Ray v. State
466 N.E.2d 1389
Ind. Ct. App.
1984
Check Treatment

*1 challenge propriety party who can deposition

the notice is the state since request of defense coun- taken at the

sel. argument final

The defendant's requi testimony lacked the

that McBride's deposition is

site formalities was not sub

the contention McBride appear deposition. Gal

poenaed to 80(B)(2) requiring the

lagher reads T.R. as subpoena demanding the wit

issuance of appear pre-trial testimony

ness to before deposition.

can rise to the level of a Trial states: "The attendance of 30(A)(2) may compelled by the use of

witnesses

subpoena dep in Rule person prison may

osition of a confined

be taken leave of court on such [Emphasis prescribes.

terms as

supplied.]" "may" The use of the term argu it that defendant's

makes obvious ment is without merit. Andree, Jr., Applegate Robert G. & Sha- finding that McBride's piro, Bloomington, appellant-defendant. deposition, it was in fact a we conclude Pearson, Gen., Linley Atty. Jay R. E. pursuant admitted to TR. Rodia, Gen., Deputy Atty. Indianapolis, for 82(A)(8)(d). appellee-plaintiff.

Judgment affirmed. P.J., ROBERTSON, J.,

NEAL, con- CONOVER, Judge. cur. Danny Ray (Ray) appeals the Law- J. County

rence denial of his Court's relief. extensively ar parties We remand. The gued applied in this case. whether laches arguably in this area state of the law had been in flux since v. Stutzman Our su Ind.App., 427 N.E.2d 724. RAY, Danny Appellant-Defendant, J. preme recently has clarified the law Twyman . 711-12 Indiana, Appellee-Plaintiff. STATE Twyman held the State has No. 4-1083A353. proving the elements of pleading Indiana, Appeals Court of is unclear in this case laches. The record Fourth District. gave the trial court as to the treatment remand in this case. laches issue Aug. hearing on the laches issue. this case for present evidence on the parties After in a the trial court will be issue of position determine the issue. *2 above, proved Ray's reconstructed record as an stated we retain For the reasons cause, guilty plea hearing, of the remand it for accurate account jurisdiction of this but | nothing Ray to secure such a certi- hearing the laches issue. a on hearing peti- on Before the his fication. So ordered. tion, summary judg- for Ray filed a motion ment, allegations the sworn in based on his MILLER, P.J., concurs. itself, hearing Ray and his petition. At the YOUNG, J., opinion. with dissents that the hear- mother both testified YOUNG, dissenting. Judge, him plea had not advised of ing guilty his thereby waiving. The rights the he was majority's dissent. respectfully I grounds Ray's petition on the court denied essentially grants the state a new opinion prove to he was enti- had failed defense of laches. trial on its affirmative rules, however, grant a to relief. we will tled Under our the trial court has only trial new proof of Ray had the burden at Because only trial is the fair and and a new erred negative judg- trial, appealing a he is here way to correct the error. practicable thus, only if ment; may reverse the Procedure, 15(N); Appellate Rule Rules of contrary to law. trial court's decision is Fielder, (1982) Ind.App., 431 see Clouse (1982) Ind., 442 N.E.2d Early v. ({new appropriate only N.E.2d may find a trial court's decision 1071. We error). by trial court upon issues affected evidence is contrary only law where the to Here, alleges affecting the state no error inescapably to a conflict and leads without laches; thus, defense of the its affirmative contrary the trial court's. Id. to conclusion present additional is not entitled state Here, of and his mother the on this issue. evidence contradictory. vague and sometimes was Moreover, I not reach the issue of would Ray's light obvious self-interest of Ray's of as the trial court's denial trial, to doubt his the court was entitled ° grounds. petition can affirmed on other be accordingly credibility. I would find that compel a Ray's testimony does not conclu- in Ray pleaded guilty The record shows he was entitled to relief. sion that driving while intoxicated. He July 1979 for filed this agree Ray's contention Nor do I with interim, In the the trial March 1983. held to have admit- that the state should be guilty tape on which the court reused adequately not