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    Jordan PARKER, a minor, individually, and by James Parker and Cheryl Parker, as Natural parents and next friends of Jordan Parker, Appellant-Petitioner, v. INDIANA STATE FAIR BOARD, an agency of The State of Indiana, Appellee-Respondent, The Trustees of Purdue University and Dr. Charles A. Hibberd, Appellees/Intervenors.
    No. 49A02-1212-PL-1003.
    Court of Appeals of Indiana.
    Aug. 23, 2013.

      Matthew S. Tarkington, Lewis & Kap-pes, P.C., Indianapolis, IN, Attorney for Appellant.
    Gregory F. Zoeller, Attorney General of Indiana, Frances Barrow, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee, State of Indiana.
    Barry L. Loftus, Jordan J. Szymialis, Stuart & Branigin, LLP, Lafayette, IN, Attorneys for Appellees, The Trustees of Purdue University and Charles A. Hib-berd.
   OPINION

BARNES, Judge.

Case Summary

Jordan Parker, a minor, individually, and by James Parker and Cheryl Parker, as his parents and next friends (collectively, “the Parkers”) appeal the trial court’s denial of their petition for judicial review of a decision by the Indiana State Fair Board (the “Board”). We affirm in part, reverse in part, and remand.

Issues

The Parkers raise several issues. We reorganize and restate the dispositive issues as:

I. whether application of the Indiana State Fair’s Handbook violated the Administrative Orders and Procedures Act (“AOPA”);
II. whether the administrative proceedings were improper due to ex parte communications; and
III. whether the Parkers were denied their due process rights.

Facts

In August 2011, fifteen-year-old Jordan entered a lamb at the Indiana State Fair. Jordan and his mother, Cheryl, signed the “Sheep Enrollment Form.” Appellants’ App. p. 275. By doing so, Jordan agreed “to follow the rules, policies and expectations of the 4-H program” and to “conduct [himself] in a courteous and respectful manner by exhibiting good sportsmanship and good behavior.” Id. Jordan agreed that “failing to do so will result in sanctions, discipline, and/or dismissal from the program.” Id. By signing the form, Cheryl also agreed to “abide by, follow, and comply with the rules, policies and expectations of the 4-H program” and to “conduct [herself] in a courteous and respectful manner by exhibiting good sportsmanship and being a positive role model for youth.” Id. Cheryl agreed that “failing to do so will constitute grounds for sanctions and/or dismissal of the member from the program.” Id.

Jordan and Cheryl also signed the “4-H Animal Affidavit,” which provided: “My submission of a 4-H entry expressly binds me to all terms and conditions contained in any and all parts of the Indiana State Fair 4-H/FFA Handbook/Premium List, to include, but not limited to, consent to drug, steroid, tissue tests, examination of my animal’s carcass ... as a condition of entering the Indiana State Fair.” Id. at 277. The Indiana State Fair 4-H/FFA Handbook/Premium List (“Handbook”) contained General Terms and Conditions that prohibited the animals from having drugs, steroids, or chemicals at greater than federally established standards. The Handbook also provided: “The test results from the testing laboratories are final and binding upon the exhibitor, the exhibitor’s parents and/or legal guardian even if the exhibitor, or the parents and/or guardians did not administer the drug or foreign substance to the exhibitor’s animal....” Id. at 172.

Jordan’s lamb won the Grand Champion Market Lamb and participated in the Sale of Champions, where it sold for $23,300. The lamb was then transported to the Purdue Meat Lab, where it was slaughtered and drug testing samples were taken. The drug testing was performed at the Indiana Animal Disease and Diagnostic Laboratory. Two urine samples tested negative for foreign substances. However, a retinal sample tested positive for the presence of Zilpaterol, which is not FDA-approved for sheep. Zilpaterol is a feed additive used in cattle to “enhance leanness and growth rates.” Id. at 157. The second retinal sample was sent to the Texas Veterinary Medical Diagnostic Laboratory, and the second retinal sample was also positive for Zilpaterol. Both samples were completely exhausted through the testing.

On September 20, 2011, the Board notified Jordan of the positive Zilpaterol testing and informed him of the following penalties: (1) a disqualification and forfeiture of all entry and other fees and all premiums, trophies, and awards from the Sheep Department, including sale proceeds from the Sale of Champions; (2) a two-year ban from the Sheep Department; (3) a permanent ban from participation in any 4-H sale at the Indiana State Fair; and (4) a lifetime ban from all participation in the Indiana State Fair in the event of further infractions. The Board informed the Par-kers that they could appeal this decision within fifteen days pursuant to the procedures set out in the Handbook.

