ATTORNEYS FOR APPELLANT ATTORNEYS FOR APPELLEE
Karen M. Freeman-Wilson J. J. Paul, III
Attorney General of Indiana Mitchell P. Chabraja
Indianapolis, Indiana
Adam M. Dulik
Deputy Attorney General
Indianapolis, Indiana
IN THE
SUPREME COURT OF INDIANA
State of Indiana, )
)
Appellant (Respondent Below), )
) No. 41S04-0104-PC-00196
v. ) in the Supreme Court
)
Willie Virginia Hammond, ) No. 41A04-0003-PC-00126
) in the Court of Appeals
Appellee (Petitioner Below). )
APPEAL FROM THE JOHNSON SUPERIOR COURT
The Honorable Kim VanValer Shilts, Judge
Cause No. 41D03-9703-DF-00041
January 28, 2002
SHEPARD, Chief Justice.
Willie Virginia Hammond’s driving license was suspended after she was
adjudged an habitual traffic violator (HTV). She drove anyway, got caught
at it, and eventually pled guilty to a felony charge arising from doing so.
In a later petition for post-conviction relief, she claimed her
guilty plea lacked a factual basis because the HTV notice sent to her was
defective. The trial court agreed and granted Hammond relief. We reverse.
Facts and Procedural History
On March 16, 1997, Officer Kelly Browning of the Franklin Police
Department stopped Hammond in Johnson County for speeding. Hammond had no
driver’s license, and she told the officer that she believed her license
was suspended. Officer Browning confirmed with the Bureau of Motor
Vehicles (BMV) that Hammond had been adjudged an habitual traffic offender.
The State charged Hammond with operating a motor vehicle while
suspended as an HTV, a class D felony.[1] Hammond pled guilty pursuant to
a plea agreement and testified that she knew of her HTV suspension when she
drove on March 16, 1997. In her agreement, Hammond acknowledged that she
understood the charge and possible penalties. The trial court accepted her
plea, found her guilty, imposed a two-year sentence, and suspended it to
probation.
On June 16, 1999, Hammond filed a verified petition for post-
conviction relief asserting that the BMV’s notice suspending her as an
habitual violator was defective because it did not advise her of the
opportunity for administrative review.[2] She argued that her counsel was
ineffective for failing to determine the propriety of the suspension and
that improper suspension invalidated her guilty plea.[3]
Hammond also filed a petition for judicial review of her HTV
suspension in the Marion Circuit Court. On August 2, 1999, that court
found the BMV notice “insufficient to support her suspension as an Habitual
Traffic Offender” and ordered BMV to vacate the suspension retroactively.
(R. at 137.)
The post-conviction court relied on this ruling and vacated Hammond’s
guilty plea, believing it was not supported by an adequate factual basis.
The Court of Appeals affirmed. State v. Hammond, 737 N.E.2d 425 (Ind. Ct.
App. 2000), trans. granted, opinion vacated, 753 N.E.2d 10 (Ind. 2001).
Standard of Review
When reviewing a judgment granting post-conviction relief we follow
the standard prescribed by Indiana Trial Rule 52(A):
On appeal of claims tried by the court without a jury or with an
advisory jury, at law or in equity, the court on appeal shall not set
aside the findings or judgment unless clearly erroneous, and due
regard shall be given to the opportunity of the trial court to judge
the credibility of the witnesses.
See Spranger v. State, 650 N.E.2d 1117, 1119 (Ind. 1995).
In determining whether the judgment is clearly erroneous, we neither
reweigh the evidence nor determine the credibility of witnesses. Id.
Rather, we consider only the evidence that supports the judgment and the
reasonable inferences to be drawn from that evidence. Id.
A “Valid” Suspension
The State argues that because Hammond admitted to driving a car when
she knew her license was suspended for HTV, a sufficient factual basis
supported her guilty plea. (Appellant’s Br. at 4.) We agree.
Before a court may accept a guilty plea, it must determine that the
plea is offered voluntarily and supported by a factual basis. Ind. Code
Ann. § 35-35-1-3(b) (West 1998). “A sufficient factual basis can be
established by the defendant’s admission that he understands the nature of
the crime and understands that his guilty plea is an admission that he
committed the crime.” Bates v. State, 517 N.E.2d 379, 381 (Ind.
1988)(citing Lombardo v. State, 429 N.E.2d 243 (Ind. 1981)).
At the time of her arrest, Hammond admitted to Officer Browning that
she believed her license was suspended. In a plea agreement, she
acknowledged that she understood the charge and committed each element of
the crime. (R. at 28, 31.) Before accepting Hammond’s guilty plea, the
court reconfirmed Hammond’s understanding of and admission to the charge.
(R. at 86-89.)
In challenging this factual basis during her post-conviction hearing,
Hammond did not deny that she drove while knowing that her license was
suspended. Rather, she asserted that the suspension was invalid because
the suspension notice was incomplete. (R. at 55-56.) As support, she
cited the order from the Marion Circuit Court instructing the BMV to vacate
Hammond’s HTV adjudication based on the incomplete notice. (R. at 72.)
