Jose Angel Hernandez v. State of Indiana (mem. dec.) ( 2019 )


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  • MEMORANDUM DECISION
    Pursuant to Ind. Appellate Rule 65(D),
    this Memorandum Decision shall not be                                       FILED
    regarded as precedent or cited before any                               Feb 20 2019, 8:39 am
    court except for the purpose of establishing
    CLERK
    the defense of res judicata, collateral                                 Indiana Supreme Court
    Court of Appeals
    estoppel, or the law of the case.                                            and Tax Court
    ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
    Alexander E. Budzenski                                   Curtis T. Hill, Jr.
    Indianapolis, Indiana                                    Attorney General of Indiana
    Matthew B. MacKenzie
    Deputy Attorney General
    Indianapolis, Indiana
    IN THE
    COURT OF APPEALS OF INDIANA
    Jose Angel Hernandez,                                    February 20, 2019
    Appellant-Petitioner,                                    Court of Appeals Case No.
    18A-PC-1357
    v.                                               Appeal from the
    Tippecanoe Superior Court
    State of Indiana,                                        The Honorable Laura W. Zeman,
    Appellee-Respondent.                                     Judge
    Trial Court Cause No.
    79D04-1701-PC-5
    Altice, Judge.
    Court of Appeals of Indiana | Memorandum Decision 18A-PC-1357 | February 20, 2019               Page 1 of 27
    Case Summary
    [1]   Jose Angel Hernandez, a citizen of Mexico, entered the United States with his
    parents in 2002, when he was sixteen years old. In August 2014, he pled guilty
    to possession of cocaine and synthetic identity deception, both Class D felonies.
    Hernandez filed a petition for post-conviction relief, in which he argued that (1)
    his guilty plea counsel failed to properly advise him of the immigration
    consequences associated with his guilty plea, and (2) the trial court should have
    provided him with a Spanish-language interpreter at his hearings to “ensur[e]
    that he understood his Boykin rights prior to entering his plea of guilty.”
    Appellant’s Appendix Vol. 2 at 16. Following the denial of his petition,
    Hernandez appeals and raises the following restated issues:
    I. Whether Hernandez received ineffective assistance of trial
    counsel; and
    II. Whether Hernandez established that, because he did not have
    an interpreter at trial court hearings, he did not knowingly and
    voluntarily waive his Boykin rights.
    [2]   We affirm.
    Facts & Procedural History
    [3]   Hernandez, born in October 1985, is a native of Mexico and remains a citizen
    of Mexico. He came to the United States in 2002 with his parents, and he has
    not returned to Mexico since he left. Hernandez did not have a green card or
    visa when he entered the United States, and he has not obtained one since his
    Court of Appeals of Indiana | Memorandum Decision 18A-PC-1357 | February 20, 2019   Page 2 of 27
    arrival here. He attended Jefferson High School in Lafayette until leaving
    sometime in the twelfth grade. His classes were taught in English, but at a
    slower pace.
    [4]   Between 2004 and 2011, Hernandez had multiple encounters with the criminal
    justice system. In June 2005, he was convicted of operating a motor vehicle
    without ever having received a license. In July 2005, he was charged with Class
    B misdemeanor false informing, Class B misdemeanor public intoxication, and
    Class C misdemeanor minor consumption, and those charges were resolved by
    a diversion agreement. In August 2010, Hernandez pled guilty to Class A
    misdemeanor operating while intoxicated and Class C misdemeanor failure to
    stop at the scene of an accident, and several other charges were dropped. At the
    guilty plea hearing, after Hernandez acknowledged to the court that he had
    read, understood, and signed his Advisement of Rights form, and after the trial
    court informed him that if he was not a citizen of the United States “any
    disposition of your case could affect your ability to stay here in the United
    States,” Hernandez responded, “I’m a citizen.” Exhibit Vol. 1 at 102. In some
    of the proceedings, Hernandez’s Advisement of Rights form was in Spanish and
    in others it was in English. In some proceedings, Hernandez utilized an
    interpreter and in others he did not. He sometimes provided law enforcement
    with a false name, Juan A. Rodriguez Merced, and sometimes provided an
    incorrect date of birth.
    [5]   In October 2012, Hernandez pled guilty (under the name of Juan A. Rodriguez
    Merced) under cause number 79D06-1112-FD-321 (Cause 321) to Class D
    Court of Appeals of Indiana | Memorandum Decision 18A-PC-1357 | February 20, 2019   Page 3 of 27
    felony operating while intoxicated with a prior conviction. Hernandez was
    represented by attorney Brian Dekker, who could speak Spanish but conversed
    with Hernandez in English. During the October 2012 guilty plea hearing,
    Hernandez used a translator, but because the court noticed that his Advisement
    of Rights form was in English, the court asked Hernandez if he was bilingual
    and understood English and Spanish. Hernandez responded, “Yes.” Id. at 121.
    During the hearing, the trial court advised, “If you’re not an actual United
    States citizen a judgment of conviction in a criminal case can impact your legal
    status here in the states. Has Mr. Dekker covered with you, to your
    satisfaction, the impact that these judgments of convictions might have in the
    event that you are not a legal resident?” Id. at 128. That inquiry was translated
    into Spanish, and Hernandez responded, “I’m an American citizen.” Id. The
    court accepted Hernandez’s guilty plea and sentenced him on the Class D
    felony to a 730-day jail term with 180 days executed.
