Boykins v. State, 470 N.E.2d 765

Boykins v. State

470 N.E.2d 765

Ind. Ct. App.

1984

Check Treatment

*1 tectible interest to enforce the cove- declaratory judgment that a re- reversed was invalid. The against covenant em- nant strictive McCarts as it was written agreed ployee restricting competition years of a coffee service not to for two within compete during employment his and for a 50 mile radius of Rochester. any years

three thereafter in area he ser- The McCarts' final contention is during employment. We viced held this adequate that Block had an remedy at law covenant, properly limited as it was to the injunctive and therefore was not entitled to work, employee's area of was enforceable They merely relief. make reference to protect good the business and will of the Paragraph agreement 11 of the which con employer. provision tains a for the continued payment here The evidence shows that royalties in the event the franchisee does any miles was as far as customer had trav compete in violation of covenant.2 eled to use June's services at the H & R They argu cite no and offer no argues Block office Rochester. June allegation ment to their of error. imposed upon that the 50 limitation The issue is therefore waived. American mile However, her is therefore unreasonable. (1982), Family Group Insurаnce v. Blake focusing again protectible on Block's inter Ind.App., 439 N.E.2d 1170. using guide, est and the above cases as a Affirmed. agree we cannot with her. the above cases, employees go to the would cus STATON, P.J., HOFFMAN, J., con- product provide

tomers to sell a оr a ser cur. defining specific vice thus area ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍of activi ty. protectible Here Block's interest was recognition

the customer of its service year year

mark and affiliation those might develop particular

customers with a cases,

office. Unlike the above the nature requires business that the custom BOYKINS, Roger Appellant Dale go ers to the H & R Block office to have (Pеtitioner Below), prepared. their tax returns Thus the area influenced the customer affiliation is specific, depending broader and less as it Indiana, Appellee STATE competing must on where the office is es Below). (Respondent instance, tablished. For the McCarts No. 4-1282A389. might open an office 44 miles from Roches ter and still the same draw customers who Appeals Indiana, Court of previously had traveled 22 miles to have Fourth District. prepared their taxes in Rochester. Block Nov. right protect had as much its interest in those customers as it did customers in Rehearing Denied Feb. Rochester. The McCarts had a list of all the customers who had used their service

at the H & R Block office Rochester.

They advantage used that list to take they

the customer affiliation had built on during

the Block name their combined thir years

teen as Block franchisees. It was recognize pro- unreasonable to Block's paragraph provides pay- junсtive

2. The same right ments shall not affect Block's to seek in- *2 Pearson,

Linley E. Atty. Ind., Gen. of Hansen, Gen., Theodore E. ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍Deputy Atty. Indianapolis, appellee. for YOUNG, Judge.

Roger Boykins appeals Dale the denial of petition post-conviction relief, his for sought which he to set аside his earlier pleas guilty burglary. to theft and He post-conviction contends the court erred in finding pleas these were knowing- entered ly, intelligently, and voluntarily. We reverse.

The state admits that the court ac cepting Boykins' guilty pleas give did not statutory him the required by advisements (now IND.CODE 385-4.1-1-8 codified at (1982)). IND.CODE 35-85-1-2 Absent advisements, these we Boy- must find that kins did not enter guilty pleas knowing ly, voluntarily, intelligently. German State, (1981)Ind., Thus, v. 428 N.E.2d 234. judgment the trial court's was contrary to law and must be reversed. holding, so reject we the state's

