ATTORNEYS FOR APPELLANT
Susan K. Carpenter
Public Defender of Indiana
Stephen T. Owens
Deputy Public Defender
Indianapolis, Indiana
ATTORNEYS FOR APPELLEE
Jeffrey A. Modisett
Attorney General of Indiana
Teresa Dashiell Giller
Deputy Attorney General
Indianapolis, Indiana
__________________________________________________________________
IN THE
SUPREME COURT OF INDIANA
__________________________________________________________________
JOSE DANIEL SEGURA, )
)
Appellant (Petitioner Below), )
) Indiana Supreme Court
v. ) Cause No. 10S01-0009-PC-515
)
STATE OF INDIANA, ) Indiana Court of Appeals
) Cause No. 10A01-9906-PC-218
Appellee (Respondent Below). )
__________________________________________________________________
APPEAL FROM THE CLARK SUPERIOR COURT
The Honorable Cecile Blau, Judge
Cause No. 10D02-9203-CF-030
__________________________________________________________________
ON PETITION TO TRANSFER
__________________________________________________________________
June 26, 2001
BOEHM, Justice.
Jose Daniel Segura pleaded guilty to dealing in cocaine. He appeals
the denial of his successive petition for postconviction relief, raising
one issue: whether his trial counsel was ineffective for failing to inform
him of the possibility of deportation if he pleaded guilty. In State v.
Van Cleave, 674 N.E.2d 1293, 1306 (Ind. 1996), we held that in order to
upset a conviction based on a claim of ineffective assistance of counsel, a
petitioner who pleads guilty must show a reasonable probability that he
would not have been convicted if he had gone to trial. We hold today that
the United States Supreme Court’s recent decision in Williams v. Taylor,
529 U.S. 362 (2000), does not affect the Van Cleave standard for evaluating
ineffective assistance of counsel claims as to errors or omissions of
counsel that overlook or impair a defense. As to those claims, we remain
of the view that in order to establish that the guilty plea would not have
been entered if counsel had performed adequately, the petitioner must show
that a defense was overlooked or impaired and that the defense would likely
have changed the outcome of the proceeding. Similarly, if counsel’s
shortcomings are claimed to have resulted in a lost opportunity to mitigate
the penalty, in order to obtain a new sentencing hearing, the petitioner
must show a reasonable probability that the oversight would have affected
the sentence.
This case presents a claim that counsel’s incorrect advice as to the
penal consequences led the petitioner to plead guilty when he otherwise
would not have done so. However, this is not a claim that, through
erroneous advice, a sentence less than the potential maximum was promised
or predicted to induce a plea. Rather, the claim is that the maximum was
misdescribed by trial counsel. This error in advice would have weighed
equally in the calculation of the consequences of conviction after trial
and conviction after a plea. As to such a claim, we conclude that a
finding of prejudice requires evidence demonstrating a reasonable
probability that the erroneous or omitted advice materially affected the
decision to plead guilty.
Factual and Procedural Background
In 1995, Segura pleaded guilty to dealing in cocaine.[1] He was
sentenced to a term of ten years imprisonment. In 1996, Segura filed an
unsuccessful petition for postconviction relief. In September 1998, the
Court of Appeals, pursuant to Post-Conviction Rule 1, section 12, granted
Segura permission to file a successive petition for postconviction relief.
Segura’s second petition contended that his trial counsel was ineffective
because he failed to inform Segura that he could be deported as a result of
his guilty plea. At the hearing, Segura’s trial counsel testified that the
two had never discussed deportation as a possible consequence of the guilty
plea.
The postconviction court denied the second petition and the Court of
Appeals affirmed in a not-for-publication opinion. Segura v. State, No.
10A01-9906-PC-218 (Ind. Ct. App. April 4, 2000). In so doing, the Court of
Appeals relied on the standard set forth by this Court in State v. Van
Cleave, 674 N.E.2d 1293 (Ind. 1996), for evaluating a claim of ineffective
assistance of counsel by a petitioner who had pleaded guilty. Two weeks
later, on April 18, 2000, the United States Supreme Court issued Williams
v. Taylor, 529 U.S. 362. On May 1, Segura filed a petition for rehearing
in light of the Williams decision. The Court of Appeals granted the
petition and again affirmed the denial of relief. Segura v. State, 729
N.E.2d 594, 597 (Ind. Ct. App. 2000). The Court of Appeals acknowledged
that this Court’s opinion in Van Cleave had relied in part on an
interpretation of Lockhart v. Fretwell, 506 U.S. 364 (1993), that was
inconsistent with Williams. Segura, 729 N.E.2d at 596-97. The Court of
Appeals noted the possible effect of Williams, but held that any change in
the doctrine announced in Van Cleave must come from this Court. Id. On
September 1, 2000, this Court granted transfer.
