Segura v. State

here, where, liability was determined SEGURA, jury’s Appellant of Jose Daniel jury the basis dam- (Petitioner

ages apparent, appropriate Below), award is it is portion damages vacate award a matter Indiana recoverable as law. Indiana, Appellee STATE of (now 15(N)(5) Ind.Appellate See Rule App. Below). (Respondent 66(C)(4)) (“The court, R. respect with to all No. 10S01-0009-PC-515. all parties upon or some of the or some (6) issues, may order: ... Supreme Court of Indiana. inadequate damages, case of excessive or June final entry judgment on the evidence for ”). proper damages.... the amount of the challenge

No raised to the award of

prejudgment beyond interest challenge underlying judgment. Accordingly,

prejudgment interest should be awarded in

proportion judgment to the amount of the

that is affirmed.

Conclusion jury’s damages

We affirm the award of $6,587.89, amount reverse the

damages $162,500, award in the amount judgment remand with direction that plaintiff entered amount $6,587.89 plus prejudgment interest of

$1,826.56.

SHEPARD, C.J., SULLIVAN, J.,

concur.

RUCKER, J., concurs with result DICKSON, J.,

separate opinion in which

concurs.

RUCKER, Justice, concurring in result. decisis,

Because of the doctrine of stare

I concur the result reached the ma

jority. Rispens Both Martin & Son v. Farms, (Ind. Inc.,

Hall 621 N.E.2d 1078

1993), Co., Inc., Soya and Reed v. Central (Ind.1993), compel N.E.2d 1069

outcome this case.

DICKSON, J., concurs. Carpenter,

Susan K. Public Defender of Indiana, Owens, Stephen T. Deputy Public Defender, IN, Indianapolis, Attorneys for Appellant. Modisett, A.

Jeffrey Attorney General of Indiana, Giller, Teresa Deputy Dashiell At- General, IN, torney Indianapolis, Attor- neys Appellee. for ON PETITION TO TRANSFER BOEHM, Justice. Segura

