Disciplinary Counsel v. Perrico ( 2024 )

[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as
Disciplinary Counsel v. Perrico, Slip Opinion No. 2024-Ohio-1540.]
NOTICE
This slip opinion is subject to formal revision before it is published in an
advance sheet of the Ohio Official Reports. Readers are requested to
promptly notify the Reporter of Decisions, Supreme Court of Ohio, 65
South Front Street, Columbus, Ohio 43215, of any typographical or other
formal errors in the opinion, in order that corrections may be made before
the opinion is published.
SLIP OPINION NO. 2024-OHIO-1540DISCIPLINARY COUNSEL v. PERRICO.
[Until this opinion appears in the Ohio Official Reports advance sheets, it
may be cited as Disciplinary Counsel v. Perrico, Slip Opinion No.
2024-Ohio-1540.]
Attorneys—Misconduct—Violations of the Rules of Professional Conduct—Two-
year suspension with one year conditionally stayed.
(No. 2023-1274—Submitted November 14, 2023—Decided April 25, 2024.)
ON CERTIFIED REPORT by the Board of Professional Conduct of the Supreme
Court, No. 2023-002.
______________
Per Curiam.
{¶ 1} Respondent, Daniel Edward Perrico, of Westlake, Ohio, Attorney
Registration No. 0071617, was admitted to the practice of law in Ohio in 1999.
{¶ 2} In a February 2023 complaint, relator, disciplinary counsel, charged
Perrico with two ethical violations arising from an incident in which he provided
alcohol to his stepdaughter, who was under the age of 18, and two of her friends,
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both of whom were under 21, and also inappropriately touched one of those friends.
As a result of the same conduct, Perrico was criminally charged with three counts
of furnishing alcohol to an underage person and one count of sexual imposition.
He entered guilty pleas to two counts of furnishing alcohol to an underage person
(the count involving his stepdaughter was dismissed) and an amended count of
assault.
{¶ 3} Although Perrico’s convictions have been sealed by court order, he
has waived any claim of privacy, consented to the release of the sealed records for
use in this proceeding, and admitted to his convictions. The parties submitted
stipulations of fact and nine stipulated exhibits, and the matter proceeded to a
hearing before a three-member panel of the Board of Professional Conduct. Based
on the stipulations, exhibits, and the hearing testimony of Perrico, the three young
women to whom he furnished alcohol, and Perrico’s former wife, the panel found
that Perrico committed the charged misconduct. The panel recommended that
Perrico be suspended from the practice of law for two years, with one year
conditionally stayed, and that certain conditions be placed on his reinstatement to
the profession. The board adopted the panel’s report and recommendation, and no
objections have been filed. After a thorough review of the record, we adopt the
board’s findings of misconduct and the recommended sanction.
MISCONDUCT
{¶ 4} T.B. was three years old when Perrico married her mother, K.P., in
September 2007. T.B. had a complicated relationship with her biological father
and considered Perrico as her father.
{¶ 5} In the spring of 2019, T.B. was a freshman in high school. While
participating on her high-school track team, she met and befriended two other girls,
C.P. and B.R., both of whom were seniors. Like T.B., those friends had
complicated family relationships and began to regard Perrico as a father figure in
whom they could confide. For example, C.P. and T.B. told Perrico that T.B. had
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been allowed to drive B.R.’s car and drove it into a ditch, though the car was not
damaged. T.B. also told Perrico that she drank alcohol during a party at B.R.’s
home around the time C.P. and B.R. graduated from high school in June 2019. In
addition, C.P. told Perrico that she was interested in attending culinary school, and
Perrico agreed to teach her how to cook some of his recipes. Moreover, both C.P.
and B.R. had Perrico’s cellphone number. They did not, however, have a similarly
close relationship with T.B.’s mother.
{¶ 6} Following their graduation in June 2019, C.P. and B.R. maintained
their friendship with T.B. One Friday in September 2019, they made plans to spend
the night at T.B.’s house while her mother was out of town. At that point, Perrico
was 45 years old, B.R. and C.P. were 18, and T.B. was only 15. That evening,
while T.B. was at a high-school football game and B.R. was at work, C.P. went to
T.B.’s house to learn how to make one of Perrico’s recipes. Upon her arrival,
Perrico directed C.P. to surrender her keys. At times while Perrico and C.P. were
cooking, he stood close to her and caressed her arms. He also gave her alcoholic
mixed drinks and shots.
{¶ 7} T.B. returned home from the football game at approximately 10:00
p.m., and Perrico gave her alcoholic mixed drinks and shots and provided C.P. with
additional drinks; both young women were intoxicated by the time B.R. arrived at
the house around midnight. Upon B.R.’s arrival, Perrico directed her to surrender
her keys. At some point that evening, Perrico handed B.R. an alcoholic drink and
told her that she had to drink it as punishment for allowing T.B. to drink alcohol
during B.R.’s graduation party. Perrico provided B.R. with additional alcoholic
drinks throughout the night. He played drinking games with all three young
women, and both C.P. and B.R. drank to the point that they got sick from the alcohol
they had consumed.
{¶ 8} C.P. went into the bathroom in the basement of Perrico’s house, while
B.R. went into a bathroom upstairs. Perrico went into the basement bathroom with
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C.P. During Perrico’s disciplinary hearing, C.P. testified that Perrico sat down next
to the toilet, pulled her “into his lap,” and then started touching her over her clothes
on the vagina, thighs, breasts, and arms. C.P. also testified that while Perrico was
in the bathroom with her, he said, “All the dirty things I could do to you right now.”
