ATTORNEYS FOR APPELLANT ATTORNEY FOR APPELLEE

Gregory F. Zoeller David M. Seiter

Attorney General of Indiana Garrison Law Firm, LLC

Indianapolis, Indiana

Cynthia L. Ploughe

Deputy Attorney General

Justin F. Roebel

Deputy Attorney General

Indianapolis, Indiana

______________________________________________________________________________

In the

Indiana Supreme Court 

_________________________________

No. 49S05-1212-CR-668

STATE OF INDIANA,

Appellant (Respondent below),

v.

RUSSELL ONEY,

Appellee (Petitioner below).

_________________________________

Appeal from the Marion Superior Court, Criminal Division, Room 18

No. 49F18-9911-DF-191975

The Honorable Reuben B. Hill, Judge

_________________________________

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

_________________________________

August 28, 2013

Rucker, Justice.
2

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. 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 Court1challenging his 1989 OWI conviction on grounds of alleged impropriety on the 

 

1 The copy of the petition in the record before us does not bear a file stamp indicating that the petition was 

ever actually filed with the trial court. Instead the certificate of service shows the petition was served on 

the Fayette County Prosecutor’s Office on May 16, 2010. See App. at 57. The State apparently concedes 

this date and does not challenge that the petition was actually filed. See Br. of Appellant at 3 (“[O]n May 

16, 2010, Defendant sought relief in [Fayette] County Superior Court from his June 6, 1989, conviction 

for operating while intoxicated—one of the underlying convictions used for the HTV determination.”). 
3

part of the trial judge2and 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. 

 

We presume therefore that the petition was properly filed in the Fayette Superior Court and thus was a 

part of the trial court’s records. 

2 The judge in question no longer serves as a judicial officer and has since retired from the practice of 

law. 
4

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 
5

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 
6

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 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.” Id. at 105. 

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.

 

3 The Court provided one example of how a defendant might demonstrate that the offense was not 

committed: “by proving that the BMV erroneously included the defendant as the same person as the 

offender in the subsequent court.” Starks, 816 N.E.2d at 35. This single example was not intended to be 

exhaustive. 
7

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, 115 N.E.2d 501, 502 (Ind. 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. 

In this case, noting the “material error” finding of the post-conviction court, Oney filed 

his verified motion to set aside his 2002 plea of guilty to operating a motor vehicle while 

suspended as an HTV. The trial court in Marion County—acting as a post-conviction court—did 

not conduct an evidentiary hearing in this case. Instead both the State and Defense submitted 

written briefs supporting their respective positions. Included in the defense brief were several 

attachments including Oney’s verified affidavit.4 According to the representations in the brief, 

as supported by Oney’s affidavit, on January 14, 1989 Oney was a passenger in a vehicle driven 

 

4 The following uncontested facts were taken from Oney’s verified affidavit which is found on pages 98-

101 of the Appendix. 
8

by another person who was involved in an automobile accident. The driver drove away from the 

scene, but Oney persuaded him to drive to the police station to report the matter. The driver did 

so, and after they arrived, officers of the Connersville police separated the two and took their 

respective statements. Both had been drinking; and Oney later learned that the driver laid blame 

for the accident on Oney. He was arrested and subsequently charged with: (1) OWI, and (2) 

leaving the scene of an accident. Oney hired private counsel to represent him who advised Oney 

to plead guilty, even though he maintained his innocence. In February 1989, with advice of 

Counsel Oney attempted to plead guilty; however the trial judge rejected the plea because Oney 

maintained his innocence while attempting to plead. After the February hearing, Oney did not 

see his lawyer again and later learned that he had been disbarred in May, 1989. At some point 

the trial court appointed replacement counsel to represent Oney. On June 5, 1989, Oney was 

escorted from the county jail and outside the presence of counsel or the prosecutor, the trial 

judge encouraged Oney to plead guilty but he “continued to refuse to plead guilty.” Oney’s 

Verified Aff. at ¶ 11. The following day he was again escorted to court, and without the 

prosecutor or his attorney being present, the judge “argued with” Oney to plead guilty while he 

continued to maintain his innocence. Id. at ¶ 13. According to Oney, “[e]ventually, I said, ‘fine . 

