PEREZ v. STATE (2025)

MEMORANDUM DECISION

Case Summary

[1] Juan Diego Perez is a native of Mexico who came to the United States in 2002, at the age of eighteen. In August of 2014, Perez pled guilty under cause number 20D01-1404-FD-396 (“Cause No. FD-396”) to one count of Class A misdemeanor domestic battery. In October of 2014, Perez pled guilty under cause number 20D01-1407-FD-763 (“Cause No. FD-763”) to one count of Class A misdemeanor domestic battery. At the time of his guilty pleas, Perez indicated that he understood that, due to his noncitizen-immigration status, he could be deported as a result of his convictions.

[2] In 2023, Perez filed a petition for post-conviction relief (“PCR”), seeking to overturn his guilty pleas in Cause Nos. FD-396 and FD-763. In this petition, Perez asserted that his trial counsel had rendered ineffective service by failing to inform him that he could be deported as a result of his convictions. He also asserted that due to his alleged lack of understanding of the potential immigration consequences of his convictions, his guilty pleas had not been made knowingly. On August 15, 2023, the post-conviction court denied Perez's PCR petition. We affirm.

Facts and Procedural History

[3] On April 15, 2014, the State charged Perez in Cause No. FD-396 with Class D felony domestic battery in the presence of a child. On July 16, 2014, the State charged Perez in Cause No. FD-763 with Class D felony domestic battery in the presence of a child. The alleged victim in both cases was Perez's wife, M.A. Perez was represented in both cases by Mike Yoder, an attorney with extensive experience representing clients in criminal law matters.

[4] On August 4, 2014, Perez entered into a plea agreement in Cause No. FD-396 (the “First Plea Agreement”). Appellant's App. Vol. II p. 39. “The First Plea Agreement stated that [Perez] was born in Mexico and was not a citizen of the United States. The plea terms in the First Plea Agreement called for [Perez] to plead guilty to ․ Domestic Battery as a Class A misdemeanor.” Appellant's App. Vol. II p. 39.

The First Plea Agreement had a section titled “Defendant's Rights.” Paragraph l6 contained an advisement stating “[t]he defendant understands that if he is not a legal citizen of the United States, he may be deported as a result of his plea of guilty.” [Perez] initialed paragraph l6 and also signed the plea agreement.

Appellant's App. Vol. II p. 40 (second set of brackets added). Paragraph 16 was in bold typeface, seemingly for emphasis.

[5] During a change of plea hearing, the trial court confirmed that Perez had reviewed the plea agreement and had discussed it with Yoder. Perez acknowledged that he had

signed and initialed the plea agreement indicating that he understood it. [Perez] stated that he reads, writes, and understands the English language. [The trial court] went through an advisement of rights with [Perez]. In said advisement, [the trial court] specifically advised [Perez] that he could suffer adverse immigration consequences, including deportation, as a result of his plea of guilty, to which [Perez] stated that he understood. [Perez] further acknowledged to [the trial court] that he had discussed the possible immigration consequences and his immigration status with [Yoder]. [Perez] also answered ․ affirmatively that he was satisfied with [Yoder's] representation.

Appellant's App. Vol. II p. 40.¹

[6] On October 6, 2014, Perez pled guilty under Cause No. FD-763 to Class A misdemeanor domestic battery (the “Second Plea Agreement”). The Second Plea Agreement again noted that Perez had been born in Mexico and was not a citizen of the United States.

The Second Plea Agreement had a section titled “Defendant's Rights.” Paragraph 16 contained an advisement stating “[t]he defendant understands that if he is not a legal citizen of the United States, he may be deported as a result of his plea of guilty.” [Perez] initialed paragraph 16 and also signed the plea agreement.

Appellant's App. Vol. II p. 41 (second set of brackets added). Perez also indicated in the Second Plea Agreement that he had been satisfied with Yoder's representation.

[7] On August 9, 2023, Perez filed a PCR petition that included both Cause Nos. FD-396 and FD-763. Perez argued that he had received ineffective assistance from Yoder and that his guilty pleas in Cause Nos. FD-396 and FD-763 were rendered involuntary due to his lack of understanding of the potential immigration consequences connected to his convictions. Without objection from either of the parties, the post-conviction court took judicial notice of the entire records for Cause Nos. FD-396 and FD-763. In reviewing each of the underlying records in Cause Nos. FD-396 and FD-763, the post-conviction court noted that Perez had repeatedly been informed of, and had indicated that he had understood, the potential immigration implications of his convictions and found that Perez had not, at any time during the underlying proceedings, “appear[ed] to have [had] any difficulties in speaking or understanding the English language.” Appellant's App. Vol. II p. 41. Following an evidentiary hearing, the post-conviction court denied Perez's PCR petition.²

Discussion and Decision

[8] “Post-conviction procedures do not afford the petitioner with a super-appeal.” Williams v. State, 706 N.E.2d 149, 153 (Ind. 1999). “Instead, they create a narrow remedy for subsequent collateral challenges to convictions, challenges which must be based on grounds enumerated in the post-conviction rules.” Id. A petitioner who has been denied post-conviction relief appeals from a negative judgment and as a result, faces a rigorous standard of review on appeal. Dewitt v. State, 755 N.E.2d 167, 169 (Ind. 2001); Collier v. State, 715 N.E.2d 940, 942 (Ind. Ct. App. 1999), trans. denied.

