James E. Manley v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: April 14, 2015
• Docket: 53A01-1407-CR-317
• Status: Published

Opinion

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