    [6]   On May 19, 2013, in the course of investigating a hit-and-run accident, police
    went to Hernandez’s home looking for a man named Felipe, who was
    suspected to have been involved in the accident. During the investigation,
    police saw in plain view a rolled currency bill and a plastic baggie with white
    residue. The officers observed Hernandez shove these items in his pocket.
    Police also observed a white powdery substance on Hernandez’s nostrils, and
    he admitted to having used cocaine. Hernandez was arrested, and, pursuant to
    a search warrant, police found cocaine, a digital scale, and more corner baggies
    with white residue.
    Court of Appeals of Indiana | Memorandum Decision 18A-PC-1357 | February 20, 2019   Page 4 of 27
    [7]   On May 30, 2013, Hernandez received an Immigration and Customs
    Enforcement detainer and a Notice to Appear before an immigration judge in
    Chicago. The Notice charged Hernandez with removability as a result of his
    illegal status in the United States.1
    [8]   Stemming from the police visit to his home on May 19, the State charged
    Hernandez on December 23, 2013, under cause number 79D04-1312-FD-
    000313 (Cause 313) with possession of cocaine as a Class D felony, possession
    of synthetic identifying information as a Class D felony, possession of
    paraphernalia as a Class A misdemeanor, and false informing as a Class A
    misdemeanor. The January 2014 initial hearing was conducted in English, and
    the Advisement of Rights form signed by Hernandez was in English. The
    Advisement form contained the provision advising that “[i]f you are not a U.S.
    citizen, a conviction could affect your immigration status.” Exhibits Vol. 1 at 11.
    [9]   On June 25, 2014, Hernandez appeared with counsel, attorney Timothy
    Broden, at the immigration court in Chicago for a hearing. At the beginning of
    the hearing, the immigration judge asked Hernandez, “And you speak and
    understand English?” and Hernandez replied, “Yes.” Exhibit Vol. 3 at 77. The
    court advised Hernandez that he was under removal proceedings and that he
    could be deported for entering the country without inspection, noting to
    1
    More specifically, the Notice alleged that Hernandez was subject to removal from the United States
    pursuant to “212(a)(6)(A)(i) of the Immigration and Nationality Act, . . . in that you are an alien present in
    the United States without being admitted or paroled, or who arrived in the United States at any time or place
    other than as designated by the Attorney General.” Exhibits Vol. 4 at 106.
    Court of Appeals of Indiana | Memorandum Decision 18A-PC-1357 | February 20, 2019                 Page 5 of 27
    Hernandez that his circumstances did not indicate that he was eligible for
    DACA,2 but the court continued the matter “to see the outcome of
    [Hernandez’s] drug case.” Id. at 81.
    [10]   On August 18, 2014, Hernandez entered into a plea agreement in Cause 313,
    pursuant to which he pled guilty to the two Class D felonies and the other two
    charges were dismissed. The plea agreement included the following provision:
    The Defendant acknowledges that if illegally present in the
    United States, or a resident alien, or present on a student visa,
    he/she is not eligible for community corrections or placement on
    probation. Defendant understands that he/she has a right to
    contact his/her consulate before pleading guilty, and that
    pleading guilty to a crime may affect his/her immigration status
    or result in deportation from the United States.
    Exhibit Vol. 1 at 9.
    [11]   Due to a technical issue, neither a recording nor a transcript of the guilty plea
    hearing in Cause 313 exists, although the parties appear to agree that an
    interpreter was not used. Under terms of the plea agreement, the length and
    placement of Hernandez’s sentence was within the court’s discretion. At the
    time that Hernandez pled guilty, he was living with and supporting his then-
    girlfriend, Christina, and her two children, and Christina was also pregnant
    with her first child with Hernandez.
    2
    DACA refers to Deferred Action for Childhood Arrivals.
    Court of Appeals of Indiana | Memorandum Decision 18A-PC-1357 | February 20, 2019   Page 6 of 27
    [12]   On October 27, 2014, the trial court held a sentencing hearing in Cause 313.
    Hernandez did not request or use the services of an interpreter for the
    sentencing hearing. At the beginning of the hearing, as the trial court reviewed
    with Hernandez his age, address, and purpose of the hearing, the court asked
    him, “Do you read and write and understand the English language?” Id. at 84.
    Hernandez replied, “Yep.” Id. The trial court sentenced Hernandez on the two
    Class D felonies to concurrent 730-day terms, with 550 days suspended to
    probation. The court committed Hernandez to community corrections for the
    remaining 180 days.
    [13]   On February 19, 2015, Hernandez appeared, with counsel Jacob Meah of the
    Law Office of Al Kola, before the immigration court in Chicago for a hearing.
    After asking Hernandez his name, the immigration judge asked him, “Do you
    speak English,” and Hernandez replied “fluently.” Exhibits Vol. 3 at 85. The
    judge asked Hernandez about the status of the Indiana drug charge (Cause 313),
    and Hernandez explained that it was completed, having been sentenced in
    October 2014. The immigration judge reviewed with Hernandez the allegations
    in the Notice to Appear, which “charges that you are not a citizen of the United
    States and you’re a native and citizen of Mexico; that you crossed the border on
    an unknown date without being inspected or admitted by an immigration
    officer.” Id. at 88-89. Hernandez admitted that the allegations were true, and
    his counsel, on Hernandez’s behalf, conceded removability. The immigration
    court explained to Hernandez that, as to his removability, “there is no waiver”
    due to his criminal offense, nor did the court believe that Hernandez was
    Court of Appeals of Indiana | Memorandum Decision 18A-PC-1357 | February 20, 2019   Page 7 of 27
    eligible to file for permanent residency, such that Hernandez’s options were
    either to request to leave the country voluntarily or be deported at government
    expense. Id. at 91. The immigration court continued the matter in order to
    allow Hernandez and his counsel to discuss the possibility of filing for asylum
    or withholding of removal.
