MEMORANDUM DECISION

Pursuant to Ind. Appellate Rule 65(D), this 

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

David M. Jones

Pendleton, Indiana

ATTORNEYS FOR APPELLEE

Gregory F. Zoeller

Attorney General of Indiana

Eric P. Babbs

Deputy Attorney General

Indianapolis, Indiana

IN THE

COURT OF APPEALS OF INDIANA

David M. Jones,

Appellant-Petitioner,

v.

State of Indiana,

Appellee-Respondent.

August 12, 2015

Court of Appeals Case No.

48A02-1410-PC-731

Appeal from the Madison Superior 

Court.

The Honorable Thomas Newman, 

Jr., Judge.

Cause No. 48D03-0908-PC-264

Garrard, Senior Judge

[1] David M. Jones appeals the denial of his petition for post-conviction relief. We 

affirm.

[2] The facts of the case, as taken from Jones’ direct appeal, are as follows:

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[T]he victim, Jones’ ex-wife [Donna Jones], saw Jones at her 

place of employment, a bar, on July 19, 1988. Jones had a bulge 

in his shirt which appeared to be a gun. Jones left the bar and 

telephoned the victim, threatening to shoot her. The victim 

notified the police of Jones’ threat, and she left work early.

On the way home, while stopped at a stop sign, the victim 

noticed Jones in a car in the adjoining lane. Jones was sitting 

with his head and torso out of the vehicle, which was being 

driven by a young woman and which also contained one other 

passenger. Jones pointed his gun at the victim and fired three 

shots in the direction of her car. The car then sped away.

Jones was arrested and charged with recklessness, a class D 

felony. Jones was also alleged to be an habitual class D felony 

offender on the basis of his 1979 conviction for possession of 

marijuana, a class D felony, and his 1982 conviction for 

operating a motor vehicle while an habitual traffic offender, a 

class D felony. After a trial by jury on August 7th and 8th, 1989, 

Jones was convicted on both counts and he received a four-year 

term of imprisonment for his recklessness conviction, enhanced 

by eight years due to his status as an habitual class D felony 

offender, for a total term of imprisonment of twelve years.

Jones v. State, 569 N.E.2d 975, 977 (Ind. Ct. App. 1991).

[3] Jones appealed and raised several issues, including a challenge to the 

sufficiency of the evidence supporting his conviction of recklessness. A panel of 

this Court affirmed his conviction and sentence. Id. at 983.

[4] In 2009, Jones filed a petition for post-conviction relief. The post-conviction 

court held an evidentiary hearing on Jones’ petition over several days. On the 

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final day of the hearing, the court orally denied the petition.

1

 This appeal 

followed.

[5] Jones raises seven issues on appeal, but five of them are procedurally defaulted. 

We address two issues on the merits: (1) whether the post-conviction court 

erred in denying Jones’ claim of newly discovered evidence; and (2) whether 

the post-conviction court erred in denying Jones’ petition without issuing 

findings of fact and conclusions thereon.

A. Procedural Default

[6] Post-conviction proceedings do not afford a petitioner with a super-appeal, and 

not all issues are available. Mallory v. State, 954 N.E.2d 933, 935 (Ind. Ct. App. 

2011). Claims that are known and available at the time of direct appeal, but are 

not argued, are waived. Singleton v. State, 889 N.E.2d 35, 38 (Ind. Ct. App. 

2008). Here, Jones argues that the original trial court erred by allowing the 

State to present testimony on rebuttal from a witness that had not previously 

been included on the State’s witness list. He further argues that the State 

violated his federal and state rights to due process of law prior to the original 

trial by failing to produce the gun with which he allegedly committed the crime. 

Jones also claims that the original trial court erred by allowing the State to 

1 Jones included a copy of the post-conviction transcript in his Appellant’s Appendix. We remind Jones that 

Appellate Rule 50(F) provides that parties should not reproduce any part of the transcript in the Appendix 

because the transcript is separately transmitted to the Court.

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present evidence of alleged prior bad acts by Jones. These claims could have 

been raised in Jones’ direct appeal and are waived.

[7] As a general rule, when a reviewing court decides an issue on direct appeal, the 

doctrine of res judicata applies, thereby precluding its review in post-conviction 

proceedings. Jervis v. State, 28 N.E.3d 361, 368 (Ind. Ct. App. 2015), trans. 

denied. Jones claims that there is insufficient evidence to sustain his conviction 

for recklessness. This claim was raised and adjudicated in his direct appeal and 

is barred by res judicata.

B. Newly Discovered Evidence

[8] Jones argues that the trial court should not have rejected his claim of newly 

discovered evidence, which he asserts establishes that he is innocent of criminal 

recklessness.

