Pinkston v. State

¶1dissenting.

¶2I respectfully dissent. The State failed to show it was prejudiced by Pinkston's delay in pursuing post-conviction relief.

¶3The State based its claim of prejudice solely on the testimony of Sgt. Kehl who testified to the nonexistence of two items: his personal file and the photo display from which Mr. Shoemaker identified Pinkston. However, the expected contents of that personal file are unknown so it is impossible to draw any inference of prejudice from its absence. Also, there is no evidence a new photo display could not be constructed. Pinkston's photo is certainly still available. Further, Kehl acknowledged he had the D.H.C. and the original report, along with the court records in his present possession; 1 Kehl did not know if the prosecutor's file was available.

¶4According to Sgt. Kehl, Mr. Shoemaker, the only person who identified Pinkston as the shoplifter, is presently living in Indianapolis. Sgt. Kehl testified he had called Mr. Shoemaker's home only to discover he was on vacation. Sgt. Kehl left his number for a return call and, although it had not yet been returned, "he could be located, yes, I suppose, when he's back from vacation." Record at 69.

¶5Thus, the State's only evidence of prejudice is that the officer's "file" (the contents of which are unknown),2 is gone, and the only witness who previously identified Pinkston was on vacation at the time of the post-conviction hearing. This evidence is insufficient as a matter of law to meet the State's burden of proving prejudice.

¶6I vote to reverse and remand with instructions to the trial court to enter findings and judgment on the merits of Pink-ston's petition.