On October 1, 2011, the Parkers appealed the September 2011 decision and contended that they had never administered Zilpaterol to the lamb. Pursuant to the Handbook, the Board scheduled an appeal hearing before three members of the Board (“ALJ Panel”). On March 5, 2012, the Parkers filed a motion for summary judgment. In their motion, the Parkers argued that the retinal testing results were inadmissible because they were unable to perform independent testing of the retinal material. All of the retinal material had been exhausted during the prior testing. The Parkers claimed due process required that they have an opportunity to perform independent testing. Because there was no other evidence of the Zilpa-terol, the Parkers argued that, if the retinal testing was inadmissible, they were entitled to have the Board’s decision revoked.

On March 23, 2012, the Board filed its response to the Parkers’ motion for summary judgment and filed its own motion for summary judgment. The Board argued that the Parkers were bound by their agreement that the test result were final and binding. The Board also argued that the Parkers’ due process claim failed because: (1) Jordan did not have a constitutionally protected property interest in participation in the State Fair or the 4-H sale at the State Fair; (2) Jordan was given all of the due process required under the circumstances; and (3) due process did not require that the Parkers have an opportunity for independent testing.

The Parkers filed a combined reply to the Board’s motion for summary judgment and in support of their own motion for summary judgment. The Parkers argued that: (1) Jordan had a property right in the lamb, the sale proceeds, his reputation, and continued participation in the State Fair; (2) Jordan was entitled to a “due process” hearing to challenge the drug test results; (3) the denial of a “due process” hearing would violate the equal protection clause; (4) Jordan did not knowingly, voluntarily, and intelligently waive his constitutional rights by agreeing to the terms of the Handbook; (5) Jordan, a minor, could not waive his constitutional rights; (6) the Board’s rules were not drafted pursuant to Indiana Code Chapter 4-22-2; (7) the punishment was excessive under the Indiana Constitution; and (8) the Board’s policy of the test results being final and binding was unconstitutional on its face.

The Board then filed a response to the Parkers’ arguments. The Board again argued that Jordan did not have a constitutionally protected property right and that he had no constitutionally protected right to participate in the State Fair. The Board argued that the Parkers’ equal protection argument failed because they had elected to proceed via summary judgment rather than an evidentiary hearing. Finally, the Board argued that the lack of independent testing did not require the exclusion of the testing results, the Parkers’ waiver argument failed because comparisons to the juvenile waivers in the criminal justice system were inappropriate, and the excessive punishment argument failed. Finally, the Parkers filed a sur-reply addressing the same issues.

An oral argument was held before the ALJ panel regarding the motions for summary judgment on April 12, 2012. The ALJ panel filed its “Recommended Findings of Fact, Conclusions of Law and Final Order Granting [the Board’s] Motion for Summary Judgment and Denying [the Parkers’] Motion for Summary Judgment.” Appellants’ App. p. 41. The Recommended Order provided, in part:

1. The [Board] was created by Indiana Code § 15-13-15-1. It is required to “hold an agricultural fair each year emphasizing agriculture and agribusiness.” IC § 15-13-7-1. The [Board] has duly enacted General Terms and Conditions to implement the responsibilities granted by the legislature.
2. The General Terms and Conditions are a valid exercise of the authority granted [the Board] by the General Assembly. Id.
3. When [the Board] received confirmation that [the Parkers’] lamb tested positive for Zilpaterol, a substance not approved by the U.S. Food and Drug Administration, [the Board was] within their authority under the General Terms and Conditions to assess the penalties it did against [Jordan].
4. [Jordan’s] and his parent’s signatures on the enrollment form and 4-H Animal Affidavit bound them to the General Terms and Conditions, including but not limited to the “final and binding” nature of the results of the drug testing conducted on the Lamb even if [Jordan], his parents, and/or guardians did not administer Zilpaterol to the Lamb.
⅜ ⅜ ⅜ ⅜ ⅜ ⅜
9.The General Terms and Conditions give the [Board] broad discretion to interpret its rules, administer a drug testing program and assess appropriate penalties. There are no “factual conditions” delineating entitlements in the General Terms and Conditions that give rise to procedural due process rights. [Fincher v. South Bend Heritage Found., 606 F.3d 331, 334 (7th Cir.2010), cert. denied.]
10. No constitutionally protected property interest exists in this Matter entitling [the Parkers] to procedural due process. The only due process to which he is entitled is the procedures outlined in the [Board’s] General Terms and Conditions. See Turner v. City of Kokomo, 804 N.E.2d 272, 275 (Ind.Ct.App.2004), reh’g denied, trans. denied.
11. As a matter of law, [the Parkers] are not entitled to summary judgment under Indiana Code § 4-21.5-3-23.
12. As a matter of law, [the Board] is entitled to summary judgment under Indiana Code § 4-21.5-3-23.

