                                                                               FILED
                                                                           Mar 13 2019, 9:41 am

                                                                               CLERK
                                                                           Indiana Supreme Court
                                                                              Court of Appeals
                                                                                and Tax Court




      APPELLANT, PRO SE                                          ATTORNEYS FOR APPELLEE
      Michael R. Jent                                            Curtis T. Hill, Jr.
      Pendleton, Indiana                                         Attorney General of Indiana
                                                                 Monika Prekopa Talbot
                                                                 Supervising Deputy Attorney
                                                                 General
                                                                 Indianapolis, Indiana



                                                  IN THE
          COURT OF APPEALS OF INDIANA

      Michael R. Jent,                                           March 13, 2019
      Appellant-Defendant,                                       Court of Appeals Case No.
                                                                 18A-PC-785
              v.                                                 Appeal from the Allen Superior
                                                                 Court
      State of Indiana,                                          The Honorable David M. Zent,
      Appellee-Plaintiff.                                        Judge
                                                                 Trial Court Cause No.
                                                                 02D06-1711-PC-107




      Pyle, Judge.


                                        Statement of the Case

[1]   Michael Jent (“Jent”), pro se, appeals the post-conviction court’s order denying

      his petition for post-conviction relief. Concluding that Jent has failed to show

      Court of Appeals of Indiana | Opinion 18A-PC-785 | March 13, 2019                            Page 1 of 7
      that the post-conviction court erred by denying his petition for post-conviction

      relief, we affirm the post-conviction court’s judgment.


[2]   We affirm.


                                                       Issue

              Whether the post-conviction court erred by summarily denying
              Jent’s petition for post-conviction relief.

                                                       Facts

[3]   In November of 2002, the State charged Jent with Class A misdemeanor

      invasion of privacy, Class A misdemeanor interfering with the reporting of a

      crime, Class B misdemeanor public intoxication, and Class B misdemeanor

      disorderly conduct. The trial court held an initial hearing, during which it

      advised Jent of his constitutional rights, which he waived. At the hearing, Jent

      also pled guilty to all four misdemeanors and was sentenced to 365 days of

      unsupervised probation.


[4]   Fifteen years later, in November of 2017, Jent filed a petition for post-

      conviction relief (“PCR”). Jent alleged that his guilty plea was not knowingly

      made, that there was an insufficient factual basis to support his guilty plea, and

      that he was denied the assistance of guilty plea counsel. Jent further alleged

      that on the date of his hearing, he “went to court while he was still intoxicated.”

      (App. 10). In its answer, the State argued that Jent’s issues were waived by his

      guilty plea. The State also argued that his allegations did not create a genuine


      Court of Appeals of Indiana | Opinion 18A-PC-785 | March 13, 2019           Page 2 of 7
      issue of material fact because they did not allege specific facts which, if proved,

      would suffice to establish any grounds for post-conviction relief. The State

      further asserted that Jent’s claims were “barred by laches in that he has

      unreasonably delayed in seeking post-conviction relief.” (App. 19).


[5]   On March 1, 2018, the post-conviction court summarily denied relief, stating:

      “[t]he Court does not find merit to Mr. Jent’s claims. Additionally, Mr. Jent

      [pled] guilty in the criminal case in question on November 27, 2002. The court

      notes the unreasonable delay in filing the Petition.” (App. 7). Later, the court

      reporter filed an affidavit, stating that she had been requested to prepare Jent’s

      guilty plea hearing transcript. She explained that the transcript was not

      available because Indiana destroys misdemeanor records after ten years. Jent

      now appeals.


                                                   Decision

[6]   Jent appeals from the post-conviction court’s order summarily denying post-

      conviction relief. Our standard of review in post-conviction proceedings is well-

      settled.


              We observe that post-conviction proceedings do not grant a
              petitioner a “super-appeal” but are limited to those issues available
              under the Indiana Post-Conviction Rules.            Post-conviction
              proceedings are civil in nature, and petitioners bear the burden of
              proving their grounds for relief by a preponderance of the
              evidence. Ind. Post-Conviction Rule 1(5). A petitioner who
              appeals the denial of PCR faces a rigorous standard of review, as
              the reviewing court may consider only the evidence and the
              reasonable inferences supporting the judgment of the post-
              conviction court. The appellate court must accept the post-
      Court of Appeals of Indiana | Opinion 18A-PC-785 | March 13, 2019           Page 3 of 7
              conviction court’s findings of fact and may reverse only if the
              findings are clearly erroneous. If a PCR petitioner was denied
              relief, he or she must show that the evidence as a whole leads
              unerringly and unmistakably to an opposite conclusion than that
              reached by the post-conviction court.

      Shepherd v. State, 924 N.E.2d 1274, 1280 (Ind. Ct. App. 2010) (internal citations

      omitted), trans. denied.


