MEMORANDUM DECISION
FILED
Pursuant to Ind. Appellate Rule 65(D), Aug 31 2016, 8:26 am
this Memorandum Decision shall not be
regarded as precedent or cited before any CLERK
Indiana Supreme Court
Court of Appeals
court except for the purpose of establishing and Tax Court
the defense of res judicata, collateral
estoppel, or the law of the case.
APPELLANT PRO SE ATTORNEYS FOR APPELLEE
Ernest Davis Gregory F. Zoeller
Pendleton, Indiana Attorney General of Indiana
J.T. Whitehead
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Ernest Davis, August 31, 2016
Appellant-Petitioner, Court of Appeals Case No.
40A02-1509-PC-1345
v. Appeal from the
Marion Superior Court
State of Indiana, The Honorable
Appellee-Respondent. Mark D. Stoner, Judge
The Honorable
Jeffrey L. Marchal, Magistrate
Trial Court Cause No.
49G06-0904-PC-40572
Kirsch, Judge.
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[1] Ernest Davis (“Davis”) appeals the denial of his petition for post-conviction
relief, contending that the post-conviction court erred in denying his petition.
On appeal, he raises the following restated issues for our review:
I. Whether Davis received ineffective assistance of his trial
counsel; and
II. Whether Davis’s freestanding allegation of error concerning
the trial court’s denial of his motion to dismiss his trial attorney
was procedurally defaulted and waived for appellate review.
[2] We affirm.
Facts and Procedural History
[3] The facts supporting Davis’s convictions as set forth by this court in an
unpublished decision on his direct appeal are as follows:
In 2009, Collie Rose (“Rose’) lived with her son, Troy Taylor
(“Troy”), and her grandson, Jerry Taylor (“Jerry”), on Riley
Avenue in Indianapolis, Indiana in the home where she had lived
for over forty years. On April 11, 2009, Rose picked up Jerry
from work around 11:30 p.m. When Jerry and Rose arrived back
home around midnight, Troy was in the living room playing his
keyboard. Earlier in the evening, Jerry had spoken to Reginald
Groce (“Groce”), who wanted to buy some marijuana from
Jerry. Groce knew that Jerry had approximately $500 in cash
and that Jerry was interested in using the money in a “marijuana
related transaction.” Tr. at 83. Jerry called Groce when he
arrived home from work. Groce asked if Jerry “was off work”
and told Jerry he was “out south” and unable to stop by, but
would see him the next day. Id. at 84-85.
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Rose went to bed, and Jerry went to his bedroom to listen to
music and watch television. Jerry could see into the living room
and could see Troy go to the front door. When Troy answered
the door, a man, later identified as Davis, walked into the house,
pointed a gun at Troy’s head, and asked, “Where is the money
at?” Id. at 78. Jerry, who was shocked and scared, ran into
Rose’s bedroom and shut the door. He told her to “hold the
door” because “[t]hat man in there got a gun.” Id. at 54. Jerry
told Rose to go out the window, but she was unable to do so.
Jerry heard his father say, “Open the door. This man has got a
gun to my head.” Id. at 79. Rose then told Jerry to go out the
window while she sat on the floor and held the door with her
feet. Jerry went out the window.
Rose could not call 911 because the phone was in the living
room. Davis began pushing on Rose’s door and yelling, “If you
don’t open the door, I’m going to shoot you.” Id. at 56. Rose
then thought she heard Troy say, “Jerry, come help me. Help
me, Jerry. I need you.” Id. at 57. She heard the front door open
when Davis left. She left her bedroom and called 911. Jerry
came back to the house, and he and Rose went into the kitchen
where they saw Troy lying on the kitchen floor. Troy’s mouth
was moving, but he could not say anything. Police and
emergency medical personnel arrived and administered CPR on
Troy, but he died as a result of a bullet wound to the chest.
Indianapolis Metropolitan Police Detective Jeffrey Wager
(“Detective Wager”) arrived at approximately 1:54 a.m. and had
another detective transport Jerry and Rose to the station to
discuss what had occurred. When Jerry and Rose were leaving
the house, Jerry saw Groce standing behind the yellow police
tape in the front yard. Groce attempted to attract Jerry’s
attention by calling his name. Jerry initially did not tell the
police about the marijuana discussions he had with Groce
because he was afraid he would be in trouble. Detective Wager
received a call from a female friend of Jerry, who said that Jerry
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had told her about his conversations with Groce. Detective
Wager interviewed Jerry on April 14, 2009, and at that time,
Jerry told the detective about Groce. Detective Wager later
interviewed Groce, who implicated Davis in the crime. The
police located Davis at his residence and brought him to the
police department, where he agreed to speak with the police.
