Umesh Kaushal v. State of indiana , 112 N.E.3d 1138 ( 2018 )

FILED
Oct 05 2018, 9:30 am
CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
H. Samuel Ansell Curtis T. Hill, Jr.
Indianapolis, Indiana Attorney General of Indiana
Christina D. Pace
Larry D. Allen
Monika P. Talbot
Deputy Attorneys General
Indianapolis, Indiana
INTHE
COURT OF APPEALS OF INDIANA
Umesh Kaushal, October 5, 2018
Appellant-Defendant, Court of Appeals Case No.
49A04-1612-CR-2862
v. Appeal from the Marion Superior
Court
State of Indiana, The Honorable Sheila Carlisle,
Appellee-Plaintiff. Judge
The Honorable Stanley E. Kroh,
Magistrate
Trial Court Cause No.
49G03-1508-F4-28287
Riley, Judge.
OPINION ON REMAND
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[1] This case is before us on remand from the United States Supreme Court. In
Kaushal v. State, No. 49A04-1612-CR-2862, 2017 WL 3028623 (Ind. Ct. App.
July 18, 2017), this court affirmed the trial court’s denial of Kaushal’s motion to
withdraw his guilty plea which was based in part upon a claim that his guilty
plea counsel had been ineffective. The Indiana Supreme Court denied his
petition for transfer, and Kaushal subsequently filed a petition for writ of
certiorari with the United States Supreme Court. On June 28, 2018, the
Supreme Court granted the certiorari petition and remanded this case “for
further consideration in light of Jae Lee v. United States, 582 U.S. ___ [, 137 S.
Ct. 1958] (2017).” Kaushal v. Indiana, 138 S. Ct. 2567 (2018). Accordingly, we
reconsider Kaushal’s appeal.
[2] The facts of the case as set out by this court in its original opinion are as
follows:
Kaushal, a citizen of India, has lived in the United States for
nearly a decade and has a Green Card. On August 11, 2015, the
State filed an Information, charging Kaushal with child
molesting as a Level 4 felony. The State alleged that Kaushal
had fondled his thirteen-year-old stepdaughter’s breast. Shortly
after his arrest, Kaushal posted bond and retained an attorney.
Kaushal, who owns and operates several convenience stores in
Indianapolis, Marion County, Indiana, made it clear to his
attorney that his priority was to avoid any amount of
incarceration so that he could continue to run his businesses and
care for his mother. Given Kaushal’s insistence against
imprisonment, along with his professional opinion that Kaushal
was not likely to succeed at trial, Kaushal’s attorney focused on
negotiating a deal with the State.
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On May 4, 2016, Kaushal entered into a plea agreement with the
State, pursuant to which he agreed to plead guilty to the child
molesting offense. The agreement provided that Kaushal would
receive a four-year sentence, with a one-year cap on executed
time and with placement for the executed time to be determined
by the trial court. However, after conferring with his attorney
and realizing that he could be confined for a portion of his
sentence, Kaushal withdrew from the plea agreement.
On June 29, 2016, Kaushal entered into another plea agreement
with the State, pursuant to which he again agreed to plead guilty
to the offense of child molesting as a Level 4 felony. In
exchange, Kaushal would receive a four-year suspended
sentence, of which three years would be served on probation with
a condition of home detention and one year on non-reporting
probation. On June 30, 2016, the trial court conducted a hearing
on Kaushal’s guilty plea. The trial court advised Kaushal of the
implications of pleading guilty, including his obligation to
comply with the Sex and Violent Offender Registry; his waiver of
his right to appeal his conviction and/or sentence; and his waiver
of certain constitutional rights, such as the right to a trial by jury
and the right to confront and cross-examine witnesses. These
warnings were also included in the written plea agreement, and
Kaushal initialed next to each one to affirm his understanding.
