      MEMORANDUM DECISION                                                           FILED
                                                                               Dec 08 2017, 9:49 am
      Pursuant to Ind. Appellate Rule 65(D), this
      Memorandum Decision shall not be regarded as                                  CLERK
                                                                                Indiana Supreme Court
      precedent or cited before any court except for the                           Court of Appeals
                                                                                     and Tax Court
      purpose of establishing the defense of res judicata,
      collateral estoppel, or the law of the case.



      ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
      Bryan L. Cook                                            Curtis T. Hill, Jr.
      Carmel, Indiana                                          Attorney General of Indiana

                                                               Monika Prekopa Talbot
                                                               Supervising Deputy Attorney General
                                                               Indianapolis, Indiana


                                                   IN THE
          COURT OF APPEALS OF INDIANA

      Jesse Nolan Cole,                                        December 8, 2017

      Appellant-Petitioner,                                    Court of Appeals Case No.
                                                               32A05-1706-PC-1277
              v.                                               Appeal from the Hendricks Superior
                                                               Court.
                                                               The Honorable Stephenie Lemay-
      State of Indiana,                                        Luken, Judge.
      Appellee-Respondent.                                     Trial Court Cause No.
                                                               32D05-1701-PC-1




      Darden, Senior Judge


                                       Statement of the Case
[1]   Jesse Cole appeals the post-conviction court’s order dismissing his petition for

      post-conviction relief. He contends that the claims he raised in his post-

      conviction relief petition “were never decided on the merits on direct appellate

      Court of Appeals of Indiana | Memorandum Decision 32A05-1706-PC-1277 | December 8, 2017           Page 1 of 7
      review based upon the improper application of the doctrine of harmless error.”

      Appellant’s Br. p. 8. Finding that the matters Cole sought to raise in his post-

      conviction relief petition are res judicata, we affirm.


                                                     Issue
[2]   The sole issue Cole presents (restated) is whether the trial court erred in

      dismissing his petition for post-conviction relief.


                               Facts and Procedural History
[3]   The underlying facts of this case, taken from this court’s memorandum decision

      in Cole’s direct appeal, are as follows:


              At approximately 1:30 a.m. on August 10, 2014, Plainfield Police
              Department Lieutenant Joseph Smock (“Lieutenant Smock”)
              was dispatched to a motorcycle accident on an Interstate 70 West
              off-ramp. When Lieutenant Smock arrived at the scene, he
              discovered Cole lying in a ravine 100 feet from the roadway.
              Lieutenant Smock also saw a motorcycle with its lights on lying
              on its side. It was located 50 to 100 feet from Cole. Cole had
              severe facial injuries and one of his eyes was swollen shut.
              Lieutenant Smock smelled a “very strong odor of alcohol or
              intoxicating beverage coming from [Cole]” and noticed that his
              open eye was bloodshot and glossy. (Tr. 74). Cole was
              transported to IU Methodist Hospital.
              Shortly thereafter, Lieutenant Smock went to the hospital with a
              search warrant for a sample of Cole’s blood. A forensic nurse
              took a blood sample, and, at approximately 3:30 a.m., Cole
              registered .24 gram of alcohol per one hundred milliliters of his
              blood. On December 19, 2014, the State charged Cole with
              OVWI as a Class A misdemeanor and operating a motor vehicle
              with an alcohol concentration equivalent to at least 0.15 gram of

      Court of Appeals of Indiana | Memorandum Decision 32A05-1706-PC-1277 | December 8, 2017   Page 2 of 7
              alcohol per 210 liters of the person’s breath or 100 milliliters of
              the person’s blood (“Operating Per Se (.15)”) as a Class A
              misdemeanor. Thereafter, Cole filed a motion to suppress the
              blood test results, which the trial court denied.
              At the November 2015 trial, Cole’s theory of defense appeared to
              be that someone else was driving the motorcycle. Steve Carroll[,]
              an investigator at the Hendricks County Prosecutor’s Office[,]
              testified that he had “charted the whole path of the motorcycle”
              after the accident and had discovered that it had been sold “out
              of country.” (Tr. 287). According to Carroll, the motorcycle was
              a “crotch-rocket or sport bike,” which had passenger foot-pegs
              closer to the seat than most motorcycles. (Tr. 296). Carroll
              explained that “for a tall person to get on this motorcycle [as a
              passenger] would kind of be like a jockey riding a race horse.”
              (Tr. 297).
              A jury convicted Cole of both charges. The trial court entered
              judgment of conviction for OVWI as a Class A misdemeanor and
              sentenced Cole to 365 days in the Hendricks County Jail with
              363 days suspended and credit of one day for one day served.
              (App. 25).


      Cole v. State, No. 32A04-1512-CR-2045, slip op. at 1 (Ind. Ct. App. June 21,

      2016), reh’g denied, trans. denied (footnote omitted).


[4]   On direct appeal, Cole claimed that the trial court erred when it admitted the

      blood test evidence and that the evidence was insufficient to show that he was

      intoxicated. This court affirmed the trial court’s judgment (see id. at 1-2),

      specifically finding that the evidence was sufficient to sustain Cole’s conviction

      for operating a vehicle while intoxicated. Id. at 2. Regarding the challenge to

      the admission to the blood test evidence, this court, in a footnote, found that it:



      Court of Appeals of Indiana | Memorandum Decision 32A05-1706-PC-1277 | December 8, 2017   Page 3 of 7
              need not decide this issue because any error in the admission of
              the blood test evidence was harmless. . . . Blood alcohol tests are
              not necessary to support a conviction for operating a vehicle
              while intoxicated pursuant to Indiana Code § 9-30-5-2. Where
              there is no statutory requirement of proof of a particular blood-
              alcohol content above which a person is intoxicated, the State
              may prove intoxication by a showing of impairment. Here, the
              State met that burden with evidence that amply supported the
              jury’s finding that Cole operated his vehicle while intoxicated.
              The [blood] test results likely had no impact on the jury’s verdict,
              and under these circumstances, any error in their admission was
              harmless.


