Donald G. Perkins v. State of Indiana

Pursuant to Ind. Appellate Rule 65(D), this
Memorandum Decision shall not be
regarded as precedent or cited before any
court except for the purpose of establishing Sep 26 2014, 7:46 am
the defense of res judicata, collateral
estoppel, or the law of the case.
APPELLANT PRO SE: ATTORNEYS FOR APPELLEE:
DONALD G. PERKINS GREGORY F. ZOELLER
Pendleton Correctional Facility Attorney General of Indiana
Pendleton, Indiana
JODI KATHRYN STEIN
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
DONALD G. PERKINS, )
)
Appellant-Petitioner, )
)
vs. ) No. 03A01-1401-PC-9
)
STATE OF INDIANA, )
)
Appellee-Respondent. )
APPEAL FROM THE BARTHOLOMEW CIRCUIT COURT
The Honorable Stephen R. Heimann, Judge
Cause No. 03C01-1106-PC-3356
September 26, 2014
MEMORANDUM DECISION - NOT FOR PUBLICATION
CRONE, Judge
Case Summary
Donald G. Perkins appeals the denial of his petition for postconviction relief. He
alleges that his counsel provided ineffective assistance by misrepresenting his sentence
exposure during plea negotiations and by failing to object during his sentencing hearing. We
affirm.
Facts and Procedural History
The facts as summarized in an unpublished memorandum decision on Perkins’s direct
appeal are as follows:
On March 13, 2006, a man working on a survey crew found a videotape
alongside a road. The man took the tape home to view, and discovered that it
depicted an adult male, later determined to be Perkins, engaged in numerous
sexual acts with a young child, later determined to be his four-year-old
daughter (the “Victim”). The tape depicts two incidents. During the first
incident, Perkins and the Victim are both naked and the Victim is touching and
fondling Perkins’s penis. During the second incident, the Victim sat on
Perkins’s lap while both were naked and again touched and fondled Perkins’s
penis.
On April 17, 2006, the State charged Perkins with child molesting, a
Class A felony, two counts of child molesting, Class C felonies, two counts of
child exploitation, Class C felonies, and performing sexual conduct in the
presence of a minor, a Class D felony. On April 16, 2007, Perkins pled guilty
to child molesting, a Class A felony, pursuant to a plea agreement under which
the State agreed to dismiss the remaining charges. The State further agreed to
not show the videotape at the sentencing hearing, although it reserved the right
to show five still photos captured from the videotape.
Perkins v. State, No. 03A01-0707-CR-305 (Ind. Ct. App. Mar. 12, 2008).
The trial court sentenced Perkins to a forty-five year term executed following a June
12, 2007 hearing. Perkins challenged his sentence via direct appeal, claiming (1) that it was
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unconstitutional under Article 1, Section 18 of the Indiana Constitution; (2) that the trial
court abused its discretion in its treatment of aggravators and mitigators and in refusing to
suspend any portion of the sentence; and (3) that it was inappropriate based on the nature of
the offense and his character pursuant to Indiana Appellate Rule 7(B). Perkins’s sentence
was affirmed in all respects.
Perkins filed petitions for postconviction relief in 2011 and 2013, claiming that he was
denied his constitutional right to effective assistance of counsel based on trial counsel’s
(“Counsel”) performance during plea negotiations and at sentencing. Perkins specifically
asserted that Counsel had promised him that he would receive a twenty-year sentence if he
pled guilty to class A felony child molesting. As support, he relied on a handwritten notation
in the margin of the waiver of rights/guilty plea form, which reads, “Sent 20 yrs.” Pet. Ex. 7.
The postconviction court denied Perkins’s petition, and he now appeals pro se. Additional
facts will be provided as necessary.
Discussion and Decision
Perkins contends that the postconviction court erred in denying his petition for
postconviction relief. The petitioner in a postconviction proceeding “bears the burden of
establishing grounds for relief by a preponderance of the evidence.” Ind. Postconviction
Rule 1(5); Passwater v. State, 989 N.E.2d 766, 770 (Ind. 2013). When issuing its decision to
grant or deny relief, the postconviction court must make findings of fact and conclusions of
law. Ind. Postconviction Rule 1(6). A petitioner who appeals the denial of his
postconviction petition faces a rigorous standard of review. Massey v. State, 955 N.E.2d 247,
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253 (Ind. 2011). In conducting our review, we neither reweigh evidence nor judge witness
credibility; rather, we consider only the evidence and reasonable inferences most favorable to
the judgment. Id. “A post-conviction court’s findings and judgment will be reversed only
upon a showing of clear error—that which leaves us with a definite and firm conviction that a
mistake has been made.” Passwater, 989 N.E.2d at 770 (citation and quotation marks
omitted). In other words, if a postconviction petitioner was denied relief in the proceedings
below, he must show that the evidence as a whole leads unerringly and unmistakably to a
conclusion opposite the one reached by the postconviction court. Massey, 955 N.E.2d at 253.
