David Kifer v. State of Indiana

Pursuant to Ind. Appellate Rule 65(D), Oct 04 2013, 5:45 am
this Memorandum Decision shall not be
regarded as precedent or cited before
any court except for the purpose of
establishing the defense of res judicata,
collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
JARED MICHEL THOMAS GREGORY F. ZOELLER
Evansville, Indiana Attorney General of Indiana
BRIAN REITZ
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
DAVID KIFER, )
)
Appellant-Defendant, )
)
vs. ) No. 82A05-1302-IF-53
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )
APPEAL FROM THE VANDERBURGH CIRCUIT COURT
The Honorable Jill R. Marcrum, Magistrate
Cause No. 82D05-1207-CM-9063
October 4, 2013
MEMORANDUM DECISION - NOT FOR PUBLICATION
PYLE, Judge
STATEMENT OF THE CASE
David Kifer (“Kifer”) appeals his Class C infraction for disregarding an automatic
signal.
We affirm.
ISSUE
Whether Kifer was entitled to representation after having received a citation
for a traffic infraction.
FACTS
On May 27, 2012, Kifer was traveling by moped with a passenger when
Vanderburgh County Sheriff’s Department Sergeant Aaron Hunter (“Sgt. Hunter”)
observed Kifer stopped at a red automatic traffic signal. Sgt. Hunter saw Kifer look both
ways and proceed through the red light. Subsequently, Sgt. Hunter initiated a traffic stop
and issued a ticket for the infraction of disregarding an automatic control device. Kifer
told Sgt. Hunter that he ran the red light because he had to urinate. He also asked Sgt.
Hunter not to issue him a citation because he was banned from the courthouse.
Kifer subsequently contested the infraction, and at an initial hearing on the matter,
the trial court asked Kifer if he wanted an attorney. Kifer did not answer, but instead
attempted to address what he categorized as “preliminary matters,” specifically his claim
that he was trespassing in the court. (Tr. 15-17). When the trial court asked again
whether Kifer wanted an attorney, Kifer was again unresponsive, claiming that the trial
court “doesn’t have jurisdiction,” and that an attorney would not benefit him. (Tr. 17).
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At the subsequent bench trial on January 7, 2013, the trial court informed Kifer
that an “infraction is a civil matter.” (Tr. 27). Kifer later requested an attorney, arguing
that “[t]he State of Indiana is entitled to free lawyers at the taxpayer dollar.” (Tr. 32).
After the trial court explained to Kifer that he was representing himself, Kifer claimed, “I
represent every person who comes down here and has to go through this system and not
get treated fairly. That’s what I’m representing.” (Tr. 33). Kifer later stated, “I need a
lawyer,” and the trial court denied his request. (Tr. 37). The trial proceeded, and after
Kifer cross-examined Sgt. Hunter, the State’s only witness, the trial count found Kifer
had committed the Class C infraction. (Tr. 41-45, 58). Kifer timely filed his Notice of
Appeal, and this appeal ensued.
DECISION
Kifer argues that the trial court “committed a fundamental error” in not granting
his request for counsel in defending himself against the traffic citation. (Kifer’s Br. 3).
Specifically, Kifer maintains that he was a criminal defendant, and therefore guaranteed
the right to representation under the Sixth Amendment. (Id. at 3-7). In response, the
State argues that because a traffic infraction is a civil matter, not a criminal one, Kifer
had no absolute right to counsel. (State’s Br. 3). We agree.
It is well-established that individuals charged with traffic infractions are “not []
criminal defendant[s].” Wirgua v. State, 443 N.E.2d 327, 330 (Ind. Ct. App. 1982). “Our
legislature removed [from those cited for traffic infractions] the protections afforded to
criminal defendants when it decided that the Indiana Rules of Trial Procedure govern
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infractions, and, in doing so, directed that we now treat infractions as civil matters.”
Cunningham v. State, 835 N.E.2d 1075, 1077 (Ind. Ct. App. 2005), trans. denied. It is
also a long-standing principle that there is no absolute right to counsel in civil matters.
See Terpstra v. Farmers and Merchants Bank, 483 N.E.2d 749, 759 (Ind. Ct. App. 1985)
(“Unlike criminal cases, where defendants have a 6th or 14th Amendment right to
counsel, in civil proceedings, persons do not have those same rights”).
Although Kifer attempts to analogize his circumstance to those in Castel v. State,
876 N.E.2d 768 (Ind. Ct. App. 2007). However, that case is plainly distinguishable
because, in addition to being cited for the infraction of disobeying a traffic control device,
the defendant in Castel was charged in criminal court with Class A misdemeanor driving
while intoxicated and Class B misdemeanor disorderly conduct. Id. at 770. Here, Kifer
was charged with no crimes; he was merely cited for a traffic infraction, a civil matter,
Cunningham, 835 N.E.2d at 1077, and as stated earlier, persons involved in civil matters
have no absolute right to counsel. Terpstra, 483 N.E.2d at 759.
Kifer also cites Indiana Code § 34-10-1-2 for the proposition that trial courts
“may, under exceptional circumstances, assign an attorney to defend or prosecute the
cause.” Id. However, we find his argument unavailing in light of the fact that he
provided no such argument of exceptional circumstances to the trial court. Indeed, even
if he had provided a cogent argument to the trial court, appointment of counsel would still
have been at the trial court’s discretion, and not an absolute right. See Ind. Code § 34-10-
1-2(b)(2) (stating that trial courts “may” appoint counsel in “exceptional circumstances,”
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not that they must). In this case, Kifer waited until the day of trial before making his
untimely request for the appointment of counsel. Accordingly, we find that the trial court
did not err in declining Kifer’s request for counsel in challenging his citation for a traffic
violation.
Affirmed.
BARNES, J., and CRONE, J., concur.
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