      Id., n.3 (internal citations omitted). Cole sought rehearing, which this court

      denied on August 16, 2016, and then sought transfer, which our supreme court

      denied on October 20, 2016.


[5]   On January 26, 2017, Cole, by counsel, filed a petition for post-conviction

      relief, in which he claimed that his constitutional, statutory, and appellate rights

      were violated with regard to the admission of his blood test at trial and this

      Court’s decision on direct appeal. On March 1, 2017, the State filed a motion

      to dismiss, arguing that the issues Cole raised had been decided by this Court

      on appeal, and, thus, could not be raised in a post-conviction relief petition.

      Cole timely filed an objection to the motion. On May 22, 2017, the post-

      conviction court held a hearing and, on the same day, granted the State’s

      motion and dismissed Cole’s post-conviction relief petition. Cole now appeals.




      Court of Appeals of Indiana | Memorandum Decision 32A05-1706-PC-1277 | December 8, 2017   Page 4 of 7
                                   Discussion and Decision
[6]   Cole argues that the post-conviction court erred in dismissing his post-

      conviction relief petition. Cole maintains that he sought post-conviction relief

      from errors that occurred during his criminal trial but were not addressed by

      this Court on direct appeal due to the “doctrine of harmless error.” Appellant’s

      Br. p. 4. He summarizes his argument as follows:


              [T]he trial court erred in admitting evidence when police used
              false, material representations and/or omissions in order to
              obtain a search warrant for the crucial blood alcohol evidence.
              Consequently, said evidence was unlawfully obtained by police
              and was improperly admitted as evidence by the trial court.
              Further, the trial court erred during the jury trial in admitting
              blood test result evidence when the State failed to establish a
              foundation that the blood draw protocol was prepared by a
              physician. On direct appeal, the Court of Appeals did not
              address the improper blood test admission issues based upon the
              erroneous application of the harmless error doctrine. The Court
              of Appeals denied rehearing on this issue, and the Indiana
              Supreme Court did not accept transfer. Consequently, Cole has
              never had a “meaningful” appeal on important evidentiary issues
              raised in his jury trial leading to his flawed convictions, and the
              only foreseeable remedy was a PCR Petition which was
              erroneously dismissed by the trial court.


      Id. at 8. The State maintains that Cole’s challenge to the admission of the blood

      test evidence is barred by res judicata because he raised the issues on direct

      appeal. We agree.




      Court of Appeals of Indiana | Memorandum Decision 32A05-1706-PC-1277 | December 8, 2017   Page 5 of 7
[7]   A petitioner bears the burden of establishing the grounds for post-conviction

      relief by a preponderance of the evidence. See Ind. Post-Conviction Rule

      1(5); Timberlake v. State, 753 N.E.2d 591, 597 (Ind. 2001). Post-conviction

      procedures do not afford a petitioner with a super-appeal, and not all issues are

      available. Timberlake, 753 N.E.2d at 597. Rather, subsequent collateral

      challenges to convictions must be based on grounds enumerated in the post-

      conviction rules. Id. If an issue was known and available, but not raised on

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

      it is res judicata. 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. The
              doctrine of res judicata prevents the repetitious litigation of that
              which is essentially the same dispute. And, 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. “[W]here an issue, although differently
              designated, was previously considered and determined upon a
              criminal defendant’s direct appeal, the State may defend against
              defendant’s post-conviction relief petition on grounds of prior
              adjudication or [res judicata].”


      Jervis v. State, 28 N.E.3d 361, 368 (Ind. Ct. App. 2015), trans. denied (internal

      citations omitted).


[8]   On direct appeal, Cole specifically contended that “the trial court erred in

      admitting this evidence because (1) the search warrant for [his] blood was not

      supported by probable cause, (2) the police made material misrepresentations in

      Court of Appeals of Indiana | Memorandum Decision 32A05-1706-PC-1277 | December 8, 2017   Page 6 of 7
       order to obtain the warrant; and (3) the State failed to establish a foundation

       that the blood draw protocol was prepared by a physician.” Cole, No. 32A04-

       1512-CR-2045, slip op. at 2 n.3. This Court addressed Cole’s claims, albeit in a

       footnote, finding that the claims were subject to the harmless error analysis, that

       the blood test results likely had no impact on the jury’s guilty verdict, and that

       any error in the admission of the evidence was harmless. Id. Based upon its

       findings, this court determined that it need not consider each of Cole’s specific

       contentions regarding the admission of the blood evidence. Cole’s petition for

       transfer, seeking a decision on the blood test admissibility issue, was denied by

       our supreme court.


[9]    Cole’s claims regarding the admissibility of the blood test evidence were

       decided on appeal. His efforts to re-raise the issues in a post-conviction relief

       petition are barred by res judicata. The trial court properly dismissed Cole’s

       post-conviction relief petition.


                                                Conclusion
[10]   For the reasons stated, we find that the trial court did not err in dismissing

       Cole’s petition for post-conviction relief.


[11]   Affirmed.


       Vaidik, C.J., and Bradford, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 32A05-1706-PC-1277 | December 8, 2017   Page 7 of 7