Id. at 44-45. The ALJ Panel “affirmed and adopted” the September 2011 decision regarding Jordan and his animal.

The Parkers filed their objections to the ALJ Panel’s decision, and the Board responded to the objections. The full Board conducted a hearing on the Recommended Order on May 10, 2012. At the beginning of the hearing, board member Dr. Charles Hibberd, the director of the Cooperative Extension at Purdue University, recused himself. The Board president noted that Dr. Hibberd would not participate or vote on the matter but would be allowed to hear the arguments. After arguments by counsel, the Board discussed the matter. At that time Dr. Hibberd made comments regarding the testing procedures. The Parkers’ counsel objected to Dr. Hibberd giving testimony, but Dr. Hibberd continued making comments. The Board voted to affirm the ALJ Panel’s Recommended Order.

The Parkers filed a petition for judicial review on May 15, 2012. The Board filed a brief in opposition to the petition for judicial review, and the Parkers filed a reply. After a hearing before the trial court, the trial court entered findings of fact and conclusions thereon denying the Parkers’ petition for judicial review. The trial court found that: (1) the Board did not act in excess of its statutory authority in promulgating the Handbook’s General Terms and Conditions; (2) by agreeing to be bound by the General Terms and Conditions, the Parkers waived their right to challenge the test results; (3) the Parkers did not have a constitutionally protected interest at stake; (4) even if they had a constitutionally protected interest, the Board’s procedures comported with due process; (5) the Parkers’ equal protection rights were not violated; and (6) the penalties were not excessive. The Parkers now appeal.

Analysis

The parties do not dispute that the Administrative Orders and Procedures Act (“AOPA”) governs this action. See Ind.Code Article 4-21.5. When we review the decision of an administrative agency, we are bound by the same standard as the trial court. Musgrave v. Squaw Creek Coal Co., 964 N.E.2d 891, 899 (Ind.Ct.App.2012), trans. denied. We do not try the case de novo and do not substitute our judgment for that of the agency. Id. Pursuant to the AOPA, we will reverse the administrative decision only if it is: (1) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law; (2) contrary to a constitutional right, power, privilege, or immunity; (3) in excess of statutory jurisdiction, authority, or limitations, or short of statutory right; (4) without observance of procedure required by law; or (5) unsupported by substantial evidence. I.C. § 4-21.5-5-14. Although an appellate court grants deference to an administrative agency’s findings of fact, no such deference is accorded to its conclusions of law. Musgrave, 964 N.E.2d at 899-900 (citing LTV Steel Co. v. Griffin, 730 N.E.2d 1251, 1257 (Ind.2000)). The burden of demonstrating the invalidity of the agency action is on the party who asserts the invalidity. Id. at 900.

The Board’s order at issue here was entered on cross motions for summary judgment. “In an administrative proceeding, a party may, at any time after the matter has been assigned to an administrative law judge, move for a summary judgment in the party’s favor as to all or any part of the issues in the proceeding.” Id. (citing I.C. § 4-21.5-3-23). “When a party files a summary judgment motion, the administrative law judge considers the motion as a court would if considering a motion for summary judgment filed under Trial Rule 56.” Id. Pursuant to Indiana Trial Rule 56(C), summary judgment is appropriate when there are no genuine issues of material fact and when the moving party is entitled to judgment as a matter of law. “ ‘A genuine issue of material fact exists where facts concerning an issue which would dispose of the litigation are in dispute or where the undisputed facts are capable of supporting conflicting inferences on such an issue.’ ” Id. (quoting Mahan v. American Standard Ins. Co., 862 N.E.2d 669, 675 (Ind.Ct.App.2007), trans. denied). The party moving for summary judgment bears the burden of making a prima facie showing that there is no genuine issue of material fact and that he or she is entitled to a judgment as a matter of law. Id. Once the moving party meets these two requirements, the burden shifts to the non-moving party to show the existence of a genuine issue of material fact by setting forth specifically designated facts. Id. The fact that the parties made cross-motions for summary judgment does not alter our standard of review. Id. Instead, we consider each motion separately to determine whether the moving party is entitled to judgment as a matter of law. Id.