I. Deportation as a Penal Consequence
Because Segura alleges prejudice from advice as to deportation, we
must decide as a threshold issue whether a failure to counsel about the
possibility of deportation constitutes deficient performance as required
under Hill. There is a split of authority on this point. The majority of
federal circuit courts hold that, as a matter of law, failure to advise of
the prospect of deportation as a result of conviction is not deficient
performance by counsel in connection with a guilty plea. United States v.
George, 869 F.2d 333, 337 (7th Cir. 1989); United States v. Yearwood, 863
F.2d 6, 7-8 (4th Cir. 1988); United States v. Campbell, 778 F.2d 764, 768-
69 (11th Cir. 1985). State courts are also split on the issue. Compare,
e.g., Alanis v. Strot, 583 N.W.2d 573, 579 (Minn. 1998), with State v.
Figueroa, 639 A.2d 495, 499-500 (R.I. 1994).
The question has never been addressed by this Court, but the Indiana
Court of Appeals has held that “the consequence of deportation, whether
labeled collateral or not, is of sufficient seriousness that it constitutes
ineffective assistance for an attorney to fail to advise a noncitizen
defendant of the deportation consequences of a guilty plea.” Williams v.
State, 641 N.E.2d 44, 49 (Ind. Ct. App. 1994). We agree with the Court of
Appeals that the failure to advise of the consequence of deportation can,
under some circumstances, constitute deficient performance. Otherwise
stated, we cannot say that this failure as a matter of law never
constitutes deficient performance. Whether it is deficient in a given case
is fact sensitive and turns on a number of factors. These presumably
include the knowledge of the lawyer of the client’s status as an alien, the
client’s familiarity with the consequences of conviction, the severity of
criminal penal consequences, and the likely subsequent effects of
deportation. Other factors undoubtedly will be relevant in given
circumstances. The postconviction court found no deficient performance on
the part of Segura’s counsel. It is not clear, however, whether this was a
holding that, as a matter of law, the failure to advise Segura of the risk
of deportation was merely a collateral matter, or whether this was a
finding of adequate performance on the facts of this case.[2] Because we
conclude that Segura failed to establish the prejudice prong, we need not
resolve this issue. Strickland v. Washington, 466 U.S. 668, 697 (1984).
II. Prejudice in a Guilty Plea Setting
A. Precedent to Date
To prevail on a claim of ineffective assistance of counsel, a
petitioner must show two things: (1) the lawyer’s performance fell below
an “objective standard of reasonableness,” Strickland v. Washington, 466
U.S. 668, 687-88 (1984); and (2) “there is a reasonable probability that,
but for counsel’s unprofessional errors, the result of the proceeding would
have been different.” Id. at 694. Effectiveness of counsel is a mixed
question of law and fact. Id. at 698. The specific problem presented today
is the relationship of Williams v. Taylor, 529 U.S. 362 (2000), to our
decision in State v. Van Cleave, 674 N.E.2d 1293 (Ind. 1996), as it relates
to the “prejudice” prong of the analysis. Van Cleave held that to set
aside a conviction, a petitioner who has pleaded guilty must establish that
there is a reasonable probability that he would not have been convicted had
he gone to trial. 674 N.E.2d at 1306. Until Van Cleave, most Indiana
courts had cited the passage from Hill v. Lockhart, 474 U.S. 52, 59 (1985),
described below, to the effect that it was sufficient to set aside a
conviction if the postconviction court concluded that there was a
reasonable probability the petitioner would not have pleaded guilty and
would have gone to trial. Most, if not all, of these statements were in
the course of denying relief for failure to meet even that standard, and do
not address how this showing can be made. Nonetheless, this mantra was
repeated a number of times without challenge. See, e.g., Burse v. State,
515 N.E.2d 1383, 1385-86 (Ind. 1987).
Van Cleave, 674 N.E.2d at 1297-98, rejected the Burse formulation, and
in doing so relied in part on Lockhart v. Fretwell, 506 U.S. 364, 369
(1993). In Fretwell, the United States Supreme Court elaborated on the
prejudice prong of Strickland: “[A]n analysis focusing solely on mere
outcome determination, without attention to whether the result of the
proceeding was fundamentally unfair or unreliable, is defective.”
