Sanders v. State

Attorneys for Appellant
(Before the Court of Appeals)

Susan K. Carpenter
Public Defender of Indiana

John A. England
Deputy Public Defender
Indianapolis, IN

Appellant Pro Se
(On Transfer)

William A. Sanders

Attorneys for Appellee

Jeffrey A. Modisett
Attorney General of Indiana

Liisi Brien
Deputy Attorney General
Indianapolis, IN

IN THE
INDIANA SUPREME COURT

WILLIAM A. SANDERS,
Appellant (Petitioner below),

v.

STATE OF INDIANA,
Appellee (Respondent below).

)
) Supreme Court No.
) 45S05-0004-PC-285
)
)
) Court of Appeals No.
) 45A05-9901-PC-21
)
)

APPEAL FROM THE LAKE SUPERIOR COURT
The Honorable James L. Clement, Judge
Cause No. 45G02-9003-CF-0048

ON PETITION TO TRANSFER

August 21, 2000

SULLIVAN, Justice.

William A. Sanders filed for post-conviction relief approximately two
years after the completion of an unsuccessful direct appeal. The post-
conviction court denied the petition on grounds of laches and the Court of
Appeals affirmed. Sanders, acting pro se, now appeals his denial of post-
conviction relief. We hold that the post-conviction court erred in finding
that Sanders waited an unreasonable length of time to file his petition.

Background

A jury found Sanders guilty of murder and attempted murder, and the
Court of Appeals affirmed Sanders’s convictions on direct appeal in an
unpublished memorandum entered on October 9, 1991. See Sanders v. State,
No. 45A03-9104-CR-112, slip op. at 2 (Ind. Ct. App. October 9, 1991).
Sanders did not learn that his convictions and sentences were affirmed on
direct appeal until August or September of 1992. One month later, Sanders
requested the record from the Court of Appeals and received it in January
1993. On January 19, 1994 — 28 months after the completion of his
unsuccessful appeal and seventeen months after he learned of the Court of
Appeals’s decision — Sanders filed a pro se petition for post-conviction
relief with the help of another inmate. On February 24, 1994, the State
filed its answer and did not raise the affirmative defense of laches. No
action was taken on this petition by the post-conviction court. On October
24, 1997, Sanders who was now represented by a State Public Defender,
amended his petition for post-conviction relief. On March 25, 1998, five
months later (and four years after its original answer), the State filed
its amended answer, arguing that the doctrine of laches barred Sanders from
post-conviction relief.

On November 10, 1998, the post-conviction court held a hearing.[1]
The post-conviction court ruled that Sanders’s petition was indeed barred
by the doctrine of laches, and dismissed the petition without considering
the merits of Sanders’s claims. In reaching its conclusion, the post-
conviction court determined that (1) Sanders unreasonably delayed filing
his pro se petition for post-conviction relief by waiting until January
1994, and (2) the State had been prejudiced by Sanders’s delay because
Alvester Bowman, an eyewitness to the crime, had moved to the state of
Tennessee.

Sanders, represented by counsel, appealed the post-conviction court’s
decision. In an unpublished memorandum decision, the Court of Appeals
affirmed. See Sanders v. State, No. 45A05-9901-PC-21, slip op. at 6 (Ind.
Ct. App. Dec. 20, 1999).

Discussion

Sanders contends that the post-conviction court erred in finding his
claims barred by the equitable doctrine of laches. This Court has defined
laches as “‘“neglect for an unreasonable or unexplained length of time,
under circumstances permitting diligence, to do what in law should have
been done.”’” Williams v. State, 716 N.E.2d 897, 901 (Ind. 1999) (quoting
Perry v. State, 512 N.E.2d 841, 842 (Ind. 1987) (quoting in turn Frazier v.
State, 263 Ind. 614, 616-17, 335 N.E.2d 623, 624 (1975))). The doctrine of
laches may be used as an affirmative defense to foreclose a court from
considering a claim. To prevail on a claim of laches, the State must prove
by the preponderance of the evidence that (1) Sanders unreasonably delayed
in filing for post-conviction relief, and (2) the State was prejudiced by
the delay. See Williams, 716 N.E.2d at 901; Twyman v. State, 459 N.E.2d
705, 712 (Ind. 1984).

As with other sufficiency of the evidence claims, we do not reweigh
the evidence nor judge the credibility of witnesses when reviewing a claim
that evidence is insufficient to establish laches. See Lacy v. State, 491
N.E.2d 520, 521 (Ind. 1986). Rather, we consider only that evidence most
favorable to the judgment together with all reasonable inferences to be
drawn therefrom. See id. If the court’s finding is supported by
substantial evidence of probative value, the judgment will be affirmed.
See Washington v. State, 507 N.E.2d 239, 240 (Ind. 1987).