[9] Post-conviction proceedings are civil in nature. Stevens v. State, 770 N.E.2d 739, 745 (Ind. 2002). Therefore, in order to prevail, a petitioner must establish his claims by a preponderance of the evidence. Ind. Post-Conviction Rule 1(5); Stevens, 770 N.E.2d at 745. When appealing from the denial of a PCR petition, a petitioner must convince this court that the evidence, taken as a whole, “leads unerringly and unmistakably to a decision opposite that reached by the post-conviction court.” Stevens, 770 N.E.2d at 745. “In other words, the defendant must convince this Court that there is no way within the law that the court below could have reached the decision it did.” Id. (emphasis in original). “It is only where the evidence is without conflict and leads to but one conclusion, and the post-conviction court has reached the opposite conclusion, that its decision will be disturbed as contrary to law.” Godby v. State, 809 N.E.2d 480, 482 (Ind. Ct. App. 2004), trans. denied. “The post-conviction court is the sole judge of the weight of the evidence and the credibility of witnesses.” Fisher v. State, 810 N.E.2d 674, 679 (Ind. 2004).

[10] Perez contends that the post-conviction court erred in failing to find that Yoder had provided ineffective assistance and that his guilty pleas had not been knowingly and voluntarily made. We disagree with both contentions.

I. Ineffective Assistance of Counsel

[11] “The right to effective counsel is rooted in the Sixth Amendment of the United States Constitution.” Taylor v. State, 840 N.E.2d 324, 331 (Ind. 2006). “ ‘The Sixth Amendment recognizes the right to the assistance of counsel because it envisions counsel's playing a role that is critical to the ability of the adversarial system to produce just results.’ ” Id. (quoting Strickland v. Washington, 466 U.S. 668, 685 (1984)). “ ‘The benchmark for judging any claim of ineffectiveness must be whether counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result.’ ” Id. (quoting Strickland, 466 U.S. at 686).

[12] A successful claim for ineffective assistance of counsel must satisfy two components. Reed v. State, 866 N.E.2d 767, 769 (Ind. 2007). Under the first prong, the petitioner must establish that counsel's performance was deficient by demonstrating that counsel's representation “fell below an objective standard of reasonableness, committing errors so serious that the defendant did not have the ‘counsel’ guaranteed by the Sixth Amendment.” Id. (internal quotation omitted). “We recognize that even the finest, most experienced criminal defense attorneys may not agree on the ideal strategy or the most effective way to represent a client,” and therefore, under this prong, we will assume that counsel performed adequately and defer to counsel's strategic and tactical decisions. Smith v. State, 765 N.E.2d 578, 585 (Ind. 2002). “Isolated mistakes, poor strategy, inexperience, and instances of bad judgment do not necessarily render representation ineffective.” Id.

[13] Under the second prong, the petitioner must show that the deficient performance resulted in prejudice. Reed, 866 N.E.2d at 769. A petitioner may show prejudice by demonstrating that there is “a reasonable probability (i.e. a probability sufficient to undermine confidence in the outcome) that, but for counsel's errors, the result of the proceeding would have been different.” Id. (italics added, internal quotation omitted). With regard to a guilty plea, a petitioner “can show prejudice by demonstrating a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial.” Bobadilla v. State, 117 N.E.3d 1272, 1285 (Ind. 2019) (internal quotations omitted).

[14] A petitioner's failure to satisfy either prong will cause the ineffective assistance of counsel claim to fail. See Williams, 706 N.E.2d at 154. Stated differently, “[a]lthough the two parts of the Strickland test are separate inquires, a claim may be disposed of on either prong.” Grinstead v. State, 845 N.E.2d 1027, 1031 (Ind. 2006) (citing Williams, 706 N.E.2d at 154).

[15] The United States Supreme Court has held that, when dealing with a non-citizen client in a criminal case, an attorney “must inform [their] client whether his plea carries a risk of deportation.” Padilla v. Kentucky, 559 U.S. 356, 374 (2010). Likewise, the Indiana Supreme Court held that “attorneys must advise their clients of immigration consequences from a guilty plea; otherwise, they render constitutionally deficient performance.” Bobadilla, 117 N.E.3d at 1282. Applying Padilla and Bobadilla, we have concluded that trial counsel did not render deficient performance when a petitioner acknowledges that he had read and initialed a section of his plea agreement which informed him that he could be deported as a result of his guilty plea and conviction. See Zagal v. State, 130 N.E.3d 601, 604 (Ind. Ct. App. 2019) (rejecting petitioner's argument that trial counsel should have been required to make a separate advisement of potential immigration consequences of pleading guilty when plea agreement and court proceedings clearly advised petitioner of the potential immigration consequences), trans. denied.

