MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before any
                                                                         FILED
court except for the purpose of establishing                         Jan 15 2020, 9:03 am

the defense of res judicata, collateral                                  CLERK
                                                                     Indiana Supreme Court
estoppel, or the law of the case.                                       Court of Appeals
                                                                          and Tax Court




ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Mark K. Leeman                                           Curtis T. Hill, Jr.
Leeman Law Office and Cass County                        Attorney General of Indiana
Public Defender
Logansport, Indiana                                      J.T. Whitehead
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana


                                           IN THE
    COURT OF APPEALS OF INDIANA

Darrell Cortez Williams Wright,                          January 15, 2020
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         19A-CR-1646
        v.                                               Appeal from the Cass Superior
                                                         Court
State of Indiana,                                        The Honorable Richard A.
Appellee-Plaintiff.                                      Maughmer, Judge
                                                         Trial Court Cause No.
                                                         09D02-1803-F2-5



Bradford, Chief Judge.




Court of Appeals of Indiana | Memorandum Decision 19A-CR-1646| January 15, 2020              Page 1 of 7
                                          Case Summary
[1]   In May of 2019, Darrell Cortez Williams Wright was tried by jury on six felony

      charges. During voir dire, the State used a peremptory strike on the only African-

      American individual in the venire. Wright raised a Batson challenge, which was

      overruled by the trial court. At the conclusion of the trial, Wright was found

      guilty as charged. In June of 2018, the trial court sentenced Wright to an

      aggregate sentence of thirty-seven years. Wright contends that the trial court

      erroneously overruled his Batson challenge. Wright also contends that the

      aggregate thirty-five-year sentence for two of his felony convictions, which were

      ordered to be served consecutively, should have been capped at thirty-two

      years. Because we agree only with Wright’s challenge to his sentence, we affirm

      in part, reverse in part, and remand with instructions consistent with this

      memorandum decision.



                            Facts and Procedural History
[2]   On March 5, 2018, the State charged Wright with Level 2 felony narcotic drug

      dealing, Level 3 felony narcotic drug possession, Level 3 felony cocaine

      dealing, Level 5 felony cocaine possession, Level 6 felony resisting law

      enforcement, Level 6 felony obstruction of justice, and Level 6 felony

      maintaining a common nuisance. On May 14, 2019, the State dismissed the

      maintaining-a-common-nuisance charge. A jury trial was held on May 15 and

      16, 2019. Voir dire was conducted, during which both the State and Wright had

      the opportunity to question the members of the venire. The trial court’s voir dire

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-1646| January 15, 2020   Page 2 of 7
      procedure was to place twenty-one individuals in the jury box for each round of

      questioning until there were ultimately thirteen jurors selected. The individuals

      were placed in the jury box in sequential order based on a number assigned to

      them. After the last round of questioning, the State used a peremptory strike on

      Mr. Sullivan, the only African-American individual then in the jury box,

      causing Wright to make a Batson challenge. The State responded with race-

      neutral reasons for the strike by stating that Sullivan worked nights and

      appeared tired and slumped over, spoke softly, and was unable to remember his

      past jury service, all of which led the State to believe that Sullivan would not

      adequately participate as a juror. The trial court overruled Wright’s Batson

      challenge, concluding that it was moot. In concluding such, the trial court

      noted that Sullivan was potential juror number forty-six, and all thirteen jurors

      had been selected from the first forty-one potential jurors. The trial court also

      noted that Blickenstaff, Baker, and Moss, who were also excused from the jury

      box because the thirteen jurors had already been selected, were sequentially

      before Sullivan. At the conclusion of the trial, Wright was found guilty as

      charged.


[3]   On June 18, 2019, the trial court merged the dealing and possession convictions

      and sentenced Wright to twenty-six years for Count I–Level 2 felony narcotic

      drug dealing, nine years for Count III–Level 3 felony cocaine dealing, two years

      for Count V–Level 6 felony resisting law enforcement, and two years for Count

      VI–Level 6 felony obstruction of justice. The trial court order all Counts to be




      Court of Appeals of Indiana | Memorandum Decision 19A-CR-1646| January 15, 2020   Page 3 of 7
      served consecutively, except for Counts V and VI, which were ordered to be

      served concurrently.



                                 Discussion and Decision
[4]   Wright contends that the trial court erred by concluding that his Batson

      challenge was moot. Wright also contends that the aggregate sentence for his

      two dealing convictions should have been capped at thirty-two years.


