State v. Perkins

[Cite as State v. Perkins, 2023-Ohio-139.]
IN THE COURT OF APPEALS OF OHIO
SIXTH APPELLATE DISTRICTW
LUCAS COUNTY
State of Ohio Court of Appeals No. L-22-1062
Appellee Trial Court No. CR0202101165
v.
Derrick Perkins, Jr. DECISION AND JUDGMENT
Appellant Decided: January 18, 2023
*****
Julia R. Bates, Lucas County Prosecuting Attorney, and
Lauren Carpenter, Assistant Prosecuting Attorney, for appellee.
W. Alex Smith, for appellant.
*****
ZMUDA, J.
I. Introduction
{¶ 1} Appellant, Derrick Perkins, appeals the judgment of the Lucas County Court
of Common Pleas, sentencing him to an indefinite period of five to seven and one-half
years in prison after he pled guilty to one count of aggravated robbery. Finding no error
in the proceedings below, we affirm.
A. Facts and Procedural Background
{¶ 2} On February 1, 2021, appellant was indicted on one count of aggravated
robbery in violation of R.C. 2911.01(A)(1) and (C), a felony of the first degree, four
counts of robbery in violation of R.C. 2911.02(A)(2) and (B), felonies of the second
degree, and one count of receiving stolen property in violation of R.C. 2913.51(A) and
(C), a felony of the fourth degree. These charges stemmed from five separate incidents
that occurred in December 2020, and January 2021.
{¶ 3} On February 10, 2021, appellant appeared before the trial court via
videoconferencing for arraignment and entered a plea of not guilty to the aforementioned
charges. The matter then proceeded through pretrial discovery and motion practice.
After receiving notice of a plea agreement between appellant and the state, the trial court
held a change of plea hearing via videoconferencing on July 20, 2021.
{¶ 4} At the outset of the hearing, the state explained to the trial court its
understanding that appellant planned to withdraw his original plea of not guilty and enter
a guilty plea to aggravated robbery in exchange for the state’s dismissal of all remaining
charges contained in the indictment. The trial court confirmed the arrangement with
appellant’s trial counsel, and then conducted a thorough Crim.R. 11 colloquy. At the end
of the colloquy, the state articulated the factual basis for the aggravated robbery charge,
as follows:
State witnesses would have testified that on December 16, 2020, at
Circle K located at 3819 Haverhill Drive, located here, in Toledo, Lucas
2.
County, Ohio, that the Defendant, later identified as Derrick Perkins, did
enter this Circle K and ask for a Black and Mild. He then passed money to
the store clerk that was operating the register and then waited for the
register to open, when he jumped over the counter, pulled a knife and
threatened the store clerk and stole $52 from the register. In addition, this
incident was captured on store surveillance cameras, too, as well.
In addition, State’s witnesses and the evidence would have also
shown that this robbery was linked to numerous other robberies occurring
here in Toledo, Lucas County, Ohio * * *.
{¶ 5} After the state finished its recitation of the factual predicate for the
aggravated robbery charge, the trial court asked appellant if he had a chance to review the
written plea form and discuss it with defense counsel. He responded in the affirmative.
Thereafter, the trial court accepted appellant’s guilty plea. The court then ordered the
preparation of a presentence investigation report and continued the matter for sentencing
at a later date.
{¶ 6} Appellant’s sentencing hearing was conducted on August 13, 2021. At the
hearing, the trial court indicated its review of the presentence investigation report as well
as its consideration of the principles and purposes of sentencing under R.C. 2929.11 and
the seriousness and recidivism factors under R.C. 2929.12. Ultimately, the trial court
ordered appellant to serve an indefinite prison term of five to seven and one-half years.
3.
{¶ 7} Several months later, on March 14, 2022, appellant filed a motion for
delayed appeal with this court. We granted the motion on April 8, 2022, and the matter is
now decisional.
