Perry O. Jones, Appellant-Petitioner, v. State of Indiana, Appellee-Plaintiff. (2023)

MEMORANDUM DECISION

Bradford, Judge.

Case Summary

[1] On October 31, 1994, Perry Jones was convicted of Class C felony possession of cocaine. With regard to this conviction, he was subsequently sentenced to a four-year sentence. Approximately twenty-four years later, Jones filed a petition for post-conviction relief (“PCR petition”), alleging, for the first time, that his trial counsel had provided him with ineffective assistance of counsel by failing to make what he claimed would have been a meritorious argument during a pre-trial suppression hearing. Following a hearing, the post-conviction court denied Jones's PCR petition, concluding that it was barred by the defense of laches. We affirm.

Facts and Procedural History

[2] The underlying facts, as originally set forth in Jones's direct appeal, are as follows:

On August 24, 1993, Kokomo police officers Deric Beroshok[1] and David Trine were on surveillance duty in an unmarked car in an area known for high levels of drug activity. There, they saw Jones standing at an intersection. When a beige 1984 Chevy pulled up, Jones walked out to meet it, leaned into its window, and appeared to be exchanging items. This transaction with the same Chevy was repeated two times over approximately twenty minutes. During this time, the officers also observed that a number of other cars would stop in the street near where Jones stood. Upon each stop, Jones would walk out to the car, extract an object from inside his pants’ front waistband, and lean inside the car window. When he emerged from the window, the object in his hand had been replaced with what appeared to be money. Jones would then walk back to the sidewalk, counting or shuffling the money, and place it in his pants pocket. The beige Chevy eventually returned; Jones entered the vehicle and it left the area.

The officers followed the Chevy to a local eating establishment, where Jones got out of the car and walked toward the restaurant door. Beroshok, approached Jones, took hold of him and told him to put his hands against the wall. Jones did so. Beroshok then reached inside Jones’ waistband, extracted a large clump of cocaine, and handcuffed Jones.

Jones v. State, 34A02-9502-CR-106 *2–3 (Ind. Ct. App. Nov. 22, 1995). On direct appeal, Jones argued “that the trial court [had] erred in denying his motion to suppress the cocaine procured pursuant to a warrantless search because the evidence [had been] obtained in violation of his” constitutional rights. Id. at *3. Specifically, he argued that the search had not been “incident to a lawful arrest because it [had] preceded his actual arrest.” Id. at *4. We affirmed the judgment of the trial court, concluding that “[t]he seizure of the cocaine [had been] made coterminous in time and place” with Jones's arrest. Id. at *6.

[3] On September 16, 1999, Jones filed a pro se motion to compel discovery, at which time he indicated that he wished to pursue post-conviction relief. The motion was granted “except for [the] transcript of proceedings,” which the trial court instructed Jones to “contact [his trial attorney] to obtain.” Ex. Vol. IV p. 5. Nothing in the record, however, indicates that Jones took any other step toward filing a petition for post-conviction relief at that time.

[4] Jones filed a pro se PCR petition on November 19, 2018, and an amended PCR petition on September 13, 2019. In the amended PCR petition, Jones asserted that his trial counsel had provided him with ineffective assistance by failing “to raise a different argument in support of suppression that would have succeeded, namely that the search inside Jones's pants was unreasonable.” Appellant's App. Vol. II p. 22. Jones further asserted that “[h]ad counsel moved to suppress the evidence on proper grounds, the evidence would have been suppressed.” Appellant's App. Vol. II p. 22.

[5] The post-conviction court held a hearing on Jones's amended PCR petition on January 21, 2021. As the outset, the post-conviction court took judicial notice of the fact that Jones's trial counsel was deceased, having passed away on April 1, 2001. Officer Beroshok, who had since retired, testified at the hearing that given the significant passage of time, he had little independent recollection of Jones's arrest and that his testimony given during a pre-trial motion to suppress hearing and at Jones's initial trial would reflect his most accurate recollection of the events that had taken place on August 24, 1993. During the hearing, Jones testified, apparently for the first time, that Officer Beroshok had not only reached into his waistband but had also touched his genitals, claiming that he had “had a loose rubber band wrapped around [his] genitals that held the bag [of drugs] in place” and that he imagined that contact with his genitals was “the only way [to] get [the bag] off” his genitals. PCR Tr. p. 20. When asked why he had waited so long to seek post-conviction relief, Jones admitted that having the underlying conviction overturned would help him obtain a more favorable sentence in a pending federal criminal matter.

