 Pursuant to Ind.Appellate Rule 65(D),
                                                                                  Nov 07 2013, 5:35 am
 this Memorandum Decision shall not be
 regarded as precedent or cited before any
 court except for the purpose of
 establishing the defense of res judicata,
 collateral estoppel, or the law of the case.




APPELLANT PRO SE:                                   ATTORNEYS FOR APPELLEE:

MICHAEL KELLEY                                      GREGORY F. ZOELLER
Springfield, Missouri                               Attorney General of Indiana

                                                    MONIKA PREKOPA TALBOT
                                                    Deputy Attorney General
                                                    Indianapolis, Indiana


                               IN THE
                     COURT OF APPEALS OF INDIANA

MICHAEL KELLEY,                                     )
                                                    )
       Appellant-Petitioner,                        )
                                                    )
               vs.                                  )       No. 45A04-1303-PC-161
                                                    )
STATE OF INDIANA,                                   )
                                                    )
       Appellee-Respondent.                         )


                        APPEAL FROM THE LAKE SUPERIOR COURT
                            The Honorable Diane R. Boswell, Judge
                                Cause No. 45G03-1202-PC-3


                                         November 7, 2013

                 MEMORANDUM DECISION - NOT FOR PUBLICATION

VAIDIK, Judge
                                            Case Summary

         Michael Allen Kelley, pro se, appeals the post-conviction court’s denial of his

petition for post-conviction relief. Thirty-seven years after being convicted of robbery and

after a lifetime of subsequent criminal convictions, he contends that his 1975 robbery

conviction should be set aside for numerous reasons, including his unsubstantiated claim

that a plea agreement called for its dismissal. Since that time, the trial judge has died, his

attorney has died, the victim could not be found but would be ninety-four years old if still

alive, one responding officer is dead, and the other is retired, living in Florida. Laches

precludes Kelley’s claims. The post-conviction court also did not err in not appointing

counsel and in not holding an evidentiary hearing. We affirm.

                                   Facts and Procedural History

         On October 23, 1974, the State charged Kelley with Class B felony robbery in Lake

County. In November 1974, while still being detained for robbery, Kelley was indicted in

the Northern District of Indiana on a multi-defendant conspiracy charge for the distribution

of a controlled substance.

        In July 1975, Kelley was sentenced to seven years’ incarceration in the federal

system.1 At around the same time Kelley pled guilty to Class B felony robbery (“the 1975

robbery conviction”) and was sentenced to a term of ten to twenty-five years. The court

suspended the sentence on the condition that he be remanded to the custody of the United


        1
         It is unclear exactly when Kelley was sentenced for his federal crime. In his brief, he claims that
he was actually sentenced on June 7, 1975. See Appellant’s Br. p. 6. The National Crime Information
Center (NCIC) report states that he was sentenced on July 7, 1975. See Appellant’s App. p. 126. However,
the minutes of the court for his 1975 robbery conviction state that the sentence would be suspended on the
condition that Kelley be remanded to the custody of the United States Marshall for execution of his
previously imposed federal sentence, implying that his federal sentence was imposed first. See id. at 115.
                                                     2
States Marshal for execution of a sentence previously imposed by the U.S. District Court

sitting in Hammond, Indiana. Appellant’s App. p. 115.

       Most of the records from Kelley’s 1975 robbery case have been lost or destroyed.

There is no surviving transcript of the guilty-plea hearing or sentencing. Id. at 58. The file

from the Lake County Prosecutor’s Office has also been destroyed. Id. at 132. The only

surviving document from the case is the minutes of the court.2 Id. at 115. Those minutes

confirm Kelley’s robbery conviction and do not indicate that it had been set aside. The

affidavit of Wallace Adams, an investigator for the Lake County Prosecutor’s Office, stated

that he searched for Evelyn Kingsley, the complaining witness in Kelley’s 1975 robbery

case, and could not find her. If alive, she would be ninety-four years old. Id. at 131.

Wallace also could not find the filing detective, Richard Rosinski. Although there was an

individual with the same name living in Crown Point, Indiana, a visit to his house yielded

no results. Id. Newman Jones, a responding officer, is dead. The other responding officer,

Bruce Koch, is retired, living in Kissimmee, Florida. Id. Both the prosecutor who handled

the matter and Kelley’s court-appointed defense attorney are deceased. Id. at 36, 64.

