Goff, J.
On March 1, 2016, nineteen-year-old Angelo Bobadilla entered Hamilton Superior Court 4 intending to plead guilty to two misdemeanors. Eight months earlier, a Walmart loss prevention employee detained Bobadilla on suspicion of shoplifting after seeing him conceal a pack of underwear and a pack of t-shirts, then walk past all points of sale without paying. …
After transporting Bobadilla to the Hamilton County Jail, Officer Hopkins completed a Book-In Slip listing Bobadilla’s birthplace as Cuernavaca, Mexico.
The next day the State charged Bobadilla with four counts: Theft and Possession of a Controlled Substance, both Class A Misdemeanors; Possession of Marijuana, a Class B Misdemeanor; and Possession of Paraphernalia, a Class C Misdemeanor. The State’s charging information contained a partially redacted social security number. During discovery, the State released these documents (the charging information, the probable cause affidavit, and Book-In Slip) to Bobadilla’s counsel.
Bobadilla had as trial counsel a criminal defense attorney with over thirty years’ experience. Trial counsel negotiated a plea agreement whereby Bobadilla agreed to plead guilty to two counts in exchange for dismissal of the remaining counts, but he would receive the maximum sentence allowed—albeit a completely suspended sentence.
When Bobadilla arrived at the courthouse on March 1st for his guilty plea hearing, his attorney presented him with the Hamilton County Superior Court’s standard advisement of rights form, titled “Misdemeanors and Level 6 Felony Advisement Form.” Prior to handing the form to Bobadilla to read and then sign, counsel identified certain advisements he believed did not pertain to Bobadilla by marking them “N/A” for “not applicable.” Most notably—without first talking with Bobadilla—counsel marked “N/A” next to the following advisement:
If you are not a U.S. citizen, a criminal conviction may have immigration consequences, including deportation. You should discuss this possibility with your attorney because if you do plead guilty, it will result in a criminal conviction.
… What trial counsel did not know was that Bobadilla was not a United States citizen, but a “Dreamer” under the Department of Homeland Security’s Deferred Action for Childhood Arrivals (DACA) program. Bobadilla read and signed the form, pleaded guilty, and received the promised suspended sentence—one year for A-Misdemeanor Theft and 180 days for B-Misdemeanor Marijuana Possession. …
Bobadilla, however, soon learned his routine guilty plea posed a serious problem for him. Following a probation violation, Bobadilla consulted different legal counsel and learned his A-Misdemeanor Theft conviction and its concomitant one-year sentence amounted to an “aggravated felony” under federal immigration law, making him deportable. Bobadilla immediately filed a verified petition for postconviction relief, alleging he received ineffective assistance of trial counsel under Strickland v. Washington, 466 U.S. 668 (1984), because he was not adequately advised of the consequences of his plea. …
Just one year after initially pleading guilty, on March 7, 2017, Bobadilla returned to the same court for a hearing on his petition for post-conviction relief. Trial counsel testified first and confirmed that he wrote “N/A” next to the advisement on citizenship status without ever asking Bobadilla about his citizenship or immigration status. He said he simply assumed Bobadilla was a United States citizen and did not understand that “Bobadilla” was a Hispanic name. Counsel testified he would not have marked “N/A” had he known Bobadilla was not a U.S. citizen.
Bobadilla testified next and corroborated that his trial attorney never asked him about his citizenship status. Bobadilla said he understood “N/A” to mean “not applicable.” He testified he read those paragraphs marked “N/A”, but he relied on counsel’s advice that those paragraphs did not apply to him and he did not ask about them. Bobadilla testified that if the citizenship paragraph had not been marked “N/A”, he would have reacted differently and “take[n] a different approach to that.”
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On April 17, 2017, the court issued an order denying Bobadilla postconviction relief. The court acknowledged that United States Supreme Court precedent requires an attorney to inform the noncitizen criminal defendant whether a guilty plea carries a risk of deportation. But the court phrased the issue before it narrowly as “whether an attorney must first affirmatively ascertain whether his client is a U.S. citizen in the absence of any evidence that he is not, before the attorney would have to advise his client of the risk of deportation.”
In its factual findings the postconviction court repeatedly noted that Bobadilla spoke with no foreign accent and that he could read and understand English. It further found “that the charging information and the probable cause affidavit contain no information that would suggest that [Bobadilla] was not a U.S. citizen.” With these and other facts, the court concluded that trial counsel did not render deficient performance because he “did not know, and had no reason to suspect, that [Bobadilla] was not a native-born citizen of the United States.” Because the post-conviction court found no deficient performance, it did not consider Strickland’s prejudice prong.
Meanwhile, Bobadilla’s situation grew more precarious. On May 3, 2017, he was transferred from the Hamilton County Jail into ICE’s custody. That same day, ICE processed him and issued a Notice of Intent to Issue a Final Administrative Removal Order. With this turn of events, at 12 p.m. on Friday, May 12, 2017, Bobadilla filed with the post-conviction court an emergency motion to correct error and a request for an expedited hearing.
… Without a hearing, and without explanation, the post-conviction court denied Bobadilla’s motion the following Monday, May 15, 2017.
Bobadilla was deported, and the record is silent on his current whereabouts.
Bobadilla’s appellate counsel nevertheless filed an appeal on his behalf. A divided Court of Appeals affirmed the post-conviction court’s decision, albeit on different legal grounds. Bobadilla v. State, 93 N.E.3d 783 (Ind. Ct. App. 2018). …
The majority ultimately held that Bobadilla failed to show that he was prejudiced by trial counsel’s failure to advise him that his guilty plea carried the risk of deportation. Id. at 786. Chief Judge Vaidik dissented, believing Bobadilla received deficient performance and suffered prejudice because, had he been properly advised, he would have rejected the plea agreement and gone to trial. Id. at 788–90.
