Moser v. State, 35A02-8908-PC-395

• Decision Date: 28 November 1990
• Docket Number: No. 35A02-8908-PC-395,35A02-8908-PC-395
• Citation: 562 N.E.2d 1318
• Parties: Thomas A. MOSER, Appellant (Defendant Below), v. STATE of Indiana, Appellee.
• Court: Indiana Appellate Court

Page 1318

562 N.E.2d 1318

Thomas A. MOSER, Appellant (Defendant Below), v. STATE of Indiana, Appellee.

No. 35A02-8908-PC-395.

Court of Appeals of Indiana Second District.

Nov. 28, 1990.

John W. Bailey, Huntington, for appellant.

Linley E. Pearson, Atty. Gen., Jane A. Morrison, Deputy Atty. Gen., Indianapolis, for appellee.

SULLIVAN, Judge.

Thomas Moser (Moser) presents a consolidated appeal challenging the denial of three petitions for post-conviction relief.

We affirm.

On August 2, 1976, Moser pled guilty to reckless driving. On June 28, 1978, he pled guilty to driving while intoxicated, and on October 1, 1979, he pled guilty to reckless driving. Moser was represented by counsel in each proceeding, and all three guilty pleas were entered pursuant to plea bargains. Moser was fined and received suspended sentences in all three cases. In the 1978 case, the court also suspended Moser's license. However, Moser successfully petitioned for a restricted license in June, 1978.

On October 27, 1988, Moser filed three petitions for post-conviction relief individually challenging these convictions on the basis that the guilty pleas were not knowingly, intelligently and voluntarily made because he was not adequately advised of his rights at the time of pleading guilty. A hearing was held on the petitions, and the State stipulated that the advisements given at all three guilty plea hearings were inadequate, but argued that laches was a defense and presented evidence in support thereof. The court denied Moser's petitions on the basis of laches.

Moser presents two issues on appeal, which we restate as follows:

1. Whether the evidence was sufficient to support the court's determination that laches barred his petitions;

2. Whether the court erred in taking judicial notice of Moser's arraignment proceedings in the 1979 case.

I.

Moser argues that the State failed to meet its burden of proving laches. Laches is an affirmative defense which the State must prove by a preponderance of the evidence. Twyman v. State (1984) Ind., 459 N.E.2d 705. To prevail, the State must prove that the petitioner unreasonably delayed in seeking post-conviction relief and that the State has been prejudiced by the delay. Perry v. State (1987) Ind., 512 N.E.2d 841; Twyman, supra; Stewart v. State (1990) 2d Dist.Ind.App., 548 N.E.2d 1171. A petitioner's knowledge of conditions which render his conviction defective or of the means to seek relief from the conviction is generally implicit in a finding of unreasonable delay. Perry, supra, 512 N.E.2d at 843.

Moser argues that the State failed to prove knowing acquiescence leading to an unreasonable delay. However, knowledge may be inferred from a variety of factors. In Perry, our Supreme Court held:

"Repeated contacts with the criminal justice system, consultation with attorneys and incarceration in a penal institution with legal facilities are all facts from which the fact finder may infer knowledge." Perry, 512 N.E.2d at 845.

Moser highlights the fact that he did not spend time in a penal institution. However Moser's three underlying guilty pleas indicate that he has had repeated contacts with the criminal justice system. In addition, he was represented by counsel during all three proceedings, and he was sufficiently cognizant of his legal remedies to petition for a restricted driver's license in 1978. Nevertheless, he delayed nearly ten years in challenging the most recent of his guilty pleas. These factors justify an inference that Moser knowingly acquiesced in the delay and that in light of the circumstances, it was unreasonable. See Nine v. State (1985) 4th Dist.Ind.App., 484 N.E.2d 614, trans. denied, cited with approval in Perry, supra, 512 N.E.2d at 845.

Moser also argues that the State failed to show that it was prejudiced by the delay. The State may prove prejudice by showing that it would be extremely difficult or impossible at the time of the post-conviction hearing to present the case in which the petitioner pled guilty. Wilson v. State (1988) 2d Dist.Ind.App., 519 N.E.2d 179, trans. denied.

"The inability to reconstruct a case against a petitioner is demonstrated by unavailable evidence such as destroyed records, ... or witnesses who have no independent recollection of the event." Id. at 182, quoting Taylor v. State (1986) 4th Dist.Ind.App., 492 N.E.2d 1091, 1093.

At the post-conviction hearing, the State called the arresting officers involved in each case as well as other witnesses who either performed the breathalyzer tests in each case or assisted the arresting officers. None of the witnesses had independent recollections of the arrests or breathalyzer tests despite attempts to refresh their memories with the police reports prepared at the time of arrest. Some of the witnesses could no longer positively identify Moser as the person who was arrested on the dates indicated on the police reports. This evidence sufficiently supports the inference that the cases against Moser, after delays of between ten and thirteen years, would be extremely difficult to try and that the State has been prejudiced by the delay. See Perry, supra, 512 N.E.2d at 846, n. 3.

II.

Moser also argues that the post-conviction court erred by taking judicial notice of the transcript of the arraignment in Moser's 1979 arrest. In its findings, the court stated:

"9. This Court taking judicial notice of the arraignment between the Defendant and the Court (transcript attached), finds that on May 23, 1979, Defendant was thoroughly advised by Judge Vandergrift of: (1) His right to counsel, (2) right to a public and speedy trial by jury, (3) right to confront and cross-examine witnesses against him, (4) right to compulsory process, (5) right to require the State prove beyond a reasonable doubt defense is [sic] charged, (6) his right to remain silent. Defendant indicated...