Fretwell, 506 U.S. at 369. This Court took the view that Fretwell
amplified Strickland’s prejudice prong by requiring the petitioner to show
that the result of a proceeding was “fundamentally unfair or unreliable,”
in addition to showing that the outcome would have been different but for
counsel’s mistakes. Williams, however, made clear that Fretwell did not
alter the preexisting Strickland showing. In Williams, the United States
Supreme Court held that Fretwell did not require a showing that the
conviction or sentence was “unfair or unreliable” to establish the
prejudice prong of a claim of ineffective assistance of counsel in all
cases. 529 U.S. at 391-93. Rather, Fretwell applies in the rare instance
where “the likelihood of a different outcome attributable to an incorrect
interpretation of the law should be regarded as a potential ‘windfall’ to
the defendant rather than the legitimate ‘prejudice’ contemplated by . . .
Strickland.” Id. at 392. Williams made clear that the prejudice is to be
measured by the oft-quoted “reasonable probability” of a different “result”
set forth in Strickland. The issue is therefore whether the conclusion
reached in Van Cleave was correct without the support we found in Fretwell
for that result.
B. Prejudice from Counsel’s Shortcomings Affecting a Defense or
Sentencing
Segura and the Court of Appeals correctly noted that Van Cleave relied
in part on Fretwell in elaborating the Strickland standard in the context
of a guilty plea. However, Van Cleave relied not only on Fretwell, but
also on Strickland and Hill. 674 N.E.2d at 1296-97. Although Fretwell
bolstered our confidence in the conclusion reached in Van Cleave, we
conclude that the Van Cleave interpretation of the prejudice prong remains
valid under Strickland and Hill, and we reaffirm that holding as to claims
of counsel’s errors that, if corrected, would either raise a defense or
affect the penalty.
Strickland dealt with the results of a trial. One year later, in
Hill, 474 U.S. at 57-60, the United States Supreme Court addressed the
application of Strickland in a guilty plea setting. The petitioner’s claim
in Hill was that he had been incorrectly advised as to his eligibility for
parole if he pleaded guilty. Id. at 60. In the frequently quoted passage
on which Segura relies, Hill stated that, “in order to satisfy the
‘prejudice’ requirement, the defendant must show that there is 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 59. However,
later in that same opinion, the United States Supreme Court observed that
in the case of many commonly alleged errors of counsel, “the resolution of
the ‘prejudice’ inquiry will depend largely on whether the affirmative
defense likely would have succeeded at trial.” Id. Hill further observed
that predicting the outcome of a possible trial is to be done on objective
evidence, without regard to the “idiosyncrasies of the potential
decisionmaker.” Id.. at 60 (quoting Strickland, 466 U.S. at 695). The
Court also quoted with approval a passage from Evans v. Meyer, 742 F.2d
371, 375 (7th Cir. 1984), which rejected a claim because it was
“inconceivable” that the petitioner “would have gone to trial . . . , or
that if he had done so he . . . would have been acquitted.”[3] 474 U.S. at
59. These comments were in the context of a discussion of errors that
affect a defense, i.e., those that overlook a defense, fail to develop
available evidence for a defense, or impair a defense by inadequate legal
analysis.
Hill reasoned that prejudice from an error or omission of counsel that
has the effect of overlooking or impairing a defense is to be evaluated by
measuring the likelihood of success of that defense. In those cases,
prejudice will “closely resemble” the prejudice inquiry for an error at
trial. Id. This analysis assumes that the uninvestigated evidence or the
overlooked legal point will be competently evaluated, and the decision to
go to trial or plead guilty will turn on the likelihood of success. If so,
the prejudice in the context of a guilty plea is equivalent to an
evaluation of the merits of the defense. As we observed in Van Cleave, 674
N.E.2d at 1299, that is the path followed by the Seventh Circuit[4] and the
Connecticut Supreme Court[5] in reaching results similar to Van Cleave
based solely on Strickland and Hill. Similarly, the Tenth Circuit held it
necessary to “determine whether it is likely that a jury would have
acquitted” in evaluating prejudice from failure to advise that a “depraved
mind” was required to be established to prove the crime. Miller v.
