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[3]   On appeal, in an unpublished decision, we affirmed most aspects of his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.


      Court of Appeals of Indiana | Memorandum Decision 20A04-1506-PC-780 | January 14, 2016   Page 2 of 5
[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.


      Court of Appeals of Indiana | Memorandum Decision 20A04-1506-PC-780 | January 14, 2016   Page 3 of 5
[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




       Court of Appeals of Indiana | Memorandum Decision 20A04-1506-PC-780 | January 14, 2016   Page 4 of 5
       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.




       Court of Appeals of Indiana | Memorandum Decision 20A04-1506-PC-780 | January 14, 2016   Page 5 of 5
