Pedro Rayo Zagal v. State of Indiana ( 2019 )

FILED
Jul 24 2019, 9:13 am
CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court
ATTORNEYS FOR APPELLANT ATTORNEYS FOR APPELLEE
Nancy A. McCaslin Curtis T. Hill, Jr.
McCaslin & McCaslin Attorney General
Elkhart, Indiana Chandra K. Hein
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Pedro Rayo Zagal, July 24, 2019
Appellant-Petitioner, Court of Appeals Case No.
19A-PC-694
v. Appeal from the
Elkhart Superior Court
State of Indiana, The Honorable
Appellee-Respondent Charles Carter Wicks, Judge
Trial Court Cause No.
20D05-1809-PC-46
Vaidik, Chief Judge.
Case Summary
[1] In 2007, Pedro Rayo Zagal pled guilty to possession of cocaine. More than ten
years later, he filed a petition for post-conviction relief alleging that his trial
counsel was ineffective for failing to advise him that his guilty plea carried a risk
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of deportation, and the post-conviction court denied him relief. Because Rayo
Zagal admitted that the advisements of rights at his initial hearing and in his
plea agreement informed him that he could be deported as a result of his guilty
plea and conviction and that he read these advisements, we affirm the post-
conviction court.
Facts and Procedural History
[2] Rayo Zagal came to the United States from Mexico in 1994, when he was seven
years old. Rayo Zagal is in the country under the United States Department of
Homeland Security’s Deferred Action for Childhood Arrivals (DACA)
program.
[3] On January 30, 2007, the State charged Rayo Zagal, then nineteen years old,
with Class D felony possession of cocaine. At his February 2 initial hearing,
Rayo signed an Advisement of Rights and Penalties, which contained the
following advisement: “If you are an illegal alien you may be deported if
convicted of a crime.” Appellant’s App. Vol. II p. 16.
[4] In April 2007, the State and Rayo Zagal, who was represented by counsel,
entered into a written plea agreement. The agreement stated that Rayo Zagal
was born in Mexico and a citizen of Mexico. Id. at 19. The agreement
contained a section entitled “Defendant’s Rights.” Rayo Zagal wrote his
initials next to the following provision:
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The defendant understands that if he/she is not a legal citizen of
the United States, he/she may be deported as a result of his/her
plea of guilty.
Id. at 21. In addition, Rayo Zagal wrote his initials next to the
acknowledgments that he had “received and read, or had read to him,” the plea
agreement and that the plea agreement “was translated into Spanish, my native
language, before I signed it.” Id. at 20, 22. Both Rayo Zagal and his trial
counsel then signed the plea agreement.
[5] At the guilty-plea hearing, Rayo Zagal acknowledged that he read over the plea
agreement “carefully,” understood what he read, and initialed and signed it.
Tr. pp. 4-5. The trial court noted that Rayo Zagal was born in Mexico and a
citizen of Mexico but was “completely fluent in English.” Tr. p. 12. The court
took the plea under advisement and set the matter for sentencing.
[6] At the sentencing hearing in May 2007, the trial court explained that given
Rayo Zagal’s age and immaturity, it “was reluctant to hang a felony conviction
on [him] at this point.” Id. at 22. The court told Rayo Zagal that if he was
willing to accept “certain conditions,” it was “willing to continue sentencing for
a while to give [him] a chance to maybe avoid a felony conviction.” Id. Rayo
Zagal accepted the conditions, including that he stay away from drugs and
alcohol, submit to chemical tests, obtain his GED, and perform community
service, and the court “reset sentencing” for one year. Id. at 23.
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[7] At the reset sentencing hearing in May 2008, the trial court found that Rayo
Zagal had satisfied the conditions, entered judgment of conviction for
possession of cocaine as a Class A misdemeanor, and sentenced Rayo Zagal to
one year of incarceration, all suspended to probation. Appellant’s App. Vol. II
p. 23.
[8] Ten years later, in the summer of 2018, Rayo Zagal spoke with an immigration
attorney, who told him that he couldn’t become a United States citizen due to
his possession-of-cocaine conviction and that his “road ends at DACA and if
that gets thrown out, [he’s] in jeopardy of being deported.” Tr. p. 54. In
September 2018, Rayo Zagal filed a petition for post-conviction relief alleging
that his trial counsel was ineffective for not “advis[ing] [him] of the
immigration consequences of entering a guilty plea.” Appellant’s App. Vol. II
p. 32.