Champion, 161 F.3d 1249, 1256-57 (10th Cir. 1998). We also observe that
many cases stating the general proposition that the test of prejudice is
whether the petitioner would not have pleaded guilty and would have gone to
trial, in fact addressed allegations that, if proved, would have altered
the calculus of probability of conviction.[6] As such, they reach the same
result as Van Cleave by proceeding to measure the effect on a decision to
plead by evaluating the probability of success of the omitted defense or
evidence.
In Van Cleave, we were less certain that this reasoning applied to all
claims of ineffective assistance. “[I]n our view, Hill’s reference to the
outcome of a possible trial was not put so strongly that we can confidently
extract from that case the ‘reasonable probability’ we hold is required
under Fretwell.” Van Cleave, 674 N.E.2d at 1299. Now that Williams has
made clear that Fretwell did not alter Strickland, we must resolve the
point we left open in Van Cleave, namely, whether Hill alone leads to the
same result we reached in Van Cleave. In Van Cleave, the postconviction
court granted relief and ordered a new trial. 674 N.E.2d at 1295. The
State appealed the setting aside of the guilty plea, but not the ruling
that there was ineffective assistance at the penalty phase. Id. at 1294.
As a result, the only contested shortcomings of counsel—specifically, the
failure to raise an intoxication defense—bore on the likelihood of
conviction or acquittal.
For the reasons given above, we conclude that Hill standing alone
requires a showing of a reasonable probability of success at trial if the
alleged error is one that would have affected a defense. This result seems
preferable for several reasons. In Van Cleave, we identified sound reasons
for requiring that a petitioner who pleads guilty show a reasonable
probability of acquittal in order to prevail in a postconviction attack on
the conviction based on a claim of ineffective assistance of counsel. Id.
at 1300-02. As Hill emphasized, the State has an interest in the finality
of guilty pleas. 474 U.S. at 58. This is in part grounded in the cost of
a new trial, and the demands on judicial resources that are imposed by
revisiting the guilty plea, see United States v. Timmreck, 441 U.S. 780,
784-85 (1979), but also in concerns about the toll a retrial exacts from
victims and witnesses who are required to revisit the crime years later.
A new trial is of course necessary if an unreliable plea has been
accepted. But its costs should not be imposed needlessly, and that would
be the result if the petitioner cannot show a reasonable probability that
the ultimate result—conviction—would not have occurred despite counsel’s
error as to a defense. A requirement of a showing of a reasonable
probability of success on the merits is consistent with the literal
language of Strickland. It is also not unfair. It permits raising any
defense that has a reasonable probability of success, but prevents a
petitioner who had no valid defense from causing and benefiting from the
many difficulties of a retrial years after the events, including missing or
deceased witnesses, stale evidence, and fading memories. To the extent
that the decision to enter a guilty plea is largely a petitioner’s
decision, it is different from the tactical or investigatory steps that are
the bases of most claims of ineffective assistance of counsel. As this
Court observed in Van Cleave, 674 N.E.2d at 1301:
Demonstrating prejudice seems particularly appropriate in the
context of a claim of ineffective assistance by a defendant who has
pleaded guilty. The guilty plea, virtually uniquely among all
procedural steps, involves the judgment of the defendant as well as
his attorney. . . . [T]he decision to plead is often strongly if not
overwhelmingly influenced by the attorney’s advice. But it is equally
true that the defendant appreciates the significance of the plea and
is uniquely able to evaluate its factual accuracy. The requirement
that the court satisfy itself as to the factual basis for the plea is
designed to ensure that only guilty defendants plead guilty, and also
that the defendant’s decision to waive a jury trial is an informed and
reflective one. Many decisions at trial—calling a given witness,
asserting a defense, or the extent of cross-examination—are difficult
if not impossible for the defendant to make, and reliance on counsel
is unavoidable. In contrast, the decision whether to plead guilty is
ultimately the prerogative of the defendant, and the defendant alone.
More than conjecture or hope for a lucky break at trial should be
required to upset that action years later. The Supreme Court has
often reminded us that “in judging prejudice and the likelihood of a
different outcome, [a] defendant has no entitlement to the luck of a
lawless decisionmaker.” Nix v. Whiteside, 475 U.S. 157, 175 (1986)
(citing Strickland) (internal quotations omitted).
Similarly, if the error or omission has the result of overlooking
evidence or circumstances that affect the sentence imposed, prejudice is
evaluated by the reasonable probability that it had that effect.
C. Prejudice from Counsel’s Legal Advice as to Penal Consequences
An attorney’s incorrect advice as to penal consequences generally
falls into two basic groups: (1) claims of promised leniency and (2)
claims of incorrect advice as to the law. Those in the second category do
not claim a promised benefit from a plea as compared to the result of a
trial. Rather, they claim the range of penal consequences was undervalued.
