Dale D. Perkins, Jr., Appellant-Petitioner v. State of Indiana, Appellee-Respondent (2025)

MEMORANDUM DECISION

Case Summary

[1] In February of 2022, Dale D. Perkins, Jr., pled guilty to two counts of Level 5 felony operating a motor vehicle after his driving privileges had been suspended for life and Class B misdemeanor false informing. At the time of his guilty plea, Perkins also admitted that he was a habitual offender. In September of 2023, Perkins filed a petition for post-conviction relief (“PCR”), in which he claimed that he had received ineffective assistance of trial counsel and challenged the validity of his guilty plea. Following a hearing, the post-conviction court denied Perkins's PCR petition. We affirm.

Facts and Procedural History

[2] The underlying facts relating to the instant appeal are as follows:

On October 28, 2021, the State charged Perkins under cause number 16D01-2110-F5-1048 (“Cause No. 1048”) with operating a motor vehicle on or about October 27, 2021, after forfeiture of license for life as a level 5 felony.

On November 22, 2021, the State charged Perkins under cause number 16D01-2111-F5-1133 (“Cause No. 1133”) with operating a vehicle on or about November 21, 2021, after a lifetime suspension as a level 5 felony. On January 7, 2022, the State filed an amended information charging Perkins with Count I, operating a vehicle when driving privileges had been revoked for life as a level 5 felony, and Count II, false informing as a class B misdemeanor. The State also alleged that Perkins was an habitual offender.

On February 21, 2022, Perkins and the State filed a plea agreement under Cause Nos. 1048 and 1133 pursuant to which Perkins agreed to plead guilty to operating a motor vehicle when driving privileges had been revoked for life as a level 5 felony under Cause No. 1048, and operating a motor vehicle when driving privileges had been revoked for life as a level 5 felony enhanced by the habitual offender enhancement and false informing as a class B misdemeanor under Cause No. 1133. Perkins agreed to be sentenced to four years suspended to probation under Cause No. 1048 to be served consecutive to a sentence under Cause No. 1133 of four years for the level 5 felony enhanced by 1,950 days for his habitual offender status with 1,950 days as a direct commitment to Community Corrections and probation of four years and sixty days for the class B misdemeanor.

Perkins v. State, 2023 WL 3143649 * 1 (Ind. Ct. App. April 28, 2023).

[3] In pleading guilty, Perkins “acknowledge[d] that there [was] a factual basis for the charge(s) to which [he was] pleading guilty to and that [he was], in fact, guilty.” Appellee's App. Vol. II p. 3.² Perkins also stated that he was “satisfied with the help [his] attorney has given [him]” and believed his “attorney has done everything possible to help [him].” Appellee's App. Vol. II p. 4. Perkins indicated that after discussing his case with his attorney, he believed that pleading guilty was “in [his] best interest and a better alternative than a trial to the judge or a trial to a jury.” Appellee's App. Vol. II p. 4.

[4] In March 2022, the trial court entered an order accepting the plea agreement and sentencing Perkins under Cause No. 1133 to 1,460 days enhanced by 1,950 days for the level 5 felony, with 1,950 days in Community Corrections subject to home detention and 1,460 days on probation, and sixty days for the class B misdemeanor. Under Cause No. 1048, the court sentenced Perkins to 1,460 days all suspended to probation.

Perkins, 2023 WL 3143649 at *1. In October of 2022, Perkins was found to have violated the terms of his probation in numerous ways, including having tested positive for methamphetamine, having failed to submit to drug screens, and having been charged with a new criminal offense. Id. at *2. The trial court ordered that Perkins serve two years in the Department of Correction (“DOC”) under Cause No. 1048 and eight years in the DOC under Cause No. 1133, which was to be served consecutive to his sentence under Cause No. 1048. Id. at * 3. Perkins appealed the trial court's determination that he had violated the terms of his probation. Id. at * 3. We affirmed. Id. at * 4.

[5] On September 18, 2023, Perkins filed a verified PCR petition, in which he claimed that he had received ineffective assistance of trial counsel and challenged the validity of his guilty plea.³ Following a hearing, the post-conviction court issued an order denying Perkins's PCR petition.

Discussion and Decision

[6] “Post-conviction procedures do not afford the petitioner with a super-appeal.” Williams v. State, 706 N.E.2d 149, 153 (Ind. 1999). “Instead, they create a narrow remedy for subsequent collateral challenges to convictions, challenges which must be based on grounds enumerated in the post-conviction rules.” Id. A petitioner who has been denied post-conviction relief appeals from a negative judgment and as a result, faces a rigorous standard of review on appeal. Dewitt v. State, 755 N.E.2d 167, 169 (Ind. 2001); Collier v. State, 715 N.E.2d 940, 942 (Ind. Ct. App. 1999), trans. denied.