       Kelley claims that in the robbery plea agreement he promised to provide testimony

in a grand-jury investigation, successfully complete an executed term of imprisonment,

complete a term of supervised release, and earn a certificate of discharge pursuant to the




       2
           The minutes of a court are the predecessor to the Chronological Case Summary.
                                                    3
provisions of the Federal Youth Corrections Act (“FYCA”)3 in exchange for his state

convictions being expunged.4 Id. at 84-85.

        In May 1981, after completing his federal sentence and four years of supervised

release without any violations, Kelley was given an early discharge and his federal

conviction was automatically discharged pursuant to the FYCA. Id. at 126. In December

1982, Kelley was found guilty of murder in Lake County, Indiana and the court ordered a

presentence investigation report (PSI). In the PSI report, Kelley’s federal distribution of

heroin charge contained a notation that, “[on] 5-6-81 he was discharged and the conviction

was set aside.” Id. at 122. No such notation existed for his 1975 robbery conviction in the

PSI report. Id. at 123. Kelley claims, in his interview with the probation officer preparing

the report, that he told the officer that his 1975 robbery conviction had been expunged in

connection with the completion of his FYCA sentence. Appellant’s Br. p. 7. Kelley’s

NCIC report shows that Lake County prosecutors had dismissed a Class B robbery charge

in 1982, however both the NCIC and the PSI report show that Kelley had been charged

with two robberies between 1974 and 1982. The dismissed robbery has a different case

number from the 1975 robbery conviction. Appellant’s App. p. 125, 127.




        3
          The FYCA was formerly codified at 18 U.S.C §§ 5005-5026 (1970) (repealed in 1984). “[T]he
repeal of the FYCA is an ex post facto law to the extent that it precludes the court from considering the
FYCA in sentencing a youth offender who committed an offense prior to the repeal of the [Youth
Corrections] Act.” United States v. Countryman, 758 F.2d 574, 579 n.2 (11th Cir. 1985).
        4
          What Kelley actually says is the agreement involved the state prosecutors, the federal prosecutors,
and Kelley. He claims that in exchange for his promises, the parties agreed to have his state and federal
convictions expunged. Appellant’s App. p. 84-85. Kelley provides no explanation as to why his state
convictions would be expunged pursuant to the FYCA, a federal law, or why federal prosecutors would be
parties to a plea agreement with the State.
                                                     4
         In 2011, Kelley was indicted in the Western District of Missouri for being a felon

in possession of a firearm. Because he had four earlier violent felonies, one of which

included the 1975 robbery conviction and three others subsequent to the robbery, the

United States filed an enhancement under the Armed Career Criminal Act, which carries a

mandatory minimum sentence of fifteen years. See 18 U.S.C. § 924(e) (2013). He alleges

that this is when he learned for the first time that his 1975 robbery conviction had not been

expunged. Kelley’s court-appointed attorney informed him that she would not be able to

assist him with any legal action in Indiana.

         Kelley then filed a pro se motion to withdraw his guilty plea, claiming that the State

had breached the terms of his robbery plea agreement in 1975. In January 2012, the trial

court denied his motion to withdraw his guilty plea and explained that he must file a petition

for post-conviction relief in order to attack his 1975 robbery conviction. Appellant’s App.

p. 13.

         In February 2012, he filed a pro se petition for post-conviction relief, which he

amended in June 2012. In his petition for post-conviction relief, Kelley alleged that his

plea agreement provided that if he gave testimony in a grand-jury investigation,

successfully completed an executed term of imprisonment and a term of probation, and

earned a certificate of discharge pursuant to the provisions of the FYCA, that his “state and

federal convictions would be expunged and vacated and his full civil rights would be

restored without any disabilities.” Id. at 85. Kelley submitted no plea agreement to

substantiate his claim to the post-conviction court.




                                               5
        In his petition for post-conviction relief, he also stated that he was indigent and

requested representation by a public defender. Id. at 20. However, because his case had

no direct present penal consequences, the State Public Defender’s Office refused to

represent him. Id. at 23-24.

        Kelley then filed several discovery requests with various individuals in order to

locate the plea agreement and any information that would help in reconstructing the record.

Id. at 26-32, 42-47, 66-70, 75-79, 101-02, 152-56.

