Ousmane Ly, Appellant-Petitioner v. State of Indiana, Appellee-Respondent (2026)

MEMORANDUM DECISION

[1] The State charged Ousmane Ly, a citizen of Senegal, with Level 3 felony attempted rape and other offenses. Pursuant to a plea agreement, Ly pleaded guilty to Level 6 felony sexual battery, and he was subsequently removed from the United States. Ly then filed a petition for postconviction relief, contending he pleaded guilty because his counsel misleadingly advised he would not receive a fair trial from a Dearborn County jury. Ly also claimed he would have gone to trial if his counsel had advised him that his conviction would lead to removal. The trial court denied relief, concluding that counsel did not give Ly the alleged advice about Dearborn County and that immigration consequences did not affect Ly's decision to plead guilty. Because evidence in the record supports the trial court's conclusions, we affirm.

Facts

[2] Ly was born in Senegal and immigrated to the United States as a permanent resident in 2007. He and Dawn Weatherwax are in a long-term relationship and have a child together.

[3] In 2020, the State charged Ly in Dearborn County with Level 3 felony attempted rape, Level 6 felony sexual battery, and Class A misdemeanor invasion of privacy, as well as additional charges in other cases. The victim alleged that Ly pulled down her pants while she was sleeping on a couch and tried to slide his penis into her anus. The State had evidence that Ly's DNA was found on the victim's buttocks and on a tissue recovered from a trashcan in the room where the attempted rape allegedly occurred. The tissue was tested for semen, and the result was negative.

[4] Ly retained Michael Hollenbeck as counsel. Ly “strenuously maintained his innocence” to Hollenbeck. Exhs., p. 39. And Hollenbeck concluded there were “serious questions about the quality” of the DNA evidence and “serious discrepancies” in the victim's testimony. Id. at 28. Ultimately, however, the parties reached a plea agreement whereby Ly pleaded guilty to Level 6 felony sexual battery in exchange for dismissal of all the other charges. The parties also agreed to a sentence of two and one-half years with 362 days suspended.

[5] Before accepting Ly's guilty plea, the trial court confirmed with both Ly and Hollenbeck that they had discussed potential immigration consequences. The court then imposed the agreed sentence. As Ly had already served his executed time in pretrial detention, he was immediately released on probation. Ly subsequently pleaded guilty to a new crime in Ohio in 2025 and was later held in jail on an immigration detainer pending removal because of his sexual battery conviction in Dearborn County.

[6] While detained, Ly filed a petition for postconviction relief in the sexual battery case. As relevant to this appeal, he claimed: (1) Hollenbeck coerced him into pleading guilty by telling him he would not receive a fair trial in Dearborn County because he is black, and the majority of the jury pool would be white; and (2) Hollenbeck rendered ineffective assistance by failing to advise him that his guilty plea would subject him to immigration detention and removal.

[7] At an evidentiary hearing, Ly testified that he pleaded guilty because Hollenbeck advised he would not receive a fair trial. Weatherwax corroborated Ly's claim. And Ly's postconviction attorney, John Kindley, testified that Hollenbeck told him potential racial bias was a factor in Ly's guilty plea. Hollenbeck, however, denied giving the alleged advice. Ly also testified that he believed his conviction might affect his green card renewal but would not lead to removal. On this point, Hollenbeck testified he told Ly “there could be consequences to his immigration status.” Tr. Vol. II, p. 56.

[8] After the hearing, the trial court issued findings and conclusions denying relief. The court stated that Ly's “testimony lack[ed] credibility.” App. Vol. II, p. 152. Conversely, the court determined that Hollenbeck “credibly testified that he did not tell [Ly] that he would not or could not receive a fair trial.” Id. at 155. Hollenbeck had instead “assured [Ly] that he would do his best to ensure a fair jury through careful voir dire,” the court found. Id. The court also concluded that “any rational defendant in [Ly's] position would have accepted” the plea agreement rather than go to trial. Id. at 156.

[9] Ly appeals the denial of postconviction relief. His briefing informs us that he was removed from the United States during the pendency of this appeal.

