Court of Appeals of Indiana | Memorandum Decision 27A02-1412-PC-863 | June 30, 2015 Page 1 of 12

MEMORANDUM DECISION

Pursuant to Ind. Appellate Rule 65(D), this 

Memorandum Decision shall not be regarded as 

precedent or cited before any court except for the 

purpose of establishing the defense of res judicata, 

collateral estoppel, or the law of the case.

APPELLANT PRO SE

Brian E. Connell

Pendleton, Indiana

ATTORNEYS FOR APPELLEE

Gregory F. Zoeller

Attorney General of Indiana

Ellen H. Meilaender

Deputy Attorney General 

Indianapolis, Indiana

I N T H E

COURT OF APPEALS OF INDIANA

Brian E. Connell,

Appellant-Petitioner,

v.

State of Indiana,

Appellee-Respondent.

June 30, 2015

Court of Appeals Case No.

27A02-1412-PC-863

Appeal from the 

Grant Superior Court

The Honorable Dana J. Kenworthy, 

Judge

Cause No. 27D02-1301-PC-1

Kirsch, Judge.

[1] Brian E. Connell appeals the denial of his petition for post-conviction relief, 

contending that the post-conviction court erred in denying his petition. On 

appeal, he raises several issues that we consolidate and restate as:
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I. Whether Connell’s freestanding allegations of error are procedurally 

defaulted and waived for appellate review; and

II. Whether Connell received ineffective assistance of trial counsel.

[2] We affirm.

Facts and Procedural History

[3] The facts supporting Connell’s convictions as set forth by this court in an 

unpublished decision on his direct appeal are as follows:

On November 19, 2008, telephone repairman William Ferrell 

(“Ferrell”) went to the home of Lonnie and Ella Crites (“the Crites”) 

to perform a service call. When Ferrell arrived, he noticed a car 

running in the driveway and then knocked on the front door. 

Receiving no answer, Ferrell went around to the back and encountered 

a man later identified as Connell carrying something from the house. 

Ferrell noticed that a window and the door to the house had been 

broken and asked Connell whether his phone was working properly.

Connell responded that it was, and told Ferrell that he had to break the 

window to get into his own house. Ferrell then left and drove to the 

end of the block, but, suspicious that something was wrong, called Ella 

Crites and wrote down Connell’s license plate number and the make 

and color of Connell’s car as he drove away.

Deputies Aaron Oyler (“Deputy Oyler”) and Michael Moore 

(“Deputy Moore”) of the Grant County Sherriff’s Department were 

dispatched and given the license plate number and description of 

Connell’s vehicle. At the Crites’ home, the deputies noticed that the 

back door window was broken and the door was open. They 

determined that entry to the home was forced, and observed disarray 

inside.

As the deputies were waiting for support to arrive, Connell drove by 

the house. The deputies recognized Connell’s car from the description 

they received, so Deputy Moore got into his vehicle to follow. A highspeed chase ensued. Connell ran a stop sign and continued driving at 

a high speed through two or three intersections until he veered off the 

road, hit a ditch, and went airborne thirty feet before hitting the 

ground.
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Deputy Moore approached the vehicle with his weapon drawn and 

ordered Connell out of the vehicle. Connell attempted to reach 

between the seat and the console for what was later identified as an H 

& K .45 caliber handgun stolen from the Crites with a bullet loaded in 

the chamber (a bullet that was not loaded when the gun was taken). 

Deputy Moore repeatedly ordered Connell to show his hands, and 

eventually Connell exited the vehicle.

A search of Connell’s pockets yielded a bag of marijuana, two 

watches, and two commemorative coins. Inside his car, police found a 

.357 Magnum gun, a .22 caliber pistol, gun equipment, and some rolls 

of change. These items were all missing from the Crites’ house.

Police also discovered that on November 19, 2008, the home of Allen 

and Sylvia Pinkerton (“the Pinkertons”) was burglarized. The police 

found the items missing from the Pinkertons’ home (two wallets, 

jewelry boxes, and coins) in Connell’s car. The two watches found in 

his pockets at the accident scene also belonged to the Pinkertons.

Connell v. State, No. 27A04-1010-CR-642 (Ind. Ct. App. May 9, 2011).

