Wilburn v. State, 22A01-8607-PC-186

• Docket Nº: No. 22A01-8607-PC-186
• Citation: 499 N.E.2d 1173
• Case Date: November 20, 1986
• Court: Court of Appeals of Indiana

Page 1173

499 N.E.2d 1173 John WILBURN, Defendant-Appellant,
v.
STATE of Indiana, Respondent-Appellee. No. 22A01-8607-PC-186. Court of Appeals of Indiana,
First District. Nov. 20, 1986.
Rehearing Denied Jan. 9, 1987.

Page 1174

Susan K. Carpenter, Public Defender, Novella L. Nedeff, Deputy Public Defender, Indianapolis, for defendant-appellant.

Linley E. Pearson, Atty. Gen., John D. Shuman, Deputy Atty. Gen., Office of Atty. Gen., Indianapolis, for respondent-appellee.

NEAL, Judge.

STATEMENT OF THE CASE

Defendant-appellant, John Wilburn (Wilburn), appeals the decision of the Floyd Circuit Court denying his Petition for Post-Conviction Relief.

We affirm.

STATEMENT OF THE FACTS

On August 20, 1975, Wilburn was charged with possession of stolen property regarding a stolen tractor-mower. On May 3, 1976, Wilburn filed a Petition for Election of Treatment regarding drug use. A hearing was held on Wilburn's petition and guilty plea. He was approved for treatment by court order on June 11, 1976. Shortly thereafter Wilburn violated the rules of his drug treatment program, and following hearings on June 29 and July 8, 1976, he was dismissed from the program. On July 27, 1976, Wilburn was sentenced on his guilty plea to his original charge to an indeterminate period of one to five years in prison. Wilburn subsequently served approximately 18 months before he was released. He remained at liberty until October 1980, when he was arrested for possession of and dealing marijuana. Wilburn was tried and convicted on these charges on March 5, 1981, and was also found to be a habitual offender.

In March of 1982, Wilburn contacted the public defender's office, and in May of 1982, the public defender made the first of four requests for a transcript of Wilburn's guilty plea. On October 19, 1983, the Floyd Circuit Court Reporter notified the public defender that, due to a defective tape, no transcript could be prepared. Wilburn filed his post-conviction relief petition on September 18, 1984, amended it on January

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28, 1985, and a hearing was held on it on May 6, 1985. From the denial of this petition, Wilburn now appeals. ISSUES

I. Whether the trial court erred in finding that Wilburn failed to prove that he was not adequately advised at his guilty plea hearing.

II. Whether application of the doctrine of laches violates Wilburn's right to challenge the validity of a conviction used for subsequent habitual offender status.

III. Whether the trial court erred in finding that Wilburn was guilty of laches.

DISCUSSION AND DECISION

ISSUE I: Non-reconstructability of Record

Wilburn alleges he did not give a knowing, voluntary, and intelligent guilty plea since the trial court did not adequately advise him of his rights according to IND.CODE 35-4.1-1-3, the minimum requirements under Boykin v. Alabama (1969), 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274, or the effect of electing treatment as required under IND.CODE 16-13-6.1-17 and -18. Wilburn argues he carried his burden of proof on these allegations by proving that the record of the trial court's advisements is unavailable and unable to be reconstructed.

In proving the insufficiency of the record in this case, Wilburn submitted the following evidence at his post-conviction relief hearing. He submitted the court reporter's affidavit confirming the defectiveness of the tape and the dates the public defender submitted requests for transcripts. The former deputy prosecutor who prosecuted the case submitted an affidavit confirming he did not have sufficient recollection to recreate the record. Wilburn's former defense attorney testified he could not remember the presence or absence of specific advisements given by the trial judge. The trial judge who presided throughout the case died in March 1981. Likewise, Wilburn was unable to testify as to what advisements were given or omitted. The trial court concluded that Wilburn failed to prove that he was not properly advised. This was error.

