Terpstra v. State
| Decision Date | 20 October 1988 |
| Docket Number | No. 25A04-8802-IF-68,25A04-8802-IF-68 |
| Citation | 529 N.E.2d 839 |
| Parties | Peter W. TERPSTRA, II, Appellant, v. STATE of Indiana, Appellee. |
| Court | Indiana Appellate Court |
Peter W. Terpstra, II, Rochester, pro se.
Linley E. Pearson, Atty. Gen., Amy Schaeffer Good, Deputy Atty. Gen., Office of Atty. Gen., Indianapolis, for appellee.
Defendant-appellant Peter W. Terpstra, II, was charged with violating I.C. Sec. 9-1-4-5, 7, 20 and 40. He appeals the judgment of the Fulton County Court finding him guilty of all four charges and fining him $500.00 on each count plus costs. Terpstra admittedly failed to properly register his truck, obtain a license plate or driver's license. He claims in his brief that compliance with these laws violates his religious beliefs, stating,
We affirm.
I. Whether the trial court erred by permitting the State to bring charges against Terpstra by information rather than by complaint.
II. Whether the trial court erred in denying Terpstra a jury trial.
III. Whether I.C. 9-1-4-5, 7, 20 and 40 violate Terpstra's First Amendment right to the free exercise of religion and his right to travel.
The pertinent facts in this appeal are not in dispute. On July 31, 1987, Terpstra was driving his truck along public roads in Fulton County, Indiana. There was no license plate displayed on his vehicle, however, Terpstra had placed an identification tag marked "Pete II" on the back tailgate. While driving in this manner, Terpstra's vehicle was stopped by Officer Roy D. Calvert of the Rochester Police Department. Officer Calvert asked Terpstra to produce a valid driver's license and vehicle registration. Terpstra could not produce either item. Officer Calvert then cited Terpstra for driving without a driver's license and a vehicle registration. On July 10, 1988, Terpstra was formally charged with violating I.C. Sec. 9-1-4-5, 7, 20 and 40, that is, (1) failure to display a certificate of registration, (2) failure to display a registration plate, (3) display of a false or fictitious registration plate, and (4) failure to have a driver's license in possession. A bench trial was held on November 18, 1987. At trial, Terpstra admitted to not displaying a license plate, not having a driver's license in his possession, not displaying a certificate of registration, and having his name on a plate that resembles a license plate. He was found guilty of all four charges and fined the maximum penalty of $500.00 on each count plus costs.
The first issue raised by Terpstra is whether the trial court erred by permitting the State to bring charges against him by information rather than by complaint. The procedure for the prosecution of infractions in Indiana is civil in nature. 1 The proceedings are to be conducted in accordance with the Ind. Rules of Trial Procedure, 2 the plaintiff must prove the commission of the infraction by a preponderance of the evidence, 3 and the punishment for an infraction is a fine. 4 There is no provision for any criminal procedures. Wirgau v. State (1983), Ind.App., 443 N.E.2d 327, 330. I.C. Sec. 34-4-32-1(e) provides that a complaint and summons may be used for any infraction or ordinance violation. 5 In this case the charges against Terpstra were brought by an information and he was served with a criminal summons. Terpstra contends that this criminal format is in violation of I.C. Sec. 34-4-32-1 and, as such, the charges against him should have been dismissed. We agree that Terpstra should have been served with a complaint and summons, however, the fact that the charges were brought by an information and criminal summons does not constitute reversible error.
Initially we note that the language contained in the information charging Terpstra clearly detailed the offenses with which he was being accused. The information correctly cited the offenses as IND.CODE Sec. 9-1-4-5, 7, 20, 40 and the correct statutory language was set forth in explanation of these charges. Our courts have held that defects or imperfections in charging instruments are grounds for reversal only where they prejudice substantial rights of the defendant. Hestand v. State (1986), Ind., 491 N.E.2d 976, 980; Alvers v. State (1986), Ind.App., 489 N.E.2d 83, 86. In this case, "the defect" was that the charging instrument was an "Information" rather than a "Complaint." However, this "defect" did not prejudice Terpstra. Terpstra was aware of the charges against him and has not shown that he was misled, in any manner, in the preparation of his defense.
