Corder v. State
| Decision Date | 21 May 1987 |
| Docket Number | No. 49A04-8608-PC-258,49A04-8608-PC-258 |
| Citation | 516 N.E.2d 71 |
| Court | Indiana Appellate Court |
| Parties | James CORDER, Appellant (Petitioner Below), v. STATE of Indiana, Appellee (Respondent Below). |
Susan K. Carpenter, Public Defender, Bev Cummings, Deputy Public Defender, Indianapolis, for appellant.
Linley E. Pearson, Atty. Gen., Jay Rodia, Deputy Atty. Gen., Indianapolis, for appellee.
Petitioner-Appellant James Corder (Corder) appeals the trial court's denial of his petition for post-conviction relief.
We reverse.
The sole issue presented is whether the relief sought by Corder was barred by laches.
In 1978, Corder entered guilty pleas to an information which charged him with possession of marijuana and carrying a handgun without a license. He was sentenced to 30 days on the Indiana State Farm with 26 days suspended, and six months probation. Corder's probation was later revoked and he was ordered to serve the remaining 26 days of his sentence.
In 1985, Corder filed his petition for post-conviction relief alleging his two guilty pleas were not intelligently and voluntarily given. (R. 7-13). The State answered alleging the petition was barred by laches. (R. 21).
At the hearing in 1986, Corder entered into evidence letters from the court clerk and court reporter stating (a) the records and transcripts of his guilty plea hearing had been destroyed, and (b) the trial judge was deceased. He also submitted an affidavit from the attorney who represented him at the guilty plea hearing. It said the attorney had "no vivid recollection of the details of that guilty plea hearing." Corder argued since the record could not be reconstructed, he was entitled to post-conviction relief because there was nothing in the record to show his plea was intelligently and voluntarily entered.
The State responded by stating the defense of laches applied because all the evidence had probably been destroyed; and due to the passage of time, it would be impossible to re-try the case.
The trial judge denied Corder's petition and entered findings of fact and conclusions of law which held the relief sought by Corder was barred by laches.
Corder appeals.
Because reconstruction of the record of his guilty plea hearing was impossible, Corder contends there is no advisement of his constitutional and statutory rights appearing on the record, as required by Boykin v. Alabama (1969), 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274. Thus, his petition for post-conviction relief should have been granted. Accord, Graham v. State (1984), Ind.App., 468 N.E.2d 604, 605.
The loss of a record or transcript of a guilty plea hearing does not, per se, require a guilty plea to be vacated. Zimmerman v. State (1982), Ind., 436 N.E.2d 1087, 1088-1089; Gallagher v. State (1980), 274 Ind. 235, 410 N.E.2d 1290, 1292-1293. Vacation of the plea is available only when the delay in seeking relief has been found to be reasonable. Gallagher, supra. If the record of the guilty plea hearing is not available, then the petitioner must attempt to reconstruct the record pursuant to Ind.Rules of Procedure, A.R. 7.2(A)(3)(c), if possible. Zimmerman, supra. Here, Corder presented uncontested evidence showing the record no longer exists, nor could it be reconstructed because all the parties present at the guilty plea hearing were either deceased, or could not remember details of the proceedings. Since Boykin requires advisements on the record, we cannot imply Corder was advised of his constitutional and statutory rights.
The State raised the defense of laches to preclude review of Corder's claims. It is the State's burden to prove, by a preponderance of the evidence, (1) an unreasonable delay by the petitioner in seeking relief, and (2) prejudice to the State in re-prosecuting the petitioner. Twyman v. State (1984), Ind., 459 N.E.2d 705, 712. Here, the only matter touching the laches question was the State's assertion Corder's delay probably caused the evidence to be destroyed under the routine procedure followed by the police department. The State concluded its argument with the statement, "That's the only evidence that we have." (R. 48).
We find this tenuous argument insufficient to support the State's defense of laches. Our Supreme Court recently addressed a similar situation in Lacy v. State (1986), Ind., 491 N.E.2d 520, where the petitioner filed his petition for post-conviction relief 11 years after entering his guilty plea. The State, in attempting to support...
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Hall v. State
...2. See, e.g., Curry v. State, 674 N.E.2d 160 (Ind.1996); Patton v. State, 537 N.E.2d 513 (Ind.Ct.App.1989); Corder v. State, 516 N.E.2d 71 (Ind.Ct.App.1987); Wilburn v. State, 499 N.E.2d 1173 (Ind.Ct.App.1986); Ray v. State, 496 N.E.2d 93 (Ind.Ct.App. 3. In addition to Boykin rights, Indian......
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Hall v. State
...were not given when the absence of a record has been proven."4Id. at 1176. A similar determination was made in Corder v. State, 516 N.E.2d 71 (Ind.Ct.App.1987), wherein the defendant pleaded guilty in 1978 and brought a petition for post-conviction relief in 1985 claiming that he had not be......
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