                                        I. Batson Challenge
[5]   Wright contends that the trial court erroneously overruled his Batson challenge

      by concluding that it was moot rather than ruling on the merits. “Purposeful

      racial discrimination in selection of the venire violates a defendant’s right to

      equal protection because it denies him the protection that a trial by jury is

      intended to secure.” Batson v. Kentucky, 476 U.S. 79, 86 (1986). “The exclusion

      of even a sole prospective juror based on race, ethnicity, or gender violates the

      Fourteenth Amendment’s Equal Protection Clause.” Richardson v. State, 122

      N.E.3d 923, 927 (Ind. Ct. App. 2019) (citation omitted), trans. denied. “A

      defendant’s race-based Batson claim involves a three-step process.” Id. The first

      step requires the party objecting to the peremptory challenge to establish a

      prima facie case of discrimination. Ashabraner v. Bower, 753 N.E.2d 662, 664

      (Ind. 2001). To do so, the objecting party must show that “(1) the juror is a

      member of a cognizable racial group; (2) [the challenging party] has exercised

      peremptory challenge to remove that group’s members from the jury; and (3)


      Court of Appeals of Indiana | Memorandum Decision 19A-CR-1646| January 15, 2020   Page 4 of 7
      the facts and circumstances of this case raise an inference that the exclusion was

      based on race.” Id. (brackets in the original).


[6]   Here, we conclude that the trial court correctly concluded that Wright’s Batson

      challenge was moot. “Mootness arises when the primary issue within the case

      has been ended or settled, or in some manner disposed of, so as to render it

      unnecessary to decide the question involved.” C.J. v. State, 74 N.E.3d 572, 576

      (Ind. Ct. App. 2017) (internal quotations omitted), trans. denied. Because the

      jury had already been formed by thirteen individuals, the State’s peremptory

      strike of Sullivan and Wright’s subsequent Batson challenge were unnecessary

      and moot. Due to Sullivan being potential juror number forty-six and the fact

      that the jury was selected from the first forty-one potential jurors, Sullivan was

      never going to be a member of the jury.


[7]   We acknowledge that the trial court’s voir dire procedure is problematic, in that

      it significantly effects counsels’ strategy for using peremptory strikes. Counsel

      should not have to make strikes prematurely or spend strikes on pure

      speculation. Moreover, by seating twenty-one individuals in the jury box when

      only thirteen jurors are needed, a situation can arise where an individual in the

      jury box will be questioned and peremptorily struck by a party even though it

      turns out that the individual had no chance of being selected as a member of the

      jury. That is exactly what happened in this matter. Sullivan was one of the

      twenty-one individuals seated in the jury box, who were questioned by the

      parties, the State peremptorily struck Sullivan, and Wright raised a Batson

      challenge; however, all of this in regards to Sullivan was unnecessary because

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-1646| January 15, 2020   Page 5 of 7
      the thirteen-person jury had been selected from the first forty-one individuals

      that came before Sullivan. Put another way, the State’s strike of Sullivan did not

      have the effect of excluding him from the jury, just as a strike would not have

      effected Blickenstaff, Baker, and Moss, who were also in the jury box with

      Sullivan, or the potential jurors who sat in the gallery waiting to potentially be

      seated in the jury box, all of whom were excused once a jury was formed from

      the first forty-one potential jurors. Thus, once the jury had been formed from

      the first forty-one potential jurors, the State’s peremptory challenge and

      Wright’s Batson challenge were rendered moot.


                                               II. Sentence
[8]   Wright also contends and the State agrees that the aggregate sentence for

      Wright’s two dealing convictions should have been capped at thirty-two years.

      Wright was convicted of Level 2 felony narcotic drug dealing and Level 3

      felony cocaine dealing, which when ordered to be served consecutively

      amounted to an aggregate sentence of thirty-five years. Indiana Code subsection

      35-50-1-2(d)(5) provides that


              (d) Except as provided in subsection (c), the total consecutive
              terms of imprisonment to which the defendant is sentenced for
              felony convictions arising out of an episode of criminal conduct
              may not exceed the following:

                      (5) If the most serious crime for which the defendant is
                      sentenced is a Level 2 felony, the total of the consecutive
                      terms of imprisonment may not exceed thirty-two (32)
                      years.


      Court of Appeals of Indiana | Memorandum Decision 19A-CR-1646| January 15, 2020   Page 6 of 7
      We agree with both parties that Wright’s two dealing convictions arose out of

      an episode of criminal conduct and therefore conclude that the aggregate of the

      two consecutive sentences must be capped at thirty-two years. We remand this

      matter to the trial court with instructions for it to cap Wright’s aggregate

      sentence for his dealing convictions to thirty-two years, for a total aggregate

      sentence of thirty-four years.


[9]   The judgment of the trial court is affirmed in part, reversed in part, and

      remanded with instructions.


      Robb, J., and Altice, J., concur.




      Court of Appeals of Indiana | Memorandum Decision 19A-CR-1646| January 15, 2020   Page 7 of 7
