Hunt v. State

• Decision Date: 23 January 1986
• Docket Number: No. 2-1084A325,2-1084A325
• Citation: 487 N.E.2d 1330
• Parties: David HUNT, Appellant (Petitioner Below), v. STATE of Indiana, Appellee (Respondent Below).
• Court: Indiana Appellate Court

Page 1330

487 N.E.2d 1330

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.

J. Richard Kiefer, Indianapolis, for appellant.

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:

1. Whether the trial court's findings of fact are sufficiently specific;

2. Whether the post-conviction relief court erred in concluding Hunt knowingly and intelligently waived his constitutional rights;

3. Whether a defendant pleading guilty to a misdemeanor traffic offense must be advised of enumerated constitutional rights pursuant to Ind.Code Ann. Sec. 9-4-7-9 ² (Burns Supp.1985) or Ind.Code Ann. Sec. 35-35-1-2(a) ³ (Burns Supp.1983) or both; and

4. Whether Ind.Code Ann. Sec. 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.C. Sec. 35-35-1-2 and pleaded guilty to the charge of driving under the influence of intoxicating liquor. The judge asked Hunt if his signature was at the bottom of the form, but asked no further questions concerning Hunt's understanding of the constitutional rights he was waiving.

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 reference to Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969), the fountainhead of constitutional advisement law. Boykin lists three federal constitutional rights of which a defendant must be aware and understand in order for his waiver of those rights by a plea of guilty to be constitutionally permissible: the right to confront one's accusers, Pointer v. Texas, 380 U.S. 400, 85 S.Ct. 1065, 13 L.Ed.2d 923 (1965); the right to trial by jury, Duncan v. Louisiana, 391 U.S. 145, 88 S.Ct. 1444, 20 L.Ed.2d 491 (1968); and the privileges against compulsory self-incrimination, Malloy v. Hogan, 378 U.S. 1, 84 S.Ct. 1489, 12 L.Ed.2d 653 (1964). 395 U.S. at 243, 89 S.Ct. at 1712.

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 Article 1, section 13 provides, "In all criminal prosecutions, the accused shall have the right to a public trial, by an impartial jury, in the county in which the offense shall have been committed; to be heard by himself and counsel; to demand the nature and cause of the accusation against him, and to have a copy thereof; to meet the witnesses face to face, and to have compulsory process for obtaining witnesses in his favor." (emphasis added) Gillespie v. Gilmore, 159 Ind.App. 449, 307 N.E.2d 480 (1974) held a distinction cannot be made between felonies and misdemeanors as regards the right to trial by jury in view of the language, "in all criminal prosecutions," and Bolkovac v. State, 229 Ind. 294, 98 N.E.2d 250 (1951), relying on the same constitutional language, stated the right to counsel in misdemeanor cases exists to the same extent as in felony cases. Because the language "in all criminal prosecutions" precedes all rights enumerated in section 13, it is only logical that the right of confrontation also applies to misdemeanor cases. We thus conclude the rights enumerated in Boykin v. Alabama are applicable to persons accused of misdemeanors as a matter of state and federal constitutional law.

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 constitutional rights from a silent record, 395 U.S. at 244-25, 89 S.Ct. at 1712-13. ⁵

The record of the guilty plea hearing in this case shows only that Hunt signed a court prepared form which listed his constitutional rights ⁶ 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 the defendant, and that the defendant understood the rights he was waiving. Thus, in Williams, there was evidence in the record of the guilty plea hearing that showed Williams was literate in the English language, was aware of the content of the form he signed, and understood the rights he was waiving. Consequently, the Williams record provided a basis for the trial judge's independent determination the defendant knowingly waived his constitutional rights.

Emert v. State, 263 Ind. 340, 330 N.E.2d 750 (1975), was another "form" case. In Emert, the...