Pursuant to Ind.Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before
any court except for the purpose of                                         Jun 30 2014, 9:57 am
establishing the defense of res judicata,
collateral estoppel, or the law of the case.



APPELLANT PRO SE:                                 ATTORNEYS FOR APPELLEE:

ANTHONY RAY WILLOUGHBY                            GREGORY F. ZOELLER
Pendleton, Indiana                                Attorney General of Indiana

                                                  ANDREW FALK
                                                  Deputy Attorney General
                                                  Indianapolis, Indiana




                              IN THE
                    COURT OF APPEALS OF INDIANA

ANTHONY RAY WILLOUGHBY,                           )
                                                  )
       Appellant-Petitioner,                      )
                                                  )
              vs.                                 )      No. 49A04-1307-PC-375
                                                  )
STATE OF INDIANA,                                 )
                                                  )
       Appellee-Respondent.                       )


                     APPEAL FROM THE MARION SUPERIOR COURT
                          The Honorable Mark D. Stoner, Judge
                           Cause No. 49G06-8811-PC-133783



                                         June 30, 2014


                MEMORANDUM DECISION - NOT FOR PUBLICATION


NAJAM, Judge
                             STATEMENT OF THE CASE

       Anthony Ray Willoughby appeals the post-conviction court’s denial of his petition

for post-conviction relief. Willoughby raises three issues for our review, which we

consolidate and restate as whether the post-conviction court’s judgment that

Willoughby’s petition for post-conviction relief was barred under the doctrine of laches is

clearly erroneous. We affirm.

                       FACTS AND PROCEDURAL HISTORY

       On October 6, 1988, the State filed a delinquency petition against Willoughby in

which the State alleged that Willoughby had committed burglary, as a Class B felony

when committed by an adult. Thereafter, the State filed a motion to waive juvenile

jurisdiction over Willoughby and have him tried in adult court. The juvenile court held a

hearing on the State’s motion, after which the court granted the motion. Following the

transfer of the action into the adult court, on March 10, 1989, Willoughby, then

represented by counsel, entered into a written plea agreement with the State in which he

agreed to plead guilty to burglary, as a Class B felony. The court imposed a six-year

suspended sentence, with three years suspended to probation.

       On July 17, 1990, the trial court revoked Willoughby’s probation and ordered him

to serve his previously suspended sentence in the Department of Correction. On October

19, at Willoughby’s request the court modified his sentence and committed him to five

years to be served in Marion County Community Corrections. Between October 31,

1990, and May 12, 2004, Willoughby, either pro se or through counsel, filed numerous

documents and requests with the trial court, including a petition for post-conviction relief


                                             2
filed on November 8, 2002. Several of these filings were made while Willoughby was

incarcerated.

          Between May 27, 2004, when the trial court denied one of Willoughby’s motions,

and December 21, 2009, Willoughby took no action on his petition for post-conviction

relief. On December 21, 2009, Willoughby filed an amended petition for post-conviction

relief.     Aside from counsel for Willoughby filing an appearance and then later

withdrawing, Willoughby took no action on his amended petition until January 16, 2013,

when he filed a second amended petition for post-conviction relief.

          The post-conviction court held an evidentiary hearing on Willoughby’s second

amended petition for post-conviction relief on February 21, 2013. At that hearing, the

State asserted the affirmative defense of laches. In support of its affirmative defense, the

State submitted affidavits from Erin Cronley, a paralegal in the Marion County

Prosecutor’s Office, and Tom Dalton, a former detective with the Indianapolis

Metropolitan Police Department who retired in 1999. According to Cronley, she was not

able to locate Deputy Robert Hamblin, one of the officers who had investigated the

underlying burglary, although Cronley stated that Detective Dalton had told her Deputy

Hamblin was ill. Cronley further testified that she was unable to locate the victim of the

burglary, Margaret Houston, or any of the three civilian witnesses for the State.

Detective Dalton, another investigating officer, testified that he had no recollection of this

case, that he no longer has any files or notes relating to this case, and that he would not

be able to identify Willoughby.




                                              3
        On July 1, 2013, the post-conviction court denied Willoughby’s petition for post-

conviction relief on the basis that Willoughby’s petition was barred by the doctrine of

laches. In relevant part, the court concluded as follows:

        44.     Willoughby has not given the Court any justification for the delay in
        filing his petition. Because of this delay, coupled with the more than ten-
        year delay in bringing his petition to hearing, the victim and other witnesses
        cannot be located and the detective who investigated the case and testified
        at the waiver hearing has no recollection of the facts of the case. The
        likelihood of successful re-prosecution under these circumstances [is]
        materially diminished, if not virtually impossible.