[9] At the post-conviction hearing, Rayo Zagal testified that his trial counsel did
not advise him of the immigration consequences of pleading guilty to
possession of cocaine. Tr. p. 58. However, Rayo Zagal admitted that he read
and wrote his initials next to the provision in his plea agreement that he
understood that if he was not a legal citizen of the United States, he may be
deported as a result of his plea. Id. at 62-63. Despite agreeing that this
language was not ambiguous, Rayo Zagal claimed that he “did not know to
what degree that meant not until [he] spoke with an immigration lawyer.” Id.
at 63. Rayo Zagal also admitted reading and signing the Advisement of Rights
and Penalties at his initial hearing, which similarly advised him that if he was
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an illegal alien, he may be deported if convicted of a crime. Id. 64-66. In an
order dated March 1, 2019, the post-conviction court found that Rayo Zagal’s
trial counsel did not perform deficiently and denied him relief.
[10] Rayo Zagal now appeals.
Discussion and Decision
[11] A defendant who files a petition for post-conviction relief has the burden of
establishing the grounds for relief by a preponderance of the evidence. Hollowell
v. State, 19 N.E.3d 263, 268-69 (Ind. 2014). If the post-conviction court denies
relief, and the petitioner appeals, the petitioner must show that the evidence
leads unerringly and unmistakably to a conclusion opposite that reached by
the post-conviction court. Id. at 269.
[12] Rayo Zagal contends that the post-conviction court should have granted him
relief because his trial counsel was ineffective. When evaluating a defendant’s
ineffective-assistance-of-counsel claim, we apply the well-established, two-
part test from Strickland v. Washington, 466 U.S. 668 (1984). Bobadilla v. State,
117 N.E.3d 1272, 1280 (Ind. 2019). The defendant must prove that (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. Id.
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[13] Rayo Zagal argues that his trial counsel performed deficiently because he did
not advise him that his guilty plea carried a risk of deportation. In Padilla v.
Kentucky, the United States Supreme Court held that “counsel must inform her
client whether his plea carries a risk of deportation” and that failure to do so
“clearly satisfies the first prong of the Strickland analysis.” 559 U.S. 356, 371,
374 (2010). In Bobadilla, the Indiana Supreme Court held that it is “bound by
Padilla—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.
[14] Rayo Zagal’s brief relies heavily on Bobadilla. That decision was issued on
March 5, 2019, four days after the post-conviction court’s order in this case.
More importantly, it was issued almost twelve years after Rayo Zagal pled
guilty in 2007. In addition, Bobadilla relies heavily on Padilla, which the United
States Supreme Court decided in 2010 and has since ruled is not retroactive.
See Chaidez v. United States, 568 U.S. 342 (2013). Nevertheless, our Supreme
Court stated in Bobadilla that when Padilla was decided “our state’s case law
already contained Padilla-esque requirements” in Segura v. State, 749 N.E.2d 496
(Ind. 2001). Bobadilla, 117 N.E.3d at 1281. As the Court explained, “Segura
predated Padilla by nine years and the holdings roughly align . . . .” Id. at 1282.
Arguably, then, the principles discussed by our Supreme Court in Bobadilla are
relevant. But even considering Bobadilla, Rayo Zagal is not entitled to relief.
[15] Notably, Rayo Zagal does not dispute that the Advisement of Rights and
Penalties at his initial hearing and the “Defendant’s Rights” section of his plea
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agreement informed him that he could be deported as a result of his guilty plea
and conviction. He also does not dispute that he read these advisements. His
argument therefore appears to be that trial counsel should have separately
advised him of the immigration consequences of pleading guilty. Rayo Zagal,
however, does not cite any authority to support such an argument. Indeed, the
Indiana Supreme Court held in Bobadilla that trial counsel can satisfy Padilla by
“letting the client read and mark [an] advisement” form that contains a Padilla
warning:
At the very least, counsel need only read the form to his client or
stand by patiently while the client reads the unmarked form to
satisfy Padilla’s mandate. See Padilla, 559 U.S. at 369
(acknowledging immigration law’s complexity and explaining
that when the law is unclear on whether a client faces
deportation, “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”). Reading the
form puts the client on notice that a guilty plea amounts to a
criminal conviction that might have immigration consequences
and the client should consult an attorney.
Bobadilla, 117 N.E.3d at 1283.
[16] Here, even assuming that trial counsel did not separately advise Rayo Zagal,
Rayo Zagal admitted that he read the advisements at his initial hearing and in
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his plea agreement. This is all that is required. Trial counsel was not deficient.1
We therefore affirm the post-conviction court.
Riley, J., and Bradford, J., concur.
1
Rayo Zagal also argues that his trial counsel was ineffective for failing to object when the trial court entered
judgment of conviction for possession of cocaine as a Class A misdemeanor. Citing Indiana Code sections
35-38-1-1.5 and 35-50-2-7, Rayo Zagal claims that the trial court could have only entered judgment of
conviction as a Class D felony. Even if Rayo Zagal is correct, which the State disputes, Rayo Zagal has not
established how entering judgment of conviction as a Class A misdemeanor instead of a Class D felony has
prejudiced him.
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