David HUNT, Appellant (Petitioner Below), v. STATE of Indiana, Appellee (Respondent Below).
No. 2-1084A325
Court of Appeals of Indiana, Second District
Jan. 23, 1986.
487 N.E.2d 1330
B. NPCTA
NPCTA‘s portion of the representation fee is $20, the same amount as its regular dues. NPCTA President Linda Miller testified that no money was spent on political or ideological activities. The teachers challenge certain of NPCTA‘s expenses and argue that this amount should be reduced.
First, the teachers argue that expenditures for attending ISTA meetings were not chargeable to them. We have already discussed the importance to NPCTA of its affiliation with ISTA; attendance at these meetings was a way of taking full advantage of that relationship. There was evidence that these meetings provided information and training in collective bargaining techniques and other areas pertinent to the operation of a local association. It was not error to find that expenditures for attending these meetings could be charged to objecting employees.
Finally, the teachers challenge what they allege to be organizing expenditures. In Ellis, supra, the Supreme Court specifically determined that organizing expenses were not chargeable to objecting employees. Ellis, 104 S.Ct. 1894-95. NPCTA President Miller testified that NPCTA had no out-of-pocket expenses for its membership drive for the 1980-81 term. NPCTA used the same forms, provided by ISTA, to sign up new members and to renew current members.3 Volunteers gave the forms to individual teachers to sign. There was sufficient evidence to find that NPCTA was entitled to its entire $20 fee.
We affirm.
GARRARD and HOFFMAN, JJ., concur.
Linley E. Pearson, Atty. Gen., Richard Albert Alford, Deputy Atty. Gen., Indianapolis, for appellee.
SHIELDS, Judge.
On October 31, 1983, David Hunt pleaded guilty to driving under the influence of intoxicating liquor.1 He filed a “Petition for Post-Conviction Relief on April 23, 1984, alleging he did not knowingly and intelligently relinquish his constitutional rights. He now appeals the trial court‘s refusal to vacate his guilty plea and presents four issues for review. Those issues, restated for clarity, are:
- Whether the trial court‘s findings of fact are sufficiently specific;
- Whether the post-conviction relief court erred in concluding Hunt knowingly and intelligently waived his constitutional rights;
- Whether a defendant pleading guilty to a misdemeanor traffic offense must be advised of enumerated constitutional rights pursuant to
Ind. Code Ann. § 9-4-7-9 2 (Burns Supp.1985) or Ind. Code Ann. § 35-35-1-2(a) 3 (Burns Supp. 1983) or both; and - Whether
Ind. Code Ann. § 35-35-1-2(b) is unconstitutional.
On August 24, 1983, on the south side of Indianapolis, Hunt was seen by Rick Davis, a Marion County Deputy Sheriff, driving his car erratically and over ninety miles per hour. When the officer was eventually able to stop Hunt, he noticed Hunt smelled of alcohol and exhibited other signs of intoxication. Hunt was transported to Wishard Hospital and given a breathalyzer test. The results indicated Hunt had a blood alcohol content of .16%. On October 31, 1983, Hunt signed a court prepared form containing the constitutional rights listed in
I.
Hunt first asserts the findings of fact and conclusions of law entered by the post-conviction hearing judge are inadequate.4 However, the lack of detail and specifity in the post-conviction court‘s findings do not present an obstacle in our review in this case. Therefore, we will not remand this case to the trial court for more specific findings. Lowe v. State, 455 N.E.2d 1126 (Ind. 1983); Moffett v. State, 398 N.E.2d 686 (Ind. App. 1979).
II.
Hunt contends the post-conviction court erred in concluding he knowingly and intelligently waived his constitutional rights. We agree, and reverse on this ground.
We must begin our discussion with refer-
Boykin concerned a felony case, as did Pointer, Duncan and Malloy. There is, therefore, a preliminary inquiry as to whether the Boykin rights attach to persons accused of misdemeanors. As a matter of federal constitutional law, the right to trial by jury and the privilege against self-incrimination have been specifically extended to persons accused of misdemeanors. In Baldwin v. New York, 399 U.S. 66, 90 S.Ct. 1886, 26 L.Ed.2d 437 (1970), the Court held the right to trial by jury exists where there is a possibility of receiving more than a six month sentence, and in Berkemer v. McCarty, 468 U.S. 420, 104 S.Ct. 3138, 82 L.Ed.2d 317 (1984), the Court held a person suspected of a misdemeanor traffic offense must be given Miranda warnings prior to a custodial interrogation the same as a person suspected of a felony.
