State v. Goffe

• Decision Date: 28 May 1996
• Docket Number: No. 14129,14129
• Citation: 41 Conn.App. 454,676 A.2d 1377
• Court: Connecticut Court of Appeals
• Parties: STATE of Connecticut v. Errol GOFFE.

Page 1377

676 A.2d 1377

41 Conn.App. 454

STATE of Connecticut v. Errol GOFFE.

No. 14129.

Appellate Court of Connecticut.

Argued Dec. 1, 1995.

Decided May 28, 1996.

Howard I. Gemeiner, New Haven, for appellant (defendant).

Denise B. Smoker, Deputy Assistant State's Attorney, with whom, on the brief, were Mary M. Galvin, State's Attorney, and L. Mark Hurley, Assistant State's Attorney, for appellee (State).

Before EDWARD Y. O'CONNELL, FOTI and HEALEY, JJ.

HEALEY, Judge.

On March 14, 1994, the defendant, Errol Goffe, was issued a summons charging him with two counts of operating an overweight commercial motor vehicle, owned by him, in violation of General Statutes § 14-267a. ¹ On October 3, 1994, a trial to the court was held in which an assistant state's attorney presented the state's case. The defendant appeared without counsel. At the trial, the state presented one witness, Connecticut State Trooper Warren Hyatt, the officer who had weighed the defendant's truck. Hyatt had been a truck enforcement officer for ten years prior to March 14, 1994. The defendant presented no evidence or witnesses nor did he cross-examine Hyatt. The defendant was found guilty on both counts and ordered to pay $11,784 in fines, court costs and fees.

The trial court could reasonably have found the following facts. In March, 1994, the defendant was the registered owner of a 1988 International dump truck. On March 14 of that year, Hyatt observed the defendant's truck near exit 43 on the southbound side of Interstate 95. The truck was loaded with gravel or fill. Hyatt noticed the truck because its load was "very high" and its "tag-axle" was raised, making it a three axle vehicle rather than a four-axle vehicle. According to Hyatt a tag-axle is an axle that can be raised or lowered with an air gauge and a lever. A truck's maximum allowable load is greater when the tag-axle is down. Conversely, when a truck's tag-axle is up, its maximum allowable weight decreases. Realizing that the truck would be "extremely heavy," Hyatt pulled the vehicle over, spoke with the driver, and escorted both driver and truck to a nearby weigh station.

At the station, Hyatt weighed the truck and two of its axles. The gross weight of the truck was 81,900 pounds, more than 28,000 pounds over the legal limit of 53,800 pounds. The axle weight was 58,240 pounds, more than 22,000 pounds over the legal limit of 36,000 pounds. Because the vehicle was more than 25 percent overweight, Hyatt ordered the driver to off-load the truck and told him that it was "grounded." The driver parked the truck outside the station and stated that he would contact the defendant. Hyatt then issued the defendant a ticket charging him with two counts of operating an overweight commercial motor vehicle in violation of General Statutes § 14-267a. ² At that time, Hyatt wrote the ticket for the maximum amount that could be assessed against the defendant for each violation, which he had calculated pursuant to the statutory formula. ³ See General Statutes § 14-267a(f)(2). He then gave the ticket to the defendant's driver who gave it to the defendant.

The issues presented by the defendant are being raised for the first time on appeal. Those two issues are that the trial court improperly failed (1) to apprise the defendant of his right to trial by jury and (2) to ascertain whether the defendant knowingly waived his right to counsel. Review of these claims is sought under the doctrine of State v. Golding, 213 Conn. 233, 567 A.2d 823 (1989). ⁴ On his jury trial claim, the defendant also invokes General Statutes § 54-82b ⁵ as well as Practice Book § 839, and on his waiver of the right to counsel claim he also refers to Practice Book § 961. ⁶

"[A] defendant can prevail on a claim of constitutional error not preserved at trial only if all of the following conditions are met: (1) the record is adequate to review the alleged claim of error; (2) the claim is of constitutional magnitude alleging the violation of a fundamental right; (3) the alleged constitutional violation clearly exists and clearly deprived the defendant of a fair trial; and (4) if subject to harmless error analysis, the state has failed to demonstrate harmlessness of the alleged constitutional violation beyond a reasonable doubt. In the absence of any one of these conditions, the defendant's claim will fail. The appellate tribunal is free, therefore, to respond to the defendant's claim by focusing on whichever condition is most relevant to the particular circumstances." (Emphasis in original.) State v. Golding, supra, 213 Conn. at 239-40, 567 A.2d 823.

