State v. Scales
| Decision Date | 02 June 1992 |
| Docket Number | No. 82S01-9206-PC-414,82S01-9206-PC-414 |
| Citation | 593 N.E.2d 181 |
| Parties | STATE of Indiana, Appellant (Respondent Below), v. Richard M. SCALES, Appellee (Petitioner Below). |
| Court | Indiana Supreme Court |
Linley E. Pearson, Atty. Gen., Michael Gene Worden, Deputy Atty. Gen., Indianapolis, for appellant.
No appearance for appellee.
The State has argued in this case that our recent rules on retaining records of guilty pleas should be read as creating a statute of limitations for petitions seeking post-conviction relief from misdemeanor convictions. The Court of Appeals declined to so hold, and we agree.
Appellee Richard Scales pled guilty in September 1979 to carrying a handgun without a license, a class A misdemeanor, Ind.Code Sec. 35-23-4.1-3 (Burns 1975); Ind.Code Sec. 35-23-4.1-18(c) (Burns Supp.1978). He received a suspended sentence. On July 13, 1990, Scales filed a petition for post-conviction relief challenging this conviction. He alleged he was not properly advised of the right to a jury trial, the right to confront witnesses, and the right against self-incrimination. He claimed that he was not advised about the nature of the charges filed against him and he asserted that the sentencing court failed to determine whether there was a factual basis for his plea. He also alleged that he was not represented by counsel during his plea, and that had he been properly advised he would have pled not guilty and requested a jury trial.
Scales did not present any record of the 1979 proceedings to the post-conviction court, nor did he attempt to reconstruct the record. See Ind. Appellate Rule 7.2(A)(3)(c). At the post-conviction hearing Scales' counsel told the court:
I think there is an old file. I did not personally locate it. After conferring with Mr. Scales, I had my paralegal contact the Clerk's Office and they were supposed to have pulled the file up. We made an effort to obtain a copy of the sentencing transcript and any other documents in the file. I'm thinking that she told me that there was no sentencing transcript prepared. There was no written advisement in the file. I assume that there is a file someplace, but it has no pleadings. Now, maybe they told her there was no file, so maybe I'm mistaken about that.
Record at 11-12. Instead of attempting to reconstruct the record, Scales testified by answering yes or no to questions from his attorney regarding whether the court informed him of his rights. Although Scales was quite clear about these memories, he testified that he could not remember who the arresting officer was, the name of the judge or referee, or even that person's gender.
The prosecutor did not present any evidence or argue laches as a defense. He argued that without a transcript of the plea hearing, Scales' poor memory of the event was inadequate to meet his burden of proof. The post-conviction court denied the State's motion to dismiss, and granted Scales' petition.
The State appealed. The Attorney General cited Indiana Criminal Rules 5 and 10, which require that transcripts of misdemeanor guilty pleas be maintained for ten years. He argued that these rules imposed a ten-year time limit on the filing of post-conviction relief petitions challenging misdemeanor guilty pleas for which there is no longer a record. The Court of Appeals disagreed. It observed that Indiana Post-Conviction Rule 1(1)(a) provides that a PCR proceeding may be instituted at any time. If the unavailability of the record hinders the State's case and reconstruction of the record is not possible, it said, the State may argue laches. If that fails, the appropriate remedy is a new trial. The court did, however, remand the cause, directing the post-conviction court to enter findings of fact and conclusions of law. State v. Scales (1991), Ind.App., 571 N.E.2d 1324.
The State appeals that portion of the Court of Appeals' decision rejecting the argument that Indiana Criminal Rules 5 and 10 impose a time limit on filing of post-conviction petitions. We grant transfer to consider this issue of first impression.
In addressing this case, the Court of Appeals applied Gallagher v. State (1980), 274 Ind. 235, 410 N.E.2d 1290, as support for the proposition that when a prisoner launches a collateral attack on his conviction a new trial is always required where the record is unavailable and cannot be reconstructed. In Gallagher, we held that where a petitioner has been unconstitutionally deprived of his right to appeal a felony conviction, there has been a considerable lapse of time, there is no transcript available, and reconstruction of the record is not possible, the appropriate remedy is a new trial. This remedy was appropriate because the petitioner had been deprived of his constitutional right to appeal. Id. 1 The premise underlying this holding was "that the petitioner [had] demonstrated a clear desire to appeal and that any delay in bringing an appeal was not due to lack of diligence on petitioner's part." Collins v. State (1981), Ind., 420 N.E.2d 880, 881.
The Court of Appeals applied the requirements we developed in Gallagher for belated appeals of felony trials (i.e., long delay plus no record plus diligence equals new trial) to a very different setting: collateral challenges of misdemeanors launched after the petitioner has served the sentence imposed. Using the delay-no record-diligence formula in this setting would be consistent with the federal scheme of dealing with cases in which post-conviction relief is sought many years after conviction and the petitioner has served the sentence imposed. Under federal law a petitioner who is no longer in custody may move for a writ of error coram nobis, 28 U.S.C. Sec. 1651(a). 2 United States v. Bush, 888 F.2d 1145 (7th Cir.1989); United States v. Darnell, 716 F.2d 479 (7th Cir.1983), cert. den., 465 U.S. 1083, 104 S.Ct. 1454, 79 L.Ed.2d 771 (1984). Like our post-conviction relief proceedings, the petitioner seeking coram nobis relief bears the burden of proof. He must demonstrate that "the asserted error is jurisdictional or constitutional, [and] involves an error of law that results in a complete miscarriage of justice". United States v. Scherer, 673 F.2d 176, 178 (7th Cir.1982), cert. den., 457 U.S. 1120, 102 S.Ct. 2935, 73 L.Ed.2d 1334 (1982), citing United States v. Morgan, 346 U.S. 502, 512, 74 S.Ct. 247, 253, 98 L.Ed. 248 (1954). In addition, a coram nobis petitioner must satisfy Article III "case and controversy" by showing present adverse legal consequences flowing from the conviction. Darnell, 716 F.2d at 481 n. 5. Finally, there must be " 'sound reasons' for the petitioner's 'failure to seek appropriate earlier relief' ". Id., citing Morgan, 346 U.S. at 512, 74 S.Ct. at 253.
As we shall explain later, procedural history of this case prevents its disposition on this basis. We see more direct grounds for resolving it: the intent and meaning of our own rules on retention of guilty plea records.
The State argues that the holding of the Court of Appeals encourages defendants to wait until ten years have passed before filing for post-conviction relief so as to deprive the State of its ability to defend on the merits of the petitioner's claims. This result, the State argues, rewards dilatory petitioners while undermining the finality of judgments.
Indiana Criminal Rule 5 provides for the recording of all oral evidence given in all cases and hearings. Indiana Criminal Rule 10 specifically requires that guilty plea proceedings be recorded and that such records "... be maintained as a confidential court record for ten years in all misdemeanors or fifty-five years in all felony cases." The purpose of the recording requirement in Criminal Rule 10 is to provide a transcript of the evidence taken at a guilty plea hearing in order to facilitate review in a later proceeding challenging the validity of the plea. Zimmerman v. State (1982), Ind., 436 N.E.2d 1087.
Because it is not possible or even rational to preserve all records forever, however, some convictions will be challenged after the time for saving the...
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