MEMORANDUM DECISION
                                                                         FILED
Pursuant to Ind. Appellate Rule 65(D),                               Jul 28 2016, 9:52 am
this Memorandum Decision shall not be
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regarded as precedent or cited before any                            Indiana Supreme Court
                                                                        Court of Appeals
court except for the purpose of establishing                              and Tax Court

the defense of res judicata, collateral
estoppel, or the law of the case.


APPELLANT PRO SE                                         ATTORNEYS FOR APPELLEE
James F. Noel                                            Gregory F. Zoeller
Pendleton, Indiana                                       Attorney General of Indiana

                                                         George P. Sherman
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

James F. Noel,                                           July 28, 2016
Appellant-Petitioner,                                    Court of Appeals Case No.
                                                         49A05-1508-PC-1274
        v.                                               Appeal from the Marion Superior
                                                         Court
State of Indiana,                                        The Honorable Marc T.
Appellee-Respondent.                                     Rothenberg, Judge

                                                         The Honorable Amy J. Barbar,
                                                         Magistrate
                                                         Trial Court Cause No.
                                                         49G02-1203-PC-16900



Najam, Judge.



Court of Appeals of Indiana | Memorandum Decision 49A05-1508-PC-1274 | July 28, 2016         Page 1 of 6
                                       Statement of the Case
[1]   James Noel was convicted of attempted murder, a Class A felony, following a

      bench trial. On direct appeal, this court affirmed his conviction. Noel v. State,

      No. 49A02-1212-CR-1005, 2013 WL 3807426 (Ind. Ct. App. July 18, 2013)

      (“Noel I”). Noel subsequently petitioned for post-conviction relief, which the

      post-conviction court denied. He now appeals, challenging the post-conviction

      court’s judgment, and he raises the following issues for our review:


              1.       Whether he was denied the effective assistance of trial
                       counsel.

              2.       Whether he was denied his right to due process.


[2]   We affirm.


                                 Facts and Procedural History
[3]   We set out the facts and procedural history in Noel I as follows:


              Patricia Johnson (“Patricia”) and her daughter, Jackie Bundy
              (“Jackie”) lived with Jackie’s three children on Arsenal Avenue
              in Indianapolis. Their friends often stopped by, including
              Jackie’s former fiance, Paul Parks (“Parks”), and Noel. Both
              Noel and Parks were close friends with Jackie, having each had a
              romantic relationship with her in the past. Parks was also close
              with Jackie’s family. During the course of Noel and Parks’s
              mutual friendships with Jackie, Parks obtained $150 worth of
              Vicodin from Noel, but failed to pay his debt to Noel for two
              years.

              Eventually, Noel became angry that Parks had not paid him.
              Noel began to threaten Parks, indicating that he would “beat

      Court of Appeals of Indiana | Memorandum Decision 49A05-1508-PC-1274 | July 28, 2016   Page 2 of 6
        [Parks’s] ass” and that he was “going to get” Parks. Tr. pp. 42,
        127. Additionally, Noel spoke with Parks on the phone a
        number of times, and tended to be aggressive and derogatory,
        saying, “Bitch, do you got my money?” and “You got my
        money? I want my money. I’ll show you how we do it in
        Memphis.”[] Tr. pp. 41-42. In late 2011, when Patricia became
        aware of Noel’s threats to Parks, she informed Noel that he was
        no longer welcome at her home. Noel knew that Parks
        continued his close friendship with Patricia’s family, and despite
        Patricia’s admonishment to stay away, Noel asked Patricia’s
        neighbor, George Gates (“Gates”) to inform him if he saw
        Parks’s vehicle in the area.

        On March 11, 2012, Parks and his friend, Jeremy Green
        (“Green”), visited Patricia’s home. After recognizing Parks’s
        SUV, Gates called Noel to inform him that Parks was at
        Patricia’s home. Noel, who was at his own home watching a
        movie with Jackie and Torrance Williams (“Williams”), left with
        them to find Parks. Parks had been at Patricia’s home for around
        an hour and a half when Noel, Jackie, and Williams arrived.
        Noel went to the door and knocked. Upon hearing that Noel
        was there, Parks and Green prepared to leave the home, and
        [they] saw Noel upon exiting. The men all went to the public
        sidewalk, where an altercation between Parks and Noel ensued.[]
        Seeing Noel with his hand behind his back, and not knowing
        whether Noel was armed, Parks drew a box knife from his pocket
        and held it at his side. Noel said something to the effect of,
        “Gotcha, bitch,” and told Parks, “I’m going to cut your f* * *ing
        head off.” Tr. pp. 53, 158. Noel stepped in front of Parks and
        drew a hatchet from his back pocket. Noel then struck Parks
        with the hatchet twice, claiming that he believed that Parks was
        trying to “gut” him with the box knife. Tr. p. 262. Although
        Parks attempted to block Noel’s blows with his arm, he was
        struck twice in the back of the head and neck with the hatchet.
        Parks began staggering and was bleeding profusely when Noel
        pulled back his arm to strike again. Patricia yelled for Noel to
        stop, and Green stepped in to attempt to gain control of the

Court of Appeals of Indiana | Memorandum Decision 49A05-1508-PC-1274 | July 28, 2016   Page 3 of 6
              hatchet. All three men fell to the ground before Green was able
              to wrest the hatchet from Noel’s grip and throw it into the front
              yard of the home.