Bobadilla now petitions for transfer, which we grant, thereby vacating the Court of Appeals opinion. Ind. Appellate Rule 58(A).
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Bobadilla’s ineffective-assistance-of-counsel arguments, arising from his situation of having unwittingly made himself a deportable felon by reason of a misdemeanor guilty plea, take us into an area of law that has seen recent changes. …
Like a trial, the guilty-plea process presents dangers for attorneys to commit errors. One potential pitfall is incorrectly advising clients as to consequences of pleading guilty, particularly immigration consequences. See Padilla, 559 U.S. at 373–74 (likening the severity of deportation to banishment or exile).
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The Padilla Court first determined that, even though immigration consequences are technically collateral and not direct consequences of a conviction, “advice regarding deportation” falls within “the ambit of the Sixth Amendment right to counsel.” Id. at 366. …
During its deficient-performance evaluation, the Court opined: “It is quintessentially the duty of counsel to provide her client with available advice about an issue like deportation, and the failure to do so ‘clearly satisfies the first prong of the Strickland analysis.’” Id. at 371 (citation omitted). …
Speaking in absolute terms, the Supreme Court said: “[C]ounsel must inform her client whether his plea carries a risk of deportation.” Id. at 374 (emphasis added). …
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Remarkably, our Court of Appeals presaged Padilla sixteen years earlier. Considering a factually similar ineffective assistance claim—i.e., noncitizen criminal defendant collaterally attacking his guilty plea by claiming his attorney failed to advise him of deportation consequences— the Court of Appeals said an attorney’s “’guiding hand’ would be a poor one indeed if it did not point out to the accused the deportation consequences of a guilty plea.” Williams v. State, 641 N.E.2d 44, 49 (Ind. Ct. App. 1994). …
… We are now bound by Padilla—attorneys must advise their clients of immigration consequences from a guilty plea; otherwise, they render constitutionally deficient performance.
But we observe that Padilla proceeds on the supposition that counsel knows his client is not a citizen. See Padilla, 559 U.S. at 370 … And, so, under Padilla, if counsel knows a client is a non-citizen, then “counsel must inform [the] client whether [the] plea carries a risk of deportation.” …
Ultimately, though, Bobadilla’s counsel did not know his client’s citizenship status (but simply assumed it); thus, this case is not completely controlled by Padilla. So, we are left with the following question: When counsel is unaware of a client’s citizenship status, under what circumstances will counsel’s failure to inform a client of deportation consequences be deficient performance? …
Here Bobadilla’s attorney did not simply fail to read the form to his client or wait patiently for Bobadilla to read an unmarked form, it is worse. He made the affirmative decision that the warning was “not applicable” to Bobadilla—without so much as asking him, even when the record contained clues that young Bobadilla might not be a U.S. citizen. …
… We hold that Bobadilla’s counsel rendered constitutionally deficient performance under Strickland and Padilla by independently marking “N/A”, without first inquiring into his client’s citizenship status. The post-conviction court clearly erred in finding otherwise.
Although we conclude Bobadilla’s trial counsel provided deficient performance, the analysis does not end there. We must address Strickland’s second prong—did counsel’s mistake prejudice Bobadilla? …
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At his guilty-plea hearing, Angelo Bobadilla was a teenager facing his “first criminal charge.” Specifically, he faced four low-level misdemeanor charges that would likely not result in significant jail time, considering the many sentencing options available to trial courts. Bobadilla was gainfully employed. He had lived in the United States since he was a young boy—at least ten years. During those ten years he requested and received the DACA benefit from the United States government.
With just these few facts, we conclude that Bobadilla’s special circumstances revealed he had significant ties to the United States, not Mexico. Therefore, there is a reasonable probability that he would have rejected a guilty plea that could subject him to deportation and insisted on going to trial instead.
… First, his attorney rendered constitutionally deficient performance as a matter of law by independently marking “N/A” next to the citizenship advisement on the standard advisement of rights form before inquiring into Bobadilla’s citizenship status. Second, counsel’s deficient performance prejudiced Bobadilla because the record reveals special circumstances demonstrating a reasonable probability that had Bobadilla been fully informed of his plea’s consequences, he would have rejected it and insisted on trial.
For these reasons, we reverse the post-conviction court and remand for further proceedings consistent with this opinion.
Rush, C.J., and David, J., concur.
Massa, J., dissents with separate opinion in which Slaughter, J., joins.
Massa, J., dissenting.
The Court’s analysis of our Segura precedent in the light of subsequent decisions of the United States Supreme Court is correct. But I respectfully part company in applying this updated standard to the facts of this sad case. Reversing a court on post-conviction requires that the facts and law point unerringly to a different outcome, Campbell v. State, 19 N.E.3d 271, 274 (Ind. 2014), and they don’t on this record. There’s enough factual and legal uncertainty that our deference must mean something and compel that the post-conviction court be affirmed.
The appellant presents a seductively sympathetic case at a time when the issue of illegal immigration convulses the nation—a DACA Dreamer in the country for most of his life who ends up deported for boosting a bag of boxers or briefs. As the Court notes, had Bobadilla pled to 364 days suspended (instead of 365!) he’d likely still be in Hamilton County with his family. It is thus an act of compassion that our Court performs today, giving Bobadilla a chance, however remote, of getting back in the country. But the near impossibility of that occurring makes this holding all the more questionable. His own lawyers call today’s relief “meaningless.”1 We alter the rules with little chance that anyone will benefit. And that should be avoided by a court of legal doctrine.
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