FOR PUBLICATION
ATTORNEYS FOR APPELLANT: ATTORNEY FOR APPELLEE:
GREGORY F. ZOELLER BRIAN J. JOHNSON
Attorney General of Indiana Danville, Indiana
CYNTHIA L. PLOUGHE
Deputy Attorney General Feb 27 2014, 9:37 am
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
STATE OF INDIANA, )
)
Appellant-Plaintiff, )
)
vs. ) No. 32A01-1306-CR-282
)
CHAD BRYANT, )
)
Appellee-Defendant. )
APPEAL FROM THE HENDRICKS SUPERIOR COURT
The Honorable David H. Coleman, Judge
Cause No. 32D02-1206-FD-632
February 27, 2014
OPINION – FOR PUBLICATION
PYLE, Judge
STATEMENT OF THE CASE
The State appeals the trial court’s dismissal of its charges against Chad Bryant
(“Bryant”) for Class D felony operating a vehicle as an habitual traffic violator (“HTV”).1
We reverse and remand.
ISSUE
Whether the trial court abused its discretion when it granted Bryant’s motion to dismiss.
FACTS
Over the course of ten years, Bryant accumulated three convictions for motor
vehicle offenses. According to Bryant’s Bureau of Motor Vehicle (“BMV”) record, he
was convicted of: (1) operating a vehicle while intoxicated with a prior conviction within
five years on July 11, 2002, under cause number 49F18-0011-DF-210157 (“Cause 157”);
(2) operating a vehicle while intoxicated on February 17, 2011, under cause number
32D03-1011-CM-312 (“Cause 312”);2 and (3) operating per se with an alcohol
concentration of 0.08 or above on February 17, 2011, under cause number 32D03-1011-
CM-361 (“Cause 361”).3 On February 26, 2011, the BMV sent Bryant a notice that his
license was suspended because he had accumulated three motor vehicle convictions and
therefore qualified as an HTV. As its basis for the HTV determination, the notice
correctly listed Cause 157, but incorrectly listed that Bryant had two convictions arising
from Cause 312, including the operating per se with an alcohol concentration of 0.08 or
1
Ind. Code § 9-30-10-16(a)(2).
2
In Cause 312, the State also charged Bryant with operating per se with an alcohol concentration of 0.08
or above but dismissed the charge.
3
Although the convictions for both Cause 312 and Cause 361 were entered on February 17, 2011, they
arise from incidents on different days.
2
above charge that the State had dismissed. The notice also omitted Bryant’s conviction
under Cause 361.
On June 22, 2012, Sheriff’s Deputy Joshua D. Faith (“Deputy Faith”) of the
Hendricks County Sheriff’s Department stopped Bryant on State Road 26 because the
brake lights on his vehicle were not working. Bryant gave Deputy Faith an identification
card and informed him that his license was suspended.
Subsequently, on June 25, 2012, the State charged Bryant with Class D felony
operating a vehicle as an HTV. On March 5, 2013, Bryant filed a motion to dismiss the
charge. In the motion, he argued that his suspension for being an HTV was not valid at
the time of the alleged offense because an HTV determination requires three prior
qualifying convictions arising from distinct incidents, and the notice informing him of his
HTV status had listed two convictions arising from Cause 312. One of these charges had
been dismissed. As a result, he contended that the HTV determination was invalid and
that he correspondingly could not have operated a vehicle as an HTV. On May 21, 2013,
the trial court held a hearing and granted Bryant’s motion to dismiss. The State now
appeals. Additional facts will be provided as necessary.
DECISION
On appeal, the State argues that the trial court erred when it granted Bryant’s
motion to dismiss because Bryant qualified as an HTV when Deputy Faith stopped him
on June 22, 2012, and therefore the State properly charged him for operating a vehicle as
an HTV. In support of this argument, the State notes that even though the BMV’s notice
of Bryant’s HTV status incorrectly listed his prior convictions, Bryant had accumulated
3
the three requisite prior convictions necessary to qualify as an HTV. Also, the State
argues that the notice adequately advised Bryant of the procedure for challenging the
validity of his suspension, yet Bryant never disputed it. In response to the State, Bryant
reiterates that his license was not validly suspended, so he did not operate a vehicle as an
HTV.
The trial court granted Bryant’s motion to dismiss under Indiana Code § 35-34-1-
4(a)(5), which governs the dismissal of charging informations. The purpose of Indiana
Code § 35-34-1-4(a)(5) is to “establish facts that aid in a determination of whether an
offense has properly been charged against the defendant as a matter of law.” Ceaser v.
