ATTORNEYS FOR APPELLANT ATTORNEYS FOR APPELLEE
Karen M. Freeman-Wilson J. J. Paul, III
Attorney General of Indiana Mitchell P. Chabraja
Adam M. Dulik
Deputy Attorney General
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
January 28, 2002
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 BMVs 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 Hammonds guilty plea, believing
it was not supported by an adequate factual basis. The Court of
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 defendants 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 Hammonds guilty plea, the court reconfirmed Hammonds
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 Hammonds HTV adjudication based on the
incomplete notice. (R. at 72.)
The post-conviction court granted Hammonds 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. Hammonds 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 appellants 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. (Appellees Br. at 8-9.) Although the former version of the statute was in effect at the time of Hammonds arrest and trial, Hammond contends that the amendment shows the legislatures intent that any notice deficiency in the underlying suspension automatically invalidates a conviction for operating while suspended. (Appellees 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 Hammonds 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 Hammonds suspension based solely on inadequate notice, and the post-conviction court erred when it determined that Hammonds guilty plea was unsupported. The proper remedy for the BMVs failure to explain Hammonds 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.