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10/21/87 JAMES H. KINDRED v. STATE INDIANA

Filed: October 21, 1987.

JAMES H. KINDRED, PETITIONER-APPELLANT,
v.
STATE OF INDIANA, RESPONDENT-APPELLEE



APPEAL FROM MORGAN SUPERIOR COURT The Honorable John G. Baker, Judge Cause Nos. S68 S 192 and S68 S 231.

Ratliff, C.j.; Neal, J. and Staton, J., concur.

Author: Ratliff

STATEMENT OF THE CASE

RATLIFF, C.J.

James Kindred appeals the denial of his petition for post-conviction relief based on laches and also asserts lack of jurisdiction of the special Judge and error in not striking the State's answer. We affirm.

FACTS

In May, 1968, James Kindred was convicted in separate bench trials of theft and forgery. Kindred was sentenced to one (1) to five (5) years for theft and two (2) to fourteen (14) years for forgery. The cases were consolidated for appeal, and the Supreme Court of Indiana affirmed both convictions.

On May 24, 1984, Kindred filed a pro se petition for post-conviction relief (PCR) alleging that he had never waived his right to a jury trial and that he had been denied his constitutional right to effective assistance of counsel. On June 25, 1984, Kindred moved for leave to amend the petition. Before Kindred filed an amended PCR petition, he filed a motion for default based on the State's failure to answer his original petition. On May 15, 1985, the court denied Kindred's motion for default and ordered the State to file its answer thirty (30) days after Kindred filed an amended PCR petition. Thereafter, Kindred moved to strike the affirmative defense of laches from the State's answer, and the court denied that motion.

A special Judge had been appointed in this case on July 2, 1984, but on December 19, 1985, the Judge disqualified himself based on Kindred's claim that the Judge had failed to appear and qualify within ten (10) days pursuant to Indiana Rules of Procedure, Trial Rule 79(5). A second special Judge was appointed on February 4, 1986, but did not appear in this case until April 25, 1986. In April, May, and June, 1986, the second special Judge ruled on several motions by both Kindred and the State. On June 24, 1986, Kindred filed an objection to the jurisdiction of the second special Judge and moved to disqualify him. The court denied the motion to disqualify and also denied Kindred's renewed motion to strike the State's laches defense.

On September 19, 1986, the court conducted an evidentiary hearing on Kindred's PCR petition. The State presented evidence that two important witnesses in Kindred's 1968 trials had died and that other witnesses were unavailable. Further, the State showed that many of the prosecutor's records had been destroyed. The court denied Kindred's PCR petition on September 29, 1986, finding that Kindred's sixteen (16) year delay in filing for post-conviction relief was unreasonable, particularly in light of his experience with the legal system during the interim. The court also noted that the State's ability to reprosecute Kindred was hampered due to the delay. Kindred now appeals the denial of his PCR petition.

ISSUES

1. Did the post-conviction court err in assuming jurisdiction when the special Judge who presided over the post-conviction proceedings failed to appear and qualify within the time prescribed by T.R. 79(5)?

2. Did the post-conviction court err in denying petitioner's motion to strike the affirmative defense of laches from the State's answer?

3. Did the post-conviction court err in finding that the State sufficiently established laches as an affirmative defense to Kindred's ...


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