Derek Jones v. State of Indiana (mem. dec.) ( 2016 )

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be Jan 14 2016, 6:21 am
regarded as precedent or cited before any
court except for the purpose of establishing
the defense of res judicata, collateral
estoppel, or the law of the case.
APPELLANT PRO SE ATTORNEYS FOR APPELLEE
Derek Jones Gregory F. Zoeller
Michigan City, Indiana Attorney General of Indiana
Michael Gene Worden
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Derek Jones, January 14, 2016
Appellant-Petitioner, Court of Appeals Case No.
20A04-1506-PC-780
v. Appeal from the Elkhart Superior
Court
State of Indiana, The Honorable Thomas Ryan,
Appellee-Respondent Judge
Trial Court Cause No.
20D03-1501-PC-1
Baker, Judge.
Court of Appeals of Indiana | Memorandum Decision 20A04-1506-PC-780 | January 14, 2016 Page 1 of 5
[1] Derek Jones appeals the denial of his petition for post-conviction relief.
Finding the denial appropriate, we affirm.
[2] On January 12, 2011, a jury found Derek Jones guilty of class A felony child
molesting, two counts of class A attempted child molesting, three counts of
class B felony vicarious sexual gratification, four counts of class C felony child
molesting, class D felony performing sexual conduct in the presence of a minor,
and class D felony dissemination of matter harmful to minors. On February 18,
2011, the trial court sentenced him to an aggregate executed sentence of ninety-
seven years.
[3] On appeal, in an unpublished decision, we affirmed most aspects of his
conviction but vacated one forty-year sentence, remanding with instructions to
impose a six-year sentence on that count. Jones v. State, No. 20A03-1103-CR-
95, 2011 WL 5507197, at *8 (Ind. Ct. App. Nov. 10, 2011). This reduced the
aggregate sentence from ninety-seven to sixty-nine years. Id. We found Jones’s
other arguments—insufficiency of the evidence, double jeopardy,
inappropriateness of his sentence—to be unavailing. Id.
[4] Jones filed a petition for post-conviction relief on January 9, 2015. He alleged
that the following entitled him to relief: at his trial, his counsel had him testify,
on direct examination by the defense, to a previous conviction for class B felony
battery resulting in serious bodily injury. Jones argues that this evidence fell
under Evidence Rule 404(b) as impermissible character evidence, which should
have been excluded.
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[5] At the post-conviction hearing, Jones’s previous counsel testified. He explained
his reasons for bringing the conviction into evidence:
I felt I had no choice but to have Mr. Jones testify. . . . So as Mr.
Jones has indicated, we had a discussion, and it was my choice
tactically after we conferred that we get it out in the open so that
there wouldn’t be any surprise or an appearance that we were
doing something underhanded, trying to hide the conviction.
Tr. 16-17. The post-conviction court denied Jones’s petition.
[6] On appeal from that denial, Jones raises two issues. First, he claims that the
trial court erred in allowing his prior conviction into evidence. Second, he
contends that counsel’s decision to broach the topic at trial rendered counsel’s
assistance ineffective.
[7] To succeed on appeal from the denial of post-conviction relief, the petitioner
must show that the evidence is without conflict and leads unerringly and
unmistakably to a conclusion opposite that reached by the post-conviction
court. Strowmatt v. State, 779 N.E.2d 971, 974-75 (Ind. Ct. App. 2002). We
consider only the probative evidence and reasonable inferences therefrom that
support the post-conviction court’s decision. Manzano v. State, 12 N.E.3d 321,
325 (Ind. Ct. App. 2014). The purpose of post-conviction relief is not to
provide a substitute for direct appeal, but to provide a means for raising issues
not known or available to the defendant at the time of the original appeal.
Strowmatt, 779 N.E.2d at 975. If an issue was available on direct appeal but not
litigated, it is waived. Id.
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[8] Jones’s first issue, regarding trial court error, is waived for at least two reasons.
First, this issue was known and available on direct appeal. It should have been
brought there, and cannot be brought here. Second, the evidence of a prior
conviction was introduced by the defense; therefore, any error would have been
invited. Invited error is not reversible error. Booher v. State, 773 N.E.2d 814,
822 (Ind. 2002).
[9] We turn to Jones’s second argument. A defendant claiming ineffective
assistance of counsel must establish both that counsel’s performance was
deficient and that the deficiency resulted in prejudice. Timberlake v. State, 753
N.E.2d 591, 603 (Ind. 2001). Counsel is afforded considerable discretion in
choosing strategy and tactics, and we will accord those decisions deference. Id.
[10] The evidence supporting the decision of the post-conviction court shows that
Jones and his counsel adopted the strategy of admitting to the previous crime as
a method of building credibility with the jury. This was a legitimate strategy,
well within defense counsel’s discretion to adopt. As such, Jones’s argument of
ineffective assistance of counsel fails on the first prong: he has not demonstrated
any deficient performance by his counsel.
[11] Moreover, we note that at least four of the children Jones was alleged to have
had inappropriate relations with testified against him at his trial. Each of their
testimonies substantially corroborate each other. Therefore, Jones’s argument
of ineffective assistance of counsel fails on the second prong as well: he has not
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demonstrated that the exclusion of this one piece of evidence would likely have
altered the jury’s decision.
[12] The judgment of the post-conviction court is affirmed.
Bradford, J., and Pyle, J., concur.
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