[4] The State charged Connell with two counts of Class B felony burglary (one 

relating to the Crites’ home and the other to the Pinkertons’), two counts of 

Class D felony theft (one relating to the Crites’ property and the other to the 

Pinkertons’), one count of Class C felony carrying a handgun without a license, 

one count of Class D felony resisting law enforcement, and one count of Class 

A misdemeanor possession of marijuana. The State also filed a petition 

alleging that Connell was a habitual offender. A trifurcated trial was held on 

August 12, 2010, at the conclusion of which the jury found Connell guilty of all 

charges and adjudicated him a habitual offender.

[5] The trial court sentenced him to twenty years for count I, Class B felony 

burglary, which was enhanced to forty years because Connell is a habitual 

offender, twenty years for count II, Class B felony burglary, eight years for 
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count III, Class C felony carrying a handgun without a license, three years each 

for counts IV and V, Class D felony theft, three years for count VI, Class D 

felony resisting law enforcement, and one year for count VII, Class A 

misdemeanor possession of marijuana. The court then ordered Connell to serve 

the sentences for counts I, III, and IV, which all related to the Crites’ burglary,

concurrently for a total of forty years; the trial court ran the sentences for counts 

II and V, which related to the Pinkertons’ burglary, concurrently with each 

other, but consecutively to the sentences for counts I, III, and IV. The 

sentences for counts VI and VII were ordered to run concurrently with each 

other, but consecutively to the other two groups of sentences. This resulted in 

an aggregate sentence of sixty-three years executed. 

[6] Connell was represented by attorney David Payne at trial. Prior to the trial, 

Payne filed a motion in limine regarding, among other things, evidence of items 

found that had been stolen in other cases. The trial court granted the motion. 

During the trial, the State offered into evidence State’s Exhibit 78, a DVD of 

Connell’s first statement to the police. The State believed that the DVD had 

been redacted of any reference to any subject matter covered by the motion in 

limine. However, when the DVD was played, the contents showed the

detective referencing the fact that the police had found property in Connell’s car 

from the Crites’ and Pinkertons’ homes in Grant County and from a house in 

Wabash County and another house in Huntington; when Connell asked if the 

detective was saying that property from four different houses was found in his 

car, the detective answered in the affirmative. Payne immediately objected and 
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asked to have the jury instructed to disregard the taped statement in its entirety. 

The parties agreed that the jury would be instructed to disregard the video, that 

the remainder of the video would not be played, and that, instead, the detective 

would testify to the relevant parts of Connell’s statement. The trial court 

admonished the jury to disregard the contents of the DVD and not to consider 

that evidence in any way in its deliberation. 

[7] After his conviction, Connell filed a direct appeal of his convictions, and a 

panel of this court affirmed his convictions and sentence. On January 11, 2013, 

Connell, pro se, filed a petition for post-conviction relief, which was later 

amended on June 10, 2014. An evidentiary hearing was held, and on 

November 7, 2014, the post-conviction court denied Connell’s petition for 

relief. Connell now appeals.

Discussion and Decision

[8] Post-conviction proceedings do not afford the petitioner an opportunity for a 

super appeal, but rather, provide the opportunity to raise issues that were 

unknown or unavailable at the time of the original trial or the direct appeal. 

Ben-Yisrayl v. State, 738 N.E.2d 253, 258 (Ind. 2000), cert. denied, 534 U.S. 1164 

(2002); Wieland v. State, 848 N.E.2d 679, 681 (Ind. Ct. App. 2006), trans. denied, 

cert. denied, 549 U.S. 1038 (2006). The proceedings do not substitute for a direct 

appeal and provide only a narrow remedy for subsequent collateral challenges 

to convictions. Ben-Yisrayl, 738 N.E.2d at 258. The petitioner for post-
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conviction relief bears the burden of proving the grounds by a preponderance of 

the evidence. Ind. Post-Conviction Rule 1(5). 

[9] When a petitioner appeals a denial of post-conviction relief, he appeals a 

negative judgment. Fisher v. State, 878 N.E.2d 457, 463 (Ind. Ct. App. 2007), 

trans. denied. The petitioner must establish that the evidence as a whole 

unmistakably and unerringly leads to a conclusion contrary to that of the postconviction court. Id. We will disturb a post-conviction court’s decision as 

being contrary to law only where the evidence is without conflict and leads to 

but one conclusion, and the post-conviction court has reached the opposite 

conclusion. Wright v. State, 881 N.E.2d 1018, 1022 (Ind. Ct. App. 2008), trans. 

denied. The post-conviction court is the sole judge of the weight of the evidence 

and the credibility of witnesses. Lindsey v. State, 888 N.E.2d 319, 322 (Ind. Ct. 