[6] On August 17, 2022, the post-conviction court denied Jones's PCR petition. In doing so, the post-conviction court found as follows:

12. In Jones's testimony at the January 22, 2021 hearing, he claimed, for the first time, that Officer Beroshok had reached into his underwear and touched his genitals and that the bag of drugs was loosely tied to his genitals with a rubber band. This testimony reaches the level of “incredible dubiosity” and does not negate the finding of probable cause for Jones's arrest.

13. Jones clearly has knowledge of legal proceedings, having previously filed pro se motions and pleadings and used the services of “jailhouse lawyers.” It is also clear that Jones's motivation to pursue post-conviction relief now is because of the beneficial effect that it could potentially have on his federal prison sentence for another matter.

14. Because Jones waited so many years to pursue post-conviction relief, the Court does not have the benefit of receiving testimony from Attorney Wood regarding his reasons for presenting the arguments and pursuing the strategy that he did as opposed to the ones that Jones now maintains he should have pursued. Jones had from 1995 to 2001 to procure the testimony of Attorney Wood and failed to do so.

Appellant's App. Vol. II p. 95 (emphasis in original). The post-conviction court also found that the evidence relating to the underlying criminal trial had “been disposed of” as of February 4, 2015, which was more than twenty years after the conclusion of Jones's jury trial. Based on these facts, combined with the record before the court, the post-conviction court concluded that although Jones claimed that the State had not been prejudiced by his delay in filing his PCR petition,

[t]he Court disagrees with Jones on this point. Jones asserts that Attorney Wood made the wrong objections in support of the claim that the cocaine seized from him should be suppressed. His claims, which are not credible, are based, in large part, on self-serving testimony presented at a hearing held over 26 years after his jury trial. Jones claims that he told Attorney Wood of facts that would support a challenge of the reasonableness of Officer Beroshok's search of his person. Unfortunately, Attorney Wood, having been dead for over two decades now, is not able to tell this Court what Jones told him about the facts associated with the search and arrest. Quite understandably, Officer Beroshok's memory has faded over the many years that have passed, as well. The Court concludes, then, that Jones waited an unreasonable length of time to pursue post-conviction relief and that the State has been prejudiced by Jones's delay in seeking post-conviction relief. The Court further concludes that the State has met its burden of proof as to the defense of laches by a preponderance of the evidence, and that Jones's Amended Petition for Post-Conviction Relief should be denied.

Appellant's App. Vol. II p. 97.

Discussion and Decision

[7] “Post-conviction procedures do not afford the petitioner with a super-appeal.” Williams v. State, 706 N.E.2d 149, 153 (Ind. 1999). “Instead, they create a narrow remedy for subsequent collateral challenges to convictions, challenges which must be based on grounds enumerated in the post-conviction rules.” Id. A petitioner who has been denied post-conviction relief appeals from a negative judgment and as a result, faces a rigorous standard of review on appeal. Dewitt v. State, 755 N.E.2d 167, 169 (Ind. 2001); Collier v. State, 715 N.E.2d 940, 942 (Ind. Ct. App. 1999), trans. denied.

[8] Post-conviction proceedings are civil in nature. Stevens v. State, 770 N.E.2d 739, 745 (Ind. 2002). Therefore, in order to prevail, a petitioner must establish his claims by a preponderance of the evidence. Ind. Post-Conviction Rule 1(5); Stevens, 770 N.E.2d at 745. When appealing from the denial of a PCR petition, a petitioner must convince this court that the evidence, taken as a whole, “leads unerringly and unmistakably to a decision opposite that reached by the post-conviction court.” Stevens, 770 N.E.2d at 745. “In other words, the defendant must convince this Court that there is no way within the law that the court below could have reached the decision it did.” Id. (emphasis in original). “It is only where the evidence is without conflict and leads to but one conclusion, and the post-conviction court has reached the opposite conclusion, that its decision will be disturbed as contrary to law.” Godby v. State, 809 N.E.2d 480, 482 (Ind. Ct. App. 2004), trans. denied. “The post-conviction court is the sole judge of the weight of the evidence and the credibility of the witnesses.” Fisher v. State, 810 N.E.2d 674, 679 (Ind. 2004).

