SHONHAI v. STATE (2025)

MEMORANDUM DECISION

Case Summary

[1] After pleading guilty to sexual battery in 2011, Kudzai Shonhai avoided prison but found himself facing possible deportation. Upon the initiation of deportation proceedings, he filed a petition for post-conviction relief (PCR) asserting his attorney in the sexual battery case provided him with ineffective assistance of counsel. The post-conviction court denied his petition and Shonhai appeals. We affirm.

Facts and Procedural History

[2] In 2004, Shonhai's father was granted asylum in the United States from the Republic of Zimbabwe where he was facing political retribution. Later, he petitioned for his children to be granted the same status, and that petition was granted. Shonhai arrived in the United States as an asylee in 2006 when he was nineteen years old.

[3] In 2010, when Shonhai was twenty-three years old, he was charged with Count I: Sexual Misconduct With a Minor, as a Class C felony,¹ for “kissing [the] breast” of an intoxicated fifteen-year-old girl at a party. Appellant's Appendix Vol. 2 at 23. The State later added Count II: Sexual Battery, as a Class D felony.² Attorney Michael J. Manning represented Shonhai for the duration of the case. In the Spring of 2011, Shonhai pled guilty to Count II and Count I was dismissed. He was required to register as a sex offender, and he was sentenced to 1,095 days in the Indiana Department of Correction with twenty days of credit time and the rest of his sentence suspended to probation.

[4] Three years later, Shonhai was convicted of misdemeanor operating a vehicle while intoxicated. Later that same year, the U.S. Department of Homeland Security (DHS) arrested Shonhai and initiated proceedings to terminate his asylum status and remove him from the U.S.³ Those proceedings stemmed from the original Count I in his 2010 case—the sexual misconduct charge—which is considered an “aggravated felony” making an asylee automatically deportable under federal immigration law. 8 U.S.C. § 1101(a)(43).⁴ However, because the petition was mistakenly based on the charge that was dismissed, and since the remaining sexual battery charge is not an aggravated felony under immigration law, the removal proceedings were terminated and Shonhai remained in the U.S.

[5] In 2022, Shonhai was convicted of two federal offenses after using his brother's identification documents to get a job with a federal contractor. He was convicted of falsely claiming to be a U.S. citizen, a felony, and possession of false identity documents, a misdemeanor. Shonhai served six months in federal prison and one year on supervised probation for these convictions. After Shonhai was released from prison in 2023, DHS filed a second petition to terminate his asylum status, this time citing only his sexual battery conviction and a different section of the U.S. Code. After a removal hearing, the immigration court ordered Shonhai deported to Zimbabwe, and he has been in DHS custody ever since. Shonhai appealed that decision and his appeal is pending.

[6] Not long after the deportation order, Shonhai filed a PCR petition in Hendricks County, asserting Manning provided ineffective assistance of counsel in his sexual battery case. Shonhai testified at the PCR hearing that during his case, Manning was aware of Shonhai's asylum status and that Shonhai had expressed concerns about the immigration consequences of pleading guilty. After looking into his concerns, Manning informed him that “the United States government does not deport aliens and hand them over to the same government [they] received asylum protection for.” Transcript at 16. Shonhai also testified that when he asked about going to trial, Manning advised him that succeeding at trial would be difficult considering Shonhai had confessed to the police. Shonhai claimed he never would have pled guilty had he “known this would happen[,]” or at least he would have “consult[ed] with an immigration attorney.” Tr. at 23.

[7] Manning was deposed and that deposition was admitted at the hearing. He testified that he could not recall whether he knew about Shonhai's immigration status, whether they had discussed immigration issues, whether Shonhai expressed a desire to go to trial, or whether he consulted with an immigration attorney regarding Shonhai's concerns. He said it was “unlikely” he would have advised Shonhai that he would not be deported based on his asylum status. Petitioner's Ex. 1 at 7:01-7:25. Manning also recalled that, at the time he represented Shonhai, he “was at least somewhat familiar with the negative ramifications of any conviction or ․ even a true finding in a diversion to those who are not U.S. citizens.” Id. at 6:33-6:49.

[8] The post-conviction court denied Shonhai's petition ⁵ and entered findings and conclusions, ultimately determining “that Shonhai [ ] failed to prove deficiency on the parts [sic] of Manning[.]” Appellant's App. Vol. 2 at 163. Shonhai appeals.

