Wirgau v. State

• Decision Date: 22 December 1982
• Docket Number: No. 4-482A102,4-482A102
• Parties: Ronald O. WIRGAU, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below).
• Court: Indiana Appellate Court

Page 327

443 N.E.2d 327

Ronald O. WIRGAU, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below).

No. 4-482A102.

Court of Appeals of Indiana,

Fourth District.

Dec. 22, 1982.

Don G. Blackmond, South Bend, for appellant.

Linley E. Pearson, Atty. Gen., Carmen L. Quintana, Deputy Atty. Gen., Indianapolis, for appellee.

MILLER, Judge.

The defendant-appellant Ronald Wirgau appeals the imposition of a fine following his in court admission (guilty plea) of operating an overweight motor vehicle on the Indiana Toll Road. Pursuant to Ind.Code 34-4-32-4, Wirgau was fined ($3,500) for the infraction which he paid the next day in order to release his impounded truck. Wirgau appeals claiming he should have been afforded criminal safeguards during his trial on the infraction. However, since September 1, 1981 the entire judicial procedure pertaining to infractions is conducted pursuant to the rules of civil procedure. Ind.Code 34-4-32-1(c)(1). We affirm.

Specifically Wirgau presents these issues:

"1. Whether the trial court committed reversible error when it failed to advise the defendant of his right to retain counsel; failed to obtain a free and knowing waiver of the right to counsel; and failed to advise the unrepresented defendant of his right to a trial, to face the witnesses against him, to have compulsory process for obtaining favorable witnesses, to require the State to prove their case and not be compelled to testify against himself, prior to accepting defendant's guilty plea, all in violation of IND.CODE 35-4.1-1-2, IND.CODE 35-4.1-1-3, and the 14th and 6th Amendments to the U.S. Constitution and Article I, Sec. 13 of the Indiana Constitution.

2. Whether the trial court committed reversible error in that the conviction is not supported by any factual basis in the record establishing that the defendant's vehicle weight exceeded the statutory amount, as is required by IND.CODE 35-4.1-1-4.

3. Whether the trial court committed reversible error in ordering a $3,500 fine, which is excessive and bears no reasonable nexus to the offense charged, in violation of Article 1, Sec. 16 of the Indiana Constitution and the 8th and 14th Amendments to the U.S. Constitution."

FACTS

On October 8, 1981 at approximately 3:51 A.M. Indiana State trooper Richard Graeber The proceedings were as follows:

stopped Wirgau at the toll station for operating an overweight motor vehicle on the Indiana Toll Road. After impounding the truck, Graeber transported Wirgau to Valparaiso where his trial was held that day.

"THE COURT: Mr. Wirgau, you are here this morning on the charge of overweight one hundred and twenty-two thousand four hundred pounds on the Toll Road.

... I have made the determination from past cases that the legal weight on the Toll Road is ninety thousand and not seventy-three thousand. But, he is still thirty-two thousand over.

How do you plead to that?

MR. WIRGAU: Guilty.

THE COURT: Whose truck is it?

MR. WIRGAU: Mine.

THE COURT: What in the sam hill were you doing with so much weight on there? You were over one coil. What, did you have three coils on there?

MR. WIRGAU: Yeah. I got a Michigan train though, two trailers. I had two small coils on the first trailer and one large coil on the rear trailer.

THE COURT: Did they impound your truck last night?

MR. WIRGAU: Yes, they did. They stopped me just as I payed [sic] the toll. Then they brought me back all the way to Chesterton, the truck is over at Chesterton.

THE COURT: What did they tell you your fine would be?

MR. WIRGAU: Four thousand six hundred

THE COURT: Well, that's based on my schedule. But I'm, as I say, I have made the determination that as far as I can figure out, from all the rules and regulations, ninety thousand is legal on the Toll Road.

So, that would reduce it down to thirty-five hundred dollars. Plus court costs of thirty-four dollars.

I will allow you your liberty. But, I will not release the truck until such time as that has been paid.

And, when you do get your truck back, you're going to have to break it and haul those trailers separately. Or, you will just get caught again.

And, if you get caught on the state highway, it is going to be--will be that figure that they gave you last night.

MR. WIRGAU: Well, I was going to go to the Crossroads, I was only about three blocks away from the Crossroads, where I was going to go break them up there.

THE COURT: I'll let him go. I can't really hold him here. That is the amount, thirty five hundred and thirty-four dollars. And upon your payment at the Court, we will release your truck.

MR. WIRGAU: O.K.

THE COURT: Where is the truck impounded?

