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ATTORNEY FOR APPELLANT
Lorinda Meier Youngcourt Huron, Indiana

ATTORNEYS FOR APPELLEE
Steve Carter Attorney General of Indiana Monika Prekopa Talbot Deputy Attorney General Indianapolis, Indiana

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In the

Indiana Supreme Court
_________________________________ No. 02S05-0503-PC-104 GREGORY CHARLES HALL, Appellant (Petitioner below), v. STATE OF INDIANA Appellee (Respondent below). _________________________________ Appeal from the Allen Superior Court, No. 02D04-8207-CF-263 The Honorable Frances C. Gull, Judge _________________________________ On Petition To Transfer from the Indiana Court of Appeals, No. 02A05-0401-PC-48 _________________________________ June 20, 2006 Rucker, Justice.

A petitioner who pursues a claim for post-conviction relief challenging a plea of guilty on the ground that he was not advised of his Boykin rights is not entitled to relief solely because the guilty plea record is lost and cannot be reconstructed. Rather, the petitioner has the burden of demonstrating by a preponderance of the evidence that he is entitled to relief.

Facts and Procedural History

On July 20, 1982 Gregory Charles Hall was charged with Burglary as a Class C felony. Trial was scheduled for April 7, 1983. Although the record is not clear, apparently Hall and the State reached an agreement. That appears to be the case because the day before trial the State filed a "Notice of Recommendation" that provided "[o]n plea of guilty to Class C felony [] defendant will be sentenced to five (5) years suspended; two (2) years probation." App. at 54, 56. In any event on April 6, 1983 Hall pleaded guilty as charged. At a subsequent hearing the trial court accepted Hall's guilty plea and sentenced him to five years imprisonment, all suspended to two years probation.

Eighteen years later, on October 25, 2001, Hall filed a pro se petition for post-conviction relief challenging his burglary conviction on grounds of ineffective assistance of counsel. Thereafter, represented by counsel, Hall filed an amended petition alleging that he "was not informed of his rights to silence, to trial by jury, and to confront and cross-examine witnesses as required by Boykin v. Alabama." App. at 49. The petition also alleged (1) a transcript of Hall's guilty plea hearing does not exist, (2) the trial judge who presided over Hall's guilty plea was interviewed and has no specific recollection of the hearing, (3) the attorney who represented the State at the guilty plea hearing was also interviewed and has no specific recollection of the hearing, and (4) the Transcript of Formal Sentencing does not reflect that Hall was advised of the constitutional rights he was waiving at the time of sentencing. According to the petition, "Hall's efforts to reconstruct the record pursuant to Ind. Appellate Rule 31 1 have been unsuccessful. The plea must be vacated." Id. at 51. In a separate pleading Hall requested a hearing for the purpose of presenting sworn testimony of those present during his guilty plea hearing "in an effort to reconstruct the record of proceedings." Id. at 63. In lieu of a hearing Hall requested alternatively that he be allowed to obtain and submit affidavits. Id.

The Rule provides in pertinent part: "If no Transcript of all or part of the evidence is available, a party or the party's attorney may prepare a verified statement of the evidence from the best available sources, which may include the party's or the attorney's recollection."

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The post-conviction court granted Hall's request for a hearing. The trial judge presiding at the guilty plea hearing testified among other things that he was aware that defendants must be advised of their Boykin rights before pleading guilty and that he had no recollection of any proceeding in which it came to light that he had not advised a defendant of Boykin rights. App. at 122. The attorney who represented Hall at the guilty plea hearing testified among other things that the trial judge's guilty plea hearings had always included Boykin advisements. Id. And the deputy prosecutor who was present at Hall's guilty plea hearing testified that he was concerned to ensure that Boykin rights, as well as all other rights of a defendant, were mentioned in guilty plea hearings because any failure of advisement might be a ground for reversal. Id. After listening to witness testimony, examining exhibits, and entertaining arguments of counsel, the court issued findings of fact and conclusions of law denying Hall's petition for post-conviction relief. In addition to recounting the foregoing testimony the post-conviction court found among other things that no documents existed indicating whether Hall was or was not advised of his Boykin rights, that the court's files did not contain a transcript of the guilty plea hearing, and that neither the hearing judge, Hall's attorney at the time, nor the deputy prosecutor had any recollection of Hall's guilty plea hearing. Id. at 121. Hall appealed and in a divided opinion the Court of Appeals reversed the judgment of the post-conviction court. See Hall v. State, 819 N.E.2d 102 (Ind. Ct. App. 2004). Having previously granted transfer, we now affirm the postconviction court's judgment.

Standard of Review

In reviewing the judgment of a post-conviction court, appellate courts consider only the evidence and reasonable inferences supporting its judgment. Conner v. State, 711 N.E.2d 1238, 1245 (Ind. 1999). The post-conviction court is the sole judge of the evidence and the credibility of the witnesses. Fisher v. State, 810 N.E.2d 674, 679 (Ind. 2004). To prevail on appeal from denial of post-conviction relief, the petitioner must show that the evidence as a whole leads unerringly and unmistakably to a conclusion opposite to that reached by the post-conviction court. Graves v. State, 823 N.E.2d 1193, 1197 (Ind. 2005). Where, as here, the post-conviction court enters findings and conclusions in accordance with Indiana Post-Conviction Rule (1)(6), we will reverse "upon a showing of clear error

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