Kuhn v. State ex rel. Van Natta
Decision Date | 26 March 1980 |
Docket Number | No. 3-979A245,3-979A245 |
Citation | 402 N.E.2d 38 |
Parties | Richard D. KUHN, Appellant (Defendant Below), v. STATE ex rel. Ralph W. VAN NATTA, Appellee (Plaintiff Below). |
Court | Indiana Appellate Court |
John P. Geberin, Bowser & Geberin, Warsaw, for appellant.
Theo. L. Sendak, Atty. Gen., John K. Silk, Deputy Atty. Gen., Indianapolis, for appellee.
Richard D. Kuhn (Kuhn) was adjudged an habitual traffic offender and his driver's license was suspended for a period of ten years. 1 Upon appeal, Kuhn has raised the following issues for review:
(1) Whether the trial court erred in admitting documents of Kuhn's driving record and abstracts of prior convictions;
(2) Whether the trial court properly admitted evidence of prior convictions based upon guilty pleas;
(3) Whether compelled testimony violated Kuhn's constitutional rights; and
(4) Whether there was sufficient evidence to support the judgment.
We affirm.
Kuhn first contends that the trial court erred in admitting into evidence documents allegedly not comporting with the requirements of IC 9-4-13-4 (Burns Code Ed.). We disagree.
IC 9-4-13-4 states, in pertinent part:
Kuhn argues that the driving record and each individual abstract of conviction must be certified. In addition, Kuhn argues that for each entry in the driving record, there must be an abstract of a conviction. This clearly is not what the statute requires.
When construing a statute, this Court must give effect to the underlying intent of the Legislature. Gonser v. Board of Commissioners for Owen County (1978), Ind.App., 378 N.E.2d 425. We must also construe the statute according to its plain meaning. Id. This statute plainly requires that the commissioner certify, as a whole, the defendant's driving record and relevant abstracts of conviction. By relevant, the statute plainly means that only the abstracts of the convictions upon which the habitual traffic offender judgment will be based are needed. As stated in Craigo v. State ex rel. Van Natta (1975), 163 Ind.App. 158, 160, 322 N.E.2d 400, 402:
"The defendant is entitled to be informed of where, when and in what court such convictions occurred."
This statute requires no more.
An examination of the record reveals the document here in issue to be a certified copy of Kuhn's driving record and the abstracts (five) of the conviction of Kuhn on five separate occasions of driving under the influence of intoxicating liquor. Such document satisfied IC 9-4-13-4, supra, and was properly admitted.
Kuhn raises as his second allegation of error the contention that the trial court erred in admitting evidence of prior convictions based upon guilty pleas where it was not established that the requisite Indiana and constitutional warnings of Kuhn's rights were made. In essence, Kuhn's argument is an attack upon the validity of his prior convictions. As such, it is an impermissible collateral attack upon a prior conviction which this Court will not entertain. Hardin v. State ex rel. Van Natta (1978), Ind.App., 376 N.E.2d 518.
Kuhn's third allegation of error is that he was compelled to testify against himself which contravened his constitutional rights. We disagree.
First, Kuhn argues that in compelling his testimony, the trial court violated his fifth amendment privilege against self-incrimination. This very argument was raised and answered in the negative in Owens v. State ex rel. Vannatta (1978), Ind.App., 382 N.E.2d 1312, the reasoning in Hardin, supra.
Secondly, Kuhn argues that such compelled testimony violated his ninth amendment right of privacy. Kuhn supports this argument by citing Katz v. United States (1967), 389 U.S. 347, footnote 5, 88 S.Ct. 507, 19 L.Ed.2d 576. The Supreme Court, in an analysis of the purview of the fourth amendment, stated in Katz :
"Other provisions of the Constitution protect personal privacy from other forms of governmental invasion."
Id. at 350, 88 S.Ct. at 510. Footnote 5, in pertinent part, states:
There is no mention by the Court of the ninth amendment. The privacy concern addressed by the Court was under the fifth amendment. As such, that issue was addressed and dismissed in Owens and Hardin, supra.
Sufficiency of Evidence
Kuhn's final allegation of error is that there was not sufficient evidence to support the judgment of habitual traffic offender.
IC 9-4-13-3 (Burns Code Ed.Supp.1979) states in pertinent part:
The certified copy of Kuhn's driving record and the relevant abstracts of conviction reveal that Kuhn was convicted of driving under the influence of an intoxicating liquor on the following dates: (1) February 9, 1969; (2) March 22, 1970; (3) March 13, 1972; (4) June 17, 1974; and (5) September 20, 1977. This evidence is clearly sufficient to sustain the judgment. See Hardin, supra.
We affirm.
I respectfully dissent from the majority's affirmance of Kuhn's conviction. The trial court committed prejudicial error when it summarily denied Kuhn's objections to the use of his prior convictions obtained upon guilty pleas. His objection asserted the pleas were unconstitutionally obtained. 1 See, e. g., Boykin v. Alabama (1969), 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274.
The majority, citing Hardin v. State ex rel. Van Natta (1978), Ind.App., 376 N.E.2d 518, terms this an impermissible collateral attack on the prior judgments. I disagree. 2
A constitutionally invalid conviction may not be used to enhance punishment or establish guilt. U. S. v. Tucker (1972), 404 U.S. 443, 92 S.Ct. 589, 30 L.Ed.2d 592; Burgett v. Texas (1967), 389 U.S. 109, 88 S.Ct. 258, 19 L.Ed.2d 319. That is both the purpose and effect of the use of the prior convictions in this case.
Where the defendant fails to properly object to use of the prior conviction, he waives the constitutional issue. Nichols v. Estelle (5th Cir. 1977), 556 F.2d 1330....
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