        The State filed its response to Kelley’s petition for post-conviction relief in April

2012. In its answer, the State pled the affirmative defense of laches. Kelley claims he did

not receive the State’s response because it was sent to the wrong address.5 Appellant’s Br.

p. 10. The trial court decided not to have a hearing because Kelley was incarcerated outside

of Indiana. Instead, the trial court ordered Kelley to submit affidavits and other evidence

on or before July 2, 2012, and for the State to file any evidence or objections to Kelley’s

evidence on or before July 30, 2012. Appellant’s App. p. 57. The trial court was unable

to obtain a copy of the guilty-plea and sentencing hearing because the stenographic notes

from the case had been lost or destroyed, but the court did have a copy of the court minutes

showing the 1975 robbery conviction. Id. at 58.

        On July 31, 2012, one day after the time had expired for the State to file its evidence,

the State filed a motion requesting a three-day extension of time to file its evidence because

one of the required witnesses had been out of the office and unavailable to sign an affidavit.



        5
         Although Kelley claims the State’s answer was sent to the wrong address, it includes a certificate
of service, which correctly lists Kelley’s address in the Greene County Jail in Springfield, MO. See
Appellant’s App. p. 40.
                                                    6
Id. at 106. The next day, the trial court denied the State’s motion as moot because the State

submitted its evidence on August 1.6

        In addition to the State’s submitted evidence, the State also requested the post-

conviction court to take judicial notice of the official file of the clerk, the PSI report from

Kelley’s 1982 murder conviction, and the FYCA. Id. at 112.

        The post-conviction court found that laches barred Kelley from obtaining post-

conviction relief. In denying the petition, the post-conviction court found Kelley was

aware as early as 1982 that his robbery conviction had not been vacated and that he

unreasonably delayed in filing a collateral challenge to his conviction. Id. at 268-69.

Kelley then filed a writ of mandamus to disqualify the post-conviction trial judge and

appoint a special judge, which was subsequently denied. Id. at 282. Kelley also filed a

motion to correct error claiming that the State withheld evidence, he was denied an

evidentiary hearing, he never received a copy of the State’s answer, and he never received

a blank post-conviction petition form, which was also denied. Id. at 296.

        Kelley now appeals.

                                       Discussion and Decision

         Kelley argues that the post-conviction court improperly denied him relief. In a

post-conviction proceeding, the petitioner bears the burden of establishing grounds for

relief by a preponderance of the evidence. Ind. Post-Conviction Rule 1(5); Passwater v.

State, 989 N.E.2d 766, 770 (Ind. 2013). Because the State had the burden of proving laches


        6
          Although the court order stated that the motion to extend was “denied as moot,” the trial court
implicitly granted the State’s motion by allowing it to file the evidence two days late. See Appellant’s App.
p. 108. Kelley has filed a Motion to Strike State’s Improper Evidence with this Court. We deny this motion
in a separate order issued today.
                                                     7
as an affirmative defense, Kelley is not appealing from a negative judgment. Armstrong v.

State, 747 N.E.2d 1119 (Ind. 2001). The applicable standard of review requires us to affirm

the judgment of the post-conviction court unless we find that the judgment was clearly

erroneous. Ind. Trial Rule 52(A); Armstrong, 747 N.E.2d at 1119. In this case, the post-

conviction court entered findings of fact and conclusions of law in accordance with Indiana

Post-Conviction Rule 1(6). An appellate court may reverse the post-conviction court’s

findings and judgments “only upon a showing of clear error—that which leaves us with a

definite and firm conviction that a mistake has been made.” Fisher v. State, 810 N.E.2d

674, 679 (Ind. 2004). The post-conviction court is the sole judge of the weight of the

evidence and the credibility of witnesses. Id. Findings of facts are accepted unless clearly

erroneous, but no deference is accorded to conclusions of law. Id.

       Kelley claims that the post-conviction court erred in denying relief on the basis of

laches, he was denied a right to counsel for his post-conviction hearing, and the post-

conviction court improperly declined to hold an evidentiary hearing.7

                                              I. Laches

       Kelley asserts that the post-conviction court erred in denying relief on the basis of

laches because he waited approximately thirty-seven years after his conviction to file his

petition for post-conviction relief. Laches is neglect for an unreasonable or unexplained

length of time, under circumstances permitting diligence, to do what in law should have

been done. Sanders v. State, 733 N.E.2d 928, 930 (Ind. 2000). The affirmative defense of



       7
          Kelley also claims that the State breached the robbery plea agreement, he received ineffective
assistance of counsel, and his plea was not knowing and intelligent. We do not discuss these arguments
because we find the issue of laches dispositive.
                                                   8
laches has two elements. The State must prove by a preponderance of the evidence that

the petitioner unreasonably delayed in seeking relief and the State has been prejudiced by

the delay. Lacy v. State, 491 N.E.2d 520, 521 (Ind. 1986).