B. Assignment of Error
{¶ 8} On appeal, appellant assigns the following error for our review:
1. The acts and omissions of trial counsel deprived Appellant of his
right to effective assistance of counsel in violation of his rights under the
Fifth, Sixth, and Fourteenth Amendments to the United States Constitution
and Article I, Section 10 and Section 16 of the Ohio Constitution.
II. Analysis
{¶ 9} In his sole assignment of error, appellant argues that he was deprived of the
effective assistance of trial counsel.
{¶ 10} To demonstrate ineffective assistance of counsel, appellant must first show
that trial counsel’s representation “fell below an objective standard of reasonableness.”
Strickland v. Washington, 466 U.S. 668, 687-688, 104 S.Ct. 2052, 80 L.Ed.2d 674(1984). Because “effective assistance” may involve different approaches or strategies,
our scrutiny of trial counsel’s performance “must be highly deferential” with a “strong
presumption that counsel’s conduct falls within the wide range of reasonable professional
assistance.” State v. Bradley, 42 Ohio St.3d 136, 142, 538 N.E.2d 373 (1989), quoting
Strickland at 689.
4.
{¶ 11} Should appellant demonstrate his trial counsel’s performance was
defective, he must then show that prejudice resulted. Bradley at paragraph two of the
syllabus. To establish prejudice, “[t]he defendant must show that there is a reasonable
probability that, but for counsel’s unprofessional errors, the result of the proceeding
would have been different.” Strickland at 694. In the context of a guilty plea, this means
that the defendant must show “‘that there is a reasonable probability that, but for
counsel’s errors, he would not have pleaded guilty[.]’” State v. Xie, 62 Ohio St.3d 521,
524, 584 N.E.2d 715 (1992), quoting Hill v. Lockhart, 474 U.S. 52, 59, 106 S.Ct. 366, 88
L.Ed.2d 203 (1985).
{¶ 12} Here, appellant argues that his trial counsel was ineffective for failing to
provide him with an opportunity to review the state’s discovery containing the video
surveillance evidence cited by the state at the time of the plea hearing. Appellant
maintains that he was not able to review the state’s video evidence before entering his
guilty plea, and he summarily asserts that he “was prejudiced by his counsel’s deficient
performance and the result of this case would have had a different outcome.”
{¶ 13} Relevant to appellant’s argument concerning the surveillance videos, trial
counsel stated the following at a pretrial on June 23, 2021:
Your Honor, I have to apologize to both Mr. Perkins and the Court.
Due to a technical issue, I have not been able to get the videos to Mr.
Perkins to see. They are videos that are critical for him to review to make a
determination on how he wants to proceed. The technical issue is they are
5.
not playing on my laptop, so I’m trying to figure out arrangements since
that’s the only way we can get him to view them at the jail. * * * The
videos do work. I’ve been able to view them, but he needs to see them as
well to be able to make an intelligent decision on how he wants to proceed.
{¶ 14} At a pretrial two weeks later, on July 7, 2021, trial counsel reminded the
trial court that it had “continued the case so I could speak to Mr. Perkins. I had the
opportunity to speak with him yesterday.” Nothing further was stated as to whether trial
counsel reviewed the state’s video evidence during his meeting with appellant.
Moreover, the remainder of the record sheds no further light on this issue.
{¶ 15} Upon our review of the entire record in this case, we find no evidence to
support appellant’s claim that he was unable to review the state’s video evidence prior to
entering his guilty plea. On the contrary, trial counsel’s statements to the trial court
during the July 7, 2021 pretrial suggest that trial counsel met with appellant. This is
significant because at the pretrial two weeks prior, trial counsel asked for a continuance
for one reason: to enable him to meet with appellant and show appellant the video
evidence. At the July 7, 2021 pretrial, trial counsel confirmed that he did, in fact, meet
with appellant. Trial counsel did not voice further concerns as to whether he was able to
show the video evidence to appellant during the meeting. Moreover, appellant did not
complain that he was unable to view the video evidence or raise any issues on that basis.
