ATTORNEYS FOR APPELLANT

Susan K. Carpenter
Public Defender of Indiana

Stephen T. Owens
Deputy Public Defender
Indianapolis, Indiana

ATTORNEYS FOR APPELLEE

Jeffrey A. Modisett
Attorney General of Indiana
    
Teresa Dashiell Giller
Deputy Attorney General
Indianapolis, Indiana

Similarly, if the error or omission has the result of overlooking evidence or circumstances that affect the sentence imposed, prejudice is evaluated by the reasonable probability that it had that effect.
C. Prejudice from Counsel’s Legal Advice as to Penal Consequences
An attorney’s incorrect advice as to penal consequences generally falls into two basic groups: (1) claims of promised leniency and (2) claims of incorrect advice as to the law. Those in the second category do not claim a promised benefit from a plea as compared to the result of a trial. Rather, they claim the range of penal consequences was undervalued. These cases, like Hill, present situations where the advice is equally erroneous whether the defendant pleads or goes to trial. Segura’s claim is of that sort.
1. Claims of Promised Leniency
Some petitions allege in substance a promise of leniency in sentencing. In other words, the claim is that a different result was predicted or guaranteed to result from a plea. In some courts, this claim has been supported by independent evidence substantiating the contention that counsel promised or predicted that a plea agreement would produce a lesser sentence. See, e.g., State v. Bowers, 966 P.2d 1023, 1029 (Ariz. Ct. App. 1998). We agree that, if a petition cites independent evidence controverting the record of the plea proceedings and supporting a claim of intimidation by an exaggerated penalty or enticement by an understated maximum exposure, it may state a claim. Some petitions have been supported by objective facts—typically affidavits of counsel—that support the claim and do not controvert the record. Under these circumstances, in an era predating a developed body of ineffective assistance law, this error has been held to create a factual issue as to whether the plea was voluntary. Dube v. State, 257 Ind. 398, 275 N.E.2d 7 (1971). Whether viewed as ineffective assistance of counsel or an involuntary plea, the postconviction court must resolve the factual issue of the materiality of the bad advice in the decision to plead, and postconviction relief may be granted if the plea can be shown to have been influenced by counsel’s error. However, if the postconviction court finds that the petitioner would have pleaded guilty even if competently advised as to the penal consequences, the error in advice is immaterial to the decision to plead and there is no prejudice.
2. Segura’s Claim of Incorrect Advice as to the Law
It is less clear what the general formulation of prejudice taken from Hill means where the ineffective assistance is omitted advice as to potential penal consequences that is claimed to have been material to the petitioner’s decision, but would have been equally erroneous whether the defendant pleaded guilty or was convicted at trial. We agree with Chief Judge Aspen that it is “far from obvious” how a petitioner is to make a showing of prejudice from an error by counsel of this type. United States v. Ryan, 986 F. Supp. 509, 513 (N.D. Ill. 1997) (claim that erroneous advice as to length of sentence, career offender status, etc., coerced plea). Segura’s claim of ineffective assistance is not based on an allegation of ineffective representation that resulted in overlooked evidence or an unasserted legal defense. Nor does he claim that his counsel failed to develop evidence that would have mitigated his penalty. Rather, he argues that the failure to explain the full penal consequences—in his case, the risk of deportation—caused him to accept a plea agreement that he would have rejected if he had been properly advised. This is for these purposes the same as the claim in Hill that the petitioner was incorrectly advised as to eligibility for parole. Both bear only on the petitioner’s claim that he inadequately understood the penal consequences of a guilty plea. Neither suggests that if counsel had performed flawlessly a conviction would not have resulted from a trial or a different penalty would have been imposed.
3. Hill’s Discussion of the Issue
The petitioner in Hill did not allege that he would not have pleaded if properly advised. For that reason, the United States Supreme Court found it “unnecessary to determine whether there may be circumstances under which erroneous advice by counsel as to parole eligibility may be deemed constitutionally ineffective assistance of counsel.” Hill, 474 U.S at 60. Hill thus declined to rule on the prejudice showing required for a claim of ineffective assistance based on defective advice as to the penal consequences.
Hill did, however, go on to observe that petitioner alleged “no special circumstances that might support the conclusion that he placed particular emphasis on his parole eligibility in deciding whether or not to plead guilty.” Id. The Court then observed that the petitioner’s assessment of his parole eligibility would have equally affected his view of the expected penal consequences of both a plea and a conviction after trial. Id. Unlike Hill, Segura has alleged that he would not have pleaded, but, like Hill, Segura has alleged no “special circumstances” as to why his decision was affected by the alleged omission of counsel. And, it is clear that here, as in Hill, the omitted or misdescribed penal consequences flow equally from either a plea or a conviction after trial.
4. Post-Hill Decisions
Hill himself ultimately prevailed in the Eighth Circuit on his claim that bad advice as to parole eligibility caused him to plead when he would not have done so if properly advised. After losing in the Supreme Court, Hill filed a second petition that cured the pleading defect identified in Hill by alleging that his guilty plea was caused by the bad advice. Ultimately, the Eighth Circuit affirmed the grant of habeas corpus. Hill v. Lockhart, 877 F.2d 698 (8th Cir. 1989). In the Eighth Circuit’s view:
To succeed under Strickland, Hill need not show prejudice in the sense that he probably would have been acquitted or given a shorter sentence at trial, but for his attorney’s error. All we must find here is a reasonable probability that the result of the plea process would have been different—that Hill “would not have pleaded guilty and would have insisted on going to trial.”