Discussion and Decision

[9] Post-conviction proceedings are civil in nature, requiring only that the petitioner prove his claims by a preponderance of the evidence. Ind. Post-Conviction Rule 1(5); Bobadilla v. State, 117 N.E.3d 1272, 1279 (Ind. 2019). When a petitioner fails to meet his burden below and appeals from a denial of his petition, “then he proceeds from a negative judgment and ․ must prove ‘that the evidence, as a whole, unmistakably and unerringly points to a conclusion contrary to the post-conviction court's decision.’ ” Id. (quoting Wilkes v. State, 984 N.E.2d 1236, 1240 (Ind. 2013)). “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.” Hampton v. State, 961 N.E.2d 480, 492 (Ind. 2012) (emphasis in original) (quoting Stevens v. State, 770 N.E.2d 739, 745 (Ind. 2002), reh'g denied, cert. denied). In our review, we do not defer to the court's legal conclusions, but 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.” Bobadilla, 117 N.E.3d at 1279 (quoting Humphrey v. State, 73 N.E.3d 677, 682 (Ind. 2017)). Critically, however, “the post-conviction court is the ‘sole judge of the evidence and the credibility of the witnesses.’ ” Bradbury v. State, 180 N.E.3d 249, 252 (Ind. 2022) (quoting Hall v. State, 849 N.E.2d 466, 468-69 (Ind. 2006)), modified on reh'g, cert. denied.

[10] Shonhai claims Manning provided ineffective assistance by misadvising him as to the immigration consequences he faced by pleading guilty to sexual battery, specifically that “the [U.S.] government does not deport aliens and hand them over to the same government that [they] received asylum protection for.” Tr. at 16.

[11] Determining whether Manning's assistance was ineffective requires application of the two-part test established in Strickland v. Washington, 466 U.S. 668 (1984), reh'g denied. Humphrey, 73 N.E.3d at 682. Under that test, Shonhai 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.” Bobadilla, 117 N.E.3d at 1280. This standard for attorney performance “is not limited to the trial or appellate phases ․, but also applies when defendants allege ineffective assistance during the guilty plea phase.” Id.; see Padilla v. Kentucky, 559 U.S. 356, 373 (2010) (“[W]e have long recognized that the negotiation of a plea bargain is a critical phase of litigation for purposes of the Sixth Amendment right to effective assistance of counsel.”).

[12] To prevail, Shonhai must satisfy both prongs: deficient performance and prejudice. Under Padilla, “counsel must inform her client whether his plea carries a risk of deportation[,]” and failure to do so constitutes deficient performance. 559 U.S. at 374. However, on a claim of ineffective assistance of counsel,“[j]udicial scrutiny of counsel's performance must be highly deferential.” Strickland, 466 U.S. at 689. As for prejudice, because Shonhai was convicted by guilty plea he was required to prove there was a reasonable probability that, but for Manning's advice, he would have rejected the plea and gone to trial. Hill v. Lockhart, 474 U.S. 52, 59 (1985).

[13] Here, the threshold question is whether Manning provided Shonhai with the incorrect advice he alleges. Without proving that Manning told him deportation was impossible or that Manning otherwise failed to inform him of possible immigration consequences, Shonhai cannot establish deficient performance under Padilla. Although the post-conviction court did not make an explicit finding as to whether it found Shonhai's recollection of Manning's advice to be credible, its conclusion that Shonhai “failed to prove deficiency on the parts [sic] of Manning” reflects an implicit finding that Shonhai did not meet his burden of proof. Appellant's App. Vol. 2 at 163.

[14] The court's implicit rejection of Shonhai's version of events is supported by the record. First, Manning's testimony undermined Shonhai's account. While Manning could not specifically recall whether he told Shonhai he would not be deported, he testified: “that doesn't seem like something that I would have ever advised a client in that situation[.] I think that would be unlikely for me to make such a statement.” Pet.’s Ex. 1 at 7:16-7:24. Manning also recalled that by the time he represented Shonhai, he “was at least somewhat familiar with the negative ramifications of any conviction or ․ even a true finding in a diversion to those who are not U.S. citizens.” Id. at 6:33-6:50. The court was permitted to assign Manning's testimony and experience the weight it deemed appropriate in light of all the evidence. Bradbury, 180 N.E.3d at 252 (noting “the post-conviction court is the ‘sole judge of the evidence and the credibility of the witnesses’ ” (quoting Hall, 849 N.E.2d at 468-69)).

