concurring in result.
The majority concedes “the facts that underlie the ordinance violations also give rise to the criminal charges,” op. at 24, but finds Boss was not subjected to double jeopardy because “imposition of a civil fine and a criminal sanction for the same transgression is permissible.” Id. at 22. I cannot find fault with the majority’s methodical analysis of the Mendoza-Martinez factors, especially in light of the Hudson statement that only the clearest proof will suffice to “override legislative intent and transform what has been denominated a civil remedy into a criminal penalty.” 522 U.S. at 100, 118 S.Ct. 488. As there is case law to support the majority’s double jeopardy analysis, I must reluctantly concur in the result.
I nevertheless feel compelled to address why I find this criminal prosecution unjust. While Boss may not have been subjected to double jeopardy, the nature and sequence of these proceedings leaves me wondering whether this subsequent criminal prosecution by the State should be permissible in a system that presumes a defendant’s innocence. The City fined Boss under ordinances that appear invalid, and the resolution of the ordinance proceeding, via Boss’s admission of guilt when she had no counsel, could effectively deprive her in this subsequent criminal prosecution of the presumption of innocence and her right to effective assistance of counsel.
1. Validity of the Ordinances
As the majority notes, our legislature “specifically withheld from [local government] units ... the power to prescribe a penalty for conduct constituting a crime or infraction under statute.” Op. at 22 (citing Ind.Code § 36-1-3-8). The majority concedes “the facts that underlie the ordinance violations also give rise to the criminal charges,” id. at 24, and the ordinances impose a “monetary penalty ” for their violations, id. at 21 (emphasis added). If those statements by the majority are cor*26rect, then the ordinances pursuant to which Indianapolis fined Boss are invalid.
Our Indiana Supreme Court addressed the predecessor to our current Ind.Code § 36-1-3-8 in deciding the question “ ‘May a city of Indiana lawfully enforce an ordinance; [sic] which duplicates penal statutes of the State of Indiana?’ ” Mitsch v. City of Hammond, 234 Ind. 285, 292, 125 N.E.2d 21, 24 (1955), reh’g denied. After noting our legislature enacted the predecessor statute in 1881, our Supreme Court said:
[S]ince its enactment it has been the holding of this court, that cities and towns are forbidden thereby from punishing by ordinance any act which is made a public offense by statute and that such an ordinance is void.... That the ordinance follows and agrees with the statute which makes the act a criminal offense and therefore it cannot be unlawful as suggested by appellee, is a sort of ‘confession and avoidance’ reasoning. The confession we may accept, but such confession does not avoid the destructive effect of the condemning statute.
Id.
The Indianapolis ordinances under which Boss was penalized appear invalid because they do exactly what our Supreme Court said Ind.Code § 36-1-3-8 prohibits — they prescribe “a penalty for conduct constituting a crime or infraction under statute” and therefore were outside the power Indianapolis had to enact ordinances. See id.
For example, Boss was penalized for violating ordinance Sec. 531-102-Animals at large prohibited, which provides:
(a) An owner or keeper of an animal commits a violation of the Code if that animal is at large in the city.
⅝ ⅝ ¾: ⅝ ⅜ ⅝
(c) If, while the animal is at large in violation of this section at a location other than its owner’s or keeper’s property or in the public right-of-way, it:
(1) Attacks another animal; or
(2) Chases or approaches a person in a menacing fashion or apparent attitude of attack;
then the violation shall be subject to the enforcement procedures and penalties provided in section 103-3 of the Code, and the fine imposed shall not be less than two hundred and fifty dollars ($250.00), or five hundred dollars ($500.00) if another animal or person is injured as a result of the animal’s actions.
She was also penalized under Sec. 531-109-Owner responsibility for animal attacks, which provides: “An owner or keeper of an animal commits a violation of the Code if that animal attacks and injures a person who did not provoke the animal prior to the attack.”10
Those two ordinances prohibit exactly the same conduct as does a statute under which Boss is now charged, i.e., allowing a dog to run loose and bite someone:
Except as provided in subsection (b), the owner of a dog commits a Class C misdemeanor if:
(1) the owner recklessly, knowingly, or intentionally fails to take reasonable steps to restrain the dog;
(2) the dog enters property other than the property of the dog’s owner; and
(3) as the result of the owner’s failure to restrain the dog, the dog bites or attacks *27another person without provocation, resulting in bodily injury to the other person.
Ind.Code § 15-20-l-4(a).
Similarly, the rabies immunization ordinance Boss admitted violating penalizes the same conduct punished by Ind.Code § 35-46-3-1. The Indianapolis ordinance requiring anti-rabies vaccinations for dogs and cats provides:
(a) It shall be unlawful to keep a dog or cat or to provide food, water or shelter to a colony of free-roaming cats over the age of three (3) months in the city unless each cat or dog is immunized against rabies by a vaccination performed by a veterinarian and the period of immunization specified by the veterinarian performing the vaccination has not expired.
Sec. 531-301. The criminal statute under which Boss is now charged prohibits the same conduct, i.e., failing to immunize one’s dog against rabies:
A person who knowingly or intentionally harbors a dog that is over the age of six (6) months and not immunized against rabies commits harboring a non-immunized dog, a Class C infraction. However, the offense is a Class B misdemeanor if the dog causes bodily injury by biting a person.
Ind.Code § 35-46-3-1.
