                                                                             May 08 2015, 9:35 am




      APPELLANT PRO SE                                          ATTORNEYS FOR APPELLEE
      Jay R. Thompson                                           Gregory F. Zoeller
      Carlisle, Indiana                                         Attorney General of Indiana
                                                                Justin F. Roebel
                                                                Deputy Attorney General
                                                                Indianapolis, Indiana



                                                 IN THE
          COURT OF APPEALS OF INDIANA

      Jay R. Thompson,                                          May 8, 2015

      Appellant-Petitioner,                                     Court of Appeals Case No.
                                                                31A01-1408-PC-350
              v.                                                Appeal from the Harrison Circuit
                                                                Court
                                                                The Honorable Glenn Hancock,
      State of Indiana,                                         Special Judge
      Appellee-Respondent,                                      Case No. 81-S-62




      Bradford, Judge.



                                           Case Summary
[1]   Appellant-Petitioner Jay Thompson was convicted of two counts of murder and

      conspiracy to commit burglary and sentenced to an aggregate 120-year term.

      On appeal, the Indiana Supreme Court affirmed the sentence in 1990.

      Thompson filed a petition for post-conviction relief (“PCR”) in 1992.

      Court of Appeals of Indiana | Opinion 31A01-1408-PC-350 |May 8, 2015                          Page 1 of 10
      Thompson filed several amendments to his petition in the subsequent twenty

      years but neglected to prosecute the petition until 2014. Appellee-Respondent

      the State of Indiana (“the State”) filed a motion to dismiss pursuant to the

      doctrine of laches and the PCR court granted the motion. On appeal,

      Thompson argues that laches can only be used as a defense to a PCR petition

      based on delay in filing of the petition and may not be based on delay in

      prosecuting the petition. We disagree and affirm the decision of the PCR court.



                            Facts and Procedural History
[2]   The facts surrounding Thompson’s underlying offenses and trial were provided

      by the Indiana Supreme Court in Thompson’s direct appeal.

              The testimony and evidence at trial showed that Richard Dillon and
              Defendant Jay R. Thompson planned to burglarize the home of
              William and Mary Hilborn in Petersburg, Pike County, Indiana, about
              three days prior to March 8, 1982. On Sunday, March 8, 1982, Dillon
              and Thompson drove to Petersburg, observed the area of the Hilborn
              home and passed the church the Hilborns attended. Apparently
              presuming that the Hilborns were still in church, they parked
              Thompson’s green Pinto automobile some blocks from the Hilborn
              residence and proceeded there on foot. When they arrived, they found
              the Hilborns at home so they obtained entry by pretending to be
              looking for one Eddie Beadles. After being admitted to use the phone,
              they accosted the Hilborns to obtain money that was known to be kept
              by Hilborns in their home. Dillon possessed a “buck” knife and
              Thompson a folding pocket knife. During the confrontation and scuffle
              Dillon stabbed each of the Hilborns with his “buck” knife, injuring
              them. After stabbing Mr. Hilborn, both Dillon and Thompson forced
              Mary Hilborn, by holding a knife under her chin, to obtain money for
              them. Dillon then cut the telephone line and stabbed Mrs. Hilborn.
              After she fell to the floor, Dillon cut her throat with the “buck” knife.
              As they were leaving the house, Thompson stopped near the kitchen

