      MEMORANDUM DECISION
                                                                     Aug 12 2015, 9:02 am
      Pursuant to Ind. Appellate Rule 65(D), this
      Memorandum Decision shall not be regarded as
      precedent or cited before any court except for the
      purpose of establishing the defense of res judicata,
      collateral estoppel, or the law of the case.



      APPELLANT PRO SE                                          ATTORNEYS FOR APPELLEE
      David M. Jones                                            Gregory F. Zoeller
      Pendleton, Indiana                                        Attorney General of Indiana

                                                                Eric P. Babbs
                                                                Deputy Attorney General
                                                                Indianapolis, Indiana


                                                   IN THE
          COURT OF APPEALS OF INDIANA

      David M. Jones,                                          August 12, 2015

      Appellant-Petitioner,                                    Court of Appeals Case No.
                                                               48A02-1410-PC-731
              v.                                               Appeal from the Madison Superior
                                                               Court.
                                                               The Honorable Thomas Newman,
      State of Indiana,                                        Jr., Judge.
      Appellee-Respondent.                                     Cause No. 48D03-0908-PC-264




      Garrard, Senior Judge

[1]   David M. Jones appeals the denial of his petition for post-conviction relief. We

      affirm.


[2]   The facts of the case, as taken from Jones’ direct appeal, are as follows:



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              [T]he victim, Jones’ ex-wife [Donna Jones], saw Jones at her
              place of employment, a bar, on July 19, 1988. Jones had a bulge
              in his shirt which appeared to be a gun. Jones left the bar and
              telephoned the victim, threatening to shoot her. The victim
              notified the police of Jones’ threat, and she left work early.
              On the way home, while stopped at a stop sign, the victim
              noticed Jones in a car in the adjoining lane. Jones was sitting
              with his head and torso out of the vehicle, which was being
              driven by a young woman and which also contained one other
              passenger. Jones pointed his gun at the victim and fired three
              shots in the direction of her car. The car then sped away.
              Jones was arrested and charged with recklessness, a class D
              felony. Jones was also alleged to be an habitual class D felony
              offender on the basis of his 1979 conviction for possession of
              marijuana, a class D felony, and his 1982 conviction for
              operating a motor vehicle while an habitual traffic offender, a
              class D felony. After a trial by jury on August 7th and 8th, 1989,
              Jones was convicted on both counts and he received a four-year
              term of imprisonment for his recklessness conviction, enhanced
              by eight years due to his status as an habitual class D felony
              offender, for a total term of imprisonment of twelve years.
      Jones v. State, 569 N.E.2d 975, 977 (Ind. Ct. App. 1991).


[3]   Jones appealed and raised several issues, including a challenge to the

      sufficiency of the evidence supporting his conviction of recklessness. A panel of

      this Court affirmed his conviction and sentence. Id. at 983.


[4]   In 2009, Jones filed a petition for post-conviction relief. The post-conviction

      court held an evidentiary hearing on Jones’ petition over several days. On the




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                                                                                     1
      final day of the hearing, the court orally denied the petition. This appeal

      followed.


[5]   Jones raises seven issues on appeal, but five of them are procedurally defaulted.

      We address two issues on the merits: (1) whether the post-conviction court

      erred in denying Jones’ claim of newly discovered evidence; and (2) whether

      the post-conviction court erred in denying Jones’ petition without issuing

      findings of fact and conclusions thereon.


                                         A. Procedural Default
[6]   Post-conviction proceedings do not afford a petitioner with a super-appeal, and

      not all issues are available. Mallory v. State, 954 N.E.2d 933, 935 (Ind. Ct. App.

      2011). Claims that are known and available at the time of direct appeal, but are

      not argued, are waived. Singleton v. State, 889 N.E.2d 35, 38 (Ind. Ct. App.

      2008). Here, Jones argues that the original trial court erred by allowing the

      State to present testimony on rebuttal from a witness that had not previously

      been included on the State’s witness list. He further argues that the State

      violated his federal and state rights to due process of law prior to the original

      trial by failing to produce the gun with which he allegedly committed the crime.

      Jones also claims that the original trial court erred by allowing the State to




      1
       Jones included a copy of the post-conviction transcript in his Appellant’s Appendix. We remind Jones that
      Appellate Rule 50(F) provides that parties should not reproduce any part of the transcript in the Appendix
      because the transcript is separately transmitted to the Court.

      Court of Appeals of Indiana | Memorandum Decision 48A02-1410-PC-731 | August 12, 2015           Page 3 of 7
       present evidence of alleged prior bad acts by Jones. These claims could have

       been raised in Jones’ direct appeal and are waived.


[7]    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. Jervis v. State, 28 N.E.3d 361, 368 (Ind. Ct. App. 2015), trans.

       denied. Jones claims that there is insufficient evidence to sustain his conviction

       for recklessness. This claim was raised and adjudicated in his direct appeal and

       is barred by res judicata.