Id. at 704 (quoting Hill, 474 U.S. at 59). This was affirmed en banc by a five-to-four decision. Hill v. Lockhart, 894 F.2d 1009 (8th Cir. 1990). The Eighth Circuit later explained its holding in Hill in Hale v. Lockhart, 903 F.2d 545, 549 (8th Cir. 1990): “The holding in Hill, however, was narrow, and rested primarily on the district court’s finding that petitioner pleaded guilty as a direct consequence of his counsel’s erroneous advice and that, but for this advice, the outcome of the plea process would have been different.” Similarly, the Eleventh Circuit has held that prejudice is shown when a guilty plea is induced by a failure to advise that a guilty plea in state court would not preclude federal authorities from imposing sanctions for parole violations based on the same conduct. Finch v. Vaughn, 67 F.3d 909, 916-17 (11th Cir. 1995). Some courts have found no deficient performance in the failure to advise as to sentencing or penal consequences. United States v. Gordon, 4 F.3d 1567, 1570-71 (10th Cir. 1993); Ford v. Lockhart, 904 F.2d 458, 462-63 (8th Cir. 1990).
Faced with this uncertainty as to what needs to be alleged and how it may be proven, a number of other courts have rejected claims of prejudice after a guilty plea, holding it is insufficient for the petitioner, without more specific facts, merely to allege in postconviction proceedings that he would not have pleaded if he had been properly represented. Others reject claims that a plea would not have been entered when the record of the plea proceeding establishes that the sentencing parameters were known and the factual basis for the plea was established. United States v. Standiford, 148 F.3d 864, 869 (7th Cir. 1998); Arango-Alvarez v. United States, 134 F.3d 888, 892-93 (7th Cir. 1998) ; Jones v. Page, 76 F.3d 831, 844-45 (7th Cir. 1996). Some have formulated the test as whether a correct understanding of the law would have affected counsel’s recommendation to plead. See footnote All of these approaches, though phrased differently from the way we expressed it in Van Cleave, lead to the same ultimate conclusion as to the required showing of prejudice. If a change in counsel’s recommendation is the test, because a plea agreement is virtually assured to produce no worse penal consequences than a conviction after trial, a change in counsel’s recommendation would necessarily turn on an evaluation of whether an adequate legal performance would produce a reasonable chance of a better result from a trial. This formulation thus amounts to the same conclusion announced in Van Cleave: a showing of prejudice to upset a guilty plea requires a showing of a reasonable probability of a result of not guilty. Similarly, these cases in one way or another suggest that to show prejudice the petitioner’s allegation must controvert the record that he was told of the maximum penal consequence.
5. Prejudice from Advice that Omits or Misdescribes Penal Consequences
We have no clear guidance from the United States Supreme Court as to how to resolve these seemingly inconsistent theoretical approaches to evaluate prejudice from incorrect legal advice in the guilty plea setting. We see no reason to require revisiting a guilty plea if, at the end of the day, the inevitable result is conviction and the same sentence. Yet, we agree that in extreme cases, a credible scenario can be posited that results in a truly innocent defendant pleading guilty because of incorrect advice as to the consequences. The cases where a showing of prejudice from incorrect advice as to the inevitable consequences of conviction will be able to be made may be few. If such a circumstance is shown, however, the defendant should not be stripped of the presumption of innocence, the requirement of proof beyond a reasonable doubt, and the other procedural rights that are not available in postconviction proceedings. To require a showing of innocence to obtain a new trial would have that effect. Accordingly, we conclude that in order to state a claim for postconviction relief a petitioner may not simply allege that a plea would not have been entered. Nor is the petitioner’s conclusory testimony to that effect sufficient to prove prejudice. To state a claim of prejudice from counsel’s omission or misdescription of penal consequences that attaches to both a plea and a conviction at trial, the petitioner must allege, in Hill’s terms, “special circumstances,” See footnote or, as others have put it, “objective facts” See footnote supporting the conclusion that the decision to plead was driven by the erroneous advice.
We believe a showing of prejudice from incorrect advice as to the penal consequences is to be judged by an objective standard, i.e., there must be a showing of facts that support a reasonable probability that the hypothetical reasonable defendant would have elected to go to trial if properly advised. Nevertheless, as we understand Strickland and Hill as informed by Williams, a petitioner may be entitled to relief if there is an objectively credible factual and legal basis from which it may be concluded that “there is a reasonable probability that, but for counsel’s errors, he would not have pleaded guilty and would have insisted on going to trial.” Hill, 474 U.S. at 59.
In sum, for the reasons given in Part II, to prove this in the case of claims related to a defense or failure to mitigate a penalty, it must be shown that there is a reasonable probability that a more favorable result would have obtained in a competently run trial. However, for claims relating to penal consequences, a petitioner must establish, by objective facts, circumstances that support the conclusion that counsel’s errors in advice as to penal consequences were material to the decision to plead. Merely alleging that the petitioner would not have pleaded is insufficient. Rather, specific facts, in addition to the petitioner’s conclusory allegation, must establish an objective reasonable probability that competent representation would have caused the petitioner not to enter a plea. See Toro v. Fairman, 940 F.2d 1065, 1068 (7th Cir. 1991) (requiring objective evidence that a plea would have been accepted); see also United States v. Gordon, 156 F.3d 376, 380-81 (2d Cir. 1998) (affirming finding that the disparity between the sentence exposure represented by the attorney and the actual maximum sentence was objective evidence of prejudice, i.e., that defendant had rejected a beneficial plea agreement based on the erroneous advice). This case does not meet that standard. Segura offers nothing more than the naked allegation that his decision to plead would have been affected by counsel’s advice.

