Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not
be regarded as precedent or cited
before any court except for the                              Jun 14 2013, 8:26 am
purpose of establishing the defense of
res judicata, collateral estoppel, or the
law of the case.

APPELLANT PRO SE:                                 ATTORNEYS FOR APPELLEE:

JIMMY D. JONES                                    GREGORY F. ZOELLER
New Castle, Indiana                               Attorney General of Indiana

                                                  JUSTIN F. ROEBEL
                                                  Deputy Attorney General
                                                  Indianapolis, Indiana


                              IN THE
                    COURT OF APPEALS OF INDIANA

JIMMY D. JONES,                                   )
                                                  )
       Appellant-Defendant,                       )
                                                  )
              vs.                                 )     No. 49A04-1204-PC-196
                                                  )
STATE OF INDIANA,                                 )
                                                  )
       Appellee-Plaintiff.                        )


                      APPEAL FROM THE MARION SUPERIOR COURT
                          The Honorable Robert R. Altice, Jr., Judge
                             Cause No. 49G02-9312-PC-160463




                                        June 14, 2013



               MEMORANDUM DECISION - NOT FOR PUBLICATION



ROBB, Chief Judge
                                Case Summary and Issue

       Jimmy Jones was convicted in 1994 of attempted murder, a Class A felony, and

carrying a handgun without a license, a Class D felony, and sentenced to forty-eight years

imprisonment. On direct appeal, this court affirmed Jones’s convictions. Jones’s 1998

petition for post-conviction relief was denied, and the denial was affirmed on appeal to

this court. Jones filed a successive petition for post-conviction relief in 2011. This

petition was also denied. Jones now appeals the denial, raising four issues for our review

of which we find the following dispositive: whether the post-conviction court clearly

erred in finding that his claims were waived. Concluding the post-conviction court did

not err, we affirm.

                              Facts and Procedural History

       Jones was charged with attempted murder and carrying a handgun without a

license for shooting at a police officer in November 1993. After the commission of the

crime but before Jones’s trial and sentencing in July and August 1994, Indiana sentencing

statutes were amended. As relevant to this appeal, the amendments added a provision

limiting the total of consecutive terms of imprisonment for multiple convictions arising

from a single episode of criminal conduct to the presumptive sentence for a felony one

class higher than the most serious felony of which the person was convicted; changed the

presumptive sentence for murder from forty to fifty years; and lowered the maximum

sentence for a Class A felony from fifty to forty-five years. See Ind. Pub. Law 164-1994.

The trial court, applying the newly-enacted statutes, sentenced Jones to forty-five years

for his Class A felony attempted murder conviction, to be served consecutively to a three-


                                            2
year sentence for the carrying a handgun without a license conviction for a total sentence

of forty-eight years.

       Jones filed a direct appeal of his convictions, making two arguments: that his

waiver of a jury trial was not knowingly and intelligently made, and that the evidence of

his intent to kill was insufficient to support his conviction of attempted murder. See

Appellant’s Appendix at 94. This court disagreed with both contentions and affirmed his

convictions. See id. at 117 (Jones v. State, No. 49A04-9412-CR-508 (Ind. Ct. App., Aug.

30, 1995), trans. denied).

       In 1998, Jones filed a petition for post-conviction relief, raising three issues: that

he received the ineffective assistance of trial counsel; that the trial court abused its

discretion in denying his motion to withdraw his jury waiver; and that he received the

ineffective assistance of appellate counsel. See id. at 125-26. The post-conviction court

found against Jones on each claim and denied his petition for relief. See id. at 142. This

court affirmed the post-conviction court’s denial of Jones’s petition. See id. at 145 (Jones

v. State, No. 49A04-0310-PC-537 (Ind. Ct. App., Oct. 22, 2004)).