These cases, like Hill, present situations where the advice is equally
erroneous whether the defendant pleads or goes to trial. Segura’s claim is
of that sort.
1. Claims of Promised Leniency
Some petitions allege in substance a promise of leniency in
sentencing. In other words, the claim is that a different result was
predicted or guaranteed to result from a plea. In some courts, this claim
has been supported by independent evidence substantiating the contention
that counsel promised or predicted that a plea agreement would produce a
lesser sentence. See, e.g., State v. Bowers, 966 P.2d 1023, 1029 (Ariz.
Ct. App. 1998). We agree that, if a petition cites independent evidence
controverting the record of the plea proceedings and supporting a claim of
intimidation by an exaggerated penalty or enticement by an understated
maximum exposure, it may state a claim. Some petitions have been supported
by objective facts—typically affidavits of counsel—that support the claim
and do not controvert the record. Under these circumstances, in an era
predating a developed body of ineffective assistance law, this error has
been held to create a factual issue as to whether the plea was voluntary.
Dube v. State, 257 Ind. 398, 275 N.E.2d 7 (1971). Whether viewed as
ineffective assistance of counsel or an involuntary plea, the
postconviction court must resolve the factual issue of the materiality of
the bad advice in the decision to plead, and postconviction relief may be
granted if the plea can be shown to have been influenced by counsel’s
error. However, if the postconviction court finds that the petitioner
would have pleaded guilty even if competently advised as to the penal
consequences, the error in advice is immaterial to the decision to plead
and there is no prejudice.
2. Segura’s Claim of Incorrect Advice as to the Law
It is less clear what the general formulation of prejudice taken from
Hill means where the ineffective assistance is omitted advice as to
potential penal consequences that is claimed to have been material to the
petitioner’s decision, but would have been equally erroneous whether the
defendant pleaded guilty or was convicted at trial. We agree with Chief
Judge Aspen that it is “far from obvious” how a petitioner is to make a
showing of prejudice from an error by counsel of this type. United States
v. Ryan, 986 F. Supp. 509, 513 (N.D. Ill. 1997) (claim that erroneous
advice as to length of sentence, career offender status, etc., coerced
plea). Segura’s claim of ineffective assistance is not based on an
allegation of ineffective representation that resulted in overlooked
evidence or an unasserted legal defense. Nor does he claim that his
counsel failed to develop evidence that would have mitigated his penalty.
Rather, he argues that the failure to explain the full penal
consequences—in his case, the risk of deportation—caused him to accept a
plea agreement that he would have rejected if he had been properly advised.
This is for these purposes the same as the claim in Hill that the
petitioner was incorrectly advised as to eligibility for parole. Both bear
only on the petitioner’s claim that he inadequately understood the penal
consequences of a guilty plea. Neither suggests that if counsel had
performed flawlessly a conviction would not have resulted from a trial or a
different penalty would have been imposed.
3. Hill’s Discussion of the Issue
The petitioner in Hill did not allege that he would not have pleaded
if properly advised. For that reason, the United States Supreme Court
found it “unnecessary to determine whether there may be circumstances under
which erroneous advice by counsel as to parole eligibility may be deemed
constitutionally ineffective assistance of counsel.” Hill, 474 U.S at 60.
Hill thus declined to rule on the prejudice showing required for a claim of
ineffective assistance based on defective advice as to the penal
consequences.
Hill did, however, go on to observe that petitioner alleged “no
special circumstances that might support the conclusion that he placed
particular emphasis on his parole eligibility in deciding whether or not to
plead guilty.” Id. The Court then observed that the petitioner’s
assessment of his parole eligibility would have equally affected his view
of the expected penal consequences of both a plea and a conviction after
trial. Id. Unlike Hill, Segura has alleged that he would not have
pleaded, but, like Hill, Segura has alleged no “special circumstances” as
to why his decision was affected by the alleged omission of counsel. And,
it is clear that here, as in Hill, the omitted or misdescribed penal
consequences flow equally from either a plea or a conviction after trial.
4. Post-Hill Decisions
Hill himself ultimately prevailed in the Eighth Circuit on his claim
that bad advice as to parole eligibility caused him to plead when he would
not have done so if properly advised. After losing in the Supreme Court,
Hill filed a second petition that cured the pleading defect identified in
Hill by alleging that his guilty plea was caused by the bad advice.
