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.
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. See Ind.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. See I.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
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.
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):
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).
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
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.
Only the third of these implicates Oney's actual innocence. However, the court's finding on this point appears to be a condensed summary of allegations contained in Oney's verified petition for post-conviction relief. In particular, Oney alleged in pertinent part that while in custody after his arrest counsel recommended that Oney accept a plea agreement; he attempted to do so, however the trial judge rejected the plea because Oney maintained his innocence. Id. at 53. Sometime thereafter, while still in custody, Oney was transported to court, and outside the presence of counsel the trial judge attempted to persuade Oney to enter a guilty plea. Oney refused to change his plea and was ordered back to jail. Id. A jail representative allegedly explained to Oney that the judge would not release Oney until he pleaded guilty. The following day, Oney returned to open court without the presence of counsel and "changed his plea under duress." Id.
Agreeing that Oney was entitled to have his 1989 OWI conviction set aside, the State did not contest the allegations in his verified petition. And taken as true, the allegations support a conclusion that Oney did not commit the offense to which he pleaded guilty. Six decades ago this Court held that "a plea of guilty tendered by one who in the same breath protests his innocence ... is no plea at all. Certainly it is not a sufficient plea upon which to base a judgment of conviction." Harshman v. State, 232 Ind. 618, 115 N.E.2d 501, 502 (1953). Accordingly, "a judge may not accept a plea of guilty when the defendant both pleads guilty and maintains his innocence at the same time. To accept such a plea constitutes reversible error." Ross v. State, 456 N.E.2d 420, 423 (Ind.1983). "A defendant who says he did the crime and says he did not do the crime has in effect said nothing, at least nothing to warrant a judge in entering a conviction." Carter v. State, 739 N.E.2d 126, 128-29 (Ind.2000); see also Johnson v. State, 960 N.E.2d 844, 849 (Ind.Ct.App. 2012) ("Indiana jurisprudence has insisted that a factual basis must exist for a guilty plea and a judge may not accept a guilty plea while a defendant claims actual innocence.") (citation omitted). In this case, not only did Oney at least initially maintain his actual innocence but also his ultimate plea of guilty was entered at the urging of the trial judge. "[D]efendants who can show that they were coerced or misled into pleading guilty by the judge, prosecutor or defense counsel will present colorable claims for relief." State v. Moore, 678 N.E.2d 1258, 1266 (Ind.1997). Here, the judge's acceptance of the 1989 plea was error. And as the post-conviction court correctly determined the error was material and not simply procedural. Thus, Oney was entitled to seek further relief. "This is not to say however that relief automatically [would] be granted." Starks, 816 N.E.2d at 35.
We first observe that although the foregoing representations shed further light on the question of whether in 1989 Oney actually committed the offense of OWI, these representations have only an indirect bearing on his 2002 plea of guilty to operating a vehicle while suspended as an HTV. Stated somewhat differently the foregoing representations appear to confirm that the post-conviction court correctly determined that material error occurred with respect to the 1989 OWI conviction. However, this determination merely provided Oney the opportunity to file a petition to set aside the guilty plea in the court where he pleaded guilty to the felony of driving while suspended as an HTV. We repeat for emphasis that only because there was sufficient evidence before the Fayette Superior Court judge to conclude that Oney did not commit the OWI underlying offense, was he then afforded the opportunity to attempt additional relief in the Marion Superior Court.
A motion to set aside a guilty plea is governed by Indiana Code section 35-35-1-4 which provides in pertinent part:
(emphasis added). In this case it appears that only subparagraph (5) is applicable in assessing whether Oney's 2002 plea of guilty to driving while suspended as an HTV may be withdrawn and the judgment of conviction vacated on grounds of manifest injustice.
Here Oney's 2002 plea of guilty as an HTV comported with all the formalities attendant to such pleas. See n.6. Further, Oney qualified as an HTV because he had accumulated at least three OWI convictions within ten years. See I.C. § 9-30-10-4(b) ("A person who has accumulated at least three (3) judgments within a ten (10) year period for any of the following violations, singularly or in combination, and not arising out of the same incident, is a habitual violator: ... [o]peration of a vehicle while intoxicated."). Thus, it is clear that Oney's plea was not "void," that is to say it was not "from its inception, ... a complete nullity and without legal effect." Stidham, 698 N.E.2d at 1154. This leaves us with the question of whether the plea and judgment of conviction were "voidable."
We first acknowledge that as a general proposition, "[a] voidable judgment or order may be attacked only through a direct appeal, whereas a void judgment is subject to direct or collateral attack at any time." M.S. v. C.S., 938 N.E.2d 278, 284 (Ind.Ct.App.2010) (emphasis
As noted earlier, Oney's 2002 HTV guilty plea was based upon Oney having been previously convicted of (1) OWI in Fayette County in 1986; (2) OWI in Fayette County in 1989; and (3) OWI in Marion County in 1993. When the post-conviction court in 2010 vacated the 1989 OWI conviction on grounds of material error, without objection from the State and in fact with its full concurrence, the predicate offense qualifying Oney as an HTV no longer existed. The absence of a predicate offense justifying an HTV determination provided sufficient basis for the trial court here — acting as a post-conviction court — to conclude that the guilty plea and judgment of conviction were voidable. See, e.g., Olinger v. State, 494 N.E.2d 310, 311 (Ind. 1986) (declaring that the trial court "ha[d] no choice" but to vacate defendant's sentence enhancement which was based upon a habitual offender status after the court of conviction vacated one of two underlying offenses); Coble v. State, 500 N.E.2d 1221, 1223 (Ind.1986) (noting that with respect to the general habitual offender statute, a sentence enhancement "cannot be based upon prior convictions which are set aside after the habitual offender determination"). See also Spivey v. State, 638 N.E.2d 1308, 1312 (Ind.Ct.App.1994) ("An habitual offender verdict which was based upon a predicate offense subsequently set aside for constitutional reasons must be vacated.").
In this case the trial court entered an order granting Oney's verified motion to set aside his guilty plea "pursuant to Indiana Code [§] 35-35-1-4" and directed the Indiana Bureau of Motor Vehicles to vacate the resulting conviction and suspension. App. at 107. A trial court's ruling on a motion to withdraw a guilty plea "arrives in this Court with a presumption in favor of the ruling." Brightman v. State, 758 N.E.2d 41, 44 (Ind.2001) (quotation omitted). Further, "[i]n reviewing the State's claim that the post-conviction court erroneously granted relief to the defendant, `the inquiry is essentially whether there is any way the trial court could have reached its decision.'" Dye, 784 N.E.2d at 471 (emphasis in original) (quoting Spranger, 650 N.E.2d at 1120). Here, other than reciting the relevant statute, the trial court did not expressly declare the basis on which it granted Oney's motion. However, the only statutory ground available was to "correct a manifest injustice." And because, as discussed in detail above, "the plea and judgment of conviction [were] ... voidable" on the basis that the underlying offense was vacated, the State has not carried its burden of demonstrating the trial court clearly erred in granting Oney's motion to withdraw his guilty plea.
We affirm the judgment of the trial court.
DICKSON, C.J., and DAVID, MASSA and RUSH, JJ., concur.