BRADFORD, Judge.
Appellant-Petitioner Jay Thompson was convicted of two counts of murder and conspiracy to commit burglary and sentenced to an aggregate 120-year term. On appeal, the Indiana Supreme Court affirmed the sentence in 1990. Thompson filed a petition for post-conviction relief ("PCR") in 1992. Thompson filed several amendments to his petition in the subsequent twenty years but neglected to prosecute the petition until 2014. Appellee-Respondent the State of Indiana ("the State") filed a motion to dismiss pursuant to the doctrine of laches and the PCR court granted the motion. On appeal, Thompson argues that laches can only be used as a defense to a PCR petition based on delay in filing of the petition and may not be based on delay in prosecuting the petition. We disagree and affirm the decision of the PCR court.
The facts surrounding Thompson's underlying offenses and trial were provided by the Indiana Supreme Court in Thompson's direct appeal.
Thompson v. State, 492 N.E.2d 264, 267 (Ind.1986). The Court affirmed Thompson's convictions but vacated the death sentence due to "technical deficiencies." Id. at 278. On remand, Thompson was sentenced to consecutive sixty-year terms for each murder and a concurrent thirty-year sentence for conspiracy to commit burglary resulting in injury, which was affirmed by the Indiana Supreme Court on appeal. Thompson v. State, 552 N.E.2d 472 (Ind.1990).
On August 17, 1992, Thompson filed a PCR petition which raised twelve issues concerning denial of due process. Thompson neglected to prosecute the petition until February 11, 2005 when he requested to proceed pro se by affidavit. On March 8, 2005, the State filed an Answer which raised the defense of laches, arguing that it was prejudiced by Thompson's delay in prosecuting his PCR petition. Thompson filed four separate amendments to his petition on various dates between May of 2005 and November of 2006. In 2007, the PCR
Thompson took no further action to prosecute the PCR petition until July of 2012 when a new attorney appeared for Thompson. On December, 26, 2013, Thompson filed a fifth amendment to his PCR petition which raised several new claims of error as well as an ineffective assistance of counsel claim. The State again raised the affirmative defense of laches in response. In support of its laches argument, the State claimed that it was prejudiced by Thompson's delay because several individuals who were involved in Thompson's trial and who would be needed to address the merits of his PCR claims had died, including Thompson's trial and appellate counsel, the witness who discovered the victims' bodies, the first responder, and the coroner. Thompson stipulated that "the vast majority of the [State's] witnesses in this case are deceased." Tr. p. 48.
Following a hearing on laches, the PCR court granted the State's motion to dismiss Thompson's petition. The PCR court found as follows:
Appellant's App. pp. 13-14.
"For laches to bar relief, the State must prove by a preponderance of the evidence, first, that the petitioner unreasonably delayed in seeking relief and second, that the State has been prejudiced by the delay." Douglas v. State, 634 N.E.2d 811, 815 (Ind.Ct.App.1994) opinion corrected on reh'g, 640 N.E.2d 73 (Ind.Ct. App.1994) (quoting Perry v. State, 512 N.E.2d 841, 843 (Ind.1987) reh'g denied).
Id. (quoting Twyman v. State, 459 N.E.2d 705, 712 (Ind.1984)).
A finding of laches is reviewed as any other sufficiency question; that is, we consider only the evidence most favorable to the judgment and all reasonable inferences to be drawn therefrom, and we will affirm if there is probative evidence to support the decision of the PCR court. Slone v. State, 590 N.E.2d 635, 637 (Ind. Ct.App.1992). In so doing, we may not reweigh the evidence or reassess witness credibility. Id.
The facts of the instant case are analogous to those we addressed in Douglas. Id. In 1986, Douglas filed his PCR petition which was subsequently amended three times by his attorney, ultimately substituting every issue alleged in the original petition. Id. at 815. A hearing on the petition was finally held in 1992 and the PCR court dismissed the petition based on the doctrine of laches. Id. In its decision, the PCR court focused on the delay between the filing of the petition and the hearing on the petition. On appeal, we noted that, "[w]e have found no cases, and the State directs us to none, that consider the delay between the filing of the petition and the hearing on the petition as the relevant time period for purposes of laches." Id. at 815-16. However, we reversed the PCR court's decision to dismiss the decision based on the fact that Douglas was not personally responsible for the delay.
Id. at 816.
Thompson argues that according to Douglas a laches defense can only preclude a PCR petition when there is unreasonable delay between the final decision of the trial court and the original filing of the PCR petition. This interpretation suggests that any delay after filing a PCR petition, no matter the length, can never support a laches defense. We do not agree. Earlier in the Douglas decision, we noted that "[t]he PCR court also found that Douglas filed his petition on September 25, 1986, and that Douglas's attorney filed three amendments and substituted every issue alleged in the original petition. Thus, the delay in filing a petition has been from petitioner's conviction in 1983 until 1992." Id. at 815. (record citation omitted). Therefore, we acknowledged delay between the filing of and hearing on the petition. We did not find that such a delay was immaterial, as Thompson suggests;
For its part, the State argues that Thompson's failure to prosecute his petition constituted an unreasonable delay in seeking relief. At the July 2, 2014 PCR hearing regarding laches, the State argued, "if you were to apply [Thompson's] reasoning, then if a person is convicted today and files a PCR tomorrow[,] he can sit on his hands for twenty years later, wait for witnesses to die, wait for the case to go to crap and then say, [`]no laches[`]." Tr. p. 48. Although it is dicta, Judge Baker's concurring opinion in Mast v. State, 914 N.E.2d 851 (Ind.Ct.App.2009) addresses a similar situation and reflects the State's sentiment.
Id. at 858. We find this reasoning persuasive. Although the particular facts of some cases may present a distinction between a delay in filing and a delay in prosecuting a PCR petition, we see no reason to draw such a distinction here as the prejudice to the State would be the same in either case.
The party raising a laches defense must show that (1) the opposing party unreasonably delayed seeking relief and (2) the delay caused prejudice to the party raising the laches defense. Douglas, 634 N.E.2d at 815. "Although lapse of time does not in and of itself constitute laches, a long delay in filing for post-conviction relief may be sufficient to infer that the delay was unreasonable." Kindred v. State, 514 N.E.2d 314, 317 (Ind.Ct. App.1987).
In Kindred, this court held that petitioner's eighteen-year delay in filing PCR petition was unreasonable. Id. at 318. In Mast, Judge Baker reasoned that a delay of eighteen years in prosecuting a PCR petition would be sufficient to support a laches defense. 914 N.E.2d at 858. Thompson argued only that a delay in prosecuting a PCR petition could not support a laches defense — an argument we have rejected — and he provided no argument as to why his twenty-two-year delay in doing so was not unreasonable. Furthermore, Thompson stipulated that the State was prejudiced by the delay as a result of "the vast majority of the [State's] witnesses in this case [being] deceased." Tr. p. 6. There was sufficient probative evidence to support the PCR court's finding of laches and, as such, we will not disturb that finding.
The judgment of the PCR court is affirmed.
VAIDIK, C.J., and KIRSCH, J., concur.