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                MEMORANDUM DECISION - NOT FOR PUBLICATION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          The facts as summarized in an unpublished memorandum decision on Perkins’s direct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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