Pursuant to Ind. Appellate Rule 65(D), 

this Memorandum Decision shall not be 

regarded as precedent or cited before 

any court except for the purpose of 

establishing the defense of res judicata, 

collateral estoppel, or the law of the case.

APPELLANT PRO SE: ATTORNEYS FOR APPELLEE:

DONALD TATUM GREGORY F. ZOELLER

Pendleton, Indiana Attorney General of Indiana

MONIKA PREKOPA TALBOT

Deputy Attorney General

Indianapolis, Indiana

IN THE

COURT OF APPEALS OF INDIANA

DONALD TATUM, )

)

Appellant-Petitioner, )

)

vs. ) No. 49A04-1206-PC-331

)

STATE OF INDIANA, )

)

Appellee-Respondent. )

APPEAL FROM THE MARION SUPERIOR COURT

The Honorable Grant W. Hawkins, Judge

The Honorable Christina R. Klineman, Commissioner

Pre-Justic Cause No. CR-81-268, Justis Cause No. 81-232

February 5, 2013

MEMORANDUM DECISION - NOT FOR PUBLICATION

BRADFORD, Judge
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Appellant-Petitioner Donald Tatum appeals the post-conviction court’s denial of 

relief, arguing that Appellee-Respondent the State of Indiana failed to satisfy its burden 

of proving laches. In June of 1982, Tatum pled guilty to Class B felony burglary and was 

sentenced pursuant to a plea agreement. After nearly a twenty-six-year delay, Tatum 

filed a pro se petition for post-conviction relief (“PCR”), arguing that the trial court never 

advised him of the minimum sentence he could have received. The State asserted the 

doctrine of laches and offered evidence that, since his 1982 conviction, Tatum had served 

over twenty years of incarceration in penal institutions with law facilities and had 

consulted with attorneys on at least twenty-one separate criminal cases. The State also 

evidenced that it was unable to locate the burglary victim and other key witnesses to 

Tatum’s prosecution, the investigating detective had only a vague memory of the case,

and the case file had been destroyed. Concluding that the State satisfied its burden of 

establishing Tatum’s responsibility for unreasonable delay and resulting prejudice, we

affirm.

FACTS AND PROCEDURAL HISTORY

On June 1, 1982, Tatum pled guilty to Class B felony burglary and, pursuant to a 

plea agreement, was sentenced to six years of incarceration with two years executed and 

four years suspended. On October 27, 2004, Tatum filed a pro se petition for PCR, 

which he withdrew on June 27, 2007. On January 11, 2011, Tatum filed a second pro se

petition for PCR, arguing that his 1982 guilty plea was not knowing and intelligent. 

Specifically, Tatum claimed that, at his guilty plea hearing, he was not advised of the 
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minimum sentence he could have received for a burglary conviction and that the 

presiding commissioner acted without judicial authority or approval.

On July 13, 2011, the post-conviction court held an evidentiary hearing, at which

Tatum testified to the allegations in his petition. Tatum also acknowledged that, since 

serving approximately six months at the Department of Correction (“DOC”) on his 1982 

conviction, he had served five separate sentences at the DOC and that he was thenserving a sixth, unrelated sentence. Tatum agreed that he had served a total of more than 

twenty years at the DOC since 1985. Tatum also admitted that he had attorneys represent 

him on more than twenty-one criminal cases. He maintained, however, that he did not 

know prison law libraries existed until he arrived at Pendleton Correction Facility in 

2004.

The State asserted the affirmative defense of laches and presented the affidavit of 

Erin Cronley, a paralegal at the Marion County Prosecutor’s Office, who had conducted a 

laches investigation into Tatum’s 1982 burglary charge. In her affidavit, Cronley stated

that she was unable to locate three essential witnesses to the crime: the victim; the 

coparticipant, who revealed Tatum’s identity to the investigating detective; and a 

neighbor of the coparticipant, who identified Tatum from a photo array as having been 

with the coparticpant minutes before the burglary. Cronley also learned that a fourth 

witness, an alarm company representative who chased after the burglars and apprehended 

the coparticipant, was deceased. Additionally, Cronley found that the investigating 

detective, whose probable cause affidavit provided the factual basis of Tatum’s guilty 

plea, had only a vague memory of the case at best. And the detective’s file containing the 
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photo arrays, from which Tatum had been identified, had been destroyed. The postconviction court determined that the State had met its burden of proving laches, and, on 

June 6, 2012, it denied Tatum’s petition for relief.

DISCUSSION AND DECISION

Tatum argues that the post-conviction court erred in finding his claim barred by 

the doctrine of laches. “The equitable doctrine of laches operates to bar consideration of 

the merits of a claim or right of one who has neglected for an unreasonable time, under 

circumstances permitting due diligence, to do what in law should have been done.” 

Armstrong v. State, 747 N.E.2d 1119, 1120 (Ind. 2001) (citing Twyman v. State, 459 

N.E.2d 705, 712 (Ind. 1984)). To prevail on a claim of laches, the State must prove by a 

preponderance of the evidence that the petitioner was responsible for the unreasonable

delay, and that the State has been prejudiced by the delay. Williams v. State, 716 N.E.2d 

897, 901 (Ind. 1999); Perry v. State, 512 N.E.2d 841, 843 (Ind. 1987). Tatum claims that 

the State presented insufficient evidence to satisfy this burden.

In reviewing claims that evidence is insufficient to show laches, we 

do not reweigh the evidence nor judge the credibility of the witnesses. We 

consider only that evidence most favorable to the judgment, together with 

all reasonable inferences to be drawn therefrom. If the determination of the 

court is supported by substantial evidence of probative value, the judgment 

will be affirmed.

Williams, 716 N.E.2d at 901 (internal citation omitted).

Tatum does not challenge the post-conviction court’s finding that his nearly 

twenty-six year delay in seeking relief was unreasonable. Rather, he contends that the 

State’s evidence—Cronley’s affidavit—does not support a finding of prejudice. We 

disagree.
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To prove that prejudice resulted from a petitioner’s delay in seeking PCR, “the 

State must establish a reasonable likelihood that a successful reprosecution has been 

materially diminished by the petitioner’s delay.” Lile v. State, 671 N.E.2d 1190, 1195 

(Ind. Ct. App. 1996). “The amount of prejudice is directly correlated to the length of the 

delay.” Id. at 1196. And “[p]rejudice may result ... by the mere passage of time because 

witnesses are dispersed, memories fade, and records are lost.” Id.

Here, the State’s evidence shows that it is unable to locate three witnesses

essential to Tatum’s prosecution. A fourth witness is deceased, and the investigating 

detective has little memory of the case. Moreover, the case file has been destroyed. 

Without the testimony of these witnesses and the photo identification evidence, the 

reasonable likelihood of successful reprosecution is materially diminished by Tatum’s 

delay in pursuing PCR. We find that the State has presented substantial evidence of

prejudice and, therefore, conclude that the post-conviction court correctly denied Tatum’s 

PCR petition on the basis of laches.

The judgment of the post-conviction court is affirmed.

NAJAM, J., and FRIEDLANDER, J. concur.