MEMORANDUM DECISION
FILED
Pursuant to Ind. Appellate Rule 65(D), this Jan 29 2019, 9:28 am
Memorandum Decision shall not be regarded as
precedent or cited before any court except for the CLERK
Indiana Supreme Court
purpose of establishing the defense of res judicata, Court of Appeals
and Tax Court
collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Johnny W. Ulmer Curtis T. Hill, Jr.
Ulmer Law Office, Inc. Attorney General of Indiana
Bristol, Indiana
J.T. Whitehead
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Javier Gonzalez, January 29, 2019
Appellant-Petitioner, Court of Appeals Case No.
18A-PC-2284
v. Appeal from the Elkhart Superior
Court
State of Indiana, The Hon. Charles C. Wicks, Judge
Trial Court Cause No.
Appellee-Respondent.
20D05-1804-PC-20
Bradford, Judge.
Court of Appeals of Indiana | Memorandum Decision 18A-PC-2284 | January 29, 2019 Page 1 of 5
Case Summary
[1] In 2003, Javier Gonzalez, who was (and is) in the United States illegally, pled
guilty in Elkhart County to Class D felony cocaine possession, a conviction that
was eventually reduced to a misdemeanor. In 2018, Gonzalez petitioned for
post-conviction relief (“PCR”), claiming that he had received ineffective
assistance from his trial counsel because she failed to inquire about his
immigration status or advise him of the possibility of deportation if he pled
guilty. During a hearing on Gonzalez’s PCR petition, neither he nor his trial
counsel could recall if she had inquired about his immigration status. The post-
conviction court denied Gonzalez’s PCR petition. Gonzalez claims that the
post-conviction court erred in denying his PCR petition. Because we disagree,
we affirm.
Facts and Procedural History
[2] On August 25, 2003, Gonzalez pled guilty to Class D felony cocaine
possession. Gonzalez did not directly appeal his conviction or sentence.
Gonzalez managed to have his conviction reduced from a felony to a
misdemeanor in 2012 or 2013. On April 19, 2018, Gonzalez petitioned for
PCR, alleging that his trial counsel had been deficient in failing to warn him
that his conviction might result in his deportation and that he would not have
pled guilty had he known. An evidentiary hearing on Gonzalez’s PCR petition
was held on June 15, 2018. At the hearing, his trial counsel testified that she
did not recall if she had asked Gonzalez about his immigration status before he
Court of Appeals of Indiana | Memorandum Decision 18A-PC-2284 | January 29, 2019 Page 2 of 5
pled guilty. When asked, Gonzalez himself could not recall if his trial counsel
had asked him about his immigration status or whether he was a United States
citizen. On August 29, 2018, the post-conviction court denied Gonzalez’s PCR
petition.
Discussion and Decision
[3] Our standard for reviewing the denial of a PCR petition is well-settled:
In reviewing the judgment of a post-conviction court, appellate
courts consider only the evidence and reasonable inferences
supporting its judgment. The post-conviction court is the sole
judge of the evidence and the credibility of the witnesses. To
prevail on appeal from denial of post-conviction relief, the
petitioner must show that the evidence as a whole leads
unerringly and unmistakably to a conclusion opposite to that
reached by the post-conviction court. […] Only where the
evidence is without conflict and leads to but one conclusion, and
the post-conviction court has reached the opposite conclusion,
will its findings or conclusions be disturbed as being contrary to
law.
Hall v. State, 849 N.E.2d 466, 468–69 (Ind. 2006) (internal citations and
quotations omitted).
[4] Gonzalez claims that he received ineffective assistance of trial counsel. We
review claims of ineffective assistance of counsel based upon the principles
enunciated in Strickland v. Washington, 466 U.S. 668 (1984):
Under Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80
L. Ed. 2d 674 (1984), a claim of ineffective assistance of counsel
requires a showing that: (1) counsel’s performance was deficient
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by falling below an objective standard of reasonableness based on
prevailing professional norms; and (2) counsel’s performance
prejudiced the defendant so much that “there is a reasonable
probability that, but for counsel’s unprofessional errors, the result
of the proceeding would have been different.” Id. at 687, 694,
104 S. Ct. 2052; Lowery v. State, 640 N.E.2d 1031, 1041 (Ind.
1994). […] Failure to satisfy either prong will cause the claim to
fail. Vermillion v. State, 719 N.E.2d 1201, 1208 (Ind. 1999).
French v. State, 778 N.E.2d 816, 824 (Ind. 2002).
[5] Gonzalez claims that his trial counsel was ineffective for failing to inquire about
his immigration status and advise him before he pled guilty that his conviction
could potentially subject him to deportation. The factual assertions on which
this claim is based are not supported by the record. Even if the post-conviction
court had been required to believe evidence supporting Gonzalez’s claim
(which it was not), the record does not contain any such evidence. When
asked, his trial counsel replied that she did not recall if she asked Gonzalez
about his immigration status before he pled guilty, and Gonzalez himself could
not recall if his trial counsel asked him about his immigration status or whether
he was a United States citizen. As for any advisement about possible
deportation, there is no evidence one way or the other. Any finding favorable
to Gonzalez’s claim of ineffective assistance of trial counsel would be based on
nothing more than speculation. Because Gonzalez has failed to carry his
burden to show deficient performance by his trial counsel, we need not evaluate
his claim of prejudice.
[6] The judgment of the post-conviction court is affirmed.
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Bailey, J., and Brown, J., concur.
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