The crux of Terpstra's argument is that the State's use of this improper procedure alone, mandates that the charges against him be dismissed. In response to this argument we find the reasoning of "illegal arrest" cases helpful. In Scott v. State (1980), Ind.App., 404 N.E.2d 1190, 1192, the defendants were charged and convicted of the crime of Unlawful Possession of Marijuana. On appeal, they argued that their charges should have been dismissed because the court found that no probable cause existed for their arrests. This court acknowledged that the defendants' arrests were invalid but stated:
In Felders v. State (1987), Ind., 516 N.E.2d 1, 2, a defendant, appealing his murder conviction, made a similar argument. Our supreme court quoted the above language from Scott, supra and stated that even if the police lacked probable cause to arrest this defendant, it would not affect the legality of his conviction. 516 N.E.2d at 2.
In this case, the State has essentially used an "irregular" procedure to "arrest" and charge Terpstra with traffic infractions. However, under Scott and Felders, the use of this "irregular" procedure does not affect the right of the State to try this case nor does it affect the jurisdiction of the court to hear the case. The use of this "irregular" or improper procedure is of consequence only as it affects the rights of Terpstra to be aware of the charges against him and to prepare a defense. As noted earlier, Terpstra was properly notified of the charges against him and he was not misled in the preparation of his defense. Thus, we find no error on this issue.
The next issue raised by Terpstra is whether the trial court erred in denying him a jury trial. Terpstra is proceeding in this litigation pro se. As such, he has not had the benefit of trained legal counsel. However, a litigant who proceeds pro se is held to the same established rules of procedure that trained legal counsel is bound to follow. Owen v. State (1978), 269 Ind. 513, 381 N.E.2d 1235, 1239; State ex rel. Medical Licensing Board v. Stetina (1985), Ind.App., 477 N.E.2d 322, 328; Terpstra v. Farmers and Merchants Bank (1985), Ind.App., 483 N.E.2d 749, 754. In civil proceedings a demand for a jury trial must be made in accordance with Ind.Rules of Procedure, Trial Rule 38(B). T.R. 38(B) provides that any party may demand a trial by jury by filing with the court, and serving upon the other parties, a demand in writing any time after the commencement of the action, but not later than ten (10) days after the first responsive to the pleading to the complaint is filed. 6 T.R. 38(D) provides that the failure of a party to serve a demand as required by this rule and to file it as required by Rule 5(D) constitutes a waiver by him of a trial by jury. In this case, Terpstra failed to comply with T.R. 38(B). He did not demand a jury trial in writing and waited until the day of the trial before orally requesting one.
"MR. TERPSTRA
Prior to moving forward, Your Honor, there are a number of administrative procedural matters which must be taken care of in order for me to experience due course of justice. I notice here today, Your Honor, that there is no jury.
COURT
That's absolutely right. Because no jury was required in this case. This is a civil case, and there was no timely request for a jury.
MR. TERPSTRA
Well, I'd object to that Your Honor."
(Record, p. 2).
One who proceeds pro se must accept the consequences of his actions. Morvilius v. Delaware Circuit Court (1961) 241 Ind., 704, 171 N.E.2d 695, 696; Terpstra, supra. Since Terpstra failed to comply with Trial Rule 38(B) he waived his right to a trial by jury. The trial court was correct in denying Terpstra a jury trial.
Finally, Terpstra argues that I.C. 9-1-4-5, 7, 20 and 40 violate his First Amendment right to the free exercise of religion and his right to travel. Terpstra's argument is as follows:
"From September of 1964 until October of 1986, the defendant, Peter W. Terpstra II, held a valid Indiana driver's license. During that time he was a citizen of the United States, the State of Indiana, and residing in the county of Fulton. During that time he committed no...
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