Ultimately, the Eighth Circuit affirmed the grant of habeas corpus. Hill
v. Lockhart, 877 F.2d 698 (8th Cir. 1989). In the Eighth Circuit’s view:
To succeed under Strickland, Hill need not show prejudice in the sense
that he probably would have been acquitted or given a shorter sentence
at trial, but for his attorney’s error. All we must find here is a
reasonable probability that the result of the plea process would have
been different—that Hill “would not have pleaded guilty and would have
insisted on going to trial.”
Id. at 704 (quoting Hill, 474 U.S. at 59). This was affirmed en banc by a
five-to-four decision. Hill v. Lockhart, 894 F.2d 1009 (8th Cir. 1990).
The Eighth Circuit later explained its holding in Hill in Hale v. Lockhart,
903 F.2d 545, 549 (8th Cir. 1990): “The holding in Hill, however, was
narrow, and rested primarily on the district court’s finding that
petitioner pleaded guilty as a direct consequence of his counsel’s
erroneous advice and that, but for this advice, the outcome of the plea
process would have been different.” Similarly, the Eleventh Circuit has
held that prejudice is shown when a guilty plea is induced by a failure to
advise that a guilty plea in state court would not preclude federal
authorities from imposing sanctions for parole violations based on the same
conduct. Finch v. Vaughn, 67 F.3d 909, 916-17 (11th Cir. 1995). Some
courts have found no deficient performance in the failure to advise as to
sentencing or penal consequences. United States v. Gordon, 4 F.3d 1567,
1570-71 (10th Cir. 1993); Ford v. Lockhart, 904 F.2d 458, 462-63 (8th Cir.
1990).
Faced with this uncertainty as to what needs to be alleged and how it
may be proven, a number of other courts have rejected claims of prejudice
after a guilty plea, holding it is insufficient for the petitioner, without
more specific facts, merely to allege in postconviction proceedings that he
would not have pleaded if he had been properly represented. Others reject
claims that a plea would not have been entered when the record of the plea
proceeding establishes that the sentencing parameters were known and the
factual basis for the plea was established. United States v. Standiford,
148 F.3d 864, 869 (7th Cir. 1998); Arango-Alvarez v. United States, 134
F.3d 888, 892-93 (7th Cir. 1998); Jones v. Page, 76 F.3d 831, 844-45 (7th
Cir. 1996). Some have formulated the test as whether a correct
understanding of the law would have affected counsel’s recommendation to
plead.[7] All of these approaches, though phrased differently from the way
we expressed it in Van Cleave, lead to the same ultimate conclusion as to
the required showing of prejudice. If a change in counsel’s recommendation
is the test, because a plea agreement is virtually assured to produce no
worse penal consequences than a conviction after trial, a change in
counsel’s recommendation would necessarily turn on an evaluation of whether
an adequate legal performance would produce a reasonable chance of a better
result from a trial. This formulation thus amounts to the same conclusion
announced in Van Cleave: a showing of prejudice to upset a guilty plea
requires a showing of a reasonable probability of a result of not guilty.
Similarly, these cases in one way or another suggest that to show prejudice
the petitioner’s allegation must controvert the record that he was told of
the maximum penal consequence.
5. Prejudice from Advice that Omits or Misdescribes Penal Consequences
We have no clear guidance from the United States Supreme Court as to
how to resolve these seemingly inconsistent theoretical approaches to
evaluate prejudice from incorrect legal advice in the guilty plea setting.
We see no reason to require revisiting a guilty plea if, at the end of the
day, the inevitable result is conviction and the same sentence. Yet, we
agree that in extreme cases, a credible scenario can be posited that
results in a truly innocent defendant pleading guilty because of incorrect
advice as to the consequences. The cases where a showing of prejudice from
incorrect advice as to the inevitable consequences of conviction will be
able to be made may be few. If such a circumstance is shown, however, the
defendant should not be stripped of the presumption of innocence, the
requirement of proof beyond a reasonable doubt, and the other procedural
rights that are not available in postconviction proceedings. To require a
showing of innocence to obtain a new trial would have that effect.
Accordingly, we conclude that in order to state a claim for postconviction
relief a petitioner may not simply allege that a plea would not have been
entered. Nor is the petitioner’s conclusory testimony to that effect
sufficient to prove prejudice. To state a claim of prejudice from
counsel’s omission or misdescription of penal consequences that attaches to
both a plea and a conviction at trial, the petitioner must allege, in
Hill’s terms, “special circumstances,”[8] or, as others have put it,
“objective facts”[9] supporting the conclusion that the decision to plead
was driven by the erroneous advice.
