Donald G. Perkins v. State of Indiana ( 2014 )


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  • 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    MEMORANDUM DECISION - NOT FOR PUBLICATION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    The facts as summarized in an unpublished memorandum decision on Perkins’s direct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
    2
    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
    ,
    3
    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
    4
    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. 5 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.
    6
    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.
    7
    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.
    8
    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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