Pursuant to Ind.Appellate Rule 65(D),
                                                                Jun 19 2013, 7:14 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:

COREY L. MOSLEY                                     GREGORY F. ZOELLER
Carlisle, Indiana                                   Attorney General of Indiana

                                                    JAMES B. MARTIN
                                                    Deputy Attorney General
                                                    Indianapolis, Indiana


                               IN THE
                     COURT OF APPEALS OF INDIANA

COREY L. MOSLEY,                                    )
                                                    )
       Appellant-Defendant,                         )
                                                    )
               vs.                                  )      No. 49A02-1203-PC-249
                                                    )
STATE OF INDIANA,                                   )
                                                    )
       Appellee-Plaintiff.                          )


                        APPEAL FROM MARION SUPERIOR COURT
                           The Honorable Kurt M. Eisgruber, Judge
                             Cause No. 49G01-9601-PC-14300


                                          June 19, 2013

                MEMORANDUM DECISION - NOT FOR PUBLICATION

MAY, Judge
          Corey L. Mosley appeals the denial of his petition for post-conviction relief. He

presents multiple issues for our consideration, one of which we find dispositive: whether the

post-conviction court erred when it determined Mosley’s claims were barred by laches. We

affirm.

                           FACTS AND PROCEDURAL HISTORY

          On January 30, 1996, the State charged Mosley with a number of offenses and on July

28, 1997, Mosley agreed to plead guilty to some of the charges, in exchange for the State

dismissing others.

          Mosley did not file a direct appeal, but just over seven years later he petitioned for

post-conviction relief, alleging his plea was not knowing or voluntary, his trial counsel was

ineffective, and police illegally obtained his confession. Six months later, Mosley withdrew

that petition.

          On May 20, 2009, Mosley filed a petition for post-conviction relief in which he

alleged trial counsel was ineffective, his plea agreement violated civil contract law and

deprived him of due process, and his sentence was unconstitutional. On June 16, 2009, the

State answered and asserted the affirmative defense of laches. The post-conviction court

heard evidence on August 3, 2010, and April 5, 2011, and on February 29, 2012 denied

Mosley’s petition based on laches.1




1
 The post-conviction court also addressed the merits of Mosley’s arguments. However,as we affirm the post-
conviction court on the basis of laches, we need not discuss the other findings made by the post-conviction
court.
                                                    2
                              DISCUSSION AND DECISION

         In reviewing the denial of post-conviction relief, we neither reweigh the evidence nor

judge the credibility of the witnesses. Montano v. State, 649 N.E.2d 1053, 1056 (Ind. Ct.

App. 1995), trans. denied. To prevail on appeal, the petitioner must show the evidence is

without conflict and leads unerringly and unmistakably to a conclusion opposite that reached

by the post-conviction court. Spranger v. State, 650 N.E.2d 1117, 1119 (Ind. 1995). 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 the decision will be disturbed as

being contrary to law. Id. at 1120.

         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)). In a post-conviction setting, 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).

         Mosley unreasonably delayed filing his petition for post-conviction relief. He entered

a guilty plea on July 28, 1997. He filed his first pro se petition for post-conviction relief on

August 24, 2004, then withdrew it. He filed his second petition on May 20, 2009, almost

twelve years after his convictions.

         Although a lapse of time does not itself constitute laches, a long delay in filing for

post-conviction relief may support an inference the delay was unreasonable. Mahone v.

                                               3
State, 742 N.E.2d 982, 985 (Ind. Ct. App. 2001), trans. denied. Mosley acknowledges the

delay, but argues it was not unreasonable because “his circumstances of insufficient

education and physical incarceration did not permit due diligence, to do what in law, should

have been done.” (Br. of Appellant at 29.)

       Mosley has not cited, nor can we locate, legal authority to the effect that insufficient

education or lack of knowledge of the legal system in general excuse an unreasonable delay

in seeking post-conviction relief. In Pinkston v. State, 479 N.E.2d 79, 82 (Ind. Ct. App.

1985), reh’g denied, we held knowledge that post-conviction relief was available, and failure

to pursue that relief for an unreasonable period of time, was sufficient to prove the

“unreasonable delay” required for the affirmative defense of laches.

        One of Mosley’s trial attorneys testified he corresponded with Mosley “within a few

years after the guilty plea about beginning the process to try to obtain release, whether

through PCR or whatever, and yeah, we did have communication.” (Tr. at 37.) Mosley filed

a petition for post-conviction relief in 2004, withdrew it, and then delayed five years before

filing another petition. These facts support the trial court finding Mosley unreasonably

delayed filing his petition for post-conviction relief.

       The record also supports the trial court finding the State was prejudiced by this

unreasonable delay.

       Prejudice is not merely the impossibility of presenting any case at all or the
       prospect of difficulty in locating and obtaining physical evidence or witnesses
       to testify. If reasonable likelihood of successful prosecution is materially
       diminished by the passage of time attributable to the defendant’s neglect, such
       may be deemed a sufficient demonstration of prejudice.

                                               4
Stewart v. State, 548 N.E.2d 1171, 1176 (Ind. 1990), reh’g denied. The State demonstrated

physical evidence of Mosley’s crime had been destroyed as a result of the police

department’s standard rules regarding retention of evidence; many witnesses were unable to

accurately recall the details of the case due to the passage of time; some of the witnesses

could not be located; and while one co- conspirator was incarcerated, the other was deceased.

Mosley’s argues prejudice to the State from the loss of this evidence is not significant

because he is seeking resentencing, not a new trial, but much of the same evidence might be

relevant to the determination of the appropriateness of a sentence modification. See Ind.

Code § 35-38-1-7.1 (considerations used in imposing sentence). We therefore hold the post-

conviction court did not err in finding the State was prejudiced by Mosley’s delay in filing

his petition for post-conviction relief because of unavailability of evidence concerning crimes

committed over a decade ago.

       As Mosley unreasonably delayed filing his petition for post-conviction relief and that

delay prejudiced the State, there was sufficient evidence to prove the State’s affirmative

defense of laches. Accordingly, we affirm the decision of the post-conviction court.

       Affirmed.

BAKER, J., and MATHIAS, J., concur.




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