ATTORNEYS FOR APPELLANT                                   ATTORNEY FOR APPELLEE
Gregory F. Zoeller                                        David M. Seiter
Attorney General of Indiana                               Garrison Law Firm, LLC
                                                          Indianapolis, Indiana
Cynthia L. Ploughe
Deputy Attorney General

Justin F. Roebel
Deputy Attorney General
Indianapolis, Indiana

______________________________________________________________________________
                                                         Aug 28 2013, 9:08 am


                                            In the
                              Indiana Supreme Court
                              _________________________________

                                     No. 49S05-1212-CR-668

STATE OF INDIANA,
                                                          Appellant (Respondent below),

                                               v.

RUSSELL ONEY,
                                                        Appellee (Petitioner below).
                              _________________________________

               Appeal from the Marion Superior Court, Criminal Division, Room 18
                                  No. 49F18-9911-DF-191975
                              The Honorable Reuben B. Hill, Judge
                            _________________________________

      On Petition To Transfer from the Indiana Court of Appeals, No. 49A05-1204-CR-196
                           _________________________________


                                        August 28, 2013


Rucker, Justice.
        Although a defendant who pleads guilty to driving while suspended as a habitual traffic
violator may not later challenge the plea contending that an underlying offense has been set aside
on grounds of procedural error, a defendant may be entitled to relief where an underlying offense
has been set aside on grounds of material error.


                                     Facts and Procedural History


        In January 1994, the Indiana Bureau of Motor Vehicles sent notice to Russell Oney
advising him of his status as a habitual traffic violator (“HTV”) and informing Oney that his
driving license would be suspended for ten years beginning February 23, 1994. See Ind. Code §
9-30-10-5. This determination was based on: (1) his 1986 conviction in Fayette County for
operating a vehicle while intoxicated (“OWI”) as a Class A misdemeanor; (2) his 1989
conviction in Fayette County for OWI as a Class D felony, and (3) his 1993 conviction in Marion
County for OWI as a Class D felony.                  Despite the notice, which Oney subsequently
acknowledged receiving, on November 1, 1999 Oney was arrested for OWI and public
intoxication. Thereafter he was charged with operating a vehicle while suspended as an HTV, as
a Class D felony, operating a vehicle while intoxicated with a prior OWI offense, as a Class D
felony, and public intoxication as a Class B misdemeanor. In July 2002, under terms of a plea
agreement, Oney pleaded guilty in the Marion Superior Court to the HTV offense for which he
received a three-year sentence with 180 days suspended to probation, and a lifetime suspension
of his driving privileges. See I.C. § 9-30-10-16(c) (“In addition to any criminal penalty, a person
who is convicted of [the felony of operating a vehicle while suspended as an HTV] forfeits the
privilege of operating a motor vehicle for life.”). The State dismissed the remaining charges.


        In May 2010, Oney filed a verified petition for post-conviction relief in the Fayette
Superior Court1 challenging his 1989 OWI conviction on grounds of alleged impropriety on the



1
  The copy of the petition in the record before us does not bear a file stamp indicating that the petition was
ever actually filed with the trial court. Instead the certificate of service shows the petition was served on
the Fayette County Prosecutor’s Office on May 16, 2010. See App. at 57. The State apparently concedes
this date and does not challenge that the petition was actually filed. See Br. of Appellant at 3 (“[O]n May
16, 2010, Defendant sought relief in [Fayette] County Superior Court from his June 6, 1989, conviction
for operating while intoxicated—one of the underlying convictions used for the HTV determination.”).


                                                      2
part of the trial judge2 and the alleged violation of his right to counsel. The record is silent on
whether a hearing was conducted on the petition. However, not only did the State not oppose the
petition, but also the State entered into a joint “Agreed Entry of Post-Conviction Relief,”
contending among other things, that after appointing counsel to represent Oney, the trial judge:
(i) ordered Oney transported from custody in the county jail and brought to court without counsel
being present; (ii) engaged Oney in “ex-parte communications . . . on two separate occasions;”
and (iii) “coerced him into taking the plea without his attorney being present.” App. at 105. The
post-conviction court entered an order declaring in pertinent part:

                The Court being duly advised of the ”Agreed Entry of Post
                Conviction Relief” filed by the parties in this matter (H.I.) and
                having found the facts agreed to by the parties demonstrate a
                material error and not simply a procedural error, the Court now
                finds that the Defendant’s Petition for Post-Conviction Relief
                should be granted.

