       [Cite as State v. Derkson, 2014-Ohio-3831.]


                         IN THE COURT OF APPEALS
                FIRST APPELLATE DISTRICT OF OHIO
                          HAMILTON COUNTY, OHIO



STATE OF OHIO,                                       :   APPEAL NO. C-130844
                                                         TRIAL NO. B-1104665
       Respondent-Appellee,                          :

       vs.                                           :      O P I N I O N.
CHARLES DERKSON,                                     :

       Petitioner-Appellant.                         :



Criminal Appeal From: Hamilton County Court of Common Pleas

Judgment Appealed From Is: Affirmed

Date of Judgment Entry on Appeal: September 5, 2014



Joseph T. Deters, Hamilton County Prosecuting Attorney, and Melynda J. Machol,
Assistant Prosecuting Attorney, for Respondent-Appellee,

Charles Derkson, pro se.




Please note: we have removed this case from the accelerated calendar.
                  OHIO FIRST DISTRICT COURT OF APPEALS



FISCHER, Judge.

       {¶1}    Petitioner-appellant Charles Derkson appeals the Hamilton County

Common Pleas Court’s judgment denying his R.C. 2953.21 petition for

postconviction relief. We affirm the court’s judgment.

       {¶2}    Derkson was convicted in 2012 upon guilty pleas to felonious assault

upon a peace officer in violation of R.C. 2903.11(A)(2), along with the specification

that he had, while committing the offense, discharged a firearm at a peace officer. As

part of the plea agreement, the trial court dismissed a charge of having weapons

under a disability, along with two other felonious-assault specifications, and imposed

agreed consecutive prison terms of six years for felonious assault and seven years for

the peace-officer specification.

       {¶3}    Derkson unsuccessfully challenged his conviction in appeals to this

court and the Ohio Supreme Court. State v. Derkson, 1st Dist. Hamilton No. C-

120717 (July 19, 2013), appeal not accepted, 136 Ohio St.3d 1560, 2013-Ohio-4861,

996 N.E.2d 987.      And in May 2013, he filed with the common pleas court a

postconviction petition seeking relief from his conviction on the grounds that his

pleas had been the unknowing and unintelligent product of prosecutorial misconduct

and his trial counsel’s ineffectiveness.

       {¶4}    In this appeal, Derkson presents three assignments of error that, read

together, challenge the denial of his petition without an evidentiary hearing. The

challenge is untenable.

                                      The Pleas

       {¶5}    Derkson pled guilty to felonious assault in violation of R.C.

2903.11(A)(2), which, in relevant part, proscribes “knowingly * * * attempt[ing] to

cause physical harm to another * * * by means of a deadly weapon.” His offense was




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                   OHIO FIRST DISTRICT COURT OF APPEALS



elevated from a second-degree felony to a first-degree felony by the fact that his

victim had been a “peace officer.” See R.C. 29o3.11(D)(1)(a). And his plea to the

peace-officer specification subjected him to an additional, mandatory term of

confinement of seven years. See R.C. 2929.14(B)(1)(f) and 2941.1412.

       {¶6}    At the plea hearing, the assistant prosecuting attorney stated that

Derkson had been charged with felonious assault and the specification for “running

down [a downtown Cincinnati street] firing multiple shots at an unnamed person

and at the undercover police officer who was responding.” Defense counsel offered

that Derkson’s defense, had there been a trial, would have been “that he did not see

or know the police officer was there.” But counsel recommended the pleas because,

in his assessment, these additional “facts really [did not] change the nature of the

situation” when they did not contradict the state’s evidence “that the police officer

was right there in the line of fire.”

       {¶7}    Nevertheless, before sentencing and at Derkson’s request, defense

counsel filed a Crim.R. 32.1 motion to withdraw his pleas. At the hearing on the

motion, counsel submitted that Derkson sought withdrawal because he did not think

that his plea agreement was “a good deal,” and because he believed that he had “a

meritorious defense” to present in a jury trial. At counsel’s request, Derkson was

also permitted to speak in support of the motion. He argued that his pleas had not

been knowing, voluntary, or intelligent, because the state had failed to disclose in

discovery “pertinent material,” including a ballistics report, that would have allowed

counsel to prepare a defense.