       For Kelley to have unreasonably delayed in filing his post-conviction relief petition,

he must have known of a defect in his conviction. Kirby v. State, 822 N.E.2d 1097, 1100

(Ind. Ct. App. 2005) (“A finding of knowledge and acquiescence is therefore implicit in a

finding of unreasonable delay.”), trans. denied. Moreover, it is well-established that

“[r]epeated contacts with the criminal justice system, consultation with attorneys and

incarceration in a penal institution with legal facilities are all facts from which the fact

finder may infer knowledge.” Perry v. State, 512 N.E.2d 841, 845 (Ind. 1987), reh’g

denied. While inquiry notice is insufficient to support a finding of unreasonable delay,

facts from which a reasonable finder of fact could infer petitioner’s knowledge may support

a finding of laches. Id. at 844.

       As to the State being prejudiced by the delay, prejudice exists when the

unreasonable delay operates to materially diminish a reasonable likelihood of successful

re-prosecution. Armstrong, 747 N.E.2d at 1120. Our Court has stated that, “[t]he inability

to reconstruct a case against a petitioner is demonstrated by unavailable evidence such as

destroyed records, deceased witnesses, or witnesses who have no independent recollection

of the event.” Taylor v. State, 492 N.E.2d 1091, 1093 (Ind. Ct. App. 1986). However, in

investigating whether evidence is unavailable, the State is obligated to use due diligence.

McCollum v. State, 671 N.E.2d 168, 172 (Ind. Ct. App. 1996), clarified on reh’g, 676

N.E.2d 356 (Ind. Ct. App. 1997), trans. denied.


                                             9
       Whether Kelley has untimely delayed depends on when Kelley learned that his 1975

Class B felony robbery conviction had not been expunged. Kelley claims that he did not

learn of its existence until December 2011 when he met with a lawyer in an unrelated

criminal matter. However, in December 1982, Kelley was convicted of murder and the

court ordered a PSI report. The State claims that because the conviction in the 1975

robbery case was listed on the PSI report, Kelley should have been aware of the fact that

his conviction had not been expunged.

       The post-conviction court, as requested by the State, appropriately took judicial

notice of the PSI report ordered in Kelley’s 1982 murder case. See Mitchell v. State, 946

N.E.2d 640, 644 (Ind. Ct. App. 2011) (allowing a court to take judicial notice of court

records of this State), trans. denied. That report clearly states that Kelley had a past

conviction for robbery in 1975 which had not been set aside even though the PSI notes that

Kelley’s federal conviction for distribution of heroin was set aside on May 6, 1981.

Appellant’s App. p. 122-23. Thus, Kelley was on notice at the time of the PSI report that

his previous conviction had not been vacated and was still on his record. Despite this, he

waited almost thirty years after learning this to file a petition for post-conviction relief.

While the State must present some objective facts from which the court may draw a

reasonable inference of knowledge, “the court is not required to accept a petitioner’s

assertion of ignorance.” Perry, 512 N.E.2d at 845.

       Additionally, Kelley had repeated contacts with the criminal-justice system. Kelley

was convicted of another Class B felony robbery in 1983. Appellant’s App. p. 147. The




                                             10
minutes of the court state that Kelley’s sentence in 1983 was made on the basis of his

extensive criminal history.

       In January 2003, approximately eight years before he filed his petition for post-

conviction relief, Kelley was convicted of Class D felony check fraud. Id. at 184. He was

also convicted of Class D felony theft in November 2005, approximately six years before

he filed his petition for post-conviction relief. We may infer that Kelley knew that his

conviction had not been expunged based on his repeated contacts with the criminal-justice

system, consultation with attorneys, and his incarceration in a penal institution with legal

facilities. See Perry, 512 N.E.2d at 845.

       There is also some independent evidence presented by the State, which suggests that

the plea agreement as explained by Kelley did not exist. The PSI report from Kelley’s

1982 murder conviction lists the 1975 robbery conviction. Appellant’s App. p. 123. On

the previous page, the PSI notes Kelley’s federal conviction for distribution of heroin and

states that, “[o]n 5-6-81 he was discharged and the conviction was set aside.” Id. at 122.

The State convincingly argues that had the 1975 robbery conviction been set aside, a

similar notation would have been made.

