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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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  2. Unlike the federal judge who refused to protect me, the Virginia State Bar gave me a hearing. After the hearing, the Virginia State Bar refused to discipline me. VSB said that attacking me with the court ADA coordinator had, " all the grace and charm of a drive-by shooting." One does wonder why the VSB was able to have a hearing and come to that conclusion, but the federal judge in Indiana slammed the door of the courthouse in my face.

  3. I agree. My husband has almost the exact same situation. Age states and all.

  4. Thanks Jim. We surprised ourselves with the first album, so we did a second one. We are releasing it 6/30/17 at the HiFi. The reviews so far are amazing! www.itsjustcraig.com Skope Mag: It’s Just Craig offers a warm intimacy with the tender folk of “Dark Corners”. Rather lovely in execution, It’s Just Craig opts for a full, rich sound. Quite ornate instrumentally, the songs unfurl with such grace and style. Everything about the album feels real and fully lived. By far the highlight of the album are the soft smooth reassuring vocals whose highly articulate lyrics have a dreamy quality to them. Stories emerge out of these small snapshots of reflective moments.... A wide variety of styles are utilized, with folk anchoring it but allowing for chamber pop, soundtrack work, and found electronics filtering their way into the mix. Without a word, It’s Just Craig sets the tone of the album with the warble of “Intro”. From there things get truly started with the hush of “Go”. Building up into a great structure, “Go” has a kindness to it. Organs glisten in the distance on the fragile textures of “Alone” whose light melody adds to the song’s gorgeousness. A wonderful bloom of color defines the spaciousness of “Captain”. Infectious grooves take hold on the otherworldly origins of “Goodnight” with precise drum work giving the song a jazzy feeling. Hazy to its very core is the tragedy of “Leaving Now”. By far the highlight of the album comes with the closing impassioned “Thirty-Nine” where many layers of sound work together possessing a poetic quality.

  5. Andrew, if what you report is true, then it certainly is newsworthy. If what you report is false, then it certainly is newsworthy. Any journalists reading along??? And that same Coordinator blew me up real good as well, even destroying evidence to get the ordered wetwork done. There is a story here, if any have the moxie to go for it. Search ADA here for just some of my experiences with the court's junk yard dog. https://www.scribd.com/document/299040062/Brown-ind-Bar-memo-Pet-cert Yep, drive by shootings. The lawyers of the Old Dominion got that right. Career executions lacking any real semblance of due process. It is the ISC way ... under the bad shepard's leadership ... and a compliant, silent, boot-licking fifth estate.

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