State, 964 N.E.2d 911, 918 (Ind. Ct. App. 2012), trans. denied. The court may dismiss an
information if “[t]he facts stated do not constitute an offense.” I.C. § 35-34-1-4(a)(5).
On appeal, we will review a trial court’s grant of a motion to dismiss an information for
an abuse of discretion. State v. Gill, 949 N.E.2d 848, 849 (Ind. Ct. App. 2011), trans.
denied. A trial court has abused its discretion when its decision is clearly against the
logic and effect of the facts and circumstances. Id.
Pursuant to Indiana Code § 9-30-10-4(b),
a person who has accumulated at least three (3) judgments within a ten (10)
year period for any of the following violations, singularly or in
combination, and not arising out of the same incident, is a habitual violator:
(1) Operation of a vehicle while intoxicated.
*****
(4) After June 30, 2001, operation of a vehicle with an alcohol
concentration equivalent to at least eight-hundredths (0.08) gram of
alcohol per:
(A) one hundred (100) milliliters of the blood; or
(B) two hundred ten (210) liters of the breath. . . .
4
A person commits Class D felony operating a vehicle as an HTV if that person “operates
a motor vehicle . . . while the person’s driving privileges are validly suspended under this
chapter . . . and the person knows that the person’s driving privileges are suspended.”
I.C. § 9-30-10-16(a) (emphasis added). The “chapter” this provision refers to is “Chapter
10: Habitual Violator of Traffic Laws.” I.C. § 9-30-10.
Because Bryant disputes the HTV determination underlying the State’s Class D
felony operating a vehicle as an HTV charge, his argument turns on Indiana Code § 9-30-
10-16(a)’s use of the phrase “validly suspended.” A long line of cases have interpreted
both this phrase and the issue of whether a defendant can be charged for operating a
vehicle as an HTV if one of the convictions underlying the HTV status is void or
voidable. See State v. Oney, 993 N.E.2d 157 (Ind. 2013). Based on this precedent, we
conclude that the trial court abused its discretion in granting Bryant’s motion to dismiss.
A previous version of Indiana’s operating a vehicle as an HTV provision did not
include the phrase “validly suspended.” Instead, it provided that “[a] person who
operates a motor vehicle: (1) while the person’s driving privileges are suspended under
this chapter. . .; or (2) in violation of the restrictions imposed under this chapter . . .
commits a Class D felony.” See Stewart v. State, 721 N.E.2d 876, 878 (Ind. 1999). In
Stewart, the Indiana Supreme Court approved of our opinion in Gentry v. State, 526
N.E.2d 1187 (Ind. Ct. App. 1988), trans. denied, in which we held that “a person who has
been judged an HTV remains in that status until the BMV rescinds its designation[] and
[] is not free to disregard this administrative determination.” Stewart, 721 N.E.2d at 880
(citing Gentry, 526 N.E.2d at 1188). The Stewart court noted that “[w]hile defects in the
5
administrative process may warrant relief under administrative law, it is not the province
of criminal proceedings to correct such errors.” Stewart, 721 N.E.2d at 880. Instead,
[i]t follows that the crucial date, insofar as habitual violator status is
concerned, is the date of driving, not the date on which the status is
challenged or set aside. If the person is driving despite notification that he
cannot do so because he has been declared a habitual traffic violator, he is
flaunting the law even if one or more underlying convictions is voidable.
Id. (quoting Gentry, 526 N.E.2d at 880). Based on these standards, the Stewart court
found it persuasive that the defendant in that case, Stewart, had not made any effort “to
contact BMV or to inquire or seek any remedy during the time his suspension was
pending or after it became effective.” Stewart, 721 N.E.2d at 880.
Subsequently, the Indiana Legislature amended I.C. § 9-30-10-16(a) to add the
phrase “validly suspended” so that a person commits Class D felony operating a vehicle
as an HTV if that person “operates a motor vehicle . . . while the person’s driving
privileges are validly suspended under this chapter . . . and the person knows that the
person’s driving privileges are suspended.” I.C. § 9-30-10-16(a) (emphasis added). The
Supreme Court interpreted this amendment in State v. Hammond, 761 N.E.2d 812 (Ind.
2002), reh’g denied.
In Hammond, the defendant, Hammond, pled guilty to operating a motor vehicle
while suspended as an HTV. Id. at 813. Hammond later filed a petition for post-
conviction relief, arguing that the BMV’s notice suspending her as an HTV was defective
because it did not advise her of the opportunity for administrative review. Id. At the
same time, she also filed a petition for judicial review of her HTV suspension. Id. The
trial court found the BMV’s notice deficient and retroactively vacated her suspension. Id.