Also, among the written warnings was an advisement that, as a
non-citizen, Kaushal could face deportation, denial of re-entry,
prohibition of citizenship, or loss of immigration benefits as a
result of the conviction. After questioning Kaushal, the trial
court found that his guilty plea was made knowingly and
voluntarily, and Kaushal agreed that there was a factual basis to
support his conviction and that he was guilty of committing the
charged offense. Accordingly, the trial court accepted the plea
agreement and entered a judgment of conviction for child
molesting as a Level 4 felony.
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According to Kaushal, on July 1, 2016, he met with an attorney
who focuses on immigration matters and learned that, as a result
of his conviction for child molesting, he was likely to be
immediately “picked up” by immigration officials. Thus, on July
21, 2016, Kaushal filed a Verified Motion to Withdraw Plea of
Guilty. Kaushal argued that “[o]utside of a vague advisement
that the conviction may have immigration consequences, [he]
was not advised of potential immigration consequences and
would not have pled guilty to the charged crime had he known it
would subject him to automatic detention, revocation of his
permanent resident status, and certain deportation.” Kaushal
further stated that he pled guilty “in order to avoid prison
without having knowledge that his ability to legally reside in the
United States would end. Kaushal owns several businesses and
considers the United States to be his home. Although he has
[pled] guilty, Kaushal maintains his innocence and wishes to
proceed to trial.” Kaushal added that withdrawing the plea
would not prejudice the State because the case could still proceed
to trial, and he insisted that withdrawal was necessary to correct
a manifest injustice.
On August 5, 2016, and September 9, 2016, the trial court held
hearings on Kaushal’s motion to withdraw his guilty plea.
Kaushal testified that his attorney never discussed the
immigration consequences in urging Kaushal to plead guilty.
Yet, in response to another question about conversations with his
attorney regarding his Green Card, Kaushal also stated, “I think
I’m not going to be ever U.S. citizen, or I’m never going to be
deported after, like—in that quick until I—I just find immigration
stuff.” Kaushal clarified that, while he understood there would
be “a hard road after” pleading guilty, he did not realize “that it’s
going to be that hard—[that he would get] deported that quick.”
On the other hand, Kaushal’s attorney testified that he went
through each paragraph of the plea agreement with Kaushal,
including the paragraph regarding possible immigration
consequences, and Kaushal did not have any questions as to
what he was signing. Moreover, Kaushal’s attorney testified that
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Kaushal had informed him that he was contemporaneously
conferring with immigration attorneys. Although Kaushal’s
attorney stated that he does not practice immigration law, he
specifically told Kaushal that his Green Card would not be
renewed prior to Kaushal signing the plea agreement.
On November 7, 2016, the trial court issued an Order Denying
Verified Motion to Withdraw Guilty Plea. The trial court
determined that even though the State had conceded that
Kaushal’s attorney ineffectively advised Kaushal on the
immigration consequences of pleading guilty, Kaushal failed to
establish that he was prejudiced by his attorney’s advice. On
December 2, 2016, Kaushal filed a motion to correct error, which
the trial court denied on December 15, 2016.
Kaushal, 2018 WL 3028623, at *1-2 (record citations and internal footnote
omitted). Additional facts will be provided as necessary.
[3] The issue relevant to our review on remand is whether, in light of Jae Lee,
Kaushal adequately established that he was prejudiced by his counsel’s deficient
performance such that his guilty plea must be set aside.
[4] We affirm.
DISCUSSION AND DECISION
[5] In our original opinion, we did not address the issue of whether Kaushal’s
counsel’s performance was deficient because we concluded that, regardless,
Kaushal had not demonstrated that he had been prejudiced by his counsel’s
performance. Id. at *6. We began our analysis by setting out the general
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Strickland standard for assessing prejudice, namely that a defendant must
establish that, but for his counsel’s error, the result of the proceeding would
have been different. Id. at *4. Relying upon Segura v. State, 749 N.E.2d 496,
500 (Ind. 2001), and Gulzar v. State, 971 N.E.2d 1258, 1261 (Ind. Ct. App.