    [14]   On May 28, 2015, Hernandez and his counsel, Al Kola, appeared for another
    hearing before the immigration court. The judge asked Hernandez if he spoke
    English, and he replied, “Yes.” Id. at 96. The immigration judge discussed
    matters associated with Hernandez’s application for asylum, including directing
    him where to file it, and it reset the matter for a subsequent hearing to allow
    Hernandez “to come back and testify in support of [his] application.” Id. at 99-
    100. On November 3, 2015, the immigration court held another hearing, at the
    conclusion of which it ordered Hernandez’s removal, finding that Hernandez
    did not qualify for any of the available exceptions. Hernandez began an appeal
    process of the decision.
    [15]   While Hernandez’s immigration appeal was pending, he filed on January 31,
    2017, a petition for postconviction relief, asking the post-conviction court to
    vacate and set aside his judgments of conviction and sentences in Cause 313.
    The petition raised two issues: (1) whether Hernandez received ineffective
    assistance of counsel because he did not receive accurate advice regarding the
    immigration consequences of his plea agreement; and (2) whether Hernandez
    should have had a Spanish-language interpreter present at his hearings before
    the trial court.
    Court of Appeals of Indiana | Memorandum Decision 18A-PC-1357 | February 20, 2019   Page 8 of 27
    [16]   On January 25, 2018, the trial court held an evidentiary hearing on
    Hernandez’s petition. During the hearing Hernandez used the services of the
    court’s interpreter. Hernandez testified that, when he pled guilty in August
    2014, he was living with and helping to support Christina and her two children.3
    At that time, he owned and operated a cell phone repair business and had been
    working in the cell phone repair industry since 2012. Hernandez testified that
    he and Christina had been together since around 2009 and that they married in
    2017. Their first child together was born in May 2015, and they had twins in
    2016. Hernandez stated that his parents have lived in Lafayette, Indiana, since
    they arrived in the United States in 2002, and that some of his siblings, aunts,
    and uncles also live in Lafayette. Hernandez testified that he had never been
    back to Mexico since leaving in 2002 and that he does not have any close
    family members still living in Mexico. Hernandez stated that his immigration
    appeal was still pending and, when asked if he had applied for an immigration
    defense called cancellation of removal or deportation, he said that he had not
    because he was not eligible because of the drug conviction (Cause 313). He
    testified that Dekker did not advise him that his guilty plea would come with
    immigration consequences, or that it would prohibit his use of a common
    defense to deportation. He also testified that he did not ask Broden (his
    immigration attorney) for legal advice on the effect that his convictions in
    Cause 313 would have on his removability. Hernandez testified that he would
    3
    Christina was born in 1986 and came to the United States in 1997. She testified at the post-conviction
    hearing that, at that time, she had DACA status.
    Court of Appeals of Indiana | Memorandum Decision 18A-PC-1357 | February 20, 2019               Page 9 of 27
    not have accepted the plea agreement in Cause 313 and would have preferred to
    go to trial had he known about the immigration consequences of pleading
    guilty. When asked whether he spoke English fluently when he entered into the
    plea agreement, he said “I would say no.” Transcript Vol. 2 at 25. He stated
    that he did not read the Advisement of Rights form or plea agreement before
    signing those documents.
    [17]   Dekker, Hernandez’s guilty plea counsel, testified that he could speak Spanish
    but that he always conversed with Hernandez in English. He said that
    Hernandez never asked for an interpreter, but if he had, Dekker “absolutely”
    would have sought one, noting that his firm had had an “in-house” interpreter
    for fifteen years. Transcript Vol. 2 at 14. Dekker testified that it was his practice
    to inform all of his clients that he was not an immigration attorney and that if
    they were not in the country legally or if they had a permit or visa, that they
    should consult with an immigration attorney. Dekker discussed that, during the
    course of his representation of Hernandez in Cause 313, he sent Hernandez five
    letters dated April 9, 2014, May 19, 2014, June 30, 2014, August 18, 2014, and
    October 6, 2014, all of which contained a bold advisement that read: “Note: If
    you are not a citizen, you are hereby advised that a conviction of the offense for
    which you have been charged may have the consequences of deportation,
    exclusion from admission to the United States, or denial of naturalization
    pursuant to the laws of the United States.” Exhibit Vol. 4 at 110-14. Dekker was
    aware during the pendency of Cause 313 that Hernandez was involved in
    proceedings with the immigration court in Chicago and, in June 2014, Broden
    Court of Appeals of Indiana | Memorandum Decision 18A-PC-1357 | February 20, 2019   Page 10 of 27
    sent a letter to Dekker advising him that he was representing Hernandez in the
    removal proceedings.
    [18]   Dekker testified that, during negotiations with the State in Cause No. 313, the
    State did not offer any agreement that would have had no immigration
    consequences. Dekker was satisfied with the ultimate result that Hernandez
    received, concurrent 730-day sentences with 550-days suspended, considering
    “the facts of the case and [his] priors” as well as a pending petition to revoke
    probation in Cause No. 321. Transcript Vol. 2 at 14. A transcript of
    Hernandez’s removal proceedings in Chicago was admitted during the post-
    conviction hearing.
