Slone v. State, 45A03-9108-PC-257

• Decision Date: 21 April 1992
• Docket Number: No. 45A03-9108-PC-257,45A03-9108-PC-257
• Citation: 590 N.E.2d 635
• Parties: James SLONE, Appellant-Defendant Below, v. STATE of Indiana, Appellee-Plaintiff Below.
• Court: Indiana Appellate Court

Page 635

590 N.E.2d 635

James SLONE, Appellant-Defendant Below, v. STATE of Indiana, Appellee-Plaintiff Below.

No. 45A03-9108-PC-257.

Court of Appeals of Indiana,

Third District.

April 21, 1992.

David M. Welter, Langer & Langer, Valparaiso, for appellant-defendant.

Linley E. Pearson, Atty. Gen. of Indiana and Mary Dreyer, Deputy Atty. Gen., Office of Atty. Gen., Indianapolis, for appellee-plaintiff.

STATON, Judge.

James Slone appeals the denial of his petition for post conviction relief, raising five issues for our review. We consolidate and rephrase those issues as the following two:

I. Whether Slone's petition for post conviction relief is barred by the equitable doctrine of laches.

II. Whether Slone's guilty plea in the underlying conviction was knowing and voluntary.

We reverse.

On January 14, 1987, pursuant to a plea agreement, Slone pled guilty to one count of driving while intoxicated. On February 6, 1991, Slone filed his petition for post conviction relief, alleging that his guilty plea was not entered knowingly and voluntarily, and that there was no proper factual basis for his plea. The State answered Slone's petition asserting waiver, laches, estoppel, and failure to state a claim for relief. After a hearing, the post conviction court denied Slone's petition, finding that the State had proven its case of laches. However, upon Slone's motion for specific findings and conclusions, the court entered supplemental findings and conclusions on May 21, 1991. It is from this judgment that Slone now appeals.

I. Laches

In its supplemental order, the post conviction court agreed with the State's contention that laches barred Slone's claim. Slone argues that the evidence was not sufficient to support the State's defense on this basis, while the State asserts that sufficient evidence of probative value supports the laches defense.

Although the right to post conviction relief is available at any time, this right may be directly or impliedly waived. Smith v. State (1991), Ind.App., 565 N.E.2d 1114, 1115, trans. denied (citing Perry v. State (1987), Ind., 512 N.E.2d 841, 843, reh'g denied ). Thus, the State may raise the affirmative defense of laches in a post conviction proceeding. Id. "In order for the doctrine of laches to bar relief, the State must prove by a preponderance of the evidence 1) that the petitioner unreasonably delayed in seeking relief, and 2) that the State has been prejudiced by the delay." Id.

A finding of laches is reviewed as any other sufficiency question; that is, we consider only the evidence most favorable to the judgment and all reasonable inferences to be drawn therefrom, and we will affirm if there is probative evidence to support the decision of the post conviction court. Id. In so doing, we may not reweigh the evidence or reassess witness credibility. Id.; Taylor v. State (1986), Ind.App., 492 N.E.2d 1091, 1092.

While the mere passage of time is not enough to constitute laches, it may be a factor. Stewart v. State (1990), Ind.App., 548 N.E.2d 1171, 1175, trans. denied. Repeated contacts with the criminal justice system, consultation with attorneys and incarceration in a penal institution with legal facilities are facts from which a trier of fact may infer the knowing acquiescence giving rise to the unreasonable delay. Id.

In its supplemental order of May 21, 1991, the post conviction court concluded:

4) Unreasonable delay is established because: a) defendant knew the terms of the plea agreement and received exactly the disposition for which he bargained--a conviction for a reduced charge and probation. b) Defendant delayed inquiring into PCR remedies because he was perfectly content with the disposition. PCR is an equitable remedy. No wrong occurred in this case and therefore no remedy is appropriate. c) The defendant, who was able to read and write the English language and was represented by counsel, chose not to read the Waiver of Rights form.

Record, pp. 119-20 (emphasis in original).

Although the post conviction court may be correct in its conclusion that Slone was satisfied with the result, i.e., that he was content with the penalty imposed as a result of the plea agreement, this finding is wholly irrelevant to the determination of whether Slone "knowingly acquiesced" in a violation of his rights. If it were otherwise, the laches defense would defeat every case in which the conviction was the result of a plea agreement, regardless of whether the defendant's constitutional rights had been violated.