                                 B. Newly Discovered Evidence
[8]    Jones argues that the trial court should not have rejected his claim of newly

       discovered evidence, which he asserts establishes that he is innocent of criminal

       recklessness.


[9]    When appealing the denial of post-conviction relief, the petitioner stands in the

       position of one appealing from a negative judgment. Kubsch v. State, 934

       N.E.2d 1138, 1144 (Ind. 2010). To prevail on appeal, the petitioner must show

       that the evidence as a whole leads unerringly and unmistakably to a conclusion

       opposite that reached by the post-conviction court. Id.


[10]   When reviewing a post-conviction court’s decision as to whether new evidence

       mandates a new trial, we consider whether: (1) the evidence has been

       discovered since the trial; (2) it is material and relevant; (3) it is not cumulative;

       (4) it is not merely impeaching; (5) it is not privileged or incompetent; (6) due

       diligence was used to discover it in time for trial; (7) the evidence is worthy of
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       credit; (8) it can be produced upon a retrial of the case; and (9) it will probably

       produce a different result at retrial. Bradford v. State, 988 N.E.2d 1192, 1198

       (Ind. Ct. App. 2013), trans. denied. The burden of showing that all nine

       requirements are met rests with the petitioner. Kubsch, 934 N.E.2d at 1145.


[11]   At the post-conviction hearing, Jones presented testimony from Christopher

       Wallis, who had been dating Donna Jones when the crime occurred and later

       married her, from Wallis’ mother Beverly, and from Jones’ trial attorney, John

       Ribble.


[12]   Jones attempted several times to have Wallis testify that Donna had told him

       that she had lied about the shooting, but the State objected on grounds of

       hearsay, and the post-conviction court sustained the objections. The post-

       conviction court properly sustained the objections because Wallis’ statements

       were inadmissible hearsay—out of court statements offered to prove the truth of

       the matter asserted. Ind. Evidence Rules 801(c), 802. These statements do not

       amount to admissible evidence. Wallis further testified, without objection, that

       he told his mother that Jones did not commit the crime. However, Wallis also

       testified that he was not present at the scene of the crime, so this statement

       appears to be irrelevant and unworthy of credit.


[13]   Beverly testified, without objection, that Christopher had told her that Jones did

       not commit the crime. She further testified that Donna told her that she had

       lied about the crime. These statements are hearsay that would not be

       admissible at retrial and are thus incompetent. Beverly also testified that she


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       told Jones’ trial attorney, Ribble, that Donna had lied about the event. This

       evidence does not appear to be worthy of credit because it was apparently based

       on Donna’s statement to Beverly, which was inadmissible hearsay.


[14]   Ribble testified that Beverly had told him she overheard Wallis and Donna

       stating that they had lied about the shooting. He also testified that Wallis had

       told him that Wallis had encouraged Donna to make up the event to get Jones

       put in jail. Once again, these statements were inadmissible hearsay and thus

       incompetent for purposes of deciding whether they constituted newly

       discovered evidence.


[15]   In addition, Wallis, Beverly, and Ribble’s statements all share another flaw:

       they are merely impeaching. Donna testified at Jones’ original trial, and her

       testimony was sufficient to sustain Jones’ conviction for criminal recklessness.

       Jones, 569 N.E.2d at 980. Donna died prior to the post-conviction hearing. The

       evidence Jones presented at the post-conviction hearing may have called

       Donna’s testimony into question, but evidence that simply calls prior testimony

       into question does not amount to newly discovered evidence that requires a

       new trial. Cf. State v. McCraney, 719 N.E.2d 1187, 1190 (Ind. 1999)

       (determining that a witness’s complete recantation of prior testimony was more

       than impeaching because it was freestanding evidence of innocence that

       obliterated the witness’s own prior, inculpatory testimony). We cannot

       conclude that the evidence, taken as a whole, leads to a conclusion opposite

       that reached by the post-conviction court.



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                    C. Findings of Fact and Conclusions Thereon
[16]   Jones asserts that the post-conviction court erred by failing to issue findings of

       fact and conclusions thereon denying his petition for post-conviction relief.


[17]   A post-conviction court shall make specific findings of fact and conclusions of

       law on all issues presented. Ind. Post-Conviction Rule 1(6). A post-conviction

       court’s failure to enter specific findings of fact and conclusions of law in ruling

       on a petition is not reversible error when the issues are sufficiently presented for

       review and addressed by the parties. Neville v. State, 663 N.E.2d 169, 174 (Ind.

       Ct. App. 1996). In this case, the parties adequately addressed the one claim

       that was properly preserved for appellate review, so there is no reason to

       remand for the issuance of findings of fact and conclusions thereon.


[18]   For the foregoing reasons, we affirm the judgment of the post-conviction court.


[19]   Kirsch, J., and Bradford, J., concur.




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