20012), trans. denied, for the standard for assessing prejudice more specifically in
the context of counsel’s failure to warn a defendant of penal consequences,
including immigration consequences, prior to entering a guilty plea, we noted
that “‘specific facts, in addition to the [defendant’s] conclusory allegation, must
establish an objective reasonable probability that competent representation
would have caused the [defendant ] not to enter a plea.’” Id. at *5 (quoting
Gulzar).
[6] We considered Kaushal’s ties to the United States and the scant factual basis in
the record for his guilty plea, which we noted militated in favor of finding
prejudice. Id. at *6. However, we held that the substantial benefit Kaushal
received from his plea, evidence of his knowledge before entering his plea that
his Green Card would not be renewed, his review of his plea agreement with
counsel and the trial court prior to entering his plea, and his concession at an
evidentiary hearing on his motion that he knew that he would “face hurdles”
with his immigration status after entering his plea all established that Kaushal
knew that his immigration status could be affected by his plea but that “he was
apparently willing to accept those risks in order to avoid spending any amount
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of time incarcerated.” Id. We concluded that Kaushal had not demonstrated
adequate prejudice because he had been advised of the possibility that he could
be deported if he pled guilty but chose to plead guilty anyway. Id.
[7] After briefing was completed in this matter but before our decision was handed
down, the United States Supreme Court decided Jae Lee, in which it clarified
the standards for assessing prejudice in cases where a defendant relied upon his
counsel’s deficient performance in deciding to forgo trial and to instead enter a
guilty plea. Kaushal sought rehearing, arguing that Jae Lee afforded him relief.
(Appellant’s Petition for Rehearing pp. 6-9). After considering Jae Lee, we
denied Kaushal’s petition for rehearing. Kaushal’s subsequent petition for
transfer to our supreme court also cited Jae Lee. (Petition to Transfer pp. 5-7).
Our supreme court also denied relief.
[8] Lee, a longtime lawful permanent resident of the United States, was charged
with one count of possessing ecstasy with intent to distribute, an offense that, if
he were convicted, would subject him to mandatory deportation. Lee, 137 S.
Ct. at 1962-63. Lee had admitted that the drugs found in his home were his and
that he had given ecstasy to his friends. Id. at 1963. His counsel advised him
that his chances of success at trial were slim but that he would not be deported
if he pled guilty and served his sentence. Id. After pleading guilty and being
sentenced, Lee learned that he was subject to mandatory deportation following
his conviction. Id. Lee sought relief from his conviction and sentence based
upon a claim that his guilty plea counsel was ineffective. Id.
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[9] In its decision granting that relief, the Supreme Court clarified that a defendant
alleging that his counsel’s deficient performance led him to enter a guilty plea in
lieu of going to trial must establish “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 1965 (quoting Hill v. Lockhart, 474 U.S. 52, 59 (1985)).
Courts reviewing such claims do not focus on the defendant’s chances of
success at some hypothetical trial. Id. at 1967. Rather, it must be determined
whether the defendant made an adequate showing that, if properly advised, he
would have elected to go to trial. Id. The focus is on the defendant’s
decisionmaking, which may not be based solely upon the likelihood of
conviction. Id. at 1966. In order to establish prejudice, a defendant may not
rely merely on post hoc claims that he would not have pled guilty had he been
better advised. Id. at 1967. Rather, he must substantiate his claim that he
would not have pled guilty with contemporaneous evidence. Id.
[10] Under what it characterized as “the unusual circumstances” of Lee’s case, the
Court held that Lee had established adequate prejudice because the record
reflected a reasonable probability that, but for his counsel’s errors, Lee would
have insisted on going to trial. Id. at 1967-68. Prior to accepting his plea, Lee
asked his counsel repeatedly whether he would be deported following his guilty
plea. Id. at 1967. At his guilty plea hearing, Lee was confused and sought the
advice of his counsel when the trial court warned him as part of his plea
colloquy that he could be deported as a result of his conviction. Id. at 1968. In
addition, at an evidentiary hearing, both Lee and his attorney testified that
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avoiding deportation was the determinative factor for Lee in deciding to plead
guilty and that Lee would have gone to trial had he known about the
deportation consequences of his decision to plead guilty. Id. at 1967-68. The
Court also noted that Lee had strong connections to the United States, having
resided here for over thirty years, having established two businesses, and having
been the sole family caretaker for his elderly parents. Id. at 1968. The Court
reasoned that for defendants like Lee, whose primary goal is to avoid
deportation, it may be worth the risk of going to trial despite a low chance of
success rather than plead guilty and face certain deportation. Id. at 1968-69.
