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Majority justices grant PCR to ‘Dreamer;’ dissent calls ruling ‘bridge too far’

March 5, 2019

A Mexican immigrant who was living in the United States under the Deferred Action on Childhood Arrivals policy and who was deported after pleading guilty to misdemeanor charges has won relief from the Indiana Supreme Court, which overturned the denial of post-conviction relief in a divided opinion Tuesday.

The justices ruled in a 3-2 split in Angelo Bobadilla v. State of Indiana, 19S-PC-128, that defendant Angelo Bobadilla was prejudiced when his trial counsel failed to warn him of the risk of deportation that would accompany his guilty plea. However, the justices also noted that Bobadilla’s whereabouts are unknown, and a dissenting justice said Bobadilla’s own lawyers have called the relief granted “meaningless” for that reason.

The Bobadilla decision, which also granted transfer, comes after then-19-year-old Bobadilla pleaded guilty in March 2016 to misdemeanor theft and possession of marijuana. The teen — who was born in Cuernavaca, Mexico, in 1996 and has lived in the U.S. since he was a boy — was represented by a public defender, who did not know the teen was a “Dreamer” living in the U.S. under the DACA program.  Thus, when the attorney presented Bobadilla with an advisement of rights form, he marked as “not applicable” an advisement stating, “If you are not a U.S. citizen, a criminal conviction may have immigration consequences, including deportation … .”

Then, after pleading guilty and subsequently committing a probation violation, Bobadilla hired a new attorney and learned his Class A misdemeanor theft conviction was an “aggravated felony” that made him deportable under federal law. He responded by filing a PCR petition, alleging he was prejudiced by his trial counsel’s ineffective performance — specifically, counsel’s failure to inform him of the deportation risk of pleading guilty.

At a PCR hearing, the trial attorney admitted he did not ask about Bobadilla’s immigration status, but instead assumed he was a U.S. citizen.

The Hamilton Superior Court ultimately denied the PCR petition without reaching the prejudice prong of the Strickland v. Washington analysis. Instead, the trial court found Bobadilla’s trial counsel “had no reason to suspect that [Bobadilla] was not a native-born citizen of the United States.”

Bobadilla was deported after the trial court ruling, but his counsel nevertheless appealed. A divided panel of the Indiana Court of Appeals upheld the PCR denial, finding no prejudice under Strickland, though Chief Judge Nancy Vaidik dissented.

In a similarly divided opinion, Justice Christopher Goff wrote for the majority justices — including Chief Justice Loretta Rush and Justice Steven David — that the U.S. Supreme Court decision in Padilla v. Kentucky, 559 U.S. 356, 373 (2010), impacted the state Supreme Court’s ruling. In Padilla, the federal justices found that “‘advice regarding deportation’ falls within ‘the ambit of the Sixth Amendment right to counsel.’”

But Goff also noted that the attorney in Padilla knew his client was not a U.S. citizen, whereas Bobadilla’s counsel did not. Even so, the majority justices held that “unilaterally marking ‘N/A’ next to a standard advisement on immigration consequences amounts to deficient performance.”

The majority justices noted Bobadilla’s counsel had been served during discovery with a document that listed the defendant’s birthplace as Mexico. Further, the justices said the trial court’s “simplistic observations” about Bobadilla — his lack of an accent and ability to read and speak English, among others — “lose probative value in a citizenship inquiry” in a diverse country such as the United States.

“The best practice is never to assume a client’s citizenship: always ask,” Goff wrote.

The majority, relying on Lee v. United States, 137 S.Ct. 1958 (2017), then found Bobadilla was prejudiced by his trial counsel’s performance. In reaching the prejudice holding, the justices disapproved of their prior ruling in Segura v. State,749 N.E.2d 496, 500-01 (Ind. 2001), as it departs from Lee.

As part of its prejudice analysis, the majority noted Bobadilla told the trial court he “would take a different approach” had he known of the deportation risk.

“Saying he would have reacted differently and taken a different approach to the advisement form does not equate to him saying he would have rejected the plea agreement altogether and insisted on a trial,” Goff wrote. “Nevertheless, there is enough evidence in the record for us to draw conclusions about Bobadilla’s special circumstances, particularly how they would have led him to reject a guilty plea resulting in deportation and insist on going to trial.”

“…Given the wide array of sentencing alternatives available to this nineteen-year old with no criminal history,” Goff continued, “it appears reasonable that he would’ve taken a chance at trial rather than enter a plea agreement that ensures deportation.”

In a dissenting opinion, however, Justice Mark Massa, joined by Justice Geoffrey Slaughter, said the “seductively sympathetic” record of Bobadilla’s case does not “point unerringly to a different outcome.”

“… (I)n order to find deficient performance, we today all but adopt a new standard for Indiana lawyers — that they ask their clients if they are citizens, whatever their age, surname, or fluency,” Massa wrote, adding that judges, not lawyers, should be tasked with “a requirement to inquire with or to advise unapparent non-citizens”. “That is a bridge too far, and we should not impose this duty to determine the citizenship status of every client on defense lawyers in every case.”

“… As for prejudice (if deficiency were established), the law as declared by the United States Supreme Court now requires a petitioner to prove that, had be been properly advised of deportation consequences, he would have gone to trial rather than plead guilty to otherwise favorable terms,” Massa continued. “…Petitioner here said no such thing, but we decide for him anyhow.”

“What this means for future cases on post-conviction relief remains to be seen,” Massa concluded.

Finally, in a footnote, Massa opined that “an agreed sentencing modification, or forbearance by immigration officials, would have mooted the issue.”

“It is fair to ask the authorities involved: did it have to come to this?” he wrote.

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