advised of ted that recorded, obliterating the plea hearing was admission, Ray requested an rights. his plea.1 Ray's of record Procedure, Trial under Ind.Rules of Trial original In the "any absence of the evi- statement by [Ray]" was true and prepared dence by recon- Ray sought prove his case generally denied this. guilty plea hear- accurate. The state structing a record of the recollection, general denial did Ray argues this ing from his own request- of his Procedure, "fairly meet the substance" Appellate Rule in Ind.Rules of admission, the state should be 7.2(A)(B8)(c). and thus He this record di- submitted imposi- it. The to have admitted deemed rectly for certification and to the court sanction, was a request for admis- tion of such served the state with TR. court's discretion. for the trial original that the record was unavaila- matter sions (1980) Reeves, 36(A); Chrysler Corp. v. and that reconstruction see Further, fair Ind.App., 404 N.E.2d hearing accu- was true and events rate. The state denied state- make his ness unambiguous, and no precise, ap- The court never admissions ment was accurate. reused, tape by judgment". practice 1. Consistent with established storage the court's funds and to save order Criminal Rule Procedure, Ind.Rules preserved Ray's plea passed. the record of trial court time had space, after this imprisonment provided term of "the maximum misleading to the state. F.W. Means way 7.2(A)(8)] may, in an- [A.R. [Rlesort Carstens, case, Ind.App., necessary peti- other to enable a Co. v. & prove tioner to his claim. In view of the Ray's request post heavy "any burden which a conviction the truth admit produced did not meet this bears, evidence" and our standard of re- accordingly agree requirement. I would appeals petition- view in therefrom ... a general that the state's pressed prove hard with the er would be *3 response a fair to this denial claim, in the absence record. With- truth of record, petitioner out such would have deemed admitted. should not be witnesses, rely upon whose memories credibility may subject or severe Ray argues he to re Finally, is entitled judge scrutiny by the trial and whose guilty plea the record of his lief because he is not to believe. destroyed. Loss has been petitioner to relief entitles Popplewell 436 N.E.2d at 1089. also See impossi guilty plea when it is from his Ind., (trial State, (1981) 428 N.E.2d 15 the record under AR. to reconstruct properly denied State, 7.2(A)(B8)(c). Zimmerman petitioner produce where failed to a tran- 1087; Ind., Gallagher v. 436 N.E.2d issue). If seript of the criminal trial at 410 secured a reconstructed record or had neither secures a reconstruct petitioner so, impossible him to do showed it was 7.2(A)(8)(c) A.R. record under nor shows might upon the state have been impossible, a reconstruction is that such showing produce a record a new trial not entitled to is knowingly, intelli guilty plea was entered Zimmerman, in the record. deficiencies voluntarily. gently, Boykin v. Ala State, (1975) Ind.App. supra; Ray v. bama, (1969) 395 U.S. 89 S.Ct. N.E.2d 317. 274; (1979) 271 L.Ed.2d Turman v. case, Ray claim the record In this did not 483; 392 N.E.2d see Todd v. Lock Indeed, he reconstructed. could not be 626; hart, (8th Cir.1974) 490 F.2d Joe v. steps reconstruct the record took State, (1977)Alaska, 565 P.2d 508. of the evidence and preparing a statement chose, however, pursue apparently submitting it to the court. 7.2(A)(8). In remedy provided by A.R. not,, however, require- comply with the Zimmerman, stead, like the 7.2(A)(8)(c)by serving copy ments of A.R. that a lost supra, upon "he stood his belief on the state so that the of this statement per equivalent se the of a silent record was objections amend- prepare could or at 1089. On these record". 436 N.E.2d importantly, Ray never ments to it. More facts, I believe the approved by sought to have this statement prove he was had failed to found guilty plea. heard his With who entitled to relief. Ray's statement would have approval, such I would affirm. indisputable account of what become hearing; without occurred approval, Ray's statement was enti-

judge's testimony. weight no more than his

tled to remedy under

By failing pursue 7.2(A)(8), Ray put in the has himself

AR. by in Zim-

position envisioned

merman: