indiana John L. Tompkins The Law Office of John L. Tompkins Indianapolis, Indiana

          ATTORNEYS FOR APPELLEE Curtis T. Hill, Jr. Attorney General of Indiana Monika Prekopa Talbot Supervising Deputy Attorney General Indianapolis, Indiana

          OPINION

          GOFF, JUSTICE.

         "Life changes in the instant. The ordinary instant."^[1] Perhaps nothing is more ordinary in Indiana's justice system than a guilty-plea hearing, but these everyday proceedings undoubtedly alter peoples' lives. Over three years ago, Angelo Bobadilla entered an Indiana courtroom to plead guilty to two low-level misdemeanors. But when the then-teenager exited the courtroom, he didn't know that his guilty plea made him a deportable felon under federal immigration law.

         Bobadilla's life changed the moment he pleaded guilty to stealing less than $20 of merchandise from Walmart. Upon realizing his plea's dire implications, a desperate Bobadilla sought post-conviction relief, alleging ineffective assistance of counsel: his attorney provided deficient performance that prejudiced him. We agree.

         Today we hold that counsel rendered ineffective assistance to Bobadilla. On the trial court's standard advisement of rights form, counsel affirmatively marked as "not applicable" the warning about potential immigration consequences from a criminal conviction-without so much as asking Bobadilla's citizenship status. This mistake prejudiced Bobadilla because the record shows a reasonable probability that, had he known his plea's full consequences, he would have rejected that plea bargain and instead insisted on going to trial.

         Factual and Procedural History

         On March 1, 2016, nineteen-year-old Angelo Bobadilla entered Hamilton Superior Court 4 intending to plead guilty to two misdemeanors. Eight months earlier, a Walmart loss prevention employee detained Bobadilla on suspicion of shoplifting after seeing him conceal a pack of underwear and a pack of t-shirts, then walk past all points of sale without paying. Westfield police officer Joseph Hopkins responded to the store and arrested Bobadilla, who admitted taking "the merchandise in question because he needed them." Probable Cause Affidavit, State v. Bobadilla, No. 29D04-1507-CM-6199 (Super. Ct. July 20, 2015).^[2] During the search-incident-to-arrest Officer Hopkins found in Bobadilla's backpack a small plastic bag containing marijuana, a pipe smelling of burnt marijuana, and one Vicodin tablet, which Bobadilla admitted had not been prescribed to him.

         After transporting Bobadilla to the Hamilton County Jail, Officer Hopkins completed a Book-In Slip listing Bobadilla's birthplace as Cuernavaca, Mexico.

         The next day the State charged Bobadilla with four counts: Theft and Possession of a Controlled Substance, both Class A Misdemeanors; Possession of Marijuana, a Class B Misdemeanor; and Possession of Paraphernalia, a Class C Misdemeanor. The State's charging information contained a partially redacted social security number. During discovery, the State released these documents (the charging information, the probable cause affidavit, and Book-In Slip) to Bobadilla's counsel.

         Bobadilla had as trial counsel a criminal defense attorney with over thirty years' experience. Trial counsel negotiated a plea agreement whereby Bobadilla agreed to plead guilty to two counts in exchange for dismissal of the remaining counts, but he would receive the maximum sentence allowed-albeit a completely suspended sentence.

         When Bobadilla arrived at the courthouse on March 1st for his guilty plea hearing, his attorney presented him with the Hamilton County Superior Court's standard advisement of rights form, titled "Misdemeanors and Level 6 Felony Advisement Form." Appellant's App. Vol. II, pp. 115-16; Petitioner's Ex. 1. Prior to handing the form to Bobadilla to read and then sign, counsel identified certain advisements he believed did not pertain to Bobadilla by marking them "N/A" for "not applicable." Appellant's App. Vol. II, pp. 115-16; Petitioner's Ex. 1; Tr. pp. 5-7. Most notably-without first talking with Bobadilla-counsel marked "N/A" next to the following advisement:

If you are not a U.S. citizen, a criminal conviction may have immigration consequences, including deportation. You should discuss this possibility with your attorney because if you do plead guilty, it will result in a criminal conviction.