App. 2008), trans. denied. We accept the post-conviction court’s findings of fact 

unless they are clearly erroneous, and no deference is given to its conclusions of 

law. Fisher, 878 N.E.2d at 463.

I. Freestanding Claims

[10] Connell raises the following four issues in his brief that are all freestanding 

claims of trial court error: (1) the trial court improperly intervened to inform 

the prosecutor of a problem in the habitual offender charging information (Issue 

I); (2) the State’s amendment of the habitual offender charging information was 

not timely and should not have been allowed (Issue II); (3) Connell was 

subjected to an improper double enhancement because the same felony 
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conviction was used both to enhance the level of his carrying a handgun 

without a license conviction and to support his habitual offender adjudication 

(Issue III); and (4) Connell’s consecutive sentences were an abuse of discretion 

because they violated the limitation on sentences on a single episode of criminal 

conduct (Issue V). 

[11] Post-conviction proceedings are civil proceedings that provide defendants the 

opportunity to raise issues not known or available at the time of the original 

trial or direct appeal. Stephenson v. State, 864 N.E.2d 1022, 1028 (Ind. 2007) 

(citing Conner v. State, 711 N.E.2d 1238, 1244 (Ind. 1999), cert. denied, 531 U.S. 

829 (2000)), cert. denied, 552 U.S. 1314 (2008). Thus, if an issue was known and 

available but not raised on direct appeal, the issue is procedurally foreclosed. 

Id. (citing Timberlake v. State, 753 N.E.2d 591, 597 (Ind. 2001), cert. denied, 537 

U.S. 839 (2002)). Additionally, fundamental error claims are not available in 

post-conviction proceedings. Taylor v. State, 882 N.E.2d 777, 781 (Ind. Ct. App. 

2008). “[T]he fundamental error exception to the contemporaneous objection 

rule applies to direct appeals.” Sanders v. State, 765 N.E.2d 591, 592 (Ind. 

2002). “In post-conviction proceedings, complaints that something went awry 

at trial are generally cognizable only when they show deprivation of the right to 

effective counsel or issues demonstrably unavailable at the time of trial or direct 

appeal.” Id. 

[12] Here, the four freestanding issues raised by Connell were all known and 

available at the time of his direct appeal. Therefore, the issues had to be raised 

on direct appeal, and they are procedurally foreclosed and may not be raised 
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now for the first time on post-conviction relief. Connell cannot avoid this 

foreclosure by claiming fundamental error. We conclude that Connell’s 

freestanding claims of error are foreclosed from our review on appeal.

II. Ineffective Assistance of Trial Counsel

[13] When evaluating a claim of ineffective assistance of counsel, we apply the twopart test articulated in Strickland v. Washington, 466 U.S. 668 (1984). Perry v. 

State, 904 N.E.2d 302, 308 (Ind. Ct. App. 2009) (citing Pinkins v. State, 799 

N.E.2d 1079, 1093 (Ind. Ct. App. 2003), trans. denied), trans. denied. First, the 

defendant must show that counsel’s performance was deficient. Id. This 

requires a showing that counsel’s representation fell below an objective 

standard of reasonableness and that the errors were so serious that they resulted 

in a denial of the right to counsel guaranteed to the defendant by the Sixth and 

Fourteenth Amendments. Id. Second, the defendant must show that the 

deficient performance resulted in prejudice. Id. To establish prejudice, a 

defendant must show that there is a reasonable probability that but for counsel’s 

unprofessional errors, the result of the proceeding would have been different. 

Id. A reasonable probability is a probability sufficient to undermine confidence 

in the outcome. Id. 

[14] We will not lightly speculate as to what may or may not have been an 

advantageous trial strategy, as counsel should be given deference in choosing a 

trial strategy that, at the time and under the circumstances, seems best. Perry, 

904 N.E.2d at 308 (citing Whitener v. State, 696 N.E.2d 40, 42 (Ind. 1998)). If a 
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claim of ineffective assistance can be disposed of by analyzing the prejudice 

prong alone, we will do so. Id. (citing Wentz v. State, 766 N.E.2d 351, 360 (Ind. 

