ATTORNEYS FOR APPELLANT
Susan K. Carpenter
Public Defender of Indiana
Stephen T. Owens
Deputy Public Defender
ATTORNEYS FOR APPELLEE
Jeffrey A. Modisett
Attorney General of Indiana
Teresa Dashiell Giller
Deputy Attorney General
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
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 Courts 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 counsels 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 counsels 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.
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. Seguras 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, Seguras
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
Courts 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 clients status as an
alien, the clients 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 Seguras 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
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 lawyers 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 counsels 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 Stricklands 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 counsels 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 Counsels 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 counsels 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 petitioners 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 counsels 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.
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
the Connecticut Supreme Court
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.
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.
Van Cleave, we were less certain that this reasoning applied to all
claims of ineffective assistance. [I]n our view, Hills 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 counselspecifically, the failure
to raise an intoxication defensebore 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 resultconvictionwould not have occurred despite counsels 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 petitioners
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 attorneys 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 defendants decision
to waive a jury trial is an informed and reflective one. Many
decisions at trialcalling a given witness, asserting a defense, or the extent of
cross-examinationare 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 Counsels Legal Advice as to Penal Consequences
An attorneys 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. Seguras claim is of that
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 factstypically affidavits of counselthat 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 counsels 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.
Seguras 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 petitioners 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). Seguras 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 consequencesin
his case, the risk of deportationcaused 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
petitioners 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.
Hills 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 petitioners 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.
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 Circuits 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 attorneys error. All we must find here is a
reasonable probability that the result of the plea process would have been differentthat
Hill would not have pleaded guilty and would have insisted on going to
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 courts
finding that petitioner pleaded guilty as a direct consequence of his counsels 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.
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 counsels recommendation to plead.
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 counsels 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 counsels 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 petitioners allegation must controvert the record that he was told of the
maximum penal consequence.
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 petitioners conclusory testimony
to that effect sufficient to prove prejudice. To state a claim of
prejudice from counsels omission or misdescription of penal consequences that attaches to both
a plea and a conviction at trial, the petitioner must allege, in Hills
terms, special circumstances,
or, as others have put it, objective facts
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 counsels 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 counsels 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 petitioners conclusory allegation, must establish an objective reasonable probability that competent
representation would have caused the petitioner not to enter a plea.
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 counsels advice.
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
Attorneys for Appellee
Jeffrey A. Modisett
Attorney General of Indiana
Teresa Dashiell Giller
Deputy Attorney General
INDIANA SUPREME COURT
JOSE DANIEL SEGURA,
Appellant (Defendant below),
STATE OF INDIANA,
Appellee (Plaintiff below).
) Supreme Court No.
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
majoritys 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 counsels 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 counsels 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
I part company from the majority when it adopts a different, more lenient,
standard for prejudice with respect to claims arising from counsels 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
petitioners allegations [were] insufficient to satisfy the Strickland v. Washington requirement of prejudice.
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 majoritys 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.
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.
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.
The quoted passage also deals with the possibility of a reduced sentence.
Neither Van Cleaves nor Seguras 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.
See Evans, 742 F.2d at 375.
Copas v. Commissioner of Correction, 662 A.2d 718, 729 n.18 (Conn.
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).
Bonvillain v. Blackburn, 780 F.2d 1248, 1253 (5th Cir. 1986)
(claim of bad advice as to length of sentence).
Hill, 474 U.S. at 60.
McCleese v. United States, 75 F.3d 1174, 1179 (7th Cir. 1996); State
v. Donald, 10 P.3d 1193, 1201 (Ariz. Ct. App. 2000).