Wilkerson v. State

• Decision Date: 19 May 2000
• Docket Number: No. 48A04-9907-PC-314.,48A04-9907-PC-314.
• Parties: Cedric WILKERSON, Appellant-Petitioner, v. STATE of Indiana, Appellee-Respondent.
• Court: Indiana Appellate Court

728 N.E.2d 239

Cedric WILKERSON, Appellant-Petitioner, v. STATE of Indiana, Appellee-Respondent.

No. 48A04-9907-PC-314.

Court of Appeals of Indiana.

May 19, 2000.

Susan K. Carpenter, Public Defender of Indiana, Anne-Marie Alward, Deputy Public Defender, Indianapolis, Indiana, Attorneys for Appellant.

Jeffrey A. Modisett, Attorney General of Indiana, Liisi Brien, Deputy Attorney General, Indianapolis, Indiana, Attorneys for Appellee.

OPINION

RILEY, Judge

STATEMENT OF THE CASE

Appellant-Petitioner, Cedric Wilkerson (Wilkerson), appeals the denial of his Petition for Post-Conviction Relief.

We reverse and remand with instructions.

ISSUES

Wilkerson raises two issues on appeal, which we restate as follows:

1. Whether the post-conviction court erred when it concluded that Wilkerson's post-conviction action was barred by laches.

2. Whether Wilkerson received ineffective assistance of trial and appellate counsel.

FACTS AND PROCEDURAL HISTORY

On August 5, 1985, Wilkerson was charged with rape, criminal deviate conduct, confinement, and robbery, with regard to an assault on T.S. that occurred on July 8, 1985. Under the same cause number, Wilkerson was also charged with rape, criminal deviate conduct, and confinement with regard to an assault on A.W. that occurred on July 25, 1985. Both assaults occurred in Anderson, Indiana. A jury trial began on August 4, 1987, and on August 14, 1987, Wilkerson was convicted on all charges. At trial, T.S. was unable to identify her assailant; however, A.W. identified Wilkerson as her assailant. On September 14, 1987, Wilkerson was sentenced to forty (40) years for the crimes committed on T.S. and forty (40) years for the crimes committed on A.W. The sentences were ordered to run consecutively, for a total sentence of eighty (80) years.

We affirmed this conviction on November 15, 1990. On September 20, 1993, Wilkerson filed a pro se Petition for Post-Conviction Relief. On October 8, 1993, the State filed its Answer to Wilkerson's Petition. On October 22, 1993, the State Public Defender entered her appearance and on April 22, 1998, Wilkerson filed his Motion for Leave to Amend Pro Se Petition for Post-Conviction Relief. On April 22, 1998, the State filed a response to the amended petition raising the affirmative defenses of laches, waiver, and res judicata. A post-conviction hearing was held on February 10, 1999, and on June 10, 1999, Special Judge Culver denied Wilkerson's Petition.

DISCUSSION AND DECISION

I. Standard of Review

A post-conviction petition under Ind. Post-Conviction Rule 1 is a quasi-civil remedy, and, as such, the petitioner bears the burden to prove by a preponderance of the evidence that he or she is entitled to relief. Mato v. State, 478 N.E.2d 57, 60 (Ind.1985); Ind. Post-Conviction Rule 1(5). On appeal from the denial of a petition for post-conviction relief, we neither reweigh the evidence nor judge the credibility of the witnesses. Montano v. State, 649 N.E.2d 1053, 1056 (Ind.Ct.App.1995),trans. denied. To prevail on appeal, the petitioner must show that the evidence is without conflict and leads unerringly and unmistakably to a conclusion opposite that reached by the post-conviction court. Spranger v. State, 650 N.E.2d 1117, 1119 (Ind.1995),reh'g denied. It is only where the evidence is without conflict and leads to but one conclusion, and the post-conviction court has reached the opposite conclusion, that the decision will be disturbed as being contrary to law. Id. at 1120.

The purpose of a petition for post-conviction relief is to provide a means for raising issues unknown or unavailable to a defendant at the time of the original trial and appeal. Carrington v. State, 678 N.E.2d 1143, 1146 (Ind.Ct.App.1997), trans. denied. Post-conviction procedures are reserved for subsequent collateral challenges and may not provide a "super appeal" for the convicted. Weatherford v. State, 619 N.E.2d 915, 916 (Ind.1993), reh'g denied. When the petitioner has already been afforded the benefit of a direct appeal, post-conviction relief contemplates a rather small window for further review. Montano, 649 N.E.2d at 1056. Thus, in general, if an issue was available on direct appeal but not litigated, it is deemed waived. Madden v. State, 656 N.E.2d 524, 526 (Ind.Ct.App.1995), trans. denied. But see Woods v. State, 701 N.E.2d 1208, 1220 (Ind.1998),

reh'g denied, cert. denied, (holding that "a Sixth Amendment claim of ineffective assistance of trial counsel, if not raised on direct appeal, may be presented in postconviction-proceedings.").