        45.    Willoughby had continued contacts with the trial court following his
        sentencing hearing. He returned to court, with counsel, for his probation
        violation hearing some sixteen months later and had his sentence modified
        three months thereafter. Less than two weeks after his sentence
        modification, Willoughby, pro se, requested a copy of the record of
        proceedings from the guilty plea and sentencing hearing. In July of 1991,
        Willoughby filed a pro se motion to reinstate his probation. At his request,
        a second copy of the guilty plea and sentencing transcript was sent to him
        in March of 1995.

        46.    . . . [T]he Court concludes that Willoughby unreasonably delayed in
        seeking relief and the State is prejudiced by this delay. The Court
        concludes that the State has successfully met its burden of proving laches.

        47.   Accordingly, the Court declines to address the merits of
        Willoughby’s three claims for relief.

Appellant’s App. at 32-33. This appeal ensued.

                                 DISCUSSION AND DECISION

        Willoughby appeals the post-conviction court’s denial of his petition for post-

conviction relief.1 As our Supreme Court has explained:

        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,

        1
            It is of no moment that Willoughby appeals pro se. It is well established that this court holds
pro se litigants to the same standards as licensed lawyers. See, e.g., Payday Today, Inc. v. McCullough,
841 N.E.2d 638, 640 n.2 (Ind. Ct. App. 2006).
                                                    4
       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 had the burden of proving laches as an affirmative
       defense, [the petitioner] is not appealing 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 probative evidence to
       support the post-conviction court’s judgment.

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

       On appeal, Willoughby first asserts that the trial court’s judgment is clearly

erroneous because the State did not present sufficient evidence to show that it had

conducted an adequate investigation into “the condition of existing evidence and

records[] and the availability and condition of their witnesses.” Appellant’s Br. at 22. 2

“The State has an obligation to use due diligence in its investigation of the availability of

evidence and witnesses.” Washington v. State, 507 N.E.2d 239, 240 (Ind. 1987). Here,

Cronley testified that she reviewed Willoughby’s original file and “attempted to contact

each witness.” State’s Exh. 1 at 1. In particular, Cronley stated that, on November 16

and again on December 1, 2010, she attempted to contact Deputy Hamblin but received

no response. She then stated that, on December 1, Detective Dalton told her that Deputy

Hamblin was “ill.” Id. It appears that Cronley did not ask Detective Dalton how she




       2
           The State does not clearly respond to this argument in its brief on appeal.
                                                      5
might contact Deputy Hamblin, nor did she attempt to contact Deputy Hamblin through

Detective Dalton. Id.

       But Cronley also stated that she had “attempted to locate the civilian witness[es]

by researching records from the Bureau of Motor Vehicles website, Law Enforcement

Police Reports and the Justis Information System for Marion County/Indianapolis.” Id.

She testified that she mailed correspondence “to the most recently listed address for

Margaret Houston,” the victim in the underlying offense, to no avail. Id. at 2. Cronley

was “unable to locate or make any contact” with any of the civilian witnesses and “was

unable to locate any personal identifiers” for them that would allow her to locate them

through another method. Id. at 2.

       While Cronley did not contact Deputy Hamblin through Detective Dalton or

otherwise inquire with Detective Dalton as to how to best contact Deputy Hamblin,

nonetheless Cronley’s affidavit demonstrates a diligent—and wholly unsuccessful—

attempt to locate and contact the civilian witnesses. And the inability to locate or contact

those witnesses is clearly prejudicial to the State’s ability to reprosecute Willoughby.

Thus, we are not persuaded that the State’s investigation into the availability of evidence

and witnesses demonstrates reversible error.

       Willoughby next asserts:

       when the State has a recorded confession in its arsenal of evidence, the
       State should not be able to successfully raise the affirmative defense of
       laches based on claims that one of the original investigating officer’s
       memory has faded, the second investigating officer is reported to be ill and
       not readily available, and other witness[es] . . . are reported to be
       unavailable.



