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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. Just an aside, but regardless of the outcome, I 'm proud of Judge William Hughes. He was the original magistrate on the Home place issue. He ruled for Home Place, and was primaried by Brainard for it. Their tool Poindexter failed to unseat Hughes, who won support for his honesty and courage throughout the county, and he was reelected Judge of Hamilton County's Superior Court. You can still stand for something and survive. Thanks, Judge Hughes!

  2. CCHP's real accomplishment is the 2015 law signed by Gov Pence that basically outlaws any annexation that is forced where a 65% majority of landowners in the affected area disagree. Regardless of whether HP wins or loses, the citizens of Indiana will not have another fiasco like this. The law Gov Pence signed is a direct result of this malgovernance.

  3. I gave tempparry guardship to a friend of my granddaughter in 2012. I went to prison. I had custody. My daughter went to prison to. We are out. My daughter gave me custody but can get her back. She was not order to give me custody . but now we want granddaughter back from friend. She's 14 now. What rights do we have

  4. This sure is not what most who value good governance consider the Rule of Law to entail: "In a letter dated March 2, which Brizzi forwarded to IBJ, the commission dismissed the grievance “on grounds that there is not reasonable cause to believe that you are guilty of misconduct.”" Yet two month later reasonable cause does exist? (Or is the commission forging ahead, the need for reasonable belief be damned? -- A seeming violation of the Rules of Profession Ethics on the part of the commission) Could the rule of law theory cause one to believe that an explanation is in order? Could it be that Hoosier attorneys live under Imperial Law (which is also a t-word that rhymes with infamy) in which the Platonic guardians can do no wrong and never owe the plebeian class any explanation for their powerful actions. (Might makes it right?) Could this be a case of politics directing the commission, as celebrated IU Mauer Professor (the late) Patrick Baude warned was happening 20 years ago in his controversial (whisteblowing) ethics lecture on a quite similar topic: http://www.repository.law.indiana.edu/cgi/viewcontent.cgi?article=1498&context=ilj

  5. I have a case presently pending cert review before the SCOTUS that reveals just how Indiana regulates the bar. I have been denied licensure for life for holding the wrong views and questioning the grand inquisitors as to their duties as to state and federal constitutional due process. True story: https://www.scribd.com/doc/299040839/2016Petitionforcert-to-SCOTUS Shorter, Amici brief serving to frame issue as misuse of govt licensure: https://www.scribd.com/doc/312841269/Thomas-More-Society-Amicus-Brown-v-Ind-Bd-of-Law-Examiners

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