[15] Second, and as is noted in the court's order, Shonhai's PCR testimony was contradictory to earlier statements he made about the underlying crime. See Appellant's App. Vol. 2 at 158 (“[Shonhai] made a statement to police that he knew the victim was a minor and only stopped his sexual assault on her because he did not want to get into trouble[.]”). The record shows that in 2010, Shonhai told police he knew his victim was underage and had originally “denied having any involvement with her because he didn't want to get into trouble for rape.” Id. at 23. However, at the PCR hearing, Shonhai testified that he “did not know the age of the victim at the time” and “assumed she was seventeen years old[.]” Tr. at 24. Such inconsistency could serve to undermine Shonhai’ credibility in the eyes of the post-conviction court.

[16] Lastly, Shonhai raised this claim twelve years after his plea and only after the second round of removal proceedings had been initiated against him. Moreover, the only evidence Shonhai produced as to Manning's deficient performance was his uncorroborated and self-serving testimony, to which the post-conviction court was permitted to assign the weight it deemed appropriate or wholly disbelieve it. See Madlem v. Arko, 592 N.E.2d 686, 687 (Ind. 1992) (explaining that the trial court “was well within its prerogative to find [ ] testimony was self-serving and therefore not believable”).

[17] Given Manning's testimony, evidence of Shonhai's inconsistent statements, and judicial deference to counsel's performance, the post-conviction court did not err in concluding that Shonhai failed to prove Manning's performance was deficient. Likewise, Shonhai did not meet his significantly higher burden of proof to overcome his negative judgment on appeal. In other words, Shonhai failed to prove the evidence, as a whole, points to a decision “unmistakably and unerringly” contrary to the court's decision below. Bobadilla, 117 N.E.3d at 1279. Having failed to prove the threshold matter of deficiency, we need not address Shonhai's arguments as to prejudice.⁶

Conclusion

[18] Because Shonhai fails to show the evidence unmistakably and unerringly points to a conclusion contrary to that of the post-conviction court, we affirm.

[19] Affirmed.

FOOTNOTES

1.   Ind. Code § 35-42-4-9(a) (2010).

2.   I.C. § 35-42-4-8(a) (2010).

3.   The record does not contain a copy of the 2014 Notice of Intent to Terminate Asylum Status.

4.   8 U.S.C. § 1101(a)(43)(A) (“The term ‘aggravated felony’ means[ ] ․ murder, rape, or sexual abuse of a minor[.]”); see 8 U.S.C. § 1227(a)(2)(A)(iii)(“Any alien who is convicted of an aggravated felony at any time after admission is deportable.”).

5.   Initially, the post-conviction court failed to include factual findings and conclusions of law in its order denying Shonhai's petition. Shonhai appealed, and this Court reversed and remanded with instructions for the court to enter findings and conclusions upon reconsideration of the record. Shonhai v. State, No. 24A-PC-2306, at *2 (Ind. Ct. App. Apr. 16, 2025) (mem.).

6.   Shonhai also challenges some of the post-conviction court's findings, asserting the evidence does not support them and thus, the findings do not support the judgment. See Appellant's Brief at 21. He points to four findings:[ ] Petitioner prevailed and remained in the United States due solely to Counsel Manning securing a plea agreement to the amended non-automatically deportable count rather than the aggravated felony he was charged with originally.[ ] Petitioner then proceeded to commit further criminal offenses which can have negative effects on his immigration status[.] ․[ ] After Petitioner completed the sentence for the federal felony[,] [Immigration and Customs Enforcement] again sought to have Petitioner deported, this time successfully utilizing a different section of the [U.S.] Code.* * *Shonhai was successful in his effort to remain in the [U.S.] despite his sexual misconduct charge.Appellant's App. Vol. 2 at 160-61, 164.We need not determine whether these findings are clearly erroneous because Shonhai has failed to show how he was prejudiced by them. See In re B.J., 879 N.E.2d 7, 20 (Ind. Ct. App. 2008) (stating that “[a] finding of fact is not prejudicial to a party unless is directly supports a conclusion” necessary to sustain the judgment), trans. denied. None of the above findings go to the threshold question of whether Manning's performance was deficient by failing to inform Shonhai of the potential immigration consequences of pleading guilty. Thus, even if we assume without deciding that these findings are erroneous, Shonhai failed to show that the court's ultimate conclusion and judgment cannot otherwise be sustained.

DeBoer, Judge.

Bradford, J., and Weissmann, J., concur.