The Court noted that “[n]ot everyone in Lee’s position would make the choice
to reject the plea. But we cannot say it would be irrational to do so.” Id. at
1969.
[11] In addressing the case at hand, we begin by noting that Kaushal has lived in the
United States for approximately ten years, owns several businesses, cares for his
mother, and now insists that he would not have pled guilty had he known he
would be deported. However, we cannot conclude that these circumstances
alone establish a reasonable probability that, but for his counsel’s performance,
he would have insisted on going to trial. See id. at 1965. The contemporaneous
evidence in the record reflects that avoiding imprisonment, not deportation,
was the determinative issue for Kaushal in resolving his criminal case and
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ultimately deciding to enter a guilty plea. 1 Some of the evidence which
illustrates this is that at one of the evidentiary hearings in this matter, Kaushal’s
counsel testified that “Mr. Kaushal’s first goal, in my opinion, always was that
he didn’t want to go to prison” and “The whole thing was him not going to jail
was – was what he wanted the whole time in my office. He didn’t want to
spend one day in jail . . . was his major . . . number one.” (Transcript Vol. 2,
pp. 53, 96). Kaushal testified at a hearing in this matter that he pled guilty
because he was afraid of going to prison and that “It’s all about I’m scared to go
to prison.” (Tr. Vol. 2, pp. 28, 35).
[12] Apart from this testimony, Kaushal’s actions before seeking to set aside his plea
affirm that avoiding prison was his primary objective in resolving his criminal
case. Kaushal withdrew from his first plea agreement because he would have
been required to execute a portion of his sentence in prison. Kaushal signed his
second plea agreement which provided for an entirely-suspended sentence after
being advised by his guilty plea counsel that his Green Card would not be
renewed and after he had reviewed the paragraph in his plea agreement
pertaining to possible immigration consequences. Unlike Jae Lee, Kaushal
exhibited no confusion about the terms of his plea agreement during his plea
1
The contemporaneous evidence relied upon in Jae Lee was uncontroverted. Id. at 1968-69. Inasmuch as
any of the evidence we rely upon in reaching our decision was disputed, we note that we do not disturb the
trial court’s ruling on a motion to set aside a guilty plea simply because it was based upon conflicting
evidence. Weatherford v. State, 697 N.E.2d 32, 34 (Ind. 1998).
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colloquy. Rather, he confirmed to the trial court that he had read the plea
agreement and understood it.
[13] Kaushal was aware prior to entering his guilty plea that he faced a “hard road”
regarding his immigration status if he pled, (Tr. Vol. 2, p. 29), but the record
simply does not reflect that deportation was an overriding concern for him in
deciding whether to plead guilty or to go to trial. Unlike Jae Lee, whose
chances of achieving his ultimate goal of avoiding deportation were increased
by going to trial, Kaushal had no increased chance of achieving his ultimate
goal of avoiding prison by going to trial. Rather, the opposite is true because
his plea agreement guaranteed that he would not be imprisoned.
[14] The contemporaneous evidence in the record does not establish a reasonable
probability that, but for his counsel’s errors, Kaushal would not have pled guilty
and would have insisted on going to trial. Lee, 137 S. Ct. at 1965. We conclude
that Kaushal did not establish, even in light of Jae Lee, that he was prejudiced by
his counsel’s performance. As such, the trial court did not err in declining to set
aside his guilty plea.
[15] Affirmed.
[16] Najam, J. and Bradford, J. concur
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