ATTORNEY FOR APPELLANT:
DAVID GLICKFIELD, JR.
COURT OF APPEALS OF INDIANA
CHRISTINA BLUNT-KEENE, )
vs. ) No. 27A02-9812-PC-978
STATE OF INDIANA, )
APPEAL FROM THE GRANT SUPERIOR COURT III
The Honorable Natalie R. Conn, Judge
Cause No. 27D03-9312-CM-1129
March 24, 1999
OPINION - FOR PUBLICATION
Appellant-Defendant Christina Blunt-Keene (Blunt-Keene) appeals the denial of
her petition for post-conviction relief from her conviction pursuant to a plea of guilty to
Operating a Vehicle with a Blood Alcohol Content (BAC) Greater than .10%, a class C
The sole issue raised by Blunt-Keene is whether the trial court's conclusion that the
State had established its affirmative defense of laches is clearly erroneous. We address the
additional issue of whether Blunt-Keene carried her burden of establishing her entitlement
to post-conviction relief based on her assertion that her guilty plea was not entered
knowingly, intelligently, and voluntarily.
The dispositive facts show that Blunt-Keene was not represented by an attorney at her
guilty plea hearing. (R. 43). The trial court orally advised Blunt-Keene and others of their
rights en masse. (R. 40-41). When addressing Blunt-Keene individually, the trial court did
not specifically discuss Blunt-Keene's 1) right to a trial by jury, 2) right to confrontation, and
3) right against self-incrimination. (R. 42-44). It would appear from the record presented
on appeal that no written plea agreement was executed nor did Blunt-Keene execute a written
waiver of rights.
Blunt-Keene filed the instant petition for post-conviction relief. (R. 3). The
chronological case summary does not reflect that the State filed an answer to the post-
conviction petition.See footnote
(R. 3). At the hearing on Blunt-Keene's petition, the State raised the
affirmative defense of laches asserting that the police officer who had arrested Blunt-Keene
had since died. (R. 23, 34). However, the State presented no evidence to demonstrate that
the police officer in question had died but only referred to the matter during the argument of
counsel. (R. 34).
The post-conviction court denied Blunt-Keene's petition finding laches based on the
death of the arresting police officer. (R. 9-11). This appeal ensued.
Discussion and Decision
Prima Facie Error
At the outset, we note that the State did not file an appellee's brief. However, this
circumstance in no way relieves us of our obligation to decide the law as applied to the facts
in the record in order to determine whether reversal is required. See Brickert v. State, 673
N.E.2d 493, 495 (Ind. Ct. App. 1996), trans. denied. However, controverting arguments
advanced for reversal is an obligation which properly remains with counsel for the appellee.
Id. Accordingly, when an appellee fails to submit a brief, an appellant may prevail by
making a prima facie case of error. Rzeszutek v. Beck, 649 N.E.2d 673, 676 (Ind. Ct. App.
1995), trans. denied. In this context, prima facie error means error at first sight or
appearance. Finney v. Relphorde, 612 N.E.2d 191, 192 (Ind. Ct. App. 1993).Standard of Review - Post-Conviction Relief
Indiana's post-conviction rules do not afford convicted persons an opportunity for a
super appeal, but instead create a narrower remedy permitting the collateral challenge of
convictions under certain enumerated circumstances. Weatherford v. State, 619 N.E.2d 915,
916 (Ind. 1993). The post-conviction petitioner bears the burden of establishing his grounds
for relief by a preponderance of evidence. Id. at 917; Ind. Post-Conviction Rule 1(5). On
review, the appellate courts may consider only the evidence and reasonable inferences
supporting the judgment of the post-conviction court which is the sole judge of the evidence
and the credibility of the witnesses. Weatherford, 619 N.E.2d at 917. To prevail on appeal
from the denial of post-conviction relief, the petitioner must show that the evidence as a
whole leads unerringly and unmistakably to a conclusion opposite to that reached by the post-
conviction court. Id.
While post-conviction relief may be available at any time, the right to relief may be
directly or impliedly waived. Lile v. State, 671 N.E.2d 1190, 1194 (Ind. Ct. App. 1996). To
this end, the State may raise the affirmative defense of laches. Id. For the doctrine of laches
to bar relief, the State must prove by a preponderance of evidence that the petitioner
unreasonably delayed in seeking relief and that the State was prejudiced by the delay. Id.
The burden of proving laches rests entirely upon the State. Twyman v. State, 459 N.E.2d
705, 712 (Ind. 1984).
It is axiomatic that the arguments of counsel are not evidence. See Young v. Butts,
685 N.E.2d 147, 150 (Ind. Ct. App. 1997) (arguments of counsel constitute no evidence
whatsoever). It is likewise axiomatic that a complete failure of proof on an element of a
claim is fatal to that claim. Dixon v. State, 425 N.E.2d 673, 674-75 (Ind. 1981) (insufficient
evidence will be found where there is an absence of substantial probative evidence upon a
As the State failed to present any evidence in support of its claim that the arresting
police officer had died, the evidence is insufficient to support the State's affirmative defense
of laches. Therefore, the post-conviction court's finding that the State had met its burden of
proving laches is clearly erroneous.
II. Knowing, Intelligent, and Voluntary Waiver - En Masse Advisement
Before a guilty plea may be considered knowing, voluntary, and intelligent, the record
must disclose that the defendant knew he was waiving three particular constitutional rights:
the right to trial by jury, the right to confrontation, and the right against self-incrimination.
Griffin v. State, 617 N.E.2d 550, 552 (Ind. Ct. App. 1993) (citing Boykin v. Alabama, 395
U.S. 238 (1969)). An en masse advisement of rights is an acceptable procedure so long as
the procedure is coupled with the guilty plea court's personal interrogation of the defendant
to determine whether the defendant understands his rights and the concept of waiver. Id.
However, when the record is silent regarding the defendant's knowledge and understanding
of his rights and the concept of waiver, the defendant is entitled to post-conviction relief. Id.
at 553 (we may not presume that a defendant hears and understands an en masse
In the present case, the record is silent regarding Blunt-Keene's understanding of her
Boykin rights and the concept of waiver. Therefore, Blunt-Keene has demonstrated her
entitlement to post-conviction relief. See Griffin, 617 N.E.2d at 553.
STATON, J., and FRIEDLANDER, J., concur.
1 The charging information was not included in the record. Operating with a BAC Greater than .10%
is proscribed by Ind. Code § 9-30-5-1.
2 The State must affirmatively plead the defense of laches in its answer to a petition for post-
conviction relief. Twyman v. State, 459 N.E.2d 705, 711 (Ind. 1984); Ind. Trial Rule 8(C).
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