[7] Post-conviction proceedings are civil in nature. Stevens v. State, 770 N.E.2d 739, 745 (Ind. 2002). Therefore, in order to prevail, a petitioner must establish his claims by a preponderance of the evidence. Ind. Post-Conviction Rule 1(5); Stevens, 770 N.E.2d at 745. When appealing from the denial of a PCR petition, a petitioner must convince this court that the evidence, taken as a whole, “leads unerringly and unmistakably to a decision opposite that reached by the post-conviction court.” Stevens, 770 N.E.2d at 745. “In other words, the defendant must convince this Court that there is no way within the law that the court below could have reached the decision it did.” Id. (emphasis in original). “It is only where the evidence is without conflict and leads to but one conclusion, and the post-conviction court has reached the opposite conclusion, that its decision will be disturbed as contrary to law.” Godby v. State, 809 N.E.2d 480, 482 (Ind. Ct. App. 2004), trans. denied. “The post-conviction court is the sole judge of the weight of the evidence and the credibility of witnesses.” Fisher v. State, 810 N.E.2d 674, 679 (Ind. 2004).

[8] Initially, we note that many of Perkins's claims are waived because he failed to present a cogent argument on appeal. See State v. Holtzclaw, 977 N.E.2d 348, 350–51 (Ind. 2012); Ind. Appellate Rule 46(A)(8)(a). “[P]ro se litigants are held to the same standard regarding rule compliance as are attorneys duly admitted to the practice of law and must comply with the appellate rules to have their appeal determined on the merits.” Smith v. State, 822 N.E.2d 193, 203 (Ind. Ct. App. 2005), trans. denied. Thus, despite representing himself on appeal, Perkins was required to support his contentions with cogent reasoning and citations to authorities. We agree with the State that Perkins's arguments are largely undeveloped, difficult to follow, and amount to little more than bald assertions of error unsupported by legal authority. Perkins does not cite the post-conviction standard of review or otherwise conform his argument to acknowledge the procedural posture of the case. Perkins makes no argument that the post-conviction court's findings of fact are clearly erroneous. Even where Perkins cites relevant legal authority for the underlying principle, he does not apply the law to the facts of his case or analyze the claim in the post-conviction context. Despite the deficiencies in Perkins's appellate brief, where possible, we will examine the merits of Perkins's arguments.

I. Ineffective Assistance of Counsel

[9] Perkins contends that the post-conviction court erred in rejecting his claim that his trial counsel had rendered ineffective assistance. “The right to effective counsel is rooted in the Sixth Amendment of the United States Constitution.” Taylor v. State, 840 N.E.2d 324, 331 (Ind. 2006). “ ‘The Sixth Amendment recognizes the right to the assistance of counsel because it envisions counsel's playing a role that is critical to the ability of the adversarial system to produce just results.’ ” Id. (quoting Strickland v. Washington, 466 U.S. 668, 685 (1984)). “ ‘The benchmark for judging any claim of ineffectiveness must be whether counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result.’ ” Id. (quoting Strickland, 466 U.S. at 686).

[10] A successful claim for ineffective assistance of counsel must satisfy two components. Reed v. State, 866 N.E.2d 767, 769 (Ind. 2007). Under the first prong, the petitioner must establish that counsel's performance was deficient by demonstrating that counsel's representation “fell below an objective standard of reasonableness, committing errors so serious that the defendant did not have the ‘counsel’ guaranteed by the Sixth Amendment.” Id. (internal quotation omitted). “We recognize that even the finest, most experienced criminal defense attorneys may not agree on the ideal strategy or the most effective way to represent a client,” and therefore, under this prong, we will assume that counsel performed adequately and defer to counsel's strategic and tactical decisions. Smith v. State, 765 N.E.2d 578, 585 (Ind. 2002). “Isolated mistakes, poor strategy, inexperience, and instances of bad judgment do not necessarily render representation ineffective.” Id.

[11] Under the second prong, the petitioner must show that the deficient performance resulted in prejudice. Reed, 866 N.E.2d at 769. A petitioner may show prejudice by demonstrating that there is “a reasonable probability (i.e. a probability sufficient to undermine confidence in the outcome) that, but for counsel's errors, the result of the proceeding would have been different.” Id. (italics added, internal quotation omitted). With regard to a guilty plea, a petitioner “can show prejudice by demonstrating a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial.” Bobadilla v. State, 117 N.E.3d 1272, 1285 (Ind. 2019) (internal quotations omitted).

[12] A petitioner's failure to satisfy either prong will cause the ineffective assistance of counsel claim to fail. See Williams, 706 N.E.2d at 154. Stated differently, “[a]lthough the two parts of the Strickland test are separate inquires, a claim may be disposed of on either prong.” Grinstead v. State, 845 N.E.2d 1027, 1031 (Ind. 2006) (citing Williams, 706 N.E.2d at 154).

[13] Perkins argues that his trial counsel rendered ineffective assistance by failing to challenge his allegedly unlawful arrest and the accuracy of statements contained in the probable cause affidavit and “attack the false statements introduced to the state by the witness of the state by the arresting officer[.]” Appellant's Br. pp. 6, 10. While Perkins's arguments are somewhat unclear, it appears that he is alleging that his trial counsel rendered ineffective assistance by failing to challenge the accuracy and sufficiency of the factual basis, which by the parties’ agreement included the probable cause affidavit, supporting his guilty plea.