    [19]   On May 14, 2018, the post-conviction court issued detailed findings and
    conclusions denying Hernandez’s petition. With regard to Hernandez’s claim
    that Dekker did not properly advise him of immigration consequences
    associated with his guilty plea, the post-conviction court concluded that “there
    is ample evidence that Mr. Dekker did directly and affirmatively advise
    [Hernandez] of the immigration consequences” and that, even if he did not,
    “[Hernandez] had actual knowledge of the immigration consequences before
    signing the plea agreement,” given his prior plea agreements and advisements
    of rights. Appellant’s Appendix Vol. II at 158. Further, the court determined,
    12. “[I]n order to state a claim for postconviction relief a
    petitioner may not simply allege that a plea would not have been
    entered, nor is the petitioner’s conclusory testimony to that effect
    sufficient to prove prejudice. Instead, the petitioner must
    “establish, by objective facts, circumstances that support a
    Court of Appeals of Indiana | Memorandum Decision 18A-PC-1357 | February 20, 2019   Page 11 of 27
    conclusion that [trial] counsel’s errors in advice as to penal
    consequences were material to the decision to plead guilty.”
    Segura v. State, 749 N.E.2d [496, 507 (Ind. 2001)], Trujillo v. State,
    
    962 N.E.2d 110
     (Ind. App. 201l), Gulzar v. State, 
    971 N.E.2d 1256
     (Ind. App. 2012).
    “We see no reason to require revisiting a guilty plea if, at the end
    of the day, the inevitable result is conviction and the same
    sentence. 749 N.E.2d at 507. That is, the Court acknowledged
    that it is only in “extreme cases” that “a truly innocent
    defendant” pleads guilty “because of incorrect advice as to the
    consequences.” Gulzar, 971 N.E.2d at 1262.
    13. Even if Mr. Dekker had not advised the Petitioner of the
    immigration consequences, the court concludes the Petitioner has
    not stated any objective facts to support that his decision to plead
    guilty would have been changed if Mr. Dekker had advised him.
    14. Under the category of objective facts, “it is also appropriate to
    consider “the strength of the State’s case,” which a reasonable
    defendant would take into a account when pondering a guilty
    plea, and “the benefit conferred upon the defendant.” Suarez v.
    State, 
    967 N.E.2d 552
     (Ind. App. 2012).
    15. Here, the Petitioner did not testify to any “objective facts” to
    demonstrate that ‘but for’ Mr. Dekker not telling him about the
    immigration consequences, he would have proceeded to trial and
    that a different outcome (that is, a not guilty verdict) would have
    been likely given the facts of the case. Police went to the
    Petitioner’s home looking for another person and found cocaine
    in plain view and physically on and in the Petitioner’s person
    while in possession of official looking documents showing the
    use of a false identity.
    Court of Appeals of Indiana | Memorandum Decision 18A-PC-1357 | February 20, 2019   Page 12 of 27
    Mr. Dekker negotiated a guilty plea while the Petitioner was still
    on probation that included concurrent sentences for [two] new []
    felony convictions and no sanction in his pending probation
    violation for a prior felony conviction. Mr. Dekker testified that
    earlier plea agreement offers were not accepted by the Petitioner
    because of immigration consequences. The “open” plea
    agreement would also have given discretion to the trial court to
    enter the felony convictions as misdemeanors which if entered as
    a misdemeanor could be beneficial to the Petitioner when
    arguing against his “removal” during immigration proceedings.
    Id. at 159-60.
    [20]   With regard to Hernandez’s post-conviction claim that he should have been
    provided with an interpreter during the Cause 313 trial court proceedings, the
    post-conviction court determined that Hernandez was advised of his Boykin
    rights in the Advisement of Rights form, where he acknowledged that he reads,
    writes, and understands English, and “[t]here is nothing in the record of the
    proceedings in [Cause] 313 or the proceedings in the current post-conviction
    relief that shows the Petitioner ever requested and was denied an interpreter for
    his guilty plea hearing in [Cause] 313.” Id. at 161. The trial court also observed
    that (1) in some of his previous criminal court matters, Hernandez had used the
    services of an interpreter thereby demonstrating that he knew an interpreter
    would be available if he felt the need for one, and (2) he had participated in four
    immigration proceedings – one of which was before the guilty plea hearing in
    Cause 313 and the other three were within fifteen months of it – and at none of
    those hearings did Hernandez request an interpreter and, in fact, repeatedly told
    Court of Appeals of Indiana | Memorandum Decision 18A-PC-1357 | February 20, 2019   Page 13 of 27
    the immigration court that he spoke English. The post-conviction court denied
    Hernandez’s petition, and he now appeals.
    Discussion & Decision
    I. Ineffective Assistance of Counsel
    [21]   “The standard of review for a petitioner denied post-conviction relief is
    rigorous.” Trujillo v. State, 
    962 N.E.2d 110
    , 113 (Ind. Ct. App. 2011).
    Appellate courts consider only the evidence and reasonable inferences
    supporting the judgment. Carrillo v. State, 
    982 N.E.2d 461
    , 464 (Ind. Ct. App.
    2013). The post-conviction court is the sole judge of the evidence and the
    credibility of the witnesses. 
    Id.
     We will disturb the post-conviction court’s
    decision only if the evidence is without conflict and leads to but one conclusion,
    and the post-conviction court has reached the opposite conclusion. Gulzar v.
    State, 
    971 N.E.2d 1258
    , 1260 (Ind. Ct. App. 2012), trans. denied.
