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COA: Destroyed tape doesn't make record silent

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The premature destruction of a tape of a guilty plea hearing by court staff doesn't render the record silent for purposes of Boykin, the Indiana Court of Appeals ruled Monday. As a result, the appellate court reversed the grant of post-conviction relief to a defendant who claimed the destruction of his 1991 guilty plea hearing tape prevented meaningful review of the plea.

In State of Indiana v. Mark Damron, No. 49A04-0901-PC-29, the state appealed the post-conviction court's decision that a destroyed record is by its very definition silent, and that a waiver of Boykin rights, Boykin v. Alabama, 395 U.S. 238, 89 S. Ct. 1709 (1969), can't be presumed from a silent record.

Mark Damron pleaded guilty to Class D felony operating a vehicle while intoxicated in 1991; in January 2007, he filed his petition for post-conviction relief alleging his guilty plea wasn't knowing, voluntary, or intelligent because the trial court didn't keep a record of his guilty plea hearing. The tape of hearing was destroyed after 10 years, although the Indiana Rules of Criminal Procedure state that misdemeanor records can be destroyed after 10 years and felonies should be maintained for 55 years.

Boykin said courts can't presume a waiver of important federal rights from a silent record, but in Hall v. State, 849 N.E.2d 466, 469, (Ind. 2006), the Indiana Supreme Court said that a lost record is not the per se equivalent of a silent record.

The Court of Appeals concluded as in Parke v. Raley, 506 U.S. 20, 113 S. Ct. 517 (1992), Damron was collaterally attacking his guilty plea. Parke ruled that "it defies logic to presume from the mere unavailability of a transcript... that the defendant was not advised of his rights."

"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," wrote Judge Michael Barnes regarding Damron's case. "Given these facts, we cannot conclude that the presumption of regularity should not apply here."

Damron also failed to carry his burden of proof that he wasn't informed of his Boykin rights.

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  1. I just wanted to point out that Congressman Jim Sensenbrenner, Senator Feinstein, former Senate majority leader Bill Frist, and former attorney general John Ashcroft are responsible for this rubbish. We need to keep a eye on these corrupt, arrogant, and incompetent fools.

  2. Well I guess our politicians have decided to give these idiot federal prosecutors unlimited power. Now if I guy bounces a fifty-dollar check, the U.S. attorney can intentionally wait for twenty-five years or so and have the check swabbed for DNA and file charges. These power hungry federal prosecutors now have unlimited power to mess with people. we can thank Wisconsin's Jim Sensenbrenner and Diane Feinstein, John Achcroft and Bill Frist for this one. Way to go, idiots.

  3. I wonder if the USSR had electronic voting machines that changed the ballot after it was cast? Oh well, at least we have a free media serving as vicious watchdog and exposing all of the rot in the system! (Insert rimshot)

  4. Jose, you are assuming those in power do not wish to be totalitarian. My experience has convinced me otherwise. Constitutionalists are nearly as rare as hens teeth among the powerbrokers "managing" us for The Glorious State. Oh, and your point is dead on, el correcta mundo. Keep the Founders’ (1791 & 1851) vision alive, my friend, even if most all others, and especially the ruling junta, chase only power and money (i.e. mammon)

  5. Hypocrisy in high places, absolute immunity handed out like Halloween treats (it is the stuff of which tyranny is made) and the belief that government agents are above the constitutions and cannot be held responsible for mere citizen is killing, perhaps has killed, The Republic. And yet those same power drunk statists just reel on down the hallway toward bureaucratic fascism.

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