In Williams, we found the evidence insufficient to establish either
laches in general or “‘conscious indifference or procrastination’” in
particular. Williams, 716 N.E.2d at 902 (quoting Perry, 512 N.E.2d at
844). We reached that result after considering that the petitioner filed
for post-conviction relief 21 months (and arguably only five months) after
the completion of his unsuccessful direct appeal. We also considered that
the petitioner had never before been in prison and was unfamiliar with the
prison law library.

Here, Sanders had twice previously been incarcerated and from that
experience could have learned about post-conviction remedies.[2] But
access to information about post-conviction remedies is relevant in this
context only if the evidence is in conflict over whether the petitioner’s
conduct constituted “conscious indifference or procrastination.” As in
Williams, we find no evidence of conscious indifference or procrastination.

The record reveals about a two-year delay between the date of
completion of Sanders’s unsuccessful appeal on October 9, 1991, and the
date Sanders filed his first pro se petition for post-conviction relief on
January 19, 1994. However, at least nine months of the two-year delay is
attributable to the public defender who failed to inform Sanders about the
unpublished memorandum decision rejecting his appeal. In fact, Sanders
testified at the post-conviction hearing that a fellow inmate informed him
to write the Clerk of the Court of Appeals concerning the status of his
appeal in August or September of 1992. Sanders took this advice and
learned of the decision at that time. Upon learning that the Court of
Appeals affirmed his convictions and sentences in late 1992, Sanders
immediately requested the record from the Court of Appeals and received it
in January 1993. Sanders, who testified that he had below average reading
and comprehension abilities, subsequently filed his pro se post-conviction
petition one year later in January 1994. Although the State answered this
petition four weeks later, it did not assert laches for another four years.
Under these circumstances, we find that Sanders demonstrated the requisite
diligence in filing his petition after learning of the adverse ruling. See
Edwards v. State, 676 N.E.2d 1087, 1090 (Ind. Ct. App. 1997) (ruling that
regardless of petitioner’s knowledge of post-conviction remedies, the State
will not prevail on laches where petitioner is diligent in maintaining
contact with the Public Defender and expresses desire for assistance but
receives adequate assistance only after a lengthy delay), transfer denied.

With respect to alleged prejudice, the Court of Appeals affirmed the
post-conviction court’s ruling that the State has been prejudiced as a
result of Sanders’s delay in filing. The court determined, “The prejudice
component rests upon the logistical difficulties in retrying Sanders
because the eyewitness to the occurrence resides in Tennessee.” Slip op.
at 6. We disagree and find instructive Judge Robb’s concurring opinion in
which she recognized, “[T]he mere fact that Bowman lives out of state does
not prejudice the State,” especially “where the out-of-state witness is
willing to return to testify” and his memory of the events is intact. Id.
at 8, 9.

At the post-conviction hearing, the Lake County investigator for the
prosecutor’s office testified that he was able to locate Bowman who resided
in Tennessee. On cross-examination, defense counsel asked the
investigator, “[W]hen you talked to Mr. Bowmanm, did he recall the
specifics of this case?” The investigator replied, “Yes. he did.” After
the hearing, counsel obtained an affidavit revealing that Bowman was
willing to testify without a subpoena and that he had a clear recollection
of the events. Other witnesses who testified at Sanders’s trial were also
available for retrial with the exception of Kimberly Epperson who died one-
and-a-half years after Sanders filed his first petition for post-conviction
relief. As such, we are not convinced that “a successful prosecution [was]
materially diminished by the passage of time attributable to the
petitioner’s neglect.” Stewart v. State, 548 N.E.2d 1171, 1176 (Ind. Ct.
App. 1990), transfer denied. The State did not suffer prejudice from
Sanders’s delay in filing the petition.

Conclusion

Having previously granted transfer, we vacate the opinion of the Court
of Appeals pursuant to Indiana Appellate Rule 11(B)(3), and remand this
case to the post-conviction court for further proceedings consistent with
this opinion.

SHEPARD, C.J., and DICKSON, BOEHM, and RUCKER, JJ., concur.

-----------------------
[1] We note that Magistrate T. Edward Page presided over the post-
conviction hearing and recommended to Judge James L. Clement that Sanders’s
petition be barred on grounds of laches. Judge Clement agreed with the
recommendation and further denied Sanders’s motion to reconsider,
recognizing that the State waited four years to raise laches.
[2] The record indicates that in 1983, Sanders had been incarcerated at a
prison facility in Minnesota and jailed in South Dakota prior to acquittal
on charges there.