    [22]   Hernandez contends that the post-conviction court erred in finding that he was
    not denied the effective assistance of trial counsel. The petitioner for post-
    conviction relief bears the burden of establishing grounds for relief by a
    preponderance of the evidence. Ind. Post-Conviction Rule 1(5); Gulzar , 971
    N.E.2d at 1260. To prevail on a claim of ineffective assistance of counsel, a
    petitioner must demonstrate both that his counsel’s performance was deficient
    and that the petitioner was prejudiced by the deficient performance. Ben-Yisrayl
    v. State, 
    729 N.E.2d 102
    , 106 (Ind. 2000) (citing Strickland v. Washington, 
    466 U.S. 668
    , 687, (1984)), cert. denied). Counsel’s performance is deficient if it falls
    Court of Appeals of Indiana | Memorandum Decision 18A-PC-1357 | February 20, 2019   Page 14 of 27
    below an objective standard of reasonableness based on prevailing professional
    norms. French v. State, 
    778 N.E.2d 816
    , 824 (Ind. 2002). Our standard of
    review requires us to presume that counsel rendered adequate assistance and
    made all significant decisions in the exercise of reasonable professional
    judgment. Pennycuff v. State, 
    745 N.E.2d 804
    , 811 (Ind. 2001). We judge the
    reasonableness of counsel’s challenged conduct on the facts of the particular
    case, viewed at the time of counsel’s conduct and not through the lens of
    hindsight. Id. at 811-12. Prejudice results where there is “a reasonable
    probability that, but for counsel’s unprofessional errors, the result of the
    proceedings would have been different.” Id. “A reasonable probability is one
    that is sufficient to undermine confidence in the outcome.” Kubsch v. State, 
    934 N.E.2d 1138
    , 1147 (Ind. 2010) (quoting Strickland, 
    466 U.S. at 694
    ). “Failure to
    satisfy either prong will cause the claim to fail.” French, 778 N.E.2d at 824.
    [23]   Hernandez contends that Dekker provided ineffective assistance because he
    failed to properly advise Hernandez of the immigration consequences
    associated with his guilty plea. Because Hernandez was convicted pursuant to
    a guilty plea, we examine his claim under Segura v. State, 
    749 N.E.2d 496
     (Ind.
    2001). See Trujillo, 
    962 N.E.2d at 114
     (recognizing that defendant’s post-
    conviction claim of ineffective assistance, based on counsel’s failure to properly
    advise him of immigration consequences, must be analyzed under Segura).
    Court of Appeals of Indiana | Memorandum Decision 18A-PC-1357 | February 20, 2019   Page 15 of 27
    Segura categorizes two main types of ineffective assistance of counsel cases.4
    The second category, at issue here, relates to “an improper advisement of penal
    consequences” and is further divided into two subcategories: (1) claims of
    intimidation by exaggerated penalty or enticement by an understated maximum
    exposure, and (2) claims of incorrect advice as to the law. Willoughby v. State,
    
    792 N.E.2d 560
    , 563 (Ind. Ct. App. 2003), trans. denied. Hernandez’s challenge
    falls under the latter subcategory.
    [24]   Specifically, Hernandez contends that Dekker performed deficiently because he
    failed to advise Hernandez that, pursuant to federal immigration laws, pleading
    guilty to possession of cocaine and synthetic identity deception would subject
    him to deportation and also render him ineligible for a defense known as
    cancellation of removal. The Segura court recognized that counsel’s failure to
    advise regarding possible adverse immigration consequences could constitute
    deficient performance “under some circumstances.” Carrillo v. State, 
    982 N.E.2d 468
    , 473 (Ind. Ct. App. 2013) (citing Segura, 749 N.E.2d at 500).
    Specifically, the Segura court stated:
    [T]he failure to advise of the consequence of deportation can,
    under some circumstances, constitute deficient performance.
    Otherwise stated, we cannot say that this failure as a matter of
    law never constitutes deficient performance. Whether it is
    deficient in a given case is fact sensitive and turns on a number of
    4
    Segura categorizes ineffective assistance of counsel claims made in the context of a guilty plea into two
    categories: (1) the failure to advise the defendant on an issue that impairs or overlooks a defense, and (2) an
    incorrect advisement of penal consequences. Segura v. State, 
    749 N.E.2d 496
    , 500 (Ind. 2001)
    Court of Appeals of Indiana | Memorandum Decision 18A-PC-1357 | February 20, 2019                  Page 16 of 27
    factors. These presumably include the knowledge of the lawyer
    of the client’s status as an alien, the client’s familiarity with the
    consequences of conviction, the severity of criminal penal
    consequences, and the likely subsequent effects of deportation.
    Other factors undoubtedly will be relevant in given
    circumstances.
    749 N.E.2d at 500.
    [25]   In this case, Hernandez contends that, although his trial counsel, Dekker,
    advised him that his plea may or could have deportation consequences, this
    advice was incorrect under Padilla v. Kentucky, 
    559 U.S. 356
     (2010), in which
    the Court explained:
    Immigration law can be complex, and it is a legal specialty of its
    own. . . . 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. When 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. But when the deportation
    consequence is truly clear . . . the duty to give correct advice is equally
    clear.
    
    Id. at 369
     (emphasis added).
    [26]   Hernandez argues that, in his case, the deportation consequences were clear
    under federal immigration laws. In particular, he claims that possession of
    cocaine and synthetic identity deception “obviously” fall within the plain
    language of 
    8 U.S.C. § 1182
    (a)(2)(A)(i), which renders inadmissible certain
    Court of Appeals of Indiana | Memorandum Decision 18A-PC-1357 | February 20, 2019   Page 17 of 27
    noncitizens with convictions for crimes involving moral turpitude and
    convictions relating to controlled substances.5 Reply Brief at 6. Hernandez
    argues that both of his convictions “rendered [him] inadmissible to and
    removable from the United States.” 