    DICKSON, J., and RUCKER, J., concur.
SULLIVAN, J., concurs in result with separate opinion in which SHEPARD, C.J., concurs.

Attorneys for Appellee

Jeffrey A. Modisett
Attorney General of Indiana

Teresa Dashiell Giller
Deputy Attorney General
Indianapolis, IN

JOSE DANIEL SEGURA,
Appellant (Defendant below),

v.

STATE OF INDIANA,
Appellee (Plaintiff below).

)
)    Supreme Court No.
)    10S01-0009-PC-515
)
)    
)    
)
)
)

    APPEAL FROM THE CLARK SUPERIOR
    The Honorable Cecile Blau, Judge
    Cause No. 10D02-9203-CF-030

As the majority also points out, Hill goes on to say that in the case of many commonly alleged errors of counsel, “the resolution of the ‘prejudice’ inquiry will depend largely on whether the affirmative defense likely would have succeeded trial.” Id. I agree with the majority that this statement in Hill – along with the analysis that supports it – means that a defendant who pled guilty after erroneous advice by counsel that, if corrected, would raise an affirmative defense must show a reasonable probability of a more favorable result at trial in order to show prejudice and obtain relief.

I also agree with the majority that this prejudice test applies not just to counsel’s shortcomings affecting a defense but also to errors or omissions that have the result of overlooking evidence or circumstances that affect the sentence imposed. In those situations, too, I agree that prejudice from the decision to plead is measured by evaluating the probability of success of the omitted defense or evidence.

I part company from the majority when it adopts a different, more lenient, standard for prejudice with respect to claims arising from counsel’s legal advice with respect to penal consequences. For these claims, the majority would not require a showing that, if the defendant had gone to trial, there would have been a reasonable probability of a more favorable result. It is enough, in such circumstances, the majority says, for the defendant to show merely that a “hypothetical reasonable defendant” would not have plead guilty and insisted on going to trial. I would require a showing of a reasonable probability of a more favorable result in these circumstances as well.

The majority finds the basis for differentiating claims as to penal consequences from other claims in Hill. My reading of Hill is different.

Hill involved a claim that counsel had not advised the defendant accurately as to the date he would be eligible for parole. The Court did not reach the merits of this claim because the petitioner had not alleged in his habeas petition that if he had been properly advised as to his parole eligibility, he would not have pled guilty and insisted on going to trial. Hill, 474 U.S at 60. Nor had he alleged any “special circumstances that might support the conclusion that he placed particular emphasis on his parole eligibility in deciding whether or not to plead guilty.” Id. Absent such a claim or special circumstances, the Court said, the “petitioner’s allegations [were] insufficient to satisfy the Strickland v. Washington requirement of ‘prejudice.’” Id.

The majority reads this analysis to mean that the “reasonable probability of a more favorable result” that the court used earlier in the Hill opinion does not apply to claims involving counsel's errors or omissions concerning the penal consequences of the guilty plea. I think a better reading from the structure and language of Hill is that the “reasonable probability of a more favorable result” test applies to all claims but that it was not necessary to even reach the test in Hill because the threshold requirement of alleging that the petitioner would have pled not guilty and insisted on going to trial was not met.

That having been said, I think there is broad agreement between the majority and myself as to how a court approaches a claim of ineffective assistance of counsel in respect of the guilty plea. First, the petitioner has the burden of demonstrating that counsel's performance was deficient. (We leave that question open in this case.) Second, the petitioner has the burden of demonstrating a reasonable probability that the hypothetical reasonable defendant would not have pled guilty and elected to go to trial if properly advised. It is only after those two hurdles are cleared that the majority’s and my disagreement is reached. I would require an additional showing by the petitioner of a reasonable probability of a more favorable result at trial in all such claims; the majority would not require such a showing in claims of errors or omissions in respect of penal consequences.

SHEPARD, C.J., concurs.