Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before                             FILED
any court except for the purpose of                            Feb 05 2013, 9:53 am
establishing the defense of res judicata,
collateral estoppel, or the law of the case.                          CLERK
                                                                    of the supreme court,
                                                                    court of appeals and
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APPELLANT PRO SE:                                   ATTORNEYS FOR APPELLEE:

DONALD TATUM                                        GREGORY F. ZOELLER
Pendleton, Indiana                                  Attorney General of Indiana

                                                    MONIKA PREKOPA TALBOT
                                                    Deputy Attorney General
                                                    Indianapolis, Indiana


                               IN THE
                     COURT OF APPEALS OF INDIANA

DONALD TATUM,                                       )
                                                    )
       Appellant-Petitioner,                        )
                                                    )
               vs.                                  )      No. 49A04-1206-PC-331
                                                    )
STATE OF INDIANA,                                   )
                                                    )
       Appellee-Respondent.                         )


                      APPEAL FROM THE MARION SUPERIOR COURT
                             The Honorable Grant W. Hawkins, Judge
                       The Honorable Christina R. Klineman, Commissioner
                     Pre-Justic Cause No. CR-81-268, Justis Cause No. 81-232



                                        February 5, 2013


                MEMORANDUM DECISION - NOT FOR PUBLICATION


BRADFORD, Judge
          Appellant-Petitioner Donald Tatum appeals the post-conviction court’s denial of

relief, arguing that Appellee-Respondent the State of Indiana failed to satisfy its burden

of proving laches. In June of 1982, Tatum pled guilty to Class B felony burglary and was

sentenced pursuant to a plea agreement. After nearly a twenty-six-year delay, Tatum

filed a pro se petition for post-conviction relief (“PCR”), arguing that the trial court never

advised him of the minimum sentence he could have received. The State asserted the

doctrine of laches and offered evidence that, since his 1982 conviction, Tatum had served

over twenty years of incarceration in penal institutions with law facilities and had

consulted with attorneys on at least twenty-one separate criminal cases. The State also

evidenced that it was unable to locate the burglary victim and other key witnesses to

Tatum’s prosecution, the investigating detective had only a vague memory of the case,

and the case file had been destroyed. Concluding that the State satisfied its burden of

establishing Tatum’s responsibility for unreasonable delay and resulting prejudice, we

affirm.

                         FACTS AND PROCEDURAL HISTORY

          On June 1, 1982, Tatum pled guilty to Class B felony burglary and, pursuant to a

plea agreement, was sentenced to six years of incarceration with two years executed and

four years suspended. On October 27, 2004, Tatum filed a pro se petition for PCR,

which he withdrew on June 27, 2007. On January 11, 2011, Tatum filed a second pro se

petition for PCR, arguing that his 1982 guilty plea was not knowing and intelligent.

Specifically, Tatum claimed that, at his guilty plea hearing, he was not advised of the




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minimum sentence he could have received for a burglary conviction and that the

presiding commissioner acted without judicial authority or approval.

        On July 13, 2011, the post-conviction court held an evidentiary hearing, at which

Tatum testified to the allegations in his petition. Tatum also acknowledged that, since

serving approximately six months at the Department of Correction (“DOC”) on his 1982

conviction, he had served five separate sentences at the DOC and that he was then-

serving a sixth, unrelated sentence. Tatum agreed that he had served a total of more than

twenty years at the DOC since 1985. Tatum also admitted that he had attorneys represent

him on more than twenty-one criminal cases. He maintained, however, that he did not

know prison law libraries existed until he arrived at Pendleton Correction Facility in

2004.

        The State asserted the affirmative defense of laches and presented the affidavit of

Erin Cronley, a paralegal at the Marion County Prosecutor’s Office, who had conducted a

laches investigation into Tatum’s 1982 burglary charge. In her affidavit, Cronley stated

that she was unable to locate three essential witnesses to the crime: the victim; the

coparticipant, who revealed Tatum’s identity to the investigating detective; and a

neighbor of the coparticipant, who identified Tatum from a photo array as having been

with the coparticpant minutes before the burglary. Cronley also learned that a fourth

witness, an alarm company representative who chased after the burglars and apprehended

the coparticipant, was deceased.     Additionally, Cronley found that the investigating

detective, whose probable cause affidavit provided the factual basis of Tatum’s guilty

plea, had only a vague memory of the case at best. And the detective’s file containing the


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photo arrays, from which Tatum had been identified, had been destroyed. The post-

conviction court determined that the State had met its burden of proving laches, and, on

June 6, 2012, it denied Tatum’s petition for relief.

                            DISCUSSION AND DECISION

       Tatum argues that the post-conviction court erred in finding his claim barred by

the doctrine of laches. “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.”

Armstrong v. State, 747 N.E.2d 1119, 1120 (Ind. 2001) (citing Twyman v. State, 459

N.E.2d 705, 712 (Ind. 1984)). To prevail on a claim of laches, the State must prove by a

preponderance of the evidence that the petitioner was responsible for the unreasonable

delay, and that the State has been prejudiced by the delay. Williams v. State, 716 N.E.2d

897, 901 (Ind. 1999); Perry v. State, 512 N.E.2d 841, 843 (Ind. 1987). Tatum claims that

the State presented insufficient evidence to satisfy this burden.

               In reviewing claims that evidence is insufficient to show laches, we
       do not reweigh the evidence nor judge the credibility of the witnesses. We
       consider only that evidence most favorable to the judgment, together with
       all reasonable inferences to be drawn therefrom. If the determination of the
       court is supported by substantial evidence of probative value, the judgment
       will be affirmed.

Williams, 716 N.E.2d at 901 (internal citation omitted).

       Tatum does not challenge the post-conviction court’s finding that his nearly

twenty-six year delay in seeking relief was unreasonable. Rather, he contends that the

State’s evidence—Cronley’s affidavit—does not support a finding of prejudice. We

disagree.

                                              4
       To prove that prejudice resulted from a petitioner’s delay in seeking PCR, “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. And “[p]rejudice may result … by the mere passage of time because

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

       Here, the State’s evidence shows that it is unable to locate three witnesses

essential to Tatum’s prosecution. A fourth witness is deceased, and the investigating

detective has little memory of the case. Moreover, the case file has been destroyed.

Without the testimony of these witnesses and the photo identification evidence, the

reasonable likelihood of successful reprosecution is materially diminished by Tatum’s

delay in pursuing PCR. We find that the State has presented substantial evidence of

prejudice and, therefore, conclude that the post-conviction court correctly denied Tatum’s

PCR petition on the basis of laches.

       The judgment of the post-conviction court is affirmed.

NAJAM, J., and FRIEDLANDER, J. concur.




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