Derek Jones v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: January 14, 2016
• Docket: 20A04-1506-PC-780
• Status: Published

Opinion

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be Jan 14 2016, 6:21 am 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 Derek Jones Gregory F. Zoeller Michigan City, Indiana Attorney General of Indiana Michael Gene Worden Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Derek Jones, January 14, 2016 Appellant-Petitioner, Court of Appeals Case No. 20A04-1506-PC-780 v. Appeal from the Elkhart Superior Court State of Indiana, The Honorable Thomas Ryan, Appellee-Respondent Judge Trial Court Cause No. 20D03-1501-PC-1

Baker, Judge.

Court of Appeals of Indiana | Memorandum Decision 20A04-1506-PC-780 | January 14, 2016 Page 1 of 5 [1] Derek Jones appeals the denial of his petition for post-conviction relief.

Finding the denial appropriate, we affirm.

[2] On January 12, 2011, a jury found Derek Jones guilty of class A felony child

molesting, two counts of class A attempted child molesting, three counts of

class B felony vicarious sexual gratification, four counts of class C felony child

molesting, class D felony performing sexual conduct in the presence of a minor,

and class D felony dissemination of matter harmful to minors. On February 18,

2011, the trial court sentenced him to an aggregate executed sentence of ninety-

seven years.

[3] On appeal, in an unpublished decision, we affirmed most aspects of his

conviction but vacated one forty-year sentence, remanding with instructions to

impose a six-year sentence on that count. Jones v. State, No. 20A03-1103-CR-

95, 2011 WL 5507197, at *8 (Ind. Ct. App. Nov. 10, 2011). This reduced the

aggregate sentence from ninety-seven to sixty-nine years. Id. We found Jones’s

other arguments—insufficiency of the evidence, double jeopardy,

inappropriateness of his sentence—to be unavailing. Id.

[4] Jones filed a petition for post-conviction relief on January 9, 2015. He alleged

that the following entitled him to relief: at his trial, his counsel had him testify,

on direct examination by the defense, to a previous conviction for class B felony

battery resulting in serious bodily injury. Jones argues that this evidence fell

under Evidence Rule 404(b) as impermissible character evidence, which should

have been excluded.

Court of Appeals of Indiana | Memorandum Decision 20A04-1506-PC-780 | January 14, 2016 Page 2 of 5 [5] At the post-conviction hearing, Jones’s previous counsel testified. He explained

his reasons for bringing the conviction into evidence:

I felt I had no choice but to have Mr. Jones testify. . . . So as Mr. Jones has indicated, we had a discussion, and it was my choice tactically after we conferred that we get it out in the open so that there wouldn’t be any surprise or an appearance that we were doing something underhanded, trying to hide the conviction.

Tr. 16-17. The post-conviction court denied Jones’s petition.

[6] On appeal from that denial, Jones raises two issues. First, he claims that the

trial court erred in allowing his prior conviction into evidence. Second, he

contends that counsel’s decision to broach the topic at trial rendered counsel’s

assistance ineffective.

[7] To succeed on appeal from the denial of post-conviction relief, the petitioner

must show that the evidence is without conflict and leads unerringly and

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

court. Strowmatt v. State, 779 N.E.2d 971, 974-75 (Ind. Ct. App. 2002). We

consider only the probative evidence and reasonable inferences therefrom that

support the post-conviction court’s decision. Manzano v. State, 12 N.E.3d 321,

325 (Ind. Ct. App. 2014). The purpose of post-conviction relief is not to

provide a substitute for direct appeal, but to provide a means for raising issues

not known or available to the defendant at the time of the original appeal.

Strowmatt, 779 N.E.2d at 975. If an issue was available on direct appeal but not

litigated, it is waived. Id.

Court of Appeals of Indiana | Memorandum Decision 20A04-1506-PC-780 | January 14, 2016 Page 3 of 5 [8] Jones’s first issue, regarding trial court error, is waived for at least two reasons.

First, this issue was known and available on direct appeal. It should have been

brought there, and cannot be brought here. Second, the evidence of a prior

conviction was introduced by the defense; therefore, any error would have been

invited. Invited error is not reversible error. Booher v. State, 773 N.E.2d 814,

822 (Ind. 2002).

[9] We turn to Jones’s second argument. A defendant claiming ineffective

assistance of counsel must establish both that counsel’s performance was

deficient and that the deficiency resulted in prejudice. Timberlake v. State, 753

N.E.2d 591, 603 (Ind. 2001). Counsel is afforded considerable discretion in

choosing strategy and tactics, and we will accord those decisions deference. Id.

[10] The evidence supporting the decision of the post-conviction court shows that

Jones and his counsel adopted the strategy of admitting to the previous crime as

a method of building credibility with the jury. This was a legitimate strategy,

well within defense counsel’s discretion to adopt. As such, Jones’s argument of

ineffective assistance of counsel fails on the first prong: he has not demonstrated

any deficient performance by his counsel.

[11] Moreover, we note that at least four of the children Jones was alleged to have

had inappropriate relations with testified against him at his trial. Each of their

testimonies substantially corroborate each other. Therefore, Jones’s argument

of ineffective assistance of counsel fails on the second prong as well: he has not

Court of Appeals of Indiana | Memorandum Decision 20A04-1506-PC-780 | January 14, 2016 Page 4 of 5 demonstrated that the exclusion of this one piece of evidence would likely have

altered the jury’s decision.

[12] The judgment of the post-conviction court is affirmed.

Bradford, J., and Pyle, J., concur.

Court of Appeals of Indiana | Memorandum Decision 20A04-1506-PC-780 | January 14, 2016 Page 5 of 5