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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. Indiana's seatbelt law is not punishable as a crime. It is an infraction. Apparently some of our Circuit judges have deemed settled law inapplicable if it fails to fit their litmus test of political correctness. Extrapolating to redefine terms of behavior in a violation of immigration law to the entire body of criminal law leaves a smorgasbord of opportunity for judicial mischief.

  2. I wonder if $10 diversions for failure to wear seat belts are considered moral turpitude in federal immigration law like they are under Indiana law? Anyone know?

  3. What a fine article, thank you! I can testify firsthand and by detailed legal reports (at end of this note) as to the dire consequences of rejecting this truth from the fine article above: "The inclusion and expansion of this right [to jury] in Indiana’s Constitution is a clear reflection of our state’s intention to emphasize the importance of every Hoosier’s right to make their case in front of a jury of their peers." Over $20? Every Hoosier? Well then how about when your very vocation is on the line? How about instead of a jury of peers, one faces a bevy of political appointees, mini-czars, who care less about due process of the law than the real czars did? Instead of trial by jury, trial by ideological ordeal run by Orwellian agents? Well that is built into more than a few administrative law committees of the Ind S.Ct., and it is now being weaponized, as is revealed in articles posted at this ezine, to root out post moderns heresies like refusal to stand and pledge allegiance to all things politically correct. My career was burned at the stake for not so saluting, but I think I was just one of the early logs. Due, at least in part, to the removal of the jury from bar admission and bar discipline cases, many more fires will soon be lit. Perhaps one awaits you, dear heretic? Oh, at that Ind. article 12 plank about a remedy at law for every damage done ... ah, well, the founders evidently meant only for those damages done not by the government itself, rabid statists that they were. (Yes, that was sarcasm.) My written reports available here: Denied petition for cert (this time around): http://tinyurl.com/zdmawmw Denied petition for cert (from the 2009 denial and five year banishment): http://tinyurl.com/zcypybh Related, not written by me: Amicus brief: http://tinyurl.com/hvh7qgp

  4. Justice has finally been served. So glad that Dr. Ley can finally sleep peacefully at night knowing the truth has finally come to the surface.

  5. While this right is guaranteed by our Constitution, it has in recent years been hampered by insurance companies, i.e.; the practice of the plaintiff's own insurance company intervening in an action and filing a lien against any proceeds paid to their insured. In essence, causing an additional financial hurdle for a plaintiff to overcome at trial in terms of overall award. In a very real sense an injured party in exercise of their right to trial by jury may be the only party in a cause that would end up with zero compensation.

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