App. at 64. The post-conviction court vacated the 1989 OWI conviction and ordered it expunged
from the records of the BMV.


        Armed with the Fayette Superior Court order, Oney then filed in the Marion Superior
Court a verified motion to set aside his 2002 guilty plea. The motion essentially recounted the
“material error” finding of the Fayette Superior Court and asserted Oney sought relief “because it
is necessary to correct a manifest injustice pursuant to I.C. § 35-35-1-4(c) (1), (3), and (5).”
App. at 49. After entertaining arguments of counsel, the trial court granted the motion, set aside
the guilty plea, and ordered Oney’s conviction and resulting lifetime suspension expunged from
his record. On review the Court of Appeals reversed the judgment of the trial court. See State v.
Oney, 974 N.E.2d 1054 (Ind. Ct. App. 2012). Having previously granted transfer we now affirm
the judgment of the trial court. Additional facts are set forth below.




We presume therefore that the petition was properly filed in the Fayette Superior Court and thus was a
part of the trial court’s records.
2
  The judge in question no longer serves as a judicial officer and has since retired from the practice of
law.


                                                   3
                                        Standard of Review


       A motion to set aside a guilty plea is treated as a petition for post-conviction relief. I.C. §
35-35-1-4.     “Post-conviction proceedings are not super-appeals and provide only a narrow
remedy for subsequent collateral challenges.” State v. Cooper, 935 N.E.2d 146, 148 (Ind. 2010).
Where, as here, the State appeals a judgment granting post-conviction relief, we review using the
standard in 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 witnesses.

State v. Hollin, 970 N.E.2d 147, 150 (Ind. 2012). Under the clearly erroneous standard of
review, we review only for the sufficiency of the evidence. State v. Dye, 784 N.E.2d 469, 471
(Ind. 2003). We neither reweigh the evidence nor determine the credibility of witnesses. Id. We
consider only the probative evidence and reasonable inferences supporting the judgment and
reverse only on a showing of clear error. Id. Clear error is “that which leaves us with a definite
and firm conviction that a mistake has been made.” Spranger v. State, 650 N.E.2d 1117, 1119
(Ind. 1995).


                                            Discussion


       The State contends the trial court—acting as a post-conviction court—committed clear
error in setting aside Oney’s guilty plea because in so doing it contravened ruling precedent of
this Court, namely, State v. Starks, 816 N.E.2d 32 (Ind. 2004). In that case defendant Starks
pleaded guilty in 2001 to OWI and operating while suspended as an HTV. Thereafter, Starks
successfully challenged one of the underlying predicate offenses for the HTV determination; and
the trial court entered an order vacating the conviction. Although the record in that case was not
clear, apparently Starks had pleaded guilty to the predicate offense without representation of
counsel. Id. at 33 n.2. Based on the trial court’s order, Starks then filed a petition for post-
conviction relief challenging his 2001 guilty plea.        The post-conviction court granted the



                                                 4
petition, set aside his conviction of operating while suspended as an HTV, and ordered the
resulting suspension be expunged from Starks’ driving record. On review the Court of Appeals
affirmed. We granted transfer and reversed the judgment of the post-conviction court. In so
doing, this Court declared:

               [T]he 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.

                                            *     *      *

               [T]he essence of the HTV offense [is] 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.

Starks, 816 N.E.2d at 33-34 (internal citations and quotations omitted). The State essentially
relies on the foregoing language to support its argument that “the trial court’s decision to grant
post-conviction relief is contrary to law and is clearly erroneous.” Br. of Appellant at 7.


       It is certainly the case that Starks confirmed the principle that it is the fact of driving after
an HTV suspension has been imposed that is crucial, whether or not that determination is subject
to attack. But Starks cannot be read as standing for the proposition that the possibility of relief is
forever foreclosed. Instead the Court declared: “[Although] it is not a sufficient basis for relief
that the underlying offense has been set aside on procedural grounds” however “[i]f the person
successfully demonstrates[] either to the BMV or to the court . . . that a ‘material error’ has
occurred then the person is afforded the opportunity to pursue post-conviction relief.” Starks,
816 N.E.2d at 35 (emphasis added). We elaborated: “Only if the underlying offense was not




                                                  5
committed . . . is the error ‘material.’” Id.3 Defendant Starks was not entitled to post-conviction
relief because the underlying OWI offense was vacated apparently due to Starks pleading guilty
without the benefit of counsel. Although this may very well suffice as grounds for setting aside
the underlying offense, with respect to vacating a subsequent HTV conviction, such grounds are
considered procedural.