[7]   Jent maintains that the post-conviction court erred by denying his petition for

      post-conviction relief. He argues that “the State failed to present evidence to

      support their claim of laches, or unreasonable delay and that the delay caused

      prejudice[.]” (Jent’s Br. 14). We disagree.


[8]   Our Indiana Supreme Court has explained our standard of review in a laches

      case as follows:


              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. For laches to apply, the
              State must prove by a preponderance of the evidence that the
              petitioner unreasonably delayed in seeking relief and that the State
              is prejudiced by the delay. For post-conviction laches purposes,
              prejudice exists when the unreasonable delay operates to
              materially diminish a reasonable likelihood of successful re-
              prosecution.

              Because the State ha[s] the burden of proving laches as an
              affirmative defense, [a post-conviction petitioner does] not appeal[
              ] from a negative judgment, and the applicable standard of review
              requires that we affirm unless we find that the judgment was
              clearly erroneous. This is a review for sufficiency of evidence.
              Without reweighing the evidence or assessing the credibility of
              witnesses but rather looking only to the evidence and reasonable
              inferences favorable to the judgment, we will affirm if there is


      Court of Appeals of Indiana | Opinion 18A-PC-785 | March 13, 2019          Page 4 of 7
               probative evidence to support the post-conviction court’s
               judgment.

       Armstrong v. State, 747 N.E.2d 1119, 1120 (Ind. 2001) (internal citations

       omitted) (emphasis added).


[9]    Our review of the record and the inferences favorable to the judgment reveals

       that Jent unreasonably delayed in filing his petition for post-conviction relief.

       Jent pled guilty in 2002 and petitioned for post-conviction relief in 2017.

       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), reh’g

       denied, trans. denied. Fifteen years passed from the time Jent originally pled

       guilty to his misdemeanor offenses to the time when he petitioned for post-

       conviction relief. Our appellate court and our Supreme Court have held that

       such a length of time can constitute an unreasonable delay warranting the

       application of laches. See, e.g., Ware v. State, 567 N.E.2d 803, 805 (Ind. 1991)

       (ten-year filing delay); Oliver v. State, 843 N.E.2d 581, 587-88 (Ind. Ct. App.

       2006) (ten-year filing delay), trans. denied; Kindred, 514 N.E.2d at 317 (sixteen-

       year filing delay). The post-conviction court did not err by finding that Jent

       unreasonably delayed in filing his petition.


[10]   Concerning whether the State was prejudiced by Jent’s unreasonable delay, we

       take note of the completion of clerk’s record, which states that no transcript of

       the original hearing exists. See Ind. Appellate Rule 27 (providing that “[t]he

       Record on Appeal shall consist of the Clerk’s Record and all proceedings before


       Court of Appeals of Indiana | Opinion 18A-PC-785 | March 13, 2019           Page 5 of 7
       the trial court or Administrative Agency, whether or not transcribed or

       transmitted to the Court on Appeal[]”). Additionally, the court reporter filed an

       affidavit, which stated that the transcript in this case was not available because

       misdemeanor records in Indiana are only kept for ten years and then destroyed.

       Our case law makes clear that the destruction of documents can be prejudicial

       to the State and support an affirmative defense of laches. See, e.g., Balderas v.

       State, -- N.E.3d --, No. 17A-PC-3014, 2018 WL 67139, *3 (Ind. Ct. App. Dec.

       21, 2018) (citing Stewart v. State, 548 N.E.2d 1171, 1176 (Ind. Ct. App. 1990)

       (holding that the State was prejudiced by delay where it no longer has all the

       evidence needed to prosecute defendant), reh’g denied, trans. denied).


[11]   It should be noted that the State failed to present evidence to the post-

       conviction court in its pleadings alleging the specific prejudice it suffered by

       Jent’s unreasonable delay. See Ind. Post-Conviction Rule 1(4)(f). Normally,

       this would require reversal of the post-conviction court’s order under summary

       disposition and a remand for further proceedings. However, this would be an

       unnecessary and unwarranted waste of judicial resources when the result will be

       the same – the case would be remanded, the post-conviction court would deny

       Jent’s PCR petition after finding the State prejudiced by the destruction of

       transcripts after Jent’s unreasonable delay, Jent would likely appeal, and we

       would affirm. See App. R. 66(A). Thus, we conclude that the unreasonable

       delay of fifteen years prejudiced the State. Accordingly, Jent has failed to show

       that the evidence as a whole leads unerringly and unmistakably to an opposite

       conclusion than that reached by the post-conviction court.


       Court of Appeals of Indiana | Opinion 18A-PC-785 | March 13, 2019           Page 6 of 7
[12]   Affirmed.


       Najam, J., and Crone, J., concur.




       Court of Appeals of Indiana | Opinion 18A-PC-785 | March 13, 2019   Page 7 of 7
