Perry v. State, 03S02-8709-PC-818

Citation512 N.E.2d 841
Decision Date04 September 1987
Docket NumberNo. 03S02-8709-PC-818,03S02-8709-PC-818
PartiesRobert D. PERRY, Appellant (Petitioner Below), v. STATE of Indiana, Appellee (Respondent Below). Danny J. RAY, Appellant (Petitioner Below), v. STATE of Indiana, Appellee (Respondent Below). Herbert W. WHEELER, Appellant (Petitioner Below), v. STATE of Indiana, Appellee (Respondent Below).
CourtSupreme Court of Indiana

Susan K. Carpenter, Public Defender, Hope Fey, Deputy Public Defender, Indianapolis, for Robert D. Perry.

Robert G. Andree, Jr., Applegate & Shapiro, Bloomington, for Danny J. Ray.

Robert Delano Jones, Susan Lacava, Rogers, McDonald & Jones, Bloomington, for Herbert W. Wheeler.

Linley E. Pearson, Atty. Gen., Marguerite M. Sweeney, Jay Rodia, Michael Gene Worden, Deputy Attys. Gen., Indianapolis, for appellees.

SHEPARD, Chief Justice.

Appellee State of Indiana seeks transfer of a decision on the issue of laches favorable to appellants Danny Ray and Herbert Wheeler, Ray v. State (1986), Ind.App., 496 N.E.2d 93. Appellant Robert Perry seeks transfer of a Court of Appeals' decision affirming the denial of his petition for post-conviction relief, Perry v. State (1986), Ind.App., 492 N.E.2d 57. Each petitioner claims a conflict with the Court of Appeals' decision in the other petitioner's case. Because these cases involve a similar issue, we consolidate them to consider the nature of the proof required to establish the defense of laches against a petition for post-conviction relief.

The common issue presented by these cases is whether the State can meet its burden to prove unreasonable delay under circumstances permitting diligence by showing circumstances such as to put a person on inquiry.

I. Historical Application of Laches

We commence from a definition of laches often repeated in our cases:

laches ... is the neglect for an unreasonable or unexplained length of time, under circumstances permitting diligence, to do what in law should have been done. It is an implied waiver arising from knowledge of existing conditions and an acquiescence in them, the neglect to assert a right, as taken in conjunction with the lapse of time, more or less great, and other circumstances causing prejudice to the adverse party and thus operating as a bar in a court of equity.

Frazier v. State (1975), 263 Ind. 614, 616-617, 335 N.E.2d 623, 624.

Before the existence of our current Rules of Procedure for Post-Conviction Proceedings, a judgment of conviction could be collaterally attacked by a writ of error coram nobis. This writ could be brought at any time. Murphy v. Daly (1933), 206 Ind. 179, 188 N.E. 769. An early statute which raised a presumption of waiver after a lapse of five years, 9-3301 Burns 1949 Supp., Acts of 1947, Ch. 189, was held to violate due process. State ex rel. McManamon, et al. v. Blackford Circuit Court, et al. (1950), 229 Ind. 3, 95 N.E.2d 556. A requirement of diligence, however, was still imposed. As Chief Justice Young wrote for the Court: "[I]f, from such presentation of evidence, it occurs to the trial judge that sufficient time has elapsed since the sentence of the man and that the man, in fact, had sufficient knowledge of his rights, the petition should be denied for lack of diligence." Id. at 16, 95 N.E.2d at 561.

The requirement of due diligence later was eliminated "when it is alleged and proved that petitioners' constitutional rights have been violated." State v. Lindsey (1952), 231 Ind. 126, 133, 106 N.E.2d 230, 233. If petitioners' constitutional rights had been violated, "the judgments were void.... where a judgment is void, laches does not operate to preclude the opening or vacating of a void judgment, for the reason that no amount of acquiescence can make it valid." Id. at 132, 106 N.E.2d at 232. 1 Due diligence remained a requirement for writs of coram nobis in cases which did not allege void judgments. This requirement was most often stated when writs were sought following trial and conviction and the writ was analogous to a motion for new trial. See Burton v. State (1964), 246 Ind. 197, 202 N.E.2d 165; Barker v. State (1963), 244 Ind. 267, 191 N.E.2d 9.

This distinction continued when the writ of error coram nobis was replaced by proceedings under the Rules of Procedure for Post-Conviction Remedies, Ind.Rules of Procedure. A petitioner seeking a belated motion to correct error and belated appeal must show diligence in pursuing appellate relief. Rule P.C. 2, Secs. 1(c), 2(d). A petition under Rule P.C. 1, however, may be filed at any time. Rule P.C. 1, Sec. 1(a). "A showing of diligence is not a prerequisite to relief under P.C. 1...." Langley v. State (1971), 256 Ind. 199, 211, 267 N.E.2d 538, 545.

