Pier v. State
| Decision Date | 22 March 1983 |
| Docket Number | No. 3-682A130,3-682A130 |
| Citation | 446 N.E.2d 985 |
| Parties | Steven Ray PIER, Defendant-Appellant, v. STATE of Indiana, Plaintiff-Appellee. |
| Court | Indiana Appellate Court |
Milo W. Lightfoot, Warsaw, for defendant-appellant.
Linley E. Pearson, Atty. Gen., Joseph N. Stevenson, Deputy Atty. Gen., Indianapolis, for plaintiff-appellee.
Steven Ray Pier (Pier) appeals his convictions of driving under the influence of alcohol, attempted escape, and battery.
At approximately 2:00 a.m. on April 3, 1982 Deputy Brindle (Brindle) of the Kosciusko Sheriff's Department was dispatched to Beer Road east of Milford, Indiana to investigate a stranded car. There Brindle found Pier and a companion attempting to pull the car out of a ditch with another vehicle. Upon talking to Pier, Brindle observed that Pier's eyes were glassy and his speech slurred. Pier staggered when he walked and had a strong odor of alcohol on his breath.
Brindle ordered Pier into the squad car and informed him that he was under arrest for public intoxication. After refusing to take a Breathalyzer test, Pier got out of the car and began to walk away. Brindle and two Syracuse Police Department officers who had arrived at the scene stopped Pier and returned him to the squad car. When Brindle began a pat down search of Pier, Pier struck him in the temple. A scuffle followed, and it required all three officers to subdue Pier.
On April 9, 1981 Pier was charged by information with (1) driving under the influence of alcohol, a Class D felony; (2) attempted escape, a Class C felony; and (3) battery, a Class D felony. On June 19 Pier requested treatment as an alcoholic in lieu of prosecution as permitted by IC 16-13-6.1-16 et seq. The trial court found Pier eligible to request treatment from the Department of Mental Health (Department), but on July 20 the Department denied him admission to the treatment program.
Pier was tried without a jury on December 9, and on January 5, 1982 he was found guilty of each charge. Pier was sentenced to two years imprisonment for DUI, eight years for attempted escape, and four years for battery. The sentences were to be served concurrently.
Pier raises five issues in this appeal:
(1) Was his waiver of right to jury trial rendered involuntary by the fact that the trial judge found him eligible to request treatment in lieu of prosecution when in fact the statute specifically excluded him?
(2) Does IC 16-13-6.1-16 et seq. violate the equal protection and due process guarantees of the United States and Indiana Constitutions?
(3) Did the trial court commit reversible error in allowing Pier to be tried in shackles and handcuffs?
(4) Was Pier properly sentenced for his offense of driving under the influence of alcohol?
(5) Was there sufficient evidence to convict Pier of attempted escape and battery?
Prior to trial Pier requested treatment as an alcoholic in lieu of prosecution. This request is authorized by IC 16-13-6.1-16, which states:
"A drug abuser or alcoholic charged with or convicted of a felony may request treatment under the supervision of the department instead of prosecution or imprisonment ...."
The opportunity to make such a request is conditional, however. IC 16-13-6.1-17(a)(5) states:
Further, the opportunity to request treatment is not available to certain persons. IC 16-13-6.1-16(1) provides that treatment is not available to one charged with:
"... a forcible felony or burglary classified as a Class A or Class B felony."
Upon receiving Pier's request, the trial judge found Pier eligible to request treatment, IC 16-13-6.1-17(a), and pursuant to subsection (b) ordered the Department to examine Pier to determine whether he was an alcoholic and would likely be rehabilitated through treatment. The Department refused Pier's request because he was charged with battery, a forcible felony, and thus was ineligible to request treatment. Proceedings were then re-commenced against Pier, and he was subsequently tried without a jury.
We commence by noting the well-established law in Indiana that a criminal defendant has a fundamental right to trial by jury and that such right may be waived if the waiver is voluntarily made. Perry v. State (1980), Ind.App., 401 N.E.2d 705, 707; Williams v. State (1974), 159 Ind.App. 470, 307 N.E.2d 880, 882-3.
Pier now argues that because the trial court erroneously found him eligible to request treatment his waiver of jury trial could not have been voluntary.
Nothing in the record discloses whether the trial judge interpreted the "Class A or Class B felony" requirements of IC 16-13-6.1-16(1) to modify both "burglary" and "forcible felony," or whether he merely certified the request to determine whether the Department would so interpret the provision. 1 No appeal was taken from the Department's determination and the question is not before us now.
The form on which Pier applied for alternative treatment contained an express waiver of Pier's right to trial by jury. The waiver appeared in italics and there has been no suggestion made that Pier misunderstood his rights or the effect of the waiver provision.
When the determination of ineligibility was returned to the court, it proposed to set the case for trial. Pier made no objection whatever. He did not suggest that his waiver was invalid. He did not indicate that he desired to be tried by jury. He did not object to the judge's order setting the case for trial to the court. Thus, in the absence of any contemporaneous objection to the continued validity of his express waiver, we may not reach the question of whether the court should have permitted it to be withdrawn. No error was preserved for appeal. Gosnell v. State (1978), 268 Ind. 429, 376 N.E.2d 471. 2
For this same reason we conclude that Pier lacks standing for his constitutional challenges to the statute. Chain v. State (1975), 165 Ind.App. 631, 333 N.E.2d 792. We note, however, that in Murphy v. State (1976), 265 Ind. 116, 352 N.E.2d 479 the court found the statute did not violate the equal protection guarantee. Furthermore, Pier's due process argument was impliedly rejected in Perry v. State (1980), Ind.App., 401 N.E.2d 705.
Pier next argues that it was reversible error for the court to permit him to be tried while handcuffed and manacled. To support this argument Pier cites Walker v. State (1980), Ind., 410 N.E.2d 1190. In that case our Supreme Court reversed three defendants' convictions where they appeared before the jury in handcuffs and leg irons without any apparent justification for the restraints.
Although courts have recognized that handcuffs and manacles are proper in certain situations, 3 they have also recognized the prejudicial effect appearing in court in restraints may have on a defendant's right to a fair trial. The United States Supreme Court, for example, said in Illinois v. Allen (1970), 397 U.S. 337, 344, 90 S.Ct. 1057, 1061, 25 L.Ed.2d 353.
In Walker v. State (1980), Ind., 410 N.E.2d 1190, 1193, our Supreme Court wrote:
"The rule that a prisoner brought into court for a trial is entitled to appear free from all bonds or shackles is an important component of a fair and impartial trial."
(quoting Woodards v. Cardwell (6th Cir.1970), 430 F.2d 978, 982, cert. denied (1971), 401 U.S. 911, 91 S.Ct. 874, 27 L.Ed.2d 809).
Allen, Woodards, and Walker are inapposite to the present case, however, because each involved the possible prejudicial effect of a defendant appearing in restraints before a jury. Pier was tried by the court, and we believe that a trial judge, unlike a lay jury, can be presumed to retain his impartiality whether the defendant appears in court bound or unbound. Therefore, because Pier cannot establish any actual prejudice, we find no error.
Pier contends it was improper for the trial court to treat his conviction for driving under the influence of alcohol as a Class D felony rather than as a Class A misdemeanor. On April 3, 1981, the date of the events that led to Pier's arrest, IC 9-4-1-54 read:
Subsequent to Pier's arrest and the filing of the information against him but before trial, the legislature amended 4 this statute to read:
The effect of the amendment is to limit the prior convictions that may be considered for the purpose of elevating the classification of a defendant's offense. Whereas the prior statute allowed any previous conviction to be considered, the current one permits consideration of...
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