Clarke contends that the failure to explain the full penal consequences, including the risk of deportation, caused him to accept a plea agreement that he would have rejected following a full advisement. Because he was convicted pursuant to a guilty plea, we must analyze his claim under Segura v. State, 749 N.E.2d 496 (Ind. 2001). Segura categorizes two main types of ineffective assistance of counsel cases, the second of which applies here. Smith v. State, 770 N.E.2d 290 (Ind. 2002). This category relates to “an improper advisement of penal consequences,” and is divided into two subcategories: (1) “claims of intimidation by exaggerated penalty or enticement by an understated maximum exposure” and (2) “claims of incorrect advice as to the law.” Trujillo v. State, 962 N.E.2d at 114 (quoting Willoughby v.
State, 792 N.E.2d 560, 563 (Ind. Ct. App. 2003), trans. denied). Clarke’s challenge falls into the second category.
Our Supreme Court held in Segura that in order to state a claim for post-conviction relief under this subcategory, a petitioner may not simply allege that he or she would not have entered into a guilty plea, nor is the petitioner’s conclusory testimony to that effect sufficient to prove prejudice. Rather, the petitioner must “establish, by objective facts, circumstances that support the conclusion that [trial] counsel’s errors in advice as to penal consequences were material to the decision to plead.” Segura v. State, 749 N.E.2d at 507. In so doing, the petitioner “must establish an objective reasonable probability that competent representation would have caused the petitioner not to enter a plea.” Id. In undertaking this analysis, we focus upon whether the petitioner proffered specific facts indicating that a reasonable defendant would have rejected the petitioner’s plea had the petitioner’s trial counsel performed adequately. See Willoughby v. State, 792 N.E.2d 560. Finally, our Supreme Court determined in Segura that the failure to advise a client of the possibility of deportation in the event of a conviction may, under certain circumstances, constitute ineffective assistance of counsel.
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. . . The “special circumstance” cited as supporting the grant of Sial’s postconviction petition was the fact that he had a wife and daughter living in the United States. [Footnote omitted.] The court explained it thus:
Here, Sial testified that he has a wife and a thirteen-year-old daughter. Inasmuch as Sial has been in the United States for over twenty years, we infer that his daughter was likely born here and, consequently, would be an American citizen. If deported, Sial would be forced either to leave his wife and child behind or to uproot them from this country—most likely the only home his daughter has ever known. We believe that these are sufficient special circumstances and specific facts to establish a reasonable probability that if Sial’s attorney had advised him that deportation is a possible consequence of a felony conviction, Sial would have chosen to proceed to trial rather than to plead guilty.
Sial v. State, 862 N.E.2d at 706 (internal citation omitted).
. . . .
Beginning with the length of time that the thirty-three-year-old Clarke has lived in the United States, we do not find a span of eleven years to be so long, in and of itself, as to compel a finding of special circumstances. See Trujillo v. State, 962 N.E.2d 110 (rejecting the non-citizen defendant’s argument that special circumstances justified setting aside his guilty plea, where he was fifty-two years old and had lived in the United States for approximately thirty-six years). As for the claim that he would have eschewed a guilty plea because such would have created the possibility that he would never see his two children again, we note that Clarke’s guilty plea was entered in December 2007. At that time, Clarke had not yet seen either of his children, as both were still in-utero in December 2007. The oldest was born approximately one month later, and the second was born approximately six months later. Moreover, he was not married to either of the women who were carrying his children. Although we cannot say precisely how, surely these particular circumstances change the equation and weaken his case for the existence of special circumstances based upon relationships with his children. Even assuming that Clarke has established special circumstances, however, we are not therefore obliged to set aside the guilty plea.
This court has recently determined in this context that, “[i]n addition to any special circumstances shown by the defendant, we also think it appropriate to consider the strength of the State’s case.” Suarez v. State, 967 N.E.2d 552, 556 (Ind. Ct. App. 2012), trans. pending. . . . .
. . . .
The evidence against Clarke included the contraband, the large amount of cash found in the vehicle, and, we presume, the testimony of the two officers at the scene of the stop and arrest. Based upon the nature and strength of this evidence, we conclude that the objective probability of success at trial was low. Moreover, Clarke received a significant benefit in exchange for his guilty plea. The State agreed to reduce the dealing charge from a class A to a class B felony, and agreed to dismiss the marijuana charge and the resisting charge. The reduction in the dealing charge alone reduced his sentence exposure from an advisory sentence of thirty years to an advisory sentence of ten years. As it was, he was sentenced to six years, all suspended, and two years on probation. In summary, Clarke received a substantial benefit from his guilty plea.
Even assuming Clarke has established special circumstances with respect to his unborn children, considering the strength of the evidence against him and the significant benefit conferred upon him under the plea agreement, we conclude that the knowledge of the risk of deportation would not have affected a reasonable defendant’s decision to plead guilty.
BROWN, J., and DARDEN, SENIOR JUDGE, concur.