                                                                                 FILED
                                                                            Nov 09 2017, 7:37 am

                                                                                 CLERK
                                                                             Indiana Supreme Court
                                                                                Court of Appeals
                                                                                  and Tax Court




      APPELLANT PRO SE                                          ATTORNEYS FOR APPELLEE
      Charles A. Edmonson                                       Curtis T. Hill, Jr.
      Greencastle, Indiana                                      Attorney General of Indiana

                                                                Eric P. Babbs
                                                                Deputy Attorney General
                                                                Indianapolis, Indiana



                                                 IN THE
          COURT OF APPEALS OF INDIANA

      Charles A. Edmonson,                                      November 9, 2017
      Appellant-Defendant,                                      Court of Appeals Case No.
                                                                84A01-1609-PC-2150
              v.                                                Appeal from the
                                                                Vigo Superior Court
      State of Indiana,                                         The Honorable Michael J. Lewis,
      Appellee-Plaintiff                                        Judge
                                                                Trial Court Cause No.
                                                                84D06-1603-PC-1612



      May, Judge.


[1]   Charles A. Edmonson, pro se, appeals the post-conviction court’s denial of his

      petition for post-conviction relief. He argues the post-conviction court erred in

      concluding his petition was barred by the doctrine of laches. We agree the

      court’s finding of laches was clearly erroneous because the State did not


      Court of Appeals of Indiana | Opinion 84A01-1609-PC-2150 | November 9, 2017                    Page 1 of 10
      demonstrate it was prejudiced. Nevertheless, we affirm the court’s denial of

      Edmonson’s petition because, as the post-conviction court also found, Indiana

      law did not require Edmonson be advised of all possible collateral consequences

      of his guilty plea for that plea to have been entered voluntarily.



                                Facts and Procedural History
[2]   In August 1993, pursuant to a plea agreement, Edmonson pled guilty to Class B

      misdemeanor public intoxication 1 and Class B misdemeanor criminal mischief 2

      (“misdemeanor convictions”). The court accepted Edmonson’s guilty plea and

      sentenced Edmonson to serve 180 days on each count, concurrently, in the

      Indiana Department of Correction. The court gave Edmonson credit for two

      days he had already served, suspended the sentence, and placed Edmonson on

      one year of probation.


[3]   While on probation, Edmonson committed murder. The trial court convicted

      him and sentenced him to sixty years in prison. See Edmonson v. State, 667

      N.E.2d 181 (Ind. 1996) (affirming Edmonson’s sentence), reh’g denied. In

      sentencing Edmonson, the trial court found as an aggravator “Edmonson’s

      prior convictions for offenses related to alcohol.” Id. at 182.




      1
          Ind. Code § 7.1-5-1-3 (1978).
      2
          Ind. Code § 35-43-1-2 (1991).


      Court of Appeals of Indiana | Opinion 84A01-1609-PC-2150 | November 9, 2017   Page 2 of 10
[4]   On March 8, 2016, while still serving his sentence for murder, Edmonson filed

      a petition for post-conviction relief from his misdemeanor convictions. In

      support of his petition, he claimed he was denied the right to competent counsel

      under Article 1, Section 13 of the Indiana Constitution and under the Due

      Process Clause of the United States Constitution, and that his “uninformed,

      coerced, and involuntary” guilty plea violated the State and Federal

      Constitutions. (App. Vol. 2 at 8.) Specifically, Edmonson argued both his

      counsel and the trial court “failed to advise him of the future consequences” of

      his guilty plea—i.e., that his misdemeanor convictions “would be used as an

      aggravator in a future sentence.” (Id.)


[5]   The post-conviction court held a hearing on Edmonson’s petition on August 18,

      2016. The State raised the affirmative defense of laches and argued

      Edmonson’s petition also fails on the merits. The court summarily denied

      Edmonson’s petition for post-conviction relief after announcing at the hearing

      both that the State had demonstrated Edmonson’s petition was barred by the

      doctrine of laches and that Indiana law did not entitle Edmonson to an

      advisement of possible future collateral consequences of his guilty plea.



                                 Discussion and Decision
[6]   “The petitioner in a post-conviction proceeding bears the burden of establishing

      grounds for relief by a preponderance of the evidence.” Humphrey v. State, 73

      N.E.3d 677, 681 (Ind. 2017). “When appealing the denial of post-conviction

      relief, the petitioner stands in the position of one appealing from a negative

      Court of Appeals of Indiana | Opinion 84A01-1609-PC-2150 | November 9, 2017   Page 3 of 10
      judgment.” Id. To prevail on appeal from the denial of post-conviction relief,

      the petitioner must show the evidence leads “unerringly and unmistakably to a

      conclusion opposite that reached by the post-conviction court.” Id. We do not

      defer to the post-conviction court’s legal conclusions, but “a post-conviction

      court’s findings and judgment will be reversed only upon a showing of clear

      error—that which leaves us with a definite and firm conviction that a mistake

      has been made.” Id. at 682.