. . then, I’m guilty.’ At that point, the Court then took a factual basis. I felt coerced by the Court 

that only by pleading guilty would I be released from jail.” Id.

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 
9

underlying offense, was he then afforded the opportunity to attempt additional relief in the 

Marion Superior Court.5

A motion to set aside a guilty plea is governed by Indiana Code section 35-35-1-4 which 

provides in pertinent part:

After being sentenced following a plea of guilty . . . the convicted 

person may not as a matter of right withdraw the plea. However, 

upon motion of the convicted person, the court shall vacate the 

judgment and allow the withdrawal whenever the convicted person 

proves that withdrawal is necessary to correct a manifest injustice. . 

. . For purposes of this section, withdrawal of the plea is necessary 

to correct a manifest injustice whenever:

(1) the convicted person was denied the effective assistance of 

counsel; 

(2) the plea was not entered or ratified by the convicted person; 

(3) the plea was not knowingly and voluntarily made; 

(4) the prosecuting attorney failed to abide by the terms of a plea 

agreement; or 

(5) the plea and judgment of conviction are void or voidable for 

any other reason. 

(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.6Essentially, the 

 

5 But see Hoaks v. State, 832 N.E.2d 1061, 1063, 1064 (Ind. Ct. App. 2005), trans. denied (concluding in 

a divided opinion that post-conviction relief was not warranted because “Hoaks was aware of his 

adjudication as an HTV at the time of his conviction,” and it was of no consequence that “an underlying 

offense in his HTV adjudication was material error”). We disapprove that portion of Hoaks which is 

inconsistent with our opinion today. 

6 The transcript of the 2002 change of plea hearing reflects that Oney was represented by counsel; and 

upon inquiry by the trial judge, Oney answered: “Yes sir I am” to the question “[are you] [s]atisfied with 

the legal advice and counsel that he has given you in this case?” Tr. at 7. The record also reflects that 

Oney entered a plea of guilty after the trial judge advised him of the constitutional rights he would be 

waiving by pleading guilty. Id. at 3. Oney also answered: “No sir” to the trial judge’s question “has 

anyone forced you or threatened you in any way to make you give up your rights?” Id. at 4. All of which 
10

question is whether the conviction was either “void” or “voidable.” This distinction “is no mere 

semantic quibble.” Stidham v. Whelchel, 698 N.E.2d 1152, 1154 (Ind. 1998). While “[a] void 

judgment is one that, from its inception, is a complete nullity and without legal effect,” “a 

voidable judgment is not a nullity . . . [u]ntil superseded, reversed, or vacated. . . .” Id. (internal 

quotations omitted). 

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 

added) (citation omitted). And our courts “have long deemed post-conviction proceedings 

collateral.” Hall v. State, 849 N.E.2d 466, 472 (Ind. 2006) (collecting cases). However, this 

general proposition precluding collateral review of voidable judgments must yield to the 

Legislature’s specific directive that, “a motion to vacate judgment and withdraw the plea made 

under this subsection shall be treated by the court as a petition for postconviction relief,” I.C. § 

33-35-1-4(c) (emphasis added); and that “withdrawal of the plea is necessary to correct a 

manifest injustice” which includes instances whenever “the plea and judgment of conviction are . 

. . voidable . . . .” Id.

 

demonstrates that Oney received the effective assistance of counsel and entered his plea knowingly and 

voluntarily. See I.C. §§ 35-35-1-4(c)(1)-(3). We thus reject Oney’s contention that he is entitled to relief 

under subparagraphs (1) and (3). App. at 49. Oney makes no claim that the prosecuting attorney failed to 

abide by the terms of the plea agreement. See I.C. § 35-35-1-4(c)(4).
11

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.
12

Conclusion

We affirm the judgment of the trial court.

Dickson, C.J., and David, Massa and Rush, JJ., concur.