Riley, J.
This case is before us on remand from the United States Supreme Court. In Kaushal v. State, No. 49A04-1612-CR-2862, 2017 WL 3028623 (Ind. Ct. App. July 18, 2017), this court affirmed the trial court’s denial of Kaushal’s motion to withdraw his guilty plea which was based in part upon a claim that his guilty plea counsel had been ineffective. The Indiana Supreme Court denied his petition for transfer, and Kaushal subsequently filed a petition for writ of certiorari with the United States Supreme Court. On June 28, 2018, the Supreme Court granted the certiorari petition and remanded this case “for further consideration in light of Jae Lee v. United States, 582 U.S. ___ [, 137 S. Ct. 1958] (2017).” Kaushal v. Indiana, 138 S. Ct. 2567 (2018). Accordingly, we reconsider Kaushal’s appeal.
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The issue relevant to our review on remand is whether, in light of Jae Lee, Kaushal adequately established that he was prejudiced by his counsel’s deficient performance such that his guilty plea must be set aside.
We affirm.
In our original opinion, we did not address the issue of whether Kaushal’s counsel’s performance was deficient because we concluded that, regardless, Kaushal had not demonstrated that he had been prejudiced by his counsel’s performance. We began our analysis by setting out the general Strickland standard for assessing prejudice, namely that a defendant must establish that, but for his counsel’s error, the result of the proceeding would have been different. …
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After briefing was completed in this matter but before our decision was handed down, the United States Supreme Court decided Jae Lee, in which it clarified the standards for assessing prejudice in cases where a defendant relied upon his counsel’s deficient performance in deciding to forgo trial and to instead enter a guilty plea. Kaushal sought rehearing, arguing that Jae Lee afforded him relief. After considering Jae Lee, we denied Kaushal’s petition for rehearing. Kaushal’s subsequent petition for transfer to our supreme court also cited Jae Lee. Our supreme court also denied relief.
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In its decision granting that relief, the Supreme Court clarified that a defendant alleging that his counsel’s deficient performance led him to enter a guilty plea in lieu of going to trial must establish “a reasonable probability that, but for counsel’s errors, he would not have pleaded guilty and would have insisted on going to trial.” Id. at 1965 (quoting Hill v. Lockhart, 474 U.S. 52, 59 (1985)). Courts reviewing such claims do not focus on the defendant’s chances of success at some hypothetical trial. Rather, it must be determined whether the defendant made an adequate showing that, if properly advised, he
would have elected to go to trial. Id. The focus is on the defendant’s decision making, which may not be based solely upon the likelihood of conviction. In order to establish prejudice, a defendant may not rely merely on post hoc claims that he would not have pled guilty had he been better advised. Rather, he must substantiate his claim that he would not have pled guilty with contemporaneous evidence.
In addressing the case at hand, we begin by noting that Kaushal has lived in the United States for approximately ten years, owns several businesses, cares for his mother, and now insists that he would not have pled guilty had he known he would be deported. However, we cannot conclude that these circumstances alone establish a reasonable probability that, but for his counsel’s performance, he would have insisted on going to trial. The contemporaneous evidence in the record reflects that avoiding imprisonment, not deportation, was the determinative issue for Kaushal in resolving his criminal case and ultimately deciding to enter a guilty plea. … Kaushal testified at a hearing in this matter that he pled guilty because he was afraid of going to prison and that “It’s all about I’m scared to go to prison.”
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Kaushal was aware prior to entering his guilty plea that he faced a “hard road” regarding his immigration status if he pled, but the record simply does not reflect that deportation was an overriding concern for him in deciding whether to plead guilty or to go to trial. Unlike Jae Lee, whose chances of achieving his ultimate goal of avoiding deportation were increased by going to trial, Kaushal had no increased chance of achieving his ultimate goal of avoiding prison by going to trial. Rather, the opposite is true because his plea agreement guaranteed that he would not be imprisoned.
The contemporaneous evidence in the record does not establish a reasonable probability that, but for his counsel’s errors, Kaushal would not have pled guilty and would have insisted on going to trial. Lee, 137 S. Ct. at 1965. We conclude that Kaushal did not establish, even in light of Jae Lee, that he was prejudiced by his counsel’s performance. As such, the trial court did not err in declining to set aside his guilty plea.
Affirmed.
Najam, J. and Bradford, J. concur