                                                    Laches
[7]   The equitable doctrine of laches “operates to bar consideration of the merits of

      a claim or right of one who has neglected for an unreasonable time, under

      circumstances permitting due diligence, to do what in law should have been

      done.” Kirby v. State, 822 N.E.2d 1097, 1100 (Ind. Ct. App. 2005), trans. denied.

      The State is required to prove the defense of laches by a preponderance of the

      evidence. McCollum v. State, 671 N.E.2d 168, 170 (Ind. Ct. App. 1996), affirmed

      on reh’g, 676 N.E.2d 356 (Ind. Ct. App. 1997), trans. denied. To prove laches,

      the State must show both (1) the petitioner unreasonably delayed in seeking

      relief, and (2) the State has been prejudiced by the delay. Id.


                                           1) Unreasonable Delay

              A petitioner can seldom be found to have unreasonably delayed
              unless he has knowledge of a defect in his conviction. Facts from
              which a reasonable finder of fact could infer petitioner’s
              knowledge may support a finding of laches. Repeated contacts
              with the criminal justice system, consultation with attorneys and



      Court of Appeals of Indiana | Opinion 84A01-1609-PC-2150 | November 9, 2017   Page 4 of 10
              incarceration in a penal institution with legal facilities are all facts
              from which the fact finder may infer knowledge.


      Id. at 170-71 (internal citations omitted).


[8]   Edmonson’s misdemeanor convictions occurred in 1993. He was subsequently

      convicted of murder, and that conviction was affirmed by our Indiana Supreme

      Court in 1996. When sentencing Edmonson for murder, the trial court cited

      Edmonson’s misdemeanor convictions as an aggravator, and our Indiana

      Supreme Court concluded, on direct appeal, that the trial court properly did so.

      See Edmonson, 667 N.E.2d at 182 (concluding the trial court properly considered

      Edmonson’s misdemeanor convictions as an aggravator). Thus, at a minimum,

      Edmonson had knowledge of the alleged defect in his misdemeanor guilty pleas

      when the Indiana Supreme Court issued its decision.


[9]   Additionally, as the State correctly points out, Edmonson has spent the past

      twenty-three years in prison and a reasonable finder of fact could infer he had

      access to a law library. Indeed, Edmonson used his knowledge and resources to

      petition for post-conviction relief of his murder conviction in 2001. 3 He thus

      cannot claim he lacked the knowledge or resources to pursue an earlier petition

      for post-conviction relief from the misdemeanor convictions.




      3
        We take judicial notice under Indiana Rule of Evidence 201(a) that Edmonson petitioned for post-
      conviction relief from his murder conviction in Cause No. 28A04-0107-PC-00313. We affirmed the post-
      conviction court’s denial of Edmonson’s petition in Edmonson v. State, 763 N.E.2d 499 (Ind. Ct. App. 2002),
      trans. denied.

      Court of Appeals of Indiana | Opinion 84A01-1609-PC-2150 | November 9, 2017                     Page 5 of 10
[10]   Because Edmonson waited twenty-three years after his misdemeanor

       convictions to file his petition, had knowledge of any alleged defect in his

       misdemeanor convictions, and had the means to pursue a petition during that

       time, his delay was unreasonable. See McCollum, 671 N.E.2d at 171 (where

       petitioner had access to law library and appellate counsel, petitioner’s twelve-

       year delay was unreasonable); Kirby, 822 N.E.2d at 1101 (“From his repeated

       contacts with the criminal justice system, the trial court could have reasonably

       inferred that Kirby enjoyed access to the law library and, thus, could have

       learned about post-conviction remedies.”). We turn next to whether the State

       was prejudiced by this delay.


                                                   2) Prejudice

[11]   “To prove prejudice, the State must establish a reasonable likelihood that a

       successful reprosecution has been materially diminished by the petitioner’s

       delay.” Lile v. State, 671 N.E.2d 1190, 1195 (Ind. Ct. App. 1996). “The amount

       of prejudice is directly correlated to the length of the delay.” Id. at 1196.

       “Prejudice may result in litigation by the mere passage of time because

       witnesses are dispersed, memories fade, and records are lost.” Id. Edmonson

       argues “the [S]tate or the [post-conviction] court offered no evidence of

       prejudice such as the unavailability of its witnesses or any other reason why it

       would be impossible or difficult to present a case against Edmonson.”

       (Appellant’s Br. at 8.) We agree.


[12]   At the outset of the post-conviction hearing, the prosecutor asserted

       Edmonson’s delay “prevents the [S]tate from possibly bringing forth witnesses
       Court of Appeals of Indiana | Opinion 84A01-1609-PC-2150 | November 9, 2017   Page 6 of 10
       and stuff [due] to the uh, [due] to them not being available.” (Tr. at 4.)