Indianapolis prescribed, and imposed on Boss, penalties for “conduct constituting a crime or infraction under statute,” which conduct is now the basis for the State’s criminal prosecution. The language of Ind.Code § 36-l-3-8(a)(8) is unambiguous: a local government unit “does not have ... [t]he power to prescribe a penalty for conduct constituting a crime or infraction under statute.” Thus, I believe the City did not have the authority to enact the ordinances under which Boss was first penalized in the form of fines and costs totaling over $1200.11 Moreover, for reasons I explain below, I believe penalizing Boss twice for these violations is unjust.
2. Boss’ Constitutional Rights
Even if Boss was not subjected to double jeopardy, I am concerned that our decision effectively deprives Boss of her presumption of innocence and of any meaningful right to counsel in the criminal prosecution.
The presumption of innocence follows a defendant who is charged with a crime until, by the evidence, she is proven guilty beyond a reasonable doubt. Riggs v. State, 237 Ind. 629, 630, 147 N.E.2d 579, 580 (1958). But “[o]nce a person has entered a plea of guilty ... the presumption of innocence has been extinguished.”12 State ex rel. Dorton v. Circuit Court of Elkhart County, 274 Ind. 373, 376, 412 N.E.2d 72, 74 (1980). Boss’ admission she violated the City ordinances, which admission she made when she, as an indigent, had no counsel, might as a practical matter “extinguish” her presumption of innocence as she faces criminal charges brought by the State.
She might also be deprived of a meaningful right to counsel in the criminal prosecution. Much of the reasoning in the majority’s double jeopardy analysis is based on the premise the penalty for the ordinance violations is civil, so Boss is not *28being subjected to “multiple criminal punishments for the same offense.” See op. at 21 (quoting Hudson, 522 U.S. at 99, 118 S.Ct. 488). True enough. But in such a civil proceeding, the person accused of an ordinance violation typically will not have the right-to-counsel protections our state and federal constitutions provide in criminal prosecutions.
The State is poised to obtain a conviction based solely on admissions Boss made in the course of proceedings to enforce an apparently-invalid city ordinance. In that proceeding Boss was not represented by counsel, and as an indigent13 likely could not have obtained counsel.
Our Indiana constitution provides a right to counsel in “all criminal prosecutions,” Ind. Const. Art. 1 § 13 (emphasis supplied); the Sixth Amendment to the United States constitution also establishes the right to counsel “[i]n all criminal prosecutions.” But those rights have little meaning where, as in the case before us, the State is in a position to pursue a criminal prosecution based on admissions a defendant made in an ordinance-violation proceeding where no such right-to-counsel protection was available to her.
The rights embodied in the Sixth Amendment protect the fundamental right to a fair trial. Poynter v. State, 749 N.E.2d 1122, 1125-26 (Ind.2001) (citing Strickland v. Washington, 466 U.S. 668, 684, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), reh’g denied). “Of all the rights that an accused person has, the right to be represented by counsel is by far the most pervasive for it affects his ability to assert any other rights he may have.” Id. (quoting United States v. Cronic, 466 U.S. 648, 654, 104 S.Ct. 2039, 80 L.Ed.2d 657 (1984)). Because the average defendant does not have the professional legal skills to protect herself at trial, her choice to appear without counsel must be made intelligently. Slayton v. State, 755 N.E.2d 232, 235 (Ind. Ct.App.2001) (citing Johnson v. Zerbst, 304 U.S. 458, 462-64, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938)).
In a civil case, appointed counsel is available to an indigent person only under “exceptional circumstances.” Ind.Code § 34-10-l-2(b). If the court is satisfied that a person does not have sufficient means to prosecute or defend the action, the court “shall admit the applicant to prosecute or defend as an indigent person” and “may, under exceptional circumstances, assign an attorney to defend or prosecute the cause.” (Emphasis supplied.)
The factors a court may consider in determining whether there are “exceptional circumstances” include the likelihood the applicant will prevail on the merits of the claim or defense and the applicant’s ability to investigate and present the claim or defense without an attorney, given the type and complexity of the facts and legal issues in the action. Murfitt v. Murfitt, 809 N.E.2d 332, 334 (Ind.Ct.App.2004). Those factors do not suggest Boss would have been appointed counsel even if she was aware she could make such application. In any event, the record reflects Boss was not represented by counsel when, in the ordinance proceedings, she admitted factual allegations identical to those the State is now bringing in its criminal prosecution.
It appears Boss was subjected to a money penalty under an ordinance that is invalid, and will now be deprived of her presumption of innocence and of meaningful assistance of counsel as the State pursues her criminal prosecution. That is *29wrong, even if the State can avoid double jeopardy violations by characterizing the ordinance violation penalties as having no “punitive effect.” (Br. of the Appellee at 8.) It violates the spirit of numerous constitutional rights intended to protect the innocent in criminal proceedings.
As I cannot find the trial court abused its discretion in denying Boss’ motion to dismiss on double jeopardy grounds, I am constrained to concur in the result.
. Sec. 103-3 of the Indianapolis ordinances provides generally that when an ordinance is violated the violator may be fined and/or enjoined.
. Although I believe the civil ordinances are invalid, Boss is before us on an appeal from the trial court's refusal to dismiss the State's criminal proceedings, and we may not overturn the civil judgment against her in this collateral proceeding.
. The City characterized the resolution of Boss’ ordinance violation as "case disposed by guilty plea admission (i.e. agreed judgment)." (App. at 93.)
. The chronological case summary indicates Boss was found indigent by the trial court. She is represented on appeal by the Marion County Public Defender Agency.