{¶ 16} To be fair, trial counsel did not explicitly indicate at the July 7, 2021
pretrial that he showed appellant the video evidence during their meeting. However,
6.
since the proceedings were specifically continued so that trial counsel could have an
opportunity to show appellant the video evidence, and since trial counsel and appellant
were both silent as to any issues with viewing the video evidence, it logically follows that
the video evidence was shown to appellant before he agreed to enter his guilty plea or, at
a minimum, that viewing the video evidence was not an important factor in appellant’s
plea decision.
{¶ 17} Further, as noted above, to prevail on his ineffective assistance argument in
this appeal, appellant must show that there is a reasonable probability that he would not
have entered his guilty plea if his trial counsel had provided him with the state’s
discovery, including the video surveillance evidence from the Circle K gas station. In his
brief to this court, appellant does not articulate how he was impacted by his alleged
inability to review the state’s video evidence. He fails to even assert, let alone establish,
that he would not have pled guilty but for trial counsel’s alleged failure to disclose the
state’s discovery. For this reason alone, appellant’s ineffective assistance argument fails.
See State v. Hawks, 12th Dist. Warren Nos. CA2021-11-103, CA2021-11-104, 2022-
Ohio-4137, ¶ 33 (finding that ineffective assistance argument premised upon trial
counsel’s failure to review the state’s discovery prior to a guilty plea was without merit
7.
where the defendant “did not even attempt” to show that he would not have entered a
guilty plea but for his counsel’s errors).1
{¶ 18} We note that the Ohio Supreme Court, in State v. Barnes, --- Ohio St.3d ---
-, 2022-Ohio-4486, --- N.E.3d ----, recently examined a criminal defendant’s complaint
that he was not apprised of video evidence prior to entering a plea. There, the court held
that “when a defendant discovers evidence that would have affected his decision to plead
guilty, he has a reasonable and legitimate basis to withdraw his guilty plea before
sentencing.” Id. at ¶ 24. Barnes involved a challenge to the trial court’s denial of a
presentence motion to withdraw a guilty plea, and the question for the court was whether
the defendant’s inability to view potentially exculpatory video evidence rendered his
guilty plea unknowing, involuntary, or unintelligent. The defendant in Barnes
maintained his innocence throughout the entirety of the trial proceedings and the video
evidence, which was part of the record, “corroborated his self-defense claim.” Id. at ¶ 26.
{¶ 19} Here, by contrast, appellant challenges not the knowing, voluntary, and
intelligent nature of his plea, but rather the effectiveness of his trial counsel.
Additionally, appellant did not maintain his innocence in the trial court, nor does he
demonstrate how such innocence is indicated by the video surveillance evidence. For
these reasons, Barnes is distinguishable from this case.
1
The video surveillance evidence at issue in this appeal is not part of the record. Thus,
we are unable to review it and ascertain whether it could have been helpful to appellant’s
defense in any meaningful manner.
8.
{¶ 20} In sum, the record contradicts appellant’s claim that trial counsel failed to
review the state’s evidence with him before he entered his guilty plea. Thus, we do not
find that trial counsel was deficient. Furthermore, appellant does not articulate how he
was prejudiced by trial counsel’s alleged failure to review the video evidence with him.
Therefore, appellant has failed to establish either of the two prongs of the Strickland test
and his ineffective assistance argument is without merit.
{¶ 21} Accordingly, appellant’s sole assignment of error is not well-taken.
III. Conclusion
{¶ 22} In light of the foregoing, the judgment of the Lucas County Court of
Common Pleas is affirmed. The costs of this appeal are assessed to appellant under
App.R. 24.
Judgment affirmed.
A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.
Thomas J. Osowik, J. ____________________________
JUDGE
Gene A. Zmuda, J.
____________________________
Myron C. Duhart, P.J. JUDGE
CONCUR.
____________________________
JUDGE
This decision is subject to further editing by the Supreme Court of
Ohio’s Reporter of Decisions. Parties interested in viewing the final reported
version are advised to visit the Ohio Supreme Court’s web site at:
http://www.supremecourt.ohio.gov/ROD/docs/.
9.