       In addition to unreasonable delay, the State must also prove that it was prejudiced

by the delay. In this case, the State has successfully shown that it would be nearly

impossible to re-prosecute Kelley. The affidavit of Deborah Thill, the file clerk of the Lake

County Prosecutor’s Office, stated that the file in Kelley’s case had been destroyed. Id. at

132. Wallace Adams, an investigator for the Lake County Prosecutor’s Office, was unable

to find Kingsley, the complaining witness, and believes that she is deceased. Id. at 131. If


                                             11
she were alive, she would be approximately ninety-four years old. Id. Rosinski, the filing

detective, is no longer employed with the Hammond Police Department and could not be

found. Id. Jones, one of the responding officers, is dead and the other, Koch, is currently

retired, living in Kissimmee, Florida. Id. Both the prosecutor and the defense attorney in

this case are also deceased. Id. at 36, 64.

       For all practical purposes, re-prosecution would be impossible. No participants of

the trial are still alive, the trial transcript is missing, the prosecutor’s office files have been

destroyed, and only one responding officer is still living. For this reason, the trial court did

not err in denying Kelley’s petition for post-conviction relief on the basis of laches.

                                 II. Appointment of Counsel

       Next, Kelley argues that his right to counsel was violated by the State Public

Defender’s Office’s refusal to represent him for his post-conviction relief petition.

However,

       [t]he right to counsel in post-conviction proceedings is guaranteed by neither
       the Sixth Amendment of the United States Constitution nor art. 1, § 13 of the
       Constitution of Indiana. A petition for post-conviction relief is not generally
       regarded as a criminal proceeding and does not call for a public trial within
       the meaning of these constitutional provisions.

Baum v. State, 533 N.E.2d 1200, 1201 (Ind. 1989). Moreover, the Post-Conviction Relief

rules are instructive. Post-Conviction Rule 1(9)(a) states that, “[t]he Public Defender may

refuse representation in any case where the conviction or sentence being challenged has no

present penal consequences.” Ind. Post-Conviction Rule 1(9)(a).

       In this case, the State Public Defender’s Office chose to deny Kelley’s request for

representation because his case had no direct present penal consequences. Appellant’s


                                                12
App. p. 23-24. This was permissible according to the Indiana Post-Conviction Rules.

Kelley’s right to counsel under the Sixth Amendment was not violated.8

                                 III. Evidentiary Hearing

        Last, Kelley asserts that the post-conviction court erred by not holding an

evidentiary hearing. The Indiana Post-Conviction Rules are again instructive. Post-

Conviction Rule 1(5) states that, “[t]he court may receive affidavits, depositions, oral

testimony, or other evidence and may at its discretion order the applicant brought before it

for the hearing.” Ind. Post-Conviction Rule 1(5). The rules also state that “[i]n the event

petitioner elects to proceed pro se, the court at its discretion may order the cause submitted

upon affidavit.” Id. 1(9)(b).

        The post-conviction court exercised its discretion in not holding an evidentiary

hearing. The court issued a Nunc Pro Tunc order in May 2012, denying an evidentiary

hearing because, “the defendant is in custody outside the State of Indiana . . . .” Appellant’s

App. p. 57. The post-conviction court again denied an evidentiary hearing in August 2012

after Kelley filed a motion for reconsideration.

        Moreover, it is not clear how helpful an evidentiary hearing would be in this case.

The trial judge, prosecutor, and defense attorney involved are all deceased. No one, other

than Kelley, remains alive to testify to what actually occurred at trial.9 An evidentiary


        8
          Kelley argues that the post-conviction court erred because it allowed the public defender to
withdraw from his case. Appellant’s Br. p. 46. The public defender did not withdraw, but in actuality never
represented him during these post-conviction proceedings.
        9
           In a motion to remand filed with this Court, Kelley claims that he could have cross-examined
William Wilkerson, the probation officer who prepared his 1982 PSI report. We deny this motion in a
separate order issued today. Even if Wilkerson were to remember the conversation from over thirty years
ago, his testimony about what Kelley told him about his robbery plea agreement would not prove that the
plea agreement existed or persuade us that his claim is not barred by laches.
                                                    13
hearing in this case would not help the post-conviction court any more than the affidavits

submitted. For this reason, the post-conviction court did not err in declining to hold an

evidentiary hearing. We therefore affirm the judgment of the post-conviction court.

      Affirmed.

BAKER, J., and FRIEDLANDER, J., concur.




                                           14