      Court of Appeals of Indiana | Opinion 31A01-1408-PC-350 |May 8, 2015           Page 2 of 10
        door and told Dillon they could not leave until they were sure the
        Hilborns were dead. Thompson then stabbed both Hilborns to ensure
        they were dead. According to Dr. Pless, the pathologist, the fatal
        wound to William Hilborn’s chest and heart was not made by the
        “buck” knife but by a knife similar to or the same as the folding knife
        carried by Thompson. The knife’s angle of entry into the chest
        indicated that the assailant was kneeling on the right side of William
        Hilborn and the size of the wound and time inflicted indicated
        defendant Thompson inflicted the wound to the chest and heart of
        William Hilborn with the folding knife. Dr. Pless further testified the
        wound in Mrs. Hilborn’s back indicated she was lying on her side at
        the time of the infliction of the back wound which pierced her aorta.
        The size of the wound in the back indicated the use of a knife smaller
        than the “buck” knife. The blood on her dress around the back of her
        shoulders, the back of her neck and on the carpet immediately adjacent
        to her back and shoulders, indicated she bled from the neck onto the
        carpet while lying face up. The position of her body indicated she was
        rolled to her left prior to being stabbed in her back. Dillon at first
        denied any complicity in these crimes but later testified for the State
        and implicated Thompson in the two murders. Dillon’s testimony was
        corroborated by police investigation which revealed human blood on
        Defendant Thompson’s jeans and human blood similar to the victim’s
        on one of Defendant’s gloves. Thompson was a seventeen (17) year-
        old juvenile when he committed these crimes, but the juvenile court
        waived jurisdiction and he was tried as an adult. The jury found
        Defendant guilty of the murders but did not recommend the death
        penalty. The trial judge, however, found statutory aggravating
        circumstances to exist and imposed the death penalty on Defendant
        Thompson.
Thompson v. State, 492 N.E.2d 264, 267 (Ind. 1986). The Court affirmed

Thompson’s convictions but vacated the death sentence due to “technical

deficiencies.” Id. at 278. On remand, Thompson was sentenced to consecutive

sixty-year terms for each murder and a concurrent thirty-year sentence for

conspiracy to commit burglary resulting in injury, which was affirmed by the




Court of Appeals of Indiana | Opinion 31A01-1408-PC-350 |May 8, 2015         Page 3 of 10
      Indiana Supreme Court on appeal. Thompson v. State, 552 N.E.2d 472 (Ind.

      1990).


[3]   On August 17, 1992, Thompson filed a PCR petition which raised twelve issues

      concerning denial of due process. Thompson neglected to prosecute the

      petition until February 11, 2005 when he requested to proceed pro se by

      affidavit. On March 8, 2005, the State filed an Answer which raised the defense

      of laches, arguing that it was prejudiced by Thompson’s delay in prosecuting

      his PCR petition. Thompson filed four separate amendments to his petition on

      various dates between May of 2005 and November of 2006. In 2007, the PCR

      court ordered DNA testing on evidence from Thompson’s trial based on

      requests from both parties.


[4]   Thompson took no further action to prosecute the PCR petition until July of

      2012 when a new attorney appeared for Thompson. On December, 26, 2013,

      Thompson filed a fifth amendment to his PCR petition which raised several

      new claims of error as well as an ineffective assistance of counsel claim. The

      State again raised the affirmative defense of laches in response. In support of its

      laches argument, the State claimed that it was prejudiced by Thompson’s delay

      because several individuals who were involved in Thompson’s trial and who

      would be needed to address the merits of his PCR claims had died, including

      Thompson’s trial and appellate counsel, the witness who discovered the

      victims’ bodies, the first responder, and the coroner. Thompson stipulated that

      “the vast majority of the [State’s] witnesses in this case are deceased.” Tr. p.

      48.

      Court of Appeals of Indiana | Opinion 31A01-1408-PC-350 |May 8, 2015      Page 4 of 10
[5]   Following a hearing on laches, the PCR court granted the State’s motion to

      dismiss Thompson’s petition. The PCR court found as follows:

              1. That the parties agree that the issue of laches should be addressed
              before addressing further issue of law in Petitioner’s Amended Petition
              for [PCR].
              2. That the parties stipulated that the delay of the Petition for [PCR]
              has resulted in prejudice to the State.
              3. That the State’s ability to defend against an ineffective assistance
              claim is prejudiced by [Thompson’s trial and appellate counsel] Mr.
              Dodd’s passing in 2011.
              4. That the ineffective assistance claim has been previously asserted on
              or before July, 2005.
              5. That any other issue in Petitioner’s Amended Petition, that has not
              been previously adjudicated, has placed the State in a position of
              prejudice by the stipulation of the parties and by the delay in bringing
              such allegation to a judicial determination.
              6. That Petitioner has shown his knowledge of right to seek [PCR] by
              his original filing in 1992, his numerous subsequent pro se filings and
              the filings by various attorneys who have represented him post-
              conviction.
              7. That the Petitioner has had substantial contact with legal counsel as
              the record indicates he has been represented by at least six attorneys.
              8. That the Petitioner has been incarcerated at a facility with access to
              law library and apparently has used such law library to prepare
              numerous lengthy pro se pleadings.
              9. That all of the above findings convince the Court that the delay is
              unreasonable under the circumstances and that such delay has resulted
              in prejudice to the State and that the State’s assertion of laches as a
              basis for dismissal of the Petition for [PCR] should be granted.
      Appellant’s App. pp. 13-14.