Although the United States Supreme Court has not specifically extended application of Pointer v. Texas to misdemeanants, at least two states have addressed the issue and concluded persons accused of committing a misdemeanor are entitled to the right of confrontation. See Mills v. Municipal Court, 10 Cal.3d 288, 110 Cal.Rptr. 329, 515 P.2d 273 (1973); and Mosley v. Gorfinkel, 81 Misc.2d 998, 367 N.Y.S.2d 155 (N.Y.Supp. 1975). We agree. Logic demands the right of confrontation be applicable to trials of persons accused of misdemeanors. “There are few subjects, perhaps, upon which the Court and other courts have been more nearly unanimous than in their expressions of belief that the right of confrontation and cross-examination is an essential and fundamental requirement for the kind of fair trial which is this country‘s constitutional goal.” Pointer, 380 U.S. at 405, 85 S.Ct. at 1068.
As a matter of state law, the Indiana Constitution in
Hunt was entitled to waive his constitutional rights, but for his waiver to be valid, it must be an intentional relinquishment of known rights and privileges. Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938) (emphasis added). The thrust of Boykin was the refusal by the Court to presume waiver of the constitu-
The record of the guilty plea hearing in this case shows only that Hunt signed a court prepared form which listed his constitutional rights6 and contained the statement “(t)he . . . defendant advises the court that he understands the above and waives his right to be formally advised by the judge . . . .” Record at 53. The record discloses the judge asked Hunt if his signature appeared at the bottom of the form, but failed to ask any questions concerning Hunt‘s understanding of the rights he was waiving, or whether Hunt had read the form he signed, or was literate in reading the English language.7
This lack of inquiry by the trial judge evidences the fact the judge could not have made an independent determination of Hunt‘s understanding of the rights he was waiving at the time of the guilty plea hearing. In Williams v. State, 263 Ind. 165, 325 N.E.2d 827 (1975), the Indiana Supreme Court stated that although Boykin did not require the trial judge to personally advise the defendant of his constitutional rights,8 it did require the judge to make an independent determination, based on the record, that the defendant‘s plea was entered voluntarily and knowingly:
“A defendant‘s guilty plea is not tainted merely because the trial court fails to repeat defendant‘s rights for him, so long as the record of the guilty plea proceeding contains evidence from which the trial court may validly conclude that defendant was meaningfully informed of the specific rights enumerated in Boykin. Nothing we have said, however, may be interpreted as relieving the trial court of its absolute duty to decide, on the basis of evidence in the record before it, whether a defendant‘s plea is made voluntarily and understandingly.”
Id. at 176, 325 N.E.2d at 833 (emphasis added).
In Williams, the form made part of the record at the guilty plea hearing included affirmations regarding the defendant‘s formal education and his ability to read, write, and understand the English language. The form further advised the defendant of the charge, the penalty, and the constitutional rights being waived. Prior to accepting the guilty plea, the prosecutor in open court asked the defendant if he had signed the form, whether he understood it, and whether he fully understood the charge. Id. at 171, 325 N.E.2d at 830. Further, the defendant‘s attorney, in the presence of the judge, stated the defendant had a tenth grade education, studied in the army, and understood the charge and penalty. The attorney also told the judge he had had sufficient time to review the charge with
Emert v. State, 263 Ind. 340, 330 N.E.2d 750 (1975), was another “form” case. In Emert, the supreme court, without elaborating, reaffirmed Williams‘s interpretation of Boykin that the proper focus of inquiry was not who must make the record, but what the record must show. Id. at 342, 330 N.E.2d at 751.9 Thus, in the two post-Boykin, pre-statute, guilty plea cases involving reliance on a printed form signed by the defendant, there was evidence of record apart from the form itself that the judge fulfilled the judicial duty of ascertaining whether the defendant intelligently waived known constitutional rights.
Applying the facts of this case to the requirements of Boykin and Williams, we are forced to conclude the judge erred in not granting post-conviction relief. There was no evidence of record from which the judge could have determined that, from the totality of the circumstances, Hunt could read, did read the form, and understood the rights he was waiving.10
III.
Hunt also asserts the guilty plea court erred in advising him, albeit in writing, according to the dictates of
Assuming
Because we otherwise reverse, we do not reach this issue. However, the issue merits comment. We acknowledge this court implicitly held a guilty plea to a misdemeanor traffic offense is governed by the provisions of
At the same time a trial court who proceeds under
Therefore, we take this forum to suggest the matter of the legislative intent as to the applicability and appropriativeness of both
IV.
Finally, Hunt did not assert the unconstitutionality of
Judgment reversed and cause remanded with instructions to vacate the guilty plea.
BUCHANAN, C.J., concurs, with separate opinion.
SULLIVAN, J., concurs.
BUCHANAN, Chief Judge, concurring.
I concur, but solely on the basis that the waiver of rights signed by Hunt is deficient. The trial court failed to follow statutes applicable to guilty pleas in misdemeanor cases.
