dissenting.
I respectfully dissent because Holland's petition for PCR should be barred by the doctrine of laches. "For laches to bar relief, the State must prove by a preponderance of the evidence, first, that the petitioner unreasonably delayed in seeking relief and, second, that the State has been prejudiced by the delay." Perry v. State (1987), Ind., 512 N.E.2d 841, 843, reh. denied. We should reverse the decision of the PCR court and remand to determine if the facts presented by the State were sufficient to infer under the circumstances that Holland had knowledge of a defect in his convictions or knew of the possibility of a chal lenge to his conviction.
.In determining whether the evidence is sufficient to support a finding of laches in a PCR proceeding, we treat the issue as any other sufficiency question. We will not reweigh the evidence or rejudge the credibility of the witnesses. Smith v. State (1991), Ind.App., 565 N.E.2d 1114, reh. denied, trans. denied, relying upon Taylor v. State (1986), Ind.App., 492 N.E.2d 1091. We look only to the evidence most favorable to the judgment and to all reasonable inferences to be drawn therefrom. Id. at 1093. We will affirm if there is probative evidence to support the trial judge's decision. Id.
I disagree with the majority opinion that the evidence does not support the PCR court's finding that the State has been prejudiced by the delay. The prosecutor testified as follows:
I reviewed the case file and I attempted to find him through the information we had in the case file and there was no *434trace of Roland Rice. The only Roland Rice I found that even lives in Indianapolis was deceased and his wife informed me that he was not the Roland Rice that I was seeking because they had been married for thirty (30) years and he had never been involved in any criminal case. So I was not able to locate the victim. And there were two (2) eyewitnesses ... but two (2) men at the gas station who seen the suspect shortly after the shooting who had fled and I had attempted to locate those two (2) individuals and also could not find any trace of either one of those. One of them there was another man here in town with the same name but he was not the man that was involved in this case. Those are the three (8) eyewitnesses to the incident and then the other people involved, several of the officers have retired or have left the Sheriff's Department and I could not locate them. There was one, Gabriel Fres-quez who is still around. I think his involvement in the case was minimal ... Without the victim and the two (2) eyewitnesses, I don't see how it would be possible to prosecute the case.
R. 144-146.
In Mottern v. State (1984), Ind.App., 466 N.E.2d 488, 490, we held that the requisite prejudice is demonstrated when it would be "impossible or extremely difficult to present" the prosecutor's case. Stewart v. State (1990), Ind.App., 548 N.E.2d 1171, 1176, reh. denied, trans. denied. Prejudice is not merely the impossibility of presenting any case at all or the prospect of difficulty in locating and obtaining physical evidence or witnesses to testify. If reasonable likelihood of successful prosecution is materially diminished by the passage of time attributable to the petitioner's neglect, such may be deemed a sufficient demonstration of prejudice. Id.; see also Kindred v. State (1987), Ind.App., 514 N.E.2d 314, 818, reh. denied, trans. denied. While the mere passage of time is not enough to constitute laches, it may be a factor. Sloan v. State (1992), Ind.App., 590 N.E.2d 635.
Twelve (12) years passed before Holland filed his PCR petition. The prosecutor testified under oath that she made attempts to locate the victim and the witnesses, but to no avail, She met her burden of reasonable diligence.
I disagree also with the majority opinion that the record is devoid of evidence to support the PCR court's finding that Holland unreasonably delayed filing his PCR petition. The State carried the burden of proving Holland had knowledge of defects in his convictions yet delayed his PCR petition. "Repeated contacts with the criminal justice system, consultation with attorneys and incarceration in a penal institution with legal facilities are all factors from which the fact finder may infer knowledge." Irvin v. State (1987), Ind.App., 515 N.E.2d 566. Holland was an habitual offender and had been incarcerated on more than one occasion. He was appointed public defenders and also had legal materials available in prison to proceed pro se.
Rather than reweigh the evidence, we should remand back to the PCR court to make the determination on the issue of laches.