      MEMORANDUM DECISION
      Pursuant to Ind. Appellate Rule 65(D),
      this Memorandum Decision shall not be
                                                                                         FILED
      regarded as precedent or cited before any                                   Nov 06 2019, 10:03 am

      court except for the purpose of establishing                                       CLERK
                                                                                    Indiana Supreme Court
      the defense of res judicata, collateral                                          Court of Appeals
                                                                                         and Tax Court
      estoppel, or the law of the case.


      ATTORNEY FOR APPELLANT                                  ATTORNEYS FOR APPELLEE
      A. David Hutson                                         Curtis T. Hill, Jr.
      Hutson Legal                                            Attorney General of Indiana
      Jeffersonville, Indiana
                                                              Chandra K. Hein
                                                              Deputy Attorney General
                                                              Indianapolis, Indiana



                                                IN THE
          COURT OF APPEALS OF INDIANA

      Danny R. Bailey,                                        November 6, 2019
      Appellant-Petitioner,                                   Court of Appeals Case No.
                                                              18A-PC-2805
              v.                                              Appeal from the Vanderburgh
                                                              Superior Court
      State of Indiana,                                       The Honorable Mary Margaret
      Appellee-Respondent.                                    Lloyd, Judge
                                                              Trial Court Cause No.
                                                              82D05-1607-PC-3692



      Mathias, Judge.

[1]   Danny R. Bailey (“Bailey”) appeals the Vanderburgh Superior Court’s denial of

      his successive petition for post-conviction relief. Bailey presents five issues,


      Court of Appeals of Indiana | Memorandum Decision 18A-PC-2805 | November 6, 2019                 Page 1 of 10
      which we consolidate and restate as whether the post-conviction court clearly

      erred in determining that Bailey was not denied the effective assistance of trial

      and appellate counsel. Concluding that Bailey’s post-conviction claims have

      either been waived or are barred by the doctrine of res judicata, we affirm.


                                 Facts and Procedural History
[2]   The facts underlying Bailey’s convictions were set forth by this court in Bailey’s

      direct appeal as follows:


              M.B., who is Bailey’s biological daughter, was born on March
              10, 1996. Bailey and M.B.’s mother later divorced and Bailey
              exercised parenting time with M.B. on weekends and a few hours
              on Wednesdays at his residence in Evansville.

              During one of these visits, prior to 2007, Bailey asked M.B. to go
              into her room so he could show her how to use a vibrator. The
              vibrator belonged to Bailey and his second wife. Bailey ordered
              M.B. to lie on the bed and remove her clothes. After M.B.
              complied, Bailey rubbed M.B.’s vagina with his finger and the
              vibrator, and inserted his fingers and the vibrator into M.B.’s
              vagina. Bailey also told M.B. that she could “pleasure herself
              with a tampon.”

              On another occasion, Bailey approached M.B. when she had
              stepped out of the shower. The only shower in the house was
              accessible through Bailey’s bedroom. Bailey asked M.B., who
              was naked, “if he could check out [her] boobs to make sure [she]
              didn’t have like breast cancer or something like that.” Bailey then
              “fondled, felt, and pressed,” on M.B.’s breasts, and told her that
              they looked “perky.” Bailey would also walk in on M.B. on
              multiple occasions and have frequent talks with her about “items
              involving sexual activity,” . . . and would ask if “her body . . .
              and boobs were doing ok.”


      Court of Appeals of Indiana | Memorandum Decision 18A-PC-2805 | November 6, 2019   Page 2 of 10
      Bailey v. State, No. 82A05-1108-CR-398, 2012 WL 1069016 at *1 (Ind. Ct. App.

      Mar. 29, 2012) (“Bailey I”) (record citations omitted).


[3]   As a result of these incidents, the State charged Bailey with Class A felony child

      molesting, Class B felony incest, and Class C felony child molesting. Following

      a jury trial, the jury found Bailey guilty as charged. The trial court sentenced

      Bailey to an aggregate term of forty years of incarceration. On direct appeal,

      Bailey claimed only that his forty-year sentence was inappropriate given the

      nature of his offenses and his character. We rejected these claims and affirmed

      Bailey’s sentence. Id. at *3.


