MEMORANDUM DECISION
                                                                         FILED
Pursuant to Ind. Appellate Rule 65(D),                               Aug 31 2016, 8:26 am
this Memorandum Decision shall not be
regarded as precedent or cited before any                                CLERK
                                                                     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
Ernest Davis                                             Gregory F. Zoeller
Pendleton, Indiana                                       Attorney General of Indiana
                                                         J.T. Whitehead
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Ernest Davis,                                            August 31, 2016
Appellant-Petitioner,                                    Court of Appeals Case No.
                                                         40A02-1509-PC-1345
        v.                                               Appeal from the
                                                         Marion Superior Court
State of Indiana,                                        The Honorable
Appellee-Respondent.                                     Mark D. Stoner, Judge
                                                         The Honorable
                                                         Jeffrey L. Marchal, Magistrate
                                                         Trial Court Cause No.
                                                         49G06-0904-PC-40572



Kirsch, Judge.




Court of Appeals of Indiana | Memorandum Decision 49A02-1509-PC-1345 | August 31, 2016       Page 1 of 9
[1]   Ernest Davis (“Davis”) appeals the denial of his petition for post-conviction

      relief, contending that the post-conviction court erred in denying his petition.

      On appeal, he raises the following restated issues for our review:


              I. Whether Davis received ineffective assistance of his trial
              counsel; and


              II. Whether Davis’s freestanding allegation of error concerning
              the trial court’s denial of his motion to dismiss his trial attorney
              was procedurally defaulted and waived for appellate review.


[2]   We affirm.


                                 Facts and Procedural History
[3]   The facts supporting Davis’s convictions as set forth by this court in an

      unpublished decision on his direct appeal are as follows:


              In 2009, Collie Rose (“Rose’) lived with her son, Troy Taylor
              (“Troy”), and her grandson, Jerry Taylor (“Jerry”), on Riley
              Avenue in Indianapolis, Indiana in the home where she had lived
              for over forty years. On April 11, 2009, Rose picked up Jerry
              from work around 11:30 p.m. When Jerry and Rose arrived back
              home around midnight, Troy was in the living room playing his
              keyboard. Earlier in the evening, Jerry had spoken to Reginald
              Groce (“Groce”), who wanted to buy some marijuana from
              Jerry. Groce knew that Jerry had approximately $500 in cash
              and that Jerry was interested in using the money in a “marijuana
              related transaction.” Tr. at 83. Jerry called Groce when he
              arrived home from work. Groce asked if Jerry “was off work”
              and told Jerry he was “out south” and unable to stop by, but
              would see him the next day. Id. at 84-85.



      Court of Appeals of Indiana | Memorandum Decision 49A02-1509-PC-1345 | August 31, 2016   Page 2 of 9
        Rose went to bed, and Jerry went to his bedroom to listen to
        music and watch television. Jerry could see into the living room
        and could see Troy go to the front door. When Troy answered
        the door, a man, later identified as Davis, walked into the house,
        pointed a gun at Troy’s head, and asked, “Where is the money
        at?” Id. at 78. Jerry, who was shocked and scared, ran into
        Rose’s bedroom and shut the door. He told her to “hold the
        door” because “[t]hat man in there got a gun.” Id. at 54. Jerry
        told Rose to go out the window, but she was unable to do so.
        Jerry heard his father say, “Open the door. This man has got a
        gun to my head.” Id. at 79. Rose then told Jerry to go out the
        window while she sat on the floor and held the door with her
        feet. Jerry went out the window.


        Rose could not call 911 because the phone was in the living
        room. Davis began pushing on Rose’s door and yelling, “If you
        don’t open the door, I’m going to shoot you.” Id. at 56. Rose
        then thought she heard Troy say, “Jerry, come help me. Help
        me, Jerry. I need you.” Id. at 57. She heard the front door open
        when Davis left. She left her bedroom and called 911. Jerry
        came back to the house, and he and Rose went into the kitchen
        where they saw Troy lying on the kitchen floor. Troy’s mouth
        was moving, but he could not say anything. Police and
        emergency medical personnel arrived and administered CPR on
        Troy, but he died as a result of a bullet wound to the chest.


        Indianapolis Metropolitan Police Detective Jeffrey Wager
        (“Detective Wager”) arrived at approximately 1:54 a.m. and had
        another detective transport Jerry and Rose to the station to
        discuss what had occurred. When Jerry and Rose were leaving
        the house, Jerry saw Groce standing behind the yellow police
        tape in the front yard. Groce attempted to attract Jerry’s
        attention by calling his name. Jerry initially did not tell the
        police about the marijuana discussions he had with Groce
        because he was afraid he would be in trouble. Detective Wager
        received a call from a female friend of Jerry, who said that Jerry

Court of Appeals of Indiana | Memorandum Decision 49A02-1509-PC-1345 | August 31, 2016   Page 3 of 9
              had told her about his conversations with Groce. Detective
              Wager interviewed Jerry on April 14, 2009, and at that time,
              Jerry told the detective about Groce. Detective Wager later
              interviewed Groce, who implicated Davis in the crime. The
              police located Davis at his residence and brought him to the
              police department, where he agreed to speak with the police.
              When Davis arrived at the police department, he had two small
              injuries to his back, one of which had a bandage over it. Davis
              admitted that he was at the house on the night of the crime, but
              claimed that he shot Troy in self-defense. He denied entering the
              house with his gun drawn and denied pushing on Rose’s
              bedroom door.