[16] At the evidentiary hearing, Yoder testified that while he had no independent recollection of Perez or his case, Perez's immigration status would “probably [have been] part of the plea process.” Tr. Vol. II p. 8. The case records from Cause Nos. FD-396 and DF-763 prove Yoder's assumption to be true: Yoder acknowledged that while he is not an immigration attorney, in his practice, if he represents a noncitizen, he “always” advises his client to speak to an immigration attorney. Tr. Vol. II p. 8. Yoder was asked whether “[b]ack in 2014, uh, was it your belief that only a felony conviction could subject a person to deportation?” to which Yoder replied, “I had no such belief. Again, I'm not an immigration attorney. I had no such belief.” Tr. Vol. II p. 9. Yoder indicated that he “was not aware” of an immigration provision providing that the commission of any crime involving bodily harm would subject the noncitizen actor to deportation. Tr. Vol. II p. 9. Yoder testified that it is his general practice to explore all options relating to the plea process and to “go to my client with their options.” Tr. Vol. II p. 10. Yoder indicated that it is his general practice to present a proposed plea agreement to his client and to recommend that the client take the proposed plea agreement to an immigration attorney for review prior to entering into a guilty plea. Yoder repeatedly stated that he is “not an immigration attorney[,]” does not “hold [him]self out to be one[,]” and “always tell[s his] clients [that] they should consult an immigration attorney” in deciding how to proceed in criminal cases. Tr. Vol. II p. 15. Yoder testified that as far as he's aware, his practice is “the typical practice” amongst his colleagues in the criminal bar in Elkhart County. Tr. Vol. II p. 17.

[17] With regard to Perez's plea agreements, Yoder acknowledged that both the First and Second Plea Agreements indicated that Perez was not a United States citizen and, “based on [his] ordinary practices,” Yoder believes that he would have “instructed [Perez] to seek the advice of an immigration attorney prior to pleading guilty[.]” Tr. Vol. II p. 18. Yoder indicated that it would be “very rare” for him to fail to give a noncitizen client advance notice of the terms of a potential plea for review in advance to the client entering a guilty plea. Tr. Vol. II p. 19. Yoder indicated that there is an advisement in his client's plea agreements that if they are a noncitizen, “there's a possibility [that they] could be deported” and that he would always go over that advisement with his clients. Tr. Vol. II p. 28. It is undisputed that the First and Second Plea Agreements contained this advisement and that Perez initialed and indicated that he understood both advisements.

[18] The United States Supreme Court has recognized that

[i]mmigration law can be complex, and it is a legal specialty of its own. Some members of the bar who represent clients facing criminal charges, in either state or federal court or both, may not be well versed in it. There will, therefore, undoubtedly be numerous situations in which the deportation consequences of a particular plea are unclear or uncertain. The duty of the private practitioner in such cases is more limited.

Padilla, 559 U.S. at 369. Thus, “[w]hen the law is not succinct and straightforward ․, a criminal defense attorney need do no more than advise a noncitizen client that pending criminal charges may carry a risk of adverse immigration consequences.” Id. (emphasis added). “But when the deportation consequence is truly clear, as it was in this case, the duty to give correct advice is equally clear.” Id. The United States Supreme Court further held that “[t]he proper measure of attorney performance remains simply reasonableness under prevailing professional norms.” Id. at 366 (internal citation omitted). Prevailing professional norms are valuable measures of effective representation, “especially as these standards have been adapted to deal with the intersection of modern criminal prosecutions and immigration law.” Id. at 367. The evidence before the post-conviction court supports the inference that Yoder's representation was consistent with prevailing professional norms for non-immigration attorneys in Elkhart County.

[19] Moreover, in Zagal, we noted that the Indiana Supreme Court has held that to satisfy Padilla's mandate, “ ‘counsel need only read the form to his client or stand by patiently while the client reads the unmarked form[.]’ ” 130 N.E.3d at 604 (quoting Bobadilla, 117 N.E.3d at 1283). Applying the holdings of Padilla and Bobadilla to the evidence before us, we concluded that Zagal's trial counsel had not provided deficient performance when Zagal had admitted that he had read the immigration advisements in his plea agreements, which had indicated that he could be subject to deportation as a result of his conviction. Id. We reach the same conclusion in this case.

