Immigrant’s guilty plea withdrawal denied despite ineffective counsel

The Indiana Court of Appeals has reaffirmed the denial of a man’s petition to withdraw his guilty plea after determining the man failed to establish he was prejudiced by his counsel’s failure to adequately warn him of the threat of deportation before entering into a guilty plea.

Umesh Kaushal is an India native who has lived in the United States for nearly a decade. Kaushal has a green card and owns several convenience stores in Indianapolis which he uses to help support his mother.

In May 2016, Kaushal agreed to plead guilty to Level 4 felony child molesting, but later withdrew from the agreement after learning he would serve jail time and would not be able to continue helping his mother. He then entered another plea agreement in June that would impose a four-year suspended sentence and was advised of the risk that pleading guilty could have immigration consequences, including the possibility of deportation.  

Though Kaushal signed the agreement – which included a written version of the immigration warning – he moved on July 22 to withdraw his plea after an immigration attorney told him he would likely be immediately “picked up” by immigration officials for his conviction. During a hearing on his motion, Kaushal testified 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.” His original counsel, however, claimed 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.

The Marion Superior Court ultimately determined that even though the state conceded Kaushal’s attorney ineffectively advised him of the immigration consequences of pleading guilty, Kaushal failed to establish that he was prejudiced by his attorney’s advice. The Indiana Court of Appeals upheld that decision in its original July 2017 ruling, https://www.in.gov/judiciary/opinions/pdf/07181701par.pdf concluding Kaushal had not demonstrated adequate prejudice because he had been advised of the possibility that he could be deported if he pleaded guilty.

The Indiana Supreme Court denied Kaushal’s transfer petition, but the United States Supreme Court remanded the case for reconsideration in light of Jae Lee v. United States, U.S. ___ [, 137 S. Ct. 1958] (2017). On remand, the appellate court reaffirmed its original holding, finding once again that Kaushal failed to establish he was prejudiced by his counsel’s performance such that his guilty plea must be set aside.

“The contemporaneous evidence in the record reflects that avoiding imprisonment, not deportation, was the determinative issue for Kaushal in resolving his criminal case and ultimately deciding to enter a guilty plea,” Judge Patricia Riley wrote Friday. “…Kaushal testified at a hearing in this matter that he pled guilty because he was afraid of going to prison… .”

The appellate court also noted that unlike in Jae Lee, Kaushal exhibited no confusion about the terms of his plea agreement during his plea colloquy with the court and confirmed that he had read the plea agreement and understood it.

“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,” Riley continued. “Rather, the opposite is true because his plea agreement guaranteed that he would not be imprisoned.”

“…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,” Riley concluded. “…As such, the trial court did not err in declining to set aside his guilty plea.”

The case is Umesh Kaushal v. State of Indiana, 49A04-1612-CR-2862. https://www.in.gov/judiciary/opinions/pdf/10051801par.pdf