       In this case the threshold question is whether Oney’s 1989 OWI conviction was set aside
on the basis of “material error.” 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.”         Id.       Here the Fayette Superior Court found that
“material error” occurred but it made no express finding that Oney did not commit the offense.
Instead the court based its material error conclusion on “the facts agreed to by the parties.” App.
at 64. In turn the salient facts to which the parties agreed were that the trial judge in 1989: (i)
ordered Oney transported from custody in the county jail and brought to court without counsel
being present; (ii) engaged Oney in “ex-parte communications . . . on two separate occasions”;
and (iii) “coerced him into taking the plea without his attorney being present.” Id. at 105.


       Only the third of these implicates Oney’s actual innocence. However, the court’s finding
on this point appears to be a condensed summary of allegations contained in Oney’s verified
petition for post-conviction relief. In particular, Oney alleged in pertinent part that while in
custody after his arrest counsel recommended that Oney accept a plea agreement; he attempted to
do so, however the trial judge rejected the plea because Oney maintained his innocence. Id. at
53. Sometime thereafter, while still in custody, Oney was transported to court, and outside the
presence of counsel the trial judge attempted to persuade Oney to enter a guilty plea. Oney
refused to change his plea and was ordered back to jail. Id. A jail representative allegedly
explained to Oney that the judge would not release Oney until he pleaded guilty. The following
day, Oney returned to open court without the presence of counsel and “changed his plea under
duress.” Id.

3
  The Court provided one example of how a defendant might demonstrate that the offense was not
committed: “by proving that the BMV erroneously included the defendant as the same person as the
offender in the subsequent court.” Starks, 816 N.E.2d at 35. This single example was not intended to be
exhaustive.


                                                     6
       Agreeing that Oney was entitled to have his 1989 OWI conviction set aside, the State did
not contest the allegations in his verified petition. And taken as true, the allegations support a
conclusion that Oney did not commit the offense to which he pleaded guilty. Six decades ago
this Court held that “a plea of guilty tendered by one who in the same breath protests his
innocence . . . is no plea at all. Certainly it is not a sufficient plea upon which to base a judgment
of conviction.” Harshman v. State, 115 N.E.2d 501, 502 (Ind. 1953). Accordingly, “a judge
may not accept a plea of guilty when the defendant both pleads guilty and maintains his
innocence at the same time. To accept such a plea constitutes reversible error.” Ross v. State,
456 N.E.2d 420, 423 (Ind. 1983). “A defendant who says he did the crime and says he did not
do the crime has in effect said nothing, at least nothing to warrant a judge in entering a
conviction.” Carter v. State, 739 N.E.2d 126, 128-29 (Ind. 2000); see also Johnson v. State, 960
N.E.2d 844, 849 (Ind. Ct. App. 2012) (“Indiana jurisprudence has insisted that a factual basis
must exist for a guilty plea and a judge may not accept a guilty plea while a defendant claims
actual innocence.”) (citation omitted). In this case, not only did Oney at least initially maintain
his actual innocence but also his ultimate plea of guilty was entered at the urging of the trial
judge. “[D]efendants who can show that they were coerced or misled into pleading guilty by the
judge, prosecutor or defense counsel will present colorable claims for relief.” State v. Moore,
678 N.E.2d 1258, 1266 (Ind. 1997). Here, the judge’s acceptance of the 1989 plea was error.
And as the post-conviction court correctly determined the error was material and not simply
procedural. Thus, Oney was entitled to seek further relief. “This is not to say however that relief
automatically [would] be granted.” Starks, 816 N.E.2d at 35.


       In this case, noting the “material error” finding of the post-conviction court, Oney filed
his verified motion to set aside his 2002 plea of guilty to operating a motor vehicle while
suspended as an HTV. The trial court in Marion County—acting as a post-conviction court—did
not conduct an evidentiary hearing in this case. Instead both the State and Defense submitted
written briefs supporting their respective positions. Included in the defense brief were several
attachments including Oney’s verified affidavit.4 According to the representations in the brief,
as supported by Oney’s affidavit, on January 14, 1989 Oney was a passenger in a vehicle driven


4
 The following uncontested facts were taken from Oney’s verified affidavit which is found on pages 98-
101 of the Appendix.


