Ladell Dean v. State of Indiana (mem. dec.) ( 2019 )


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  • MEMORANDUM DECISION
    Pursuant to Ind. Appellate Rule 65(D),                                      FILED
    this Memorandum Decision shall not be                                  Dec 26 2019, 10:01 am
    regarded as precedent or cited before any                                   CLERK
    court except for the purpose of establishing                            Indiana Supreme Court
    Court of Appeals
    and Tax Court
    the defense of res judicata, collateral
    estoppel, or the law of the case.
    ATTORNEY FOR APPELLANT                                  ATTORNEYS FOR APPELLEE
    Frederick Vaiana                                        Aaron Negangard
    Voyles Vaiana Lukemeyer Baldwin &                       Chief Deputy Attorney General of
    Webb                                                    Indiana
    Indianapolis, Indiana
    Samantha M. Sumcad
    Deputy Attorney General
    Indianapolis, Indiana
    IN THE
    COURT OF APPEALS OF INDIANA
    Ladell Dean,                                            December 26, 2019
    Appellant-Defendant,                                    Court of Appeals Case No.
    19A-CR-1455
    v.                                              Appeal from the Marion Superior
    Court
    State of Indiana,                                       The Honorable Peggy Ryan Hart,
    Appellee-Plaintiff                                      Judge Pro Tempore
    Trial Court Cause No.
    49G05-1805-F4-15948
    Crone, Judge.
    Court of Appeals of Indiana | Memorandum Decision 19A-CR-1455 | December 26, 2019               Page 1 of 9
    Case Summary
    [1]   A jury found Ladell Dean guilty of class A misdemeanor carrying a handgun
    without a license and class A misdemeanor driving while suspended, and not
    guilty of class B misdemeanor possession of marijuana. Prior to the
    enhancement phase of his trial, Dean chose to plead guilty to level 4 felony
    unlawful possession of a firearm by a serious violent felon (“SVF”). The
    carrying a handgun count was subsequently dismissed, and the trial court
    entered judgment of conviction on two counts: level 4 felony unlawful
    possession of a firearm by an SVF and class A misdemeanor driving while
    suspended. Dean now appeals, arguing that the trial court abused its discretion
    in denying the motion for mistrial he made during the State’s case-in-chief, and
    that the State presented insufficient evidence to support his conviction for
    unlawful possession of a firearm. Finding no abuse of discretion and that Dean
    waived his ability to challenge that conviction on direct appeal by pleading
    guilty, we affirm.
    Facts and Procedural History
    [2]   On May 15, 2018, Dean was driving his girlfriend’s vehicle on Georgetown
    Road, with his friend, Anthony Burroughs, in the passenger seat. Indianapolis
    Metropolitan Police Department Officer DeJoure Mercer was on patrol when
    he observed that the vehicle Dean was driving was missing its rear window.
    Upon running the license plate, Officer Mercer determined that the vehicle’s
    registered owner’s license was suspended, so he initiated a traffic stop of the
    vehicle. Before Dean pulled the vehicle over, Burroughs took a handgun from
    Court of Appeals of Indiana | Memorandum Decision 19A-CR-1455 | December 26, 2019   Page 2 of 9
    inside his clothes, showed it to Dean, placed it on top of the passenger’s seat,
    and sat on it.
    [3]   After Dean pulled the vehicle over, Officer Mercer approached the vehicle and
    immediately detected the smell of marijuana. Through the driver’s side
    window, Officer Mercer could see a mason jar containing marijuana sitting
    between the driver’s and the passenger’s seats in plain view. After obtaining
    both Dean’s and Burroughs’s identifications, Officer Mercer discovered that
    both men had suspended driver’s licenses with prior convictions.
    [4]   When backup arrived, Officer Mercer asked both men to exit the vehicle. Dean
    initially refused, but complied with a second order to exit the vehicle. As
    Burroughs exited the car, officers saw the handgun he had been sitting on.
    Neither Dean nor Burroughs had a permit to possess a firearm. Both men were
    arrested.
    [5]   The State charged Dean with the following counts: Count 1, level 4 felony
    unlawful possession of a firearm by a SVF; Count 2, class A misdemeanor
    carrying a handgun without a license; Count 3, class A misdemeanor driving
    while suspended; and Count 4, class B misdemeanor possession of marijuana.
    The State subsequently added an enhancement to Count 2, elevating it from a
    Court of Appeals of Indiana | Memorandum Decision 19A-CR-1455 | December 26, 2019   Page 3 of 9
    class A misdemeanor to a level 5 felony based upon Dean having been
    convicted of a prior felony within fifteen years of the offense date. 1
    [6]   A two-phase jury trial began on April 25, 2019. During the State’s presentation
    of evidence as to counts 2 through 4, Dean objected to certain witness
    testimony and moved for a mistrial, which was denied by the trial court. At the
    conclusion of the first phase of trial, the jury found Dean guilty of class A
    misdemeanor carrying a handgun without a license and class A misdemeanor
    driving while suspended, but not guilty of class B misdemeanor possession of
    marijuana. At the outset of the second phase of trial, during which the jury was
    going to consider evidence of Dean’s prior felony conviction and the
    enhancement of his carrying a handgun charge, Dean informed the court that
    he had chosen to plead guilty, pursuant to a plea agreement, to level 4 felony
    unlawful possession of a firearm by an SVF. The agreement provided that the
    carrying a handgun count would be dismissed and that Dean’s aggregate
    sentence would be capped at four years. Accordingly, the trial court dismissed
    the jury and held a guilty plea hearing, after which the court accepted Dean’s
    guilty plea. 2
    1
    The alleged prior felony conviction was class D felony residential entry. The predicate felony underlying
    the SVF charge was Dean’s prior conviction for class B felony dealing in a narcotic drug.
    2
    When accepting the guilty plea, the trial court noted that the State had agreed to “dismiss” the carrying a
    handgun count. Tr. Vol. 3 at 20. In the abstract of judgment, Count 2 is listed as “merged” with Count 1.
    Appealed Order at 1. Regardless of whether the court described it as dismissed or merged, the record is clear
    that no judgment of conviction was ever entered on the jury’s guilty verdict for carrying a handgun without a
    license.
    Court of Appeals of Indiana | Memorandum Decision 19A-CR-1455 | December 26, 2019                  Page 4 of 9
    [7]   A sentencing hearing was held on May 23, 2019. The trial court sentenced
    Dean to concurrent sentences totaling four years, with two and a half years
    executed in the Department of Correction, 180 days executed in community
    corrections, and one year suspended to probation. This appeal ensued.
    Discussion and Decision
    Section 1 – The trial court did not abuse its discretion in
    denying Dean’s motion for mistrial.
    [8]   During the State’s presentation of evidence, one of Dean’s arresting officers,
    Officer Andrew Hosteller, testified that Dean made a statement during his
    arrest that he was “a bona fide drug dealer.” Tr. Vol. 2 at 150. Defense counsel
    immediately objected, and the attorneys approached the bench for a sidebar
    conference. Defense counsel moved for a mistrial, claiming that the statement
    was highly prejudicial. The jury was then removed from the courtroom.
    Outside the presence of the jury, the deputy prosecutor explained to the judge
    that Officer Hosteller had been instructed not to testify about Dean’s statement
    and that, simply due to some other interruptions and objections, followed by an
    open-ended question, the witness unfortunately repeated the statement. Officer
    Hosteller apologized to the court, saying, “It’s a mistake, Judge.” Id. at 153.
    [9]   After considering extensive arguments from counsel, and finding no evidence of
    deliberate behavior or bad faith on the part of the State, the trial court
    determined that the appropriate remedy was to admonish the jury and strike the
    Court of Appeals of Indiana | Memorandum Decision 19A-CR-1455 | December 26, 2019   Page 5 of 9
    statement from the record. Specifically, when the jurors returned to the
    courtroom, the trial court instructed them,
    Ladies and gentlemen of the jury, prior to you leaving this
    courtroom there was a motion and the Court is ruling as follows:
    The last statement made by this witness, I’m striking from the
    record. If I strike something from the record, you are to totally
    disregard it as if you didn’t hear it. Therefore, if you didn’t hear
    it, you cannot consider it when you’re deciding whether this
    gentleman is guilty or not guilty as to each count levied by the
    State.
    Id. at 157.
    [10]   On appeal, Dean asserts that the trial court should have granted his motion for
    mistrial, complaining that this “evidentiary harpoon” from the State’s witness
    “unquestionably had a persuasive effect on the jury.” Appellant’s Br. at 16.
    The decision to grant or deny a motion for a mistrial is left to the sound
    discretion of the trial court, as that court is in the best position to assess the
    circumstances of an error and its probable impact upon the jury. Lucio v. State,
    