{¶ 9} T.B. went down to the basement to check on C.P. several times. She
testified that each time, she found the bathroom door was closed, even though she
left it open every time she went back upstairs to check on B.R; in his testimony,
Perrico denied that he closed the door and suggested that C.P. had kicked it shut.
Eventually, Perrico and T.B. moved C.P. out of the bathroom. T.B. testified that
she took C.P.’s feet and that she saw Perrico put his arms under C.P.’s armpits and
place his hands on her breasts. After they placed C.P. onto a couch in the basement,
T.B. told Perrico that she could manage without his assistance. Perrico left the
basement and did not return.
{¶ 10} On Saturday morning, C.P. and B.R. got up and left Perrico’s house
at around 8:00 a.m. That day, B.R. was very sick with a kidney infection and stayed
at C.P.’s apartment. C.P. texted Perrico, stating, “U killed [B.R.] she never drinks
that much and now shes dying.” (Spelling and punctuation sic.) Perrico replied by
text, stating, “I have no idea what you’re talking about?” That statement was
followed by a smiley-face emoji with a halo over it. C.P. texted Perrico again,
stating, “U broke my best friend shes at my house dying.” (Spelling and
punctuation sic.)
{¶ 11} Over the next couple of months, C.P., who lived alone and
apparently had no family support, texted Perrico to ask if he was willing to give her
money to pay her rent and cosign on a loan for a car. The board noted that not only
did C.P. feel close enough to Perrico to ask him for a loan, but that Perrico’s text
messages to her suggested that he actually gave her money for her rent.
{¶ 12} At some point, C.P. told B.R. and T.B. what Perrico had done to her,
but the young women agreed not to tell anyone else what had happened because
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T.B. was fearful that disclosure of the events of that night might end her mother’s
already strained marriage to Perrico. Upset about Perrico’s conduct with C.P., T.B.
was diagnosed with anxiety and began seeing a therapist.
{¶ 13} In early February 2020, T.B. finally told her mother what had
happened during the sleepover. After meeting with her attorney, T.B.’s mother
demanded that Perrico leave the marital residence. Later that month, T.B., C.P.,
and B.R. met with a Summit County sheriff’s deputy. The deputy had C.P. place a
recorded phone call to Perrico. During that call, C.P. accused Perrico of getting her
“wasted,” grabbing her “boob,” and rubbing her leg. Perrico did not deny the
accusations at any time during the recorded call. Instead, he stated that he did not
recall doing any of those things, and that if he had done those things, he was sorry.
At his disciplinary hearing, however, Perrico adamantly denied C.P.’s accusations.
{¶ 14} On February 24, 2020, Perrico was charged in the Stow Municipal
Court with three counts of furnishing alcohol to an underage person, and one count
of sexual imposition. That same day, T.B.’s mother filed for divorce. Perrico later
asked the municipal court to amend the sexual-imposition charge, a third-degree
misdemeanor, to a first-degree-misdemeanor charge of assault. The board noted
that a conviction of the lesser offense of sexual imposition would have caused
Perrico to be classified as a sex offender and subjected him to sex-offender
registration requirements under R.C. Chapter 2950. Perrico pleaded guilty to two
counts of furnishing alcohol to an underage person and the amended count of
assault. The third count of furnishing alcohol was dismissed because T.B. was
Perrico’s stepdaughter.
{¶ 15} In June 2020, Perrico was sentenced to a 180-day suspended jail term
and 12 months of community control for each of the three counts of which he was
convicted. He was also ordered to pay fines and court costs and to have no contact
with C.P. and B.R. He received an early release from his community control, and
his convictions were sealed prior to relator’s filing of the complaint in this case.
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Following the final divorce hearing, his former wife, K.P., also an attorney,
reported Perrico’s convictions to relator.
{¶ 16} The board found that Perrico’s disciplinary-hearing testimony
regarding his role in the young women’s drinking and his conduct with C.P. was
either not credible or contradicted his prior statements in at least four respects.
{¶ 17} First, the board found that Perrico admitted during his disciplinary
hearing that he had provided alcohol to the young women and that it was a bad
decision and against the law. However, the board also noted that Perrico attempted
to portray his role in the young women’s underage drinking as passive and that he
suggested that they were experienced drinkers who drank voluntarily that night.
While he admitted that he had provided mixed drinks and shots to C.P., Perrico also
testified that he was “not sure” if he had poured drinks for T.B., and he denied that
he had “actually poured” shots for the young women. Perrico also suggested that
T.B. “was very comfortable pouring her own drinks” and that she had poured shots
for people. However, C.P. and T.B. testified that they had little experience with
alcohol, and all three young women testified that Perrico was the one pouring the
alcohol and encouraging them to drink.
{¶ 18} Second, the board noted that during his disciplinary hearing, Perrico
admitted that he had said, “All the things I could do to you” to C.P. but that he also
claimed that he had made the statement when he and C.P. were in the kitchen
“sparring and playing around.” Although he claimed that the statement was not
sexual in nature, he offered no explanation for why he made it. Nor did he explain
what he meant by “sparring and playing around.” The board concluded that
Perrico’s statement indicated that “he was interested in having a sexual relationship
with C.P.” and that “[t]here is simply no other reasonable context for that remark.”
{¶ 19} Third, the board found that Perrico’s adamant denial before the panel
of improperly touching C.P. was not credible given his failure to deny those
allegations when raised by C.P. during the recorded telephone call. In his testimony
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before the panel, Perrico suggested that he had failed to deny the allegations
because he received the call at 1:00 a.m. and was groggy from sleeping pills that he
had taken earlier that night. But citing Perrico’s testimony that he believed T.B.
was listening to the call and that he was trying to “get a message to her,” the board
concluded that he was “thinking clearly” during the call. The board also
emphasized that during the call, Perrico apologized for alleged misconduct that he
claimed he had no recollection of committing.
