dissenting,
I respectfully dissent. As noted by the majority, proof of a valid suspension is an essential element of the offense of driving while suspended due to HTV status. Fields v. State, 679 N.E.2d 898, 901 n. 6 (Ind.1997); Brown v. State, 677 N.E.2d 517, 519-20 (Ind.1997). Moreover, in order to prove a valid suspension, the State must prove that the BMV mailed the notice of suspension mandated by Ind.Code § 9-30-10-5. Id. Finally, the notice of suspension mandated by Ind. Code § 9-30-10-5 must inform the driver of the right to seek judicial review of the suspension. Pebley v. State, 686 N.E.2d 168, 169 (Ind.Ct.App.1997).
Therefore, proof of the mailing required by statute is, in effect, an essential element of the offense. However, I believe that had the General Assembly intended that proof of mailing be an essential element of the crime of driving while suspended as an HTV as proscribed by Ind.Code § 9-30-10-16, it would have been included as an element in the statute. See Fennell v. State, 698 N.E.2d 823, 825-26 (Ind.Ct.App.1998) (the “eviden-tiary prerequisite” of mailing is a foundational concept and not an essential element).
Nevertheless, being constrained to follow supreme court precedent, I must dissent. In the present post-conviction proceedings, the evidence is undisputed that Etter proved that the notice provided by the BMV did not include notice of the right to seek judicial review. Therefore, Etter has proved that his *942license was not validly suspended, an essential element of the crime.
Thus, Etter has carried his burden of proof by demonstrating that he was not guilty of the charged crime. See Butler v. State, 658 N.E.2d 72, 78 (Ind.1995) (where the post-conviction petitioner challenges a guilty plea on the basis of factual sufficiency, he must establish that he was not guilty of the charged crime); See also Weatherford v. State, 619 N.E.2d 915, 918 (Ind.1993) (where post-conviction petitioner challenges the sufficiency of evidence supporting his habitual offender adjudication, he must demonstrate that he was not an habitual offender under the laws of the state). Accordingly, I would hold that Etter has established his entitlement to post-conviction relief.