    907 N.E.2d 1008
    , 1010 (Ind. 2009). On appeal, we will reverse only upon an
    abuse of that discretion. 
    Id.
     To prevail on appeal from the denial of a motion for
    a mistrial, the appellant must demonstrate that the statement or conduct in
    question was so prejudicial and inflammatory that he was placed in a position
    of grave peril to which he should not have been subjected. Stokes v. State, 
    922 N.E.2d 758
    , 762-63 (Ind. Ct. App. 2010), trans. denied. The gravity of the peril
    is assessed by the probable persuasive effect of the misconduct upon the jury’s
    decision rather than upon the degree of impropriety of the conduct. 
    Id.
    Court of Appeals of Indiana | Memorandum Decision 19A-CR-1455 | December 26, 2019   Page 6 of 9
    [11]   “A mistrial is an extreme remedy that is warranted only when less severe
    remedies will not satisfactorily correct the error.” Warren v. State, 
    725 N.E.2d 828
    , 833 (Ind. 2000). “Generally, a timely and accurate admonition is an
    adequate curative measure for any prejudice that results.” Orta v. State, 
    940 N.E.2d 370
    , 374 (Ind. Ct. App. 2011), trans. denied. Indeed, “[w]hen the jury is
    properly instructed, we will presume they followed such instructions.”
    Duncanson v. State, 
    509 N.E.2d 182
    , 186 (Ind. 1987). “We seldom find reversible
    error when the trial court admonishes the jury to disregard the statement made
    during the proceedings.” Davidson v. State, 
    580 N.E.2d 238
    , 241 (Ind. 1991).
    [12]   Here, by all accounts, one of the State’s witnesses made an inadvertent, albeit
    serious, mistake, and the trial court promptly admonished the jury to disregard
    the testimony and further ordered the evidence stricken from the record. The
    trial court repeated its admonition during final jury instructions. Dean offers no
    specific argument as to why the court’s prompt admonition and further
    instruction to the jury was inadequate to cure any potential prejudice. Notably,
    the jury found Dean not guilty of the sole drug charge he faced, indicating that
    any reference to him being a drug dealer had no persuasive effect on the jury.
    The trial court did not abuse its discretion in denying Dean’s motion for
    mistrial.
    Section 2 – Dean waived his ability to challenge his SVF
    conviction.
    [13]   Dean next attempts to challenge the sufficiency of the evidence to support the
    jury’s verdict for class A misdemeanor carrying a handgun without a license,
    Court of Appeals of Indiana | Memorandum Decision 19A-CR-1455 | December 26, 2019   Page 7 of 9
    claiming that the State presented insufficient evidence that he ever had
    “possession” of the handgun found in the vehicle. Appellant’s Br. at 19. As
    noted by the State, no judgment of conviction was entered on the jury’s
    carrying a handgun without a license guilty verdict. Rather, the only conviction
    regarding him possessing a handgun that currently stands is the level 4 felony
    possession of a firearm by an SVF conviction. The State contends that Dean
    waived his right to challenge this conviction on direct appeal by electing to
    plead guilty. We agree.
    [14]   It is well settled that when a person elects to plead guilty rather than to stand
    trial on the charges against him, he gives up certain statutory and constitutional
    rights. Tumulty v. State, 
    666 N.E.2d 394
    , 395 (Ind. 1996). When a defendant
    pleads guilty, the trial court is obliged to inform him of the rights that he is
    waiving and to determine that the waiver of these rights is “knowingly and
    intelligently given.” 
    Id.
     (quoting Davis v. State, 
    446 N.E.2d 1317
    , 1321 (Ind.
    1983)). One such right that a defendant waives by pleading guilty is the right to
    challenge his conviction on direct appeal. See 
    id.
     (“a conviction based on a
    guilty plea may not be challenged by ... direct appeal.”) (quoting Weyls v. State,
    