Discussion and Decision

[10] A petitioner appealing from the denial of postconviction relief “must prove ‘that the evidence, as a whole, unmistakably and unerringly points to a conclusion contrary to the post-conviction court's decision.’ ” Bobadilla v. State, 117 N.E.3d 1272, 1279 (Ind. 2019) (quoting Wilkes v. State, 984 N.E.2d 1236, 1240 (Ind. 2013)). We neither reweigh the evidence nor reassess the credibility of witnesses. Bivins v. State, 735 N.E.2d 1116, 1122 (Ind. 2000).

I. Coercion of Guilty Plea

[11] Ly first argues that Hollenbeck coerced him into entering an involuntary guilty plea by “telling him he could not receive a fair trial in Dearborn County because of his race and status as a foreigner.” Appellant's Br., p. 6. The State responds by citing the trial court's finding that Hollenbeck did not give such advice.

[12] When a defendant pleads guilty, they waive a panoply of rights, including their right to “a public and speedy jury trial.” Davis v. State, 217 N.E.3d 1229, 1233 (Ind. 2023), as modified (Oct. 3, 2023). That right includes an entitlement to procedures for ensuring an impartial, unbiased jury. Whiting v. State, 969 N.E.2d 24, 28–29 (Ind. 2012). And these procedures include “an adequate opportunity to examine prospective jurors on voir dire” and to remove “biased jurors ․ for cause.” Id. A defendant's guilty plea may be set aside as involuntary if the defendant proves they were misadvised about the rights being waived and, if correctly advised, would have gone to trial instead. Davis, 217 N.E.3d at 1233.

[13] Here, the alleged advice of counsel—if it were given—would have “materially misrepresented the constitutional guarantees of being tried by a jury of one's peers that is selected without racial discrimination.” United States v. Swan, 91 F.4th 1052, 1056 (10th Cir. 2024). And if that alleged advice had influenced Ly's decision to plead guilty, it could have rendered his plea involuntary. Id. at 1057; see also Bond v. State, 9 N.E.3d 134, 138–41 (Ind. 2014) (instructing a trial court to suppress a defendant's confession where a police officer told him he “might not receive a fair trial because of his race and the likely composition of a prospective jury”).

[14] However, the trial court credited Hollenbeck's testimony that he did not tell Ly he could not receive a fair trial. The court found that Hollenbeck “discussed with [Ly] the necessity of addressing potential racial and immigration bias during voir dire” and assured him he would “do his best to ensure a fair jury through careful voir dire.” App. Vol. II, p. 155. The trial court thus rejected the factual allegation underlying Ly's claim. And we are bound by the trial court's weighing of the evidence and assessment of witness credibility. Bivins, 735 N.E.2d at 1122.

[15] Ly argues the trial court came to the opposite conclusion when it stated:

[E]ven accepting the testimony of the Petitioner, Ms. Weatherwax, and Mr. Kindley that demographic factors were discussed as influencing the decision to plead guilty, such discussions do not constitute coercion when they accurately reflect genuine trial risks and occur in the context of strong evidence against the defendant.

App. Vol. II, p. 155. But this legal conclusion does not show that the trial court accepted the testimony supporting Ly's allegation. Rather, the court merely analyzed for the sake of argument the legal implications of the alleged discussions, assuming they took place, thus stating alternative grounds for denying relief.

[16] Ly also points out that he presented testimony and documentary evidence to support his allegation concerning Hollenbeck's advice. That evidence includes a letter written by Hollenbeck in 2021, stating that Ly's guilty plea was a “tortured decision for him to make” because he was a “foreign national (legal resident) facing a number of criminal charges of a sexual nature in a very conservative Indiana county.” Exhs., p. 39. Ly's argument again asks us to reweigh the evidence, which we will not do. Bivins, 735 N.E.2d at 1122. Ly thus fails to demonstrate that the evidence “unmistakably and unerringly points to a conclusion contrary to the post-conviction court's decision.” Bobadilla, 117 N.E.3d at 1279 (quoting Wilkes, 984 N.E.2d at 1240).

II. Ineffective Assistance of Counsel

[17] Ly next argues that he received ineffective assistance of counsel. He claims Hollenbeck should have recognized and advised that removal from the United States was “presumptively mandatory” under federal law based on Ly's sexual battery conviction. Appellant's Br., p. 14. Ly also claims he would have gone to trial but for Hollenbeck's alleged omission.

