Pursuant to Ind. Appellate Rule 65(D),

                                                                FILED
this Memorandum Decision shall not be
regarded as precedent or cited before
any court except for the purpose of                           Apr 10 2012, 8:18 am
establishing the defense of res judicata,
collateral estoppel, or the law of the
                                                                     CLERK
case.                                                              of the supreme court,
                                                                   court of appeals and
                                                                          tax court




APPELLANT PRO SE:                                ATTORNEYS FOR APPELLEE:

TROY PHILLIPS, JR.                               GREGORY F. ZOELLER
Pendleton, Indiana                               Attorney General of Indiana

                                                 NICOLE M. SCHUSTER
                                                 Deputy Attorney General
                                                 Indianapolis, Indiana


                               IN THE
                    COURT OF APPEALS OF INDIANA

TROY PHILLIPS, JR.,                              )
                                                 )
       Appellant,                                )
                                                 )
              vs.                                )      No. 49A02-1110-PC-989
                                                 )
STATE OF INDIANA,                                )
                                                 )
       Appellee.                                 )


                    APPEAL FROM THE MARION SUPERIOR COURT
                          The Honorable James B. Osborn, Judge
                    The Honorable John Jay Boyce, Master Commissioner
                            Cause No. 49F15-9205-PC-68600


                                       April 10, 2012

               MEMORANDUM DECISION - NOT FOR PUBLICATION

DARDEN, Judge
                                     STATEMENT OF THE CASE

          Troy Phillips, pro se, appeals from the post-conviction court’s order denying his

petition for post-conviction relief.

          We affirm.

                                                   ISSUE

          Whether the post-conviction court erred by denying Phillips’s petition for
          post-conviction relief.

                                                  FACTS

          On August 24, 1992, Phillips, pursuant to a written plea agreement, pled guilty to

class D felony theft.1 The entry in the chronological case summary (“CCS”) for that day

indicates the following:

          Written plea agree[ment] filed[.]
          Written waiver of rights filed[.]
          Ct. orally examines Def: finds Def. understands charges, rights waived and
          impact of plea. Factual basis found, court confirms Def’s willingness to
          plead guilty, accepts plea and enters judgment of conviction for count[] 1.

(App. 6). That same day, the trial court sentenced Phillips to eighteen months with six

months suspended to probation. The trial court ordered that Phillips’s sentence and

probation be served consecutively to a sentence that he was serving on a burglary

conviction.

          Twelve years later, in May 2004, Phillips filed a pro se petition for post-conviction

relief. A Deputy State Public Defender later entered an appearance on behalf of Phillips.

In June 2006, in response to a motion for transcripts, the trial court reporter filed a Notice


1
    Phillips has not included a copy of the plea agreement in his Appellant’s Appendix.
                                                      2
of Inability to Prepare Transcript, indicating that she had “made a diligent search for this

record” but “was not successful in locating the proceedings in this cause.” (Phillips’s

Exhibit 1). In October 2006, Phillips filed a motion to withdraw his post-conviction

petition without prejudice, which the trial court granted.

          In May 2008, Phillips filed a motion for permission to file a belated notice of

appeal. The trial court denied the motion, and Phillips did not appeal the trial court’s

ruling.

          In October 2009, seventeen years after his guilty plea and sentence, Phillips filed

another pro se petition for post-conviction relief, alleging that there was no transcript to

show that the trial court had informed him of his Boykin rights during his 1992 guilty plea

hearing.2 The State filed an answer and asserted that consideration of Phillips’s claim

was barred by the affirmative defense of laches.3

          Two days before the August 25, 2010 post-conviction hearing, Phillips filed a

request to issue subpoenas.             During the hearing, the post-conviction court informed

Phillips that two days was not sufficient time to rule on his request, and Phillips indicated

that he was nevertheless ready to proceed with the post-conviction hearing. Phillips

introduced a copy of the trial court reporter’s Notice of Inability to Prepare Transcript to

show that the recording of his guilty plea hearing was missing and not able to be

reconstructed. During the hearing, Phillips testified that “the Court or I will never know