              The State charged Davis with murder, felony murder, attempted
              robbery as a Class A felony, conspiracy to commit robbery as a
              Class A felony, and unlawful possession of a firearm by a serious
              violent felon as a Class B felony. The State subsequently
              amended the charging information by dismissing the conspiracy
              to commit robbery charge and the unlawful possession of a
              firearm by a serious violent felon charge. On May 24, 2010, a
              jury trial was held, at the conclusion of which the jury found
              Davis guilty as charged. At the sentencing hearing, the trial
              court entered judgment only as to murder and to attempted
              robbery as a Class C felony because of double jeopardy concerns.
              The trial court sentenced Davis to sixty years for murder and
              eight years for attempted robbery, with the sentences to be served
              consecutively.


      Davis v. State, No. 49A05-1102-CR-62, *1-*2 (Ind. Ct. App. Oct. 27, 2011),

      trans. denied.


[4]   Prior to trial, Davis pro se moved to dismiss his trial counsel, and the trial court

      denied the motion. At the conclusion of his sentencing, Davis filed a pro se

      motion to correct error, alleging that he was denied his right to self-

      Court of Appeals of Indiana | Memorandum Decision 49A02-1509-PC-1345 | August 31, 2016   Page 4 of 9
      representation, there were errors in the jury instructions, the State committed

      prosecutorial misconduct, the State’s evidence included incredibly dubious and

      perjured testimony, and he received ineffective assistance of his trial counsel.

      Appellant’s App. at 600-34. The trial court denied the motion, finding among

      other things, that Davis’s trial counsel was not ineffective and that Davis’s

      conviction was not the result of ineffective assistance of his trial counsel. Id. at

      636-37.


[5]   Davis filed a belated appeal, alleging insufficient evidence to support his

      conviction, abuse of discretion in not instructing the jury that marijuana

      possession or delivery was not a crime that, if committed, would negate a claim

      of self-defense, and inappropriate sentence. This court affirmed Davis’s

      convictions and sentence in an unpublished opinion. Davis v. State, No. 49A05-

      1102-CR-62 (Ind. Ct. App. Oct. 27, 2011), trans. denied. Davis filed a pro se

      petition for post-conviction relief, contending that the trial court erred in

      denying his motion to dismiss trial counsel, the trial court committed

      fundamental error in refusing to give a jury instruction on self-defense, the trial

      court committed fundamental error in giving a particular jury instruction, he

      was denied due process as a result of discovery violations, the State committed

      prosecutorial misconduct, and he received ineffective assistance of trial counsel.

      Id. at 711-50. Evidentiary hearings were held on Davis’s petition. On August

      12, 2015, the trial court issued its findings of fact and conclusions thereon,

      denying Davis’s petition for post-conviction relief. Davis now appeals.




      Court of Appeals of Indiana | Memorandum Decision 49A02-1509-PC-1345 | August 31, 2016   Page 5 of 9
                                     Discussion and Decision
[6]   Post-conviction proceedings do not afford the petitioner an opportunity for a

      super appeal, but rather, provide the opportunity to raise issues that were

      unknown or unavailable at the time of the original trial or the direct appeal.

      Ben-Yisrayl v. State, 738 N.E.2d 253, 258 (Ind. 2000), cert. denied, 534 U.S. 1164

      (2002); Wieland v. State, 848 N.E.2d 679, 681 (Ind. Ct. App. 2006), trans. denied,

      cert. denied, 549 U.S. 1038 (2006). The proceedings do not substitute for a direct

      appeal and provide only a narrow remedy for subsequent collateral challenges

      to convictions. Ben-Yisrayl, 738 N.E.2d at 258. The petitioner for post-

      conviction relief bears the burden of proving the grounds by a preponderance of

      the evidence. Ind. Post-Conviction Rule 1(5).


[7]   When a petitioner appeals a denial of post-conviction relief, he appeals a

      negative judgment. Fisher v. State, 878 N.E.2d 457, 463 (Ind. Ct. App. 2007),

      trans. denied. The petitioner must establish that the evidence as a whole

      unmistakably and unerringly leads to a conclusion contrary to that of the post-

      conviction court. Id. We will disturb a post-conviction court’s decision as

      being contrary to law only where the evidence is without conflict and leads to

      but one conclusion, and the post-conviction court has reached the opposite

      conclusion. Wright v. State, 881 N.E.2d 1018, 1022 (Ind. Ct. App. 2008), trans.

      denied. The post-conviction court is the sole judge of the weight of the evidence

      and the credibility of witnesses. Lindsey v. State, 888 N.E.2d 319, 322 (Ind. Ct.