I. Applicability of the Handbook and Its General Terms and Conditions

We first address the Parkers’ argument that the Handbook’s General Terms and Conditions, which include the statement that the drug testing results are final and binding, were void because the Board did not follow the AOPA rule-making procedures in creating the General Terms and Conditions. According to the Parkers, the Board acted in excess of its statutory jurisdiction and authority.

The Parkers did not raise this argument in their motion for summary judgment. In their response to the Board’s motion for summary judgment, the Par-kers briefly mentioned the “rulemaking provision” of the AOPA, but they never argued that the General Terms and Conditions were void or that the Board acted in excess of its statutory authority. Appel-lee’s App. p. 61. In their objections to the ALJ Panel’s Recommended Order, the Parkers again mentioned that the General Terms and Conditions were not adopted in accordance with the AOPA, but they did not argue that the General Terms and Conditions were void. See id. at 160-61. The Parkers first argued that the General Terms and Conditions were void in their brief in support of their petition for judicial review. See Appellants’ App. pp. 89-92. “A party may only obtain judicial review of an issue that was raised before the administrative agency and preserved for review[.]” Dev. Servs. Alternatives, Inc. v. Indiana Family & Soc. Servs. Admin., 915 N.E.2d 169, 178 (Ind.Ct.App.2009), trans. denied; see also I.C. § 4-21.5-5-10 (limiting judicial review of issues not raised before the agency). We conclude that the Parkers waived this issue by failing to raise it before the Board. Consequently, for purposes of this appeal, we apply the General Terms and Conditions.

II. Ex Parte Communications

The Parkers argue that the administrative proceedings were improper because of communications between Dr. Hib-berd and the Board during the Board’s deliberations. At the beginning of the hearing before the full Board, Dr. Hibberd recused himself. The Board president noted that Dr. Hibberd would not participate or vote on the matter but would be allowed to hear the arguments. After arguments by counsel, the Board discussed the matter. At that time Dr. Hibberd made comments regarding the testing procedures. The Parkers’ counsel objected to Dr. Hibberd giving testimony, but Dr. Hibberd continued with his comments.

The Parkers first argue that Dr. Hibberd’s comments were improper ex parte communications. The reliance on ex parte communications is not allowed in administrative hearings of an adjudicatory nature. Worman Enterprises, Inc. v. Boone Cnty. Solid Waste Mgmt. Dist., 805 N.E.2d 369, 375 (Ind.2004). “Black’s Law Dictionary defines ex parte communications as ‘a generally prohibited communication between counsel and the court when opposing counsel is not present.’ ” Id. at 374-75 (quoting Black’s Law Dictionary 597 (7th ed. 1999)). “[E]x parte communications most often become an issue if a judge communicates outside the courtroom without disclosing those communications to everyone involved.” Id. at 375. The communications at issue here were made during the Board’s deliberations and in front of the parties and their counsel. Thus, the communications were not ex parte.

The Parkers also argue that the communications violated Indiana Code Section 4-21.5-3-13(a), which provides: “An individual who has served as investigator, prosecutor, or advocate in a proceeding or in its preadjudicative stage may not serve as an administrative law judge or assist or advise the administrative law judge in the same proceeding.” The Board concedes that Dr. Hibberd “certainly should have been advised not to make any comments to the State Fair Board....” Board’s Br. p. 24. However, the Board argues that Indiana Code Section 4-21.5-3-13(a) is inapplicable because Dr. Hibberd was not advising the administrative law judge; rather, he was advising the full Board.

We need not determine whether Indiana Code Section 4-21.5-8-13(a) is applicable here because we conclude that any error in Dr. Hibberd’s comments was harmless. “[T]he harmless error doctrine applies to the judicial review of administrative hearings.” Indiana State Bd. of Embalmers & Funeral Directors v. Kaufman, 463 N.E.2d 513, 520 (Ind.Ct.App.1984). “An appellant has the burden of showing reversible error.” Id. During the Board’s deliberations, Dr. Hibberd discussed that Purdue had performed a retinal test on Jordan’s animal that was positive for Zil-paterol and an independent test was performed on the other retina in Texas. Dr. Hibberd noted that they had followed the drug testing policy, that they tested the champion and reserve champion animals and did random testing in the barn, and that the only positive test results were in winning animals. Dr. Hibberd also noted that the amount of retinal material available was limited, so they sent the remainder to an outside lab for verification.

