      MEMORANDUM DECISION
      Pursuant to Ind. Appellate Rule 65(D), this                       Apr 14 2015, 9:42 am
      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
      James E. Manley                                           Gregory F. Zoeller
      New Castle, Indiana                                       Attorney General of Indiana
                                                                Angela N. Sanchez
                                                                Deputy Attorney General
                                                                Indianapolis, Indiana


                                                   IN THE
          COURT OF APPEALS OF INDIANA

      James E. Manley,                                          April 14, 2015

      Appellant-Defendant,                                      Court of Appeals Case No.
                                                                53A01-1407-CR-317
              v.                                                Appeal from the Monroe Circuit
                                                                Court.
                                                                The Honorable Marc R. Kellams,
      State of Indiana,                                         Judge.
      Appellee-Plaintiff.                                       Cause No. 53C02-9702-CF-74




      Sullivan, Senior Judge

[1]   James E. Manley appeals from the trial court’s order denying his motion for

      change of venue from the judge and his motion for relief from judgment.

      Manley contends that the trial court committed reversible error by denying his

      motions. However, finding the State’s cross-appeal issue—whether this is an


      Court of Appeals of Indiana | Memorandum Decision 53A01-1407-CR-317 | April 14, 2015     Page 1 of 5
      impermissible attempt to litigate an unauthorized successive petition for post-

      conviction relief—dispositive, we dismiss his appeal.


[2]   Manley, who is incarcerated as a result of his conviction of two counts of Class

      A felony child molesting and two counts of Class B felony child molesting, filed

      his motion for change of venue from judge and motion for relief from judgment

      in Monroe Circuit Court. In those motions, Manley contended that the child

      molesting statutes under which he was convicted are unconstitutionally

      overbroad, that he was privileged to engage in the sexual conduct at issue under

      the parental privilege to otherwise criminal acts, that material exculpatory

      information was withheld from him at trial, and that the trial court colluded

      with the State to withhold material evidence from him at trial necessitating a

      reversal of his convictions.


[3]   Manley submitted a memorandum of law in support of his motions, but did not

      submit any affidavits or other evidence to support his claims. Without holding

      a hearing, the trial court denied Manley’s motions. Manley now appeals.


[4]   Manley had previously unsuccessfully sought relief on direct appeal from his

      convictions. See Manley v. State, No. 53A04-9806-CR-333 (Ind. Ct. App.

      February 18, 1999). Thereafter, Manley’s appeal from the denial of his petition

      for post-conviction relief was rejected by this Court. See Manley v. State, No.

      53A01-0103-PC-107 (Ind. Ct. App. August 28, 2001) (contending that the child

      molesting statutes were unconstitutionally overbroad and that exculpatory

      evidence was withheld from him). Manley’s subsequent pro se appeal from the


      Court of Appeals of Indiana | Memorandum Decision 53A01-1407-CR-317 | April 14, 2015   Page 2 of 5
      denial of his petition for relief requesting a sentence modification was denied by

      this Court. See Manley v. State, 868 N.E.2d 1175 (Ind. Ct. App. 2007). This

      Court has rejected two of his previous requests to file his successive petitions for

      post-conviction relief in 2004 and in 2006.


[5]   In his reply brief, Manley argues that the State is precluded from raising its

      cross-appeal issue because the State waived the argument. More specifically, he

      claims that the State did not raise the affirmative defense of res judicata at the

      trial court level and did not file a motion to dismiss this appeal prior to filing an

      appellee brief.


[6]   Here, although captioned as a motion for change of venue from the judge and

      motion for relief from judgment, Manley’s requests are collateral attacks of his

      convictions.


              The Court’s rules permit a person convicted of a crime in an
              Indiana state court to challenge the conviction and sentence
              collaterally in a post-conviction proceeding. See Ind. Post-
              Conviction Rule 1. As indicated above, petitioner has already
              availed himself of that procedure. Post-Conviction Rule 1,
              Section 12 specifies the procedure for requesting a second, or
              “successive” collateral review. The rule states:
              (b) The court will authorize the filing of the petition if the
              petitioner establishes a reasonable possibility that the petitioner is
              entitled to post-conviction relief. In making this determination,
              the court may consider applicable law, the petition, and materials
              from the petitioner’s prior appellate and post-conviction
              proceedings including the record, briefs and court decisions, and
              any other material the court deems relevant.
      Wrinkles v. State, 776 N.E.2d 905, 907 (Ind. 2002).

      Court of Appeals of Indiana | Memorandum Decision 53A01-1407-CR-317 | April 14, 2015   Page 3 of 5
[7]    Here, the claims Manley raises on appellate review have already been decided

       against him on prior appellate review. “Res judicata, whether in the form of

       claim preclusion or issue preclusion (also called collateral estoppel), aims to

       prevent repetitious litigation of disputes that are essentially the same, by

       holding a prior final judgment binding against both the original parties and their

       privies.” Becker v. State, 992 N.E.2d 697, 700 (Ind. 2013).


[8]    Although Manley’s claims are collateral attacks on his convictions and are

       barred by res judicata (thereby defeating the required showing of a reasonable

       possibility of entitlement to post-conviction relief), this appeal must be

       dismissed because he has failed to follow the appropriate appellate procedure.

       He has already pursued a direct appeal from his convictions and an appeal from

       the denial of his petition for post-conviction relief. Two requests for the

       authorization to file a successive petition for post-conviction relief have been

       declined by this Court.


[9]    Because Manley has already litigated one petition for post-conviction relief

       relating to his convictions, he must follow the procedure outlined in Post-

       Conviction Rule 1(12) for filing successive petitions. See Young v. State, 888

       N.E.2d 1255, 1257 (Ind. 2008). Manley appeals from the denial of relief he

       sought via an unauthorized successive petition for post-conviction relief,

       therefore we must dismiss the appeal.


[10]   In light of the above, we dismiss Manley’s appeal.


[11]   Dismissed.

       Court of Appeals of Indiana | Memorandum Decision 53A01-1407-CR-317 | April 14, 2015   Page 4 of 5
Bailey, J., and Bradford, J., concur.




Court of Appeals of Indiana | Memorandum Decision 53A01-1407-CR-317 | April 14, 2015   Page 5 of 5
