John A. England
Deputy Public Defender
Appellant Pro Se
William A. Sanders
Attorneys for Appellee
Jeffrey A. Modisett
Attorney General of Indiana
Deputy Attorney General
Appellant (Petitioner below),
STATE OF INDIANA, Appellee (Respondent below ).
) Supreme Court No.
) Court of Appeals No.
August 21, 2000
On November 10, 1998, the post-conviction court held a hearing.
court ruled that Sanderss petition was indeed barred by the doctrine of laches,
and dismissed the petition without considering the merits of Sanderss claims. In
reaching its conclusion, the post-conviction court determined that (1) Sanders unreasonably delayed filing
his pro se petition for post-conviction relief by waiting until January 1994, and
(2) the State had been prejudiced by Sanderss delay because Alvester Bowman, an
eyewitness to the crime, had moved to the state of Tennessee.
Sanders, represented by counsel, appealed the post-conviction courts decision. In an unpublished
memorandum decision, the Court of Appeals affirmed.
See Sanders v. State, No.
45A05-9901-PC-21, slip op. at 6 (Ind. Ct. App. Dec. 20, 1999).
As with other sufficiency of the evidence claims, we do not reweigh the
evidence nor judge the credibility of witnesses when reviewing a claim that evidence
is insufficient to establish laches. See Lacy v. State, 491 N.E.2d 520,
521 (Ind. 1986). Rather, we consider only that evidence most favorable to
the judgment together with all reasonable inferences to be drawn therefrom. See
id. If the courts finding is supported by substantial evidence of probative
value, the judgment will be affirmed. See Washington v. State, 507 N.E.2d
239, 240 (Ind. 1987).
In Williams, we found the evidence insufficient to establish either laches in general or conscious indifference or procrastination in particular. Williams, 716 N.E.2d at 902 (quoting Perry, 512 N.E.2d at 844). We reached that result after considering that the petitioner filed for post-conviction relief 21 months (and arguably only five months) after the completion of his unsuccessful direct appeal. We also considered that the petitioner had never before been in prison and was unfamiliar with the prison law library.
Here, Sanders had twice previously been incarcerated and from that experience could have learned about post-conviction remedies. See footnote But access to information about post-conviction remedies is relevant in this context only if the evidence is in conflict over whether the petitioners conduct constituted conscious indifference or procrastination. As in Williams, we find no evidence of conscious indifference or procrastination.
The record reveals about a two-year delay between the date of completion of Sanderss unsuccessful appeal on October 9, 1991, and the date Sanders filed his first pro se petition for post-conviction relief on January 19, 1994. However, at least nine months of the two-year delay is attributable to the public defender who failed to inform Sanders about the unpublished memorandum decision rejecting his appeal. In fact, Sanders testified at the post-conviction hearing that a fellow inmate informed him to write the Clerk of the Court of Appeals concerning the status of his appeal in August or September of 1992. Sanders took this advice and learned of the decision at that time. Upon learning that the Court of Appeals affirmed his convictions and sentences in late 1992, Sanders immediately requested the record from the Court of Appeals and received it in January 1993. Sanders, who testified that he had below average reading and comprehension abilities, subsequently filed his pro se post-conviction petition one year later in January 1994. Although the State answered this petition four weeks later, it did not assert laches for another four years. Under these circumstances, we find that Sanders demonstrated the requisite diligence in filing his petition after learning of the adverse ruling. See Edwards v. State, 676 N.E.2d 1087, 1090 (Ind. Ct. App. 1997) (ruling that regardless of petitioners knowledge of post-conviction remedies, the State will not prevail on laches where petitioner is diligent in maintaining contact with the Public Defender and expresses desire for assistance but receives adequate assistance only after a lengthy delay), transfer denied.
With respect to alleged prejudice, the Court of Appeals affirmed the post-conviction courts
ruling that the State has been prejudiced as a result of Sanderss delay
in filing. The court determined, The prejudice component rests upon the logistical
difficulties in retrying Sanders because the eyewitness to the occurrence resides in Tennessee.
Slip op. at 6. We disagree and find instructive Judge Robbs
concurring opinion in which she recognized, [T]he mere fact that Bowman lives out
of state does not prejudice the State, especially where the out-of-state witness
is willing to return to testify and his memory of the events is
intact. Id. at 8, 9.
At the post-conviction hearing, the Lake County investigator for the prosecutors office testified
that he was able to locate Bowman who resided in Tennessee. On
cross-examination, defense counsel asked the investigator, [W]hen you talked to Mr. Bowmanm, did
he recall the specifics of this case? The investigator replied, Yes. he did.
After the hearing, counsel obtained an affidavit revealing that Bowman was willing
to testify without a subpoena and that he had a clear recollection of
the events. Other witnesses who testified at Sanderss trial were also available
for retrial with the exception of Kimberly Epperson who died one-and-a-half years after
Sanders filed his first petition for post-conviction relief. As such, we are
not convinced that a successful prosecution [was] materially diminished by the passage of
time attributable to the petitioners neglect. Stewart v. State, 548 N.E.2d 1171,
1176 (Ind. Ct. App. 1990), transfer denied. The State did not suffer
prejudice from Sanderss delay in filing the petition.
SHEPARD, C.J., and DICKSON, BOEHM, and RUCKER, JJ., concur.