      App. 2008), trans. denied. We accept the post-conviction court’s findings of fact



      Court of Appeals of Indiana | Memorandum Decision 49A02-1509-PC-1345 | August 31, 2016   Page 6 of 9
       unless they are clearly erroneous, and no deference is given to its conclusions of

       law. Fisher, 878 N.E.2d at 463.


                        I. Ineffective Assistance of Trial Counsel
[8]    Davis argues that the post-conviction court erred when it ruled that his claim of

       ineffective assistance of trial counsel was barred by the doctrine of res judicata.

       He contends that it was error because he was not given any meaningful

       opportunity to litigate his ineffectiveness claims. We disagree.


[9]    Here, Davis filed a motion to correct error following his trial and sentencing,

       which was denied by the trial court. In his motion, Davis asserted that he

       received ineffective assistance of his trial counsel. In its denial of his motion to

       correct error, the trial court found that Davis was convicted at trial “because the

       evidence was against him and not because of any ineffectiveness on his

       attorney’s part.” Appellant’s App. at 637. Although Davis filed an appeal, he

       did not appeal the trial court’s denial of his motion to correct error or his claim

       of ineffective assistance of counsel.


[10]   A defendant may raise a claim of ineffective assistance of trial counsel for the

       first time in a post-conviction proceeding; however, once the defendant chooses

       to raise his claim of ineffective assistance of trial counsel, either on direct appeal

       or in a petition for post-conviction relief, he must raise all issues relating to that

       claim, whether record-based or otherwise. Dawson v. State, 810 N.E.2d 1165,

       1172 (Ind. Ct. App. 2004) (citing Ben–Yisrayl, 738 N.E.2d at 259), trans. denied.

       A defendant who chooses to raise a claim of ineffective assistance of trial

       Court of Appeals of Indiana | Memorandum Decision 49A02-1509-PC-1345 | August 31, 2016   Page 7 of 9
       counsel on direct appeal is foreclosed from relitigating that claim, and the

       earlier ruling that trial counsel was not ineffective is res judicata. Id. Therefore,

       “just as ineffective assistance of trial counsel claims are foreclosed in post-

       conviction proceedings if they are raised on direct appeal, such claims are

       foreclosed where, as here, the issue was raised in a motion to correct error but

       not raised on direct appeal.” Godby v. State, 809 N.E.2d 480, 483 (Ind. Ct. App.

       2004), trans. denied.


[11]   Thus, in the present case, Davis’s claim of ineffective assistance of trial counsel

       was previously raised and adjudicated by the trial court. Davis did not directly

       appeal the trial court’s ruling on his claim of ineffectiveness of his trial counsel.

       Therefore, Davis is barred from re-litigating this claim in his post-conviction

       petition. Id. The post-conviction court did not err in ruling that Davis was not

       entitled to relief on his claim of ineffective assistance of trial counsel.


                               II. Free-Standing Claim of Error
[12]   Post-conviction proceedings are civil proceedings that provide defendants the

       opportunity to raise issues not known or available at the time of the original

       trial or direct appeal. Stephenson v. State, 864 N.E.2d 1022, 1028 (Ind. 2007)

       (citing Conner v. State, 711 N.E.2d 1238, 1244 (Ind. 1999), cert. denied, 531 U.S.

       829 (2000)), cert. denied, 552 U.S. 1314 (2008). Thus, if an issue was known and

       available but not raised on direct appeal, the issue is procedurally foreclosed.

       Id. (citing Timberlake v. State, 753 N.E.2d 591, 597 (Ind. 2001)). “In post-

       conviction proceedings, complaints that something went awry at trial are


       Court of Appeals of Indiana | Memorandum Decision 49A02-1509-PC-1345 | August 31, 2016   Page 8 of 9
       generally cognizable only when they show deprivation of the right to effective

       counsel or issues demonstrably unavailable at the time of trial or direct appeal.”

       Id.


[13]   Here, Davis argues that he was denied his right to represent himself at trial,

       specifically, that the trial court erred when it denied his motion to dismiss his

       trial counsel. Initially, we note that, although Davis did file a motion to dismiss

       his trial counsel with the trial court, nowhere in the motion did he request that

       he be able to represent himself. Therefore, the trial court did not deny Davis’s

       request to represent himself, only his motion to dismiss his trial counsel.


[14]   In its order denying Davis’s petition for post-conviction relief, the post-

       conviction court ruled that he was not entitled to relief because his due process

       claim relating to the trial court’s denial of his motion to dismiss trial counsel

       was a free-standing claim of error. We agree. This free-standing issue raised by

       Davis was known and available at the time of his direct appeal. Therefore, the

       issue had to be raised on direct appeal, and because it was not, it is procedurally

       foreclosed and may not be raised now for the first time on post-conviction relief.

       See Stephenson, 864 N.E.2d at 1028. The post-conviction court properly ruled

       that Davis was not entitled to relief on his contention of error regarding the

       denial of his motion to dismiss trial counsel because it was a free-standing claim

       of error.


[15]   Affirmed.


[16]   Riley, J., and Pyle, J., concur.

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