We believe a showing of prejudice from incorrect advice as to the
penal consequences is to be judged by an objective standard, i.e., there
must be a showing of facts that support a reasonable probability that the
hypothetical reasonable defendant would have elected to go to trial if
properly advised. Nevertheless, as we understand Strickland and Hill as
informed by Williams, a petitioner may be entitled to relief if there is an
objectively credible factual and legal basis from which it may be concluded
that “there is a reasonable probability that, but for counsel’s errors, he
would not have pleaded guilty and would have insisted on going to trial.”
Hill, 474 U.S. at 59.
In sum, for the reasons given in Part II, to prove this in the case of
claims related to a defense or failure to mitigate a penalty, it must be
shown that there is a reasonable probability that a more favorable result
would have obtained in a competently run trial. However, for claims
relating to penal consequences, a petitioner must establish, by objective
facts, circumstances that support the conclusion that counsel’s errors in
advice as to penal consequences were material to the decision to plead.
Merely alleging that the petitioner would not have pleaded is insufficient.
Rather, specific facts, in addition to the petitioner’s conclusory
allegation, must establish an objective reasonable probability that
competent representation would have caused the petitioner not to enter a
plea. See Toro v. Fairman, 940 F.2d 1065, 1068 (7th Cir. 1991) (requiring
objective evidence that a plea would have been accepted); see also United
States v. Gordon, 156 F.3d 376, 380-81 (2d Cir. 1998) (affirming finding
that the disparity between the sentence exposure represented by the
attorney and the actual maximum sentence was objective evidence of
prejudice, i.e., that defendant had rejected a beneficial plea agreement
based on the erroneous advice). This case does not meet that standard.
Segura offers nothing more than the naked allegation that his decision to
plead would have been affected by counsel’s advice.
Conclusion
The judgment of the postconviction court is affirmed.
DICKSON, J., and RUCKER, J., concur.
SULLIVAN, J., concurs in result with separate opinion in which
SHEPARD, C.J., concurs.
Attorneys for Appellant
Susan K. Carpenter
Stephen T. Owens
Indianapolis, IN
Attorneys for Appellee
Jeffrey A. Modisett
Attorney General of Indiana
Teresa Dashiell Giller
Deputy Attorney General
Indianapolis, IN
IN THE
INDIANA SUPREME COURT
JOSE DANIEL SEGURA,
Appellant (Defendant below),
v.
STATE OF INDIANA,
Appellee (Plaintiff below).
)
) Supreme Court No.
) 10S01-0009-PC-515
)
)
)
)
)
)
APPEAL FROM THE CLARK SUPERIOR
The Honorable Cecile Blau, Judge
Cause No. 10D02-9203-CF-030
ON PETITION TO TRANSFER
June 26, 2001
SULLIVAN, Justice, concurring in result.
This case deals with the proper measure of prejudice when a defendant
attempts to set aside a guilty plea on grounds of ineffective assistance of
counsel. It requires us to parse the only United States Supreme Court case
on this subject, Hill v. Lockhart, 474 U.S. 52 (1985). As the majority’s
opinion points out, Hill is frequently quoted for its pronouncement that,
“in order to satisfy the ‘prejudice’ requirement [of the test for
ineffective assistance of counsel], the [petitioner] must show that there
is 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 59.
As the majority also points out, Hill goes on to say that in the case
of many commonly alleged errors of counsel, “the resolution of the
‘prejudice’ inquiry will depend largely on whether the affirmative defense
likely would have succeeded trial.” Id. I agree with the majority that
this statement in Hill – along with the analysis that supports it – means
that a defendant who pled guilty after erroneous advice by counsel that, if
corrected, would raise an affirmative defense must show a reasonable
probability of a more favorable result at trial in order to show prejudice
and obtain relief.
I also agree with the majority that this prejudice test applies not
just to counsel’s shortcomings affecting a defense but also to errors or
omissions that have the result of overlooking evidence or circumstances
that affect the sentence imposed. In those situations, too, I agree that
prejudice from the decision to plead is measured by evaluating the
probability of success of the omitted defense or evidence.
