Opinion
24A-PC-332
11-26-2024
Francisco Antonio Perez, Appellant-Petitioner v. State of Indiana, Appellee-Respondent
ATTORNEY FOR APPELLANT Rodolfo S. Monterrosa, Jr. South Bend, Indiana ATTORNEYS FOR APPELLEES Theodore E. Rokita Indiana Attorney General Caroline G. Templeton Supervising Deputy Attorney General Indianapolis, Indiana
Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision is not binding precedent for any court and may be cited only for persuasive value or to establish res judicata, collateral estoppel, or law of the case.
Appeal from the Lake Superior Court The Honorable Salvador Vasquez, Judge The Honorable Mark Watson, Magistrate Trial Court Cause No. 45G01-2010-PC-34.
ATTORNEY FOR APPELLANT Rodolfo S. Monterrosa, Jr. South Bend, Indiana
ATTORNEYS FOR APPELLEES Theodore E. Rokita Indiana Attorney General Caroline G. Templeton Supervising Deputy Attorney General Indianapolis, Indiana
MEMORANDUM DECISION
Bailey, Judge.
Case Summary
[¶1] Francisco Antonio Perez, a legal permanent resident of the United States, appeals the denial of his petition for post-conviction relief, which challenged his plea of guilty to Sexual Misconduct with a Minor, as a Level 5 felony. We affirm.
Issues
[¶2] Perez presents two issues for review:
I. Whether he was denied the effective assistance of counsel because counsel failed to adequately advise of potential immigration consequences; and
II. Whether he is entitled to have his guilty plea set aside due to a lack of proper advisement by the trial court.
Facts and Procedural History
[¶3] The underlying facts were recited on direct appeal of Perez's sentence as follows:
In February 2018, fifteen-year-old M.P., the victim, was babysitting at her aunt's house.
Twenty-eight-year-old Perez, who was M.P.'s aunt's boyfriend, entered the home. Perez sat next to M.P. on the couch and told her to roll a marijuana cigarette, which she did. M.P.'s aunt later returned home with a friend, and M.P. smoked marijuana with Perez and the other adults. M.P.'s aunt then left to take her friend home.
After M.P.'s aunt left, M.P. went to bed. Perez joined her and began to caress her breast over her clothes and attempted to kiss her while saying that "he was going to show her how much her uncle like[d] her." (App. Vol. 2 at 47).
Perez then put his hand into M.P.'s pants. M.P. screamed, and Perez stopped touching her. M.P. then called her boyfriend and her aunt. When M.P.'s aunt returned, Perez admitted to touching M.P. and stated that he had done so as "pay-back[.]" (App. Vol. 2 at 47).
In April 2018, Perez was charged with Level 5 felony sexual misconduct with a minor. The State filed an amended charging information in November 2018, adding a count of Level 3 felony rape.
In July 2019, the State and Perez reached an agreement that Perez would plead guilty to the sexual misconduct with a minor charge in exchange for the State dismissing the rape charge. The
parties also agreed to argue the sentence length at the sentencing hearing.
In October 2019, the trial court held a sentencing hearing. M.P.'s aunt and M.P.'s mother testified at the hearing. Perez also made a statement. Additionally, M.P. and M.P.'s mother submitted victim impact statements. In her victim impact statement, M.P. explained that due to Perez's actions, she felt "violated, manipulated, embarrassed, [and] sad." (Sentencing Tr. 19). M.P.'s mother's statement detailed the negative effects Perez's crime had had on M.P. and her family. Specifically, M.P.'s mother explained that the "emotional turmoil is beyond description." (Sentencing Tr. 19).
When sentencing Perez, the trial court found both mitigating and aggravating factors. In mitigation, the trial court acknowledged Perez's guilty plea but found that it was not entitled to much weight because "the more significant rape [charge]" had been dismissed by the State. (Sentencing Tr. 44). In aggravation, the trial court identified Perez's: (1) criminal history, which includes convictions in Illinois for felony burglary, felony aggravated unlawful use of a weapon, misdemeanor trespass, and two episodes of misdemeanor possession of cannabis; (2) failure to appreciate the leniency of probation from other criminal courts; (3) manipulative and predatory character; and (4) violation of a position of trust. The trial court then sentenced Perez to an advisory sentence of three (3) years in the Department of Correction.Perez v. State, 2020 WL 2666699, 19A-CR-2785, slip op. at 1 (Mem. Ind.Ct.App. May 26, 2020), trans. denied. Perez's sentence was affirmed on appeal. See id. at 2.
[¶4] On October 30, 2020, Perez filed a petition for post-conviction relief, which was dismissed without prejudice and subsequently refiled. Perez alleged that he had been denied the effective assistance of counsel because counsel failed to advise him that the plea could affect his immigration status and lead to deportation; additionally, Perez claimed that he did not knowingly enter his guilty plea because he was not led to understand the potential for deportation.
[¶5] On July 13, 2023, the post-conviction court conducted a hearing upon Perez's contentions. At that time, Perez was in the custody of immigration officials anticipating deportation for having committed a crime classified as an aggravated felony under immigration law.
[¶6] Perez testified that his attorney had told him he would not be deported if he pled guilty to Sexual Misconduct with a Minor, and this encouraged him to accept a plea deal despite the absence of physical evidence. Perez also testified that a sentencing judge in Illinois had advised him that he would be deported if he committed another felony. On January 8, 2024, the post-conviction court entered its findings of fact, conclusions thereon, and order denying Perez postconviction relief. This appeal ensued.