[4]   As set forth in our memorandum decision in Bailey’s appeal of the denial of his

      first petition for post-conviction relief:


              Following this decision [on direct appeal], Bailey filed a petition
              for post-conviction relief in which he alleged that he had been
              denied effective assistance of counsel. Bailey alleged that his trial
              counsel had never informed him that, prior to trial, the State had
              offered Bailey a plea that would have resulted in a term of fifteen
              years. The post-conviction court held a hearing on October 24,
              2014.

              Bailey called his trial attorney, Kurt Schnepper, to testify at the
              hearing. Schnepper testified that the State initially offered a plea
              agreement with a sentence of forty years. He testified that he
              discussed this plea with Bailey but did not recommend that
              Bailey accept it. Schnepper further testified that the State offered
              a second plea agreement, this time with a sentence of fifteen
              years. In regard to this plea offer, Schnepper testified that while
              he did not have a specific recollection of communicating the offer
              to Bailey, it was his practice to always communicate plea offers


      Court of Appeals of Indiana | Memorandum Decision 18A-PC-2805 | November 6, 2019   Page 3 of 10
              to his clients. Following the hearing, the postconviction court
              denied Bailey’s petition for post-conviction relief.


      Bailey v. State, No. 82A01-1501-CR-28, 2015 WL 4611444 at *1 (Ind. Ct. App.

      July 31, 2015) (“Bailey II”).


[5]   On appeal from the denial of his petition for post-conviction relief, Bailey

      argued that the evidence before the post-conviction court established that his

      trial counsel failed to engage in meaningful plea negotiations, thereby denying

      him the effective assistance of counsel. Id. Specifically, Bailey argued that the

      evidence presented at the post-conviction hearing showed that his trial counsel

      failed to adequately inform Bailey of the details of the State’s original forty-year

      offer and that his trial counsel wholly failed to inform Bailey of the State’s

      subsequent fifteen-year offer. We held that Bailey’s claims were simply requests

      to reweigh the evidence and that there was sufficient evidence to support the

      post-conviction court’s findings. Id. at *2. We therefore affirmed the post-

      conviction court’s denial of Bailey’s petition for relief. Id.


[6]   On June 9, 2016, Bailey sought the permission of this court to file a successive

      petition for post-conviction relief. See Ind. Post-Conviction Rule 1 § 12. We

      granted Bailey’s request on July 12, 2016, and Bailey subsequently filed his

      successive petition for post-conviction relief on July 28, 2016. The post-

      conviction court held a hearing on Bailey’s successive petition on April 20,

      2018, after which the parties filed proposed findings and conclusions. Then, on

      October 25, 2018, the post-conviction court issued findings of fact and

      conclusions of law denying Bailey’s successive petition. Bailey now appeals.
      Court of Appeals of Indiana | Memorandum Decision 18A-PC-2805 | November 6, 2019   Page 4 of 10
                                         Standard of Review
[7]   A post-conviction petitioner bears the burden of establishing grounds for relief

      by a preponderance of the evidence. Willoughby v. State, 792 N.E.2d 560, 562

      (Ind. Ct. App. 2003), trans. denied. When a petitioner appeals the denial of a

      petition for post-conviction relief, the petitioner stands in the position of one

      appealing from a negative judgment. Id. On appeal, we neither reweigh

      evidence nor judge the credibility of witnesses; therefore, to prevail, the

      petitioner must show that the evidence in its entirety leads unerringly and

      unmistakably to a conclusion opposite that reached by the post-conviction

      court. Id.


[8]   In the present case, Bailey appeals the denial of his second petition for post-

      conviction relief. Successive petitions for post-conviction relief properly contain

      only claims that, by their nature, could not have been raised in earlier

      proceedings. Matheney v. State, 834 N.E.2d 658, 662 (Ind. 2005). Claims that

      could have been, but were not, raised in earlier post-conviction proceedings are

      procedurally defaulted, and successive petitions should not be authorized for

      such forfeited claims. Id. Claims that were presented in previous petitions but

      decided against the petitioner are barred from re-litigation in successive post-

      conviction proceedings by the doctrine of res judicata. Id.