Jose Daniel pleaded guilty to dealing in cocaine. He appeals the denial of his successive petition postconviction for relief, raising one issue: his trial whether counsel was ineffective for failing to inform him possibility deportation if In guilty. State v. Van 1293, (Ind.1996), 674 N.E.2d we held upset that in order to a conviction based on a claim of ineffective of coun- assistance Background Procedural Factual and sel, guilty must pleads who that he a reasonable show pleaded guilty to deal- In if he had been convicted He to a ing in cocaine.1 was sentenced today trial. We hold gone to In years imprisonment. ten term of recent de- Supreme Court’s United States petition for Segura filed an unsuccessful Taylor, cision in Williams September relief. postconviction (2000), Appeals, 146 L.Ed.2d 389 to Post- pursuant the Court 12, granted Seg- standard Rule section the Van Cleave Conviction does not affect file petition ura a successive permission ineffective assistance evaluating for Segura’s relief. second or omissions of errors counsel claims trial counsel petition contended impair a defense. that overlook or counsel to inform was ineffective because failed claims, remain of the view As those we as Segura deported that he could be a guilty that the in order to establish plea. hearing, At the guilty result of if coun- entered not have been plea would the two Segura’s trial counsel testified that adequately, petition- the performed sel had possi- a deportation had discussed as never was over- must show that a defense er plea. the consequence ble of that the defense impaired and looked denied the sec The court of likely changed have outcome would Appeals and the of petition ond Court Similarly, if counsel’s proceeding. opinion. in not-for-publication affirmed resulted shortcomings are claimed State, No. Segura v. 10A01-9906-PC-218 penal- opportunity mitigate in a lost 2000). (Ind. 4, doing, Ct.App. April so sentencing obtain a new ty, in order to of relied on the stan Appeals the Court must show rea- hearing, petitioner v. forth this Court in State dard set oversight probability that sonable (Ind.1996), 674 N.E.2d 1293 Van have affected the sentence. claim assis evaluating for of ineffective case a claim counsel’s presents This aby who had tance of counsel penal as to the conse- incorrect advice later, April Two on pleaded guilty. weeks quences led the 18, 2000, Court United would not have done so. when he otherwise Taylor, v. 529 U.S. issued Williams that, However, through this is not a claim May 389. On 120 146 L.Ed.2d S.Ct. advice, a less than the erroneous sentence rehearing in Segura petition filed a pre- promised maximum was potential The Court decision. light of Williams Rather, plea. the claim to induce a dicted again granted petition Appeals of the maximum was misdescribed is that of relief. v. affirmed the denial trial This error advice counsel. State, (Ind.Ct.App. 729 N.E.2d equally in the calculation of weighed 2000). acknowl Appeals The of Court after trial consequences of conviction opinion in Van edged that this Court’s to such a plea. after a As part interpreta conviction on an had relied Cleave claim, preju- Fretwell, finding we conclude that a of tion of Lockhart (1993), demonstrating a evidence requires dice 122 L.Ed.2d Segura, that the erroneous with was inconsistent Williams. Ap The of materially affected the 729 N.E.2d at 596-97. Court advice or omitted Williams, effect of peals possible noted the plead guilty. decision charge dealing and a violation of of in cocaine separate on the cause number Under statute. excise tax pleaded guilty the controlled substance day, Segura to another same any change but held the doctrine (Ind.Ct.App.1994). We with agree announced Van Cleave must come from Court of Appeals the failure to advise 1, 2000, September this Court. On can, consequence of the of deportation un- granted this Court transfer. circumstances, der some constitute defi- performance. stated, cient Otherwise Deportation we as a I. Penal say cannot that this failure as matter of Consequence law never perfor- constitutes deficient alleges Because Segura mance. it Whether in a given deficient deportation, from advice as to we must case is fact sensitive and turns on a num- decide issue a fail as threshold whether ber of presumably factors. These include possibility ure to counsel about the of de knowledge lawyer client’s portation performance constitutes deficient alien, status as an the client’s familiarity required split under Hill. There is a conviction, with the authority point. majority severity of criminal consequences, federal circuit courts hold as a matter the likely subsequent depor- effects of law, failure to advise of the prospect tation. undoubtedly Other factors will be deportation as a result conviction is not relevant given circumstances. performance by deficient in con counsel postconviction court found no deficient nection with a guilty plea. United States performance part on the Segura’s coun- 333, (7th v. Cir.1989); 869 337 George, F.2d clear, however, sel. It is not whether this Yearwood, 6, United States v. 863 F.2d 7-8 a holding law, was as a matter of (4th Cir.1988); Campbell, United States v. failure to advise of the risk of (11th Cir.1985). 764, 778 F.2d 768-69 deportation matter, merely was a collateral State split courts are issue. also or whether a finding this was of adequate State, Compare, e.g., Alanis v. 583 N.W.2d performance on the facts of this 573, case.2 (Minn.1998), Figuer 579 with State v. Because we oa, conclude that (R.I.1994). Segura failed to 495, 639 A.2d 499-500 prejudice establish the prong, we need not question The has never been addressed resolve this issue. Strickland v. Washing- Court, by this but the Indiana Court ton, 668, 697, 2052, 104 S.Ct. 80 Appeals has held that “the consequence of (1984). L.Ed.2d 674 deportation, whether labeled collateral not, is of sufficient Prejudice seriousness that it con- Guilty II. in a Setting Plea stitutes ineffective for assistance an attor- A. Precedent Date ney to fail to advise a noncitizen defendant of the deportation consequences of a prevail To on a claim of ineffec plea.” State, 44, Williams v. 641 counsel, N.E.2d tive assistance of a 2. The findings court made two 15. Court does not find in this fact that are relevant to this discussion: situation that it was ineffective assistance of prior 14. Since the Defendant had a con- counsel to fail to inform this defendant of Texas, likely viction in it seems that he had the civil guilty plea to a prior experience having a conviction and the fact that the defendant a is not citizen being possible not citizen and the conse- change does not finding. While it quences brought he should might preferred practice explain all that to the attention of his counsel. In the client, possible consequences to a the fail- presented, appears likely facts it that the ure to do so in this situation does allow Defendant should have known to inform his post-conviction relief. The Defendant has counsel that he not a was citizen and to responsibility inquire some as to what inform his counsel of ramifications it would pertinent in this situation. all facts.