Discussion and Decision
[¶7] The petitioner for post-conviction relief must establish that he is entitled to relief by a preponderance of the evidence. Timberlake v. State, 753 N.E.2d 591, 597 (Ind. 2001). "Because he is now appealing a negative judgment, to the extent his appeal turns on factual issues, [the petitioner] must convince this Court that the evidence as a whole leads unerringly and unmistakably to a decision opposite that reached by the post-conviction court." Id. We accept the postconviction court's findings of fact unless clearly erroneous but accord no deference to conclusions of law. Turner v. State, 974 N.E.2d 575, 581 (Ind.Ct.App. 2012), trans. denied. We will reverse the post-conviction court's decision only if the evidence is without conflict and leads to a conclusion opposite that reached by the post[-]conviction court. Id. at 581-82.
Effectiveness of Counsel
[¶8] "The criminal defendant's right to counsel is foundational to our criminal justice system, giving it legitimacy and fairness." Bobadilla v. State, 117 N.E.3d 1272, 1279 (Ind. 2019). 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. Id.
To establish a post-conviction claim alleging the violation of the Sixth Amendment right to effective assistance of counsel, a defendant must establish before the post-conviction court the two components set forth in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). "First, a defendant must show that counsel's performance was deficient." Id. at 687, 104 S.Ct. 2052. This requires a showing that counsel's representation fell below an objective standard of reasonableness and that "counsel made errors so serious that counsel was not functioning as 'counsel' guaranteed to the defendant by the Sixth Amendment." Id. "Second, a defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the
defendant of a fair trial," meaning a trial where the result is reliable. Id. To establish prejudice, a "defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694, 104 S.Ct. 2052. A reasonable probability is one that is sufficient to undermine confidence in the outcome. Id. Further, counsel's performance is presumed effective, and a defendant must offer strong and convincing evidence to overcome this presumption. Ben-Yisrayl [v. State, 719 N.E.2d 102, 106 (Ind. 2000)].Kubsch v. State, 934 N.E.2d 1138, 1147 (Ind. 2010).
[¶9] Under the performance prong, a criminal defense attorney has an obligation to 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). The duty can be satisfied either explicitly or implicitly; an attorney "need only read the form to his client or stand by patiently while the client reads the unmarked form to satisfy Padilla's mandate." Bobadilla, 117 N.E.3d at 1283.
[¶10] In order to show prejudice from allegedly erroneous advice during plea proceedings, a defendant must demonstrate a "'reasonable probability'" that, but for counsel's deficient representation, he would have rejected the guilty plea and insisted on going to trial. Id. at 1285 (quoting Lee v. United States, 137 S.Ct. 1958, 1965 (2017)). To prove he would have rejected the plea and insisted on trial, a defendant must show some special circumstances that would have supported that decision; it is not enough for a defendant to simply say he would have gone to trial. Id. at 1284 (discussing Hill v. Lockhart, 474 U.S. 52 (1985)). In sum, "'Courts should not upset a plea solely because of post hoc assertions from a defendant about how he would have pleaded but for his attorney's deficiencies. Judges should instead look to contemporaneous evidence to substantiate a defendant's expressed preferences.'" Id. at 1286 (quoting Lee, 137 S.Ct. at 1967).
[¶11] Perez's plea agreement contained the following paragraph:
The Defendant understands that if he is not a United States citizen, a conviction may affect his immigration status.(App. Vol. II, pg. 22.) At the post-conviction hearing, Perez's counsel testified that he had provided Perez with a "hard copy" of the plea agreement and had reviewed "each and every page of the plea," doing so "repeatedly." (P-C.R. Tr. Vol. II, pgs. 17-18.) Perez did not show that his counsel performed deficiently. As such, he was not denied the effective assistance of counsel.
Guilty Plea
[¶12] Perez contends that he should be allowed to withdraw his guilty plea because he was without sufficient knowledge of the risk of deportation. He directs our attention to Indiana Code Section 35-35-1-2, which provides that a trial court shall not accept a guilty plea without determining, among other things, that a defendant understands the nature of the charges, has been informed that he waives certain rights by entering a plea, and has been informed of the minimum and maximum sentences and the possibility of enhanced and consecutive sentences.
[¶13] Perez makes no explicit argument that the trial court failed to comply with the statutory requirements of Indiana Code Section 35-35-1-2 but rather focuses upon collateral consequences. According to Perez, "[his] attorney did not advise Perez of the immigration consequences [of] his guilty plea and neither did the trial court." Appellant's Brief at 14-15. Nonetheless, the record indicates that Perez had knowledge of the potential for deportation. In addition to the written advisement that a guilty plea might affect immigration status, Perez had been informed by a judge in the State of Illinois "that I would be deported if I catch another felony." (P-C.R. Tr. Vol. II, pg. 66.) The postconviction record does not support Perez's claim that he entered into his guilty plea without sufficient knowledge of potential consequences.
Conclusion
[¶14] Defense counsel's performance did not fall below prevailing professional norms and thus Perez did not show ineffectiveness of counsel. He did not demonstrate that he is entitled to have his guilty plea set aside.
[¶15] Affirmed.
Altice, C.J., and Vaidik, J., concur.