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COA says immigrant's PCR petition was 12 years too late

December 21, 2018

An immigrant woman who waited 12 years to seek relief from a forgery conviction has lost the appeal of the denial of her post-conviction relief petition, with the Indiana Court of Appeals finding the woman did not provide a credible explanation for the delay.

In January 2005, a confidential informant working with the Indiana State Police sold Romana Balderas a fake Social Security card and a woman’s resident alien ID card for $200. At the time, Balderas was not yet a lawful, permanent resident in the United States.

Balderas ultimately pleaded guilty to Class C felony conspiracy to commit forgery. The Clinton Circuit Court sentenced her to two years of probation, and pertinent evidence such as recordings, cassette tapes, and photographs were destroyed by the state.

After becoming a permanent resident in March 2015, Balderas filed a petition for post-conviction relief in April 2017, arguing that her trial counsel was ineffective for not advising her that she could be deported if she pleaded guilty. Balderas said she would not have pleaded guilty if she was informed of that, and she is at risk of deportation if Immigration and Customs Enforcement brings an action against her.

But the trial court agreed with that state’s laches argument, finding it would be prejudiced because Balderas waited nearly 12 years before filing her petition. It further denied her ineffective assistance of counsel claims.

On appeal, Balderas argued the post-conviction court erroneously denied her petition, claiming that laches does not bar her case from proceeding. She also argued that the Padilla v. Kentucky, 559 U.S. 356 (2010), standard for ineffective assistance of counsel should be retroactively applied to her case.

But the appellate court found that the state could sufficiently prove that Balderas was unreasonably delayed in filing her petition, warranting the application of laches.

“Balderas has not offered a credible explanation for the twelve-year delay,” Judge John Baker wrote for the court in Romana Balderas v. State of Indiana, 17A-PC-3014.

“Though she claims that, at the time of her criminal proceedings, she was not aware of her attorney’s potential duty to inform her about deportation consequences, she nonetheless continuously faced the risk of deportation and had more than a decade to petition for relief,” Baker wrote. “The post-conviction court did not err by finding that the delay was unreasonable.”

The appellate panel also found that the state proved by a preponderance of the evidence that it was prejudiced by the delay, pointing to significantly less evidence available, faded witness memories and other pressing criminal matters as higher priority.

“Thus, we find that the unreasonable delay prejudiced the State, that the post-conviction court’s application of laches was not erroneous, and that Balderas is not entitled to relief,” Baker concluded.

In a footnote, the court noted it would not address Balderas’ Padilla argument because it could reach a decision on the laches theory alone, but noted that “deciding whether Padilla retroactively applies to Indiana state criminal cases is unnecessary” because of the ruling in Segura v. State, 749 N.E.2d 496 (Ind. 2001).

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