Hunt v. State , 1986 Ind. App. LEXIS 2260 ( 1986 )

BUCHANAN, Chief Judge,

concurring.

I concur, but solely on the basis that the waiver of rights signed by Hunt is deficient. The trial court failed to follow statutes applicable to guilty pleas in misdemeanor cases.

On October 3, 1983, Hunt and his attorney signed a court prepared waiver of rights form which read as follows:

“WAIVER OF RIGHTS IN CONNECTION WITH A GUILTY PLEA FOR ‘A’ MISDEMEANOR

The undersigned being the defendant in this action does hereby, in accordance with I.C. 35-35-1-2, acknowledge that in connection with the charge(s) against him, he:

(1) Understands the nature of the charge(s) against him;

2) By pleading guilty he waives his right to:

(a) a public and speedy trial by jury

(b) confront and cross examine the witnesses against him

(c) have compulsory process for obtaining witnesses in his favor; and

(d) require the State to prove his guilt beyond a reasonable doubt at a trial at which the defendant may not be compelled to testify against himself.

3) Understands (a) that the maximum possible sentence can be one year and that the minimum sentence for the crime charged is no time, and (b) that if a guilty plea or verdict is tendered on more than one charge contained in this ease or in other cases, that the Court may cause the sentences to run consecutively (one after another); and

4) States that he has not entered into any written recommendation with the deputy prosecutor.

The undersigned defendant advises the Court that he understands the above and waives his right to be formally advised by the Judge of his rights described herein and further waives each and every one of the foregoing rights.”

Record at 53. The trial judge asked Hunt if his signature did in fact appear at the bottom of the form, but did not add any additional advisements before accepting Hunt’s guilty plea to the charge of driving under the influence of intoxicating liquor.

In assessing the validity of Hunt’s guilty plea, two statutes are relevant. The first, Ind.Code 35-35-1-2 (Supp.1985), provides:

“(a) The court shall not accept a plea of guilty or guilty but mentally ill at the time of the crime without first determining that the defendant:

(1) understands the nature of the charge against him;

(2) has been informed that by his plea he waives his rights to:

(A) a public and speedy trial by jury;

(B) confront and cross-examine the witnesses against him;

(C) have compulsory process for obtaining witnesses in his favor; and

(D) require the state to prove his guilt beyond a reasonable doubt at a trial at which the defendant may not be compelled to testify against himself;

(3) has been informed of the maximum possible sentence and minimum sentence for the crime charged and any possible increased sentence by reason of the fact of a prior conviction or convictions, and any possibility of the imposition of consecutive sentences; and

(4) has been informed that if:

(A) there is a plea agreement as defined by IC 35-35-3-1; and

(B) the court accepts the plea;

the court is bound by the terms of the plea agreement.

(b) A defendant in a misdemeanor case may waive the rights under subsection (a) by signing a written waiver.

(c) Any variance from the requirements of this section that does not violate a constitutional right of the defendant is not a basis for setting aside a plea of guilty.”

(Emphasis supplied) [hereinafter cited as the general guilty plea statute]. The other pertinent provision is IC 9-4-7-9 (1982) which declares that:

“Before accepting a plea of guilty to a misdemeanor traffic offense, the court shall inform the defendant of his rights, which shall include, but not be limited to, the right to:

(1)engage counsel;

(2) a reasonable continuance to engage counsel to subpoena witnesses;

(3) have process issued by the court, without expense to him, to compel the attendance of witnesses in his behalf;

(4) testify or not to testify in his own behalf;

(5) a trial by jury; and

(6) appeal.

The court shall inform the defendant if he is convicted, that a record of the conviction will be sent to the motor vehicle commissioner of this state or of the state where defendant received his license to drive, to become a part of his driving record.”

(Emphasis supplied) [hereinafter cited as the traffic misdemeanor guilty plea statute].

Judge Shields properly observes that the rule of Boykin v. Alabama (1969), 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274, applies to guilty pleas in misdemeanor cases as well as felony cases. Implicitly, this fact has been recognized by our general assembly. The general guilty plea statute, which both embodies and expands upon the rule of Boykin, provides that “[a] defendant in a misdemeanor case may waive the rights under subsection (a) by signing a written waiver.” See IC 35-35-l-2(b). Obviously, there would be no need to provide for a written waiver in misdemeanor cases if misdemeanors were not intended to come within the coverage of the general guilty plea statute. This court has, however, previously held that the applicable advise-ments for a guilty plea to a misdemeanor traffic offense are contained in the traffic misdemeanor guilty plea statute. See Mottern v. State (1984), Ind.App., 466 N.E.2d 488. Thus, we are confronted with two statutes which facially address the same subject, misdemeanor guilty pleas. So, one must resort to rules of construction.

One prominent principle of statutory construction is that statutes relating to the same subject matter should be considered in pari materia, giving effect to both if they are not in irreconcilable conflict. See 2A N.J. Singer, Sutherland Statutory Construction § 51.03 (1984). The general guilty plea statute relates to all guilty pleas while the traffic misdemeanor guilty plea statute deals only with traffic misdemeanors, but the principle of construing statutes in pari materia still applies. “General and special acts may be in pari mate-ria. If so, they should be construed together. Where one statute deals with a subject in general terms, and another deals with a part of the same subject in a more detailed way, the two should be harmonized if possi-ble_” Id. at § 51.05 (footnotes omitted). It is obvious that the provisions of the traffic misdemeanor guilty plea statute contain the more specific provisions. The courts have also recognized that “all of the items included in the [general] guilty plea statute are of equal weight. All are of ‘constitutional dimension.’ ” Jones v. State (1984), Ind.App., 467 N.E.2d 757, 760. See also German v. State (1981), Ind., 428 N.E.2d 234. To the extent that the traffic misdemeanor guilty plea statute may be deficient in the advisements it offers, it must be read in pari materia with the general guilty plea statute. In this manner, both statutes may be given effect in a harmonious manner. Baker v. State (1985), Ind.App., 483 N.E.2d 772. If this view is taken, the number of advisements is increased.

All of the foregoing is of little comfort to trial judges who must process a high volume of misdemeanor cases. A miasma surrounds this field of law obscuring the vision of those who must advise defendants pleading guilty to misdemeanor offenses, whether by waiver or otherwise. Unlike some states, Indiana has not recognized that misdemeanors need not be treated with the same judicial strictness as felony cases. See, e.g., Mills v. Municipal Court (1973), 10 Cal.3d 288, 515 P.2d 288, 110 Cal.Rptr. 329. Indeed, it would appear that the misdemeanor-charged defendant has more rights to be advised of than one facing felony charges.

Turning to the case at bar, the record reveals that Hunt was not advised of his right to appeal, of his right to engage counsel,' or of his right to a reasonable continuance to engage counsel to subpoena witnesses, all as required by the traffic misdemeanor guilty plea statute. The waiver did not include these advisements. Compliance with these advisements is held to be mandatory. See Mottern, supra, at 490 (failure to advisé defendant of right to appeal was fatal to the validity of a traffic misdemeanor guilty plea). So, this judgment must be reversed, but there remains an urgent need for clarification as to which advisements must be given.