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Tuesday, October 20, 2009

Ind. Decisions - Court of Appeals issues 1 on Oct. 19th (and 2 NFP)

For publication opinions Oct. 19 (1):

In State of Indiana v. Mark Damron, a 7-page opinion, Judge Barnes writes:

The State appeals the granting of Mark Damron’s petition for post-conviction relief. We reverse. * * *

The State raises one issue, which we restate as whether the post-conviction court properly granted Damron’s petition for post-conviction relief where the transcript of his 1991 guilty plea hearing had been destroyed. * * *

In his petition for post-conviction relief, Damron argued that the destruction of the tape of his guilty plea hearing prevented meaningful review of his 1991 guilty plea. The United States Supreme Court requires that the record of a guilty plea hearing must show, or there must be an allegation and evidence which show, that the defendant was informed of, and waived, three specific federal constitutional rights: the privilege against compulsory self-incrimination, right to trial by jury, and the right to confront one’s accusers. Hall v. State, 849 N.E.2d 466, 469 (Ind. 2006) (citing Boykin v. Alabama, 395 U.S. 238, 89 S. Ct. 1709 (1969)). The Boykin court made clear that courts cannot presume a waiver of these important federal rights from a silent record. Id.

In Hall, however, our supreme court clarified that a lost record is not the per se equivalent of a silent record. The Hall court explained:

The fact that the record of a guilty plea hearing can neither be found nor reconstructed does not of itself require granting post-conviction relief. Rather, as with any claim made in a petition for post-conviction relief, a claim that the petitioner’s conviction was obtained in violation of federal or state constitutional safeguards . . . must be proven by a preponderance of the evidence.
As in Parke, Damron is collaterally attacking his guilty plea. See Hall, 849 N.E.2d at 472 (“[O]ur courts have long deemed post-conviction proceedings collateral.”). Also, the destroyed record is not “suspiciously silent.” The untimely destruction of a tape does not in and of itself indicate that the State—the county prosecutor or the Attorney General—acted improperly. See id. (observing there was “no suggestion that the cause of the missing record is the result of misconduct by the State.”). It appears that the trial court had a policy of destroying tapes after ten years, and without more we cannot equate this policy, although in contravention of the Indiana Rules of Criminal Procedure, to governmental misconduct. Given these facts, we cannot conclude that the presumption of regularity should not apply here.

Further, Damron presented no evidence that he was not informed of his Boykin rights at the time of his guilty plea. * * *

Because Damron did not demonstrate that he was entitled to post-conviction relief, the post-conviction court improperly granted his petition. We reverse.

NFP civil opinions Oct. 19 (2):

Eugene Duncan and Gaye E. Duncan v. Charles Whitehair, Pers. Rep. for Estate of J. P. Guill (NFP) - "The Duncans raise one issue, which we restate as whether sufficient evidence was presented to support the trial court’s judgment in favor of the Estate on its unjust enrichment claim. We affirm."

Term. of Parent-Child Rel. of W.W.; J.B.W. v. IDCS (NFP) - "The DCS presented clear and convincing evidence to support the termination of Father’s parental rights. We affirm."

NFP criminal opinions Oct. 19 (0):

Posted by Marcia Oddi on October 20, 2009 11:04 AM
Posted to Ind. App.Ct. Decisions