Argued: June 19, 2018
from the Hamilton Superior Court, No. 29D04-1612-PC-9318 The
Honorable J. Richard Campbell, Judge.
Petition to Transfer from the Indiana Court of Appeals, No.
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
changes in the instant. The ordinary
instant." 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.
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.
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.
and Procedural History
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). 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.
transporting Bobadilla to the Hamilton County Jail, Officer
Hopkins completed a Book-In Slip listing Bobadilla's
birthplace as Cuernavaca, Mexico.
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
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.
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
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.
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.
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. 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.
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.
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.
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.
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.
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
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.
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.
was deported, and the record is silent on his current
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.
now petitions for transfer, which we grant, thereby vacating
the Court of Appeals opinion. Ind. Appellate Rule 58(A).
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)).
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
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). 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 ...