         Appellant's App. Vol. II, pp. 26, 116; Petitioner's Ex. 1. What trial counsel did not know was that Bobadilla was not a United States citizen, but a "Dreamer" under the Department of Homeland Security's Deferred Action for Childhood Arrivals (DACA) program. Bobadilla read and signed the form, pleaded guilty, and received the promised suspended sentence-one year for A-Misdemeanor Theft and 180 days for B-Misdemeanor Marijuana Possession. By all accounts, the guilty-plea hearing went as expected-quickly and routinely. At the end, the court wished Bobadilla good luck, Bobadilla thanked the judge, and he left the courthouse.

         Bobadilla, however, soon learned his routine guilty plea posed a serious problem for him. Following a probation violation, Bobadilla consulted different legal counsel and learned his A-Misdemeanor Theft conviction and its concomitant one-year sentence amounted to an "aggravated felony" under federal immigration law, making him deportable.^[3] Bobadilla immediately filed a verified petition for post-conviction relief, alleging he received ineffective assistance of trial counsel under Strickland v. Washington, 466 U.S. 668 (1984), because he was not adequately advised of the consequences of his plea. Specifically, he argued his trial attorney rendered deficient performance that prejudiced him by failing to ascertain his citizenship status before marking "N/A" next to the advisement of rights form's paragraph regarding citizenship and immigration status.

         Just one year after initially pleading guilty, on March 7, 2017, Bobadilla returned to the same court for a hearing on his petition for post-conviction relief. Trial counsel testified first and confirmed that he wrote "N/A" next to the advisement on citizenship status without ever asking Bobadilla about his citizenship or immigration status. He said he simply assumed Bobadilla was a United States citizen and did not understand that "Bobadilla" was a Hispanic name. Counsel testified he would not have marked "N/A" had he known Bobadilla was not a U.S. citizen.

         Bobadilla testified next and corroborated that his trial attorney never asked him about his citizenship status. Bobadilla said he understood "N/A" to mean "not applicable." He testified he read those paragraphs marked "N/A", but he relied on counsel's advice that those paragraphs did not apply to him and he did not ask about them. Bobadilla testified that if the citizenship paragraph had not been marked "N/A", he would have reacted differently and "take[n] a different approach to that." Tr. at pp. 16-17.

         Bobadilla informed the court that his DACA status was at risk and he was now deportable following his theft conviction. Bobadilla reported he had not been contacted by Immigration and Customs Enforcement (ICE) and he was not, at that moment, subject to imminent deportation. Before resting his case, Bobadilla's post-conviction counsel asked the court to take judicial notice of the criminal court cause number file and the State supported that motion.

         On April 17, 2017, the court issued an order denying Bobadilla post-conviction relief. The court acknowledged that United States Supreme Court precedent requires an attorney to inform the noncitizen criminal defendant whether a guilty plea carries a risk of deportation. But the court phrased the issue before it narrowly as "whether an attorney must first affirmatively ascertain whether his client is a U.S. citizen in the absence of any evidence that he is not, before the attorney would have to advise his client of the risk of deportation." Appellant's App. Vol. II, p. 38.

         In its factual findings the postconviction court repeatedly noted that Bobadilla spoke with no foreign accent and that he could read and understand English. It further found "that the charging information and the probable cause affidavit contain no information that would suggest that [Bobadilla] was not a U.S. citizen." Id. at 36. With these and other facts, the court concluded that trial counsel did not render deficient performance because he "did not know, and had no reason to suspect, that [Bobadilla] was not a native-born citizen of the United States." Id. at 40. Because the post-conviction court found no deficient performance, it did not consider Strickland's prejudice prong.

         Meanwhile, Bobadilla's situation grew more precarious. On May 3, 2017, he was transferred from the Hamilton County Jail into ICE's custody. That same day, ICE processed him and issued a Notice of Intent to Issue a Final Administrative Removal Order. With this turn of events, at 12 p.m. on Friday, May 12, 2017, Bobadilla filed with the post-conviction court an emergency motion to correct error and a request for an expedited hearing.

