Suarez contends that his trial counsel was ineffective for failing to advise him before he pled guilty that he could be deported to Mexico following discharge of his sentence. In Segura v. State, 749 N.E.2d 496, 507 (Ind. 2001), the Supreme Court created two categories of ineffective assistance of counsel claims relating to guilty pleas, applying different treatments to each respective category depending on whether the ineffective assistance allegation related to (1) a defense or failure to mitigate a penalty, or (2) an improper advisement of penal consequences. See Willoughby v. State, 792 N.E.2d at 560, 563 (Ind. Ct. App. 2003), trans. denied. Suarez’s claim is of the second type.
In such cases, the Indiana Supreme Court has stated 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 … “special circumstances,” or, as others have put it, “objective facts” 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, … 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 [v. Lockhart], 474 U.S. [52,] 59 [(1985)].
Segura, 749 N.E.2d at 507 (footnote omitted).
In addition to any special circumstances shown by the defendant, we also think it appropriate to consider the strength of the State’s case. It is apparent that any reasonable defendant would take this into account when pondering a guilty plea. When evaluating the likelihood of conviction or acquittal, such “predictions of the outcome at a possible trial, where necessary, should be made objectively, without regard for the ‘idiosyncrasies of the particular decisionmaker.’” Hill, 474 U.S. at 59-60 (quoting Strickland, 466 U.S. at 695). Finally, we think it also appropriate to consider the benefit conferred upon the defendant by his guilty plea. It seems clear that any reasonable person’s decision whether to plead guilty, regardless of incorrect advisements about some penal consequences, would be informed by this consideration. See, e.g., Hacker v. State, 906 N.E.2d 924, 928 (Ind. Ct. App. 2009), trans. denied (“Hacker clearly benefitted from his plea agreement. We believe this is a proper consideration under Segura for rejecting Hacker’s contention that he was objectively prejudiced by trial counsel’s misadvice regarding the maximum sentence he faced.”).
Here, as a threshold matter, we conclude that Suarez established special circumstances that would have affected a reasonable person’s decision to plead guilty. It is undisputed that Suarez’s wife is blind and in poor health and that he was her primary caregiver. Moreover, it should be noted that deportation can be a very serious penal consequence, with the United States Supreme Court recognizing that it is, at least in some cases, “‘the equivalent of banishment or exile[.]’” [Footnote omitted.] Padilla v. Kentucky, ––– U.S. –––, 130 S.Ct. 1473, 1486 (2010) (quoting Delgadillo v. Carmichael, 332 U.S. 388, 390-391 (1947)). Were Suarez to be deported, it would be far more difficult for him to provide for his ailing wife, and he would be leaving a country that has been his home since 1955. On the other hand, as the trial court noted at sentencing, Suarez appears to have a large family that could care for his wife in his absence.
Second, based on the record before us, we conclude that Suarez’s objective probability of success at trial was fairly low. Although Attorney Arata mentioned several possible avenues of defense for Suarez (presumably suggested by Suarez), he did not claim that any were particularly substantiated and none was supported by any other evidence in the record. There was no evidence that the alleged victim had been coached to lie or that her story had changed over time. Additionally, there was some physical evidence, in the form of a vaginal scratch, consistent with the allegation that Suarez had digitally penetrated the victim. On the whole, the case seems objectively solid with no obvious weaknesses for a type of case, which will often be tried with a lack of physical evidence and/or an alleged victim with known credibility issues.
As for the benefit conferred upon Suarez by his guilty plea, it was substantial, to say the least. Had Suarez been convicted of Class A felony child molesting, under the facts of this case he would have served a minimum of twenty-five actual years in prison. Because the alleged victim in this case was under the age of twelve and Suarez over the age of twenty-one, his base sentence would have been a minimum of thirty years of incarceration. See Ind. Code § 35-50-2-2(i). Moreover, Suarez, had he been convicted as charged, would have been a credit restricted felon and therefore could never have earned any more than one day of credit time for each six days served. See Ind. Code §§ 35-41-1-5.5 (2009); 35-50-6-3(d) (2009); 35-50-6-4(b) (2009). On the high end, Suarez could have received a fifty-year sentence, of which he would have had to serve approximately 41.7 years.
As it happened, Suarez pled guilty to a Class C felony, which meant that his sentence would range from two to, at most, eight years. [Footnote omitted.] . . . .
Given the above, we conclude that a reasonable defendant’s decision to plead guilty would not have been affected by the knowledge of the risk of deportation. While deportation would be a great inconvenience for Suarez, it is reasonable to assume that he would be in a better position to provide for his wife from Mexico than from prison. Finally, the extraordinarily large benefit Suarez received in exchange for his guilty plea cannot be denied, and, in our view, overwhelms all other considerations in this case. Suarez has failed to establish that he was prejudiced by his trial counsel’s failure to advise him of the risk of deportation.
CRONE, J., and BROWN, J., concur.