Pursuant to Ind. Appellate Rule 65(D),

                                                                 FILED
this Memorandum Decision shall not be
regarded as precedent or cited before
any court except for the purpose of                           Apr 05 2012, 8:58 am
establishing the defense of res judicata,
collateral estoppel, or the law of the case.
                                                                      CLERK
                                                                    of the supreme court,
                                                                    court of appeals and
                                                                           tax court




ATTORNEY FOR APPELLANT:                            ATTORNEYS FOR APPELLEE:

TIMOTHY J. O’CONNOR                                GREGORY F. ZOELLER
O’Connor & Auersch                                 Attorney General of Indiana
Indianapolis, Indiana
                                                   ANN L. GOODWIN
                                                   Deputy Attorney General
                                                   Indianapolis, Indiana


                              IN THE
                    COURT OF APPEALS OF INDIANA

ISAAC JONES,                                       )
                                                   )
       Appellant-Petitioner,                       )
                                                   )
              vs.                                  )      No. 49A02-1106-PC-548
                                                   )
STATE OF INDIANA,                                  )
                                                   )
       Appellee-Respondent.                        )


         APPEAL FROM MARION SUPERIOR COURT, CRIMINAL DIVISION 20
                     The Honorable Michael Jensen, Magistrate
                      The Honorable Steven Eichholtz, Judge
                         Cause No. 49G20-0701-PC-4299


                                         April 5, 2012

               MEMORANDUM DECISION - NOT FOR PUBLICATION


SULLIVAN, Senior Judge
          Isaac Jones appeals from the denial of his petition for post-conviction relief. Jones

contends that his trial counsel provided ineffective assistance by failing to properly object

to alleged hearsay evidence. Concluding that Jones’s claim is barred by res judicata, we

affirm.

          The underlying facts of this case, taken from this Court’s memorandum decision

in Jones’s direct appeal, are as follows:

                 Alicia Kimmons often hung out at an apartment on 38th Street in
          Indianapolis, where she smoked crack cocaine. Jones, whom Kimmons
          knew only as Peewee, also hung out at the apartment. Jones and Kimmons
          often smoked crack together. In early December of 2006, Kimmons was at
          the apartment with Jones and others. Sometime after Kimmons left, Jones
          and Damon Starks, the co-defendant in this case, were allegedly robbed.
          Kimmons testified she heard Jones and Starks “got robbed . . . [a]nd they
          thought I had something to do with it.” Transcript at 211. Don Juan
          McGee, the lessee of the apartment, and LaTanya Hudson, a friend of
          Kimmons, each also testified to hearing that Jones and Starks thought
          Kimmons had “set them up” for the robbery. Id. at 371.
                 On the early morning of December 6, 2006, Kimmons was at the
          home of a man known to her as “Mississippi.” Two men stepped into the
          doorway and asked Kimmons how she was and where she had been.
          Kimmons responded she had been staying with her mother. The two men
          then asked Kimmons to come for a ride. Kimmons said she had to use the
          bathroom first and got up from her chair. As Kimmons walked toward the
          bathroom, she heard Mississippi open his bedroom door and turned to look
          for him. Kimmons then saw Starks pull out a gun and hand it to Jones who
          shot Kimmons three or four times in her back and right side. Kimmons
          recognized Jones as the shooter and testified he was wearing a black coat
          with a fur-lined hood, the same coat that he usually wore. In the hospital,
          Kimmons identified Jones as the shooter to police and identified him from a
          photo array.
                 On January 10, 2007, the State charged Jones with aggravated
          battery, a Class B felony, and carrying a handgun without a license, a Class
          A misdemeanor. On February 12, 2007, the State amended the aggravated
          battery charge to attempted murder. Prior to trial the State dismissed the
          carrying a handgun without a license charge. Following a jury trial, Jones
          was convicted of attempted murder and sentenced to forty years.


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Jones v. State, No. 49A04-0812-CR-714, slip op. at 2-3 (Ind. Ct. App. Sept. 17, 2009)

(footnote omitted), trans. denied.

       One of Jones’s arguments on direct appeal was that the trial court abused its

discretion by admitting McGee’s and Hudson’s testimony – that Jones and Starks were

robbed before the shooting and believed Kimmons had set up the robbery – because it

was inadmissible hearsay. McGee and Hudson had heard about the robbery and Jones’s

and Starks’s beliefs from an unknown third party. A panel of this Court concluded that

the statements did not constitute hearsay and that the trial court therefore did not abuse its

discretion by admitting them:

       These statements are not hearsay because they were not offered to prove
       that Jones and Starks were in fact robbed or that Kimmons set them up.
       Rather, the statements were offered as evidence of a motive for Jones to
       shoot Kimmons, namely that he believed she set up the robbery. Further,
       even if McGee’s and Hudson’s statements were improperly admitted, the
       error would be harmless because Kimmons testified that she heard Jones
       and Starks “supposedly got robbed. And they thought I had something to
       do with it.” Jones neither objected to Kimmons[’s] testimony at trial nor
       argued its inadmissibility on appeal. Therefore, the trial court did not abuse
       its discretion when it admitted evidence of the robbery and Jones’s belief
       that Kimmons set it up.