                                 Discussion and Decision
      Court of Appeals of Indiana | Opinion 31A01-1408-PC-350 |May 8, 2015                Page 5 of 10
[6]   “For laches to bar relief, the State must prove by a preponderance of the

      evidence, first, that the petitioner unreasonably delayed in seeking relief and

      second, that the State has been prejudiced by the delay.” Douglas v. State, 634

      N.E.2d 811, 815 (Ind. Ct. App. 1994) opinion corrected on reh’g, 640 N.E.2d 73

      (Ind. Ct. App. 1994) (quoting Perry v. State, 512 N.E.2d 841, 843 (Ind. 1987)

      reh’g denied).

              [Laches] is the neglect for an unreasonable length of time, under
              circumstances permitting diligence, to do what in law should have
              been done. It is an implied waiver arising from knowledge of existing
              conditions and an acquiescence in them, the neglect to assert a right,
              as taken in conjunction with the lapse of time, more or less great, and
              other circumstances causing prejudice to the other party and thus
              acting as a bar in a court of equity.
      Id. (quoting Twyman v. State, 459 N.E.2d 705, 712 (Ind. 1984)).


[7]   A finding of laches is reviewed as any other sufficiency question; that is, we

      consider only the evidence most favorable to the judgment and all reasonable

      inferences to be drawn therefrom, and we will affirm if there is probative

      evidence to support the decision of the PCR court. Slone v. State, 590 N.E.2d

      635, 637 (Ind. Ct. App. 1992). In so doing, we may not reweigh the evidence or

      reassess witness credibility. Id.


          Whether the Doctrine of Laches Applies to Delay in
              Failing to Prosecute a Filed PCR Petition
[8]   The facts of the instant case are analogous to those we addressed in Douglas. Id.

      In 1986, Douglas filed his PCR petition which was subsequently amended three

      times by his attorney, ultimately substituting every issue alleged in the original

      Court of Appeals of Indiana | Opinion 31A01-1408-PC-350 |May 8, 2015              Page 6 of 10
      petition. Id. at 815. A hearing on the petition was finally held in 1992 and the

      PCR court dismissed the petition based on the doctrine of laches. Id. In its

      decision, the PCR court focused on the delay between the filing of the petition

      and the hearing on the petition. On appeal, we noted that, “[w]e have found no

      cases, and the State directs us to none, that consider the delay between the filing

      of the petition and the hearing on the petition as the relevant time period for

      purposes of laches.” Id. at 815-16. However, we reversed the PCR court’s

      decision to dismiss the decision based on the fact that Douglas was not

      personally responsible for the delay.

              From [1985] until 1991, Douglas was represented by the State Public
              Defender’s Office. After waiting more than four years for action on his
              petition, Douglas hired private counsel to proceed with his petition.
              We refuse to penalize Douglas for the delays caused by the Public
              Defender’s Office. One arm of the State (the Prosecutor) may not take
              advantage of a delay created by another arm of the State (the Public
              Defender) to the detriment of the defendant. While we recognize the
              burdensome caseload of the Public Defender’s Office and the high
              turnover of attorneys resulting in delays, as between a defendant and
              the State, the defendant will not be penalized for the delays. The PCR
              court’s findings do not support the conclusion that Douglas
              unreasonably delayed seeking relief.
      Id. at 816.


