Jimmy D. Jones v. State of Indiana ( 2013 )

Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not
be regarded as precedent or cited
before any court except for the Jun 14 2013, 8:26 am
purpose of establishing the defense of
res judicata, collateral estoppel, or the
law of the case.
APPELLANT PRO SE: ATTORNEYS FOR APPELLEE:
JIMMY D. JONES GREGORY F. ZOELLER
New Castle, Indiana Attorney General of Indiana
JUSTIN F. ROEBEL
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
JIMMY D. JONES, )
)
Appellant-Defendant, )
)
vs. ) No. 49A04-1204-PC-196
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )
APPEAL FROM THE MARION SUPERIOR COURT
The Honorable Robert R. Altice, Jr., Judge
Cause No. 49G02-9312-PC-160463
June 14, 2013
MEMORANDUM DECISION - NOT FOR PUBLICATION
ROBB, Chief Judge
Case Summary and Issue
Jimmy Jones was convicted in 1994 of attempted murder, a Class A felony, and
carrying a handgun without a license, a Class D felony, and sentenced to forty-eight years
imprisonment. On direct appeal, this court affirmed Jones’s convictions. Jones’s 1998
petition for post-conviction relief was denied, and the denial was affirmed on appeal to
this court. Jones filed a successive petition for post-conviction relief in 2011. This
petition was also denied. Jones now appeals the denial, raising four issues for our review
of which we find the following dispositive: whether the post-conviction court clearly
erred in finding that his claims were waived. Concluding the post-conviction court did
not err, we affirm.
Facts and Procedural History
Jones was charged with attempted murder and carrying a handgun without a
license for shooting at a police officer in November 1993. After the commission of the
crime but before Jones’s trial and sentencing in July and August 1994, Indiana sentencing
statutes were amended. As relevant to this appeal, the amendments added a provision
limiting the total of consecutive terms of imprisonment for multiple convictions arising
from a single episode of criminal conduct to the presumptive sentence for a felony one
class higher than the most serious felony of which the person was convicted; changed the
presumptive sentence for murder from forty to fifty years; and lowered the maximum
sentence for a Class A felony from fifty to forty-five years. See Ind. Pub. Law 164-1994.
The trial court, applying the newly-enacted statutes, sentenced Jones to forty-five years
for his Class A felony attempted murder conviction, to be served consecutively to a three-
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year sentence for the carrying a handgun without a license conviction for a total sentence
of forty-eight years.
Jones filed a direct appeal of his convictions, making two arguments: that his
waiver of a jury trial was not knowingly and intelligently made, and that the evidence of
his intent to kill was insufficient to support his conviction of attempted murder. See
Appellant’s Appendix at 94. This court disagreed with both contentions and affirmed his
convictions. See id. at 117 (Jones v. State, No. 49A04-9412-CR-508 (Ind. Ct. App., Aug.
30, 1995), trans. denied).
In 1998, Jones filed a petition for post-conviction relief, raising three issues: that
he received the ineffective assistance of trial counsel; that the trial court abused its
discretion in denying his motion to withdraw his jury waiver; and that he received the
ineffective assistance of appellate counsel. See id. at 125-26. The post-conviction court
found against Jones on each claim and denied his petition for relief. See id. at 142. This
court affirmed the post-conviction court’s denial of Jones’s petition. See id. at 145 (Jones
v. State, No. 49A04-0310-PC-537 (Ind. Ct. App., Oct. 22, 2004)).
In 2011, this court granted Jones permission to pursue a successive petition for
post-conviction relief. He filed his petition alleging that his consecutive sentences
exceed the length allowed by Indiana Code section 35-50-1-2 and that his appellate
counsel was ineffective for failing to raise the sentencing issue on direct appeal. The
post-conviction court found that Jones had waived consideration of the issues he raised in
his successive petition by failing to raise them previously, but waiver notwithstanding,
was not entitled to relief on his claims on the merits, because his sentence was not
erroneous and therefore his appellate counsel was not ineffective for failing to raise the
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issue on appeal. Jones’s successive petition was therefore denied. Jones now appeals the
denial.
Discussion and Decision
I. Standard of Review
In post-conviction proceedings, the petitioner bears the burden of proving he is
entitled to relief by a preponderance of the evidence. Henley v. State, 881 N.E.2d 639,
643 (Ind. 2008). “To prevail on appeal from the denial of post-conviction relief, a
petitioner must show that the evidence as a whole leads unerringly and unmistakably to a
conclusion opposite that reached by the post-conviction court.” Kubsch v. State, 934
N.E.2d 1138, 1144 (Ind. 2010), reh’g denied.
In addition, the post-conviction court entered findings of fact and conclusions of
law in accordance with Indiana Post-Conviction Rule 1(6). “The post conviction court is
the sole judge of the weight of the evidence and the credibility of witnesses.” Woods v.
State, 701 N.E.2d 1208, 1210 (Ind. 1998), cert. denied, 528 U.S. 861 (1999). Although
we do not defer to the post-conviction court’s legal conclusions, Wilson v. State, 799
N.E.2d 51, 53 (Ind. Ct. App. 2003), “[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[,]” Ben–Yisrayl v. State, 729 N.E.2d
102, 106 (Ind. 2000) (citation and quotation marks omitted), cert. denied, 534 U.S. 830(2001). “In short, the question before us is whether there is any way the [post-
conviction] court could have reached its decision.” Id. (quotation omitted).