When Davis arrived at the police department, he had two small
injuries to his back, one of which had a bandage over it. Davis
admitted that he was at the house on the night of the crime, but
claimed that he shot Troy in self-defense. He denied entering the
house with his gun drawn and denied pushing on Rose’s
bedroom door.
The State charged Davis with murder, felony murder, attempted
robbery as a Class A felony, conspiracy to commit robbery as a
Class A felony, and unlawful possession of a firearm by a serious
violent felon as a Class B felony. The State subsequently
amended the charging information by dismissing the conspiracy
to commit robbery charge and the unlawful possession of a
firearm by a serious violent felon charge. On May 24, 2010, a
jury trial was held, at the conclusion of which the jury found
Davis guilty as charged. At the sentencing hearing, the trial
court entered judgment only as to murder and to attempted
robbery as a Class C felony because of double jeopardy concerns.
The trial court sentenced Davis to sixty years for murder and
eight years for attempted robbery, with the sentences to be served
consecutively.
Davis v. State, No. 49A05-1102-CR-62, *1-*2 (Ind. Ct. App. Oct. 27, 2011),
trans. denied.
[4] Prior to trial, Davis pro se moved to dismiss his trial counsel, and the trial court
denied the motion. At the conclusion of his sentencing, Davis filed a pro se
motion to correct error, alleging that he was denied his right to self-
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representation, there were errors in the jury instructions, the State committed
prosecutorial misconduct, the State’s evidence included incredibly dubious and
perjured testimony, and he received ineffective assistance of his trial counsel.
Appellant’s App. at 600-34. The trial court denied the motion, finding among
other things, that Davis’s trial counsel was not ineffective and that Davis’s
conviction was not the result of ineffective assistance of his trial counsel. Id. at
636-37.
[5] Davis filed a belated appeal, alleging insufficient evidence to support his
conviction, abuse of discretion in not instructing the jury that marijuana
possession or delivery was not a crime that, if committed, would negate a claim
of self-defense, and inappropriate sentence. This court affirmed Davis’s
convictions and sentence in an unpublished opinion. Davis v. State, No. 49A05-
1102-CR-62 (Ind. Ct. App. Oct. 27, 2011), trans. denied. Davis filed a pro se
petition for post-conviction relief, contending that the trial court erred in
denying his motion to dismiss trial counsel, the trial court committed
fundamental error in refusing to give a jury instruction on self-defense, the trial
court committed fundamental error in giving a particular jury instruction, he
was denied due process as a result of discovery violations, the State committed
prosecutorial misconduct, and he received ineffective assistance of trial counsel.
Id. at 711-50. Evidentiary hearings were held on Davis’s petition. On August
12, 2015, the trial court issued its findings of fact and conclusions thereon,
denying Davis’s petition for post-conviction relief. Davis now appeals.
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Discussion and Decision
[6] Post-conviction proceedings do not afford the petitioner an opportunity for a
super appeal, but rather, provide the opportunity to raise issues that were
unknown or unavailable at the time of the original trial or the direct appeal.
Ben-Yisrayl v. State, 738 N.E.2d 253, 258 (Ind. 2000), cert. denied, 534 U.S. 1164
(2002); Wieland v. State, 848 N.E.2d 679, 681 (Ind. Ct. App. 2006), trans. denied,
cert. denied, 549 U.S. 1038 (2006). The proceedings do not substitute for a direct
appeal and provide only a narrow remedy for subsequent collateral challenges
to convictions. Ben-Yisrayl, 738 N.E.2d at 258. The petitioner for post-
conviction relief bears the burden of proving the grounds by a preponderance of
the evidence. Ind. Post-Conviction Rule 1(5).
[7] When a petitioner appeals a denial of post-conviction relief, he appeals a
negative judgment. Fisher v. State, 878 N.E.2d 457, 463 (Ind. Ct. App. 2007),
trans. denied. The petitioner must establish that the evidence as a whole
unmistakably and unerringly leads to a conclusion contrary to that of the post-
conviction court. Id. We will disturb a post-conviction court’s decision as
being contrary to law only where the evidence is without conflict and leads to
but one conclusion, and the post-conviction court has reached the opposite
conclusion. Wright v. State, 881 N.E.2d 1018, 1022 (Ind. Ct. App. 2008), trans.
denied. The post-conviction court is the sole judge of the weight of the evidence
and the credibility of witnesses. Lindsey v. State, 888 N.E.2d 319, 322 (Ind. Ct.
