State v. Drysdale, 82A01-9609-PC-305

• Docket Nº: No. 82A01-9609-PC-305
• Citation: 677 N.E.2d 593
• Case Date: March 12, 1997
• Court: Court of Appeals of Indiana

Page 593

677 N.E.2d 593 STATE of Indiana, Appellant-Respondent,
v.
Jeffrey DRYSDALE, Appellee-Petitioner. No. 82A01-9609-PC-305. Court of Appeals of Indiana. March 12, 1997.
Transfer Denied May 14, 1997.

Page 594

Pamela Carter, Attorney General, Randi F. Elfenbaum, Deputy Attorney General, Indianapolis, for Appellant.

Mark A. Foster, Evansville, for Appellee.

OPINION

NAJAM, Judge.

STATEMENT OF THE CASE

Jeffrey M. Drysdale pled guilty to Operating a Motor Vehicle While Privileges are Suspended, a Class D felony. Drysdale then filed a petition for post-conviction relief and alleged that the State had failed to provide a sufficient factual basis for his guilty plea. After a hearing, the post-conviction court granted relief, and the State now appeals. The single issue presented for our review is whether the post-conviction court erred when it granted Drysdale's petition for post-conviction relief.

We reverse.

FACTS

On December 2, 1992, the Indiana Bureau of Motor Vehicles ("BMV") found Drysdale to be an habitual traffic offender and suspended his license. On March 16, 1993, Drysdale was charged with Operating a Motor Vehicle While Privileges are Suspended, a Class D Felony. ¹ Drysdale pled guilty to that charge, and the court sentenced him to two years' probation and suspended his driver's license for life.

Drysdale then filed a petition for post-conviction relief, arguing that the State had not demonstrated an adequate factual basis for his guilty plea. Specifically, Drysdale contended that the State had failed to prove that it had notified him of his right to judicial review as required by Indiana Code § 9-30-

Page 595

10-5. ² At his post-conviction hearing, Drysdale admitted that he had received a notice letter from the BMV in 1992 but that he could not recall its contents. Additionally, he stated that he had received a second letter from the BMV in November or December of 1995 ³ which specifically informed him of his right to judicial review. The post-conviction court found that the BMV had not properly adjudged Drysdale to be an habitual traffic offender, that his suspension was void as a result, and that his conviction for driving with a suspended license should therefore be reversed. The State appeals from that decision. DISCUSSION AND DECISION

A post-conviction proceeding is a special quasi-civil remedy whereby a defendant can present an error which, for various reasons, was not available or known at the time of the original proceedings. Lowery v. State, 640 N.E.2d 1031, 1036 (Ind.1994). Post-conviction proceedings are totally separate and distinct from the underlying criminal proceedings. Gould v. State, 578 N.E.2d 382, 384 (Ind.Ct.App.1991), trans. denied. Post-conviction proceedings are governed by the rules and statutes applicable to civil proceedings and the petitioner has the burden of proving his claims by a preponderance of the evidence. Ind. Post-Conviction Rule 1 § 5; Followell v. State, 578 N.E.2d 646, 648 (Ind.1991).

When the State appeals from an order granting post-conviction relief, the standard of review for a negative judgment does not apply. State v. Lime, 619 N.E.2d 601, 603 (Ind.Ct.App.1993), trans. denied. The post-conviction court's judgment may not be set aside unless the findings or judgment is clearly erroneous and due regard shall be given to the opportunity of the post-conviction court to judge the credibility of the witnesses. See Ind. Trial Rule 52(A); Lime, 619 N.E.2d at 603.

On appeal, the State contends that the post-conviction court erred when it found that there was an inadequate factual basis for Drysdale's plea. Specifically, the State argues that by pleading guilty, Drysdale relieved the State of its burden to comply strictly with the statutory notice requirement. We agree with both contentions.

In Griffin v. State, 654 N.E.2d 911, 912 (Ind.Ct.App.1995), we held that to show a valid suspension under Indiana Code § 9-30-10-5, the State must prove the content of the notice sent to the suspended driver.

Although proof of mailing is not an element of operating a motor vehicle while privileges are suspended, it is an evidentiary prerequisite to establishing that the suspension is valid as occurring 30 days after the notice of...