II. Waiver
With respect to waiver, the post-conviction court found:
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Initially the court finds that Jones has waived consideration of the
issues raised in this successive petition for post-conviction relief. In his
petition Jones raises two issues for consideration, trial court error, and
ineffective assistance of appellate counsel. The law in this jurisdiction is
settled that sentencing issues which are known or available at the time of
direct appeal but are not raised are waived for post-conviction review. The
Court also finds that Jones raised the issues of ineffective assistance of
appellate counsel in his first post conviction relief petition. Jones also
acknowledges this fact in his current arguments to the Court.
Consequently, the issue of appellate counsel competence was resolved in
the first post-conviction proceeding and therefore, the issue of ineffective
assistance of appellate counsel is waived in this second post-conviction
proceeding.
Appellant’s App. at 209-10 (citations omitted). Jones argues the post-conviction court
erred in finding waiver because the State did not raise waiver in its answer to his petition
and also because his claims are not waived.
The State does not dispute that it did not raise waiver as an affirmative defense in
its answer.1 However, this is not a matter of the State raising waiver to this court for the
first time on appeal after having not raised it to the post-conviction court and the post-
conviction court rendering a decision solely on the merits. The post-conviction court
found waiver on its own accord and we are reviewing that determination. Moreover, as
our supreme court noted in Bunch v. State, 778 N.E.2d 1285, 1287 (Ind. 2002), there is a
difference between waiver as an affirmative defense and waiver as a “discretionary
judicial doctrine that forecloses an issue on appeal.” Just as an appellate court “is not
precluded from determining that an issue is foreclosed under a wide variety of
circumstances[,]” including where “procedural default of an issue is an appropriate basis
to affirm the judgment below[,]” id. at 1289, a post-conviction court should not be
precluded from considering whether a petitioner’s claims are entitled to review on their
1
In fact, the State did not file an answer at all. See Transcript at 5.
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merits. Cf. Clark v. State, 648 N.E.2d 1187, 1191 (Ind. Ct. App. 1995) (“It is clear that at
some point, whether specifically pleaded by the State or not, a post-conviction petitioner
is not entitled to further review of questions finally determined.”), trans. denied.
“[C]oncepts of waiver, for failure to raise issues available, and res judicata, barring
relitigation of issues previously adjudicated, are fully applicable to post-conviction
proceedings.” Id. at 1190. Therefore, the post-conviction court was not precluded from
finding waiver if such a finding was appropriate on the evidence before it regardless of
the State’s failure to plead it. Further, we are not precluded from reviewing the post-
conviction court’s waiver finding, just as we would not be precluded from sua sponte
finding the issues foreclosed had the post-conviction court not made that finding on its
own.
“The purpose of post-conviction relief proceedings is to afford petitioners a forum
in which to raise issues unknown or unavailable to a defendant at the time of the original
trial and appeal.” State v. Jones, 835 N.E.2d 1002, 1004 (Ind. 2005) (quotation omitted).
Proper successive petitions [for post-conviction relief] contain claims that
by their nature could not have been raised in earlier proceedings. Claims
that could have been, but were not, raised in earlier proceedings and
otherwise were not properly preserved are procedurally defaulted; . . .
[c]laims that have already been decided adversely are barred from re-
litigation in successive post-conviction proceedings by the doctrine of res
judicata.
Matheney v. State, 834 N.E.2d 658, 662 (Ind. 2005).
Jones’s claim that the sentence the trial court imposed exceeded statutory authority
was known and available at the time of his direct appeal. The relevant sentencing statutes
were amended during the pendency of his case, but the trial court sentenced him pursuant
to the statutes in effect on the date of his sentencing, and any claims that the trial court
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erred in doing so or applied those statutes erroneously should have been raised in his
direct appeal. Jones offered the Brief of Appellant filed on his behalf in his direct appeal
as evidence in support of his post-conviction petition. Moreover, Jones himself at oral
argument before the post-conviction court stated that the sentencing issue was “obvious
from the face of the record.” Tr. at 13. That the issue was not raised on direct appeal is
apparent from the evidence before the post-conviction court, and therefore, the post-
conviction court did not err in finding that Jones’s post-conviction sentencing claim is
waived.
Jones’s claim that his appellate counsel was ineffective for failing to raise the
sentencing claim on direct appeal should have been raised in his first post-conviction
petition when he raised other ineffective assistance of appellate counsel claims. A
defendant must present all claims of ineffective assistance of counsel at the same time.
Hardy v. State, 786 N.E.2d 783, 787 (Ind. Ct. App. 2003), trans. denied. Again, Jones
acknowledges he had previously raised ineffective assistance of appellate counsel claims,
see Brief of Appellant at 12, and Jones’s first petition for post-conviction relief, in which
he alleged ineffective assistance of appellate counsel on other grounds, is subject to
judicial notice, see Ind. Evidence Rule 201; Sanders v. State, 782 N.E.2d 1036, 1038-39
(Ind. Ct. App. 2003). Therefore, the post-conviction court did not err in finding that
Jones’s attempt to assert another, different ground for ineffective assistance of appellate
counsel in a successive petition for post-conviction relief is also waived.2
2
Because we affirm the post-conviction court on the waiver issue, we need not address the post-conviction
court’s decision on the merits of Jones’s petition.
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Conclusion
The post-conviction court did not clearly err in determining that the claims Jones
has raised in his successive petition for post-conviction relief were barred because he had
failed to raise them previously. The judgment of the post-conviction court denying
Jones’s successive petition for relief is affirmed.
Affirmed.
FRIEDLANDER, J., and CRONE, J., concur.
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