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