501 determination, (1) without attention to wheth- lawyer’s things: two must show “objective proceeding stan funda- fell er the result of the was below performance reasonableness,” unreliable, v. Strickland mentally unfair or is defective.” dard 668, 687-88, 104 Fretwell, Washington, 466 U.S. 506 U.S. at S.Ct. 838. (2) (1984); 80 L.Ed.2d S.Ct. took the view Fretwell This Court that, but ais reasonable “there amplified prong Strickland’s errors, the re unprofessional for counsel’s that the requiring the to show been would have proceeding sult of the a proceeding “fundamentally result of Ef at 2052. different.” Id. S.Ct. unreliable,” in unfair or addition to show- question is a mixed fectiveness of counsel ing that the outcome would have 2052. of law and fact. Id. S.Ct. different but counsel’s mistakes. today presented problem specific Williams, however, made clear that Fret- relationship Taylor, Williams alter preexisting well did not Strick- 146 L.Ed.2d 389 120 S.Ct. U.S. Williams, showing. land the United (2000), v. Van to our decision State held Fretwell Court Cleave, (Ind.1996), as it 674 N.E.2d 1293 did that the convic- require “prejudice” prong relates tion was “unfair or unreliable” or sentence to set analysis. Van Cleave held claim prejudice prong of a establish conviction, petitioner who has aside counsel all of ineffective assistance of establish that there is must 391-93, 120 cases. 529 U.S. at would not Rather, in the rare in- applies Fretwell gone had he to trial. have been convicted “the likelihood of different stance where Until Van 674 N.E.2d at 1306. to an incorrect inter- outcome attributable passage had cited the most Indiana courts as pretation regarded of the law should be 59, Lockhart, 52, 474 from Hill U.S. 106 v. to rath- potential ‘windfall’ the defendant (1985), 366, 203 L.Ed.2d described S.Ct. 88 legitimate ‘prejudice’ contem- er than the below, to it was sufficient to the effect that 392, Id. at 120 plated by ... Strickland.” if set aside a conviction the clear that the 1495. Williams made S.Ct. reason court that there concluded to measured the oft- prejudice is be petitioner would not able of a differ- quoted probability” “reasonable gone have pleaded guilty and would have in ent “result” set forth Strickland. Most, all, if not of these state to trial. whether the conclusion issue is therefore denying in relief ments were the course of in correct without reached Van Cleave was standard, for failure meet even that and in support we Fretwell for that found could do not address how result. Nonetheless, this mantra was re made. without chal peated number of times Counsel’s Shortcom- Prejudice B. from State, See, v. 515 e.g., Burse lenge. or ings Affecting a Sentenc- Defense (Ind.1987). 1383, 1385-86 N.E.2d ing Cleave, 1297-98, N.E.2d at re- 674 Van cor- Appeals Court of Segura and the formulation, in jected doing the Burse part relied in Fretwell, rectly Cleave noted Van part relied in on Lockhart so elaborating in the Strickland 364, 838, on Fretwell 122 113 S.Ct. Fretwell, guilty plea. (1993). standard in the context of In the Unit- L.Ed.2d 180 However, only relied not on Van Cleave Supreme ed Court elaborated States Fretwell, and Hill. also on Strickland of Strickland: but prejudice prong “[A]n Although Fretwell 674 at 1296-97. focusing solely on mere outcome N.E.2d analysis 502 in proval

