                                                           FILED
FOR PUBLICATION                                         Sep 24 2012, 9:03 am


                                                                CLERK
                                                              of the supreme court,
                                                              court of appeals and
                                                                     tax court




ATTORNEYS FOR APPELLANT:                       ATTORNEY FOR APPELLEE:

GREGORY F. ZOELLER                             DAVID M. SEITER
Attorney General of Indiana                    Garrison Law Firm
                                               Indianapolis, Indiana
JUSTIN F. ROEBEL
Deputy Attorney General
Indianapolis, Indiana




                              IN THE
                    COURT OF APPEALS OF INDIANA

STATE OF INDIANA,                              )
                                               )
       Appellant-Plaintiff,                    )
                                               )
              vs.                              )        No. 49A05-1204-CR-196
                                               )
RUSSELL ONEY,                                  )
                                               )
       Appellee-Defendant.                     )


                    APPEAL FROM THE MARION SUPERIOR COURT
                         The Honorable Reuben B. Hill, Judge
                           Cause No. 49F18-9911-DF-191975



                                   September 24, 2012


                              OPINION - FOR PUBLICATION


NAJAM, Judge
                             STATEMENT OF THE CASE

       The State appeals the trial court’s order granting Russell Oney’s motion to set

aside his 2002 guilty plea to the charge of operating a vehicle while an habitual traffic

violator, a Class D felony (“HTV conviction”). The State presents a single issue for

review: whether the trial court erred when it vacated Oney’s 2002 guilty plea to the HTV

conviction on the ground that one of the predicate offenses to the HTV conviction had

been reversed in post-conviction proceedings with the agreement of the State.

       We reverse and remand.

                       FACTS AND PROCEDURAL HISTORY

       In January 1994, the Indiana Bureau of Motor Vehicles (“BMV”) sent notice to

Oney that he was an habitual traffic violator (“HTV”), a Class D felony, because he had

accumulated three prior judgments listed in Indiana Code Section 9-30-10-4.             The

predicate offenses for Oney’s HTV status were a 1986 conviction in Fayette County for

operating while intoxicated, as a Class A misdemeanor; a 1989 conviction in Fayette

County for operating a vehicle while intoxicated with a prior, a Class D felony (“1989

OWI”); and a 1991 conviction in Pennsylvania for driving under the influence, a

misdemeanor 2. As a result of the HTV status, the BMV suspended Oney’s driving

privileges for ten years beginning February 23, 1994. In November 1995, the BMV sent

Oney a follow-up letter, notifying him of his right to appeal his HTV status.

       On November 1, 1999, despite the suspension, Oney was driving in Marion

County when an officer initiated a traffic stop. As a result of that stop, the State charged




                                             2
Oney with operating a motor vehicle while an HTV, a Class D felony. In July 2002,

Oney pleaded guilty to that offense, the HTV conviction.1

        In May 2010, Oney filed a belated petition for post-conviction relief in Floyd

Superior Court, seeking relief from his 1989 OWI conviction. Pursuant to an agreed

entry between Oney and the State, the post-conviction court vacated the 1989 OWI

conviction and ordered that conviction and another related conviction be expunged from

the records of the BMV and the Indiana State Police. Subsequently, on November 18,

2011, Oney filed a motion to set aside his guilty plea to the HTV conviction. Treating

the motion as one for post-conviction relief, the court below held a hearing on November

28 and December 12.           After the hearing, the State tendered proposed findings and

conclusions, and Oney filed a brief in support of the relief requested. On March 20,

2012, the trial court entered its order granting Oney’s motion and setting aside his HTV

conviction. The State now appeals.

                                DISCUSSION AND DECISION

        Post-conviction proceedings provide “a narrow remedy to raise issues that were

not known at the time of the original trial or were unavailable on direct appeal. State v.

Holling, 970 N.E.2d 147, 150 (Ind. 2012). “The petitioner has the burden of establishing

his grounds for relief by a preponderance of the evidence.” Ind. Post-Conviction Rule

1(5).

        When the State appeals a judgment granting post-conviction relief, we
        review using the standard in Indiana Trial Rule 52(A):



        1
          Oney was also convicted of operating a motor vehicle while an HTV in April 1997 and of two
counts of operating after forfeiture of his driving privileges for life in 1999 in March in December 2001.
                                                    3
             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 witnesses.