                                                  7
by another person who was involved in an automobile accident. The driver drove away from the
scene, but Oney persuaded him to drive to the police station to report the matter. The driver did
so, and after they arrived, officers of the Connersville police separated the two and took their
respective statements. Both had been drinking; and Oney later learned that the driver laid blame
for the accident on Oney. He was arrested and subsequently charged with: (1) OWI, and (2)
leaving the scene of an accident. Oney hired private counsel to represent him who advised Oney
to plead guilty, even though he maintained his innocence. In February 1989, with advice of
Counsel Oney attempted to plead guilty; however the trial judge rejected the plea because Oney
maintained his innocence while attempting to plead. After the February hearing, Oney did not
see his lawyer again and later learned that he had been disbarred in May, 1989. At some point
the trial court appointed replacement counsel to represent Oney. On June 5, 1989, Oney was
escorted from the county jail and outside the presence of counsel or the prosecutor, the trial
judge encouraged Oney to plead guilty but he “continued to refuse to plead guilty.” Oney’s
Verified Aff. at ¶ 11. The following day he was again escorted to court, and without the
prosecutor or his attorney being present, the judge “argued with” Oney to plead guilty while he
continued to maintain his innocence. Id. at ¶ 13. According to Oney, “[e]ventually, I said, ‘fine .
. . then, I’m guilty.’ At that point, the Court then took a factual basis. I felt coerced by the Court
that only by pleading guilty would I be released from jail.” Id.


       We first observe that although the foregoing representations shed further light on the
question of whether in 1989 Oney actually committed the offense of OWI, these representations
have only an indirect bearing on his 2002 plea of guilty to operating a vehicle while suspended
as an HTV. Stated somewhat differently the foregoing representations appear to confirm that the
post-conviction court correctly determined that material error occurred with respect to the 1989
OWI conviction. However, this determination merely provided Oney the opportunity to file a
petition to set aside the guilty plea in the court where he pleaded guilty to the felony of driving
while suspended as an HTV. We repeat for emphasis that only because there was sufficient
evidence before the Fayette Superior Court judge to conclude that Oney did not commit the OWI




                                                  8
underlying offense, was he then afforded the opportunity to attempt additional relief in the
Marion Superior Court.5


        A motion to set aside a guilty plea is governed by Indiana Code section 35-35-1-4 which
provides in pertinent part:

                After being sentenced following a plea of guilty . . . 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. .
                . . 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) 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.

(emphasis added). In this case it appears that only subparagraph (5) is applicable in assessing
whether Oney’s 2002 plea of guilty to driving while suspended as an HTV may be withdrawn
and the judgment of conviction vacated on grounds of manifest injustice.6 Essentially, the

5
  But see Hoaks v. State, 832 N.E.2d 1061, 1063, 1064 (Ind. Ct. App. 2005), trans. denied (concluding in
a divided opinion that post-conviction relief was not warranted because “Hoaks was aware of his
adjudication as an HTV at the time of his conviction,” and it was of no consequence that “an underlying
offense in his HTV adjudication was material error”). We disapprove that portion of Hoaks which is
inconsistent with our opinion today.
6
  The transcript of the 2002 change of plea hearing reflects that Oney was represented by counsel; and
upon inquiry by the trial judge, Oney answered: “Yes sir I am” to the question “[are you] [s]atisfied with
the legal advice and counsel that he has given you in this case?” Tr. at 7. The record also reflects that
Oney entered a plea of guilty after the trial judge advised him of the constitutional rights he would be
waiving by pleading guilty. Id. at 3. Oney also answered: “No sir” to the trial judge’s question “has
anyone forced you or threatened you in any way to make you give up your rights?” Id. at 4. All of which


                                                    9
question is whether the conviction was either “void” or “voidable.” This distinction “is no mere
semantic quibble.” Stidham v. Whelchel, 698 N.E.2d 1152, 1154 (Ind. 1998). While “[a] void
judgment is one that, from its inception, is a complete nullity and without legal effect,” “a
voidable judgment is not a nullity . . . [u]ntil superseded, reversed, or vacated. . . .” Id. (internal
quotations omitted).