bolstered our confidence the conclusion passage Evans v. Meyer, Cleave, (7th we Cir.1984), reached conclude that reject- Van F.2d which interpretation preju- the Van Cleave ed a claim because it was “inconceivable” valid under prong dice remains Strickland gone “would have we that holding ..., reaffirm trial or that he done he ... had so that, if to claims of counsel’s errors cor- acquitted.”3 been at U.S. rected, raise a would either defense or 59, 106 S.Ct. 366. These were comments penalty. affect the in the context of a discussion errors that defense, i.e., affect a those overlook a dealt with the results Strickland defense, fail develop available evidence later, Hill, a trial. year One 474 U.S. at defense, for a impair inad- defense 57-60, United States equate legal analysis. Supreme Court addressed the application guilty plea setting. of Strickland in a Hill that prejudice reasoned from an petitioner’s claim in was that he Hill had error or omission counsel that has the incorrectly as to eligibility advised effect of overlooking impairing a de- parole pleaded guilty. if he Id. at fense measuring be evaluated by 106 S.Ct. In frequently quoted likelihood success of that defense. relies, passage cases, on which stat those prejudice will “closely resem- that, satisfy ed “in ‘prejudice’ prejudice order to ble” inquiry for an error at requirement, the defendant must show trial. analysis This assumes that the uninvestigated that there is a reasonable evidence or the overlooked errors, but for legal point evaluated, counsel’s competently will be pleaded guilty and would have insisted on go and the decision to to trial or going to Id. at trial.” 106 S.Ct. 366. will turn on the likelihood of success. However, so, opinion, later that same If in the context of a United Court observed equivalent evaluation of commonly many alleged case of merits the defense. As we observed counsel, errors of “the resolution of the Van N.E.2d that is ‘prejudice’ depend largely inquiry path will on the followed the Seventh Circuit4 whether the affirmative likely defense and the Connecticut Supreme Court5 would have at trial.” Id. succeeded Hill reaching results similar to Van Cleave further that the predicting solely observed out based on Strickland Hill. Simi- possible come of a trial is to larly, be done on the Tenth Circuit it necessary held evidence, objective regard without to “determine whether likely it is that a “idiosyncrasies of potential jury the decision- acquitted” would have in evaluating maker.” Id. (quoting prejudice at 106 S.Ct. 366 from failure to advise that Strickland, 695, 104 “depraved 466 U.S. at S.Ct. required mind” was to be estab- 2052). quoted ap- also with to prove Court lished the crime. Miller v. Evans, quoted passage pos- 3.The also deals with the 4. See 742 F.2d at 375. sibility of a reduced Neither sentence. Van Segura’s Cleave's nor claim bears on the sen- Correction, Copas 5. See v. Commissioner of only tence and we address in each case 234 Conn. 662 A.2d n. 18 claim that the defendant is entitled to a new (1995). course, trial. Of if the claims of ineffective sentencing, assistance of counsel relate to effect on that "result” would be sufficient to support prejudice prong. the (10th In preferable for reasons. seems several F.3d 1256-57 Champion, 161 Cleave, Cir.1998). identified sound many that we reasons also observe Van We proposition requiring pleads that who stating general the cases peti- probability whether the show a reasonable guilty test of the guilty and in a prevail postcon- not have order to acquittal tioner would trial, in fact addressed gone would have viction attack on the conviction based on al- proved, would have allegations claim of ineffective assistance counsel. the of convic- probability tered calculus emphasized, at 1300-02. As Hill the such, result they As reach the same tion.6 finality has an interest in the State by proceeding to measure Cleave as Van pleas. 474 at 366. U.S. plead by a decision to evalu- the effect on grounded in the cost of a part This is the of success of ating probability trial, judicial on new demands or evidence. omitted defense by revisiting imposed resources that are Tim see United States v. plea, Cleave, we were less certain Van reck, 780, 784-85, 99 S.Ct. U.S. all of inef- reasoning applied to claims (1979), L.Ed.2d 634 but also concerns view, our Hill’s fective assistance. “[I]n a retrial exacts from victims about toll trial possible of a reference to outcome who to revisit required and witnesses are we put strongly can confi- so years crime later. dently extract from that case the ‘reason- required we under probability’ able hold if an necessary A new trial is of course Cleave, 674 N.E.2d at Fretwell.” Van accepted. But its unreliable has been has made clear 1299. Now Williams needlessly, imposed costs should not be Strickland, did not we that Fretwell alter if the petition- and that would be result open in point must resolve the we left Van probability cannot show a reasonable er Cleave, leads namely, whether alone the ultimate result —-conviction— the same result we reached Van despite not have occurred counsel’s In Van Cleave. requirement of a as to a defense. A eiror a new granted relief and ordered court of suc- a reasonable ap- trial. 674 N.E.2d State with the merits is consistent cess setting guilty plea, pealed the aside of Strickland. It is also language literal ineffec- ruling not the that there was but raising any permits unfair. It defense phase. Id. at penalty assistance at tive of suc- has a reasonable result, only contested 1294. As a no cess, prevents who had but specifically, shortcomings counsel— benefiting causing and valid defense from failure to raise an intoxication defense— retrial many difficulties of conviction or ac- on the likelihood bore events, including missing after the years quittal. evidence, witnesses, stale or deceased above, To the extent that fading we con memories. given