The drug testing policy and procedures in general and specific to Jordan’s animal had already been extensively briefed in the summary judgment proceedings. Thus, the Board already had evidence regarding the drug tests. The Parkers have not demonstrated how they were harmed by Dr. Hibberd’s comments. Although Dr. Hibberd’s comments were improper because he had recused himself from the Board’s deliberations and the Board was incorrect in allowing him to speak, we conclude that the error was harmless.

III. Due Process Rights

The crux of the Parkers’ argument is that Jordan was denied his due process rights. The Due Process Clause of the Fourteenth Amendment declares that no State shall “deprive any person of life, liberty, or property, without due process of law.” U.S. Const, amend. XIV, § 1. Due process contains both substantive and procedural elements.

Procedural due process requires a two-part inquiry: “ ‘The first inquiry in every due process challenge is whether the plaintiff has been deprived of a protected interest in property or liberty. Only after finding the deprivation of a protected interest do we look to see if the State’s procedures comport with due process.’ ” Perdue v. Gargano, 964 N.E.2d 825, 832 (Ind.2012) (quoting Am. Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 59, 119 S.Ct. 977, 989, 143 L.Ed.2d 130 (1999)). “[T]he fundamental requirement of procedural due process is the opportunity to be heard at a meaningful time and in a meaningful manner.” Id. When a deprivation is contemplated, “these principles require ... an effective opportunity to defend by confronting any adverse witnesses and by presenting his own arguments and evidence orally.” Id. (footnote omitted). “When protected property interests are implicated, the right to some kind of prior hearing is paramount.” Charnas v. Estate of Loizos, 822 N.E.2d 181, 185 (Ind.Ct.App.2005).

‘“Substantive due process ensures that state action is not arbitrary or capricious regardless of the procedures used.’ ” Honeycutt v. Ong, 806 N.E.2d 52, 58 (Ind.Ct.App.2004) (quoting N.B. v. Sybinski, 724 N.E.2d 1103, 1112 (Ind.Ct.App.2000), trans. denied). “To set forth a claim for violation of substantive due process, a party must show (1) that the law infringes upon a fundamental right or liberties deeply rooted in our nation’s history; or (2) that the law does not bear a substantial relation to permissible state objectives.” Id. “To succeed, the party must demonstrate that the State’s conduct is arbitrary and capricious.” Id. “The State will prevail if any rational basis for its action can be hypothesized.” Id.

According to the Parkers, they had a constitutionally protected property right under the Due Process Clause, the drug test results were inadmissible because the Parkers were unable to perform independent testing, which they argue was required under the Due Process Clause, they did not waive their due process rights by agreeing to the General Terms and Conditions, the “final and binding” drug test provision is unconstitutional as a “zero tolerance” policy, and they were improperly denied an evidentiary hearing.

A. Waiver

Even if we assume, for purposes of this appeal, that the Parkers had a constitutionally protected property right here, we conclude that they waived their alleged constitutional rights. “It is without question that an individual may waive his or her procedural due process rights.” Domka v. Portage Cnty., Wis., 523 F.3d 776, 781 (7th Cir.2008) (citing D.H. Overmyer Co. v. Frick Co., 405 U.S. 174, 185, 92 S.Ct. 775, 31 L.Ed.2d 124 (1972)). “A constitutional waiver is considered to be valid if it is knowing and voluntary.” Id.

The Board concluded, in part:

[Jordan’s] and his parent’s signatures on the enrollment form and 4-H Animal Affidavit bound them to the General Terms and Conditions, including but not limited to the “final and binding” nature of the results of the drug testing conducted on the Lamb even if [Jordan], his parents, and/or guardians did not administer Zilpaterol to the Lamb.

Appellants’ App. p. 44. The Parkers argue that they did not knowingly and voluntarily agree to waive their right to challenge the results of the drug test. When they entered the lamb at the State Fair, Jordan and Cheryl signed the “4-H Animal Affidavit,” which provided: “My submission of a 4-H entry expressly binds me to all terms and conditions contained in any and all parts of the Indiana State Fair 4-H/FFA Handbook/Premium List, to include, but not limited to, consent to drug, steroid, tissue tests, examination of my animal’s carcass ... as a condition of entering the Indiana State Fair.” Id. at 277. The Handbook’s General Terms and Conditions prohibited the animals from having drugs, steroids, or chemicals at greater than federally established standards. The General Terms and Conditions also provided: “The test results from the testing laboratories are final and binding upon the exhibitor, the exhibitor’s parents and/or legal guardian even if the exhibitor, or the parents and/or guardians did not administer the drug or foreign substance to the exhibitor’s animal....” Id. at 172.

