dissenting.
I respectfully dissent from the majority’s decision that the doctrine of laches does not bar Slone’s claim.
With respect to the issue of unreasonable delay, the majority recognizes that repeated contacts with the criminal justice system, consultation with attorneys, and incarceration in a penal institution with legal facilities are all facts from which a trier of fact may infer knowledge of, and acquiescence in, the defect in a guilty plea and the means of relief. McCollum v. State (1991), Ind.App., 569 N.E.2d 736, 738. Slone did not spend time in a penal institution; however, such does not defeat the inference that he knowingly acquiesced in the delay. See Moser v. State (1990), Ind. App., 562 N.E.2d 1318, 1319-1320. The State’s evidence showed that Slone had two contacts with the criminal justice system and that he consulted with and was represented by counsel on both occasions. Moreover, Slone waited over four years before filing his petition for post-conviction relief, not three years as the majority suggests. These factors justify an inference that Slone knowingly acquiesced in the delay and that, in light of the circumstances, the delay was unreasonable.
In footnote 1 of its opinion, the majority claims Slone’s delay in filing was not unreasonable because the trial court “expressly found that Slone was unaware of his remedies.” The trial court made no such finding; rather, it expressly found that the delay was unreasonable because Slone had not been “wronged” in any way and, thus, had no reason to seek relief. A defendant’s satisfaction with the result of his plea bargain is, as the majority notes, irrelevant to a laches determination; however, as discussed above, the length of the delay, Slone’s contacts with the criminal justice system, and his consultations with attorneys support the trial court’s finding of unreasonable delay. The State need prove laches only by a preponderance of the evidence, not beyond a reasonable doubt. McCollum at 738. The majority is reweighing the evidence and rejudging the credibility of witnesses, matters outside the province of a court of review. Id.
As for the prejudice issue, the State showed that it would be extremely difficult at the time of the post-conviction hearing to reprosecute the charge to which Slone had pled guilty. At the post-conviction hearing, the State called the two police officers who had been involved in Slone’s arrest. Neither of the officers had an independent recollection of the arrest despite attempts to refresh their memories with their arrest reports. The officers were also unable to identify Slone as the person they had arrested on the date in question. In Moser, this Court found such evidence sufficient to support a finding of prejudice, Id. at 1320; therefore, I would affirm the trial court’s finding of laches and denial of post-conviction relief.