For reasons largely is guilty plea to requires alone decision enter standing clude that Hill decision, from it is different petitioner’s of suc of a reasonable steps are investigatory the tactical or alleged at trial if the error is one cess most of ineffective result the bases of claims affected a defense. This would have See, Giardino, testi- co-defendant would have e.g., 797 F.2d when fact United States v. (claim (1st Cir.1986) J.) (Breyer, bystand- 31-32 an innocent fied defendant was lied that would tes- er). that counsel co-defendant tify principal perpetrator defendant Prejudice assistance of counsel. As this Court Legal ob- C. Counsel’s Ad- 674 N.E.2d at served Van 1301: as to Consequences vice Penal Demonstrating prejudice par- seems An attorney’s incorrect to pe- advice as ticularly context appropriate of a nal generally into falls two by a claim of ineffective assistance de- (1) groups: basic promised claims of le- pleaded guilty. fendant who has (2) niency and claims incorrect advice as virtually guilty plea, uniquely among all in the category law. Those second procedural steps, judgment involves the do not claim a promised benefit from a defendant as well as his attor- plea compared to the result aof trial. ... ney. [T]he decision to is often Rather, they claim range con- strongly overwhelmingly if not influ- sequences cases, was undervalued. These attorney’s enced But advice. it is like present situations the ad- where equally appreci- true that the defendant vice equally is erroneous whether de- the significance plea ates and is pleads goes Segura’s fendant or to trial. uniquely able factual to evaluate its ac- claim is of that sort.

curacy. requirement that the court satisfy itself as to the factual basis for 1. Claims Leniency Promised plea designed only to ensure that petitions allege Some in sub plead guilty, defendants and also promise leniency stance a in sentencing. defendant’s decision waive a words, In other the claim is that a differ trial jury is an informed and reflective ent predicted guaranteed result was or Many one. calling decisions at trial — courts, plea. result from a In some this witness, defense, given asserting a claim been supported by has independent the extent of cross-examination —are dif- evidence substantiating contention that ficult if not for the impossible defendant promised counsel predicted make, and reliance on counsel is un- agreement produce sen lesser contrast, avoidable. the decision See, e.g., Bowers, tence. State Ariz. whether to plead ultimately 966 P.2d 1029 (Ct.App.1998). defendant, prerogative We agree petition if a indepen cites conjecture defendant More than alone. dent controverting evidence the record of lucky or hope for a break at trial should the plea proceedings and supporting a required upset years that action claim of intimidation an exaggerated later. The Court has often penalty or enticement an understated reminded “in judging prejudice us that exposure, maximum may it state a claim. and the of a different likelihood out- petitions Some have been supported by come, [a] defendant has no entitlement objective typically affidavits of facts— to the luck of a lawless decisionmaker.” counsel—that support the claim do not Whiteside, 157, 175, v.Nix 106 controvert the record. Under these cir (1986) (citing L.Ed.2d 123 cumstances, in an era predating a devel Strickland) (internal quotations omit- oped body law, ineffective assistance ted). has error held create a factual Similarly, if error or the omission has issue plea as to whether the voluntary. was State, overlooking result of or evidence cir- Dube v. 257 Ind. 275 N.E.2d 7 (1971). cumstances that im- affect sentence Whether viewed as ineffective as posed, prejudice by is evaluated the rea- sistance of counsel or involuntary plea, an sonable probability that it had that effect. the postconviction must court resolve the suggests Neither quences guilty plea. of bad of a materiality issue factual flawlessly if had a post- performed to counsel plead, the decision advice in granted plea if the have from a may relief be conviction would not resulted conviction by have influenced have penalty to been different can be shown trial However, postcon- if the error. imposed. counsel’s been petitioner court finds that viction if compe- even pleaded guilty have the Issue 3. Hill’s Discussion of tently penal conse- advised as allege did petitioner Hill not is immaterial the error advice quences, properly would not have ad- he there is no plead to to the decision reason, the vised. For United prejudice. “unnecessary found it to Supreme Court may whether there be circum- determine Advice Incorrect