The State was required to show that Slone displayed conscious indifference or procrastination upon the discovery of an entitlement to relief through post conviction procedures. See Ray v. State (1986) Ind.App., 496 N.E.2d 93, aff'd by Perry, supra, at 843 (plea of guilty on misdemeanor and resultant fine is insufficient, standing alone, to prove defendant was on notice as to the validity of his plea and conviction).

Considering the factors articulated in Stewart, supra, we conclude that the evidence was not sufficient to prove that Slone was aware of the availability of post conviction remedies. It is not disputed that Slone had only two contacts with the criminal justice system, and he was not incarcerated for his offenses. The record indicates that Slone consulted with his attorneys in a limited fashion prior to entering his guilty pleas. After Slone's most recent conviction, only three years passed before he became aware that his rights may have been violated, at which time he filed his petition for post conviction relief. Most telling, however, is the post conviction court's initial ruling on Slone's petition. At the close of the hearing, the court opined with respect to the delay: "So from one standpoint you may think that's not unreasonable because [Slone] didn't know there was that option." In light of the express finding that Slone was not aware of his post conviction options, he could not have knowingly acquiesced to the purported violation of his rights. "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." Perry, supra, at 843. Because the State failed to carry its burden in this regard, the doctrine of laches does not bar Slone's claim. ¹

II. Voluntariness of Guilty Plea

Slone next contends that his guilty plea in the 1987 proceeding was not knowing, voluntary, or intelligent due to the trial court's inadequate advisement of certain constitutional rights. The State responds that Slone's claim is without merit.

In White v. State (1986), Ind., 497 N.E.2d 893, our supreme court articulated the burden that a petitioner must carry when claiming that the guilty plea was involuntary and unintelligent. The petitioner must plead specific facts from which a finder of fact could conclude by a preponderance of the evidence that the trial judge's failure to fully inform the defendant of his rights rendered the defendant's decision involuntary or unintelligent. Id. at 905. However, this standard does not affect the omission of guilty plea advisements concerning the right to a jury trial, the right of confrontation and the right against self-incrimination preserved under Boykin v. Alabama (1969), 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274. If the trial court does not inform the defendant of his Boykin rights, the conviction will be vacated without a showing of prejudice to the defendant. White, supra, at 905; Stamm v. State (1990), Ind.App., 556 N.E.2d 6, 9; Duncanson v. State (1990), Ind.App., 548 N.E.2d 838, 840-41.

Our review of the transcript generated at Slone's guilty plea hearing reveals only the following advisement of constitutional rights:

BY THE COURT: Do you also understand by pleading guilty, you are waiving or giving up your constitutional rights?

BY THE DEFENDANT: Yes, sir.

Record, p. 108.

At the conclusion of the hearing, the trial judge asked defense counsel to submit a Waiver of Rights form signed by Slone. The list of rights included the Boykin advisements. The State asserts that the foregoing amounts to an adequate advisement of Slone's constitutional rights. We disagree.

For a waiver to be valid, it must be an intentional relinquishment of known rights and privileges. Hunt v. State (1986), Ind.App., 487 N.E.2d 1330, 1333 (citing Johnson v. Zerbst (1938), 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461) (emphasis supplied). In this case, there is no evidence that Slone understood the rights he purported to waive. Although Slone signed the standard waiver form, he apparently did so after pleading guilty. Even assuming that Slone signed the form prior to entering his plea, the record discloses that the trial court did not receive it until the hearing was concluded. Thus, the court did not question Slone as to his understanding of the waiver form.

This case is analogous to Hunt, supra, in which the defendant also signed a prepared form waiving his constitutional rights. In Hunt, the court of appeals found that the trial court's failure to ask the defendant any questions concerning the defendant's understanding of the rights he waived, whether he had read the form, or whether he was literate in the English language precluded a finding that the plea was entered voluntarily and knowingly.

This lack of inquiry by the trial judge evidences the fact the judge could not have made an independent determination of [the defendant's] understanding of the rights he was waiving at the time of the guilty plea hearing.

Id. at 1334. Despite the fact that the waiver form in Hunt contained the statement that "the ... defendant advises ...