[18] A petitioner alleging ineffective assistance of counsel “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. These are “separate inquiries,” but “[i]f it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, ․ that course should be followed.” Grinstead v. State, 845 N.E.2d 1027, 1031 (Ind. 2006) (quoting Strickland v. Washington, 466 U.S. 668, 697 (1984)).

[19] Case law has clarified how the performance and prejudice prongs apply to ineffectiveness claims centered on the immigration consequences of guilty pleas. When a guilty plea's consequences under immigration law are “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.” Padilla v. Kentucky, 559 U.S. 356, 369 (2010). “But when the deportation consequence is truly clear,” as Ly contends it was here, counsel's “duty to give correct advice is equally clear.” Id.

[20] When counsel fails to meet these standards, the applicable “prejudice inquiry is a subjective test, turning upon whether that particular defendant's special circumstances support his claim that, had he been properly advised, he would have rejected the plea and insisted on going to trial.” Bobadilla, 117 N.E.3d at 1287 (emphasis in original). “Each defendant's special circumstances should show why it could have been rational for that defendant to take his chances at trial and perhaps be deported rather than plead guilty and certainly be deported.” Id. at 1286.

[21] We resolve Ly's claim against him on the prejudice prong alone. Assuming he was not adequately advised about the risk of removal, the evidence does not demonstrate “unmistakably and unerringly” that he would have gone to trial if advised correctly. Id. at 1279 (quoting Wilkes, 984 N.E.2d at 1240).

[22] Ly repeatedly testified at the postconviction hearing that he pleaded guilty because he feared he would not receive a fair trial—not because he believed pleading down to the Level 6 felony would make him safe from removal. Given Ly's subjective fear of unfair treatment, it is unlikely he would have risked going to trial for attempted rape rather than take the plea offer. In Ly's own words, he “did not have a choice but to take the deal.” Tr. Vol. II, p. 79.

[23] The circumstances of Ly's guilty plea also indicate that advice on removal consequences would have made no difference to his decision. Before pleading guilty, Ly was facing, in addition to other charges, a Level 3 felony attempted rape charge corroborated by evidence that his DNA was on the victim's buttocks. A Level 3 felony carries a sentencing range of three to sixteen years, with an advisory sentence of nine years, and Ly testified that Hollenbeck told him he would be “sentenced to the max.” Ind. Code § 35-50-2-5(b); Tr. Vol. II, p. 77. Ly then received a favorable plea offer in which the attempted rape charge, plus all his other charges, would be dismissed in exchange for a Level 6 felony sexual battery conviction, a time-served sentence, and immediate release on probation. In the circumstances as Ly perceived them, it was rational for him to take the plea.

[24] Hollenbeck's letter—which Ly asks us to credit on the coercion issue—also indicates Ly pleaded guilty to avoid risking an attempted rape conviction. Hollenbeck wrote that Ly “chose to avoid taking a risk that, had things gone badly, could have resulted in years of incarceration ․ as well as the lifetime designation as a sexually violent predator.” Exhs., p. 39. Evidence thus supports the conclusion that advice about removal would not have affected Ly's decision to plead guilty.

[25] Ly points to other evidence that could suggest advice about removal would have changed his mind if factored into his deliberations. This evidence includes his asserted belief that his conviction would not lead to removal, his strenuous assertion of his innocence, and Hollenbeck's doubts about the strength of the victim's account and the DNA evidence.¹ But, as discussed, we will not reassess the trial court's negative assessment of Ly's credibility or reweigh the evidence for ourselves. Bivins, 735 N.E.2d at 1122. Ly fails to show the trial court erred in concluding he did not prove prejudice on his ineffectiveness claim.

Conclusion

[26] The evidence does not unmistakably and unerringly show the trial court incorrectly denied either of Ly's postconviction claims. Accordingly, we affirm.

FOOTNOTES

1.   Ly argues the trial court erred in finding there was “no innocent explanation” for his DNA being found on the victim's buttocks. App. Vol. II, p. 150. He points to a forensic scientist's testimony about the possibility of innocent DNA transfer. But any error was harmless as to the trial court's prejudice conclusion, considering the overwhelming evidence that Ly pleaded guilty because he feared being convicted and heavily sentenced for attempted rape.

Weissmann, Judge.

Bailey, J., and Brown, J., concur.