2
  Phillips did not include a copy of his post-conviction petition in his Appendix. The post-conviction
court clarified Phillips’s post-conviction claim during the post-conviction hearing because Phillips’s
petition did not contain any specific claim.
3
    Phillips also did not include a copy of the State’s answer in his Appendix.
                                                       3
if I was advised of those [Boykin] rights” because the guilty plea “transcripts was [sic]

either lost or destroyed.” (Tr. 14).4 Phillips did not call any witnesses. The State

presented evidence to support its defense of laches, and the post-conviction court took the

matter under advisement.

        On May 9, 2011, the post-conviction issued an order denying Phillips’s petition

for post-conviction relief.5 Relying on our Indiana Supreme Court’s holding in Hall v.

State, 849 N.E.2d 466 (Ind. 2006), that “[a] petitioner cannot obtain post-conviction relief

on the ground of the lack of Boykin advisements simply by proving that the guilty plea

record is lost and cannot be reconstructed[,]” (app. 32), the post-conviction court

determined that Phillips had failed to meet his burden of proving that he was not advised

of his Boykin rights during his guilty plea hearing. Despite addressing the merits of

Phillips’s claim, the post-conviction court also determined that his post-conviction

petition should be denied because the State had proven its affirmative defense of laches.

                                             DECISION

        Phillips appeals from the post-conviction court’s order denying post-conviction

relief, and our standard of review in post-conviction proceedings is well settled.

        We observe that post-conviction proceedings do not grant a petitioner a
        “super-appeal” but are limited to those issues available under the Indiana
        Post-Conviction Rules. Post-conviction proceedings are civil in nature, and
        petitioners bear the burden of proving their grounds for relief by a
        preponderance of the evidence. Ind. Post–Conviction Rule 1(5). A
        petitioner who appeals the denial of PCR faces a rigorous standard of

4
  Phillips testified that he was trying to get his theft conviction vacated because it was used as an
underlying felony in a subsequent habitual offender enhancement.
5
 The record does not reveal why the post-conviction court waited more than nine months to issue its post-
conviction order.
                                                   4
        review, as the reviewing court may consider only the evidence and the
        reasonable inferences supporting the judgment of the post-conviction court.
        The appellate court must accept the post-conviction court’s findings of fact
        and may reverse only if the findings are clearly erroneous. If a PCR
        petitioner was denied relief, he or she must show that the evidence as a
        whole leads unerringly and unmistakably to an opposite conclusion than
        that reached by the post-conviction court.

Shepherd v. State, 924 N.E.2d 1274, 1280 (Ind. Ct. App. 2010) (case citations omitted),

trans. denied.

        Phillips contends that the post-conviction court erred by determining that he failed

to meet his burden of proving that he was not advised of his Boykin rights during his

guilty plea hearing.6

        The record of a guilty plea hearing “must show, or there must be an allegation and

evidence which show, that the defendant was informed of, and waived, three specific

federal constitutional rights: the privilege against compulsory self-incrimination, right to

trial by jury, and the right to confront one’s accusers.” Hall, 849 N.E.2d at 469 (citing

Boykin v. Alabama, 395 U.S. 238 (1969)). The U.S. Supreme Court explained that courts

cannot presume a waiver of these three federal rights from a silent record. Boykin, 395

U.S. at 243.

