Ray v. State

• Decision Date: 30 July 1986
• Docket Number: 4-883A292,Nos. 4-1083A353,s. 4-1083A353
• Citation: 496 N.E.2d 93
• Parties: Danny J. RAY, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below). Herbert W. WHEELER, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below).
• Court: Indiana Appellate Court

Page 93

496 N.E.2d 93

Danny J. RAY, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below).

Herbert W. WHEELER, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below).

Nos. 4-1083A353, 4-883A292.

Court of Appeals of Indiana Fourth District.

July 30, 1986.

Robert G. Andree, Jr., Applegate & Shapiro, Robert Delano Jones, Susan Lacava, Rogers, McDonald & Jones, Bloomington, for appellant.

Linley E. Pearson, Atty. Gen., Jay Rodia, Michael Gene Worden, Deputy Attys. Gen., Indianapolis, for appellee.

YOUNG, Presiding Judge.

Danny J. Ray and Herbert W. Wheeler appeal the denial of their petitions for post-conviction relief arising from separate dispositions in the trial court below. Their cases have been consolidated for consideration by this court since they involve these similar questions on the issue of laches in post-conviction relief settings:

1) whether "knowing acquiescence" is shown by evidence that the accused pled guilty to a misdemeanor charge and was fined;

2) whether a lost record entitles a defendant to a new trial if he fails to attempt to reconstruct the record.

The record in Ray v. State reveals that Ray pled guilty to a charge of driving while intoxicated (DWI) on July 11, 1979. The State concedes neither a tape nor transcript of the guilty plea hearing is now available. Following a subsequent arrest for DWI, Ray filed the instant P.C.R. 1 petition, challenging the 1979 guilty plea, alleging he was not advised of his constitutional rights waived by the plea. The State's answer raised the affirmative defense of laches. The trial court denied the petition on the basis of laches, and Ray appealed.

While the appeal was pending in this court, our supreme court decided Twyman v. State (1984), Ind., 459 N.E.2d 705. Among other things, the Twyman decision held the State bears the burden to establish the affirmative defense of laches in P.C.R. 1 proceedings. As the parties in the instant case extensively had argued the laches issue on appeal, this district retained jurisdiction but remanded the case for a hearing on the laches question in light of the Twyman decision. ¹ Ray v. State (1984), Ind.App., 466 N.E.2d 1389 (Young, J., dissenting).

Following the hearing on remand, the trial court denied relief on the basis of laches, and entered the following findings:

Hearing on Issue of Laches having been held, the Court now finds as follows:

1) That the Petitioner had knowledge of the existing conditions under circumstances permitting action and unreasonably delayed seeking relief from those circumstances for a period of three and one-half years prior to contacting an attorney and seeking relief;

2) That he acquiesced in those circumstances, making no effort to correct same during that period of time;

3) That the State's ability to prove the events, now over four years in the past, is significantly diminished by the passage of time combined with the assumption that the case had been disposed of on July 11, 1979, (i.e., lack of active preservation of evidence and possible testimony).

4) That to allow the petitioner to now reopen the issues originally at bar would be prejudicial to the State;

5) That laches does apply in this case in addition to the reasons for denial stated by this Court after the original hearing on Post Conviction Relief held on May 23, 1983.

The record in Wheeler v. State reveals that Wheeler pled guilty to separate charges of DWI on December 20, 1974 and June 4, 1976. On December 10, 1982, he filed the instant petitions for post-conviction relief alleging he had not been informed of the constitutional rights he waived by his guilty pleas. ² In particular he claimed he was not advised of his right to counsel in the 1974 case. The 1976 case petition also alleged Wheeler's counsel had discovered in October 1982, through articles published nationally, that breathalyzer equipment similar to the machine used to test Wheeler in 1976, and made by the same manufacturer, was affected by nearby radio traffic to the point it might render inaccurate readings in some cases. The State presented no evidence to rebut these contentions, ³ but raised the affirmative defense of laches to both petitions. The parties stipulated the transcripts or tape recordings of the guilty plea hearings are no longer available, and the arresting officers have no recollection of either case.

The post-conviction court denied relief. Following the remand by this court, the post-conviction court entered the following findings:

1) That the Petitioner had knowledge of the existing conditions under circumstances permitting action and unreasonably delayed seeking relief from those circumstances for periods in excess of six and eight years prior to contacting an attorney and seeking relief.