[9] When appealing the denial of post-conviction relief, the petitioner stands in the 

position of one appealing from a negative judgment. Kubsch v. State, 934 

N.E.2d 1138, 1144 (Ind. 2010). To prevail on appeal, the petitioner must show 

that the evidence as a whole leads unerringly and unmistakably to a conclusion 

opposite that reached by the post-conviction court. Id.

[10] When reviewing a post-conviction court’s decision as to whether new evidence 

mandates a new trial, we consider whether: (1) the evidence has been 

discovered since the trial; (2) it is material and relevant; (3) it is not cumulative; 

(4) it is not merely impeaching; (5) it is not privileged or incompetent; (6) due 

diligence was used to discover it in time for trial; (7) the evidence is worthy of 

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credit; (8) it can be produced upon a retrial of the case; and (9) it will probably 

produce a different result at retrial. Bradford v. State, 988 N.E.2d 1192, 1198 

(Ind. Ct. App. 2013), trans. denied. The burden of showing that all nine 

requirements are met rests with the petitioner. Kubsch, 934 N.E.2d at 1145.

[11] At the post-conviction hearing, Jones presented testimony from Christopher 

Wallis, who had been dating Donna Jones when the crime occurred and later 

married her, from Wallis’ mother Beverly, and from Jones’ trial attorney, John 

Ribble.

[12] Jones attempted several times to have Wallis testify that Donna had told him 

that she had lied about the shooting, but the State objected on grounds of 

hearsay, and the post-conviction court sustained the objections. The postconviction court properly sustained the objections because Wallis’ statements 

were inadmissible hearsay—out of court statements offered to prove the truth of 

the matter asserted. Ind. Evidence Rules 801(c), 802. These statements do not 

amount to admissible evidence. Wallis further testified, without objection, that 

he told his mother that Jones did not commit the crime. However, Wallis also 

testified that he was not present at the scene of the crime, so this statement 

appears to be irrelevant and unworthy of credit.

[13] Beverly testified, without objection, that Christopher had told her that Jones did 

not commit the crime. She further testified that Donna told her that she had 

lied about the crime. These statements are hearsay that would not be 

admissible at retrial and are thus incompetent. Beverly also testified that she 

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told Jones’ trial attorney, Ribble, that Donna had lied about the event. This 

evidence does not appear to be worthy of credit because it was apparently based 

on Donna’s statement to Beverly, which was inadmissible hearsay.

[14] Ribble testified that Beverly had told him she overheard Wallis and Donna 

stating that they had lied about the shooting. He also testified that Wallis had 

told him that Wallis had encouraged Donna to make up the event to get Jones 

put in jail. Once again, these statements were inadmissible hearsay and thus 

incompetent for purposes of deciding whether they constituted newly 

discovered evidence.

[15] In addition, Wallis, Beverly, and Ribble’s statements all share another flaw: 

they are merely impeaching. Donna testified at Jones’ original trial, and her 

testimony was sufficient to sustain Jones’ conviction for criminal recklessness. 

Jones, 569 N.E.2d at 980. Donna died prior to the post-conviction hearing. The 

evidence Jones presented at the post-conviction hearing may have called 

Donna’s testimony into question, but evidence that simply calls prior testimony 

into question does not amount to newly discovered evidence that requires a 

new trial. Cf. State v. McCraney, 719 N.E.2d 1187, 1190 (Ind. 1999) 

(determining that a witness’s complete recantation of prior testimony was more 

than impeaching because it was freestanding evidence of innocence that 

obliterated the witness’s own prior, inculpatory testimony). We cannot

conclude that the evidence, taken as a whole, leads to a conclusion opposite 

that reached by the post-conviction court.

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C.Findings of Fact and Conclusions Thereon

[16] Jones asserts that the post-conviction court erred by failing to issue findings of 

fact and conclusions thereon denying his petition for post-conviction relief.

[17] A post-conviction court shall make specific findings of fact and conclusions of 

law on all issues presented. Ind. Post-Conviction Rule 1(6). A post-conviction 

court’s failure to enter specific findings of fact and conclusions of law in ruling 

on a petition is not reversible error when the issues are sufficiently presented for 

review and addressed by the parties. Neville v. State, 663 N.E.2d 169, 174 (Ind. 

Ct. App. 1996). In this case, the parties adequately addressed the one claim 

that was properly preserved for appellate review, so there is no reason to 

remand for the issuance of findings of fact and conclusions thereon.

[18] For the foregoing reasons, we affirm the judgment of the post-conviction court.

[19] Kirsch, J., and Bradford, J., concur.

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