                                I. Ineffective Assistance of Trial Counsel

[9]   Bailey first contends that his trial counsel was ineffective for failing to object to

      the following evidence: (1) M.B.’s testimony that Bailey offered to help her with


      Court of Appeals of Indiana | Memorandum Decision 18A-PC-2805 | November 6, 2019   Page 5 of 10
       her tampons, which he claims was inadmissible under Indiana Evidence Rule

       403; (2) the testimony of Bailey’s ex-wife regarding the presence of surveillance

       cameras in the home, which he also claims was inadmissible under Indiana

       Evidence Rule 403; and testimony from the detective who interviewed M.B.

       regarding the techniques the detective used to interview M.B., which Bailey

       claims constituted improperly vouching under Indiana Evidence Rule 704(b).


[10]   The problem with Bailey’s claims is that they could have been presented in his

       initial petition for post-conviction relief. There is no indication that these

       arguments were somehow unknown or otherwise unavailable to him at the time

       he filed is first post-conviction petition. Instead, his current claims are simply

       additional reasons why he believes his trial counsel was ineffective. Absent

       newly discovered evidence or a Brady violation, “a defendant is entitled to one

       post-conviction hearing and one post-conviction opportunity to raise the issue

       of ineffectiveness of trial counsel[.]” Daniels v. State, 741 N.E.2d 1177, 1185

       (Ind. 2001).


[11]   Bailey had that opportunity in his initial post-conviction petition and hearing.

       He presents no claim of newly discovered evidence or a Brady violation. Thus,

       his current claims of ineffective assistance of trial counsel are barred by res

       judicata.1 See id. at 1188–89 (holding that defendant could not present new


       1 It is of no moment that the State did not (and does not) argue for the application of res judicata. Although a
       party who has failed to plead or prove an affirmative defense has no right to prevail on that basis, “an
       appellate court is not precluded from determining that an issue is foreclosed under a wide variety of
       circumstances.” Bunch v. State, 778 N.E.2d 1285, 1289 (Ind. 2002). The power to determine that an issue is
       forfeited is an application of the basic principle that post-conviction proceedings do not afford the


       Court of Appeals of Indiana | Memorandum Decision 18A-PC-2805 | November 6, 2019                    Page 6 of 10
       claims of ineffective assistance of trial counsel in successive petition for post-

       conviction relief where a claim of ineffective assistance of trial counsel was

       presented and litigated in the initial post-conviction proceedings); Matheney, 834

       N.E.2d at 662 (holding that claims presented in previous post-conviction

       petitions but decided against the petitioner are barred from re-litigation by the

       doctrine of res judicata).


[12]   Nor does it matter that Bailey wants to bring new claims of ineffective

       assistance of trial counsel in his successive petition. See Craig v. State, 804

       N.E.2d 170, 173 (Ind. Ct. App. 2004) (holding that if a defendant presents

       claim of ineffective assistance of counsel on direct appeal, then res judicata

       prevents him from relitigating this claim in post-conviction proceedings even if

       it is based on different allegations of ineffectiveness); Hardy v. State, 786 N.E.2d

       783, 787 (Ind. Ct. App. 2003) (“[A] defendant must present all claims of

       ineffective assistance of counsel . . . at the same time. Those not presented when

       a claim of ineffective assistance of counsel is first advanced . . . are waived.”),

       trans. denied.


[13]   In his successive petition for post-conviction relief, Bailey claimed that his post-

       conviction counsel “abandoned” many of his claims without Bailey’s consent at

       the first post-conviction hearing. Successive PCR App. p. 11. But this does not




       opportunity for a “super-appeal.” Id.; see also Varner v. State, 847 N.E.2d 1039, 1042–43 (Ind. Ct. App. 2006)
       (affirming the post-conviction court’s sua sponte determination that petitioner’s claim was res judicata), trans.
       denied. Accordingly, we have the authority to determine whether Bailey’s current claims are forfeited on the
       basis of res judicata.

       Court of Appeals of Indiana | Memorandum Decision 18A-PC-2805 | November 6, 2019                    Page 7 of 10
       mean that his current claims of ineffectiveness are based on newly discovered

       evidence or a Brady violation so that res judicata would be inapplicable. At

       most, his claim of “abandonment” suggests a claim of ineffective assistance of

       post-conviction counsel. But Bailey never developed such a claim in his

       successive post-conviction petition.2


[14]   In short, Bailey’s current claims of ineffective assistance of trial counsel were

       known and available at the time of his initial post-conviction petition.