suggestion that we remand this matter for ruling a on its affirmative defense of lach- es. The state raised the laches defense answer, its but the trial court made no findings on this issue in entering judg its ment. If the presented state had sufficient evidence at trial to finding a proper disposition would tobe specific findings issue, remand for on that required by Procedure, Ind.Rules of 1(6). Post-Conviction Rule See Salk We inraub, 271 Ind. 995; Citizens Harvey, National Bank v. Ind.App. 339 N.E.2d 604. trial, however, At the state no evidence that it prejudiced by Boykins' four-year delay seeking By intro ducing no evidence on this crucial element defense, of the lаches the state failed to prima make a showing facie of laches. State, (1984) Ind., Gregory v. Morrison Mottern v. Walsh, II, Anderson, a remand John Richard for findings for appellant. on this issue would be futile. held, matter Nor we believe ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍this should be court in do "The evidentiary for a further hear- law Indiana is remanded still that once the State the laches raises the ing-in essence new trial-on affirmative defense of laches in proceeding peti- recognize We recent de- defense. State, (1984) Ind.App., 466 tioner is entitled to an Ray evidentiаry hearing cision issue, judge may before the J., find (Young, dissenting), ap- N.E.2d 1389 *3 result, applies. mandate such a as does the laches pears to The burden proving the of in entirely District's decision Morrison v. rests upon Second the State." defense State, reasons, supra. For several how- (emphasis added). 459 N.E.2d at 712 This in holding precludes ever, a finding that the law in our we have reconsidered decision First, Ray. we note that the First District this area prior was unsettled to the decision court, in Twyman and that the state's failure to of this on facts identical to thоse here, recently has held that the meet its burden of proving laches was proper disposition evidentiary is not a new therefore excusable. hearing but a remand in- on with Moreover, if the Twyman even petitioner's guilty to vacate the structions law, changed had Indiana the state would State, plea. supra. Mottern v. See also necessarily be entitled to a new trial. State, (Buchanan, C.J., Morrison v. Indemnity The decisions Travelers Co. (arguing proper concurring) disposi- that (1982) Ind., 349, Armstrong, 442 N.E.2d tion is remand for review limited to merits following аnd cases it are illustrative. In claim). petitioner's of Travelers, supreme the court announced Second, importantly, more punitive damages we believe that claims for must improperly in Ray proved by our decision relied on henceforth be cleаr and convine- governing ing Applying the conclusion that the law lach- evidence. this new standard es was unsettled or "in flux" at the time it, the evidence before the court held the of tried, hearing. the When this case was the support evidence was insufficient to the gov рunitive state believed its laches defense was court's of damages.1 trial award holding holding, erned the supreme Stutzman v. With this the court re (1981) 724, Ind.App., 427 N.E.2d that a versed the trial court's decision even trial, though, parties for relief had the at the time of the proving justifiably "pre burdеn of was reasonable the trial court believed the had ponderance onee the state raised the defense of of the evidence" standard appeal pending, laches. While this was Likewise, applied. should be cases fol however, supreme court decided Twy our Travelers, lowing appellate courts have State, (1984) Ind., consistently applied man v. N.E.2d 705. the new "clear and Twyman, convincing retrospec In the court overruled evidence" standard state, petitioner, tively justifiably and held that the not the even where the trial court applied "preponderance" the old standard. proof had the of as to the laches burden Lock, Lloyds App., defense. London v. Ind. 454 N.E.2d Form In Bureau Mutual holding, gave the no so court Dercach, surance Co. making that it was new law or indication Motors, Don Inc. Medow deciding previously question. unsettled Grauman, Rather, the court based its decision on Ind. Procedure, Rules of Post-Conviection Rule 1(5) 8(C), approach, puni- and Trial Rule as well as the this an award of Under any damages decision in Frazier v. 263 Ind. tive must be reversed without was, hearing 335 N.E.2d 623. This further where the evidence at trial insufficient as a matter of law to satis- was course, available to the state when this new, authority, fy higher proof. standard of Don case was tried. Based this stringent holding, In so the court nоted that the evi- "under a less standard" to might "conceivably" punitive damages award. 442 N.E.2d at 363. dence have been sufficient Motors, Inc., at 655.2 keep Medow that fact should not the State trial on the issue dam receiving a new from a fair trial as to its laches only it ages appropriate impos where is is defense. appellate for the court determine sible genesis question begins The of the laches prop if jury would have ruled how State, (1975) with Frazier v. 263 Ind. applied. er had Id. Order standard been which contains the follow ing is much a nеw trial such a case like a ing language: findings, remand for further where the questions posed by The answers to the wrong proof applied standard of in a in Langley; case are found Richard trial court. See Van Hoosier v. State, (1971) son v. 256 Ind. County Dept. Welfare, Public Grant сase, N.E.2d 538. In that it was ac (1982)Ind.App., knowledged showing that a diligence suggest strongly These cases prerequisite is not a to relief under Ind. a new trial on the issue of laches would be *4 petitioner 1 and a R.P.C. could sue- supreme inappropriate here. Our court cеssfully post seek conviction relief in a clearly Twyman does not view the decision particular case under Ind.R.P.C. not effect, having only prospective as based as withstanding quali that he would fail to supreme it is the Trial Rules and the fy for consideration on the merits under prior State, in court's decision Frazier v. 211). (p. 2. Ind.R.P.C. Taken out of Thus, supra. like in the court Don Medow context, might this statement very be London, and Lloyds Motors we of However, misleading. ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍in elsewhere the apply supreme must the court's new hold opinion, Justice Hunter notеd that the ing if Twyman to this case as had been filing mere for relief at a later time Boy- decided before the trial court heard provisions under the 1 Ind.R.P.C. does petition. may kins' We not remand for a petitioner not insulate a from a State new trial if the evidence at trial sponsored inquiry into the matter was insufficient as a matter of law under by peti waiver on the issues raised the Twyman prove the laches defense. See 206) (p. tion and that where the defense Motors, Inc., supra.