                                               6
Appellant’s Br. at 29. But among Willoughby’s allegations in his second amended

petition for post-conviction relief are that his trial counsel rendered ineffective assistance

when he failed to investigate the State’s underlying allegation of burglary; that, if his

counsel had properly investigated the allegation, he would have realized that the State

“charged [Willoughby] with a burglary that never happened” and the juvenile court

would not have waived jurisdiction over Willoughby; and that, because of his counsel’s

purported failure, Willoughby did not enter into his guilty plea knowingly, intelligently,

and voluntarily3 and the trial court did not have jurisdiction to accept his guilty plea. See

Appellant’s App. at 60-61.

        The result of this sequence of arguments is to have Willoughby’s guilty plea

declared invalid. This vitiates his argument that his guilty plea renders the State’s other

evidence meaningless in the event of a reprosecution. Thus, Willoughby’s argument here

is without merit.

        Finally, Willoughby asserts that the trial court’s conclusion that Willoughby

unreasonably delayed in filing his petition for post-conviction relief is clearly erroneous.4

“[M]ere passage of time alone is not enough” to demonstrate an unreasonable delay


        3
          To be sure, the phrase “knowingly, intelligently, and voluntarily” does not appear in
Willoughby’s pro se second amended petition, but it is clear that this is the effect of his argument.
        4
           Because we affirm the post-conviction court’s judgment with respect to the unreasonable delay
between Willoughby’s conviction and the original filing of his petition for post-conviction relief, we need
not consider whether it was proper for the court to consider the delay between the filing of Willoughby’s
petition and the evidentiary hearing.
         Also, embedded in this argument Willoughby asserts that the State waived its defense of laches
because it “made no arguments” and “offered no evidence” in support of its defense. Appellant’s Br. at
37-38. These assertions have no basis in the record and we do not consider them. Likewise, insofar as
Willoughby attempted to raise any arguments in either of his briefs other than those discussed in this
decision, those arguments are not supported by cogent reasoning and are waived. Ind. Appellate Rule
46(A)(8)(a).
                                                    7
under the doctrine of laches. Edwards v. State, 676 N.E.2d 1087, 1090 (Ind. Ct. App.

1997), trans. denied. Rather, the delay must result from “a conscious indifference or

procrastination.” Williams v. State, 716 N.E.2d 897, 902 (Ind. 1999). “Relevant to

establishing this . . . element of laches is a defendant’s knowledge of (and possible

acquiescence in) a defect in his or her conviction or the means to seek relief from that

conviction.” Id. at 901 n.5. Further, “[r]epeated 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). Ultimately, the State must “present some objective

facts from which the court may draw a reasonable inference of knowledge.” Id.

       The post-conviction court’s conclusion that Willoughby unreasonably delayed in

filing his original petition for post-conviction relief is not clearly erroneous. Willoughby

pleaded guilty to burglary on March 10, 1989, and on November 8, 2002, more than

thirteen years later, he filed his petition for post-conviction relief, in which he would

ultimately assert that the burglary “never happened.” See Appellant’s App. at 60. A

reasonable inference from Willoughby’s guilty plea is that he knew as of March 10, 1989,

whether the burglary to which he had pleaded guilty actually happened.

       Further, over the ensuing thirteen years, the following events occurred before

Willoughby finally filed his petition for post-conviction relief: on July 17, 1990, the trial

court revoked Willoughby’s probation and ordered him to serve his previously suspended

sentence in the Department of Correction; on October 19, 1990, at Willoughby’s request

the court modified his sentence and committed him to five years to be served in Marion


                                             8
County Community Corrections; on October 31, 1990, Willoughby filed a pro se request

for a copy of the record of the proceedings, which he received; on July 18, 1991,

Willoughby filed a pro se motion to reinstate probation, which the court denied the same

day; and on March 15, 1995, Willoughby again requested a copy of the record of the

proceedings, which he again received. In other words, Willoughby had repeated contacts

with the trial court and criminal justice system, and he twice received copies of the record

of the proceedings in the underlying matter.

       A reasonable inference from these objective facts is that, at the latest, Willoughby

had knowledge of any defects in his conviction by March 15, 1995. Still, it was more

than seven years after that date that Willoughby filed his petition for post-conviction

relief. Thus, the State presented sufficient evidence to demonstrate that Willoughby

unreasonably delayed in filing his petition for post-conviction relief. We cannot say that

the post-conviction court erred when it entered judgment for the State on its affirmative

defense of laches, and the post-conviction court’s judgment is affirmed.

       Affirmed.

VAIDIK, C.J., and BROWN, J., concur.




                                               9