       However, the State presented no evidence to support this argument, and the

       trial court summarily denied Edmonson’s petition. On appeal, the State claims

       merely “[i]t would be odd to say that the State would not have a materially

       more difficult time reconstructing the facts of Edmonson’s 1993 case now as

       compared to if he had filed his PCR petition in 1996.” (Appellee’s Br. at 14-

       15.)


[13]   While we can speculate that prejudice may exist given merely the length of time

       Edmonson delayed, the State has failed to provide any evidence from which an

       inference may be drawn. Given the complete lack of evidence provided by the

       State, the State has failed to meet its burden to show prejudice exists. See Lacy

       v. State, 491 N.E.2d 520, 521-22 (Ind. 1986) (where State failed to present any

       evidence regarding availability or recollection of witnesses, and there was no

       showing of reasonable diligence in attempting to locate witnesses, State failed to

       prove prejudice existed). Because the post-conviction court did not hear any

       evidence that could support determining laches barred Edmonson’s petition, we

       are left with “a definite and firm conviction that a mistake has been made.”

       Humphrey, 73 N.E.3d at 682. Thus, we move to the merits of Edmonson’s post-

       conviction petition.


                            Collateral-Consequences Advisement
[14]   At the hearing, the post-conviction court also found that Edmonson had not

       been entitled, before he pled guilty in 1993, to an advisement that those

       misdemeanor convictions “could, ultimately be held against you as an
       Court of Appeals of Indiana | Opinion 84A01-1609-PC-2150 | November 9, 2017   Page 7 of 10
       aggravator in a murder case. No one knows that you’re gonna [sic] be

       committing any future acts in this case.” (Tr. at 5.) Edmonson then addressed

       the prejudice prong of laches and began to argue he should have been advised

       of future consequences of his plea, and the court said: “He should have advised

       you of your future consequences? That’s not one of the advisors, advisements

       of rights.” (Id. at 6.)


[15]   The advisements a defendant must receive before pleading guilty have been set

       out by our legislature:


               The court shall not accept a plea of guilty . . . without first
               determining that the defendant:


               (1) understands the nature of the charge against him;


               (2) has been informed that by his plea he waives his rights to:


                        (A) a public and speedy trial by jury;


                        (B) confront and cross-examine the witnesses against him;


                        (C) have compulsory process for obtaining witnesses in his
                        favor; and


                        (D) require the state to prove his guilt beyond a reasonable
                        doubt at a trial at which the defendant may not be
                        compelled to testify against himself;


               (3) has been informed of the maximum possible sentence and
               minimum sentence for the crime charged and any possible

       Court of Appeals of Indiana | Opinion 84A01-1609-PC-2150 | November 9, 2017   Page 8 of 10
               increased sentence by reason of the fact of prior conviction or
               convictions, and any possibility of the imposition of consecutive
               sentences; and


               (4) has been informed that if:


                        (A) there is a plea agreement as defined by IC 35-35-3-1;
                        and


                        (B) the court accepts the plea;


               the court is bound by the terms of the plea agreement.


       Ind. Code § 35-35-1-2(a) (1986 Main Volume).


[16]   Contrary to Edmonson’s claim, the sentencing court was not required to advise

       him that the possibility existed that his conviction could be considered in a

       subsequent case and impact his sentence in that later case. As we explained

       thirty-five years ago, “Indiana law does not require that the court inform a

       defendant of possible collateral consequences, such as the potential of a

       subsequent conviction as a habitual offender, before accepting a guilty plea.”

       Owens v. State, 437 N.E.2d 501, 504 (Ind. Ct. App. 1982); see also Williams v.

       State, 641 N.E.2d 44, 46 (Ind. Ct. App. 1994) (observing that a person who

       pleads guilty need not be advised by the court that the conviction might have

       adverse future collateral consequences), trans. denied. Edmonson is not entitled

       to the relief he requested in his petition, and the post-conviction court therefore

       did not err when it denied his petition. See Owens, 437 N.E.2d at 504 (denying



       Court of Appeals of Indiana | Opinion 84A01-1609-PC-2150 | November 9, 2017   Page 9 of 10
       petition for post-conviction relief because defendant had not been entitled to

       advisement of future collateral consequences before pleading guilty).



                                                Conclusion
[17]   Because the State failed to meet its burden of demonstrating it would be

       prejudiced by Edmonson’s delay, we find clear error in the post-conviction

       court’s conclusion Edmonson’s petition was barred by the doctrine of laches.

       Nevertheless, the court correctly found Edmonson was not entitled to relief

       because the trial court that accepted Edmonson’s guilty plea had not been

       required to advise Edmonson about collateral consequences of that guilty plea.

       Accordingly, we affirm.


[18]   Affirmed.


       Brown, J., and Pyle, J., concur.




       Court of Appeals of Indiana | Opinion 84A01-1609-PC-2150 | November 9, 2017   Page 10 of 10