       In 2011, this court granted Jones permission to pursue a successive petition for

post-conviction relief.      He filed his petition alleging that his consecutive sentences

exceed the length allowed by Indiana Code section 35-50-1-2 and that his appellate

counsel was ineffective for failing to raise the sentencing issue on direct appeal. The

post-conviction court found that Jones had waived consideration of the issues he raised in

his successive petition by failing to raise them previously, but waiver notwithstanding,

was not entitled to relief on his claims on the merits, because his sentence was not

erroneous and therefore his appellate counsel was not ineffective for failing to raise the
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issue on appeal. Jones’s successive petition was therefore denied. Jones now appeals the

denial.

                                   Discussion and Decision

                                    I. Standard of Review

          In post-conviction proceedings, the petitioner bears the burden of proving he is

entitled to relief by a preponderance of the evidence. Henley v. State, 881 N.E.2d 639,

643 (Ind. 2008). “To prevail on appeal from the denial of post-conviction relief, a

petitioner must show that the evidence as a whole leads unerringly and unmistakably to a

conclusion opposite that reached by the post-conviction court.” Kubsch v. State, 934

N.E.2d 1138, 1144 (Ind. 2010), reh’g denied.

          In addition, the post-conviction court entered findings of fact and conclusions of

law in accordance with Indiana Post-Conviction Rule 1(6). “The post conviction court is

the sole judge of the weight of the evidence and the credibility of witnesses.” Woods v.

State, 701 N.E.2d 1208, 1210 (Ind. 1998), cert. denied, 528 U.S. 861 (1999). Although

we do not defer to the post-conviction court’s legal conclusions, Wilson v. State, 799

N.E.2d 51, 53 (Ind. Ct. App. 2003), “[a] post-conviction court’s findings and judgment

will be reversed only upon a showing of clear error – that which leaves us with a definite

and firm conviction that a mistake has been made[,]” Ben–Yisrayl v. State, 729 N.E.2d

102, 106 (Ind. 2000) (citation and quotation marks omitted), cert. denied, 534 U.S. 830

(2001).      “In short, the question before us is whether there is any way the [post-

conviction] court could have reached its decision.” Id. (quotation omitted).

                                          II. Waiver

          With respect to waiver, the post-conviction court found:
                                               4
               Initially the court finds that Jones has waived consideration of the
       issues raised in this successive petition for post-conviction relief. In his
       petition Jones raises two issues for consideration, trial court error, and
       ineffective assistance of appellate counsel. The law in this jurisdiction is
       settled that sentencing issues which are known or available at the time of
       direct appeal but are not raised are waived for post-conviction review. The
       Court also finds that Jones raised the issues of ineffective assistance of
       appellate counsel in his first post conviction relief petition. Jones also
       acknowledges this fact in his current arguments to the Court.
       Consequently, the issue of appellate counsel competence was resolved in
       the first post-conviction proceeding and therefore, the issue of ineffective
       assistance of appellate counsel is waived in this second post-conviction
       proceeding.

Appellant’s App. at 209-10 (citations omitted). Jones argues the post-conviction court

erred in finding waiver because the State did not raise waiver in its answer to his petition

and also because his claims are not waived.

       The State does not dispute that it did not raise waiver as an affirmative defense in

its answer.1 However, this is not a matter of the State raising waiver to this court for the

first time on appeal after having not raised it to the post-conviction court and the post-

conviction court rendering a decision solely on the merits. The post-conviction court

found waiver on its own accord and we are reviewing that determination. Moreover, as

our supreme court noted in Bunch v. State, 778 N.E.2d 1285, 1287 (Ind. 2002), there is a

difference between waiver as an affirmative defense and waiver as a “discretionary

judicial doctrine that forecloses an issue on appeal.” Just as an appellate court “is not

precluded from determining that an issue is foreclosed under a wide variety of

circumstances[,]” including where “procedural default of an issue is an appropriate basis

to affirm the judgment below[,]” id. at 1289, a post-conviction court should not be

precluded from considering whether a petitioner’s claims are entitled to review on their

       1
           In fact, the State did not file an answer at all. See Transcript at 5.
                                                            5
merits. Cf. Clark v. State, 648 N.E.2d 1187, 1191 (Ind. Ct. App. 1995) (“It is clear that at

some point, whether specifically pleaded by the State or not, a post-conviction petitioner

is not entitled to further review of questions finally determined.”), trans. denied.

