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 Court of Appeals of Indiana | Opinion on Remand 49A04-1612-CR-2862 | October 5, 2018 Page 1 of 11 [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. Court of Appeals of Indiana | Opinion on Remand 49A04-1612-CR-2862 | October 5, 2018 Page 2 of 11 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 ...
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