       {¶8}    The assistant prosecuting attorney responded, and defense counsel

agreed, that discovery had been “completed” to their satisfaction. The assistant

prosecuting attorney added her assessment that “there is no likelihood of true




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                  OHIO FIRST DISTRICT COURT OF APPEALS



innocence here,” when the evidence, which included the statements of two civilian

eyewitnesses, showed that while Derkson’s “original intent [had been directed at]

some other people,” he had “run[] toward [the police officer], firing as he was doing

so.”   Defense counsel, as he had at the plea hearing, explained that Derkson’s

“defense was going to be [that he] * * * was firing at another individual [and] [d]idn’t

even know the police officer was there until the police officer started firing back at

him.” That, counsel surmised, was what Derkson continued to “struggle” with, and

why “he’s had second thoughts” about his plea agreement, because “he didn’t in his

mind * * * knowingly fire at a police officer.”

       {¶9}    Following the hearing, the trial court overruled the motion and

imposed the agreed sentences. We affirmed that ruling in the direct appeal.          See

Derkson, 1st Dist. Hamilton No. C-120717.

                           The Postconviction Claims

       {¶10} A counseled knowing, voluntary, and intelligent guilty plea waives any

“independent claims relating to the deprivation of constitutional rights that occurred

prior to the entry of the guilty plea.” Tollett v. Henderson, 411 U.S. 258, 267, 93 S.Ct.

1602, 36 L.Ed.2d 235 (1973); State v. Spates, 64 Ohio St.3d 269, 272, 595 N.E.2d 351

(1992); State v. Morgan, 1st Dist. Hamilton No. C-080011, 2009-Ohio-1370, ¶ 25.

The plea constitutes a complete admission of guilt and removes any issues of factual

guilt from the case. See Crim.R. 11(B)(1); State v. Wilson, 58 Ohio St.2d 52, 388

N.E.2d 745 (1979), paragraph one of the syllabus; State v. Montenegro, 1st Dist.

Hamilton No. C-010160, 2001 Ohio App. LEXIS 5764 (Dec. 21, 2001).

       {¶11} But Derkson, in his postconviction petition, did not simply allege a

discovery violation or state a claim of actual innocence. He asserted that his guilty

pleas had been the unknowing and unintelligent product of prosecutorial misconduct,




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                    OHIO FIRST DISTRICT COURT OF APPEALS



in failing to disclose in discovery evidence showing his actual innocence of felonious

assault and the peace-officer specification, and of his trial counsel’s ineffectiveness, in

failing to request or to seek to compel discovery of the undisclosed evidence and in

failing, at the hearing on his presentence motion to withdraw his pleas, to argue his

actual innocence.

       {¶12} Prosecutorial misconduct. The fair-trial guarantee of the Due

Process Clause of the Fourteenth Amendment to the United States Constitution

imposes upon the state a duty to disclose to a criminal accused evidence material to

his guilt or innocence. See Brady v. Maryland, 373 U.S. 87, 83 S.Ct. 1194, 10

L.Ed.2d 215 (1963). Evidence is “material” if there is a “reasonable probability” that

its disclosure would have been outcome-determinative. United States v. Bagley, 473

U.S. 667, 682, 105 S.Ct. 3375, 87 L.Ed.2d 481 (1985). The determination of this

“probability” entails an inquiry into whether that evidence, “considered collectively,”

“could reasonably be taken to put the whole case in such a different light as to

undermine confidence” in the result. Kyles v. Whitley, 514 U.S. 419, 434-436, 115

S.Ct. 1555, 131 L.Ed.2d 490 (1995). Accord State v. Ketterer, 126 Ohio St.3d 448,

2010-Ohio-3831, 935 N.E.2d 9, ¶ 23-24; State v. Hughbanks, 1st Dist. Hamilton No.