The inherent tension between proceedings which allow a judgment to be challenged at any time and finality of judgments is apparent. As the Court stated in Langley:

In the name of justice and fair play this court, through its promulgation of our post-conviction remedy rules and by case decision, has sought to insure that each defendant will have an avenue available by which he may challenge on appeal the correctness of his conviction. It was not our intent, however, to provide a means whereby one convicted could repeatedly re-litigate claims of improper conviction, or could unqualifiedly, upon a legitimate waiver of the right to appeal either expressly made or to be inferred through application of appropriate legal principles, raise an untimely challenge directed at some aspect of the proceedings against him.

Id. at 203, 267 N.E.2d at 540 (emphasis in original).

Thus, while post-conviction relief is available at any time, the right to post-conviction relief may be waived directly or through implication. Laches is a doctrine which infers a legitimate waiver of the right to challenge a judgment. "Strictly speaking, a waiver is the intentional relinquishment of a known right, claim or privilege." Frazier, 263 Ind. at 616, 335 N.E.2d at 624. For laches to bar relief, the State must prove by a preponderance of the evidence, first, that the petitioner unreasonably delayed in seeking relief and, second, that the State has been prejudiced by the delay. Lacy v. State (1986), Ind., 491 N.E.2d 520, 521; Pinkston v. State (1985), Ind.App., 479 N.E.2d 79. Though we have sometimes said that the State must also show "petitioner had knowledge of existing conditions and acquiesced in them ..." Gipson v. State (1985), Ind., 486 N.E.2d 992, 993, that is not really a separate, third requirement. Petitioner's knowledge and acquiescence is implicit in a finding of "unreasonable delay under circumstances permitting diligence." Unless a petitioner has knowledge of a defect in his conviction or of the means to seek relief from the conviction, he can seldom be said to have delayed unreasonably in seeking relief.

II. Actual Knowledge, Constructive Knowledge, And Inquiry Notice

The State has the burden to prove each element of laches by a preponderance of the evidence. The elements include knowing acquiescence which leads to unreasonable delay. Twyman v. State (1984), Ind., 459 N.E.2d 705, 711-12. A less settled question, however, is whether the State must have proof of actual knowledge or whether knowledge may be imputed from constructive knowledge or inquiry notice.

The doctrine of laches cannot be predicated upon constructive knowledge. "[D]iscovery means something more than the knowledge with which the law charges one but which he does not actually have. Laches denotes a conscious indifference or procrastination which is wholly absent in one whose knowledge is constructive only." Miladin v. Istrate (1954), 125 Ind.App. 46, 56, 119 N.E.2d 12, 18.

While knowledge imputed by operation of law through constructive knowledge is not sufficient to establish laches, the State argues that laches should be imputed to the petitioner by charging him with "inquiry" notice. The case most often cited for this proposition in the context of post-conviction proceedings is Morrison v. State (1984), Ind.App., 466 N.E.2d 783, in which the Second District declared that relief could be denied "where the circumstances are such as to put a person on inquiry, and the means of ascertaining the truth are readily available if inquiry is made, the neglect or failure to inquire will charge the person with laches the same as though the facts were known." Id. at 787.

This language originated in Hutter v. Weiss (1961), 132 Ind.App. 244, 258, 177 N.E.2d 339, 346, which was an action to quiet title in real estate. In that case, the Court determined there was neither evidence of appellant's actual knowledge nor facts which could charge him with notice, such as evidence that others were exercising ownership or claiming adverse to him. Inquiry notice which is imputed from objective facts, such as the open and notorious use of land by an adverse claimant, is distinct from notice which is imputed from the mere passage of time in post-conviction proceedings.

Placing a petitioner on inquiry notice from the date of his conviction presumes that the petitioner is aware of defects in his conviction on the date it is entered, knows of the means by which he may seek relief from the conviction and, armed with this information, acquiesces in the entry of an invalid conviction. Such a presumption is neither reasonable nor realistic.

Knowledge has also been presumed from a change of circumstances, such as being sent to prison, which should prompt a reasonable person to further inquiry. Such an objective presumption of knowledge is not probative of the knowing acquiescence required to show unreasonable delay. Implying knowledge by operation of law is incompatible with the equitable doctrine of laches, which must be based on a showing of conscious indifference. Miladin, 125 Ind.App. at 56, 119 N.E.2d at 18; Fields v. Evans (1985), Ind.App., 484 N.E.2d 36, 39.

Inquiry notice alone is not sufficient to support a finding of unreasonable delay under circumstances permitting...

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    • August 14, 2014
    ...prior to filing petition). Petitioner's state of mind sufficiently can be inferred through circumstantial evidence. Perry v. State, 512 N.E.2d 841, 844 (Ind. 1987) ("Laches denotes a conscious indifference or procrastination which is wholly absent in one whose knowledge is constructive only......
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    ...years prior to filing petition). Petitioner's state of mind sufficiently can be inferred through circumstantial evidence. Perry v. State, 512 N.E.2d 841, 844 (Ind. 1987) ("Laches denotes a conscious indifference or procrastination which is wholly absent in one whose knowledge is constructiv......
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