2.Segura’s Claim of advice stances under which erroneous as to the Law eligibility may parole counsel to as general It formula is less clear what constitutionally ineffective assis- deemed taken Hill means prejudice tion Hill, at tance counsel.” U.S is omitted where the ineffective assistance rule Hill thus S.Ct. 366. declined potential penal consequences advice as required for a claim prejudice showing have claimed to been material is ineffective assistance based on defective decision, have petitioner’s but would consequences. penal as to the advice been erroneous whether the defen equally convicted pleaded guilty dant was did, however, on to observe that go Judge Aspen agree trial. with Chief We alleged special “no circum- peti “far how a that it is from obvious” might support conclusion stances that tioner is to make placed particular on his emphasis that he type. from an error counsel of this deciding whether or eligibility in parole Ryan, F.Supp. United States v. plead then guilty.” not to The Court (N.D.Ill.1997) (claim erroneous petitioner’s that the assessment observed sentence, career length advice as to equally parole eligibility would have of his etc., status, plea). Segu- coerced offender penal expected view of the affected his ra’s assistance is claim of ineffective a convic- of both consequences repre of ineffective allegation based on an Hill, Segura after trial. Id. Unlike tion in overlooked evi sentation resulted plead- have alleged that he would not has legal defense. dence or unasserted Hill, ed, but, no alleged like has that his counsel failed Nor does he claim why as to his deci- circumstances” “special miti that would have develop evidence alleged was omission sion affected Rather, argues that penalty. his he gated here, And, it clear that of counsel. penal the full conse explain the failure penal the omitted or misdescribed case, deporta quences the risk —in equally flow from either accept plea agree him to tion—caused after trial. plea or conviction had rejected if he ment that he would advised. This for these properly 4. Post-Hill Decisions as the claim in Hill purposes same ultimately prevailed Hill himself incorrectly advised that the that bad advice only Eighth Circuit on his claim eligibility parole. as to Both bear caused him to parole eligibility as to claim that he inade petitioner’s on the if proper- done so when would conse- quately understood 506 Lockhart, 458, (8th

ly After in the v. losing advised. 904 F.2d 462-63 Court, Cir.1990). petition a Hill filed second pleading cured defect in identified Hill uncertainty Faced with this as to what by alleging guilty plea that his was caused needs alleged may to be and how it Ultimately, Eighth the bad advice. proven, a number of other courts have affirmed grant Circuit of habeas cor- rejected prejudice claims of after guilty a Lockhart, (8th pus. F.2d Hill v. 877 698 plea, it holding for peti- insufficient Cir.1989). Eighth In the Circuit’s view: tioner, facts, specific without more merely Strickland, To under Hill succeed need to allege in proceedings that prejudice show in sense that he pleaded would not have he had been would probably acquitted have been or represented. properly reject Others trial, given a shorter sentence at but for plea a claims that would not have been attorney’s his we error. All must find plea entered when the record pro- here is a reasonable that the ceeding sentencing pa- establishes that the plea result of the process would have rameters known were and the factual basis been different —that Hill “would not plea was established. United pleaded guilty have and would have in- 864, (7th Standiford, States v. 148 F.3d 869 going sisted on to trial.” Cir.1998); Arango-Alvarez v. United (7th 59, 106 States, Id. at (quoting Cir.1998); 704 474 U.S. at 134 F.3d 892-93 366). (7th en Page, This was affirmed banc Jones v. 76 F.3d 844-45 Cir.1996). Lockhart, a five-to-four decision. v. Hill Some formulated the test (8th Cir.1990). 894 F.2d The Eighth 1009 as understanding whether a correct explained holding Circuit later its law affected counsel’s recom- Lockhart, (8th in Hale v. F.2d plead.7 mendation All of these ap- Cir.1990): Hill, however, “The holding proaches, though phrased differently from narrow, primarily way expressed rested on the we it in Van district finding court’s lead to the same ultimate conclusion as to guilty consequence direct the required showing prejudice. If a change counsel’s erroneous advice and in counsel’s recommendation is the advice, test, but for plea the outcome a plea agreement because is virtually process have been different.” Simi assured to produce penal no worse conse- larly, quences trial, has Eleventh Circuit held that than a conviction after prejudice guilty plea is shown change when a in counsel’s recommendation would induced failure to advise necessarily turn on an evaluation wheth- plea in preclude court state would not fed er an adequate legal performance would eral produce authorities from imposing sanctions a reasonable chance of a better for parole violations based result same from a trial. This formulation thus conduct. v. Vaughn, Finch F.3d amounts to the same conclusion announced (11th Cir.1995). 916-17 Some courts have : prejudice Van Cleave a found performance no deficient upset the fail requires showing of a ure to sentencing advise as to of a result of not consequences. Gordon, United guilty. Similarly, way these cases one (10th Cir.1993); F.3d 1570-71 suggest Ford another that to show See, Blackburn, e.g., sentence). length Bonvillain v. vice 780 F.2d as to (5th Cir.1986) (claim of bad ad-

