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
Indianapolis, Indiana
____________________________________________________________________________
__
In the
Indiana Supreme Court
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No. 31S04-0308-PC-352
State Of Indiana,
APPELLANT (RESPONDENT BELOW),
v.
Kevin Starks,
Appellee (Petitioner below).
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Appeal from the Harrison Superior Court, No. 31D01-0010-DF-849
The Honorable Roger D. Davis, Judge
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On Petition To Transfer from the Indiana Court of Appeals, No. 31A04-0209-
PC-438
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October 19, 2004
Rucker, Justice.
A defendant who pleads guilty to driving while suspended as an
habitual traffic violator may not later challenge the plea on grounds that
the underlying offense is invalid.
Facts and Procedural History
Kevin Starks has a long history of traffic offenses. In March 1991,
July 1991, and October 1993, he was convicted of operating a vehicle while
intoxicated. As a result, in November 1993, the Bureau of Motor Vehicles
(“BMV”) sent notice advising Starks of his status as an habitual traffic
violator (“HTV”) and informing him that his license would be suspended for
ten years beginning December 29, 1993. See Ind. Code § 9-30-10-5. In
November 1995 the BMV sent Starks a follow-up notice advising him of his
right to judicial review.[1] In November 1997 and again in April 1999,
Starks was convicted of driving while suspended as an HTV. See I.C. § 9-30-
10-16. In October 2000, Starks was charged with operating a vehicle while
intoxicated; driving while suspended as an HTV; and public intoxication.
In April 2001, under the terms of a plea agreement, Starks pleaded guilty
in the Harrison Superior Court to the driving offenses for which he
received a one-year executed sentence, three years probation, and a
lifetime suspension of his driving privileges. The State dismissed the
public intoxication charge. Starks did not appeal.
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,[2] 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. Appellant’s 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:
“Starks’s [habitual traffic violator] adjudication was invalid at the time
of his [Harrison County] conviction, and therefore Starks’s 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), reh’g denied. Having previously granted the State’s petition to
transfer, we now reverse the judgment of the post-conviction court.
Discussion and Decision
Indiana Code section 9-30-10-16 provides in pertinent part, “A person
who operates a motor vehicle: (1) while the person’s driving privileges are
validly suspended under this chapter . . . or (2) in violation of
restrictions imposed under this chapter . . . commits a Class D felony.”
Commenting in Stewart v. State, 721 N.E.2d 876, 878 (Ind. 1999), that
“[o]ur case law has not been kind to a relatively simple statute,” we
examined existing case authority interpreting this statute and the broader
legislative scheme concerning repeat traffic violators of which this
statute is a part. Reconciling what we characterized as “judicial
accretions” creating a complicated labyrinth, we concluded that to obtain a
conviction for driving while suspended or driving after being adjudged an
habitual traffic violator, the State must prove: (1) the act of driving,
(2) a license suspension or an HTV adjudication, and (3) that the defendant
knew or should have known about the suspension. Id. at 879. Underscoring
the significance of the “knew or should have known” element of the offense,
we cited with approval Gentry v. State, 526 N.E.2d 1187 (Ind. Ct. App.
1988), trans. denied. In that case the Court of Appeals held that if a
person who knew he had been adjudged an HTV drove a vehicle, then he
committed the offense of operating a motor vehicle, a separate and distinct
offense. Id. at 1189. We observed:
The Gentry court determined that the 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. . . .
It 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 may not do so because he
has been declared an habitual traffic violator, he is flaunting
the law even if one or more of the underlying convictions is
voidable.
Stewart, 721 N.E.2d at 880 (citations and internal quotations omitted)
(determining that the defendant’s conviction for driving while suspended as
an habitual traffic violator was valid because he knew or reasonably should
have known of his suspension).
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 Hammond’s 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 appellant’s 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 Hammond’s suspension and the post-conviction
court erred when it determined that Hammond’s guilty plea was unsupported
by a sufficient factual basis. We then said:
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 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, see I.C. § 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.
Conclusion
We reverse the judgment of the post-conviction court.
Shepard, C.J., and Dickson, Sullivan and Boehm, JJ., concur.
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[1] In the interim, on May 4, 1995, Starks was again convicted of operating
a vehicle while intoxicated.
[2] The trial court’s reason for granting the motion is not clear from the
record before us. However, Starks contends he pleaded guilty to the charge
without representation of counsel. See Appellant’s App. at 63-64.