C-010372, 2003-Ohio-187, ¶ 57.

       {¶13} A court may deny a postconviction claim without a hearing when the

petition, any supporting evidentiary material, and the record in the case show that

the petitioner is not entitled to relief. See R.C. 2953.21(C) and (E); State v. Perry, 10

Ohio St.2d 175, 226 N.E.2d 104 (1967), paragraphs one, two, and three of the

syllabus. Derkson supported his prosecutorial-misconduct claim with the “scene

notes” made by a police detective investigating the case, a Hamilton County

Coroner’s Laboratory form describing the evidence submitted in the case, and the




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                  OHIO FIRST DISTRICT COURT OF APPEALS



police-involved-shooting statement of the police officer alleged to have been the

victim of the felonious assault. This evidence showed that the officer, wearing plain

clothes, had stopped his unmarked car at a downtown Cincinnati intersection in

response to a radio broadcast concerning two men in the area with guns. Hearing

gunshots and shouting behind him, the officer stepped out of his car, drew his

weapon, and turned to see a number of people fleeing from the direction of the

gunshots.   More shouting drew the officer’s attention to his left, where he saw

Derkson discharge his handgun twice at a man running directly in front of the

officer’s car. Derkson then directed his gun at the officer. The officer did not identify

himself as police, but fired at Derkson, and Derkson fled.

       {¶14} This evidence, Derkson asserted, disproved his guilt of both felonious

assault upon a peace officer and the peace-officer specification, because it showed

that he had not shot at the officer, and that the officer had not been readily

identifiable as a police officer.    But Derkson mistakes the significance of the

undisclosed evidence.

       {¶15} The felonious-assault charge required proof that Derkson, in shooting

at the man running between him and the officer, had acted “knowingly,” that is, that

Derkson, “regardless of his purpose,” had been “aware that his conduct w[ould]

probably cause a certain result.” R.C. 2903.11(A)(2) and 2901.22(B). When, as here,

the accused has discharged a firearm multiple times in a populated area, he may be

found to have acted “knowingly” as to, and thus may be convicted of deadly-weapon

felonious assault upon, any person in the line of fire. State v. Mills, 62 Ohio St.3d

357, 369, 582 N.E.2d 972 (1992). Accord State v. Roberts, 1st Dist. Hamilton No. C-

000756, 2001 Ohio App. LEXIS 4991 (Nov. 9, 2001); State v. Williams, 1st Dist.

Hamilton No. C-950729, 1997 Ohio App. LEXIS 3452 (Aug. 1, 1997).




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                 OHIO FIRST DISTRICT COURT OF APPEALS



        {¶16} But neither the peace-officer penalty-enhancement provision of the

felonious-assault statute, R.C. 29o3.11(D)(1)(a), nor the peace-officer specification

prescribed by R.C. 2929.14(B)(f) and 2941.1412 charges a separate criminal offense

or evinces an intention to require proof of a culpable mental state beyond that

required to prove the underlying offense. See State v. Ford, 128 Ohio St.3d 398, 401,

2011-Ohio-765, 945 N.E.2d 498, ¶ 17 (holding that a firearm specification does not

constitute a separate criminal offense, but merely “enhance[s]” a sentence); State v.

Hendrix, 11th Dist. Lake No. 2011-L-043, 2012-Ohio-2832, ¶ 59; State v. Bridges,

8th Dist. Cuyahoga No. 94469, 2010-Ohio-6359, ¶ 16; State v. Vann, 2d Dist.

Montgomery No. 22818, 2009-Ohio-5308, ¶ 12; State v. Cook, 9th Dist. Summit No.