The loss of a record or transcript of a guilty plea hearing does not, per se, require the plea to be vacated. Zimmerman v. State (1982), Ind., 436 N.E.2d 1087. Ind.Rules of Procedure, Appellate Rule 7.2(A)(3)(c) should first be resorted to as a means to produce a record for review on appeal instead of ordering a new trial. Zimmerman, supra. However, where the record of the guilty plea hearing neither can be found nor reconstructed, granting of post-conviction relief and a new trial is appropriate. Id.; Gallagher v. State (1980), 274 Ind. 235, 410 N.E.2d 1290. Wilburn submitted evidence that reconstruction of the record was impossible; the tape of his hearing was unable to be transcribed, and all parties present at the guilty plea hearing either had died or could not remember the details. Boykin, supra, requires advisements on the record. We cannot imply that the trial court advised Wilburn of his constitutional and statutory rights so as to render his plea voluntarily, knowingly and intelligently given.

ISSUES II and III: Due Process; Laches

Although we hold that Wilburn has presented a valid claim for relief, we now turn to the issue of whether the equitable doctrine of laches can preclude relief from a claim he was not advised of his constitutional and statutory rights.

Wilburn claims that to hold the equitable doctine of laches as a bar to post-conviction relief proceedings violates his constitutional right to due process and effectively prevents him from challenging the conviction used to increase an unrelated penalty. Wilburn's arguments here were decided adversely to him in Cheney v. State (1986), Ind.App., 488 N.E.2d 739. Our supreme court and appellate courts have long recognized the defense of laches

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to constitutional errors alleged in post-conviction relief petitions. See Lacy v. State (1986), Ind., 491 N.E.2d 520; Cheney, supra; Badelle v. State (1986), Ind.App., 487 N.E.2d 844; Morrison v. State (1984), Ind.App., 466 N.E.2d 783. Laches has been held to apply even when it has been affirmatively shown that, on the record, certain advisements were not given. See Mottern v. State (1984), Ind.App., 466 N.E.2d 488; Morrison, supra. Since we assume advisements were not given when the absence of a record has been proven, logically, laches could still apply under the circumstances of this case. Due process also cuts both ways. In Cheney, supra, we noted that due process requires all parties to act promptly and diligently in bringing matters before the court, citing Callahan v. State (1966), 247 Ind. 350, 214 N.E.2d 648, [cert. denied (1966), 385 U.S. 942, 87 S.Ct. 305, 17 L.Ed.2d 222].

In the case at bar, the trial court also ruled the State met its burden of proof on its defense of laches. Laches has been defined by our supreme court in Frazier v. State (1975), 263 Ind. 614, 616-17, 335 N.E.2d 623, 625:

"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." [Citations omitted.]

In other words, it has been held it is the State's burden to show, by a preponderance of the evidence, (1) an unreasonable delay, and (2) prejudice. Twyman v. State (1984), Ind., 459 N.E.2d 705.

Since Wilburn did not have the burden of proof on this issue, our standard of review on appeal is the sufficiency of the evidence. Gregory v. State (1986), Ind., 487 N.E.2d 156. We will not reweigh the evidence or determine the credibility of witnesses, instead we look only to that evidence most favorable to the judgment, together with all reasonable inferences flowing therefrom. If there is probative evidence which supports the trial court's judgment, it will be affirmed. Harrington v. State (1984), Ind.App., 466 N.E.2d 1379, trans. denied.

In the case at bar, Wilburn was convicted and sentenced to prison on July 27, 1976, and his post-conviction relief inquiries were initiated in March of 1982. Wilburn testified that he asked his former defense attorney what he could do about his conviction but was told it could not be attacked; relying on this advice Wilburn did not inquire further until 1982. However, the trial court apparently did not believe this uncorroborated statement. In its findings and conclusions, the trial court found that Wilburn provided no justification for his delay in filing a post-conviction relief petition, and concluded that Wilburn should have been put on inquiry as to the availability of post-conviction relief but failed without cause to inquire or take any steps to determine the availability of relief, even though counsel was available to him. For us to consider Wilburn's testimony contradicting the trial court's finding and conclusions would be an impermissible reweighing of the evidence. Harrington, supra.

It has been held that lapse of time alone does not constitute laches, Twyman, supra; Frazier, supra, but a long delay in filing one's post-conviction relief petition may, in and of itself, be sufficient to...