                                                                FILED
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before
                                                              Jan 19 2012, 8:26 am
any court except for the purpose of
establishing the defense of res judicata,
collateral estoppel, or the law of the case.                         CLERK
                                                                   of the supreme court,
                                                                   court of appeals and
                                                                          tax court




ATTORNEY FOR APPELLANT:                            ATTORNEYS FOR APPELLEE:

JOHN PINNOW                                        GREGORY F. ZOELLER
Greenwood, Indiana                                 Attorney General of Indiana

                                                   ANGELA N. SANCHEZ
                                                   Deputy Attorney General
                                                   Indianapolis, Indiana


                               IN THE
                     COURT OF APPEALS OF INDIANA

DOMINIQUE GUYTON,                                  )
                                                   )
       Appellant-Petitioner,                       )
                                                   )
               vs.                                 )       No. 49A02-1107-PC-724
                                                   )
STATE OF INDIANA,                                  )
                                                   )
       Appellee-Respondent.                        )


                     APPEAL FROM THE MARION SUPERIOR COURT
                           The Honorable Lisa F. Borges, Judge
                            Cause No. 49G04-9804-PC-67208



                                        January 19, 2012


                MEMORANDUM DECISION - NOT FOR PUBLICATION


BRADFORD, Judge
       Appellant-Petitioner Dominique Guyton appeals the denial of his petition for post-

conviction relief (“PCR”). Concluding that Guyton’s PCR petition is barred by the doctrine

of laches, we affirm.

                        FACTS AND PROCEDURAL HISTORY

       The Indiana Supreme Court’s opinion in Guyton’s direct appeal, which was handed

down on July 25, 2002, instructs us as to the underlying facts leading to this post-conviction

appeal:

               On April 23, 1998, Indianapolis police officers found the body of Pax
       Larrimore lying in the street in the 4300 block of Norwaldo Avenue. He had
       died from two gunshot wounds to the chest and abdomen. As the investigation
       unfolded, Guyton became a suspect. Guyton and Larrimore had had several
       encounters in which Larrimore had shot at Guyton from a car. On April 28,
       police interviewed Guyton. He admitted to running into Larrimore on the day
       of the murder and claimed that Larrimore had approached his car on foot and
       put his hand in his pocket. Guyton, thinking Larrimore was about to pull out a
       gun, drove away. Guyton denied shooting Larrimore.
               Guyton was charged with murder, two counts of attempted murder, and
       carrying a handgun without a license. At trial, Guyton had a different account.
       He claimed that on the day of the shooting he went to visit friends at 43rd and
       Norwaldo. After talking with his friends for awhile, he left when a group of
       men, including Larrimore, Anthony Butts, Tonio Walker, and Damon Jackson,
       approached. Guyton next visited Sherry Akers and made plans for later that
       evening. According to Guyton, after he left Akers, he was driving down
       Norwaldo when he saw Larrimore flagging him down. When Guyton saw
       Larrimore’s hand on the grip of a gun, he panicked, grabbed his own gun, and
       fired three or four times.
               Butts testified to a third version. According to Butts, Guyton drove up
       to the group, held his hand out of his car, and fired four shots, one at each of
       Larrimore, Butts, Walker, and Jackson. He then fired a final shot at Larrimore
       before driving off. Butts identified Guyton as the shooter from a photo array.
       According to Jackson, Larrimore did not have a gun that day.
               The jury found Guyton guilty of murdering Larrimore, attempting to
       murder Jackson, and carrying a handgun without a license. He was sentenced
       to fifty-five years for murder, thirty years for attempted murder, and one year
       for the handgun violation, all to be served concurrently.
                                                 2
Guyton v. State, 771 N.E.2d 1141, 1142 (Ind. 2002).

       In Guyton’s direct appeal, the Indiana Supreme Court affirmed Guyton’s convictions

for murder and carrying a handgun without a license. Id. at 1145. In affirming these

convictions, the Supreme Court held that Guyton’s convictions did not violate double

jeopardy and that there was no substantial evidence of juror bias. Id. at 1142-1145. The

Supreme Court, however, reversed Guyton’s conviction for attempted murder, finding that

the jury had been improperly instructed. Id. at 1144.

       On December 29, 2009, Guyton filed a pro se PCR petition. On January 28, 2010, the

State asserted the defense of laches in its answer to Guyton’s PCR petition. The post-

conviction court conducted an evidentiary hearing on Guyton’s PCR petition on September

17, 2010, which was concluded, after a continuance, on January 20, 2011. During the

evidentiary hearing, Guyton, by counsel, presented argument in support of his PCR petition.