{¶ 20} Finally, Perrico testified that he had pleaded guilty to the assault
charge because, in his mind, he felt that giving C.P. alcohol, which caused her to
get sick, was a form of assault. But in his written response to relator’s letter of
inquiry in November 2021, he stated that he had entered his guilty plea to avoid
any risk of being convicted of sexual imposition and labeled a sex offender. And
during his deposition just one month before his disciplinary hearing, he testified
that the assault he pleaded guilty to was “an unwanted touch apparently.”
{¶ 21} Given the multiple inconsistencies in Perrico’s statements and
testimony, the board found the testimony of C.P., T.B., and B.R. to be more
credible. Citing C.P.’s testimony, the board found that Perrico had touched C.P. in
a sexual manner and that his conduct constituted sexual imposition, a third-degree
misdemeanor, even though he was not convicted of that offense. All told, Perrico’s
conduct with C.P. and B.R. that night resulted in the commission of three
misdemeanor offenses against young women who looked up to him as a father
figure.
{¶ 22} On these facts, the board found by clear and convincing evidence
that Perrico violated Prof.Cond.R. 8.4(b) (prohibiting a lawyer from committing an
illegal act that reflects adversely on the lawyer’s honesty or trustworthiness).
Furthermore, the board concluded that the conduct giving rise to that violation was
sufficiently egregious under Disciplinary Counsel v. Bricker, 137 Ohio St.3d 35,
2013-Ohio-3998, 997 N.E.2d 500, ¶ 21, to warrant an additional finding that
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Perrico’s conduct violated Prof.Cond.R. 8.4(h) (prohibiting a lawyer from engaging
in conduct that adversely reflects on the lawyer’s fitness to practice law). We adopt
these findings of misconduct.
RECOMMENDED SANCTION
{¶ 23} When imposing sanctions for attorney misconduct, we consider all
relevant factors, including the ethical duties that the lawyer violated, the
aggravating and mitigating factors listed in Gov.Bar R. V(13), and the sanctions
imposed in similar cases.
{¶ 24} In this case, the board has found that three aggravating factors are
present. First, Perrico acted with a selfish and dishonest motive. See Gov.Bar R.
V(13)(B)(2). Knowing that it was against the law, he furnished alcohol to underage
females and “aggressively pushed them to drink.” He then took advantage of C.P.’s
intoxication to advance his interest in a sexual relationship with her. Perrico also
failed to acknowledge the wrongful nature of his misconduct and attempted to walk
back some of the admissions he had made to relator. See Gov.Bar R. V(13)(B)(7).
Furthermore, Perrico caused harm to three vulnerable young women who looked
up to him as a father figure. See Gov.Bar R. V(13)(B)(8). He purposely furnished
them with alcoholic mixed drinks and shots of liquor and urged them to drink,
knowing that the alcohol would impair their judgment. Perrico’s planned and
predatory conduct made C.P. and B.R. physically ill. It also gave him the
opportunity to be alone with C.P. and to engage in unwelcome sexual contact with
her.
{¶ 25} Although the criminal charge for furnishing alcohol to T.B. was
dismissed because Perrico was her stepfather, she was also a victim of his
misconduct. She had been diagnosed with an anxiety disorder for which she was
still being treated at the time of the panel hearing, nearly four years after the incident
giving rise to this case. Moreover, the board’s report noted that T.B.’s testimony
was emotional and that she was “clearly devastated” by the loss of the only father
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figure she had ever known—a man who essentially called her a liar on the witness
stand.
{¶ 26} As for mitigating factors, Perrico has no prior discipline. See
Gov.Bar R. V(13)(C)(1). He exhibited a cooperative attitude toward the
disciplinary proceedings by consenting to the reopening of his sealed criminal
convictions, waiving any objections to the admission of the case file and testimony
related to his convictions, and traveling to Columbus for his deposition. See
Gov.Bar R. V(13)(C)(4). Perrico also had other penalties or sanctions imposed for
his misconduct—namely, the community control, fines, and costs imposed for his
criminal convictions. See Gov.Bar R. V(13)(C)(6).
{¶ 27} Although Perrico presented the testimony of one character witness
and letters from two others, the board declined to afford any mitigating effect to
that evidence given the witnesses’ apparent lack of knowledge regarding Perrico’s
criminal convictions or the allegations in relator’s complaint.
{¶ 28} “[T]he primary purpose of disciplinary sanctions is not to punish the
offender, but to protect the public.” Disciplinary Counsel v. O’Neill, 103 Ohio
St.3d 204, 2004-Ohio-4704, 815 N.E.2d 286, ¶ 53. In this case, relator urged the
board to recommend a suspension of two years with 12 months stayed on the
condition that Perrico engage in no further misconduct. Perrico argued that if he is
found to have committed any ethical violations, his misconduct warrants no more
than a public reprimand or fully stayed suspension.
{¶ 29} In determining the appropriate sanction for Perrico’s misconduct, the
board noted that this court has not previously disciplined an attorney convicted of
furnishing alcohol to underage persons. The board considered three cases in which
we imposed fully stayed suspensions on attorneys for single violations of
Prof.Cond.R. 8.4(b) or 8.4(h) arising from misdemeanor offenses, including
assault, permitting drug abuse, and solicitation. See Disciplinary Counsel v.