24058, 2008-Ohio-4841, ¶ 8 (holding that because a firearm-specification statute

does not proscribe a separate offense, proof of a culpable mental state is not required

unless specified in the statute). Therefore, had the felonious-assault charge and the

specification been tried, the state would not have been required to prove that

Derkson, in committing felonious assault upon a peace officer or in discharging his

weapon, had acted “knowingly” or “recklessly” with regard to his victim’s status as a

“peace officer.” And Derkson would have been subject to the penalties provided for a

first-degree felony and the peace-officer specification upon proof of that status. See

State v. McGrady, 1st Dist. Hamilton No. C-860316, 1987 Ohio App. LEXIS 8543

(Sept. 2, 1987). Accord State v. Tinsley, 8th Dist. Cuyahoga Nos. 92335 and 92339,

2010-Ohio-2083, ¶ 26; State v. Woodruff, 12th Dist. Butler No. CA2008-11-284,

2009-Ohio-4133, ¶ 14; State v. Scott, 9th Dist. Summit No. 24149, 2008-Ohio-6439,

¶ 12.

        {¶17} The outside evidence offered by Derkson in support of his

postconviction petition could not be said to have been “material,” when it could not




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                  OHIO FIRST DISTRICT COURT OF APPEALS



“reasonably be taken to put the whole case in such a different light as to undermine

confidence” in his guilt of felonious assault upon a peace officer or the peace-officer

specification.   See Kyles, 514 U.S. at 434-436, 115 S.Ct. 1555, 131 L.Ed.2d 490;

Johnston, 39 Ohio St.3d at paragraph five of the syllabus, 529 N.E.2d 898.

Accordingly, Derkson was not denied a fair trial by the state’s failure to disclose the

evidence in discovery.

       {¶18} Ineffective assistance of counsel. Our conclusion that the

undisclosed evidence could not reasonably be said to have been outcome-

determinative is also fatal to Derkson’s claim that his pleas were the unknowing and

unintelligent product of his trial counsel’s ineffectiveness in failing to request or to

seek to compel discovery of that evidence. To prevail on a claim of ineffective

assistance of counsel, a postconviction petitioner must demonstrate (1) that counsel’s

performance fell below an objective standard of reasonableness, and (2) that

counsel’s deficient performance prejudiced him. Strickland v. Washington, 466 U.S.

668, 694, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); State v. Bradley, 42 Ohio St.3d

136, 538 N.E.2d 373 (1989).

       {¶19} The investigation conducted by counsel into the case was not

demonstrably inadequate. And counsel, instead of pursuing baseless legal theories

and claims of innocence, negotiated a plea agreement that ensured a less-than-

maximum sentence for felonious assault. Thus, on the record before us, we cannot

say that trial counsel violated a substantial duty to Derkson in failing to request

further discovery.

       {¶20} Nor does the record support the balance of Derkson’s challenge to his

trial counsel’s effectiveness. A postconviction claim is subject to “summary” denial

when the record “negative[s] the existence of facts sufficient to entitle the prisoner to




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                  OHIO FIRST DISTRICT COURT OF APPEALS



relief.” Perry, 10 Ohio St.2d at paragraph three of the syllabus, 226 N.E.2d 104. The

record of the proceedings leading to Derkson’s conviction belies his assertions, in

support of his ineffective-counsel claim, that his trial counsel failed to request or to

obtain discovery of the ballistics report, or that counsel, at the hearing on Derkson’s

presentence motion to withdraw his pleas, failed to argue, and obstructed Derkson in

arguing, his actual innocence.

                                     We Affirm

       {¶21} Because Derkson failed to sustain his burden of submitting evidentiary

material setting forth sufficient operative facts to demonstrate substantive grounds

for relief, the common pleas court properly denied his postconviction petition

without an evidentiary hearing. See R.C. 2953.21(C); State v. Pankey, 68 Ohio St.2d

58, 428 N.E.2d 413 (1981); State v. Jackson, 64 Ohio St.2d 107, 413 N.E.2d 819

(1980). We, therefore, overrule the assignments of error and affirm the court’s

judgment.

HILDEBRANDT, P.J., and DEWINE, J., concur.




Please note:

       The court has recorded its entry on the date of the release of this opinion.




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