On July 12, 2011, the post-conviction court issued an order denying Guyton’s request for

PCR. Guyton now appeals.

                            DISCUSSION AND DECISION

       Post-conviction procedures do not afford the petitioner with a super-appeal. Williams

v. State, 706 N.E.2d 149, 153 (Ind. 1999). Instead, they create a narrow remedy for

subsequent collateral challenges to convictions, challenges which must be based on grounds

enumerated in the post-conviction rules. Id. A petitioner who has been denied post-

conviction relief appeals from a negative judgment and as a result, faces a rigorous standard


                                             3
of review on appeal. Dewitt v. State, 755 N.E.2d 167, 169 (Ind. 2001); Collier v. State, 715

N.E.2d 940, 942 (Ind. Ct. App. 1999), trans. denied.

       Post-conviction proceedings are civil in nature. Stevens v. State, 770 N.E.2d 739, 745

(Ind. 2002). Therefore, in order to prevail, a petitioner must establish his claims by a

preponderance of the evidence. Ind. Post-Conviction Rule 1(5); Stevens, 770 N.E.2d at 745.

When appealing from the denial of a PCR petition, a petitioner must convince this court that

the evidence, taken as a whole, “leads unmistakably to a conclusion opposite that reached by

the post-conviction court.” Stevens, 770 N.E.2d at 745. “It is only where the evidence is

without conflict and leads to but one conclusion, and the post-conviction court has reached

the opposite conclusion, that its decision will be disturbed as contrary to law.” Godby v.

State, 809 N.E.2d 480, 482 (Ind. Ct. App. 2004), trans. denied. The post-conviction court is

the sole judge of the weight of the evidence and the credibility of the witnesses. Fisher v.

State, 810 N.E.2d 674, 679 (Ind. 2004). We therefore accept the post-conviction court’s

findings of fact unless they are clearly erroneous but give no deference to its conclusions of

law. Id.

       Guyton contends that the post-conviction court erred in determining that his PCR

petition was barred by the doctrine of laches. The 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) (citing Armstrong v. State,

747 N.E.2d 1119, 1120 (Ind. 2001)). “It is an implied waiver resulting from knowing

                                              4
acquiescence in the conditions and a neglect for an unreasonable length of time to assert a

right, resulting in prejudice to the opposing party.” Harrington v. State, 466 N.E.2d 1379,

1381 (Ind. Ct. App. 1984) (citing Twyman v. State, 459 N.E.2d 705 (Ind. 1984)).

       The question of laches is to be determined from a consideration of the facts and

circumstances in each case. Id. Mere lapse of time, although a factor, is not enough to

constitute laches. Id. As such, to prevail on a claim of laches, the State has the burden of

proving, by a preponderance of the evidence, that Guyton unreasonably delayed in seeking

relief and that the State has been prejudiced by the delay. Kirby, 822 N.E.2d at 1100 (citing

Williams v. State, 716 N.E.2d 897, 901 (Ind. 1999)).

               A petitioner can seldom be found to have unreasonably delayed unless
       he or she has knowledge of a defect in the conviction. McCollum v. State, 671
       N.E.2d 168, 170 (Ind. Ct. App. 1996), clarified on reh’g, 676 N.E.2d 356 (Ind.
       Ct. App. 1997), trans. denied. A finding of knowledge and acquiescence is
       therefore implicit in a finding of unreasonable delay. Id. “Repeated 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.
               In addition, for post-conviction laches purposes, prejudice exists when
       the unreasonable delay operates to materially diminish a reasonable likelihood
       of successful re-prosecution. Armstrong, 747 N.E.2d at 1120. “The 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). The State has an obligation to use due diligence in
       its investigation of the availability of evidence and witnesses. McCollum, 671
       N.E.2d at 172 (quotations omitted).

Kirby, 822 N.E.2d at 1100.

       Upon appeal, our review is limited to whether or not the evidence is sufficient to


                                             5
establish the State’s defense of laches. Harrington, 466 N.E.2d at 1381.

       In determining this issue, like any other sufficiency question, we will not
       reweigh the evidence or determine credibility of witnesses, instead we look
       only to that evidence most favorable to the judgment, together with all
       reasonable inferences flowing therefrom. If, from that viewpoint, there is
       evidence of probative value which supports the trial court’s judgment, we will
       affirm that judgment. Springer v. State, (1984) Ind., 463 N.E.2d 243; Mack v.
       State, (1983) Ind., 457 N.E.2d 200; Henson v. State, (1979) 271 Ind. 325, 392
       N.E.2d 478.

Id.