Camboni, 145 Ohio St.3d 395, 2016-Ohio-653, 49 N.E.3d 1284 (imposing a
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conditionally stayed one-year suspension based on an attorney’s misdemeanor
conviction for assault); Cincinnati Bar Assn. v. Glaser, 146 Ohio St.3d 102, 2016-
Ohio-3052, 52 N.E.3d 1186 (imposing a conditionally stayed six-month suspension
on an attorney convicted of attempting to permit drug abuse in her home);
Disciplinary Counsel v. Hillis, 139 Ohio St.3d 319, 2014-Ohio-2113, 11 N.E.3d
1156 (imposing a conditionally stayed six-month suspension on an elected part-
time city law director who pleaded no contest to misdemeanor offenses of
solicitation and criminal trespass after he was found with a known prostitute in his
parked car on private property).
{¶ 30} In contrast to the three aggravating factors present in this case, there
were no aggravating factors present in Glaser or Hillis, and just one in Camboni—
a conviction for driving while intoxicated during the pendency of the disciplinary
proceedings. See Glaser at ¶ 8; Hillis at ¶ 4; Camboni at ¶ 9. And in addition to
the mitigating factors present here, Camboni did not act with a selfish or dishonest
motive, Camboni at ¶ 9, Glaser presented evidence of her good character, Glaser at
¶ 8, and Hillis made a timely, good-faith effort to rectify his misconduct, presented
evidence of his good character, and established a qualifying mental disorder, Hillis
at ¶ 4.
{¶ 31} The board found that the misconduct in this case was more serious
than the misconduct at issue in Camboni, Glaser, and Hillis, because Perrico’s
actions were “preplanned, predatory, and committed against vulnerable young
victims who considered him to be a father figure.” Moreover, Perrico’s testimony
on many issues during his disciplinary hearing was simply not credible.
{¶ 32} The board found that the facts of this case were more comparable to
those of Cincinnati Bar Assn. v. Kenney, 110 Ohio St.3d 38, 2006-Ohio-3458, 850
N.E.2d 60. In that case, a 21-year-old man accused Kenney of having unlawful
sexual contact with him. Id. at ¶ 5. Kenney initially denied the allegations in a
police interview, but he later confessed that he had touched the victim’s stomach
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while the victim was sleeping on a sofa in Kenney’s home. Id. He ultimately
pleaded guilty to a single third-degree-misdemeanor count of sexual imposition.
Id. at ¶ 3.
{¶ 33} Kenney was sentenced to 60 days in jail, with 50 days suspended,
and two years of probation that required him to participate in “psychological
therapy and complete an outpatient drug program.” Id. Based on the conduct
underlying his conviction, we found that he violated former disciplinary rules that
prohibited lawyers from engaging in illegal conduct involving moral turpitude and
conduct involving dishonesty, fraud, deceit, or misrepresentation. Id. at ¶ 12; see
former DR 1-102(A)(3) and (4). Like Perrico, Kenney acted with a selfish or
dishonest motive and caused harm to a vulnerable victim after a night of
overindulging in alcohol. Kenney at ¶ 9. But Kenney’s misconduct involved only
a single victim. And in contrast to Perrico, Kenney made additional efforts to
rectify the consequences of his wrongdoing beyond pleading guilty to his
underlying criminal conduct; he commenced alcohol-abuse and behavioral-
modification counseling. Id. at ¶ 8. He also submitted numerous letters in support
of his good character. Id. We suspended Kenney from the practice of law for two
years with 18 months stayed on conditions related to maintaining his sobriety. Id.
at ¶ 13.
{¶ 34} Citing the “preplanned [and] predatory” nature of Perrico’s
misconduct, the vulnerability of the young victims, Perrico’s refusal to admit that
his conduct violated the Rules of Professional Conduct, and the fact that his
testimony on many issues was not credible, the board concluded that an actual
suspension is necessary to protect the public. The board therefore recommends that
we suspend Perrico for two years with one year stayed. In addition, the board
recommends that his reinstatement be conditioned on proof that he has submitted
to an alcohol-abuse assessment conducted by the Ohio Lawyers Assistance
Program (“OLAP”) or a qualified chemical-dependency professional and complied
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with any treatment recommendations and/or OLAP contract arising from that
evaluation.
{¶ 35} In Disciplinary Counsel v. Carter, __ Ohio St.3d __, 2023-Ohio-
3992, __ N.E.3d __, we recently disciplined an attorney who lured the mother of a
client’s child to his office under the false pretense of discussing the client’s case
and then coerced her into engaging in a sexual act to “reward” him for his legal
work. Id. at ¶ 10-13. During a police interview, Carter falsely denied having had
any sexual contact with the victim; but when confronted with evidence to the
contrary, he placed all the blame for his misconduct on his victim and claimed that
the sexual activity was consensual. Id. at ¶ 15. In contrast to Perrico, Carter was
never criminally charged for the misconduct underlying his disciplinary case. Id.
at ¶ 22. Nevertheless, we found that Carter’s continued refusal to acknowledge the
seriousness and wrongfulness of his conduct undermined confidence in the legal
profession and that he posed a continuing threat to his clients and the public. Id. at
¶ 41. Over Carter’s objection, and in light of many of the same aggravating and
mitigating factors present in this case, we rejected the board’s recommendation that
he be suspended from the practice of law for six months and instead suspended him
for two years with one year conditionally stayed. Id. at ¶ 30, 41.
{¶ 36} In contrast to Carter, the misconduct at issue in this case was entirely
unrelated to Perrico’s practice of law. However, his predatory conduct is arguably
more egregious because he exploited the trust that three underage young women
had placed in him, knowingly plied them with alcohol to the point that two of them
were physically ill and/or passing out, and then made a sexually charged comment
about “all of the dirty things” he could do to one of the young women before
inappropriately touching her body. Perrico’s failure to acknowledge the wrongful
nature of his misconduct—and more specifically his disciplinary-hearing testimony
attempting to minimize his conduct, blame his victims for his misconduct, and walk
back his prior statements and admissions to relator—demonstrates that he, like
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Carter, presents a real and continuing threat to the public. We therefore agree that
the board’s recommended sanction of a two-year suspension, with one year
conditionally stayed, and additional conditions on reinstatement to the profession
is the appropriate sanction in this case.
