dissenting.
I respectfully dissent. The whole basis for the majority's opinion is the following comment in Frazier:
[WJhere the defense of waiver is raised, a petitioner must then present some substantial basis or circumstance which would satisfactorily mitigate his failure to pursue or perfect a remedy through the normal channels.
263 Ind. at 615, 335 N.E.2d at 624 (citing Langley v. State, (1971) 256 Ind. 199, 267 N.E.2d 538). This statement hardly supports the majority's holding that, when laches is pleaded, the petitioner must prove not only that his delay was excusable but also that he did not knowingly acquiesce in existing conditions and that the State was not prejudiced by the delay. None of the decisions cited by the majority takes such an extreme view of what one seeking post-conviction relief must prove.
Further, the majority's holding goes beyond requiring the petitioner to disprove laches. Laches has been held to have three elements: (1) inexcusable delay in asserting a right; (2) implied waiver arising from knowing acquiescence in existing conditions; and (8) cireumstances causing prejudice to the adverse party. Turner Transportation, Inc. v. Indiana Employment Security Board, (1983) Ind.App., 448 N.E.2d 300; State ex rel. Crooke v. Lugar, (1976) 171 Ind.App. 60, 354 N.E.2d 755. Thus, to disprove laches, it is only necessary to disprove one of these crucial elements. Cf. Green v. State, (1982) Ind., 438 N.E.2d 266 (burden of disproving self-defense only requires the State to disprove one element of the defense) The majority, however, would require the petitioner to disprove all the elements of laches. This holding will entitle the State to dismissal based on lach-es whenever a petitioner knowingly delays in seeking post-conviction relief, even though the petitioner has a good excuse for delaying and the State was not prejudiced thereby. Such a rule misconstrues the cases the majority cites and radically distorts the traditional doctrine of laches.
I see no reason for treating the defense of laches differently here than in any other civil case. Thus, notwithstanding the majority's assertion to the contrary, I do not believe the supreme court in Frazier has "explicitly removed post-conviction cases from the ambit of TR. 8(C)." The pertinent language in Frazier is as follows:
The motion should have been regarded as an answer of waiver or laches which, under the holding of Langley; Richardson (supra) the petitioner would have had to litigate against, notwithstanding that Civil Trial Rule 8(C) would place the burden of proof upon the State.
263 Ind. at 618, 335 N.E.2d at 625. This seems to me a clear statement that T.R. 8(C) would have placed the burden of proof on the State if the trial court in Frazier had granted a hearing rather than summarily dismissing the petition.
I would accordingly hold that we may affirm a trial court's finding of laches only where the State has made a prima facie showing that the petitioner knowingly slept on his rights for an unreasonable time and that the State was prejudiced by the delay. I am aware that such a holding would be contrary to the decisions in such cases as Twyman v. State, (1983) Ind.App., 452 N.E.2d 434 and Stutzman v. State, (1981) Ind.App., 427 N.E.2d 724, which indicate that when the State proves a delay has *1076occurred, the petitioner must show a reasonable excuse for the delay or suffer dismissal. These decisions rely on the supreme court's statement in Frazier, quoted above, to the effect that when the defense of laches is raised the petitioner must show some excuse for his delay. I do not believe, however, that this statement should be interpreted as placing on the petitioner the initial burden of pleading and proving due diligence-a result expressly rejected in Frazier. 263 Ind. at 615, 385 N.E.2d at 624; see also Langley v. State, (1971) 256 Ind. 199, 211, 267 N.E.2d 538, 545. Rather, I believe the petitioner's duty to present facts "which would satisfactorily mitigate his failure" to seek relief promptly arises only after the State has made a prima facie showing of laches, thereby shifting the burden of going forward to the petitioner. If the State is held to any lesser burden of proof, "the ultimate burden of persuasion would, for all intents and purposes, be shifted to the petitioner." 4A B. BAGNI, L. GIDDINGS & K. STROUD, INDIANA PRACTICE § 282 (1979).
In this case, Gregory did not seek post-conviction relief until eight years after he pled guilty. From the length of this delay, it might arguably be inferred that the State was prejudiced, The State made no showing, however, that Gregory knowingly slept on his rights, acquiescing in existing conditions. Absent proof of this erucial element, the trial court had insufficient evidence to support its finding of laches. See State ex rel. Crooke v. Lugar, supra. Further, the record of Gregory's guilty plea hearing shows the court failed to advise him that the court was not a party to Gregory's plea agreement and was not bound thereby. This violation of Ind.Code 85-4.1-1-8 requires that Gregory's guilty plea be vacated. Early v. State, (1983) Ind., 454 N.E.2d 416. I would accordingly reverse and remand with instructions to vacate Gregory's guilty plea.