    Id.
     Furthermore, he asserts, the
    convictions “rendered him ineligible for cancelation of removal under 8 U.S.C.
    § 1229b(b)(1).” Id. Hernandez maintains that, under Padilla, only “when the
    law is not succinct and straightforward” is it sufficient for a criminal defense
    attorney to advise a noncitizen client “that pending criminal charges may carry
    a risk of adverse immigration consequences,” but “when the consequences are
    clear, as they are in Mr. Hernandez’s case, the duty to give correct advice is
    5
    
    8 U.S.C. § 1182
    (a)(2)(A)(i) provides:
    (i) Except as provided in clause (ii), any alien convicted of, or who admits
    having committed, or who admits committing acts which constitute the essential
    elements of--
    (I) a crime involving moral turpitude (other than a purely political
    offense) or an attempt or conspiracy to commit such a crime, or
    (II) a violation of (or a conspiracy or attempt to violate) any law or
    regulation of a State, the United States, or a foreign country relating to
    a controlled substance (as defined in section 802 of Title 21),
    is inadmissible.
    See also, 
    8 U.S.C. § 1227
    (a)(2)(A)(II) (“Any alien who . . . is convicted of a crime for which a sentence of one
    year or longer may be imposed[] is deportable.”)
    Court of Appeals of Indiana | Memorandum Decision 18A-PC-1357 | February 20, 2019                    Page 18 of 27
    equally clear.” Appellant’s Brief at 14 (citing Padilla, 
    559 U.S. at 369
    ).
    Hernandez notes that Padilla’s offense was, like his own, an offense relating to
    a controlled substance, and the Padilla Court held, “This is not a hard case in
    which to find deficiency: The consequences of Padilla’s plea could easily be
    determined from reading the removal statute [and] his deportation was
    presumptively mandatory[.]”6 
    559 U.S. at 368-69
    . Therefore, Hernandez
    maintains, Dekker’s advice was incorrect and amounted to deficient
    representation.
    [27]   The State responds that, contrary to Hernandez’s characterization, the situation
    was not “clear” given that (1) Hernandez had previously told the court and
    Dekker that he was a citizen, (2) Dekker advised Hernandez in multiple letters
    that “[i]f you are not a citizen, you are hereby advised that a conviction of the
    offense for which you have been charged may have the consequences of
    deportation, exclusion from admission to the United States, or denial of
    naturalization pursuant to the laws of the United States,” and prior advisements
    and pleas had also advised that a conviction could affect his immigration status,
    and (3) Hernandez had retained an immigration attorney prior to the time he
    voluntarily chose to plead guilty. Exhibit Vol. 4 at 110-14. Under these
    circumstances, the State urges, Dekker’s performance was not deficient.
    6
    In Padilla v. Kentucky, 
    559 U.S. 356
     (2010), the defendant pled guilty to drug distribution, and in seeking
    post-conviction relief, he claimed his counsel not only failed to advise him of the deportation consequence
    but also told him that he “did not have to worry about immigration status since he had been in the country so
    long.” 
    Id. at 359
    . In finding that counsel provided deficient performance, the Padilla Court noted that
    “Padilla’s crime, like virtually every drug offense except for only the most insignificant marijuana offenses, is
    a deportable offense under 
    8 U.S.C. § 1227
    (a)(2)B)(i).” 
    Id.
     at 361 n.2.
    Court of Appeals of Indiana | Memorandum Decision 18A-PC-1357 | February 20, 2019                  Page 19 of 27
    [28]   Even if we were to agree that Dekker was deficient by failing to specifically
    advise Hernandez that pleading guilty to possession of cocaine and synthetic
    identity deception would subject him to deportation and render him ineligible
    for cancellation of removal defense, Hernandez also would need to establish
    that Dekker’s failure to so advise him resulted in prejudice. To state a claim for
    post-conviction relief under this subcategory, a petitioner must “establish, by
    objective facts, circumstances that support the conclusion that counsel’s errors
    in advice as to penal consequences were material to the decision to plead.”
    Segura, 749 N.E.2d at 507. That is, simply alleging that the petitioner would
    not have pled will not be sufficient. Id. “Rather, specific facts, in addition to
    the petitioner’s conclusory allegation, must establish an objective reasonable
    probability that competent representation would have caused the petitioner not
    to enter a plea.” Id.; see also Trujillo, 
    962 N.E.2d at 114-15
    .
    [29]   Hernandez testified at the post-conviction hearing that he would not have pled
    guilty had Dekker properly advised him of the deportation consequences.
    However, as Hernandez acknowledges on appeal, pursuant to Segura, he must
    also show specific facts that establish an objective reasonable probability that
    competent representation would have caused the petitioner not to enter a plea.
    The relevant circumstances to examine are those that existed when he pled
    guilty in 2014 and whether those circumstances establish an objectively
    reasonable probability that he would not have pled guilty.