6
at 813-14. Subsequently, the post-conviction court relied on this ruling and also vacated
her guilty plea on the basis that it was not supported by an adequate factual basis. Id. at
814. The Court of Appeals affirmed. Id.
On appeal to the Supreme Court, Hammond argued that the legislative amendment
of “validly” modifying “suspended” indicated the Legislature’s intent that any notice
deficiency in an underlying suspension should automatically invalidate a conviction for
operating while suspended. Id. at 815. The Supreme Court disagreed and upheld its
reasoning in Stewart. Id. It concluded:
In Stewart, we discussed the required elements and mens rea for an HTV
suspension and held that a license suspension is valid until and unless it is
successfully challenged. The addition of the word “validly” to the statute
does not, therefore, change the holding of Stewart. If no challenge has
occurred as of the date the driver is charged with driving while suspended,
the suspension is valid at the critical time, and the subsequent conviction
stands.
Id. (internal citations omitted). Instead of vacating Hammond’s suspension, the Supreme
Court determined that the proper remedy for the BMV’s failure to explain Hammond’s
right of review was to allow her a belated opportunity to challenge her HTV suspension
on the merits. Id. at 815-16. If she were successful, she could “then petition for post-
conviction relief in the court where she pled to the felony of continuing to drive.” Id. at
816.
Subsequently, two Supreme Court decisions have further interpreted Hammond’s
precedent. Bryant points us to these two decisions to support his argument that where
there is a material error in a conviction underlying a suspension for being an HTV, we
7
may invalidate a subsequent conviction for operating a vehicle as an HTV. The first is
State v. Starks, 816 N.E.2d 32 (Ind. 2004).
In Starks, the BMV sent Kevin Starks (“Starks”) a notice advising him of his
status as an HTV, and he later pled guilty to driving while suspended as an HTV. Id. at
32-33. Thereafter, Starks challenged one of the convictions underlying his HTV status.
Id. at 33. The trial court set aside the conviction and ordered the HTV determination
expunged from his record. Id. Starks then filed a petition for post-conviction relief, and
the post-conviction court set aside his conviction of driving while suspended as an HTV.
Id. The Court of Appeals affirmed.
On appeal to the Supreme Court, Starks noted the last line of the Hammond
decision:
The proper remedy for the BMV’s failure to explain Hammond’s 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 34 (emphasis in original). Because Starks had successfully challenged his
suspension on the merits, he argued that his situation was in line with the scenario the
Supreme Court had contemplated in Hammond. Id. The Supreme Court disagreed. Id. at
34-35. It explained that “[t]he 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, that a ‘material
error’ has occurred then the person is afforded the opportunity to pursue post-conviction
8
relief.” Id. The Supreme Court further noted that “[o]nly 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.’” Id. at 35. The Court thus distinguished between cases where a court vacates
a conviction underlying a suspension on procedural grounds and on substantive grounds.
See id. Because the trial court had vacated Starks’ HTV determination on procedural
grounds, the court reversed the post-conviction court’s vacation of his conviction for
driving while suspended as an HTV. Id.
The Supreme Court recently clarified in State v. Oney, 993 N.E.2d 157 (Ind. 2013)
that its Starks opinion does not foreclose relief where a material error has occurred in the
determination that an individual is an HTV. In Oney, the BMV informed Russell Oney
(“Oney”) that he was an HTV, and he was later charged with and pled guilty to operating
a vehicle while suspended as an HTV. Id. at 160. Thereafter, Oney filed a petition for
post-conviction relief for one of the convictions underlying his HTV determination. Id.
The post-conviction court found that the conviction was based on a material error
because the judge in Oney’s case had coerced him into pleading guilty without counsel
being present, even though he maintained his innocence. Id. at 161, 163. Noting the
court’s “material error” finding, Oney then filed a motion to set aside his guilty plea to
operating a vehicle while suspended as an HTV, and the post-conviction court granted the
motion. Id. at 162. The Court of Appeals and the Supreme Court both affirmed. Id. at
164, 166.
9
In its opinion, the Supreme Court explained: “We repeat for emphasis that only
because there was sufficient evidence . . . to conclude that Oney did not commit the []
underlying offense, was he then afforded the opportunity to attempt additional relief . . .