2) That he acquiesced in those circumstances, making no effort to correct same during that period of time;

3) That the State's ability to prove the events of these cases has been significantly impaired by the passage of time combined with the assumption that the cases had been disposed of in 1974 and 1976, (i.e., active preservation of evidence and possible testimony was not deemed necessary);

4) That the defendant's acquiescence directly resulted in the diminution in the State's ability to prove its case, resulting in prejudice to the State;

5) That the doctrine of Laches must be applied in cases involving the facts of these cases if a reasonable degree of finality of this type of judgment is to be achieved;

6) That fundamental fairness mandates that these causes not be relitigated after an acquiescence in the original judgments for this period of time;

7) That Petitioner's Petition for Post-Conviction Relief should therefore be deemed barred and be denied.

P.C.R. 1, Sec. 6 states the trial court in post conviction proceedings "shall make specific findings of fact and conclusions of law on all issues presented." The findings made by the trial courts in Wheeler and Ray are merely conclusions of law. Such findings are of little use to the appellate court on review, as we are presented with no clue as to why the courts concluded that Ray and Wheeler knew their rights had been violated, but unreasonably delayed seeking relief.

Nevertheless, we may affirm a trial court's decision if the evidence in the record supports its conclusion. See St. Joseph's Hospital of South Bend v. Women's Pavilion (1983), Ind.App., 451 N.E.2d 1126, 1129. Furthermore, we may overturn the decision of the trial court against the party bearing the burden of proof only if the evidence is without conflict and leads unerringly to a contrary result. Quinn v. State (1982), Ind., 436 N.E.2d 70; see also Harris v. State (1978), 267 Ind. 572, 372 N.E.2d 174, cert. denied 436 U.S. 961, 98 S.Ct. 3080, 57 L.Ed.2d 1128 (1977).

In a post-conviction relief proceeding, the burden of proof is on the petitioner to demonstrate entitlement to relief by a preponderance of the evidence. P.C.R. 1, Sec. 5. When the state raises the affirmative defense of laches, the state must establish the following: 1) the petitioner's inexcusable delay in asserting his rights; 2) the petitioner's implied waiver arising from knowing acquiescence in existing conditions; and 3) circumstances causing the defendant/respondent prejudice. Frazier v. State (1975), 263 Ind. 614, 335 N.E.2d 623. Mere lapse of time is not sufficient to prove laches. The respondent must show the delay was unreasonable and prejudiced the opposing party. Id.

The sole fact that both Ray and Wheeler pled guilty to a misdemeanor charge and were fined does not support the inference that they had knowledge of their post-conviction rights and remedies. As a result, the trial court's finding of knowing delay may be justified, if at all, only on the theory suggested in Morrison v. State (1984), Ind.App., 466 N.E.2d 783: "Certainly the conviction and incarceration of one who thought his rights to have been violated constitutes such circumstance as would put that one on inquiry as to means of appeal or other relief." Id. at 787. Because there is no evidence that either Ray or Wheeler were incarcerated or thought their rights had been violated prior to the filing of this action, the issue here is whether evidence that they pled guilty to a misdemeanor and were assessed a fine is sufficient, standing alone, to prove they were put on inquiry as to the validity of their pleas and convictions.

The belief that such evidence alone is sufficient clearly assumes that anyone who pleads guilty to a crime may be expected to exercise reasonable vigilance to ascertain whether his rights have been violated by the court. Such a de facto requirement of vigilance is clearly inconsistent with our case law on the laches defense as demonstrated in the leading case of Miladin v. Istrate (1954), 125 Ind.App. 46, 119 N.E.2d 12. In Miladin, a plaintiff suing to foreclose on a mortgage was called upon to prove a prior assignment of the mortgage purportedly signed by him was in fact forged. The defendant pointed out that the disputed assignment had been a matter of public record for nearly twenty years by the time suit was brought. Thus, the defendant argued, the plaintiff had constructive notice of the assignment such that, under the doctrine of laches, the plaintiff's claim was barred by his failure to assert his rights more promptly.

The court of appeals disposed of this contention as follows:

We have been cited to no case, nor have we found any, which holds that the doctrine of laches can be predicated upon constructive knowledge. It is sufficient to start the running of the statute of limitations, ... but laches is an equity doctrine defined as the failure to act without unreasonable delay upon discovery of the thing complained of or upon discovery of facts and circumstances from which knowledge thereof will be imputed. It seems to us that discovery means something more than the knowledge with which...