Jose Carreno v. State of Indiana (mem. dec.)

MEMORANDUM DECISION FILED Pursuant to Ind. Appellate Rule 65(D), Apr 15 2016, 7:52 am this Memorandum Decision shall not be CLERK regarded as precedent or cited before any Indiana Supreme Court Court of Appeals court except for the purpose of establishing and Tax Court

the defense of res judicata, collateral estoppel, or the law of the case.

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Kevin Munoz Gregory F. Zoeller Indianapolis, Indiana Attorney General of Indiana

J.T. Whitehead Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Jose Carreno, April 15, 2016 Appellant-Defendant, Court of Appeals Case No. 49A04-1509-CR-1337 v. Appeal from the Marion Superior Court State of Indiana, The Honorable Jose Salinas, Judge Appellee-Plaintiff Trial Court Cause No. 49G14-0812-FD-288153

Bailey, Judge. Court of Appeals of Indiana | Memorandum Decision 49A04-1509-CR-1337 | April 15, 2016 Page 1 of 7

Case Summary [1] Jose Carreno (“Carreno”) appeals the denial of his motion for post-conviction

relief, which challenged his plea of guilty to Possession of a Controlled

Substance.1 He presents the sole issue of whether he was denied the effective

assistance of counsel because counsel failed to advise Carreno of the possibility

of deportation.2 We affirm.

Facts and Procedural History [2] On February 12, 2009, Carreno pled guilty to Possession of a Controlled

Substance, as a Class D felony. He was sentenced to 180 days imprisonment,

with 178 days suspended to probation. He subsequently filed a motion to

modify the felony conviction to a misdemeanor conviction. On the date of

hearing on that motion, Carreno filed a petition for post-conviction relief.

Hearings were conducted on June 5, 2015 and on June 26, 2015. On August 7,

2015, the post-conviction court entered its findings, conclusions, and order

denying Carreno post-conviction relief. This appeal ensued.

Discussion and Decision

1 Ind. Code § 35-48-4-7. 2 The U.S. Immigration and Nationality Act provides that an alien is deportable for violating “any law or regulation of a State, the United States, or a foreign country relating to a controlled substance … other than a single offense involving possession for one’s own use of 30 grams or less of marijuana.” 8 U.S.C.A. § 1227(a)(2)(B)(i) (2008).

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Standard of Review [3] The petitioner in a post-conviction proceeding bears the burden of establishing

the grounds for relief by a preponderance of the evidence. Ind. Post-Conviction

Rule 1(5); Fisher v. State, 810 N.E.2d 674, 679 (Ind. 2004). When appealing

from the denial of post-conviction relief, the petitioner stands in the position of

one appealing from a negative judgment. Id. On review, we will not reverse

the judgment of the post-conviction court unless the evidence as a whole

unerringly and unmistakably leads to a conclusion opposite that reached by the

post-conviction court. Id. A post-conviction court’s 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. Id. In this review,

findings of fact are accepted unless they are clearly erroneous and no deference

is accorded to conclusions of law. Id. The post-conviction court is the sole

judge of the weight of the evidence and the credibility of witnesses. Id.

Effectiveness of Trial Counsel [4] Carreno sought post-conviction relief based upon his claim that, had his counsel

advised him that deportation was a potential consequence of his guilty plea, he

would not have so pled. Carreno’s counsel testified that he communicated with

Carreno through an interpreter, but he did not inquire into the immigration

status of his clients. [5] To prevail on a claim of ineffectiveness of counsel, a petitioner must

demonstrate both that his counsel’s performance was deficient and that he was

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prejudiced thereby. Strickland v. Washington, 466 U.S. 668 (1984)). “Because an

inability to satisfy either prong of this test is fatal to an ineffective assistance

claim, this court need not even evaluate counsel’s performance if the petitioner

suffered no prejudice from that performance.” Suarez v. State, 967 N.E.2d 552,

555 (Ind. Ct. App. 2012). [6] When a petitioner has pled guilty, we must analyze his claim under Segura v.

