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09/04/87 ROBERT D. PERRY v. STATE INDIANA

Filed: September 4, 1987.

ROBERT D. PERRY, APPELLANT (PETITIONER BELOW),
v.
STATE OF INDIANA, APPELLEE (RESPONDENT BELOW); DANNY J. RAY, APPELLANT (PETITIONER BELOW), V. STATE OF INDIANA, APPELLEE (RESPONDENT BELOW); HERBERT W. WHEELER, APPELLANT (PETITIONER BELOW), V. STATE OF INDIANA, APPELLEE (RESPONDENT BELOW)



APPEAL FROM THE CARROLL CIRCUIT COURT, County Court Division, Cause Numbers CS-82-211, CS-77-535 and CS-79-782, (Robert D. Perry), Court of Appeals Nos. 2-385 A 92, 4-1803 A 353, 4-883 A 292, The Honorable Darrell K. Diamond, Judge. APPEAL FROM THE LAWRENCE COUNTY COURT, The Honorable Raymond L. Kern, Judge, Cause Numbers 79-CL-992 and 74-CL-2850, (Danny J. Ray and Herbert W. Wheeler). CONSOLIDATED OPINION ON PETITIONS TO TRANSFER.

Shepard, C.j., DeBRULER And Dickson, JJ., Concur. Givan, J., Concurs IN Result. Pivarnik, J., Dissents And Would Deny Transfer.

Author: Shepard

SHEPARD, C.J.

Appellee State of Indiana seeks transfer of a decision on the issue of laches favorable to appellants Danny Ray and Herbert Wheeler, Ray v. State (1986), Ind. App., 496 N.E.2d 93. Appellant Robert Perry seeks transfer of a Court of Appeals' decision affirming the denial of his petition for post-conviction relief, Perry v. State (1986), Ind. App., 492 N.E.2d 57. Each petitioner claims a conflict with the Court of Appeals' decision in the other petitioner's case. Because these cases involve a similar issue, we consolidate them to consider the nature of the proof required to establish the defense of laches against a petition for post-conviction relief.

The common issue presented by these cases is whether the State can meet its burden to prove unreasonable delay under circumstances permitting diligence by showing circumstances such as to put a person on inquiry.

I. Historical Application of Laches

We commence from a definition of laches often repeated in our cases:

laches . . . 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.

Frazier v. State (1975), 263 Ind. 614, 616-617, 335 N.E.2d 623, 624.

Before the existence of our current Rules of Procedure for Post-Conviction Proceedings, a judgment of conviction could be collaterally attacked by a writ of error coram nobis. This writ could be brought at any time. Murphy v. Daly (1933), 206 Ind. 179, 188 N.E. 769. An early statute which raised a presumption of waiver after a lapse of five years, 9-3301 Burns 1949 Supp., Acts of 1947, Ch. 189, was held to violate due process. State ex rel. McManamon, et al. v. Blackford Circuit Court, et al. (1950), 229 Ind. 3, 95 N.E.2d 556. A requirement of diligence, however, was still imposed. As Chief Justice Young wrote for the Court: "[I]f, from such presentation of evidence, it occurs to the trial Judge that sufficient time has elapsed since the sentence of the man and that the man, in fact, had sufficient knowledge of his rights, the petition should be denied for lack of diligence." Id. at 16, 95 N.E.2d at 561.

The requirement of due diligence later was eliminated "when it is alleged and proved that petitioners' constitutional rights have been violated." State v. Lindsey (1952), 231 Ind. 126, 133, 106 N.E.2d 230, 233. If petitioners' constitutional rights had been violated, "the judgments were void. . . . where a judgment is void, laches does not operate to preclude the opening or vacating of a void judgment, for the reason that no amount of acquiescence can make it valid." Id. at 132, 106 N.E.2d at 232.[Footnote 1] Due diligence remained a requirement for writs of coram nobis in cases which did not allege void judgments. This requirement was most often stated when writs were sought following trial and conviction and the writ was analogous to a motion for new trial. See Burton v. State (1964), 246 Ind. 197, 202 N.E.2d 165; Barker v. State (1963), 244 Ind. 267, 191 N.E.2d 9.

This distinction continued when the writ of error coram nobis was replaced by proceedings under the Rules of Procedure for Post-Conviction Remedies, Ind. Rules of Procedure. A petitioner seeking a belated motion to correct error and belated appeal must show diligence in pursuing appellate relief. Rule P.C. 2, §§ 1(c), 2(d). A petition under Rule P.C. 1, however, may be filed at any time. Rule P.C. 1, § 1(a). "A showing of diligence is not a prerequisite to relief under P.C. 1. . . ." Langley v. State (1971), 256 Ind. 199, 211, 267 N.E.2d 538, 545.

The inherent tension between proceedings which allow a judgment to be challenged at any time and finality of judgments is apparent. As the Court stated in Langley :

In the name of Justice and fair play this court, through its promulgation of our post-conviction remedy rules and by case decision, has sought to insure that each defendant will have an avenue available by which he may challenge on appeal the correctness of his conviction. It was not our intent, however, to provide a means whereby one convicted could repeatedly re-litigate claims of improper conviction, or could unqualifiedly, upon a legitimate waiver of the right to appeal either expressly made or to be inferred ...


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