       In the instant matter, Guyton maintains that the State failed to prove unreasonable

delay or resulting prejudice. With respect to a showing of unreasonable delay, the record

reveals that approximately ten years after Guyton was convicted of murder and carrying a

handgun without a license, and nearly seven and one-half years after his direct appeal was

resolved by the Indiana Supreme Court, Guyton filed his PCR petition, alleging that he

received ineffective assistance of trial counsel. The trial record, which was admitted into the

post-conviction record, demonstrates that Guyton had repeated contacts with the criminal

justice system prior to being charged with the underlying offenses. The pre-sentence

investigation report (“PSI”) considered by the trial court at sentencing in the underlying

matter indicates that Guyton’s prior criminal record consisted of two true juvenile findings, a

prior conviction, and eight prior instances where Guyton had contact with the criminal justice

system but where charges were, for a variety of reasons, either not filed or dismissed. The

PSI also indicates that additional criminal charges were pending at the time when the PSI was

prepared and Guyton was sentenced in the underlying matter. The trial record further


                                              6
demonstrates that Guyton had contact with at least three separate attorneys since being

charged with the underlying criminal charges. In addition, Guyton has been incarcerated in

the Department of Correction since being convicted of the underlying criminal charges.

       In light of Guyton’s repeated contacts with the criminal justice system, his access to

multiple attorneys, and his lengthy incarceration, we conclude that the trial court could have

reasonably inferred that Guyton enjoyed access to both legal representation and a law library

and, thus, could have inquired or learned about post-conviction remedies. See Kirby, 822

N.E.2d at 1101 (providing that the post-conviction court could have reasonably inferred that

the petitioner, who had had repeated contacts with the criminal justice system and had been

incarcerated, would have enjoyed access to a law library where he could have learned about

post-conviction remedies). Guyton’s seven-and-one-half-year delay in filing his PCR

petition after his direct appeal was resolved, coupled with his presumed knowledge of the

criminal justice system, is sufficient for the post-conviction court to infer that the delay in

filing the instant petition for post-conviction relief was unreasonable. See id.; see also,

Harrington, 466 N.E.2d at 1381-82 (providing that a petitioner’s seven-and-one-half-year

delay in filing a petition for post-conviction relief was unreasonable when the petitioner was

“not without experience with the criminal justice system”).

       Turning to the prejudice prong of the laches analysis, the record demonstrates that the

State was unable to locate three eyewitnesses who testified at Guyton’s trial and was unaware

of their present addresses. The State researched multiple databases in an attempt to find a

current address for each of the eyewitnesses and sent letters to multiple addresses found for

                                              7
each eyewitness, but did not receive any responses. Furthermore, Detective Janice Aikman

of the Indianapolis Metropolitan Police Department, who (1) was the first officer to arrive on

the scene less than two minutes after being dispatched; (2) secured the scene; and (3)

provided important testimony at trial about the condition of the victim and the witnesses,

items found at the scene, and statements made by the witnesses, did not have any independent

recollection of the facts relating to the underlying criminal charges. We conclude that this

evidence of faded memories and missing witnesses is sufficient to show that, because of

Guyton’s lengthy delay in filing his petition for post-conviction relief, the State would be

unable to reconstruct its case against Guyton and has, thus, suffered prejudice.1 See

Harrington, 466 N.E.2d at 1381-82 (providing that the evidence was sufficient to prove that

the State was prejudiced by the petitioner’s delay when the State demonstrated that the

petitioner’s accomplice was unavailable to testify at retrial, some of the evidence was

missing, and the investigating officer no longer had any independent recollection of the

case); Kirby, 822 N.E.2d at 1101 (providing that the evidence was sufficient to prove that the

State was prejudiced by the petitioner’s delay when the State demonstrated that some of the

evidence used at trial had been destroyed and that the State was unable to locate all of the

victims of the petitioner’s offenses); McCollum, 671 N.E.2d at 172 (providing that evidence

of faded memories and missing witnesses was sufficient to show that the State was


        1
          To the extent that Guyton argues that the State was not prejudiced because the witnesses’ prior
testimony would be admissible at retrial, we disagree and note, as this court has previously held and Guyton
acknowledges, the use of a transcript of prior testimony is not nearly as effective as the original live witnesses
and materially diminishes the State’s ability to present a case. See McCollum, 671 N.E.2d at 172.

                                                        8
prejudiced by petitioner’s twelve-year delay).

       Having concluded that the post-conviction court did not err in concluding that

Guyton’s PCR petition is barred by laches, we need not review the effectiveness of the

representation provided by Guyton’s trial counsel.

       The judgment of the post-conviction court is affirmed.

KIRSCH, J., and BARNES, J., concur.




                                             9