App. 2008), trans. denied. We accept the post-conviction court’s findings of fact
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unless they are clearly erroneous, and no deference is given to its conclusions of
law. Fisher, 878 N.E.2d at 463.
I. Ineffective Assistance of Trial Counsel
[8] Davis argues that the post-conviction court erred when it ruled that his claim of
ineffective assistance of trial counsel was barred by the doctrine of res judicata.
He contends that it was error because he was not given any meaningful
opportunity to litigate his ineffectiveness claims. We disagree.
[9] Here, Davis filed a motion to correct error following his trial and sentencing,
which was denied by the trial court. In his motion, Davis asserted that he
received ineffective assistance of his trial counsel. In its denial of his motion to
correct error, the trial court found that Davis was convicted at trial “because the
evidence was against him and not because of any ineffectiveness on his
attorney’s part.” Appellant’s App. at 637. Although Davis filed an appeal, he
did not appeal the trial court’s denial of his motion to correct error or his claim
of ineffective assistance of counsel.
[10] A defendant may raise a claim of ineffective assistance of trial counsel for the
first time in a post-conviction proceeding; however, once the defendant chooses
to raise his claim of ineffective assistance of trial counsel, either on direct appeal
or in a petition for post-conviction relief, he must raise all issues relating to that
claim, whether record-based or otherwise. Dawson v. State, 810 N.E.2d 1165,
1172 (Ind. Ct. App. 2004) (citing Ben–Yisrayl, 738 N.E.2d at 259), trans. denied.
A defendant who chooses to raise a claim of ineffective assistance of trial
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counsel on direct appeal is foreclosed from relitigating that claim, and the
earlier ruling that trial counsel was not ineffective is res judicata. Id. Therefore,
“just as ineffective assistance of trial counsel claims are foreclosed in post-
conviction proceedings if they are raised on direct appeal, such claims are
foreclosed where, as here, the issue was raised in a motion to correct error but
not raised on direct appeal.” Godby v. State, 809 N.E.2d 480, 483 (Ind. Ct. App.
2004), trans. denied.
[11] Thus, in the present case, Davis’s claim of ineffective assistance of trial counsel
was previously raised and adjudicated by the trial court. Davis did not directly
appeal the trial court’s ruling on his claim of ineffectiveness of his trial counsel.
Therefore, Davis is barred from re-litigating this claim in his post-conviction
petition. Id. The post-conviction court did not err in ruling that Davis was not
entitled to relief on his claim of ineffective assistance of trial counsel.
II. Free-Standing Claim of Error
[12] Post-conviction proceedings are civil proceedings that provide defendants the
opportunity to raise issues not known or available at the time of the original
trial or direct appeal. Stephenson v. State, 864 N.E.2d 1022, 1028 (Ind. 2007)
(citing Conner v. State, 711 N.E.2d 1238, 1244 (Ind. 1999), cert. denied, 531 U.S.
829 (2000)), cert. denied, 552 U.S. 1314 (2008). Thus, if an issue was known and
available but not raised on direct appeal, the issue is procedurally foreclosed.
Id. (citing Timberlake v. State, 753 N.E.2d 591, 597 (Ind. 2001)). “In post-
conviction proceedings, complaints that something went awry at trial are
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generally cognizable only when they show deprivation of the right to effective
counsel or issues demonstrably unavailable at the time of trial or direct appeal.”
Id.
[13] Here, Davis argues that he was denied his right to represent himself at trial,
specifically, that the trial court erred when it denied his motion to dismiss his
trial counsel. Initially, we note that, although Davis did file a motion to dismiss
his trial counsel with the trial court, nowhere in the motion did he request that
he be able to represent himself. Therefore, the trial court did not deny Davis’s
request to represent himself, only his motion to dismiss his trial counsel.
[14] In its order denying Davis’s petition for post-conviction relief, the post-
conviction court ruled that he was not entitled to relief because his due process
claim relating to the trial court’s denial of his motion to dismiss trial counsel
was a free-standing claim of error. We agree. This free-standing issue raised by
Davis was known and available at the time of his direct appeal. Therefore, the
issue had to be raised on direct appeal, and because it was not, it is procedurally
foreclosed and may not be raised now for the first time on post-conviction relief.
See Stephenson, 864 N.E.2d at 1028. The post-conviction court properly ruled
that Davis was not entitled to relief on his contention of error regarding the
denial of his motion to dismiss trial counsel because it was a free-standing claim
of error.
[15] Affirmed.
[16] Riley, J., and Pyle, J., concur.
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