Legal Research AI

Segura v. State

Court: Indiana Supreme Court
Date filed: 2001-06-26
Citations: 749 N.E.2d 496
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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.




      -----------------------
[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).