CONCLUSION
{¶ 37} Accordingly, Daniel Edward Perrico is hereby suspended from the
practice of law in Ohio for two years with one year stayed on the condition that he
engage in no further misconduct. If Perrico fails to comply with the condition of
the stay, the stay will be revoked, and he will be required to serve the full two-year
suspension. In addition to the requirements for reinstatement set forth in Gov.Bar
R. V(24), Perrico shall provide proof that he has submitted to an alcohol assessment
conducted by OLAP or a qualified chemical-dependency professional and that he
has complied with any OLAP contract and/or treatment recommendations arising
from that evaluation. Costs are taxed to Perrico.
Judgment accordingly.
FISCHER, DEWINE, and STEWART, JJ., concur.
DONNELLY, J., concurs, with an opinion.
KENNEDY, C.J., concurs in part and dissents in part, with an opinion joined
by DETERS, J.
BRUNNER, J., not participating.
_________________
DONNELLY, J., concurring.
{¶ 38} I join the majority’s decision adopting the Board of Professional
Conduct’s findings of misconduct against Daniel Edward Perrico and the board’s
recommended sanctions. See majority opinion, ¶ 22, 36. I write separately,
however, because this case provides another example of an attorney facing criminal
charges being permitted to plead guilty to an offense that is disconnected from the
attorney’s alleged criminal conduct. And while the board nonetheless managed to
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craft an appropriate sanction here, one can easily imagine how these factually
baseless plea agreements undermine the board’s ability to do its job.
{¶ 39} The facts underlying Perrico’s misconduct start out benign but
quickly take an unnerving turn. Perrico’s then 15-year-old stepdaughter, T.B.,
invited two of her friends, C.P. and B.R., over on a Friday evening to spend the
night. C.P. and B.R. were both 18 years old. Over the course of the evening,
Perrico—then 45 years old—provided alcoholic beverages to his stepdaughter and
her friends. Their drinking continued until T.B.’s friends both got so drunk that
they became physically ill, with C.P. ending up in the home’s basement bathroom.
At some point, Perrico went down to the basement bathroom, where he spent
several minutes alone with C.P. And while they were alone, Perrico allegedly
pulled C.P. onto his lap and touched, over her clothes, C.P.’s breasts, vagina, thighs,
and arms.
{¶ 40} Several months later, Perrico was charged with three counts of
furnishing alcohol to an underage person, in violation of R.C. 4301.69(A), for
providing T.B., C.P., and B.R. with alcohol. He was also charged with sexual
imposition, in violation of R.C. 2907.06(A)(1), for his alleged offensive sexual
contact with C.P. At first, Perrico pleaded not guilty to all four charges. Yet,
following pretrial discussions between counsel, the trial-court judge, and the
victims, Perrico ultimately pleaded guilty to two counts of furnishing alcohol to a
minor1 and one count of misdemeanor assault, in violation of R.C. 2903.13. But
the alleged factual basis for this latter offense remained the same as the bare-bones
allegations that were the basis for the original offense of sexual imposition. The
criminal complaint charging Perrico was not amended to supply additional facts to
support the new assault offense. Nor did the state (or Perrico) offer any evidence
1. The charge of furnishing alcohol to T.B. was dismissed because, at the time of the events in
question, Perrico could legally provide T.B. with alcohol as her stepfather.
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at Perrico’s plea hearing to explain how Perrico’s alleged touching of C.P. met the
requirements of assault rather than those of sexual imposition.
{¶ 41} I have no concerns about Perrico entering into a plea agreement
resolving his convictions for furnishing alcohol to an underage person. Perrico
admitted during his disciplinary-hearing testimony that he had provided T.B., C.P.,
and B.R. with alcohol. Rather, my concerns lie with his guilty plea to misdemeanor
assault for his alleged conduct toward C.P.
{¶ 42} Let’s be clear about what happened here. C.P. accused Perrico—a
man nearly 30 years older than her and the stepfather of her friend—of groping her
breasts, vagina, thighs, and arms while she was intoxicated. And for those alleged
acts, Perrico was charged with sexual imposition, which prohibits an offender’s
sexual contact with another person when “[t]he offender knows that the sexual
contact is offensive to the other person * * * or is reckless in that regard.” R.C.
2907.06(A)(1). By contrast, misdemeanor assault criminalizes an offender’s
knowingly causing physical harm or recklessly causing serious physical harm to
another person. R.C. 2903.13(A) and (B). These are wholly different offenses.
Sexual imposition focuses on the sexual element and offensive nature of the
contact. Assault carries no such requirements—rather, it focuses on the causing of
physical harm. These are not differences in degree but in kind. The statutes
criminalize different offenses rather than distinguishing between the severity of a
prohibited action.
{¶ 43} Despite these differences, Perrico was allowed to plead guilty to
misdemeanor assault for his alleged groping, even though the facts in the criminal
complaint made no allegations that he physically harmed C.P. Nor were the
original facts amended or new facts presented during the plea hearing to include
this new element. Instead, for reasons that we are not privy to, because there is no
record explaining or justifying the change, the state and the trial court in Perrico’s
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criminal case allowed him to plead guilty to a crime for which he was not charged
and that was not supported by the charging documents.