507 the decision supporting the conclusion that must controvert allegation the petitioner’s by ad- to driven the erroneous told of the maxi- that he was the record vice. consequence. penal mum showing preju a We believe that Omits or Advice Prejudice 5. from dice from advice as incorrect Consequences Misdescribes Penal objec an consequences judged is to be guidance have clear from We no standard, i.e., showing there be a tive must Court as to

the United probabil facts a support that reasonable seemingly inconsis resolve these how to that defen ity hypothetical reasonable to evaluate approaches theoretical tent to trial if go have elected to dant would legal advice in the from incorrect Nevertheless, we un properly advised. no to setting. We see reason guilty plea and Hill as informed derstand Strickland if, at the revisiting guilty plea a require Williams, petitioner may a be entitled is day, the inevitable result end of objectively relief is an credible to if there Yet, we and the same sentence. conviction it may basis which legal factual and cases, a agree extreme credible that that “there is a reasonable be concluded in a posited be that results can scenario errors, that, but for probability counsel’s pleading innocent defendant truly pleaded guilty have he would not as to the of incorrect advice conse because to trial.” going would have insisted a quences. The cases where Hill, 59, 106 474 at S.Ct. 366. U.S. as to the prejudice from incorrect advice sum, given for the reasons will conviction inevitable II, the case of prove If in Part to this in a may to be made be few. such be able however, failure to a to shown, claims related defense is defen circumstance it shown that mitigate penalty, a must be stripped pre not dant should that innocence, reasonable a requirement there is a sumption of doubt, result would have obtained the more favorable a proof beyond However, for a run trial. competently are not avail procedural rights other penal consequences, a relating re claims proceedings. To postconviction able in establish, objective petitioner must showing of innocence to obtain quire a facts, the con support circumstances would have that effect. Accord new trial advice as to counsel’s errors in clusion that conclude that order state ingly, we were material penal consequences a petitioner relief claim for Merely alleging plead. decision to simply allege plea may not insuf petitioner peti Nor not have been entered. Rather, facts, in addition specific ficient. conclusory testimony to that effect tioner’s conclusory allegation, to the petitioner’s To prove prejudice. sufficient to state objective reasonable must counsel’s omission establish prejudice from claim of competent representation misdescription penal consequences would have caused plea attaches both convic Fairman, Toro 940 trial, plea. enter a See v. allege, must tion at (7th Cir.1991) or, (requiring terms, circumstances,”8 F.2d 1068 “special Hill’s would have it, objective that a “objective evidence put facts”9 as others States, F.3d 75 9. McCleese v. United 106 S.Ct. 366. Donald, Cir.1996); (7th State (Ct.App.2000). Ariz. P.3d been also United accepted); see States v. resolution of ‘prejudice’ inquiry the will (2d Gordon, Cir.1998) 380-81 depend 156 F.3d largely on whether the affirmative (affirming disparity that the finding be- likely defense would succeeded trial.” exposure represented tween the sentence I agree majority with the this the actual attorney the and maximum in along statement with analysis Hill — objective preju- sentence was evidence of supports it—means that a defendant dice, i.e., rejected had defendant pled who guilty after erroneous advice plea agreement beneficial based on that, corrected, counsel if would an raise advice). This erroneous case does not affirmative must defense show a reason- meet that standard. offers noth- able probability of more favorable result ing more than allegation the naked that his at trial prejudice order to show and decision plead would have been affected obtain relief.

