FOR PUBLICATION


ATTORNEYS FOR APPELLANT:    ATTORNEY FOR APPELLEE:

KAREN M. FREEMAN-WILSON    J. J. PAUL, III
Attorney General of Indiana     MITCHEL P. CHABRAJA
            Indianapolis, Indiana
ADAM M. DULIK
Deputy Attorney General
Indianapolis, Indiana

STATE OF INDIANA,       )
                             )
Appellant-Respondent,        )
                             )
vs.                          )    No. 41A04-0003-PC-126
                             )
WILLIE VIRGINIA HAMMOND,     )
                             )
Appellee-Petitioner.         )

                         

(1) while the person’s driving privileges are suspended under this chapter or IC 9-12-2 (repealed July 1, 1991); or…

commits a Class D Felony.

Several cases had interpreted Ind. Code § 9-30-10-16 to require a valid suspension. In Loe v. State, 654 N.E.2d 1157, 1158 (Ind. Ct. App. 1995), this court held that an element of the offense of driving while suspended as an habitual traffic offender is a valid suspension. In Pebley, 686 N.E.2d at 170, we again held that a necessary element of the crime of driving while suspended is that a defendant's driver's license be validly suspended.
    The trial court relied upon the relevant case law at the time of the grant of Hammond’s Verified Petition for Post-Conviction Relief. It had been determined that there was no valid suspension. Therefore, Hammond could not be convicted of driving after having been adjudged an HTV. This court cannot find that the trial court’s grant of Hammond’s Verified Petition for Post-Conviction Relief was clearly erroneous because her license was not validly suspended.
    Furthermore, this court cannot find that the trial court’s grant of Hammond’s Verified Petition for Post-Conviction Relief was clearly erroneous in light of our supreme court’s holding in Stewart. Since Stewart has been handed down, our legislature has amended Ind. Code § 9-30-10-16 to read as follows:
(a) A person who operates a motor vehicle:

(1) while the person’s driving privileges are validly suspended under this chapter or IC 9-12-2 (repealed July 1, 1991) and the person knows that the person’s driving privileges are suspended; or…

commits a Class D felony.

The legislature’s amendment to this statute is a clear response to the supreme court’s holding in Stewart. As previously mentioned, in several cases prior to Stewart, it has been held that an element of the offense of driving while suspended as an HTV is a valid suspension. Loe, 654 N.E.2d at 1158.
    Generally, the statute to be applied when arriving at the proper criminal penalty should be the one in effect at the time the crime was committed. Bell v. State, 654 N.E.2d 856, 858 (Ind. Ct. App. 1995). However, there is an exception to this general rule. This exception, termed the doctrine of amelioration, states that "a defendant who is sentenced after the effective date of a statute providing for more lenient sentencing is entitled to be sentenced pursuant to that statute rather than the sentencing statute in effect at the time of the commission or conviction of the crime." Id. (quoting Lunsford v. State, 640 N.E.2d 59, 60 (Ind. Ct. App. 1994)). The legislature’s amendment to Ind. Code § 9-30-10-16 which previously did not include the word “validly” in front of the word “suspended” when discussing a person who operates a motor vehicle while that person’s driving privileges are suspended is ameliorative in nature. The amended statute does not make the sentence necessarily more lenient. However, it does reaffirm the previous case law which required a valid suspension of driving privileges; and, therefore, a more difficult burden than simply showing a suspension of driving privileges. Thus, the doctrine of amelioration is appropriately applied in the present case.
    It is necessary to discern the legislature’s intention regarding the addition of the term “validly” as used in the amended version of Ind. Code § 9-30-10-16. Determining legislative intent is foremost in construing any statute and, wherever possible, this court will give deference to that intent. Tedlock v. State, 656 N.E.2d 273, 276 (Ind. Ct. App. 1995). Furthermore, the legislature’s amendment of a statute is indicative of the legislature’s intent at the initial enactment of the statute. Id.
We have no hesitation in concluding that our legislature’s 2000 amendment to Ind. Code § 9-30-10-16 which added the word “validly” was intended to clarify, and not to change, the previous version of this statute. The case law prior to Stewart held that a necessary element of the crime of driving while suspended was that a defendant's driver's license be validly suspended. Pebley, 686 N.E.2d at 170. Rather than focusing on whether the defendant’s driver’s license was validly suspended, the court in Stewart held that a driver who knows of his suspension and still drives, commits the act which our legislature has made a criminal offense. Stewart, 721 N.E.2d at 879. In response, our legislature amended the statute to clarify its intention that the suspension must be valid in order to be convicted of driving while being adjudged an HTV.
    The Marion County Circuit Court, upon Hammond’s statutory Petition for Judicial Review, found that the notice sent by the BMV pursuant to Ind. Code § 9-30-10-5 was insufficient to support her suspension as an HTV. The State has not challenged the sufficiency of the notice sent by the BMV. Thus, the trial court correctly concluded that, if Hammond was not, in fact, properly suspended on March 16, 1997, the factual basis for her guilty plea was invalidated. Consequently, this court cannot find that the trial court’s grant of Hammond’s Verified Petition for Post-Conviction Relief was clearly erroneous at the time of the grant or in light of our supreme court’s holding in Stewart.

BAILEY, J., and BARNES, J., concur.