       Therefore, Bailey’s current claims of ineffective assistance of trial counsel are

       barred by the doctrine of res judicata.


                              II. Ineffective Assistance of Appellate Counsel

[15]   Bailey also contends that his appellate counsel was ineffective for failing to raise

       the issues regarding the admission of the above-referenced testimony in his

       direct appeal. Bailey insists that, in his direct appeal, he wanted to present

       claims that could result in a new trial, but his appellate counsel presented only a

       claim regarding the length of his sentence. Baily argues that the evidentiary

       issues were “significant and obvious from the face of the record,” and that they


       2Even if he had, such an argument would fail. Our supreme court has long held that a claim alleging
       defective performance of counsel at a prior post-conviction hearing “poses no cognizable grounds for post-
       conviction relief.” Matheney, 834 N.E.2d at 663 (quoting Baum v. State, 533 N.E.2d 1200, 1200 (Ind. 1989)).
       And in Graves v. State, 823 N.E.2d 1193, 1195–97 (Ind. 2005), the court reiterated that post-conviction
       proceedings are not criminal actions and are not subject to the Strickland standard. Instead, the appropriate
       question is whether “counsel in fact appeared and represented the petitioner in a procedurally fair setting
       which resulted in a judgment of the court.” Matheney, 834 N.E.2d at 663 (quoting Graves, 823 N.E.2d at 1196;
       Baum, 533 N.E.2d at 1201). Here, the record reveals that Bailey’s post-conviction counsel in fact appeared
       and represented Bailey in a procedurally fair setting that resulted in a judgment of the court—a judgment
       which we affirmed on appeal. The fact that Bailey’s post-conviction counsel chose claims he believed were
       more likely to prevail does not constitute “abandonment” and did not deprive Bailey of a procedurally fair
       post-conviction hearing. See id. (citing Baird v. State, 831 N.E.2d 109, 117 (Ind. 2005)).

       Court of Appeals of Indiana | Memorandum Decision 18A-PC-2805 | November 6, 2019                Page 8 of 10
       were much stronger than the issue presented by his appellate counsel.

       Appellant’s Br. at 24.


[16]   Yet again, however, there is no indication that the issue of his appellate

       counsel’s effectiveness was unknown or unavailable to him in his first post-

       conviction petition. Thus, his claim is one that could have been, but was not,

       raised in the earlier post-conviction proceeding and is therefore forfeited by

       procedural default. See Matheney, 834 N.E.2d at 662. And Bailey makes no

       allegation that his claim of ineffective assistance of appellate counsel is based on

       any newly discovered evidence. Instead, it is based on material already in the

       record of his trial and appeal. Because Bailey’s claim of ineffective assistance of

       appellate counsel could have been, but was not, raised in his initial post-

       conviction petition, it cannot properly be brought in a successive post-

       conviction petition. See id.; see also Daniels, 741 N.E.2d at 1189 (affirming post-

       conviction court’s denial of defendant’s successive post-conviction petition

       alleging ineffective assistance of appellate counsel where this issue was available

       but not raised in defendant’s first post-conviction petition).3


                                                     Conclusion
[17]   Bailey’s claims of ineffective assistance of trial counsel are barred by res

       judicata because he raised a claim of ineffective assistance of trial counsel in his

       first post-conviction petition. His claim of ineffective assistance of appellate


       3 Again, Bailey does not argue that his post-conviction counsel was ineffective for failing to present a claim of
       ineffective assistance of trial counsel in his first post-conviction petition. And, even if he did, this argument
       would fail. See note 2, supra.

       Court of Appeals of Indiana | Memorandum Decision 18A-PC-2805 | November 6, 2019                    Page 9 of 10
       counsel is procedurally defaulted because it was available, but not raised, in his

       first post-conviction petition. We therefore affirm the post-conviction court’s

       denial of Bailey’s successive petition for post-conviction relief.


[18]   Affirmed.


       Robb, J., and Pyle, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 18A-PC-2805 | November 6, 2019   Page 10 of 10