{¶ 44} This is not simply an instance in which Perrico was allowed to plead
to a lesser offense to that of sexual imposition. For starters, misdemeanor assault
is a higher-degree offense than sexual imposition; the former is classified as a first-
degree misdemeanor, while the latter is a third-degree misdemeanor. Compare R.C.
2903.13(C)(1) with R.C. 2907.06(C). But even if assault were a lower-level
offense, it still wouldn’t be a lesser-included offense of sexual imposition. A lesser-
included offense is not simply a crime of lesser degree than the charged offense. It
must also be impossible to commit the greater offense without also committing the
lesser offense. State v. Wilkins, 64 Ohio St.2d 382, 384, 415 N.E.2d 303 (1980).
And at least one element of the greater offense must not be necessary to prove the
lesser offense. Id. Even assuming that assault was a crime of lesser degree than
sexual imposition, the elements of the two crimes are so disparate that they are
wholly separate offenses. An offender could engage in sexual contact he or she
knows to be offensive without knowingly or recklessly causing physical harm or
serious physical harm to the victim.
{¶ 45} My concern with what happened in Perrico’s criminal case does not
stem from assault somehow being an inferior crime than sexual imposition. Assault
is no such thing. Instead, my concern arises from the fact that Perrico could plead
guilty to a crime that was not rooted in the conduct he was accused of. What is
more, all this occurred without any explanation for the change or modifications to
the facts on which Perrico had been haled into court. And it is the lack of any
factual grounds for the crime of misdemeanor assault, of which Perrico was
convicted, that gives me the most pause.
{¶ 46} Even superficially, it is easy to see why Perrico took the plea deal.
Beyond simply resolving his criminal case, Perrico’s guilty plea carried two
collateral benefits. First, in pleading to assault rather than sexual imposition,
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Perrico avoided Ohio’s sex-offender registration laws. See generally
R.C. 2950.01(A)(1) and (E)(1)(a), 2950.03(A), and 2950.04 (defining the offenses
subject to the sex-offender registry and setting out the framework that requires those
convicted of a sexually oriented offense to register with state authorities for a period
of time following their conviction). Second, while a conviction for sexual
imposition cannot be sealed, Perrico’s conviction for misdemeanor assault was
eligible for sealing and expungement one year after the resolution of his case.
Compare R.C. 2953.32(A)(1)(c) (excluding sexually oriented offenses that require
postconviction registration under R.C. Chapter 2950 from the sealing-and-
expungement scheme) with R.C. 2953.32(B)(1)(a)(ii) (making multiple
misdemeanors eligible for sealing or expungement one year after an offender’s final
discharge). But the lack of a factual record surrounding Perrico’s plea gives him a
third perk—the chance to craft the narrative of his criminal conduct to suit his own
ends.
{¶ 47} The record here is replete with examples of Perrico changing the
motivations and facts behind his guilty plea to best suit his purposes. Let’s start
with his motivations for pleading. When first replying to disciplinary counsel about
the grievance initiating this action, Perrico explained that he pleaded guilty to the
assault charge because he “did not want to take any risk of being convicted of the
[s]exual [i]mposition charge and labeled as a sex offender.” Then, while testifying
during his disciplinary hearing, Perrico gave two new reasons motivating his plea.
Perrico told the disciplinary-board panel that he pleaded to the assault charge
intending to have his convictions sealed promptly, something that wouldn’t be
possible if he pleaded guilty to or was convicted of sexual imposition. But he went
further during other points in his testimony, saying that his plea was to protect his
son from “this nonsense,” by which he meant C.P.’s allegations.
{¶ 48} A similar evolution exists with the criminal conduct Perrico claimed
was the source of his guilty plea to assault. During a deposition taken by
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disciplinary counsel, Perrico asserted that he had pleaded guilty to “an unwanted
touch, apparently.” But he also categorically asserted that because no criminal
complaint accused him of assault, there were no facts for him to plead to. Perrico
raised similar arguments while testifying at his disciplinary hearing, insisting that
he had not pleaded guilty to the facts in the criminal complaint, which accused him
of having offensive sexual contact with C.P. He also claimed that the assault he
was guilty of was the physical harm he caused by giving alcohol to C.P., which
caused her to become sick, and it was that assault he had in mind when he pleaded
guilty.
{¶ 49} All the assertions Perrico made throughout the disciplinary process
about the motivations for and content of his guilty plea to assault might be true.
Just as easily, they might be false. But we cannot know—nor could the board have
known—because the criminal record available to us is simply silent on these issues.
All we know is that Perrico was charged with sexual imposition arising out of C.P.’s
allegations and that Perrico pleaded to misdemeanor assault as part of a plea
agreement. In short, Perrico pleaded guilty to a crime that appears to have no
factual basis whatsoever in the criminal record because the result was of greater
benefit to him. The rest is lost to the black box of plea negotiations and agreements,
into which one set of law and facts go and out of which a result emerges, seemingly
without factual support or explanation.
{¶ 50} Perrico’s conviction provides nothing other than his brute admission
to criminal conduct, and so it does not provide a yardstick by which the board or
this court can assess his misconduct. Instead, we are subject to the narrative Perrico
creates to suit the situation as he sees fit. Or at least that would be the case had
T.B., B.R., and C.P. not testified at the disciplinary hearing about Perrico’s actions.
And because they did testify, the board received the full picture of Perrico’s
misconduct and was able to recommend a sanction consistent with our precedent.
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{¶ 51} But what about those situations in which the victims are unable or
unwilling to testify at the attorney’s disciplinary hearing? One of the functions of
the criminal process is to arrive at the truth of the accusations and then, as necessary,
mete out punishment. Both the public and entities like the board and our court rely
on the integrity of the conclusions and outcomes reached by the criminal process.