II. Laches

The post-conviction court concluded that Wilkerson's Petition for Post-Conviction Relief was barred by the doctrine of laches. Wilkerson argues that the State presented insufficient evidence to prevail on its laches claim. We agree.

While post-conviction relief may be available at any time, the right to relief may be directly or impliedly waived and the State may raise the affirmative defense of laches. Lile v. State, 671 N.E.2d 1190, 1194 (Ind.Ct.App.1996).

[L]aches . . . is 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.

Perry v. State, 512 N.E.2d 841, 842 (Ind. 1987) (citing Frazier v. State, 263 Ind. 614, 616-617, 335 N.E.2d 623, 624 (1975)).

To prevail on a claim of laches the State has the burden of proving by a preponderance of the evidence that Wilkerson unreasonably delayed seeking post-conviction relief and that the State has been prejudiced by the delay. Williams v. State, 716 N.E.2d 897, 901(Ind.1999). The burden of proving laches rests entirely upon the State. Blunt-Keene v. State, 708 N.E.2d 17, 19 (Ind.Ct.App.1999). However, in reviewing a laches claim, we will not reweigh the evidence nor judge the credibility of the witnesses and we consider only that evidence most favorable to the judgment. Id. "If the determination of the court is supported by substantial evidence of probative value, the judgment will be affirmed." Id.

Here, the State argues that Wilkerson's delay in filing his Petition for Post-Conviction Relief was unreasonable and prejudiced the State. Wilkerson's direct appeal was decided on November 15, 1990, and on January 14, 1991, Wilkerson's Petition to Transfer was denied. Wilkerson filed his Petition for Post-Conviction Relief on September 20, 1993. Specifically, the State argues that because the complaining witness, A.W., had died since the trial, the State would be severely prejudiced on retrial. A.W. was the only witness who could identify Wilkerson as the man who had raped her. T.S., the other rape victim, was unable to identify her assailant.

At the hearing on Wilkerson's Petition for Post-Conviction relief, neither the State nor Wilkerson presented any witness testimony. However, Wilkerson entered five exhibits including the trial transcript, an Affidavit of Wilkerson's trial and appellate counsel, Wilkerson's Appellant's Brief on his direct appeal, the Memorandum Decision on Wilkerson's direct appeal, and A.W.'s death certificate. Thereafter, both counsel presented closing arguments.

Thus, the death certificate of A.W. was the only evidence presented in support of the State's claim of prejudice in regard to its laches defense. The State was required to prove by a preponderance of the evidence that Wilkerson's delay was unreasonable; however, the State failed to present any evidence on this issue. "It is axiomatic that the arguments of counsel are not evidence. . . . It is likewise axiomatic that a complete failure of proof on an element of a claim is fatal to that claim." Blunt-Keene, 708 N.E.2d at 19.

Nevertheless, the trial court found unreasonable delay although no evidence was presented by the State on this issue. To prove that Wilkerson's delay was unreasonable, the State was required to present evidence to show that Wilkerson had knowledge of the defects in his conviction and his means to seek relief. Perry, 512 N.E.2d at 845. Proof of Wilkerson's knowledge may be inferred by the fact-finder by looking at such factors as whether Wilkerson had repeated contacts with the criminal justice system, consultation with attorneys and was incarcerated in a penal institution with legal facilities. Id. "The court is not obligated to infer knowledge from any particular set of circumstances, nor is it bound to accept petitioner's assertions of ignorance. The State must, however, present some objective facts from which the court may draw a reasonable inference of knowledge." Id.

The trial court found that Wilkerson was incarcerated at a penal institution with legal facilities. Notwithstanding this conclusion, there was no evidence presented by the State as to where Wilkerson was incarcerated during the time period at issue, or whether Wilkerson had access to legal facilities at that penal institution. Further, there was no evidence presented by the State that Wilkerson knew of or had been informed of his right to file a petition for post-conviction relief or that he had ever filed such a petition in the past. Wilkerson was represented by the same attorney throughout this matter, in the trial court and on direct appeal. There was no evidence that he had any further contact with counsel after his appeal was concluded. The trial court also concluded that Wilkerson had significant contacts with the criminal justice system in this particular case. If we are to accept this conclusion of the trial court, then it could be said that every defendant who has a trial and direct appeal has had significant contacts with the criminal justice system and thus, knowledge of post-conviction...