    [30]   Whether a failure to advise a defendant of possible deportation consequences
    constitutes deficient performance by an attorney is “fact sensitive.” Segura, 749
    Court of Appeals of Indiana | Memorandum Decision 18A-PC-1357 | February 20, 2019   Page 20 of 27
    N.E.2d at 500. A number of decisions from this court have addressed whether
    the petitioner had shown the necessary “special circumstances.” For instance,
    in Sial v. State, 
    862 N.E.2d 702
    , 706 (Ind. Ct. App. 2007), where the petitioner
    had been in the United States for twenty years and had a daughter who was
    born here, we held that the defendant did establish objective facts, or “special
    circumstances” to satisfy the prejudice prong of an ineffective assistance claim
    based on the failure to advise of the possible adverse immigration consequences
    from pleading guilty. However, in contrast, the court in Trujillo, concluded that
    the petitioner “failed to demonstrate the presence of special circumstances
    within the meaning of Segura and therefore failed to demonstrate that he
    suffered prejudice” from counsel’s failure to advise him regarding the
    immigration consequences of pleading guilty. 
    962 N.E.2d at 116
    . In Trujillo,
    defendant came to the United States when he was fifteen and pled guilty when
    he was fifty-two, but the court did not find the length of time that he lived in the
    United States to be a special circumstance when considered with his family
    situation, which was that he did not have a spouse or children. The Trujillo
    court thus determined that his “situation was ‘fundamentally different’ from the
    petitioner’s in Sial.” 
    962 N.E.2d at 116
    .
    [31]   After Sial and Trujillo, this court in Clarke v. State, 
    974 N.E.2d 562
    , 566 (Ind. Ct.
    App. 2012), recognized additional factors that a reasonable defendant would
    consider in deciding whether to plead guilty are (1) the strength of the State’s
    case against the defendant, and (2) the benefit to the defendant from pleading
    guilty. Clarke was thirty-three years old when he pled guilty to dealing in
    Court of Appeals of Indiana | Memorandum Decision 18A-PC-1357 | February 20, 2019   Page 21 of 27
    cocaine and had been living in the United States for eleven years. At the time of
    his guilty plea, he had two children who were still in-utero, but he was not
    married to either of the women carrying his child. For purposes of the appeal,
    the Clarke court assumed, without deciding, that these were special
    circumstances, but then examined the strength of the case against him and the
    benefit he received by pleading guilty:
    The evidence against Clarke included the contraband, the large
    amount of cash found in the vehicle, and, we presume, the
    testimony of the two officers at the scene of the stop and arrest.
    Based upon the nature and strength of this evidence, we conclude
    that the objective probability of success at trial was low.
    Moreover, Clarke received a significant benefit in exchange for
    his guilty plea. The State agreed to reduce the dealing charge
    from a class A to a class B felony, and agreed to dismiss the
    marijuana charge and the resisting charge. The reduction in the
    dealing charge alone reduced his sentence exposure from an
    advisory sentence of thirty years to an advisory sentence of ten
    years. As it was, he was sentenced to six years, all suspended,
    and two years on probation. In summary, Clarke received a
    substantial benefit from his guilty plea.
    Id. at 568. The Clarke court concluded that Clarke would have pled guilty even
    if he had been advised of the risk of deportation considering the strength of the
    case against him and the substantial benefit he received from pleading guilty.
    [32]   Similarly, in Gulzar, this court, after considering not only the circumstances of
    the defendant’s life in the United States, but also the evidence establishing his
    guilt, determined that Gulzar had failed to demonstrate prejudice as a result of
    trial counsel’s failure to advise him that his guilty plea to theft would result in
    Court of Appeals of Indiana | Memorandum Decision 18A-PC-1357 | February 20, 2019   Page 22 of 27
    automatic deportation. There, the defendant entered the United States in 2000
    with his parents and siblings, and he pled guilty in 2006 to theft. At some point,
    his parents and siblings became naturalized citizens. Gulzar’s participation in
    the crimes was documented on surveillance video, the items purchased with the
    stolen credit card were found in his apartment, and Gulzar never denied his
    involvement. He was charged with three Class D felonies, but pled guilty to
    one and was sentenced to eighteen months, all suspended, and probation,
    which he completed. The Gulzar court recognized that “[i]f deported, Gulzar
    would be forced either to leave his family behind or to uproot them from the
    country that has been their home for more than a decade,” but concluded that,
    even if those facts “may indeed be special circumstances,” Gulzar had not
    proven prejudice, given the strength of the case and benefit of the plea. 971
    N.E.2d at 1262. In reaching its decision, the Gulzar court noted that it is only in
    “extreme cases” that “a truly innocent defendant” pleads guilty “because of
    incorrect advice as to the consequences” and found that Gulzar’s case “is not
    one of those extreme cases.” Id. (citing Segura, 749 N.E.2d at 507).
    [33]   We likewise find that Hernandez’s case is “not one of those extreme cases”
    where a truly innocent defendant pled guilty because of incorrect advice as to
    consequences. Hernandez came to the United States from Mexico in 2002
    when he was sixteen. He was with Christina at the time he pled guilty in 2014,
    although not married to her yet, and she was pregnant with their first child. He
    was also operating a cell phone repair business. In addition, we must also
    consider the strength of the case against him and the benefit of his plea. The
    Court of Appeals of Indiana | Memorandum Decision 18A-PC-1357 | February 20, 2019   Page 23 of 27
    case against Hernandez was strong. Cocaine was found in his residence and on
    his person. A white powdery substance was also observed on his nostrils, and
    he admitted to using cocaine. He also possessed synthetic identifying
    information. He pled guilty to two Class D felonies, and the two misdemeanor
    counts were dismissed. The plea gave the trial court discretion to enter the
    felony convictions as misdemeanors. That agreement also resolved a petition to
    revoke probation that had been filed in Hernandez’s prior felony operating
    while intoxicated offense. The trial court sentenced Hernandez to a 730-day
    term with 550 days suspended to probation and the remainder served on
    community corrections.