Postconviction relief does not offer the petitioner a super appeal; rather, subsequent collateral
challenges must be based on grounds enumerated in the postconviction rules. McKnight v.
State, 1 N.E.3d 193, 199 (Ind. Ct. App. 2013), trans. denied (2014). These rules limit the
scope of relief to issues unknown or unavailable to the petitioner on direct appeal. Id.
Perkins maintains that he was denied his constitutional right to effective assistance of
counsel. To prevail on an ineffective assistance claim, he must satisfy two components; he
must demonstrate both deficient performance and prejudice resulting from it. Strickland v.
Washington, 466 U.S. 668, 687 (1984). Deficient performance is “representation [that] fell
below an objective standard of reasonableness, [where] counsel made errors so serious that
counsel was not functioning as ‘counsel’ guaranteed by the Sixth Amendment.” Passwater,
989 N.E.2d at 770. We assess counsel’s performance based on facts that are known at the
time and not through hindsight. Shanabarger v. State, 846 N.E.2d 702, 709 (Ind. Ct. App.
2006), trans. denied. Evidence of isolated poor strategy, inexperience, or bad tactics will not
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support an ineffective assistance claim; instead, we evaluate counsel’s performance as a
whole. Flanders v. State, 955 N.E.2d 732, 739 (Ind. Ct. App. 2011), trans. denied (2012).
“[C]ounsel’s performance is presumed effective, and a defendant must offer strong and
convincing evidence to overcome this presumption.” Ritchie v. State, 875 N.E.2d 706, 714
(Ind. 2007). “Strickland does not guarantee perfect representation, only a reasonably
competent attorney.” Hinesley v. State, 999 N.E.2d 975, 983 (Ind. Ct. App. 2013) (citation
omitted), trans. denied (2014).
In the context of a guilty plea, the prejudice prong of the Strickland test focuses on
whether counsel’s deficient performance affected the outcome of the plea process. Hill v.
Lockhart, 474 U.S. 52, 59 (1985). To satisfy the prejudice requirement, the petitioner
therefore must show that there is a reasonable probability that, but for counsel’s errors, he
would not have pled guilty. Id.; Segura v. State, 749 N.E.2d 496, 507 (Ind. 2001).
“Although the performance prong and the prejudice prong are separate inquiries, failure to
satisfy either prong will cause the claim to fail.” Baer v. State, 942 N.E.2d 80, 91 (Ind.
2011).
Here, the postconviction court concluded that Counsel had not promised Perkins a
twenty-year sentence for pleading guilty, that Perkins’s guilty plea was voluntary, and that
Counsel did not provide ineffective assistance. Appellant’s App. at 52. In its findings, the
court included specific excerpts from the transcript of the guilty plea hearing showing that
both the trial court and Counsel informed Perkins about the sentencing range and the
possibility of an aggravated sentence and that Perkins acknowledged that he understood. Id.
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at 49-50.
With respect to the sentencing hearing, the postconviction court emphasized the
extensive questioning and argument concerning the possibility of a sentence of up to fifty
years, finding in pertinent part,1
At the sentencing hearing, Counsel ask[ed] Perkins, “Can you give any
reasons or any factors you think would allow the Judge to believe maybe that
you’re more of a candidate to be rehabilitated as opposed to being put in prison
for fifty years …? In further questions, Counsel asked: “And you understand
that the maximum sentence today would be fifty years. Is that correct?”
Perkins: “Yes, sir.” …. Counsel in his closing statement argue[d]: “Our
view is a fifty year sentence, execute all fifty is a life sentence for Mr. Perkins
and we believe that is not in the best interests of anyone in this case that he
doesn’t have the opportunity to prove himself.” The prosecutor argued: “Your
Honor, the State is asking for a fully aggravated sentence of fifty years.”
Judge Monroe sentenced Perkins to a sentence of 45 years. Perkins did not
protest at any of these times that he had been promised a 20 year sentence.
Id. at 50-51 (internal citations omitted).
As for Perkins’s direct appeal, the postconviction court found in pertinent part,
Perkins … did not argue that he had been promised a twenty year
sentence. In fact, his argument on appeal belies the fact that he knew that
Judge Monroe could sentence him using aggravating factors. His appellate
argument [was] that Judge Monroe abused his discretion in applying the
aggravators and mitigators in arriving at the sentence. Perkins[’s] sentence
was affirmed.
Id. at 51.
