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

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 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.

    The State charged Hammond with operating a motor vehicle while suspended as an HTV, a class D felony. See footnote 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.See footnote She argued that her counsel was ineffective for failing to determine the propriety of the suspension and that improper suspension invalidated her guilty plea.See footnote

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).

    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 See footnote 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.
    
        

Dickson, Sullivan, Boehm, and Rucker, JJ., concur.