Stewart v. State, No. 49A02-8807-PC-261

• Docket Nº: No. 49A02-8807-PC-261
• Citation: 548 N.E.2d 1171
• Case Date: January 16, 1990
• Court: Court of Appeals of Indiana

Page 1171

548 N.E.2d 1171 Joseph STEWART, Appellant,
v.
STATE of Indiana, Appellee. No. 49A02-8807-PC-261. Court of Appeals of Indiana,
Second District. Jan. 16, 1990.
Rehearing Denied Feb. 12, 1990.

Susan K. Carpenter, Public Defender, John Pinnow, Deputy Public Defender, Indianapolis, for appellant.

Linley E. Pearson, Atty. Gen., Lisa Anne McCoy, Deputy Atty. Gen., Indianapolis, for appellee.

Page 1172

SULLIVAN, Judge.

Joseph Stewart (Stewart) appeals from the denial of his post-conviction relief.

We affirm.

This case comes to us by way of procedural complexities, the resolution of which are crucial to its outcome. The pertinent facts are as follows: Stewart pled guilty to the charge of theft by deception on September 16, 1971. He received an indeterminate sentence of one to five years. On November 13, 1985, Stewart filed a pro se Petition for Post-Conviction Relief. The petition was in the nature of a vague and unspecific challenge to Stewart's conviction and sentence as violative of the U.S. Constitution, as well as of the laws and constitution of the State of Indiana. The State answered on November 14, 1985, and January 8, 1986, asserting inter alia the affirmative defense of laches.

On June 10, 1986, Stewart amended his Petition, alleging that his guilty plea was not made knowingly, intelligently, and voluntarily because the trial court failed to advise him regarding his right of confrontation, the right against self-incrimination, and the right to a speedy jury trial. On the same date the State Public Defender entered an appearance for Stewart.

On October 22, 1986, a PCR hearing was held. Stewart, by counsel, presented evidence going to the merits of his contention; Stewart was also prepared to rebut the State's laches defense. The State, however, did not present evidence of laches at this proceeding, defending solely upon the merits.

Post-conviction relief was denied on December 12, 1986; no findings of fact or conclusions of law accompanied the order. Stewart filed a Motion to Correct Errors which was sustained following a hearing on the Motion. The trial court vacated its judgment denying relief and held a second post-conviction relief hearing. At this proceeding the State was permitted, over objection by Stewart's counsel, to present evidence of laches. Stewart's post-conviction relief was subsequently denied and he instituted this appeal.

On appeal, Stewart presents three allegations of error, which we rephrase as follows:

(1) Stewart's guilty plea was not knowing, intelligent and voluntary because the trial court failed to advise him of his right of confrontation and his right against self-incrimination;

(2) The State waived the defense of laches by failing to present evidence of it at the first available opportunity; and

(3) The State did not sustain its burden of proof on the laches issue.

I

Stewart's plea hearing occurred in 1971, prior to the passage of Indiana's advisement statute. Therefore the question of whether Stewart's plea was voluntary, knowing, and intelligent is determined by Boykin v. Alabama (1969) 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274. Compliance with Boykin is in turn determined by reference to White v. State (1986) Ind., 497 N.E.2d 893, 905:

"Of course, unless the record reveals that the defendant knew or was advised at the time of his plea that he was waiving his right to a jury trial, his right of confrontation and his right against self-incrimination, Boykin will require that his conviction be vacated."

The record in the present case reflects that Stewart was advised that he had the right to a jury trial, that if one was to be held Stewart would not be required to testify and that he would have the right to have witnesses testify on his behalf:

"THE COURT: Do you understand that you do not have to plead guilty. You can require the State to prove you're guilty beyond any reasonable doubt?

MR. STEWART: Yes, sir.

THE COURT: And that you're entitled to a trial by jurors. Do you understand that?

MR. STEWART: Yes.

THE COURT: Do you understand what a jury is comprised of?

MR. STEWART: Yes, sir.

Page 1173

THE COURT: Twelve people all of whom must agree upon your guilt before you can be found guilty. Do you understand that?

MR. STEWART: Yes, sir.

THE COURT: Do you understand that at a trial you may testify or not testify as you see fit. Do you understand that?

MR. STEWART: Yes, sir.

THE COURT: And if there were a trial you have the right to have witnesses to testify on your behalf at no expense to you. Do you understand that?

MR. STEWART: Yes, sir." Record at 57-58.

The record is silent as to Stewart's awareness and/or advisement concerning his right to confront the witnesses against him. We note also that at the second post-conviction relief hearing the State conceded error with respect to this issue because it was unable to provide witnesses who could have possibly testified as to Stewart's awareness that he was waiving the right of confrontation. While the State's concession does not conclusively dispose of the issue, it speaks to Stewart's lack of awareness of this right. Absent further evidence to the contrary, we might therefore appropriately vacate the guilty plea.

Finally, the trial court in its "Findings of Fact" dated October 14, 1987, and addressed to the second PCR proceeding stated:

"The court did not, in so many words, advise Petitioner that he was waiving his right to confront the witnesses against him...." Record at 125.

Because Boykin has held that a defendant's voluntariness cannot be determined from a silent record we are constrained to hold that Stewart's guilty plea was not made knowingly, intelligently, and voluntarily.

II

Our decision that Stewart's plea advisement was deficient under Boykin and White only begins our inquiry. Stewart's success upon the merits requires us to address the laches issues. (See Fisher v. State (1988) Ind., 519 N.E.2d 539, in which the Indiana Supreme Court, facing laches issues similar to those here, was able to avoid their resolution by deciding that the petitioner was unsuccessful on the merits of his guilty plea challenge.) The resolution of this case turns upon whether or not the State waived the right to present the defense of laches. Although pleading the affirmative defense in its answer, the State declined to present evidence of laches at the first PCR hearing. The State claimed initially that it did not want to present laches evidence because it believed it would prevail upon the merits and because it wanted to present a "test case" to the Indiana Supreme Court:

"MS. KATT: ¹ Your Honor, initially it was the State's position that uh, the State could prevail on the merits basically because it's the State's position that the trial courts in the State of Indiana were not required to advise the defendant of anything except find out whether the plea was voluntarily and knowingly and intentionally entered until 1973 when the first statute came out. Now in, after talking with uh, Defense Counsel I've been looking at the cases. I can't find a case that comes out and says the trial court was required to tell the defendant his Boykin rights in '71 and '72, until the '73, after the '73 statute. Because this is important and because I don't know what the Indiana Supreme Court is going to say, I'd like to have an opportunity to present a laches case. In a way I'm not, if I, if you allow me the opportunity, a continuance, and allow me the opportunity to present laches then I'm afraid that they won't rule on this particular issue, which is the one I want them to address." Record at 164-165.

However it also became apparent that the State was not prepared to go forward with its affirmative defense at the initial post-conviction hearing:

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