dissenting.
I respectfully dissent.
Because the majority declines to follow this court's prior decisions in Morrison v. State, (1984) Ind.App., 466 N.E.2d 783, and Ray v. State, (1984) Ind.App., 466 N.E.2d 1389, that fact should not keep the State from receiving a fair trial as to its laches defense.
The genesis of the laches question begins with Frazier v. State, (1975) 263 Ind. 614, 335 N.E.2d 623, which contains the following language:
The answers to the questions posed by this case are found in Langley; Richardson v. State, (1971) 256 Ind. 199, 267 N.E.2d 538. In that case, it was acknowledged that a showing of diligence is not a prerequisite to relief under Ind. R.P.C. 1 and that a petitioner could sue-cessfully seek post conviction relief in a particular case under Ind.R.P.C. 1, notwithstanding that he would fail to qualify for consideration on the merits under Ind.R.P.C. 2. (p. 211). Taken out of context, this statement might be very misleading. However, elsewhere in the opinion, Justice Hunter noted that the mere filing for relief at a later time under the provisions of Ind.R.P.C. 1 does not insulate a petitioner from a State sponsored inquiry into the matter of waiver on the issues raised by the petition (p. 206) and that where 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. (p. 211). (Emphasis sup plied.)
Id., 263 Ind. at 615, 335 N.E.2d at 624.
In Stutzman v. State, (1982) Ind.App., 427 N.E.2d 724, this court interpreted the preceding language as carving out an exception to the general rule of laches, holding the petitioner was required to explain the delay when the State raised the laches defense in post-conviction relief proceedings. This court subsequently followed Stutzeman's interpretation of Frazier in Boykins v. State, (1983) Ind.App., 456 N.E.2d 1079; Gregory v. State, (1983) Ind. *769App., 456 N.E.2d 1072; Twyman v. State, (1983) Ind.App., 452 N.E.2d 434 and Hernandez v. State, (1983) Ind.App., 450 N.E.2d 93.
It is true this line of decisions was overruled in Twyman v. State, (1984) Ind., 459 N.E.2d 705. But Twyman was handed down February 10, 1984; Stutzman was handed down November 10, 1981. I am aware of no dicta in a supreme court opinion handed down after Stutzman and before Twyman hinting at the Stutzman result. Although the majority opinion argues the authority relied on in Stutzman was always available to the State, the fact is Stutzman was followed by this district, albeit over dissenting opinions, in Gregory, supra, and Boykins, supra; by our First District in Twyman, supra, and our Third District in Hernandez, supra. Thus, during this period the rule was once the State raised the laches contention in a post-conviction relief hearing, the petitioner bore the burden of explaining his delay in filing for relief. I believe the State was entitled to rely on such precedent. It should not be punished "for failing to predict our [supreme court's] decision in [Twyman, supra |." See Owen v. City of Independence, (1980) 445 U.S. 622, 683, 100 S.Ct. 1398, 1432, 63 L.Ed.2d 673 (Powell, J., dissenting). The majority's view of this matter clearly deprives the State of a fair opportunity to contest Boykins's claim for post-conviction relief.
The majority's reliance on Travelers Indemnity Co. v. Armstrong, (1982) Ind., 442 N.E.2d 349, and its progeny clearly is misplaced. Travelers changed the quantum of proof required to establish punitive damages. It did not, however, alter the burden of proof. It remained with the plaintiff. Stutzman, supra, and its progeny interpreted Frazier, supra, as placing the burden of proof on the defendant when laches was raised by the State. During the period in which Stutzman and company stated the rule on this subject, parties to post-conviction proceedings were entitled to rely thereon. Twyman effected a fundamental change in the law of laches as to who carried the burden of proof in this area in post-conviction relief proceedings. Such a fundamental result was not involved as to punitive damages in Travelers.
By failing to remand for rehearing on the issue of laches the majority deprives the State of an opportunity to establish how it was prejudiced by the delay here involved, a burden the State quite rightly did not and could not anticipate it would bear when the post-conviction relief hearing was held October 12, 1982, more than one year prior to our supreme court's decision in Twyman, supra.
I would remand for a hearing on the laches issue.