“[C]oncepts of waiver, for failure to raise issues available, and res judicata, barring

relitigation of issues previously adjudicated, are fully applicable to post-conviction

proceedings.” Id. at 1190. Therefore, the post-conviction court was not precluded from

finding waiver if such a finding was appropriate on the evidence before it regardless of

the State’s failure to plead it.   Further, we are not precluded from reviewing the post-

conviction court’s waiver finding, just as we would not be precluded from sua sponte

finding the issues foreclosed had the post-conviction court not made that finding on its

own.

       “The purpose of post-conviction relief proceedings is to afford petitioners a forum

in which to raise issues unknown or unavailable to a defendant at the time of the original

trial and appeal.” State v. Jones, 835 N.E.2d 1002, 1004 (Ind. 2005) (quotation omitted).

       Proper successive petitions [for post-conviction relief] contain claims that
       by their nature could not have been raised in earlier proceedings. Claims
       that could have been, but were not, raised in earlier proceedings and
       otherwise were not properly preserved are procedurally defaulted; . . .
       [c]laims that have already been decided adversely are barred from re-
       litigation in successive post-conviction proceedings by the doctrine of res
       judicata.

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

       Jones’s claim that the sentence the trial court imposed exceeded statutory authority

was known and available at the time of his direct appeal. The relevant sentencing statutes

were amended during the pendency of his case, but the trial court sentenced him pursuant

to the statutes in effect on the date of his sentencing, and any claims that the trial court
                                             6
erred in doing so or applied those statutes erroneously should have been raised in his

direct appeal. Jones offered the Brief of Appellant filed on his behalf in his direct appeal

as evidence in support of his post-conviction petition. Moreover, Jones himself at oral

argument before the post-conviction court stated that the sentencing issue was “obvious

from the face of the record.” Tr. at 13. That the issue was not raised on direct appeal is

apparent from the evidence before the post-conviction court, and therefore, the post-

conviction court did not err in finding that Jones’s post-conviction sentencing claim is

waived.

        Jones’s claim that his appellate counsel was ineffective for failing to raise the

sentencing claim on direct appeal should have been raised in his first post-conviction

petition when he raised other ineffective assistance of appellate counsel claims.                               A

defendant must present all claims of ineffective assistance of counsel at the same time.

Hardy v. State, 786 N.E.2d 783, 787 (Ind. Ct. App. 2003), trans. denied. Again, Jones

acknowledges he had previously raised ineffective assistance of appellate counsel claims,

see Brief of Appellant at 12, and Jones’s first petition for post-conviction relief, in which

he alleged ineffective assistance of appellate counsel on other grounds, is subject to

judicial notice, see Ind. Evidence Rule 201; Sanders v. State, 782 N.E.2d 1036, 1038-39

(Ind. Ct. App. 2003). Therefore, the post-conviction court did not err in finding that

Jones’s attempt to assert another, different ground for ineffective assistance of appellate

counsel in a successive petition for post-conviction relief is also waived.2




        2
           Because we affirm the post-conviction court on the waiver issue, we need not address the post-conviction
court’s decision on the merits of Jones’s petition.
                                                        7
                                         Conclusion

       The post-conviction court did not clearly err in determining that the claims Jones

has raised in his successive petition for post-conviction relief were barred because he had

failed to raise them previously. The judgment of the post-conviction court denying

Jones’s successive petition for relief is affirmed.

       Affirmed.

FRIEDLANDER, J., and CRONE, J., concur.




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