Attorneys for Appellant Attorney for Appellee
Steve Carter Bart M. Betteau
Attorney General of Indiana McDaniel & Betteau
New Albany, Indiana
Scott A. Kreider
Deputy Attorney General
Appeal from the Harrison Superior Court, No. 31D01-0010-DF-849
The Honorable Roger D. Davis, Judge
On Petition To Transfer from the Indiana Court of Appeals, No. 31A04-0209-PC-438
October 19, 2004
Thereafter, Starks filed a Motion for Summary Judgment in the Floyd County Court
challenging his March 1991 conviction for driving while intoxicated. The trial court
granted the motion,
set aside the conviction, held that the HTV determination was
based in part on the 1991 conviction, and ordered the determination expunged from
Starks driving record. Appellants App. at 30.
Armed with the Floyd County Court order, Starks then filed a petition for
post-conviction relief and a motion for summary judgment in the Harrison Superior Court
challenging his April 2001 plea agreement. After conducting a hearing the post-conviction
court granted Starks relief, set aside his conviction of driving while suspended as
an HTV, and ordered that the resulting suspension be expunged from Starks driving
record. The State appealed, and the Court of Appeals affirmed, reasoning in
part: Starkss [habitual traffic violator] adjudication was invalid at the time of his
[Harrison County] conviction, and therefore Starkss guilty plea was not supported by a
factual basis. Thus, Starks is entitled to relief from this conviction.
State v. Starks, 787 N.E.2d 885, 888 (Ind. Ct. App. 2003), rehg denied.
Having previously granted the States petition to transfer, we now reverse the
judgment of the post-conviction court.
This Court again revisited Indiana Code section 9-30-10-16 in
State v. Hammond, 761
N.E.2d 812 (Ind. 2002). In that case the State charged Hammond with
operating a motor vehicle while suspended as an habitual traffic violator after an
officer stopped Hammond for a traffic violation and confirmed that she had been
adjudged an HTV. Subsequently Hammond pleaded guilty under the terms of a
plea agreement and testified that she knew of the HTV suspension when she
drove the car. The trial court accepted her guilty plea and imposed
a two-year suspended sentence. Thereafter, Hammond filed a petition for post-conviction relief
contending that the notice sent by the Bureau of Motor Vehicles suspending her
as an habitual traffic violator was defective because it did not advise her
of the opportunity for administrative review. Thus, according to Hammond, the improper
suspension invalidated her guilty plea. Hammond also filed in the trial court
a petition for judicial review of the HTV suspension. The trial court
found that the BMV notice was insufficient and ordered the Bureau to vacate
the sentence retroactively. Relying on this ruling, the post-conviction court vacated Hammonds
guilty plea believing it was not supported by an adequate factual basis.
On review the Court of Appeals affirmed the judgment of the post-conviction court.
On transfer, we again pointed out: [T]he essence of the HTV offense
was the act of driving after being so determined. The focus is
not on the reliability or non-reliability of the underlying determination, but on the
mere fact of the determination. . . . For purposes of a driving
while suspended charge, we therefore look to the appellants status as of the
date of that charge, not any later date on which the underlying suspension
may be challenged or set aside.
Id. at 815 (citing Stewart, 721
N.E.2d at 880) (internal quotation omitted). Because Hammond admitted that she drove
her car when she knew her license was suspended, there was a sufficient
factual basis for her guilty plea.
Noting that an untimely or incomplete suspension notice does not justify automatic reversal
of a license suspension, we concluded that the trial court erred in vacating
spension and the post-conviction court erred when it determined that Hammonds guilty
plea was unsupported by a sufficient factual basis. We then said:
The proper remedy for the BMVs failure to explain Hammonds right of challenge is to allow Hammond the belated opportunity to challenge her HTV suspension on the merits. Were she successful at that, she might then petition for post-conviction relief in the court where she pled to the felony of continuing to drive.
Id. at 815-16 (emphasis added). Starks seizes on the highlighted portion of this quote to insist he is entitled to relief. The Court of Appeals agreed, indicating, In the case before us, we have exactly the situation contemplated by our supreme court in the last line of its Hammond decision. Starks, 787 N.E.2d at 887. We disagree with our colleagues reading of Hammond.
The quoted language was merely descriptive of the procedural route a person may
be entitled to take belatedly to challenge a prior conviction or to challenge
notice that driving privileges have been suspended. If the person successfully demonstrates,
either to the BMV or to the court upon judicial review,
§ 9-30-10-7, that a material error has occurred then the person is afforded
the opportunity to pursue post-conviction relief. This is not to say however
that relief automatically will be granted. That was the case in Hammond
and that is the case here. As Hammond makes clear the essence
of the HTV offense is the act of driving after having been so
determined. Hammond, 761 N.E.2d at 815. Because the underlying offense is
later challenged or set aside does not mean the HTV adjudication is invalid.
The focus is not on the reliability or non-reliability of the underlying
determination, but on the mere fact of the determination. Id. Only
if the underlying offense was not committed, for example, by proving that the
BMV erroneously included the defendant as the same person as the offender in
the subsequent court, is the error material.
In essence Starks indeed may be entitled to post-conviction relief from his 2001
guilty plea of driving while suspended as an habitual traffic violator. However,
it is not a sufficient basis for relief that the underlying offense has
been set aside on procedural grounds. This is the precise ground on
which the post-conviction court relied in setting aside Starks conviction and ordering the
resulting license suspension expunged from Starks driving record. In so doing the
post-conviction court erred.