        Here Oney’s 2002 plea of guilty as an HTV comported with all the formalities attendant
to such pleas. See n.6. Further, Oney qualified as an HTV because he had accumulated at least
three OWI convictions within ten years.             See I.C. § 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: . . . [o]peration of a vehicle while intoxicated.”). Thus, it is clear that Oney’s plea was
not “void,” that is to say it was not “from its inception, . . . a complete nullity and without legal
effect.” Stidham, 698 N.E.2d at 1154. This leaves us with the question of whether the plea and
judgment of conviction were “voidable.”


        We first acknowledge that as a general proposition, “[a] voidable judgment or order may
be attacked only through a direct appeal, whereas a void judgment is subject to direct or
collateral attack at any time.” M.S. v. C.S., 938 N.E.2d 278, 284 (Ind. Ct. App. 2010) (emphasis
added) (citation omitted). And our courts “have long deemed post-conviction proceedings
collateral.” Hall v. State, 849 N.E.2d 466, 472 (Ind. 2006) (collecting cases). However, this
general proposition precluding collateral review of voidable judgments must yield to the
Legislature’s specific directive that, “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,” I.C. §
33-35-1-4(c) (emphasis added); and that “withdrawal of the plea is necessary to correct a
manifest injustice” which includes instances whenever “the plea and judgment of conviction are .
. . voidable . . . .” Id.



demonstrates that Oney received the effective assistance of counsel and entered his plea knowingly and
voluntarily. See I.C. §§ 35-35-1-4(c)(1)-(3). We thus reject Oney’s contention that he is entitled to relief
under subparagraphs (1) and (3). App. at 49. Oney makes no claim that the prosecuting attorney failed to
abide by the terms of the plea agreement. See I.C. § 35-35-1-4(c)(4).


                                                    10
       As noted earlier, Oney’s 2002 HTV guilty plea was based upon Oney having been
previously convicted of (1) OWI in Fayette County in 1986; (2) OWI in Fayette County in 1989;
and (3) OWI in Marion County in 1993. When the post-conviction court in 2010 vacated the
1989 OWI conviction on grounds of material error, without objection from the State and in fact
with its full concurrence, the predicate offense qualifying Oney as an HTV no longer existed.
The absence of a predicate offense justifying an HTV determination provided sufficient basis for
the trial court here—acting as a post-conviction court—to conclude that the guilty plea and
judgment of conviction were voidable. See, e.g., Olinger v. State, 494 N.E.2d 310, 311 (Ind.
1986) (declaring that the trial court “ha[d] no choice” but to vacate defendant’s sentence
enhancement which was based upon a habitual offender status after the court of conviction
vacated one of two underlying offenses); Coble v. State, 500 N.E.2d 1221, 1223 (Ind. 1986)
(noting that with respect to the general habitual offender statute, a sentence enhancement “cannot
be based upon prior convictions which are set aside after the habitual offender determination”).
See also Spivey v. State, 638 N.E.2d 1308, 1312 (Ind. Ct. App. 1994) (“An habitual offender
verdict which was based upon a predicate offense subsequently set aside for constitutional
reasons must be vacated.”).


       In this case the trial court entered an order granting Oney’s verified motion to set aside
his guilty plea “pursuant to Indiana Code [§] 35-35-1-4” and directed the Indiana Bureau of
Motor Vehicles to vacate the resulting conviction and suspension. App. at 107. A trial court’s
ruling on a motion to withdraw a guilty plea “arrives in this Court with a presumption in favor of
the ruling.” Brightman v. State, 758 N.E.2d 41, 44 (Ind. 2001) (quotation omitted). Further,
“[i]n reviewing the State’s claim that the post-conviction court erroneously granted relief to the
defendant, ‘the inquiry is essentially whether there is any way the trial court could have reached
its decision.”’ Dye, 784 N.E.2d at 471 (emphasis in original) (quoting Spranger, 650 N.E.2d at
1120). Here, other than reciting the relevant statute, the trial court did not expressly declare the
basis on which it granted Oney’s motion. However, the only statutory ground available was to
“correct a manifest injustice.” And because, as discussed in detail above, “the plea and judgment
of conviction [were] . . . voidable” on the basis that the underlying offense was vacated, the State
has not carried its burden of demonstrating the trial court clearly erred in granting Oney’s motion
to withdraw his guilty plea.



                                                11
                                          Conclusion


       We affirm the judgment of the trial court.


Dickson, C.J., and David, Massa and Rush, JJ., concur.




                                               12