MR. WIRGAU: It's in Chesterton at some little junk yard. I don't know how I'll ever get it out of there, there was hardly room to get it in. I don't know how I'll ever get it out of there.

THE COURT: We'll make sure you get it out."

Besides this brief proceeding, the only other relevant materials in the record before us are the ticket issued by Graeber and all the papers relating to the motion to correct errors and the praecipe.

The State filed a motion to dismiss this appeal contending Wirgau failed to perfect an appeal because the proper procedural method for challenging a guilty plea is by filing a petition for post-conviction relief. Wirgau pointed out an infraction occurring after September 1, 1981 requires the application of civil procedure. IC 34-4-32-1(c)(1). This court denied the motion to dismiss on September 8, 1982.

DECISION

Before addressing Wirgau's issues, we must examine the fundamental changes in procedure which took effect September 1, 1981. ¹ Previously all traffic offenses were criminal in nature. Under the old statute, before accepting a guilty plea to any traffic offense (except parking, standing or non-moving offenses), the court had to inform the defendant of his criminal rights. ² Currently, the statute only requires the court to give this information before accepting a plea of guilty to a misdemeanor traffic offense. ³ The procedure for infractions is now found in IC 34-4-32-1 to 5, wherein the language instructs: the proceedings are to be conducted in accordance with the Indiana Rules of Trial Procedure; ⁴ the plaintiff must prove the commission of the infraction by only a preponderance of the evidence; ⁵ and punishment for an infraction is merely a fine. ⁶ There is no provision for any criminal procedures. Thus, the legislature has mandated a change in the handling of traffic infractions. It is, of course, very significant that the legislature, in the same act which changed infractions to a civil procedure, also eliminated the requirement of advising traffic defendants of their constitutional safeguards except for traffic misdemeanors. Finally, we observe in Indiana there are no common law crimes. All crimes are statutory and enumerated by the legislature. Stephens v. State, (1886) 107 Ind. 185, 8 N.E. 94; State v. Lopez, (1973) 156 Ind.App. 379, 296 N.E.2d 918. With this background, we now address Wirgau's issues.

Advisement of Rights

Essentially Wirgau is claiming in his first issue that the trial court erred in not advising him of his full panoply of safeguards guaranteed to every criminal defendant--a procedure zealously guarded by the Indiana Courts. However, as explained above, Wirgau was not a criminal defendant. ⁷ IC 35-4.1-1-2 and IC 35-4.1-1-3 delineate criminal procedures for arraignment and pleading concerning right to counsel and judicial advice before a guilty plea. They have no relevance in a civil proceeding. Wirgau also relies on the Sixth Amendment of the United States Constitution as applied to the states by the Fourteenth Amendment ⁸ and Article I, Sec. 13 of the Indiana Constitution. "In all criminal prosecutions, the accused shall..." are the opening words of both of these sections. Once again, they are not applicable to a civil proceeding.

We find support for our position in decisions of our courts involving analogous situations. As noted earlier (footnote one), violations of municipal ordinances are now designated as infractions along with some traffic offenses. Historically, violations of municipal ordinances have been deemed civil if there is only a monetary penalty, but criminal with full constitutional safeguards if imprisonment is imposed. Biedinger v. City of East Chicago, (1958) 129 Ind.App. 42, 154 N.E.2d 58. For example, in Biedinger, the defendant was tried in a city court for the violation of a city ordinance, found guilty and ordered to pay a $25 fine and serve 30 days in the county jail with the imprisonment suspended on the condition the building violation cease. Biedinger attempted to appeal to the Lake Circuit Court, but that court dismissed the appeal. On further review, this court found the original proceedings had been civil, but the entire action took on the character and nature of a criminal proceeding when the city court entered a judgment which included imprisonment. ⁹ Because Biedinger had attempted a civil appeal, it was dismissed. Likewise in State ex rel. Town of Lowell v. Meredith, (1966) 247 Ind. 273, 215 N.E.2d 183, the Indiana Supreme Court held violations of city ordinances which only involve monetary penalties are civil in nature and are governed by the rules of civil procedure. As with traffic infractions today, violations of municipal ordinances bear a similarity to crimes, but the proceedings are directed by the rules of civil procedure.

In a congruent manner, the rules of civil procedure without criminal safeguards govern other civil proceedings even though the incident being litigated has some criminal characteristics. In Price v. Reed, (1943) 114 Ind.App. 253, 51 N.E.2d 86 the court held section 13 of the Indiana Constitution and the Sixth Amendment apply only to criminal proceedings. In Price, the Industrial Board had determined, after a hearing, that the deceased had been killed while committing a misdemeanor. On appeal, his widow claimed...