              Meanwhile, Patricia and an anonymous caller each notified
              police of the ensuing struggle. As police arrived, Noel fled, and
              Parks was then taken by ambulance to seek medical care. In
              addition to the large and deep lacerations to the back of his head
              and neck from the hatchet, Parks suffered a variety of other
              bruises and contusions. The following day, Noel contacted Parks
              by telephone to ask Parks if he had Noel’s watch, which he had
              lost during the altercation. Noel also told Parks that he had tried
              to chop Parks’s head off.

              On March 13, 2012, Noel was arrested and charged with one
              count of Class A felony attempted murder. A jury trial was held
              on September 4 and 5, 2012, which concluded in a hung jury and
              a mistrial.[] On November 19, 2012, Noel waived his right to
              trial by jury and was tried again, this time in a bench trial, on
              November 19 and 20, 2012, and the court found Noel guilty as
              charged.[] At each trial, Noel raised a claim of self-defense.
              Following his conviction, Noel was sentenced on November 28,
              2012 to twenty-five years executed.[]


      Id. at 1-2. On direct appeal, we affirmed Noel’s conviction. Id.


[4]   In his petition for post-conviction relief, Noel alleged that he was denied the

      effective assistance of trial counsel. In denying the petition, the post-conviction

      court found that Noel had waived his claim of ineffective assistance of trial

      counsel for failure to make cogent argument. This appeal ensued.




      Court of Appeals of Indiana | Memorandum Decision 49A05-1508-PC-1274 | July 28, 2016   Page 4 of 6
                                         Discussion and Decision
                               Issue One: Ineffective Assistance of Counsel

[5]   Noel first contends that he was denied the effective assistance of trial counsel.

      The post-conviction court concluded that Noel had waived that issue for failure

      to make cogent argument. In particular, in its Conclusions of Law, the post-

      conviction court stated as follows:


               Initially[,] the Court finds that it is quite frankly impossible to
               fully discern exactly what Noel is claiming as errors in these
               issues. The Court is not required to, and [it] cannot guess or
               speculate as to what the Petitioner means or intends. . . .
               Consequently the Court finds that Noel has waived consideration
               of these issues.


      Appellant’s App. at 102. Likewise, Noel’s claim of error on appeal is devoid of

      cogent argument.1 Noel has wholly failed to address either prong of the

      Strickland v. Washington, 466 U.S. 668 (1984), standard for ineffective assistance

      of counsel. He has not argued, much less shown, either that his counsel’s

      performance fell below an objective standard of reasonableness or, even

      assuming counsel’s deficient performance, that such performance resulted in



      1
        After setting out the standard case law relevant to this issue, Noel’s application of that law to the facts of
      his case comprises a single sentence as follows:

               Because trial counsel failed to object or file a pre-trial motion to challenge the
               search/entry of his residence or the charging information in this case, counsel was
               deficient and that deficiency prejudiced him by permitting him to be convicted upon a
               charge not properly made. Ryan v. State, 9 N.E.3d 663 (Ind. 2014).

      Appellant’s Br. at 15.



      Court of Appeals of Indiana | Memorandum Decision 49A05-1508-PC-1274 | July 28, 2016                   Page 5 of 6
      prejudice. Thus, we hold that Noel has waived this issue for our review. See

      Ind. Appellate Rule 46(A)(8)(a).


                                          Issue Two: Due Process

[6]   Noel also contends that he was denied his right to due process. This issue is

      waived for two reasons. First, Noel did not raise this issue in his petition for

      post-conviction relief. It is well settled that issues not raised in a petition for

      post-conviction relief may not be raised for the first time on post-conviction

      appeal. Allen v. State, 749 N.E.2d 1158, 1171 (Ind. 2001). And second, Noel

      has not made cogent argument in support of this contention on appeal.


[7]   Moreover, Noel’s due process claim is a freestanding claim and is not available

      in a petition for post-conviction relief. Because this issue was known and

      available on direct appeal but not raised, Noel’s claim is not available as a

      freestanding claim of fundamental error on petition for post-conviction relief.

      Hinesley v. State, 999 N.E.2d 975, 988 (Ind. Ct. App. 2013), trans. denied.


[8]   Affirmed.


      Baker, J., and Vaidik, J., concur.




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