      State v. Cooper, 935 N.E.2d 146, 149 (Ind. 2010). The clearly erroneous
      standard of review is a review for sufficiency of the evidence, and we
      neither reweigh that evidence nor determine the credibility of witnesses.
      Instead, we consider only the probative evidence and reasonable inferences
      supporting the trial court’s judgment. State v. Dye, 784 N.E.2d 469, 471
      (Ind. 2003). Further, the post-conviction court in this case entered findings
      of fact and conclusions of law in accordance with Indiana Post-Conviction
      Rule 1(6). Although we do not defer to the post-conviction court’s legal
      conclusions, “a post conviction court’s findings and judgment will be
      reversed only upon a showing of clear error—that which leaves us with a
      definite and firm conviction that a mistake has been made.”

Holling, 970 N.E.2d at 150-51 (some citations omitted).

      The State is appealing the order that granted Oney’s motion to withdraw his guilty

plea pursuant to Indiana Code Section 35-35-1-4. That statute provides, in relevant part:

      (c)     After being sentenced following a plea of guilty, or guilty but
      mentally ill at the time of the crime, the convicted person may not as a
      matter of right withdraw the plea. However, upon motion of the convicted
      person, the court shall vacate the judgment and allow the withdrawal
      whenever the convicted person proves that withdrawal is necessary to
      correct a manifest injustice. A motion to vacate judgment and withdraw the
      plea made under this subsection shall be treated by the court as a petition
      for postconviction relief under the Indiana Rules of Procedure for
      Postconviction Remedies. For purposes of this section, withdrawal of the
      plea is necessary to correct a manifest injustice whenever:

             (1)    The convicted person was denied the effective
                    assistance of counsel;

             (2)    The plea was not entered or ratified by the convicted
                    person;

             (3)    The plea was not knowingly and voluntarily made;



                                            4
              (4)    The prosecuting attorney failed to abide by the terms
                     of a plea agreement; or

              (5)    The plea and judgment of conviction are void or
                     voidable for any other reason.

       The motion to vacate the judgment and withdraw the plea need not allege,
       and it need not be proved, that the convicted person is innocent of the crime
       charged or that he has a valid defense.

Ind. Code § 35-35-1-4(c).

       Here, the State contends that the trial court erred when it granted post-conviction

relief by vacating the 2002 HTV conviction and allowing Oney to withdraw his guilty

plea to that offense. In support, the State cites State v. Starks, 816 N.E.2d 32 (Ind. 2004).

In Starks, our supreme court noted that, if a defendant is successful in challenging an

HTV suspension on the merits, that defendant “might then petition for post-conviction

relief in the court where [he] pled guilty to the felony of continuing to drive.” Id. at 34

(citing State v. Hammond, 761 N.E.2d 812, 816 (Ind. 2002)). However, the court then

observed:

       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. . . . [T]he 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.”

Id. at 35.



                                              5
       Here, as in Starks, Oney has had one of the predicate offenses to his HTV status

vacated. But, as noted in Starks,

       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 [flouting] the law even if
       one or more of the underlying convictions is voidable.

Id. at 33-34. See also, Hoaks v. State, 832 N.E.2d 1061 (Ind. Ct. App. 2005), trans.

denied. When the officer initiated the traffic stop in November 1999, Oney was driving

even though his license had been suspended for being an habitual traffic violator. That he

was able later to obtain an order vacating one of the predicate offenses to his HTV status

is not the point. By driving despite his HTV status and suspension, Oney was “[flouting]

the law even if one or more of the underlying convictions [was] voidable.” 2 Id. at 34.

Under Starks, the trial court erred when it vacated Oney’s conviction for operating a

motor vehicle while an HTV, a Class D felony, and allowed Oney to withdraw his guilty

plea to that offense.

       Still, Oney contends that the trial court did not err. He asserts five reasons

supporting the trial court’s order, namely that: (1) the order corrected a “manifest

injustice” under Section 35-35-1-4; (2) relief was appropriate to address a “material

error” as discussed in Starks; (3) “to deny [him] relief would amount to tacit approval of

gross Constitutional violations,” Appellant’s Brief at 7; (4) his guilty plea to the 1989


       2
           Oney contends that, following the vacation in 2010 of his 1989 conviction, the BMV “removed
[his] HTV suspension as it was no longer supported by three (3) OVWI convictions.” Appellant’s Brief
at 6. In support he cites Appellant’s Appendix at 65-67. The cited pages, a photocopy of Oney’s Indiana
Official Driver Record as of November 2, 2011, do not show the removal of HTV status. Regardless, as
we make clear in this opinion, our focus is on Oney’s status on the date of the offense, not on the
subsequent change, if any, to his HTV status.
                                                  6
OWI conviction was not made knowingly or voluntarily; and (5) the State is estopped to

deny that a “material error” resulted in the HTV conviction. We consider each argument

in turn.