[9]   Thompson argues that according to Douglas a laches defense can only preclude

      a PCR petition when there is unreasonable delay between the final decision of

      the trial court and the original filing of the PCR petition. This interpretation

      suggests that any delay after filing a PCR petition, no matter the length, can

      never support a laches defense. We do not agree. Earlier in the Douglas


      Court of Appeals of Indiana | Opinion 31A01-1408-PC-350 |May 8, 2015          Page 7 of 10
       decision, we noted that “[t]he PCR court also found that Douglas filed his

       petition on September 25, 1986, and that Douglas’s attorney filed three

       amendments and substituted every issue alleged in the original petition. Thus,

       the delay in filing a petition has been from petitioner’s conviction in 1983 until

       1992.” Id. at 815. (record citation omitted). Therefore, we acknowledged delay

       between the filing of and hearing on the petition. We did not find that such a

       delay was immaterial, as Thompson suggests; rather, we found that the delay

       was not the fault of the petitioner and so not unreasonable.


[10]   For its part, the State argues that Thompson’s failure to prosecute his petition

       constituted an unreasonable delay in seeking relief. At the July 2, 2014 PCR

       hearing regarding laches, the State argued, “if you were to apply [Thompson’s]

       reasoning, then if a person is convicted today and files a PCR tomorrow[,] he

       can sit on his hands for twenty years later, wait for witnesses to die, wait for the

       case to go to crap and then say, [‘]no laches[’].” Tr. p. 48. Although it is dicta,

       Judge Baker’s concurring opinion in Mast v. State, 914 N.E.2d 851 (Ind. Ct.

       App. 2009) addresses a similar situation and reflects the State’s sentiment.

               Here, the underlying crime occurred and Mast pleaded guilty in 1989.
               Mast filed a pro se petition for post-conviction relief in 1990 and
               withdrew it in 1994. He filed a second pro se petition for post-
               conviction relief in 2001. This petition was later amended by counsel
               in 2006. In 2008—nearly twenty years after the crime occurred—a
               hearing was held on Mast’s petition. I believe that if the State had
               raised this [laches] argument, it would have prevailed. Inasmuch as it
               declined to do so, however, I fully concur with the majority.
       Id. at 858. We find this reasoning persuasive. Although the particular facts of

       some cases may present a distinction between a delay in filing and a delay in

       Court of Appeals of Indiana | Opinion 31A01-1408-PC-350 |May 8, 2015             Page 8 of 10
       prosecuting a PCR petition, we see no reason to draw such a distinction here as

       the prejudice to the State would be the same in either case.


          Whether Thompson’s Delays in Prosecuting his PCR
         Petition were Unreasonable and Whether the State was
                        Sufficiently Prejudiced
[11]   The party raising a laches defense must show that (1) the opposing party

       unreasonably delayed seeking relief and (2) the delay caused prejudice to the

       party raising the laches defense. Douglas, 634 N.E.2d at 815. “Although lapse

       of time does not in and of itself constitute laches, a long delay in filing for post-

       conviction relief may be sufficient to infer that the delay was unreasonable.”

       Kindred v. State, 514 N.E.2d 314, 317 (Ind. Ct. App. 1987).


[12]   In Kindred, this court held that petitioner’s eighteen-year delay in filing PCR

       petition was unreasonable. Id. at 318. In Mast, Judge Baker reasoned that a

       delay of eighteen years in prosecuting a PCR petition would be sufficient to

       support a laches defense. 914 N.E.2d at 858. Thompson argued only that a

       delay in prosecuting a PCR petition could not support a laches defense–an

       argument we have rejected–and he provided no argument as to why his twenty-

       two-year delay in doing so was not unreasonable. Furthermore, Thompson

       stipulated that the State was prejudiced by the delay as a result of “the vast

       majority of the [State’s] witnesses in this case [being] deceased.” Tr. p. 6.

       There was sufficient probative evidence to support the PCR court’s finding of

       laches and, as such, we will not disturb that finding.



       Court of Appeals of Indiana | Opinion 31A01-1408-PC-350 |May 8, 2015        Page 9 of 10
[13]   The judgment of the PCR court is affirmed.


       Vaidik, C.J., and Kirsch, J., concur.




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