    [34]   Even if we assume that Hernandez established special circumstances related to
    his job and family, we conclude that, in light of the evidence establishing his
    guilt and the benefit he received, he has failed to demonstrate prejudice.
    Accordingly, we affirm the post-conviction court’s determination that he did
    not receive ineffective assistance of counsel.
    II. Interpreter
    [35]   Hernandez claims that because he did not have an interpreter present at his
    hearings in Cause 313, “the record does not reflect that he knowingly and
    voluntarily” waived his Boykin rights.7 Appellant’s Brief at 20. The failure to
    7
    In Boykin v. Alabama, the United States Supreme Court held that a trial court must be satisfied that an
    accused is aware of three rights before accepting a guilty plea: (1) the privilege against compulsory self-
    incrimination; (2) the right to trial by jury; and (3) the right to confront one’s accusers. 
    395 U.S. 238
    , 242-243
    Court of Appeals of Indiana | Memorandum Decision 18A-PC-1357 | February 20, 2019                   Page 24 of 27
    advise a criminal defendant of his constitutional rights in accordance with
    Boykin prior to accepting a guilty plea will result in reversal of the conviction.
    Ponce v. State, 
    9 N.E.3d 1265
    , 1270 (Ind. 2014). Boykin does not require that the
    record of the guilty plea proceeding show that the accused was formally advised
    that entry of his guilty plea waives certain constitutional rights or that “the
    record contain a formal waiver of [Boykin rights] by the accused.” Winkleman v.
    State, 
    22 N.E.3d 844
    , 851 (Ind. Ct. App. 2014), trans. denied. Rather, Boykin
    requires a conviction to be vacated only if the defendant “did not know or was
    not advised at the time of his plea that he was waiving his Boykin rights.” 
    Id.
    (citing Dewitt v. State, 
    755 N.E.2d 167
    , 171 (Ind. 2001)).
    [36]   Our Supreme Court has directed that “a defendant who cannot speak or
    understand English has [the] right to have his proceedings simultaneously
    translated to allow for effective participation.” Ponce, 9 N.E.3d at 1272.
    Hernandez argues that his native language is Spanish, he used the services of an
    interpreter in other cases, and although he did speak “some English,” he did not
    speak English fluently enough “to understand legal matters.” Appellant’s Brief at
    20. Therefore, he claims that he “should have had[] an interpreter present at his
    hearings, particularly at his guilty plea hearing,” and that the record does not
    reflect that he knowingly and voluntarily waived his rights. Id. We disagree.
    (1969); see also 
    Ind. Code § 35-35-1-2
     (requiring that a trial court not accept a guilty plea without first
    determining that the defendant has been informed he is waiving certain rights).
    Court of Appeals of Indiana | Memorandum Decision 18A-PC-1357 | February 20, 2019                     Page 25 of 27
    [37]   In this case, there is no recording or transcript of the August 2014 guilty plea
    hearing. “[W]here the record of the guilty plea hearing itself does not establish
    that a defendant was properly advised of and waived his rights, evidence
    outside of that record may be used to establish a defendant’s understanding.”
    Ponce, 9 N.E.3d at 1273. We thus examine the surrounding hearings and
    circumstances.
    [38]   In some of Hernandez’s criminal proceedings that preceded Cause 313, he used
    an interpreter and, in others, he did not. Hernandez’s attorney in Cause 313,
    Dekker, testified at the post-conviction hearing that, although he could speak
    Spanish, he and Hernandez only conversed in English. Dekker stated that at no
    time in either Cause 313 or Cause 321 did Hernandez indicate that he would
    like to utilize the services of an interpreter. At the Cause 321 sentencing
    hearing, which occurred in October 2012, the trial court noticed that Hernandez
    was using a translator and Hernandez’s Advisement of Rights form was in
    English. The court then asked Hernandez whether he was bilingual and could
    understand both English and Spanish, and Hernandez replied in the affirmative.
    At the beginning of the Cause 313 sentencing hearing, which occurred in
    October 2014, the trial court asked him, “Do you read and write and
    understand the English language?” Exhibit Vol. 1 at 84. Hernandez replied,
    “Yep.” Id. Hernandez’s Advisement of Rights form was in English and he
    signed it and filed it with the trial court.
    [39]   At the same time as matters were proceeding in Cause 313, Hernandez was
    appearing, with counsel, for hearings in the Chicago immigration court. He
    Court of Appeals of Indiana | Memorandum Decision 18A-PC-1357 | February 20, 2019   Page 26 of 27
    appeared on June 25, 2014, which was before his August 2014 guilty plea
    hearing in Cause 313, and then again in February, May, and November 2015,
    which followed his October 2014 sentencing hearing. At each, he conversed
    with the court only in English and repeatedly told the court that he could speak
    English, once responding by stating “fluently.” Exhibit Vol. 3 at 85.
    [40]   Given the record before us, we agree with the State that “[t]he record in no way
    reflects that [Hernandez] did not understand his Boykin rights.” Appellee’s Brief
    at 13. Accordingly, we find no error with the trial court’s decision that
    Hernandez was not entitled to post-conviction relief on this basis.
    [41]   Judgment affirmed.
    Brown, J. and Tavitas, J., concur.
    Court of Appeals of Indiana | Memorandum Decision 18A-PC-1357 | February 20, 2019   Page 27 of 27