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02/16/88 WAYMON WILSON v. STATE INDIANA

Filed: February 16, 1988.

WAYMON WILSON, APPELLANT (PETITIONER BELOW),
v.
STATE OF INDIANA, APPELLEE (RESPONDENT BELOW).



Appeal from the Marion County Superior Court, Criminal Division I, The Honorable Jay B. Haggerty, Judge, Pro Tem., Cause No. CR71-0663

Shields, P.j., Sullivan, J., Concurs. Garrard, J., Concurs.

Author: Shields

SHIELDS, P.J.

Waymon Wilson appeals the denial of his petition for post-conviction relief.

We affirm.

ISSUE

The sole issue on appeal is whether the evidence was sufficient to support the post-conviction hearing court's finding of laches.[Footnote 1]

FACTS

On June 3, 1971, when Wilson was twenty years old, he pled guilty to possession of heroin[Footnote 2] and was sentenced to an indeterminate term of one to ten years incarceration. In 1975, Wilson commenced a sentence for a theft conviction. He was sentenced in 1982 as an habitual offender arising from his conviction for burglary. He filed the instant petition for post-conviction relief in February, 1986.

At Wilson's 1971 guilty plea hearing, the testimony of Officer Don Goeden, a member of the Indianapolis police force, provided the factual basis for the plea. Goeden related that in February 1971, he and other officers, whom he did not name, conducted a surveillance of a suspected narcotics dealer's house. They observed Wilson approach the front door of the house and exchange something with a person answering the front door. A foil package containing white powder was subsequently recovered from Wilson. A field test identified the white powder as a derivative of opium. A laboratory analysis by Sergeant Charles Caine identified the substance as heroin in an amount equal to that used for one injection. The charging information was sworn by Elmer E. Combs, who was listed on the charging instrument along with Goeden and Caine as State's witnesses.

At his post-conviction relief hearing Wilson testified that he learned about post-conviction relief procedures in 1983 by consulting a book on trial procedure following the fruitless appeal of his burglary conviction. He also admitted that in 1983 he had petitioned for post-conviction relief from his 1971 drug conviction in the court which sentenced him as an habitual offender. When asked why no action had been taken on that petition, Wilson responded: "I've had a series of public defenders, uh, some of em retire, some of 'em get sick, uh, and uh, it just never came in front of the courts until just now." Record at 101.

Wilson admitted he only vaguely remembered his guilty plea hearing. He did not remember the name or appearance of the attorney who represented him at the guilty plea hearing; he did not remember Goeden; he did not remember a factual basis for his plea being stated; and he did not remember the colloquy between himself and the court. Wilson did remember Combs because he was the officer who "accosted" him.

Officers Combs and Caine testified at Wilson's post-conviction relief hearing, Officer Goeden did not. Combs recalled he worked as a narcotics undercover officer in 1971; however, he did not recall the arrest of Mr. Wilson. Combs further testified he did not have notes of the incident and did not recognize Wilson. Neither was Combs's memory refreshed during the hearing by a reading of Goeden's testimony at the 1971 guilty plea hearing.

Sergeant Caine, the second State's witness, testified that his duties in 1971 as a police officer included examining suspected narcotics and dangerous drugs. He did not recall examining the white powder wrapped in foil taken from Wilson. He testified he personally supervised the routine destruction of all his test records and all tested substances after ten years and that he could not recreate his findings. ...


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