With respect to the evidence presented at the postconviction hearing, the
postconviction court’s findings include the following:
1
Throughout the findings, the postconviction court referred to Counsel by name. We refer to him
simply as Counsel.
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Perkins testified that Counsel told Perkins about the mitigating and
[aggravating] circumstances and Counsel told Perkins about the maximum and
minimum sentences. Perkins testified that when Counsel brought Perkins the
plea offer that Perkins knew he was facing a maximum of fifty years. But, he
also knew with the jailhouse advice that Judge Monroe wouldn’t max you out
so that with [Judge] Monroe he knew he’d only get 45-47 years.
Perkins then testified at length that Counsel wrote “20 yrs sent” on the
Waiver form at the sentencing hearing. Perkins testified numerous times that it
was at the sentencing hearing that Counsel wrote those words on the Waiver
form. If one were to believe Perkins on this point, then Perkins would not
have been promised a 20 year maximum sentence in order to induce Perkins to
plead guilty. The Court does not believe that Perkins is correct on this point
and does not believe that Counsel ever promised Perkins that Perkins would
receive a twenty year maximum sentence.
Counsel testified that he never promises defendants what sentence they
will receive. Judge Monroe rarely ever accepted plea bargains with set
sentence terms in them[.] In this case, Counsel and the prosecutor did not have
a discussion about a specific sentence for Perkins because both the State and
Counsel knew that Judge Monroe would not accept such a plea bargain.
Counsel testified that he did not promise Perkins a maximum sentence of 20
years. He estimated that [Judge] Monroe would sentence Perkins in the forty
year range, but didn’t make any guarantees on this.
Id. at 51-52 (internal citations omitted).
In his postconviction petition, Perkins maintains that Counsel promised him a
maximum sentence of twenty years in exchange for his guilty plea. Other than Perkins’s self-
serving testimony, the only evidence tending to support such a promise is the “Sent 20 yrs”
notation scrawled in the margin of his waiver of rights/guilty plea form. Pet. Ex. 7. At the
guilty plea hearing and at sentencing, the trial court and Counsel questioned him concerning
his understanding of the sentencing range and his likely exposure in terms of actual executed
time. The time to raise his allegation of Counsel’s promise would have been in response to
those questions. He did not do so.
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Subsequently, on direct appeal, he neither challenged the voluntariness of his guilty
plea nor raised Counsel’s alleged promise in conjunction with his sentencing challenge.
Instead, he challenged the trial court’s treatment of aggravators and mitigators and the
appropriateness of his forty-five-year term. Again, the obvious argument would have been
that his forty-five year sentence exceeded the twenty-year fixed maximum term that he was
promised in exchange for his guilty plea. The absence of such a claim implicates his
awareness that the trial court was not bound by any such maximum when determining his
sentence.
Moreover, Perkins’s own testimony at the postconviction hearing undercuts his claim
that it was Counsel’s promise of a twenty-year maximum term that induced him to plead
guilty. First, he admitted that the State’s promise to refrain from playing the videotape of the
molestation during sentencing also was a factor in his decision to plead guilty. Second, his
testimony as a whole indicates that he was well-versed in the credit time system in place at
the time, that is, one day’s credit for one day served.2 Thus, under that system, a fifty-year
sentence could produce an executed term of twenty-five years, and a twenty-year sentence
could produce a ten-year executed term. See, e.g., PCR Tr. at 46 (Perkins’s explanation of
why he wanted to plead guilty to a class B felony, not a class A felony). The postconviction
record indicates that much of Counsel’s advice regarding sentence exposure was made with
Perkins’s obvious understanding of credit time in mind. Third, Perkins demonstrated a
2
Since that time, the system for determining credit time has been amended, with the designation of a
“credit restricted felon.” Ind. Code § 35-50-6-3.
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familiarity with Judge Monroe’s customary sentences, reporting that during his presentencing
incarceration, other inmates told him to expect a sentence of five to seven years below the
maximum, or about forty-five years. Finally, Perkins repeatedly testified that Counsel did
not advise/promise the twenty years until the sentencing hearing (two months after he pled
guilty). For example, on direct examination, he stated that Counsel “did not give me the
advice on the 20 until the sentencing.” Id. at 55. On cross examination, he twice indicated
that Counsel had not put the twenty years in writing until the sentencing hearing. Id. at 56-
57.
Simply put, Perkins has failed to demonstrate that Counsel’s scrawled notation was
the inducement for his previously-entered guilty plea. He did not object at sentencing and
did not raise this issue on his direct appeal. He has failed to demonstrate that the
postconviction court acted contrary to law in concluding that Counsel’s performance did not
render his guilty plea involuntary and that he therefore was not denied effective assistance of
counsel. Accordingly, we affirm.
Affirmed.
RILEY, J., and MATHIAS, J., concur.
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