I part company from the majority when it adopts a different, more
lenient, standard for prejudice with respect to claims arising from
counsel’s legal advice with respect to penal consequences. For these
claims, the majority would not require a showing that, if the defendant had
gone to trial, there would have been a reasonable probability of a more
favorable result. It is enough, in such circumstances, the majority says,
for the defendant to show merely that a “hypothetical reasonable defendant”
would not have plead guilty and insisted on going to trial. I would
require a showing of a reasonable probability of a more favorable result in
these circumstances as well.
The majority finds the basis for differentiating claims as to penal
consequences from other claims in Hill. My reading of Hill is different.
Hill involved a claim that counsel had not advised the defendant
accurately as to the date he would be eligible for parole. The Court did
not reach the merits of this claim because the petitioner had not alleged
in his habeas petition that if he had been properly advised as to his
parole eligibility, he would not have pled guilty and insisted on going to
trial. Hill, 474 U.S at 60. Nor had he alleged any “special circumstances
that might support the conclusion that he placed particular emphasis on his
parole eligibility in deciding whether or not to plead guilty.” Id.
Absent such a claim or special circumstances, the Court said, the
“petitioner’s allegations [were] insufficient to satisfy the Strickland v.
Washington requirement of ‘prejudice.’” Id.
The majority reads this analysis to mean that the “reasonable
probability of a more favorable result” that the court used earlier in the
Hill opinion does not apply to claims involving counsel's errors or
omissions concerning the penal consequences of the guilty plea. I think a
better reading from the structure and language of Hill is that the
“reasonable probability of a more favorable result” test applies to all
claims but that it was not necessary to even reach the test in Hill because
the threshold requirement of alleging that the petitioner would have pled
not guilty and insisted on going to trial was not met.
That having been said, I think there is broad agreement between the
majority and myself as to how a court approaches a claim of ineffective
assistance of counsel in respect of the guilty plea. First, the petitioner
has the burden of demonstrating that counsel's performance was deficient.
(We leave that question open in this case.) Second, the petitioner has the
burden of demonstrating a reasonable probability that the hypothetical
reasonable defendant would not have pled guilty and elected to go to trial
if properly advised. It is only after those two hurdles are cleared that
the majority’s and my disagreement is reached. I would require an
additional showing by the petitioner of a reasonable probability of a more
favorable result at trial in all such claims; the majority would not
require such a showing in claims of errors or omissions in respect of penal
consequences.
SHEPARD, C.J., concurs.
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[1] Under a separate cause number on the same day, Segura pleaded guilty to
another charge of dealing in cocaine and a violation of the controlled
substance excise tax statute.
[2] The postconviction court made two findings that are relevant to this
discussion:
14. Since the Defendant had a prior conviction in Texas, it seems
likely that he had prior experience in having a conviction and not
being a citizen and the possible consequences and that he should have
brought that to the attention of his counsel. In the facts presented,
it appears likely that the Defendant should have known to inform his
counsel that he was not a citizen and to inquire as to what
ramifications it would have in this situation.
15. The Court does not find in this fact situation that it was
ineffective assistance of counsel to fail to inform this defendant of
the civil consequences to a guilty plea and the fact that the
defendant is not a citizen does not change that finding. While it
might be preferred practice to explain all possible consequences to a
client, the failure to do so in this situation does not allow post-
conviction relief. The Defendant has some responsibility to inform
his counsel of all pertinent facts.
[3] The quoted passage also deals with the possibility of a reduced
sentence. Neither Van Cleave’s nor Segura’s claim bears on the sentence
and we address in each case only a claim that the defendant is entitled to
a new trial. Of course, if the claims of ineffective assistance of counsel
relate to sentencing, an effect on that “result” would be sufficient to
support the prejudice prong.
[4] See Evans, 742 F.2d at 375.
[5] See Copas v. Commissioner of Correction, 662 A.2d 718, 729 n.18 (Conn.
1995).
[6] See, e.g., United States v. Giardino, 797 F.2d 30, 31-32 (1st Cir.
1986) (Breyer, J.) (claim that counsel lied that co-defendant would testify
that defendant was principal perpetrator when in fact co-defendant would
have testified that defendant was an innocent bystander).
[7] See, e.g., Bonvillain v. Blackburn, 780 F.2d 1248, 1253 (5th Cir. 1986)
(claim of bad advice as to length of sentence).
[8] Hill, 474 U.S. at 60.
[9] McCleese v. United States, 75 F.3d 1174, 1179 (7th Cir. 1996); State v.
Donald, 10 P.3d 1193, 1201 (Ariz. Ct. App. 2000).