Id. at 8. This Court affirmed Jones’s conviction. Id. at 11.

       Jones filed a petition for post-conviction relief. In his petition, Jones argued that

his trial counsel provided ineffective assistance in part by failing to properly object on

hearsay grounds to the testimony of Kimmons, McGee, and Hudson concerning the

alleged robbery. After a hearing, the post-conviction court issued findings of fact and

conclusions of law denying relief. Jones now appeals.



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       Jones raises one issue, which we restate as: whether the post-conviction court

erred by denying his claim that his trial counsel was ineffective for failing to properly

object to alleged hearsay evidence. The State responds that Jones’s claim is barred by res

judicata.

       The purpose of a petition for post-conviction relief is to raise issues unknown or

unavailable to a defendant at the time of the original trial and appeal. Reed v. State, 856

N.E.2d 1189, 1194 (Ind. 2006). A post-conviction petition is not a substitute for an

appeal. Id. Further, post-conviction proceedings do not afford a petitioner a “super-

appeal.” Id. Our post-conviction rules contemplate a narrow remedy for subsequent

collateral challenges to convictions. Id. If an issue was known and available but not

raised on appeal, it is waived. Id. If an issue was raised on direct appeal, but decided

adversely to the petitioner, it is barred by res judicata. Id.

       The doctrine of res judicata bars a later suit when an earlier suit resulted in a final

judgment on the merits, was based on proper jurisdiction, and involved the same cause of

action and the same parties as the later suit. Id. As a general rule, when a reviewing

court decides an issue on direct appeal, the doctrine of res judicata applies, thereby

precluding its review in post-conviction proceedings. Id. The doctrine of res judicata

prevents the repetitious litigation of that which is essentially the same dispute. Id. A

petitioner for post-conviction relief cannot escape the effect of claim preclusion merely

by using different language to phrase an issue and define an alleged error. Id.; see

Cambridge v. State, 468 N.E.2d 1047, 1049 (Ind. 1984) (“[W]here an issue, although

differently designated, was previously considered and determined upon a criminal

                                               4
defendant’s direct appeal, the State may defend against defendant’s post-conviction relief

petition on grounds of prior adjudication or res judicata.”).

       Our Supreme Court has found a post-conviction petitioner’s claims barred by res

judicata where the same essential claims were raised and decided against the petitioner on

direct appeal. Overstreet v. State, 877 N.E.2d 144, 149 & n.2 (Ind. 2007). On direct

appeal, Overstreet challenged the trial court’s refusal to give certain jury instructions and

refusal to grant a mistrial where the State engaged in prosecutorial misconduct in failing

to disclose that his wife had changed her testimony before trial. Our Supreme Court

rejected both of these claims on direct appeal, concluding that the jury was adequately

instructed and that the prosecutorial misconduct did not require a mistrial. In his post-

conviction appeal, Overstreet reframed these same issues by claiming that his trial

counsel provided ineffective assistance by failing to ensure that the jury was properly

instructed and by “‘Fail[ing] To Seek Dismissal Of Death Request As Remedy For

Discovery Violation.’”     Id. at 149 n.2 (quoting Overstreet’s appellate brief).        Our

Supreme Court determined that these claims, although worded differently, were attempts

to revisit issues already decided against Overstreet on direct appeal and were therefore

barred by res judicata.

       We find a similar situation here. On direct appeal, Jones argued that the trial court

abused its discretion by admitting McGee’s and Hudson’s testimony that Jones had been

robbed and thought Kimmons had set it up because it was inadmissible hearsay. This

Court concluded that the testimony was not hearsay and that the trial court therefore did

not abuse its discretion by admitting it. Jones now repackages this same argument as

                                              5
ineffective assistance of trial counsel, arguing that trial counsel failed to sufficiently

argue his hearsay objections to McGee’s and Hudson’s testimony and failed to raise any

hearsay objection to Kimmons’s testimony. We conclude that Jones’s hearsay issue,

albeit presented as trial counsel ineffectiveness, is barred by res judicata.

       Jones nonetheless argues that Bieghler v. State, 690 N.E.2d 188 (Ind. 1997),

provides us with the authority to revisit his hearsay claim. In Bieghler, our Supreme

Court stated that a claim of ineffective assistance of appellate counsel based on a failure

to present issues well essentially requires a reviewing court to review issues already

decided to determine whether a better presentation of the issues would have had any

effect on its previous decision. See id. at 195. Jones concludes that “under Bieghler,

appellate courts may render opinions in post-conviction proceedings that revisit issues

and part with conclusions reached on direct appeal.” Appellant’s Br. p. 21. Our Supreme

Court’s statements in Bieghler about reviewing issues already decided, however, were in

the limited context of reviewing a claim of ineffective assistance of appellate counsel

based on a failure to present issues well. Jones abandoned his claim of appellate counsel

ineffectiveness. PCR Tr. p. 7. Bieghler is not dispositive.

       For the reasons stated, we affirm the post-conviction court’s denial of Jones’s

petition for post-conviction relief.

       Affirmed.

DARDEN, J., and BAKER, J., concur.




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