If the criminal process shirks its fact-finding role, then the ability of the public and
those entities to rely on the outcomes from that process is undercut.
{¶ 52} The board can rely only on the facts presented to it and then seek to
apply this court’s precedent in determining whether misconduct has occurred and
what sanctions are appropriate. But if, as here, one of the fact-finders on which the
board should reasonably be able to rely doesn’t do its job, thereby leaving the
recitation and interpretation of the facts up to the attorney who is accused of
misconduct stemming from criminal behavior, then the board’s job is made that
much harder. Indeed, the board’s authority is undermined, because it is being asked
to determine the nature and veracity of criminal convictions while also trying to
fulfill its role of assessing and sanctioning attorney misconduct.
{¶ 53} All this leads me to repeat the call I recently made in Disciplinary
Counsel v. Goodman, ___ Ohio St.3d ___, 2024-Ohio-852, __ N.E.3d__, ¶ 41
(Donnelly, J., concurring), for this court to reconsider adopting a rule requiring
guilty pleas to “have a factual basis in the conduct defendants actually committed.”
Until this court revisits that proposed rule, we will be forced to tolerate factually
baseless pleas, even though, as demonstrated by this case and Goodman, those pleas
undermine public confidence in the criminal-justice system and impede collateral
proceedings—such as the attorney-disciplinary process—that must rely on them.
_________________
KENNEDY, C.J., concurring in part and dissenting in part.
{¶ 54} Respondent, Daniel Edward Perrico, betrayed the trust of three
young women who looked up to him as a father figure, one of whom was his 15-
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year-old stepdaughter, T.B. Perrico not only furnished alcohol to these underage
women, but he also inappropriately touched one of the women on her vagina,
thighs, breasts, and arms while she was intoxicated. Based on this misconduct, I
would suspend Perrico for two years with no stay. So, while I concur with the
majority’s determination that Perrico violated the Rules of Professional Conduct, I
dissent from its decision to impose a partially stayed two-year suspension.
{¶ 55} The majority and concurring opinions set forth the facts of this case
in appropriate detail, but I must set the scene to emphasize the egregious nature of
Perrico’s planned and predatory conduct. About a week before the events in
question, Perrico set up a time with C.P., T.B.’s 18-year-old friend from high
school, to show C.P. how to make a truffle macaroni and cheese recipe. When C.P.
arrived at Perrico’s home on the scheduled date, Perrico made C.P. some mixed
alcoholic drinks and proceeded to teach her how to make truffle macaroni and
cheese. C.P. testified that in doing so, Perrico taught her “like how a boyfriend
would teach his girlfriend how to * * * cook if she was inadequate in cooking.”
While they were in the kitchen, Perrico gently caressed her, touching her arms in
the process. C.P. testified that Perrico also touched the small of her back and that
these “soft touches” made her “uncomfortable.”
{¶ 56} Unfortunately, Perrico’s “caressing” C.P. in the kitchen is the least
concerning conduct that he exhibited that night. Eventually, T.B. came home, and
later that evening, B.R., another friend of T.B. and C.P., came over too. B.R. was
also 18. Throughout the night, Perrico furnished alcoholic mixed drinks and shots
to all three young women. The drinking eventually escalated to the point that C.P.
and B.R. became sick from consuming so much alcohol. At that time, C.P. went to
the basement bathroom and began vomiting. She testified that Perrico followed her
down to the bathroom, sat on the floor near her, pulled her on to his lap, and began
touching her vagina, thighs, breasts, and arms over her clothing. C.P. testified that
as Perrico was touching her, his penis was erect and that he said, “All the dirty
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January Term, 2024
things I could do to you right now.” When T.B. went down to the basement to
check on C.P., the bathroom door had been shut with C.P. and Perrico inside. T.B.
returned to the basement to check on C.P. on several occasions, and each time T.B.
found that the door had been closed, despite the fact that she left the door open
every time she looked in on C.P. T.B. testified that when Perrico attempted to help
her lift C.P. from the bathroom floor to move her to a couch, she saw Perrico place
his hands on C.P.’s breasts. These actions, according to the Board of Professional
Conduct and a majority of this court, are worthy of only a one-year actual
suspension with a second year stayed.
{¶ 57} Aside from the board’s and the majority’s missteps in assessing the
gravity of Perrico’s conduct with C.P. and the other young women, they also fail to
fully consider Perrico’s testimony and behavior during his disciplinary hearing. His
testimony and behavior cut directly through one of the mitigating factors found by
the board and adopted by the majority, namely, that Perrico exhibited a cooperative
attitude during the disciplinary proceedings, see Gov.Bar R. V(13)(C)(4). In
adopting that mitigating factor, the majority points to Perrico’s willingness to be
deposed in Columbus and to allow the use of his sealed convictions, but in doing
so, the majority ignores the lie-filled testimony and evasive behavior that Perrico
engaged in during his disciplinary hearing in an effort to avoid responsibility for
his actions. This is exemplified by the fact that Perrico (1) admitted to supplying
drinks to the young women but also tried to pass the blame off to them by
suggesting that they were experienced drinkers, (2) tried to downplay his comment
to C.P. about “all the things [he] could do to [her],” even though that statement was
clearly sexually charged, (3) claimed that he did not touch C.P. in a sexual manner
despite having failed to deny those allegations during an earlier recorded phone call
with C.P., and (4) changed his explanation during the disciplinary hearing about
why he pled guilty to assault in comparison to the reasons he gave in his earlier
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response to disciplinary counsel’s letter of inquiry. Contrary to the majority’s
belief, Perrico was far from cooperative.
