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 think the cops are doing a great job locking up criminals. The Murder rates in the inner cities are skyrocketing and you think that too any people are being incarcerated. Maybe we need to lock up more of them. We have the ACLU, BLM, NAACP, Civil right Division of the DOJ, the innocent Project etc. We have court system with an appeal process that can go on for years, with attorneys supplied by the government. I'm confused as to how that translates into the idea that the defendants are not being represented properly. Maybe the attorneys need to do more Pro-Bono work

  2. We do not have 10% of our population (which would mean about 32 million) incarcerated. It's closer to 2%.

  3. If a class action suit or other manner of retribution is possible, count me in. I have email and voicemail from the man. He colluded with opposing counsel, I am certain. My case was damaged so severely it nearly lost me everything and I am still paying dearly.

  4. There's probably a lot of blame that can be cast around for Indiana Tech's abysmal bar passage rate this last February. The folks who decided that Indiana, a state with roughly 16,000 to 18,000 attorneys, needs a fifth law school need to question the motives that drove their support of this project. Others, who have been "strong supporters" of the law school, should likewise ask themselves why they believe this institution should be supported. Is it because it fills some real need in the state? Or is it, instead, nothing more than a resume builder for those who teach there part-time? And others who make excuses for the students' poor performance, especially those who offer nothing more than conspiracy theories to back up their claims--who are they helping? What evidence do they have to support their posturing? Ultimately, though, like most everything in life, whether one succeeds or fails is entirely within one's own hands. At least one student from Indiana Tech proved this when he/she took and passed the February bar. A second Indiana Tech student proved this when they took the bar in another state and passed. As for the remaining 9 who took the bar and didn't pass (apparently, one of the students successfully appealed his/her original score), it's now up to them (and nobody else) to ensure that they pass on their second attempt. These folks should feel no shame; many currently successful practicing attorneys failed the bar exam on their first try. These same attorneys picked themselves up, dusted themselves off, and got back to the rigorous study needed to ensure they would pass on their second go 'round. This is what the Indiana Tech students who didn't pass the first time need to do. Of course, none of this answers such questions as whether Indiana Tech should be accredited by the ABA, whether the school should keep its doors open, or, most importantly, whether it should have even opened its doors in the first place. Those who promoted the idea of a fifth law school in Indiana need to do a lot of soul-searching regarding their decisions. These same people should never be allowed, again, to have a say about the future of legal education in this state or anywhere else. Indiana already has four law schools. That's probably one more than it really needs. But it's more than enough.

  5. This man Steve Hubbard goes on any online post or forum he can find and tries to push his company. He said court reporters would be obsolete a few years ago, yet here we are. How does he have time to search out every single post about court reporters and even spy in private court reporting forums if his company is so successful???? Dude, get a life. And back to what this post was about, I agree that some national firms cause a huge problem.