State, 749 N.E.2d 496 (Ind. 2001). Segura recognizes two main categories of

ineffectiveness in relation to a guilty plea, the second of which is implicated

here. Clarke v. State, 974 N.E.2d 562, 565 (Ind. Ct. App. 2012). This second

category relates to improper advisement of penal consequences, which may

involve “claims of intimidation by exaggerated penalty or enticement by an

understated maximum exposure” or “claims of incorrect advice as to the law.”

Willoughby v. State, 792 N.E.2d 560, 563 (Ind. Ct. App. 2003). The failure to

advise a client of the possibility of deportation in the event of a conviction may,

under certain circumstances, constitute ineffective assistance of counsel. Segura,

749 N.E.2d at 500. [7] A petitioner seeking post-conviction relief on grounds that a plea was entered

upon incorrect legal advice may not simply allege that he or she would not have

pled guilty with proper advice, nor is the petitioner’s conclusory testimony to

that effect sufficient to prove prejudice. Clarke, 974 N.E.2d at 565. Rather, the

petitioner must establish, by objective facts, circumstances that support the

conclusion that erroneous advice as to penal consequences was material to the

decision to plead. Id. It is appropriate to consider, along with the special

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circumstances presented, the strength of the State’s case, which a reasonable

defendant would take into account when pondering a guilty plea, and the

benefit conferred upon the defendant. Suarez, 967 N.E.2d at 556. “[I]f the post-

conviction court finds that the petitioner would have pleaded guilty even if

competently advised as to the penal consequences, the error in advice is

immaterial to the decision to plead and there is no prejudice.” Segura, 749

N.E.2d at 505. [8] Carreno contends that special circumstances existed in his case, akin to those

present in Sial v. State, 862 N.E.2d 702 (Ind. Ct. App. 2007). The defendant in

Sial was a non-citizen resident of the United States who pled guilty to theft as a

Class D felony. His attorney did not advise him of the possibility of

deportation and Sial filed a post-conviction petition on grounds that he had

received ineffective assistance of counsel. The petition was denied and Sial

appealed. A panel of this Court reversed the denial, concluding that Sial had

sufficiently demonstrated special circumstances consistent with Segura, because

Sial was a twenty-year resident of the United States and had a wife and child in

this country. Id. at 706. [9] Here, Carreno did not testify, but submitted an affidavit averring that he would

not have pled guilty had he been advised of the possibility of deportation.

Carreno’s wife testified, stating that she and Carreno had married in the United

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States and had a child soon thereafter.3 However, even if special circumstances

were found to exist, this does not end the inquiry. See Clarke, 974 N.E.2d at

566. [10] The State’s evidence against Carreno developed when an Indiana State Police

officer responded to a report of a single-vehicle crash. He found Carreno, who

tested positive for consumption of alcohol, also in possession of hydrocodone.

Carreno did not produce a valid prescription for the drug, but offered an

explanation that it was his wife’s medication and he had been taking it for tooth

pain. Carreno initially faced charges of possession of a controlled substance,

speeding, operating a vehicle without a valid license, and failure to signal.

Carreno pled guilty to the most serious charge and the other charges were

dismissed. Upon pleading guilty, Carreno was given a minimal sentence for his

Class D felony, 180 days. I.C. § 35-50-2-7. He received actual credit and good

time credit for the day he was incarcerated, and was ordered to serve the

remaining 178 days on probation. Carreno was afforded the opportunity to

subsequently apply for alternative misdemeanor sentencing. [11] The post-conviction court found that Carreno had demonstrated no prejudice

stemming from a lack of advice. We agree. Given the strength of the State’s

case and the benefits to Carreno accruing from his decision to plead guilty, we

conclude that Carreno has failed to show that there is an objectively reasonable

3 She did not testify as to Carreno’s country of origin or how long he had been in the United States.

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probability that he would have insisted on going to trial had his counsel advised

him of possible deportation.

Conclusion [12] Carreno has not established grounds for post-conviction relief.

[13] Affirmed.

Bradford, J., and Altice, J., concur.

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