{¶ 58} I further emphasize and agree with the board’s finding that Perrico
touched C.P. in a sexual manner and that Perrico’s conduct constituted sexual
imposition, even though he was not convicted of that offense. But I would go a
step further and find that Perrico’s conduct constituted gross sexual imposition.
Although Perrico pled guilty to an amended charge of misdemeanor assault, we
have recently acknowledged that “in disciplining an attorney for misconduct that
also constitutes a criminal offense, we are not limited to considering the charges
brought for a particular crime; rather, we must also examine the conduct underlying
the offense.” Disciplinary Counsel v. Goodman, __ Ohio St.3d __, 2024-Ohio-852,
__ N.E.3d __, ¶ 24; see also Disciplinary Counsel v. Romer, 172 Ohio St.3d 680,
2023-Ohio-3099, 226 N.E.3d 959, ¶ 20.
{¶ 59} R.C. 2907.05 establishes the crime of gross sexual imposition, and
R.C. 2907.05(A)(5) provides that “[n]o person shall have sexual contact with
another * * * when * * * [t]he ability of the other person to resist or consent * * *
is substantially impaired because of a mental or physical condition * * *, and the
offender knows or has reasonable cause to believe that the ability to resist or
consent of the other person * * * is substantially impaired because of a mental or
physical condition.” Such conduct constitutes a fourth-degree felony. R.C.
2907.05(C)(1).
{¶ 60} The record before us establishes by clear and convincing evidence
that Perrico’s conduct constituted gross sexual imposition. See Gov.Bar R.
V(12)(I) (requiring professional misconduct of attorneys to be proved by clear and
convincing evidence); see also Disciplinary Counsel v. Cox, 168 Ohio St.3d 78,
2022-Ohio-784, 195 N.E.3d 1018, ¶ 17. “Unless the record weighs heavily against
a hearing panel’s findings, we defer to the panel’s credibility determinations,
inasmuch as the panel members saw and heard the witnesses firsthand.” Cuyahoga
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January Term, 2024
Cty. Bar Assn. v. Wise, 108 Ohio St.3d 164, 2006-Ohio-550, 842 N.E.2d 35, ¶ 24.
Here, the board determined that the young women’s testimony was more credible
than Perrico’s testimony. And C.P.’s testimony establishes that Perrico touched
her vagina, thighs, breasts, and arms. But that is not all.
{¶ 61} The record also shows that C.P.’s intoxication was a mental or
physical condition that substantially impaired her ability to resist or consent to
Perrico’s sexual contact and that Perrico knew that C.P. was intoxicated when he
touched her. In analyzing a statute with similar language, R.C. 2907.02(A)(1)(c),
courts across Ohio have found that voluntary intoxication constitutes a “mental or
physical condition” that can cause a person to be “substantially impaired.” See,
e.g., State v. Foster, 2020-Ohio-1379, 153 N.E.3d 728, ¶ 42 (8th Dist.); State v.
Hatten, 186 Ohio App.3d 286, 2010-Ohio-499, 927 N.E.2d 632, ¶ 21 (2d Dist.);
State v. Harmath, 3d Dist. Seneca No. 13-06-20, 2007-Ohio-2993, ¶ 14-15; State
v. Martin, 12th Dist. Brown No. CA99-09-026, 2000 WL 1145465, *5 (Aug. 14,
2000). On the night at issue here, C.P. consumed alcohol to the point that she got
sick. See Foster at ¶ 48 (explaining that vomiting can be evidence that alerts an
offender as to whether a victim was substantially impaired). And all evening,
Perrico had been in her presence and even provided alcoholic drinks to her.
Therefore, because C.P. was substantially intoxicated and because Perrico knew
C.P. was intoxicated at the time he made sexual contact with her, there is clear and
convincing evidence that Perrico committed gross sexual imposition, an “illegal act
that reflects adversely on [his] honesty or trustworthiness,” Prof.Cond.R. 8.4(b),
and “conduct that adversely reflects on [his] fitness to practice law,” Prof.Cond.R.
8.4(h). See Disciplinary Counsel v. Carter, __ Ohio St.3d __, 2023-Ohio-3992, __
N.E.3d __, ¶ 22 (explaining that whether or not someone was charged with a crime
has “no bearing” on this court’s determination whether professional misconduct has
been proven by clear and convincing evidence); Goodman, __ Ohio St.3d __, 2024-
Ohio-852, __ N.E.3d __, at ¶ 24. Perrico’s noncredible testimony, as explained
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above, is filled with inconsistencies, contradictions, lies, and evasion, and it holds
no weight here.
{¶ 62} The majority correctly states that the purpose of attorney discipline
“ ‘is not to punish the offender, but to protect the public.’ ” Majority opinion, ¶ 28,
quoting Disciplinary Counsel v. O’Neill, 103 Ohio St.3d 204, 2004-Ohio-4704, 815
N.E.2d 286, ¶ 53. But it overlooks the fact that one way this court can protect the
public is “by demonstrating to the bar and the public that this type of conduct will
not be tolerated,” Disciplinary Counsel v. Schuman, 152 Ohio St.3d 47, 2017-Ohio-
8800, 92 N.E.3d 850, ¶ 17. A two-year suspension with no stay would make such
a statement.
{¶ 63} For these reasons, I dissent from the majority’s sanction of a partially
stayed suspension and would impose a two-year suspension with no stay.
_________________
Joseph M. Caligiuri, Disciplinary Counsel, and Karen H. Osmond and
Audrey E. Varwig, Assistant Disciplinary Counsel, for relator.
Plakas Mannos and Peter T. Cahoon, for respondent.
_________________
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