State v. Oney

• Decision Date: 28 August 2013
• Docket Number: No. 49S05–1212–CR–668.,49S05–1212–CR–668.
• Citation: 993 N.E.2d 157
• Parties: STATE of Indiana, Appellant (Respondent below), v. Russell ONEY, Appellee (Petitioner below).
• Court: Indiana Supreme Court

993 N.E.2d 157

STATE of Indiana, Appellant (Respondent below),

v.Russell ONEY, Appellee (Petitioner below).

No. 49S05–1212–CR–668.

Supreme Court of Indiana.

Aug. 28, 2013.

Gregory F. Zoeller, Attorney General of Indiana, Cynthia L. Ploughe, Deputy Attorney General, Justin F. Roebel, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellant.

David M. Seiter, Garrison Law Firm, LLC, Indianapolis, IN, Attorney for Appellee.

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

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. SeeInd.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. SeeI.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 Court ¹ challenging his 1989 OWI conviction on grounds of alleged impropriety on the part of the trial judge ²and 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.

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 postconviction relief challenging his 2001 guilty plea. The post-conviction court granted the 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 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...