Driskill says Wapakoneta attorney misrepresented him during trial

An Indiana man serving a seven-year, four-month prison sentence after pleading guilty to felonious assault of a police officer and theft of a motor vehicle is seeking post-conviction relief, saying he was misrepresented by Wapakoneta attorney John Poppe.

The motion, filed by the Dayton law firm of Rion, Rion & Rion Inc., also charges Mercer County Assistant Prosecutor Matt Fox made false representations indicating the state would not pursue penalties regarding prison time in the case of Ricky D. Driskill, 29, of Modoc.

Driskill reportedly wanted a jury trial. However, Poppe reportedly made oral as well as written statements indicating the judge would not issue any jail sentence if Driskill pleaded guilty to the charges.

According to the motion seeking withdrawal of a guilty plea entered Aug. 28, Driskill relied upon "erroneous representations," waived his constitutional rights to a trial, entered the plea and received an "unexpected hefty jail sentence."

In a letter to his client dated March 2, Poppe wrote "I told you that the Court had indicated to me verbally that, in his opinion, 'I don't see any reason when the result is that he gets treatment and doesn't go to prison, why he wants to take a chance on going to trial. He's not going to prison anyway as long as he takes care of doing the things he needs to do.' That is as close as I can get to what he (the judge) was communicating with there being emphasis on if you keep doing the things you are supposed to be doing, you are not going to prison."

In a June 1 letter, Poppe alluded to a pretrial meeting noting the assistant prosecutor had no intention to request penalties whatsoever.

"He indicated he could weave in and out and around things so that he could say the things that he needed to say for defending the prosecutor's office to law enforcement and at the same time not give the judge a reason to not follow his inclination to have you receive community control sanctions," Poppe wrote.

On Oct. 13, Driskill and his supporters showed disbelief when Mercer County Common Pleas Court Judge Jeffrey Ingraham handed down the unexpected sentence. The defendant was crying uncontrollably as deputies led him from the courtroom.

"After receiving Mr. Poppe's letters and speaking with him personally, I believed that refraining from a jury trial would essentially lighten my sentence," Driskill wrote.

Driskill also charges Poppe did not adequately discuss the adverse effects of his brain tumor along with a condition known as Chiari Malformation on his behavior during a hearing held prior to sentencing.

The defendant struck another vehicle while driving along a country road near Burkettsville in May 2005. He then fled the scene in a pickup truck belonging to a first responder. Unfamiliar with the area, he drove through a field and over an embankment before holding law enforcement officers at bay with a box cutter. He continued to struggle after being shot once in the abdomen by an officer. The struggle ended shortly after he threw the box cutter narrowly missing another officer.

The motion charges Driskill's plea significantly rested on Fox's assertions that he would not seek penalties regarding prison time. However, Fox noted in his sentencing memorandum "The state urges that the court find the defendant caused serious harm to persons or property, has a history of criminal conviction and has demonstrated no remorse. Moreover, there is a presumption for prison with regard to the felonious assault charge."

The motion states Fox directly urged the court to consider a harsh penalty, adding "This is direct contradiction of what he expressed to Mr. Driskill's attorney."
By entering into a plea agreement, the motion contends "A defendant is agreeing to cooperate with the government and it is only fair to expect the government to perform its promise of performance of restraining from suggesting harsh penalties."

This is not the first motion filed on Driskill's behalf in the wake of the Oct. 19 sentencing. Poppe filed a motion Oct. 24 asking the court to reconsider the sentence. Ingraham turned down the request in a judgment filed Nov. 7.

Ingraham is expected to decide the fate of the latest motion following the holidays.