       First, Oney contends that relief is appropriate to correct a manifest injustice under

Indiana Code Section 35-35-1-4(c). Again, that statute provides that “the court shall

vacate the judgment and allow the withdrawal whenever the convicted person proves that

withdrawal is necessary to correct a manifest injustice.” Ind. Code § 35-35-1-4(c). But

Oney misunderstands the manifest injustice at issue in the statute. Starks makes clear

that driving while an HTV is “[flouting] the law” regardless of “the reliability or non-

reliability of the underlying [HTV] determination[.]”       816 N.E.2d at 35.     Here, as

discussed in more detail below, the BMV committed neither a procedural error nor a

material error in determining that Oney was an HTV in 1994. Thus, although Oney’s

HTV status was later reversed, on the day of the offense underlying the HTV conviction,

Oney was “[flouting] the law” when he operated a vehicle despite his then existing HTV

suspension. Oney’s reliance on section 35-35-1-4 as the basis for withdrawing his plea to

operating a vehicle while an HTV is without merit.

       Next we consider Oney’s argument that vacation of his conviction for the HTV

and withdrawal of his guilty plea is appropriate because he was declared an HTV as the

result of a “material error.” Again, Oney mischaracterizes the error at issue. The only

“error” in this case was Oney’s 1989 OWI conviction, which was the result of violations

of his Constitutional rights by the OWI trial court. As stated above, in 1994 when the




                                             7
BMV determined Oney to be an HTV, that determination, in itself, was free of procedural

and material error.

       In any event, the “material error” standard in Starks merely affords a petitioner the

opportunity to pursue post-conviction relief, but it does not mean that relief will

automatically be granted. 816 N.E.2d at 35. Here, Oney was afforded that opportunity.

But, as discussed above, under Starks, the trial court erred when it determined that relief

was appropriate in Oney’s case. Oney’s reliance on the “material error” standard in

Starks is also unavailing.

       Next, we consider Oney’s arguments that denying post-conviction relief would

amount to “tacit approval of gross Constitutional violations.” Appellant’s Brief at 7. We

also consider the foundation for that argument, namely, that his guilty plea to the 1989

OWI conviction was not knowingly and voluntarily made. Again, the critical point is the

date on which Oney committed the underlying offense, operating a vehicle while an

HTV. As stated above, on that date he flouted the law when he drove despite his HTV

suspension, and Starks instructs us that the reliability or non-reliability of that suspension,

unless it is a matter of mistaken identity, for example, is irrelevant. Starks, 816 N.E.2d at

35. We do not condone the conduct of the trial court in 1989 that resulted in Oney’s

guilty plea to OWI, but neither do we condone Oney’s disregard for the law when he

drove despite his HTV status and the resulting suspension of his driver’s license. Oney

has not shown that Constitutional violations have any bearing on the present case.

       Finally, Oney contends that the State is estopped to assert that a material error

occurred in this case. But, again, Oney confuses the material error at issue. The State


                                              8
does not deny or even discuss the post-conviction proceedings in which Oney’s 1989

OWI conviction was vacated and his guilty plea was withdrawn.3                           Regardless, as

discussed above, the material error at issue resulted in Oney’s 1989 OWI conviction and

his subsequent determination as an HTV. There was no case of mistaken identity or other

material error that resulted in the HTV suspension at issue. Collateral estoppel does not

apply.

                                              Conclusion

         The BMV’s determination in 1994 that Oney was an HTV was based on three

predicate convictions and did not constitute manifest injustice. Nor did the BMV err,

materially or procedurally, when it determined that Oney was an HTV in 1994. As such,

when Oney operated a vehicle in 1999, despite his HTV status and resulting conviction,

he was flouting the law, even though one of the predicate convictions to his HTV status

was later vacated. As such, we reverse and remand the trial court’s order granting post-

conviction relief to Oney, vacating his HTV conviction, and allowing him to withdraw

his guilty plea to that offense.

         Reversed and remanded.

KIRSCH, J., and MAY, J., concur.




         3
            We find it curious that the State did not even mention the post-conviction proceedings
regarding the 1989 OWI conviction. That part of the procedural history is a necessary piece of the
procedural picture in this case because it provides the basis for the motion to withdraw Oney’s guilty plea
that underlies this appeal.
                                                    9