    266 Ind. 301
    , 302, 
    362 N.E.2d 481
    , 482 (1977)).
    [15]   In short, Dean waived his right to challenge his unlawful possession of a
    firearm by an SVF conviction by pleading guilty and is now limited to
    challenging that conviction by filing a petition for post-conviction relief
    pursuant to Indiana Post-Conviction Rule 1. Tumulty, 666 N.E.2d at 396;
    Lumbley v. State, 
    74 N.E.3d 234
    , 241 (Ind. Ct. App. 2017), trans. denied. To the
    Court of Appeals of Indiana | Memorandum Decision 19A-CR-1455 | December 26, 2019   Page 8 of 9
    extent that Dean suggests in his reply brief that the trial court erroneously or
    inadequately advised him of his appellate rights, thereby affecting the knowing
    and voluntary nature of his plea, such challenge similarly cannot be undertaken
    on direct appeal. See Vanzandt v. State, 
    730 N.E.2d 721
    , 725 (Ind. Ct. App.
    2000) (challenge to knowing and voluntary nature of guilty plea due to alleged
    inadequacies in trial court’s advisements cannot be undertaken on direct
    appeal). Instead, post-conviction relief “is exactly the vehicle for pursuing
    claims for validity of guilty pleas.” Tumulty, 666 N.E.2d at 396 (citation
    omitted). Dean cannot now challenge on direct appeal the sufficiency of the
    evidence supporting his conviction for level 4 felony unlawful possession of a
    firearm by an SVF. We affirm his convictions and sentence.
    [16]   Affirmed.
    May, J., and Pyle, J., concur.
    Court of Appeals of Indiana | Memorandum Decision 19A-CR-1455 | December 26, 2019   Page 9 of 9
    

Document Info

Docket Number: 19A-CR-1455

Filed Date: 12/26/2019

Precedential Status: Precedential

Modified Date: 12/26/2019