The state first argues that the defendant does not have a constitutional right to a jury trial because the trial of a defendant under § 14-267a is not a criminal prosecution. It also argues that even if § 14-267a were considered criminal, that alone would not entitle the defendant to a jury trial because the constitutional guarantee of the right to a jury trial does not apply to "all criminal prosecutions," noting that "so-called petty offenses may be tried without a jury." The state claims that the trial court did not commit plain error by failing to apply § 54-82b and, in any event, operating an overweight commercial motor vehicle is not a "criminal action" as that term is used in § 54-82b. Next, the state claims that the trial court was not required to advise the defendant of his right to retain private counsel or to obtain an express waiver of that right before allowing the defendant to proceed pro se because the defendant has no sixth amendment right to counsel in an action for sanctions under § 14-267a, which is not a criminal prosecution. In addition, the state claims that under the sixth amendment, advisement and waiver of the defendant's right to counsel is not required where there is no possibility that the defendant will be imprisoned.

I

We turn first to the defendant's claim that the trial court improperly failed to advise him of his constitutional right to a jury trial. Under Golding, the defendant here has the burden of demonstrating, inter alia, that this "alleged constitutional violation clearly exists and clearly deprived [him] of a fair trial...." State v. Golding, supra, 213 Conn. at 239-40, 567 A.2d 823. In this case the defendant has not sustained the burden of showing that he had a constitutional right to a jury trial.

The sixth amendment to the United States constitution, which is made applicable to the states through the fourteenth amendment, guarantees the right to a jury trial. That amendment provides in relevant part that "[i]n all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crimes shall have been committed...." Duncan v. Louisiana, 391 U.S. 145, 158-159, 88 S.Ct. 1444, 1452-1453, 20 L.Ed.2d 491 (1968). ⁷ To prevail on his claim that he had a constitutional right to a jury trial for his trial under § 14-267a, the defendant must, therefore, show that his trial was a criminal prosecution as that term is used in the federal constitution. This is so because "the protections provided by the Sixth Amendment are available only in 'criminal prosecutions.' " United States v. Ward, 448 U.S. 242, 248, 100 S.Ct. 2636, 2641, 65 L.Ed.2d 742 (1980).

Determining whether a particular statute is criminal or civil in nature is a matter of statutory construction and a two level inquiry is utilized. United States v. Ward, supra, 448 U.S. at 248-49, 100 S.Ct. at 2641. Thus, the first question is whether § 14-267a is intended to be, or by its nature necessarily is, criminal and punitive, or civil and remedial. United States v. One Assortment of 89 Firearms, 465 U.S. 354, 362, 104 S.Ct. 1099, 1104, 79 L.Ed.2d 361 (1984). In Ward, the court said that "[f]irst, we have set out to determine whether Congress, in establishing the penalizing mechanism, indicated either expressly or impliedly, a preference for one label or the other [civil or criminal].... Second, where Congress has indicated an intention to establish a civil penalty, we have inquired further whether the statutory scheme was so punitive either in purpose or effect to negate that intention." Id., at 248-49, 100 S.Ct. at 2641. Where the legislative intent to establish the penalty is civil and remedial, that intent will govern unless "the clearest proof" demonstrates that the sanction is punitive in purpose and effect. Id.; In re Garay, 89 N.J. 104, 112, 444 A.2d 1107 (1982).

The second level of inquiry is to determine whether the civil remedial mechanism of the statute "provided for sanctions so punitive as to 'transfor[m] what was clearly intended as a civil remedy into a criminal penalty.' " United States v. Ward, supra, 448 U.S. at 249, 100 S.Ct. at 2641, quoting Rex Trailer Co. v. United States, 350 U.S. 148, 154, 76 S.Ct. 219, 222, 100 L.Ed. 149 (1956). This is done by addressing the seven considerations listed in Kennedy v. Mendoza-Martinez, 372 U.S. 144, 168-69, 83 S.Ct. 554, 567-68, 9 L.Ed.2d 644 (1963), which are: "Whether the sanction involves an affirmative disability or restraint, whether it has historically been regarded as a punishment, whether it comes into play only on a finding of scienter, whether its operation will promote the traditional aims of punishment--retribution and deterrence, whether the behavior to which it applies is already a crime, whether an alternative purpose to which it may rationally be connected is assignable for it, and whether it appears excessive in relation to the alternative purpose assigned are all relevant to the inquiry, and may often point in differing directions."

In the present case, the legislature's intent that the sanction in the statute is civil may be implicit or explicit. United States v. One Assortment of 89 Firearms, supra, 465 U.S. at 362, 104 S.Ct. at 1104, citing United States v. Ward, supra, 448 U.S. at 248, 100 S.Ct. at 2641. There is no...