         Bobadilla attached to his motion the Book-In Slip listing Mexico as his birthplace. He used this form, which the State released to trial counsel during discovery, to argue that trial counsel had reason to know he was not a U.S. citizen-contrary to the court's conclusion. Bobadilla also attached to the motion ICE's removal order. The emergency motion informed the court the order would become final on May 17, 2017, and executable fourteen days after that, meaning Bobadilla could be removed from the United States as soon as May 31, 2017. Citing information from ICE's FAQ webpage, the motion stated: "[a]fter removal from the U.S. Bobadilla will have no effective immigration remedy . . . any favorable decision on this motion or on appeal will likely be meaningless." Id. at 46. Without a hearing, and without explanation, the post-conviction court denied Bobadilla's motion the following Monday, May 15, 2017.

         Bobadilla was deported, and the record is silent on his current whereabouts.

         Bobadilla's appellate counsel nevertheless filed an appeal on his behalf. A divided Court of Appeals affirmed the post-conviction court's decision, albeit on different legal grounds. Bobadilla v. State, 93 N.E.3d 783 (Ind.Ct.App. 2018). Unlike the lower court, the Court of Appeals decided the matter on Strickland's prejudice prong. Id. at 786-87. The court noted "the State concedes that counsel's performance here may have been deficient," Id. at 786 n.5 (citing Appellee's Br. pp. 11, 13), and so declined to address whether the post-conviction court erred in finding no deficient performance, id. The majority ultimately held that Bobadilla failed to show that he was prejudiced by trial counsel's failure to advise him that his guilty plea carried the risk of deportation. Id. at 786. Chief Judge Vaidik dissented, believing Bobadilla received deficient performance and suffered prejudice because, had he been properly advised, he would have rejected the plea agreement and gone to trial. Id. at 788-90.

         Bobadilla now petitions for transfer, which we grant, thereby vacating the Court of Appeals opinion. Ind. Appellate Rule 58(A).

         Standard of Review

         Post-conviction actions are civil proceedings, meaning the petitioner (the prior criminal defendant) must prove his claims by a preponderance of the evidence. Ind. Post-Conviction Rule 1(5); Wilkes v. State, 984 N.E.2d 1236, 1240 (Ind. 2013). If he fails to meet this burden and receives a denial of post-conviction relief, then he proceeds from a negative judgment and on appeal must prove "that the evidence, as a whole, unmistakably and unerringly points to a conclusion contrary to the post-conviction court's decision." Wilkes, 984 N.E.2d at 1240 (quoting Ben-Yisrayl v. State, 738 N.E.2d 253, 258 (Ind. 2000)). When reviewing the court's order denying relief, we will "not defer to the post-conviction court's legal conclusions," and the "findings and judgment will be reversed only upon a showing of clear error-that which leaves us with a definite and firm conviction that a mistake has been made." Humphrey v. State, 73 N.E.3d 677, 682 (Ind. 2017) (quoting Ben-Yisrayl v. State, 729 N.E.2d 102, 106 (Ind. 2000)).

         Discussion and Decision

         The criminal defendant's right to counsel is foundational to our criminal justice system, giving it legitimacy and fairness. The Sixth Amendment to the United States Constitution guarantees criminal defendants the right to counsel and mandates "that 'the right to counsel is the right to the effective assistance of counsel.'" Strickland, 466 U.S. at 686 (quoting McMann v. Richardson, 397 U.S. 759, 771 n.14 (1970)). Criminal defendants deserve-and the Constitution demands-assistance from a competent attorney to help them through the justice system.

         When evaluating a defendant's ineffective-assistance-of-counsel claim, we apply the well-established, two-part Strickland test. Humphrey, 73 N.E.3d at 682. The defendant must prove: (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. Ward v. State, 969 N.E.2d 46, 51 (Ind. 2012) (citing Strickland, 466 U.S. at 687).^[4] The Strickland standard is not limited to the trial or appellate phases in criminal proceedings, but also applies when defendants allege ineffective assistance during the guilty plea phase. Segura v. State, 749 N.E.2d 496, 500-01 (Ind. 2001). See also Padilla ...