[20] The record is clear that Perez had read and initialed the immigration advisements in both plea agreements, had verbally indicated to the trial court at the time of entering his guilty plea in Cause No. FD-396 that he understood the potential immigration consequences of his guilty plea, and had not appeared to have any issues understanding written or spoken English. Perez has failed to prove that Yoder provided deficient performance and, as a result, that he received ineffective assistance of counsel. See id. at 603 (“A defendant who files a petition for post-conviction relief has the burden of establishing the grounds for relief[.]”); Williams, 706 N.E.2d at 154 (providing that a petitioner's failure to satisfy either prong will cause the ineffective assistance of counsel claim to fail).

II. Voluntary Nature of Guilty Pleas

[21] Perez also contends that his lack of understanding regarding his potential immigration consequences rendered his guilty pleas involuntary.

On review of a guilty plea, we look at all the evidence before the post-conviction court. If the evidence exists to support the court's determination that the guilty plea was voluntary, intelligent and knowing, we will not reverse. When a guilty plea is attacked because of alleged misinformation concerning sentencing, the issue of the validity of such plea is determined by a two-part test: 1) whether the defendant was aware of actual sentencing possibilities and 2) whether the accurate information would have made any difference in his decision to enter the plea.

Harris v. State, 762 N.E.2d 163, 166–67 (Ind. Ct. App. 2002) (internal citations omitted), trans. denied.

[22] Again, the post-conviction court took judicial notice of the records in Cause Nos. FD-396 and FD-763, and, upon review, found that both the First and Second Plea Agreements had indicated that Perez was not a United States citizen and had notified Perez that he could be deported “as a result of his plea of guilty.” Appellant's App. Vol. II pp. 40, 41. In both cases, Perez had indicated that he had read and understood both advisements. To the extent that Perez testified during the evidentiary hearing that he had not read the advisements, the post-conviction court was not required to credit Perez's self-serving testimony. See Sallee v. State, 51 N.E.3d 130, 135 (Ind. 2016) (providing that a trier-of-fact is entitled to credit or discredit a witness's testimony); Thompson v. State, 804 N.E.2d 1146, 1149 (Ind. 2004) (“As a general rule, factfinders are not required to believe a witness's testimony even when it is uncontradicted.”). The post-conviction court took further judicial notice of the fact that Perez had indicated during the guilty plea hearing for Cause No. FD-396 that he understood that “he could suffer adverse immigration consequences, including deportation, as a result of his plea of guilty.” Appellant's App. Vol. II p. 40.

[23] In an apparent attempt to circumvent his prior acknowledgments, Perez argued during the evidentiary hearing that he had not understood the advisements due to a language barrier. The post-conviction court, again, was not required to credit Perez's self-serving testimony, which happened to be in direct contradiction to Perez's prior statements in Cause Nos. FD-396 and FD-763. See Sallee, 51 N.E.3d at 135; Thompson, 804 N.E.2d at 1149.

[24] Perez also argues on appeal that he had misunderstood the law to only allow for potential immigration consequences for felony convictions. In support, he cites to the post-conviction court's Finding Number 20, which stated “[n]either [Perez nor trial counsel] were aware that the plea agreements had the potential for deportation as they both called for misdemeanor convictions.” Appellant's App. Vol. 42. While Finding Number 20 may support Perez's argument when read in isolation, it does not do so when read together with the post-conviction court's other findings and conclusions. The post-conviction court made numerous other findings indicating that Perez had been repeatedly informed, and had indicated that he had understood, the potential immigration consequences of his guilty pleas. While Finding Number 20 was perhaps inartfully crafted, we agree with the State that it does no more than recognize Perez's self-serving post-conviction claim that he had not believed that misdemeanor convictions could affect his immigration status and trial counsel's disclaimer of any knowledge of the intricacies of immigration law.

[25] Perez has failed to convince us that the evidence, taken as a whole, unerringly and unmistakably leads to a decision opposite of that reached by the post-conviction court. See Stevens, 770 N.E.2d at 745. Perez's challenge to the post-conviction court's determination that his guilty pleas were voluntarily made effectively amounts to an invitation to reweigh the evidence, which we will not do. See Fisher, 810 N.E.2d at 679 (“The post-conviction court is the sole judge of the weight of the evidence and the credibility of witnesses.”).

[26] The judgment of the post-conviction court is affirmed.

FOOTNOTES

1.   The post-conviction court summarized the change-of-plea proceedings after reviewing a recording of the change-of-plea hearing conducted in Cause No. FD-396. Perez does not argue on appeal that the post-conviction court's summary is inaccurate.

2.   While this appeal was pending, the trial court revised Perez's sentences in Cause Nos. FD-396 and FD-763 in an apparent attempt to help Perez avoid mandatory deportation. Perez's current status in the United States is unknown.

Bradford, Judge.

Altice, C.J., and DeBoer, J., concur.