On October 3, 1983, Hunt and his attorney signed a court prepared waiver of rights form which read as follows:
“WAIVER OF RIGHTS IN CONNECTION WITH A GUILTY PLEA FOR ‘A’ MISDEMEANOR
The undersigned being the defendant in this action does hereby, in accordance with
I.C. 35-35-1-2 , acknowledge that in connection with the charge(s) against him, he:(1) Understands the nature of the charge(s) against him;
2) By pleading guilty he waives his right to:
(a) a public and speedy trial by jury
(b) confront and cross examine the witnesses against him
(c) have compulsory process for obtaining witnesses in his favor; and
(d) require the State to prove his guilt beyond a reasonable doubt at a trial at which the defendant may not be compelled to testify against himself.
3) Understands (a) that the maximum possible sentence can be one year and that the minimum sentence for the crime charged is no time, and (b) that if a guilty plea or verdict is tendered on more than one charge contained in this case or in other cases, that the Court may cause the sentences to run consecutively (one after another); and
4) States that he has not entered into any written recommendation with the deputy prosecutor.
The undersigned defendant advises the Court that he understands the above and waives his right to be formally advised by the Judge of his rights described herein and further waives each and every one of the foregoing rights.”
Record at 53. The trial judge asked Hunt if his signature did in fact appear at the bottom of the form, but did not add any additional advisements before accepting Hunt‘s guilty plea to the charge of driving under the influence of intoxicating liquor.
In assessing the validity of Hunt‘s guilty plea, two statutes are relevant. The first,
“(a) The court shall not accept a plea of guilty or guilty but mentally ill at the time of the crime without first determining that the defendant:
(1) understands the nature of the charge against him;
(2) has been informed that by his plea he waives his rights to:
(A) a public and speedy trial by jury;
(B) confront and cross-examine the witnesses against him;
(C) have compulsory process for obtaining witnesses in his favor; and
(D) require the state to prove his guilt beyond a reasonable doubt at a trial at which the defendant may not be compelled to testify against himself;
(3) has been informed of the maximum possible sentence and minimum sentence for the crime charged and any possible increased sentence by reason of the fact of a prior conviction or convictions, and any possibility of the imposition of consecutive sentences; and
(4) has been informed that if:
(A) there is a plea agreement as defined by
IC 35-35-3-1 ; and(B) the court accepts the plea;
the court is bound by the terms of the plea agreement.
(b) A defendant in a misdemeanor case may waive the rights under subsection (a) by signing a written waiver.
(c) Any variance from the requirements of this section that does not violate a constitutional right of the defendant is not a basis for setting aside a plea of guilty.”
(Emphasis supplied) [hereinafter cited as the general guilty plea statute]. The other pertinent provision is
“Before accepting a plea of guilty to a misdemeanor traffic offense, the court shall inform the defendant of his rights, which shall include, but not be limited to, the right to:
(1) engage counsel;
(2) a reasonable continuance to engage counsel to subpoena witnesses;
(3) have process issued by the court, without expense to him, to compel the attendance of witnesses in his behalf;
(4) testify or not to testify in his own behalf;
(5) a trial by jury; and
(6) appeal.
The court shall inform the defendant if he is convicted, that a record of the conviction will be sent to the motor vehicle commissioner of this state or of the state where defendant received his license to drive, to become a part of his driving record.”
(Emphasis supplied) [hereinafter cited as the traffic misdemeanor guilty plea statute].
Judge Shields properly observes that the rule of Boykin v. Alabama (1969), 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274, applies to guilty pleas in misdemeanor cases as well as felony cases. Implicitly, this fact has been recognized by our general assembly. The general guilty plea statute, which both embodies and expands upon the rule of Boykin, provides that “[a] defendant in a misdemeanor case may waive the rights under subsection (a) by signing a written waiver.” See
One prominent principle of statutory construction is that statutes relating to the same subject matter should be considered in pari materia, giving effect to both if they are not in irreconcilable conflict. See 2A N.J. Singer, Sutherland Statutory Con-
All of the foregoing is of little comfort to trial judges who must process a high volume of misdemeanor cases. A miasma surrounds this field of law obscuring the vision of those who must advise defendants pleading guilty to misdemeanor offenses, whether by waiver or otherwise. Unlike some states, Indiana has not recognized that misdemeanors need not be treated with the same judicial strictness as felony cases. See, e.g., Mills v. Municipal Court (1973), 10 Cal.3d 288, 515 P.2d 288, 110 Cal.Rptr. 329. Indeed, it would appear that the misdemeanor-charged defendant has more rights to be advised of than one facing felony charges.
Turning to the case at bar, the record reveals that Hunt was not advised of his right to appeal, of his right to engage counsel, or of his right to a reasonable continuance to engage counsel to subpoena witnesses, all as required by the traffic misdemeanor guilty plea statute. The waiver did not include these advisements. Compliance with these advisements is held to be mandatory. See Mottern, supra, at 490 (failure to advise defendant of right to appeal was fatal to the validity of a traffic misdemeanor guilty plea). So, this judgment must be reversed, but there remains an urgent need for clarification as to which advisements must be given.