by counsel’s advice. I agree also the majority with that this prejudice just applies test not to counsel’s Conclusion shortcomings affecting a defense but also judgment of to errors or omissions that have the result court is affirmed. of overlooking evidence circumstances imposed. affect the sentence In those DICKSON, J., RUCKER, J., situations, too, I agree prejudice from concur. the decision to is plead measured evalu- ating SULLIVAN, success of the J., concurs result with omitted defense or evidence. SHEPARD, separate opinion in which C.J., concurs. I part company from the majority when different, it adopts lenient, more stan- Justice, SULLIVAN, concurring in re- dard for prejudice respect with to claims sult. arising legal from counsel’s advice with proper This case deals with measure respect to penal consequences. For these when a defendant attempts to claims, the majority require would not set guilty grounds aside a of inef that, showing if the defendant gone had fective assistance counsel. It requires trial, there would have been a reasonable only us to parse the United States Su probability of a more favorable result. It preme subject, Court case on this Hill v. enough, circumstances, in such the ma- Lockhart, U.S. jority says, for the defendant to show (1985). L.Ed.2d 203 As majority’s merely that a “hypothetical reasonable de- opinion out, points Hill is frequently quot fendant” would not have that, ed for its pronouncement “in order to insisted on I going require to trial. would satisfy ‘prejudice’ requirement [of the a showing of a reasonable probability of a counsel], test for ineffective assistance of more favorable result these circum- the [petitioner] must show that there is a stances as well. reasonable probability but for coun majority finds basis for errors, differen- sel’s he would not have pleaded tiating claims as guilty and going would have insisted on My other claims in Hill. reading of 59, 106 trial.” Id. at S.Ct. 366. Hill is different. out, As majority also points goes on to say in the case of many Hill involved a claim that counsel had commonly counsel, alleged errors of not “the advised the accurately defendant as to disagreement majority my s parole. eligible date he would require I would reach the merits reached. additional The Court did not showing by had not al- because the claim petition that he had of a more favorable result habeas leged his claims; parole majority trial in such properly advised as to all such a claims of pled require eligibility, he respect going penal trial. errors or omissions and insisted on consequences. Nor had he 106 S.Ct. 366. U.S alleged any “special circumstances that he

might support conclusion SHEPARD, C.J., concurs. parole particular emphasis on placed or eligibility deciding whether not a claim Id. Absent such

plead guilty.” circumstances, said, the

special the Court insufficient

“petitioner’s allegations [were] satisfy Washington the Strickland v. ” ‘prejudice.’ requirement analysis to mean majority reads this of a probability more “reasonable SANCHEZ, Guadalupe Appellant A. that the court used earli- favorable result” (Defendant Below), opinion apply in the does not er involving counsel’s errors omis-

claims consequences of concerning sions Indiana, Appellee I guilty reading think a better STATE plea. (Plaintiff Below). of Hill is language structure of more “reasonable No. 92S03-0009-CR-518. all applies result” test claims favorable necessary that it to even reach but Court of Indiana. re- the test in Hill because threshold alleging that quirement June pled would have insisted

going to trial was not met. said, think there is having

That I agreement majority

broad between approaches myself as to how court assistance of counsel

claim ineffective First, plea.

respect peti- demonstrating burden of

tioner has the was deficient. performance

that counsel’s

(We case.) in this question open leave that

Second, has the burden of

demonstrating reasonable defendant hypothetical pled guilty not have and elected to only It is

go properly to trial advised. are cleared that

after those two hurdles

Case Details

Case Name: Segura v. State

Court Name: Indiana Supreme Court

Date Published: Jun 26, 2001

Citation: 749 N.E.2d 496

Docket Number: 10S01-0009-PC-515

Court Abbreviation: Ind.