The Parkers argue that they did not knowingly or voluntarily consent to the “final and binding” nature of the drug test results because they did not separately sign the Handbook or its General Terms and Conditions. However, Cheryl admitted that she agreed to be bound by the terms of the 4-H Affidavit, that she consented to the drug testing, and that she agreed to be bound by the Handbook. Id. at 399-400. Although he did not sign the 4-H Affidavit, James was aware of the drug testing policy and had read the Handbook’s General Terms and Conditions. Id. at 404-10. Further, Jordan agreed that he had consented to the drug testing and the terms of the Handbook. Id. at 352-56. We conclude that the Par-kers knowingly and voluntarily agreed to be bound by the Handbook and its General Terms and Conditions.

They also argue that the language of the General Terms and Conditions is ambiguous. An agreement “is ambiguous only if reasonable people reading the contract would differ as to the meaning of the terms.” Dreibelbiss Title Co., Inc. v. Fifth Third Bank, 806 N.E.2d 345, 349 (Ind.Ct.App.2004), trans. denied. Our review of the 4-H Affidavit, Handbook, and General Terms and Conditions does not reveal any language that would result in reasonable people reaching differing conclusions as to the meaning. We conclude that the 4-H Affidavit, which Jordan and Cheryl signed, clearly and unambiguously bound them to the terms of the Handbook. Further, we conclude that the Handbook’s General Terms and Conditions clearly and unambiguously provided and emphasized that the test results were final and binding.

Finally, the Parkers also argue that Jordan, a minor, could not waive his constitutional due process rights under these circumstances. In support of their argument, the Parkers cite Indiana Code Section 31-32-5-1, which provides:

Any rights guaranteed to a child under the Constitution of the United States, the Constitution of the State of Indiana, or any other law may be waived only:
(1) by counsel retained or appointed to represent the child if the child knowingly and voluntarily joins with the waiver;
(2) by the child’s custodial parent, guardian, custodian, or guardian ad li-tem if:
(A) that person knowingly and voluntarily waives the right;
(B) that person has no interest adverse to the child;
(C) meaningful consultation has occurred between that person and the child; and
(D) the child knowingly and voluntarily joins with the waiver; or
(3)by the child, without the presence of a custodial parent, guardian, or guardian ad litem, if:
(A) the child knowingly and voluntarily consents to the waiver; and
(B) the child has been emancipated under IC 31-34-20-6 or IC 31-37-19-27, by virtue of having married, or in accordance with the laws of another state or jurisdiction.

However, this statute pertains to juvenile delinquency proceedings, and the Parkers cite no authority for the proposition that the statute applies to juvenile waivers in a civil context. Moreover, Cheryl, as Jordan’s parent, also signed the 4-H Affidavit, which referred to the General Terms and Conditions, and the Parkers make no argument that she was unable to bind Jordan to the agreement and General Terms and Conditions.

B. Zero Tolerance Policy

The Parkers argue that the “final and binding” provision regarding the drug test results is an unconstitutional “zero tolerance policy.” Appellants’ Br. p. 24. However, the only authority cited by the Parkers is a Texas Court of Appeals memorandum opinion, Hinterlong v. Arlington Independent School Dist., No. 2-09-050-CV, 2010 WL 522641 (Tex.Ct.App.2010). In Hinterlong, a student was found with a small amount of alcohol in his vehicle on school property and was placed in an alternative school based on the school’s zero tolerance policy. The court noted:

School districts’ zero tolerance policies, as a whole, have promoted consistency-over rationality. See generally Christopher D. Pelliccioni, Note, Is Intent Required? Zero Tolerance, Scienter, and the Substantive Due Process Rights of Students, 58 Case W. Res. L.Rev. 977, 990-91 (2003). Arguments can be made that appeals, processes, and procedures provided to a student after application of a zero tolerance policy are worthless because each appeal, process, or procedure simply affirms zero tolerance; that is, such procedural due process is meaningless because no one within the process can circumvent the policy. Moreover, strict adherence to zero tolerance policies without consideration of the student’s mens rea would appear to run afoul of substantive due process notions. See Seal v. Morgan, 229 F.3d 567, 578 (6th Cir.2000) (stating that “the Board’s Zero Tolerance Policy would surely be irrational if it subjects to punishment students who did not knowingly or consciously possess a weapon”).

Hinterlong, No. 2-09-050-CV, 2010 WL 522641, *2. However, the court concluded that the student had an opportunity for the school to consider his mens rea and avoid application of the zero tolerance policy. Although the student had this opportunity, the student presented no evidence to escape application of the zero tolerance policy, and his “applied due process challenge” failed. Id.