[9] In arguing that the post-conviction court erred in denying his PCR petition, Jones asserts that the post-conviction court erred by finding that his claim was barred by the defense of laches.²

The equitable doctrine of laches operates to bar consideration of the merits of a claim or right of one who has neglected for an unreasonable time, under circumstances permitting due diligence, to do what in law should have been done. Twyman v. State, 459 N.E.2d 705, 712 (Ind. 1984). For laches to apply, the State must prove by a preponderance of the evidence that the petitioner unreasonably delayed in seeking relief and that the State is prejudiced by the delay. Williams v. State, 716 N.E.2d 897, 901 (Ind. 1999). For post-conviction laches purposes, prejudice exists when the unreasonable delay operates to materially diminish a reasonable likelihood of successful re-prosecution. [Stewart v. State, 548 N.E.2d 1171, 1176 (Ind. Ct. App. 1990), trans. denied].

Armstrong v. State, 747 N.E.2d 1119, 1120 (Ind. 2001).

[10] The defense of laches “implies something more than the lapse of time; it requires some change of circumstances that makes the relief sought inequitable.” Barber v. State, 141 N.E.3d 35, 41 (Ind. Ct. App. 2020) (citing Kosciusko Cnty. Cmty. Fair, Inc. v. Clemens, 116 N.E.3d 1131, 1139 (Ind. Ct. App. 2018)), trans. denied. The State, having the burden of proving the affirmative defense of laches, must therefore prove by a preponderance of the evidence that Jones unreasonably delayed in seeking relief and that it was prejudiced by the delay. See id. The amount of prejudice to the State's ability to re-prosecute is correlated to the length of delay as “[p]rejudice may result in litigation by the mere passage of time because witnesses are dispersed, memories fade, and records are lost.” Lile v. State, 671 N.E.2d 1190, 1196 (Ind. Ct. App. 1996) (citing Kindred v. State, 514 N.E.2d 314, 318 (Ind. Ct. App. 1987), trans. denied). The State bears the burden to prove laches in the post-conviction court. See Barber, 141 N.E.3d at 41.

A finding of laches is reviewed as any other sufficiency question; that is, we consider only the evidence most favorable to the judgment and all reasonable inferences to be drawn therefrom, and we will affirm if there is probative evidence to support the decision of the PCR court. Slone v. State, 590 N.E.2d 635, 637 (Ind. Ct. App. 1992). In so doing, we may not reweigh the evidence or reassess witness credibility.

Thompson v. State, 31 N.E.3d 1002, 1006 (Ind. Ct. App. 2015), trans. denied.

I. Unreasonable Delay

[11] “Although lapse of time does not in and of itself constitute laches, a long delay in filing for post-conviction relief may be sufficient to infer that the delay was unreasonable.” Jent v. State, 120 N.E.3d 290, 293 (Ind. Ct. App. 2019), trans. denied. “Repeated contacts with the criminal justice system, consultation with attorneys and incarceration in a penal institution with legal facilities are facts from which a trier of fact may infer the knowing acquiescence giving rise to the unreasonable delay.” Slone, 590 N.E.2d at 637.

[12] In Jent, fifteen years had passed “from the time Jent originally pled guilty to his misdemeanor offenses to the time when he petitioned for post-conviction relief.” Id. Citing to cases from both this Court and the Indiana Supreme Court, we noted that “such a length of time can constitute an unreasonable delay warranting the application of laches.” Id. (citing Ware v. State, 567 N.E.2d 803, 805 (Ind. 1991) (ten-year filing delay); Oliver v. State, 843 N.E.2d 581, 587–88 (Ind. Ct. App. 2006) (ten-year filing delay), trans. denied; Kindred, 514 N.E.2d at 317 (sixteen-year filing delay)). As such, we concluded that the post-conviction court had not erred by finding that Jent had unreasonably delayed in filing his petition. Id.

[13] In this case, we have little trouble concluding that Jones unreasonably delayed filing his PCR petition. Again, Jones was charged with the underlying crime in 1993 and was convicted of said crime in 1994. Jones, however, waited until 2018 to file his petition, reflecting an approximately twenty-four-year period of delay. The length of delay at issue in this case is nearly a decade longer than the delay in Jent. In addition, as the post-conviction court noted, Jones has extensive experience with the criminal justice system and had demonstrated a relatively high level of knowledge regarding the procedures for bringing various claims before the court. The post-conviction court did not err in finding that the State sufficiently proved that Jones's twenty-four-year delay was unreasonable.