[14] The Indiana Supreme Court has held that a guilty plea “forecloses a post-conviction challenge to the facts adjudicated by the trial court's acceptance of the guilty plea and resulting conviction. The facts established by a plea of guilty may not be later challenged in post-conviction proceedings.” Norris v. State, 896 N.E.2d 1149, 1153 (Ind. 2008). “It is inconsistent to allow defendants who pleaded guilty to use post-conviction proceedings to later revisit the integrity of their plea in light of alleged new evidence seeking to show that they were in fact not guilty.” Id. “With a trial court's acceptance of a defendant's guilty plea, the defendant waives the right to present evidence regarding guilt or innocence.” Id. Thus, to the extent that Perkins attempts to challenge the validity of the evidence before the post-conviction court, such a challenge cannot succeed.

[15] In addition, Perkins has not presented any evidence aimed at overcoming the presumption that he received competent assistance from his trial counsel. He did not call his attorneys to testify, which supports the presumption that they would have rebutted Perkins's claims had they been called. See Oberst v. State, 935 N.E.2d 1250, 1254 (Ind. Ct. App. 2010) (“When counsel is not called as a witness to testify in support of a petitioner's arguments, the post-conviction court may infer that counsel would not have corroborated the petitioner's allegations.”), trans. denied. Perkins did not call any other witnesses to testify and presented no evidence that his counsel could have successfully challenged the bases for his arrest, convinced the trial court to suppress the challenged evidence, or been able to get his guilty plea set aside. Perkins instead relied solely on his self-serving claim that the probable-cause affidavits contained inaccurate information and were therefore insufficient to support his arrest. The post-conviction court, however, “is the sole judge of the evidence and the credibility of the witnesses[,]” Hall v. State, 849 N.E.2d 466, 468–69 (Ind. 2006), and, as the trier-of-fact, is “not required to believe a witness's testimony even when it is uncontradicted.” Thompson v. State, 804 N.E.2d 1146, 1149 (Ind. 2004).

[16] The post-conviction court specifically found that “Perkins is not a credible witness, and the Court disbelieves his testimony.” Appellant's App. Vol. II p. 134.⁴ The post-conviction court further found that “Perkins presented no evidence, other than his own self-serving and incredible testimony, that his trial counsel” had rendered deficient representation. Appellant's App. Vol. II p. 134. Given the lack of evidence demonstrating deficient performance, coupled with the post-conviction court's explicit finding that Perkins was not a credible witness, Perkins has failed to meet his substantial burden of proving that the evidence, taken as a whole, “leads unerringly and unmistakably to a decision opposite that reached by the post-conviction court.” Stevens, 770 N.E.2d at 745.

[17] Perkins also argues that his trial counsel rendered ineffective assistance by failing to present evidence relating to his mental health. Perkins, however, fails to prove that such evidence was relevant or would have had any effect on the underlying proceedings, which were resolved by Perkins's guilty plea. As for sentencing, Perkins agreed to a specific sentence in his guilty plea, meaning that evidence relating to potential mitigating circumstances was irrelevant, as the trial court, by accepting the terms of Perkins's plea agreement, was bound by the agreed terms of the agreement.

II. Validity of Guilty Plea

[18] Perkins also contends that the post-conviction court erred in rejecting his claim that his guilty plea had not been knowingly or voluntarily made. In support, he claims that “[d]uring the trial process, [he] was under heavy mental health medication, which was not a factor admitted into evidence on behalf of his trial counsel.” Appellant's Br. p. 11. Perkins, however, did not mention this alleged medication in his PCR petition or during the evidentiary hearing on his PCR petition. This claim is therefore waived as it is raised for the first time on appeal. See State v. Allen, 187 N.E.3d 221, 228 (Ind. Ct. App. 2022) (“Arguments raised for the first time on appeal, even ones based upon constitutional claims, are waived for appeal.”), trans. denied.

[19] Perkins also maintains that he did not commit the charged offenses. However, in pleading guilty, Perkins indicated that he was guilty of the charged offenses. Perkins waited a few years after pleading guilty before challenging the validity of his guilty plea by asserting his innocence. The factual basis supporting Perkins's guilty plea was sufficient to prove that he had committed the charged offenses. Nothing in the record indicates that Perkins's guilty plea had not been made voluntarily and of his own accord.⁵ Again, “[t]he facts established by a plea of guilty may not be later challenged in post-conviction proceedings.” Norris, 896 N.E.2d at 1153. The post-conviction court, therefore, did not err in rejecting Perkins's attempt to set aside his guilty plea.

[20] The judgment of the post-conviction court is affirmed.

FOOTNOTES

2.   All references to Appellee's Appendix refer to the appendix filed in Appellate Cause Number 24A-PC-921.

3.   Perkins's petition made arguments relating to both Cause No. 1048 and Cause No. 1133.

4.   Perkins's appendix is not paginated correctly. We cite to the PDF page number.

5.   Perkins argued during the post-conviction proceedings that he had been coerced into pleading guilty. He offered no evidence of any coercion by any party, and the evidence supports the post-conviction court's determination that Perkins's guilty plea was made knowingly and voluntarily.

Bradford, Judge.

Judges May and Mathias concur. May, J., and Mathias, J., concur.