The Parkers appear to be making both a substantive and procedural due process argument here. However, as in Hinterlong, although the Handbook contains a provision that the drug test results are “final and binding,” participants are given the opportunity to submit evidence in their defense. Appellants’ App. p. 172. This is evident when A.M.’s situation is considered.

A.M. was another 2011 State Fair participant and also had a positive drug test result for his animal. A.M. was initially given the same sanctions as those received by Jordan. During an evidentiary hearing before an ALJ panel, A.M. presented mitigating evidence from a feed supplier that his “animal’s feed was accidentally contaminated with residue from feed containing Zilpaterol.” Appellants’ App. p. 236. A.M. did not challenge the results of the drug testing. The ALJ panel used its discretion to set aside A.M.’s two-year ban from the Swine Department, his permanent ban from participation in any 4-H sales at the State Fair, and his lifetime ban for further infractions. However, A.M. was still “disqualified and forfeited] all entry and other fees and all premiums, trophies and awards from the Swine Department including sale proceeds from the Sale of Champions or regular marketing channels for the 2011 Indiana State Fair.” Id. The forfeiture of the sale proceeds is reasonably related to a legitimate state interest of preventing contaminated animals from entering the food supply. The Parkers have failed to demonstrate that the “final and binding” policy results in a due process violation.

C. Evidentiary Hearing

The Parkers argue that Jordan was improperly denied his due process rights because he did not receive an evi-dentiary hearing. Indiana Code Section 4-21.5-3-25(c) provides: “To the extent necessary for full disclosure of all relevant facts and issues, the administrative law judge shall afford to all parties the opportunity to respond, present evidence and argument, conduct cross-examination, and submit rebuttal evidence, except as restricted by a limitation under subsection (d) or by the prehearing order.” According to the Parkers, Jordan was denied an opportunity to present a meaningful defense and to test the validity of the charges by the failure to have an eviden-tiary hearing.

The Board points out that the Parkers moved for summary judgment and that the Board responded with a cross motion for summary judgment. Indiana Code Section 4-21.5-3-23 allows summary judgment in administrative proceedings. It provides in part:

(a) A party may, at any time after a matter is assigned to an administrative law judge, move for a summary judgment in the party’s favor as to all or any part of the issues in a proceeding.
(b) Except as otherwise provided in this section, an administrative law judge shall consider a motion filed under subsection (a) as would a court that is considering a motion for summary judgment filed under Trial Rule 56 of the Indiana Rules of Trial Procedure.

I.C. § 4-21.5-3-23.

The Parkers’ motion for summary judgment only concerned the admissibility of the drug test results. Although not labeled as such, the Parkers’ motion was clearly a motion for partial summary judgment only. The Board’s cross motion for summary judgment also concerned the admissibility of the drug test results, the Parkers’ agreement to abide by the Handbook, and the “final and binding” nature of the drug test results. As with the Par-kers’ motion, although not labeled as such, the Board’s motion was a motion for partial summary judgment. The Parkers’ response to the Board’s cross motion argued, in part, that the penalties imposed were excessive under the Indiana Constitution.

Despite the limited issues presented in the briefs, the ALJ Panel treated the Board’s motion as a motion for summary judgment on all the issues. The ALJ Panel denied the Parkers’ motion for summary judgment, granted the Board’s motion for summary judgment, and adopted the September 2011 decision, including the penalties. The ALJ Panel’s recommended order did not address the Parkers’ argument regarding the penalties. The full Board then adopted the ALJ Panel’s recommended order.

The Parkers compare their situation to that of A.M., who had an evidentiary hearing and presented evidence that his animal’s feed was accidentally contaminated. The ALJ panel used its discretion to reduce the penalty imposed on A.M. as a result of the positive drug test. The Par-kers were denied an opportunity to present such evidence. Neither party moved for summary judgment regarding the penalties; rather, the focus of the motions was the admissibility of the drug test results. In fact, in a reply brief during the summary judgment proceedings, the Board noted that Jordan still has “the same opportunity as A.M. to present evidence at a hearing before another ALJ panel” and that “once briefing is completed” Jordan still had the opportunity for a hearing at which he could present evidence. Appel-lee’s App. pp. 91, 95. However, the ALJ Panel’s order adopted the prior decision on the penalties against Jordan, and the full Board similarly adopted the ALJ Panel’s decision. We conclude that the Board improperly granted full summary judgment here.