.” Id. at 164. Notably, we do not interpret this language to guarantee that a court will set
aside a defendant’s conviction for operating a vehicle as an HTV even if there is a
material error underlying the HTV determination. See id. Instead, a material error may
allow a defendant to “attempt additional relief.” Id. (emphasis added). In spite of finding
in Oney that there was a material error underlying Oney’s HTV determination, the
Supreme Court still analyzed whether that error met the standard for setting aside a guilty
plea “to correct a manifest injustice.” See id. at 166.
Here, Bryant argues that, because one of the convictions the BMV listed on its
HTV notice was actually a charge that the State dismissed, he did not commit the
convictions underlying his HTV determination and there was thus a material error. Based
on the Supreme Court’s decisions in Starks and Oney, he contends that the trial court did
not abuse its discretion when it granted his motion to dismiss because it could not have
convicted him for operating a vehicle as an HTV where there was a material error in the
HTV determination. However, we disagree.
As we stated above, the Supreme Court clearly stated in Stewart that: “a person
who has been judged an HTV remains in that status until the BMV rescinds its
designation[] and [] is not free to disregard this administrative determination.” Stewart,
721 N.E.2d at 880 (citing Gentry, 526 N.E.2d at 1188). While “defects in the
administrative process may warrant relief under administrative law, it is not the province
10
of criminal proceedings to correct such errors.” Stewart, 721 N.E.2d at 880. Hammond,
Starks, and Oney did not alter this standard. Instead, the Hammond court held that a
license suspension is valid until and unless it is successfully challenged and that the
proper procedure for challenging a subsequent conviction for operating while suspended
is to first dispute the suspension on the merits. Hammond, 761 N.E.2d at 815-16.
Likewise, Starks and Oney both concerned situations in which the petitioners had already
successfully disputed the convictions underlying their HTV determinations.
In the instant case, Bryant has not challenged his HTV determination, either
through the BMV or judicial review. Accordingly, in line with the preceding judicial
precedent, we need not address whether the BMV’s erroneous listing of Bryant’s charges
was a material error because we must consider his suspension valid until he directly
challenges it. See id. at 815. As a result, we conclude that the State properly charged
Bryant with Class D felony operating a vehicle as an HTV as a matter of law and that the
trial court abused its discretion when it granted Bryant’s motion to dismiss. We reverse
the trial court’s dismissal and remand for further proceedings.
Reversed and Remanded.
MATHIAS, J., concurs.
BRADFORD, J., concurs in result with opinion.
11
IN THE
COURT OF APPEALS OF INDIANA
STATE OF INDIANA, )
)
Appellant-Plaintiff, )
)
vs. ) No. 32A01-1306-CR-282
)
CHAD BRYANT, )
)
Appellee-Defendant. )
BRADFORD, Judge, concurring in result
While I concur with the majority’s holding, I would reach that result by a different
route. At the outset I think it is fair to note that Bryant’s attack on the BMV’s notice is
one on the details of the notice, said details not even required by the statute. Indiana
Code section 9-30-10-5(a) does not require that the BMV’s notice of suspension identify
the violations supporting an HTV determination with any specificity:
If it appears from the records maintained by the bureau that a person’s
driving record makes the person a habitual violator under section 4 of this
chapter, the bureau shall mail a notice to the person’s last known address
that informs the person that the person’s driving privileges will be
suspended in thirty (30) days because the person is a habitual violator
according to the records of the bureau.
12
If Bryant had challenged his suspension with the BMV, I think we can all agree that the
agency would almost certainly have simply issued a new notice correctly listing the
“Operating per se .08” conviction under Cause 361.
In addition, I agree that Bryant’s suspension must be considered valid until
challenged; however, I would decide this case on the more fundamental basis that there is
simply no way that Bryant can establish that his suspension suffers from material error
within the meaning of the Indiana Supreme Court’s holding in Oney. Oney is clear that
in order for a conviction to be set aside on the basis of “material error,” it must be
established that the claimant is actually innocent of the charge, something that Bryant
does not even allege. Oney, 993 N.E.2d at 163 (“And for our purposes, error is material
only if Oney was actually innocent of the charge, or in the language of Starks the error is
material ‘if the underlying offense was not committed.’” (citation omitted)). Although
Bryant correctly notes that he was not convicted of “Operating per se .08” in Cause 312,
in no way does this establish that he did not commit such a crime. Because Bryant has
not established material error in any of the convictions underlying his HTV
determination, he cannot successfully challenge his suspension on that basis. Because
Bryant cannot establish that his suspension was invalid, he cannot successfully challenge
his operating a vehicle as an HTV conviction on that basis. I would dispose of Bryant’s
appeal on that ground, and therefore respectfully concur in result.
13