        Our Indiana Supreme Court, however, has clarified, that a lost or missing record is

not the same as a silent record. Hall, 849 N.E.2d at 469. “The fact that the record of a

guilty plea hearing can neither be found nor reconstructed does not of itself require

6
  Phillips also contends that the post-conviction court erred by determining that the State had proven its
defense of laches. Phillips makes no cogent argument in support of his contention; thus, he has waived
review of this argument. See Smith v. State, 822 N.E.2d 193, 202–03 (Ind. Ct. App. 2005), trans. denied;
see also Ind. Appellate Rule 46(A)(8). Furthermore, because the post-conviction court addressed the
merits of Phillips’s post-conviction claim despite its determination that laches had been proven, we will
do the same.
                                                    5
granting post-conviction relief.” Id. at 470. Instead, a petitioner, as with any other post-

conviction claim, has the burden of proving by a preponderance of the evidence that his

conviction was obtained in violation of state or federal constitutional safeguards. Id. In

other words, a petitioner who challenges his guilty plea as unknowing or involuntary on

the ground that he was not advised of his Boykin rights, must prove by a preponderance

of the evidence that he was not informed of his rights to silence, to trial by jury, and to

confront witnesses in order to establish his entitlement to post-conviction relief. Id.

There is a “presumption of regularity” that attaches to final judgments, even when a post-

conviction petitioner raises a Boykin claim on post-conviction review. State v. Damron,

915 N.E.2d 189, 192 (quoting Parke v. Raley, 506 U.S. 20, 31 (1992)), trans. denied.

Indeed, “[o]n collateral review . . . it defies logic to presume from the mere unavailability

of a transcript (assuming no allegation that the unavailability is due to governmental

misconduct) that [a post-conviction petitioner who pled guilty] was not advised of his

[Boykin] rights.” Hall, 849 N.E.2d at 472 (quoting Parke, 506 U.S. at 30).

         Phillips contends that the post-conviction court should have granted him post-

conviction relief because the trial court did not comply with Indiana Criminal Procedure

Rule 10, which requires a trial court to maintain an electronic recording of the guilty plea

proceedings for fifty-five years in felony cases. The State argues that Phillips “has not

overcome the presumption of regularity to prove by a preponderance of the evidence that

he was not informed of his Boykin rights.” Appellee’s Br. at 12. We agree with the

State.



                                             6
       First, we have previously held that a trial court’s contravention of Criminal Rule

10 does not equate to governmental misconduct that would overcome the presumption of

regularity or render the record silent for the purposes of proving a Boykin claim in a post-

conviction proceeding. See Damron, 915 N.E.2d at 192-93 (holding that a trial court’s

policy of destroying a guilty plea hearing tape after ten years did not relieve the petitioner

of the burden of proving by a preponderance of the evidence that he was not advised of

his Boykin rights).    Furthermore, the record from Phillips’s post-conviction hearing

reveals that the trial court reporter could not locate the guilty plea hearing fourteen years

later, and there was no evidence that this missing record was the result of misconduct by

the State. Indeed, Phillips had the burden of proving by a preponderance of the evidence

that he was not informed of his Boykin rights. Phillips, however, did not call any

witnesses but testified that because there was no transcript to show that he was advised of

his Boykin rights, “the Court or I will never know if I was advised of those rights.” (Tr.

14). Other than Phillips’s own self-serving testimony, he did not present any evidence to

show that he was not advised of his Boykin rights before pleading guilty. Accordingly,

we affirm the post-conviction court’s denial of post-conviction relief to Phillips. See e.g.,

Hall, 849 N.E.2d at 473 (holding that a “petitioner cannot obtain post-conviction relief on

the ground of the lack of Boykin advisements simply by proving that the guilty plea

record is lost and cannot be reconstructed”); Damron, 915 N.E.2d at 192-93 (holding that

the premature destruction of the tape of the petitioner’s guilty plea hearing did not render

the record silent for purposes of Boykin and that the petitioner had failed to meet his

burden of proving that he was not informed of his Boykin rights); Jackson v. State, 826

                                              7
N.E.2d 120, 129 (Ind. Ct. App. 2005) (holding that the validity of a post-conviction

petitioner’s guilty plea was presumed and that the loss of the record of the guilty plea

hearing and the loss of memory regarding what was said at the guilty plea hearing was

not sufficient to overcome this presumption), trans. denied.

      Affirmed.

BAKER, J., and BAILEY, J., concur.




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