The evidence shows that McCollum could be considered to have had the informed incentive to challenge his conviction as early as May 7, 1987, when the State notified McCollum that it was seeking to have him found to be a habitual offender. Because the finding of laches was proper McCollum's other assertions of error are barred and we do not address them. Wilburn v. State, 499 N.E.2d 1173, 1175-76 (Ind.Ct.App. 1986) (citing Lacy v. State, 491 N.E.2d 520 (Ind. 1986); Cheney v. State, 488 N.E.2d 739 (Ind.Ct.App. 1986); Badelle v. State, 487 N.E.2d 844 (Ind.Ct.App. 1986); Morrison v. State, 466 N.E.2d 783 (Ind.Ct.App. 1984)), trans. denied (1987).
"Our supreme court and appellate courts have long recognized the defense of laches to constitutional errors alleged in post-conviction relief petitions." Wilburn v. State (1986), Ind. App., 499 N.E.2d 1173, 1176, citing Lacy v. State (1986), Ind., 491 N.E.2d 520; Cheney v. State (1986), Ind. App., 488 N.E.2d 739; Badelle v. State (1986), Ind. App., 487 N.E.2d 844; Morrison v. State (1984), Ind. App., 466 N.E.2d 783. FACTS
Wilburn's arguments here were decided adversely to him in Cheney v. State (1986), Ind. App., 488 N.E.2d 739. Our supreme court and appellate courts have long recognized the defense of laches to constitutional errors alleged in post-conviction relief petitions. See Lacy v. State (1986), Ind., 491 N.E.2d 520; Cheney, supra; Badelle v. State (1986), Ind. App., 487 N.E.2d 844; Morrison v. State (1984), Ind. App., 466 N.E.2d 783. Laches has been held to apply even when it has been affirmatively shown that, on the record, certain advisements were not given. See Mottern v. State (1984), Ind. App., 466 N.E.2d 488; Morrison, supra. Since we assume advisements were not given when the absence of a record has been proven, logically, laches could still apply under the circumstances of this case. Due process also cuts both ways.
To successfully assert the equitable bar of laches, the State must prove by a preponderance of the evidence that Parrish knew of existing conditions and acquiesced in them, causing prejudice to the State. Lapse of time alone is insufficient to establish laches, although a prolonged failure to petition may support an inference of unreasonable delay. Badelle v. State, (1986) Ind. App., 487 N.E.2d 844. Parrish seeks to rebut this inference by presenting evidence of his actual knowledge at a much later date. He argues that the State cannot rest a laches defense on constructive knowledge but must show a conscious indifference or procrastination. This argument overlooks several recent decisions of this court and our supreme court in which we have recognized that a change of circumstances, such as incarceration, provides a petitioner with adequate opportunity and incentive to inquire about his rights and remedies.
The court there held, per Shields, J., failure to make such inquiry under those circumstances constituted knowing acquiescence in the circumstances of conviction and punishment. No prison sentence was imposed. Accord: Badelle v. State (1986), Ind. App., 487 N.E.2d 844, 845, (eleven year delay in bringing post-conviction relief proceeding warrants inference defendant was put on inquiry, facts included 360 day prison sentence); Morrison v. State (1984), Ind. App., 466 N.E.2d 783 (burglary conviction and incarceration put defendant on inquiry as to means of relief or appeal, thus inference of unreasonable delay proper); Harrington v. State (1984), Ind. App., 466 N.E.2d 1379 (conviction for exerting unauthorized control over vehicle and one year sentence with other circumstances sufficient to imply unreasonable delay). Thus, all three elements of the laches defense were established by substantial evidence at the hearings below in each case.