Jones v. State, No. 49A02-9502-PC-84

Docket NºNo. 49A02-9502-PC-84
Citation656 N.E.2d 303
Case DateOctober 13, 1995
CourtCourt of Appeals of Indiana

Page 303

656 N.E.2d 303
Ronnie JONES, Appellant-Petitioner,
v.
STATE of Indiana, Appellee-Respondent.
No. 49A02-9502-PC-84.
Court of Appeals of Indiana.
Oct. 13, 1995.
Transfer Denied Dec. 7, 1995.

Page 304

Susan K. Carpenter, Public Defender of Indiana, Anne-Marie Alward, Deputy Public Defender, Indianapolis, for Appellant.

Pamela Carter, Attorney General of Indiana, Christopher L. Lafuse, Deputy Attorney General, Indianapolis, for Appellee.

OPINION

FRIEDLANDER, Judge.

Ronnie Jones appeals the denial of his petition for post-conviction relief.

Page 305

We affirm.

The facts are that on October 1, 1986, Maurice Jackson noticed a man knocking on his neighbor's door. Jackson knew that his neighbor was not at home and observed the man walk to the side of the house. The man did not return, and Jackson asked his wife to call the police. When police arrived, they found Jones attempting to climb a fence attached to the house. The police searched Jones, and found a knife, a wrench, and jewelry. Jones also held women's hosiery in his hand.

The State charged Jones with burglary, theft and being an habitual offender. A jury found Jones guilty of burglary and theft. The jury was unable to reach a decision as to the habitual offender count, and the court declared a mistrial. A subsequent jury found Jones to be an habitual offender. The court sentenced Jones to forty years of imprisonment. On direct appeal, our Supreme Court affirmed the convictions and the sentence. On February 7, 1990, Jones petitioned for post-conviction relief, claiming that he was denied effective assistance of trial and appellate counsel, the trial court engaged in improper ex parte communications with the jury, the trial court erred in not permitting the jury to view certain exhibits after deliberations had commenced, the trial court failed to define the essential elements of "breaking and entering" upon the jury's request, and the court failed to issue instructions, sua sponte, regarding the habitual offender charge. In denying Jones's petition, the post-conviction court entered the following Findings of Fact and Conclusions of Law:

"FINDINGS OF FACT AND CONCLUSIONS OF LAW

Pursuant to Indiana Rules of Procedure, Rule PC-1(6), the Court now enters its Findings of Fact and Conclusions of Law herein.

FINDINGS OF FACT

1. The petitioner was convicted at trial of burglary and theft, and was found to be an habitual offender. He was sentenced to twenty two (22) years' [sic] imprisonment, and appealed.

2. On February 7, 1990 the petitioner filed a petition for post-conviction relief, which was answered by the State of Indiana on February 21, 1990. The petition was later amended.

3. On October 6, 1994 the Court conducted a hearing on the petition, at which it heard testimony from Christopher Zoeller and the petitioner. Additionally, the Court received in evidence the Record of Proceedings from the petitioner's appeal, an affidavit from Howard Howe, and copies of certain Order Book entries. The Court also took Judicial Notice of its file in this cause. [F]rom the evidence considered, the Court finds:

A. At the time of trial herein, Jay B. Haggerty was appointed Judge Pro tempore.

B. At the time of trial, the petitioner was represented by attorney Christopher Zoeller.

C. On appeal, the petitioner was represented by attorney Howard Howe.

D. The petitioner's direct appeal resulted in affirmance of this Court's judgment of conviction.

E. This Court's records indicate that during deliberations, the jury sent three questions to the Court.

CONCLUSIONS OF LAW

1. Because petitioner was convicted at trial and appealed, and because the State has asserted defenses of res judicata and waiver, this Court is precluded from addressing any issues previously decided, or any issues available to the petitioner on appeal but not raised therein. The Court concludes that of the issues presented in the instant petition, only one was not available to him on appeal, to wit: the allegation that appellate counsel was ineffective. The petitioner appears to argue that appellate counsel was ineffective in allowing certain trial-level issues to be waived. [T]hus, this court must make a preliminary determination regarding appellate counsel's effectiveness, and can only address the otherwise-waived issues if it first finds that appellate counsel was ineffective.

Page 306

2. The petitioner was not denied the effective assistance of appellate counsel. [T]he evidence in this cause demonstrates that counsel prepared and filed the record of Proceedings, and researched, wrote and filed the Brief of Appellant. [T]he Court cannot conclude that counsel was ineffective, merely because the appeal was not successful. The petitioner contends that counsel should have pursued a claim that the trial court improperly communicated with the jury. However, this Court concludes that the answers provided to the jury--even if provided without discussion with counsel for the parties--caused the petitioner no prejudice. At most, the court's answers simply provided the jury...

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5 practice notes
  • Riggs v. State, No. 49A02-9702-PC-120
    • United States
    • Indiana Court of Appeals of Indiana
    • December 15, 1997
    ...is rebutted and the error, if any, is harmless. Id.; Madden v. State, 656 N.E.2d 524 (Ind.Ct.App.1995), trans. denied; Jones v. State, 656 N.E.2d 303 (Ind.Ct.App.1995), trans. denied. In addition, even where an ex parte communication occurred, the trial court's mere denial of the jury's req......
  • Sturma v. State, No. 77A04-9604-CR-144
    • United States
    • Indiana Court of Appeals of Indiana
    • July 11, 1997
    ...in our discussion. 4 In Jones v. State, we held that a jury's request to review exhibits is not within the scope of Ind.Code 34-1-21-6. 656 N.E.2d 303, 307 (Ind.Ct.App.1995), trans. denied. However, we recently recognized in Anglin v. State, 680 N.E.2d 883, 885 n. 2 (Ind.Ct.App. 1997), that......
  • Bouye v. State, No. 49S00-9703-CR-201
    • United States
    • Indiana Supreme Court of Indiana
    • July 20, 1998
    ...Johnson v. State, 674 N.E.2d 180 (Ind.Ct.App.1996); State v. Chandler, 673 N.E.2d 482 (Ind.Ct.App.1996); Jones v. State, 656 N.E.2d 303 (Ind.Ct.App.1995). The other line holds that, whenever a jury requests that it be given the opportunity to rehear testimony for a second time, the jury is ......
  • Gibson v. State, No. 55A05-9704-CR-152
    • United States
    • Indiana Court of Appeals of Indiana
    • April 28, 1998
    ...jury requests to review exhibits are not within the scope of the statute absent an express indication of disagreement. Jones v. State, 656 N.E.2d 303, 307 (Ind.Ct.App.1995), trans. denied; see also Sturma v. State, 683 N.E.2d 606, 609 (Ind.Ct.App.1997); State v. Chandler, 673 N.E.2d 482, 48......
  • Request a trial to view additional results
5 cases
  • Riggs v. State, No. 49A02-9702-PC-120
    • United States
    • Indiana Court of Appeals of Indiana
    • December 15, 1997
    ...is rebutted and the error, if any, is harmless. Id.; Madden v. State, 656 N.E.2d 524 (Ind.Ct.App.1995), trans. denied; Jones v. State, 656 N.E.2d 303 (Ind.Ct.App.1995), trans. denied. In addition, even where an ex parte communication occurred, the trial court's mere denial of the jury's req......
  • Sturma v. State, No. 77A04-9604-CR-144
    • United States
    • Indiana Court of Appeals of Indiana
    • July 11, 1997
    ...in our discussion. 4 In Jones v. State, we held that a jury's request to review exhibits is not within the scope of Ind.Code 34-1-21-6. 656 N.E.2d 303, 307 (Ind.Ct.App.1995), trans. denied. However, we recently recognized in Anglin v. State, 680 N.E.2d 883, 885 n. 2 (Ind.Ct.App. 1997), that......
  • Bouye v. State, No. 49S00-9703-CR-201
    • United States
    • Indiana Supreme Court of Indiana
    • July 20, 1998
    ...Johnson v. State, 674 N.E.2d 180 (Ind.Ct.App.1996); State v. Chandler, 673 N.E.2d 482 (Ind.Ct.App.1996); Jones v. State, 656 N.E.2d 303 (Ind.Ct.App.1995). The other line holds that, whenever a jury requests that it be given the opportunity to rehear testimony for a second time, the jury is ......
  • Gibson v. State, No. 55A05-9704-CR-152
    • United States
    • Indiana Court of Appeals of Indiana
    • April 28, 1998
    ...jury requests to review exhibits are not within the scope of the statute absent an express indication of disagreement. Jones v. State, 656 N.E.2d 303, 307 (Ind.Ct.App.1995), trans. denied; see also Sturma v. State, 683 N.E.2d 606, 609 (Ind.Ct.App.1997); State v. Chandler, 673 N.E.2d 482, 48......
  • Request a trial to view additional results

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