We remand for the Board to conduct an evidentiary hearing regarding the penalties imposed on Jordan. We note that, even in this appeal, the Parkers’ main focus remains challenging the admissibility of the drug test results. However, we conclude that issue was properly resolved in summary judgment proceedings. Consequently, on remand, the Parkers may not challenge the admissibility of the drug test results or the policy that the drug test results are “final and binding.” Because of our remand for an evidentiary hearing regarding the penalty imposed by the ALJ Panel, we need not address the Parkers’ equal protection and excessive penalty arguments.

Conclusion

The Parkers waived their argument that the Handbook’s General Terms and Conditions are void. Further, they agreed to be bound by the Handbook, including its requirement that the drug testing was “final and binding.” We also conclude that any error in Dr. Hibberd’s comments during the Board’s deliberations was harmless error. However, because the summary judgment motions addressed only the admissibility of the drug test results, we conclude that Jordan was entitled to an evidentiary hearing regarding the penalties imposed on him. We affirm in part, reverse in part, and remand for further proceedings.

Affirmed in part, reversed in part, and remanded.

NAJAM, J., and BAILEY, J., concur.

      . The Parkers also argued that they were denied their equal protection rights and that the prohibition against excessive and unconstitutional penalties was violated.

      . A person may obtain judicial review of an issue not raised before the agency if: (1) "the issue concerns whether a person who was required to be notified by this article of the commencement of a proceeding was notified in substantial compliance with this article" or (2) "the interests of justice would be served by judicial resolution of an issue arising from a change in controlling law occurring after the agency action.” I.C. § 4-21.5-5-10. Neither of these exceptions is applicable here.

      . Because the Parkers’ waived their due process claim related to the "final and binding" provision of the Handbook, we need not address their inability to obtain an independent drug test or whether they had a constitutionally protected property interest.


source: Caselaw Access Project

license: Public Domain

text:
    In the Matter of Anthony T. ADOLF, Respondent.
    No. 02S00-1302-DI-121.
    Supreme Court of Indiana.
    July 18, 2013.
   PUBLISHED ORDER CERTIFYING TERMINATION OF NONCOOPERATION SUSPENSION

Pursuant to Indiana Admission and Discipline Rule 23(10)(f), this Court suspended Respondent from the practice of law in this State for failing to cooperate with the Disciplinary Commission concerning a grievance filed against Respondent. On July 11, 2013, the Executive Secretary of the Disciplinary Commission filed a “Certification of Compliance,” stating that Respondent has now cooperated with its investigation. Pursuant to Admission and Discipline Rule 23(10)(f)(3), Respondent’s suspension from the practice of law terminated as of the date the certification was filed.

The Court therefore ORDERS that Respondent’s suspension from the practice of law for failure to cooperate in this case be shown as terminated as of July 11, 2013, and that Respondent be shown as reinstated to the practice of law in this state if no other suspension is in effect.

Pursuant to Admission and Discipline Rule 23(10)(f)(5) and Rule 2(h), Respondent’s failure to pay any outstanding costs assessed in this case by the due date of the next annual registration fee (October 1) will subject Respondent to an order of suspension from the practice of law.

The Clerk is directed to forward a copy of this Order to the parties or their respective attorneys and to all other entities entitled to notice under Admission and Discipline Rule 23(3)(d). The Clerk is further directed to post this order to the Court’s website, and Thomson Reuters is directed to publish a copy of this order in the bound volumes of this Court’s decisions.


author: RUCKER, Justice.

text:
    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 Ap-pellee.
   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. 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 Fay-ette Superior Court challenging his 1989 OWI conviction on grounds of alleged impropriety on the part of the trial judge and 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 One/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. § 35-85-1-4. “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 38 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.
* * ⅜
[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. 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.

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.

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. 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 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, “[eventually, 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 Superi- or 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:

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. Essentially, the 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,” “avoidable judgment is not a nullity ... [ujntil 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. Fur-, ther, 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: ... [operation 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-l-4(e) (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.

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.

Conclusion

We affirm the judgment of the trial court.

DICKSON, C.J., and DAVID, MASSA and RUSH, JJ., concur.

      . 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 ("[0]n May 16, 2010, Defendant sought relief in [Fayette] County Superi- or Court from his June 6, 1989, conviction for operating while intoxicated — one of the underlying convictions used for the HTV determination.”). 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.

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

      . 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.

      . The following uncontested facts were taken from Oney's verified affidavit which is found on pages 98-101 of the Appendix.

      . But see Hooks v. State, 832 N.E.2d 1061, 1063, 1064 (Ind.Ct.App.2005), irons, 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.

      . 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] [satisfied 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 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 subpara-graphs (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).