The post-conviction court granted Hammond’s requested relief, saying:
“If Ms. Hammond was not, in fact, properly suspended on March 16, 1997,
the factual basis for her guilty plea is invalidated. Thus, the Court
finds that Ms. Hammond’s guilty plea is not supported by an adequate
factual basis and that its acceptance of her guilty plea must be vacated.”
(R. at 81.)
For reasons we recently explained in Stewart v. State, 721 N.E.2d 876
(Ind. 1999), this conclusion is clearly erroneous.
In Stewart, the perpetrator was convicted for driving while his
license was suspended as an HTV. Id. at 877. At trial, Stewart argued
unsuccessfully that the State failed to prove that it mailed him a notice
containing the required advisement of his rights. Id. at 877-78. On
appeal, we affirmed the conviction, noting: “To obtain convictions for
driving while suspended or after being adjudicated an habitual violator,
the State need prove . . . (1) the act of driving, and (2) a license
suspension or an HTV adjudication, plus . . . (3) that the defendant knew
or should have known [of the suspension].” Id. at 879 (emphasis in
original).
We said, “[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.” Id. at 880 (citations omitted). We explicitly disapproved
of two decisions in which the Court of Appeals reversed driving while
suspended convictions based on inadequate suspension notices, saying,
“While defects in the administrative process may warrant relief under
administrative law, it is not the province of criminal proceedings to
correct such errors.” Id. (disapproving Griffin v. State, 654 N.E.2d 911
(Ind. Ct. App. 1995) and Pebley v. State, 686 N.E.2d 168 (Ind. Ct. App.
1997)).
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
880 (citation omitted).
Hammond asserts that a recent legislative amendment adding the word
“validly” to modify “suspended” in § 9-30-10-16[4] served to nullify the
holding in Stewart. (Appellee’s Br. at 8-9.) Although the former version
of the statute was in effect at the time of Hammond’s arrest and trial,
Hammond contends that the amendment shows the legislature’s intent that any
notice deficiency in the underlying suspension automatically invalidates a
conviction for operating while suspended. (Appellee’s Br. at 8-10.) We
disagree.
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. See Stewart, 721 N.E.2d at 879-80. 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.
Here, as in Stewart, the omission in Hammond’s suspension notice does
not entitle her to per se reversal of her suspension. It does afford her
an equitable remedy: an extended time frame during which to challenge her
suspension on the merits. We alluded to this relief in Stewart, saying,
“[I]t is conceivable that failure to mail a notice might afford a driver
certain tardy remedies in the administrative process or in court . . . .”
Id. at 879.
The validity of a license suspension depends on the merits of the
adjudication, so an untimely or incomplete suspension notice does not
justify automatic reversal of the suspension. The Marion Circuit Court
thus erred when it vacated Hammond’s suspension based solely on inadequate
notice, and the post-conviction court erred when it determined that
Hammond’s guilty plea was unsupported. 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.
Conclusion
We reverse the decision of the post-conviction court, and direct that
the conviction be reinstated.
Dickson, Sullivan, Boehm, and Rucker, JJ., concur.
-----------------------
[1] See Ind. Code Ann. § 9-30-10-16 (West 1998): “A person who operates a
motor vehicle . . . while the person’s driving privileges are suspended
[under the habitual violator laws] . . . commits a Class D felony.”
[2] It is undisputed that the BMV’s notice to Hammond did not advise her of
her right to challenge the suspension or the procedure for doing so.
(Appellee’s Br. at 5-7.) See Ind. Code Ann. § 9-30-10-5(c)(West 1998)(“The
notice must inform the person that the person may be entitled to relief . .
. or may seek judicial review of the person’s suspension under this
chapter.”). The challenge procedure is set forth in Ind. Code Ann. § 9-30-
10-6 (West 1998):
(a) A person who has received a notice under section 5 of this chapter
may notify the bureau . . . that the bureau's records contain a
material error with respect to the person's driving record . . . [T]he
bureau shall, within thirty (30) days after the date the notice was
received by the bureau, determine whether a material error was made
with respect to the person's driving record.
(b) If the bureau determines that a material error was made with
respect to the person's driving record, the bureau shall:
(1) prevent the suspension of; or (2) reinstate; the person's driving
privileges.
[3] Of course, Hammond would not be entitled to post-conviction relief on
ineffective assistance grounds unless she demonstrated both deficient
performance and prejudice. Even assuming deficient performance, it is
apparent from our decision today that Hammond has not demonstrated a
reasonable probability of a different outcome.
[4] This amendment, effective July 1, 2000, revised Ind. Code § 9-30-10-16
to read: “A person who operates a motor vehicle: (1) while the person’s
driving privileges are validly suspended . . . and the person knows that
the person’s driving privileges are suspended . . . commits a Class D
felony.” (Additions underlined.)