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

• Court: Indiana Court of Appeals
• Decided: December 26, 2019
• Docket: 19A-CR-1455
• Status: Published

Opinion

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