II. Prejudice

[14] In challenging the post-conviction court's order, Jones argues that the State failed to prove that it was prejudiced by his delay. We disagree.

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 defendant's neglect, such may be deemed a sufficient demonstration of prejudice.

Stewart, 548 N.E.2d at 1176. In determining prejudice, we consider that “witnesses’ memories may have faded, priorities may have changed, and the State's resources may have shifted to more pressing criminal matters.” Balderas v. State, 116 N.E.3d 1141, 1144 (Ind. Ct. App. 2018). “Our case law [also] makes clear that the destruction of documents can be prejudicial to the State and support an affirmative defense of laches.” Jent, 120 N.E.3d at 294.

[15] Jones asserts that the State could not prove prejudice because the evidence which has been destroyed would likely have been found inadmissible but for his trial counsel's ineffective assistance. While Jones may have a strong belief in the merits of his argument regarding trial counsel's alleged ineffective assistance, the question of whether Jones would ultimately be successful on the merits has no bearing on the question of prejudice. We agree with the State that in making this argument, Jones is essentially putting “the cart far before the horse.” Appellee's Br. p. 15.

[16] At this point, nearly thirty years have passed since Jones was alleged to have committed the underlying criminal acts and approximately twenty-eight years have passed since he was found guilty by a jury. Understandably, the record reflects that, in that time, the witness's memories have faded. The record also reflects that the evidence relied on by the State was disposed of in February of 2015, more than twenty years after Jones's jury trial. These facts are sufficient to prove prejudice to the State. See Jent, 120 N.E.3d at 294 (concluding that the unreasonable fifteen-year delay prejudiced the State when documents, including the transcript, have been destroyed); Balderas, 116 N.E.3d at 1144 (concluding that the unreasonable nearly twelve-year delay prejudiced the State because much of the evidence had been destroyed); Stewart, 548 N.E.2d at 1176 (concluding that the State was prejudiced by the fourteen-year delay because it no longer had all the evidence needed to prosecute the defendant).

[17] Jones's reliance on the Indiana Supreme Court's decision in Lacy v. State, 491 N.E.2d 520 (Ind. 1986), is misplaced. In Lacy, the defendant requested post-conviction relief eleven years after pleading guilty. 491 N.E.2d at 521. In arguing that the proceedings should be barred by the doctrine of laches, the State presented general evidence suggesting that the prosecutor's files that are older than ten years old are normally destroyed but acknowledged that it had not investigated to see whether the relevant case files had been destroyed. Id. Furthermore, while the State was aware of the names of certain witnesses, it had not checked to see whether the witnesses would be available to testify at retrial. Id. There was no showing of destroyed evidence and no evidence regarding the “recollection of the investigating officers.” Id. These facts are readily distinguishable from the facts and circumstances of this case. Again, here, the evidence has been destroyed, and the record clearly reflects that Officer Beroshok's recollection has faded, leaving him with a near-total lack of independent recollection.³ Thus, we conclude that the post-conviction court did not err in finding that the State sufficiently proved that it was prejudiced by Jones's unreasonable delay.

[18] The judgment of the post-conviction court is affirmed.

May, J., and Mathias, J., concur.

FOOTNOTES

1.   We acknowledge that Officer Beroshok's name is spelled differently in the transcript of the post-conviction evidentiary hearing. However, we will use the spelling used by the post-conviction court, which is the same spelling as was used by this court in Jones's 1995 direct appeal.

2.   Jones also reasserts his contention that trial counsel had rendered ineffective assistance of counsel. However, because we conclude that the post-conviction court did not err in determining that Jones's post-conviction claim was barred by the defense of laches, we need not consider the merits of whether trial counsel's actions constituted ineffective assistance.

3.   We are also unpersuaded by Jones's reliance on Canter v. State, 496 N.E.2d 823 (Ind. Ct. App. 1986), in which we concluded that that the State had failed to prove prejudice when it had failed to prove that the relevant evidence had been destroyed or that witnesses were unavailable to testify on retrial when the State had only submitted testimony of the records custodian of Indiana Reformatory and had not presented any evidence relating to whether the case files kept by the prosecution, investigating law enforcement officers, or the trial court had been destroyed.

Memorandum Decision by Judge Bradford

Judges May and Mathias concur.