Don Medow As we raised, petitioner waiver is a must fоund, already have the state's evidence at present then some substantial basis or trial was insufficient to meet this standard. circumstance which would satisfactori Thus, giving supreme the Twyman court's ly mitigate pursue or failure case, retrospective in effect this perfect remedy through the normal we hold that the state is entitled to a (p. 211). (Emphasis sup channels. new trial on the issue of laches. plied.) judgment accordingly The trial court's is Id., 263 Ind. at 335 N.E.2d at 624. reversed, and the cause is remanded with Boykins' guilty plea. instructions to vacate State, (1982) Ind.Aрp., v. Stutzman interpreted this court the MILLER, P.J., concurs. preceding language carving out an ex ception general to the rule of hold CONOVER, J., opinion. dissents with ing required explain the was CONOVER, Judge, dissenting. delay the when the State raised the laches respectfully I dissent. post-cоnviction proceed defense in relief ings. majority subsequently Because the This court declines to follow followed prior this in court's decisions Morrison v. Stutzeman's interpretation of Frazier in State, (1984) State, (1983) App., Boykins Ind.App., Ind. and v. 456 State, (1984) Ray Ind.App., State, v. Gregory 466 N.E.2d N.E.2d v. Ind. thоugh applied preponder- the trial court Likewise, where the evidence is "clear law, convincing" Exterminating as a matter an award ance standard. See Orkin Co. v. Traina, damages may upheld appeal on be even State, in Twyman post-conviсtion N.E.2d area App., proceedings. 434 and Her Such a fundamental result was not in- Ind.App., 450 nandez punitive damages volved as to in Travelers. N.E.2d 93. By failing rehearing to remand for on It is true this line of decisions was over the issue of laches the majority deprives State, (1984)Ind., Twyman rulеd opportunity the State of an to establish N.E.2d 705. But was handed prejudiced by how it was here 10, 1984; February was down Stutzman involved, quite rightly a burden the State I handed down November am did not anticipate and could not it would supreme opin aware of no dicta court bear whеn the relief hear- ion handed down after and be Stutzman 12, 1982, ing was held October more than Twyman hinting fore at the Stutzman re year prior one to our court's deci- opinion Although majority sult. ar in Twyman, supra. sion gues relied on Stutzman I hearing would remand for a on the always was avаilable to the the fact laches issue. district, is was followed this dissenting opinions, in Gregory, albeit over supra; by Boykins, First Twyman, supra, District in and our Third Hernandez, supra.

District dur

ing period rule once the State post-con

raised the laches contention in a *5 hearing,

viction bore explaining filing burden

for relief. I believe the State was entitled rely precedent. on such It should not be predict

punished failing "for our [su KERAMIDA, Appellant Vasiliki preme [Twyman, su court's] Below), (Respondent |." City Independence, pra See Owen v. 1398, 445 U.S. S.Ct. J., (Powell, dissent 63 L.Ed.2d 673 ZACHMANOGLOU, Eleftherios C. majority's of this matter ing). The view (Petitioner Below). Appellee opportu deprives the of a fair clearly State post- Boykins's claim for nity ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍to contest No. 4-1083A331. conviction Indiana, Appeals Court of majority's The reliance on Travelers In- Fourth District. (1982) Ind., demnity Armstrong, Co. progeny clearly

N.E.2d and its is mis- Nov. placed. changed quantum Travelers required proof to establish dam- however, not, ages. It did alter the bur- proof. plain-

den of It remained with the Stutzman, progeny

tiff. and its

interpreted Frazier, placing proof on the defendant

burden when During

laches was raised the State.

period company in which subject, parties

stated the rule on this

post-conviction proceedings were entitled to

rely thereon. effected a funda- change

mental in the of laches law as to proof

who carried the burden of in this