2002)). Further, counsel’s performance is presumed effective, and a defendant 

must offer strong and convincing evidence to overcome this presumption. 

Williams v. State, 771 N.E.2d 70, 73 (Ind. 2002). Isolated omissions or errors, 

poor strategy, or bad tactics do not necessarily render representation ineffective. 

Shanabarger v. State, 846 N.E.2d 702, 708 (Ind. Ct. App. 2006), trans. denied. 

The two prongs of the Strickland test are separate and independent inquiries. 

Manzano v. State, 12 N.E.3d 321, 325 (Ind. Ct. App. 2014), trans. denied, cert. 

denied, 2015 WL 2464355 (2015). “Thus, ‘[i]f it is easier to dispose of an 

ineffectiveness claim on the ground of lack of sufficient prejudice . . . that 

course should be followed.’” Id. (quoting Timberlake, 753 N.E.2d at 603). 

[15] Connell argues that he received ineffective assistance of his trial counsel 

because trial counsel Payne failed to move for mistrial after evidence that had 

been excluded pursuant to the motion in limine was inadvertently included in 

the DVD of Connell’s taped statement with police and played for the jury. 

Connell contends that, when this inadmissible evidence was allowed to be 

viewed by the jury, his trial counsel should have moved for mistrial. He asserts 

that an admonishment to the jury to disregard the DVD was not sufficient and 

could not cure the admission of the evidence.

[16] Prior to trial commencing in this case, the trial court had granted a motion in

limine that excluded from admission at trial any evidence of items stolen from 

other burglaries. However, during the playing of the DVD of Connell’s 
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statement with police, the detective mentioned finding property in Connell’s car 

from a house in Wabash County and a house in Huntington in addition to the 

property found from the two Grant County burglaries for which Connell was 

on trial. Payne immediately objected and requested to have the jury instructed 

to disregard the taped statement in its entirety. After a short discussion, the 

parties agreed that the jury would be instructed to disregard the video, that the 

remainder of the video would not be played, and that, instead, the detective 

would testify to the relevant parts of Connell’s statement. The trial court 

admonished the jury to disregard the contents of the DVD and not to consider 

that evidence in any way in its deliberation. 

[17] In order to prove ineffective assistance of counsel due to the failure to request a 

mistrial, Connell must show that such a request would have been granted had it 

been made. Cf. Overstreet v. State, 877 N.E.2d 144, 155 (Ind. 2007) (stating that 

in order to prevail on a claim of ineffective assistance due to the failure to 

object, a petitioner for post-conviction relief must show an objection would 

have been sustained if made), cert. denied, 555 U.S. 972 (2008); Anderson v. State, 

699 N.E.2d 257, 260-61 (Ind. 1998) (concluding that in order for counsel to be 

found ineffective for failing to request a competency hearing, a petitioner must 

show that the request would have been granted if made), trans. denied. A 

mistrial is an extreme remedy that is only warranted when no other curative 

action can be expected to remedy the situation. Lucio v. State, 907 N.E.2d 1008, 

1010-11 (Ind. 2009). A mistrial is only required where the defendant was 

placed in a position of grave peril to which he should not have been subjected. 
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Owens v. State, 937 N.E.2d 880, 895 (Ind. Ct. App. 2010), trans. denied. The 

gravity of the peril is determined by the probable persuasive effect on the jury’s 

decision. Id. 

[18] Under the facts of this case, there was only one brief reference to other possible 

crimes Connell may have committed, and it was not elaborated on or referred 

to again during the rest of the trial. Immediately after the reference was made 

in the DVD, Connell’s trial counsel objected, and the DVD was stopped; an 

admonishment to the jury to disregard the evidence was requested and granted 

by the trial court. A timely and accurate admonishment is presumed to cure 

any error in the admission of evidence. Id. In this case, the jury was not only 

specifically admonished immediately after the objection to disregard the DVD 

in its entirety, it was also instructed generally that if the trial court struck any 

evidence from the record, the jury should not consider such evidence and 

should base its verdict only on the evidence that was admitted by the trial court. 

We, therefore, conclude that Connell has not shown that if a request for a 

mistrial would have been made, it would have been granted by the trial court.

[19] Likewise, Connell cannot show that he suffered any prejudice from the failure 

of his trial counsel to request a mistrial. The evidence presented at trial of 

Connell’s guilt was overwhelming. The telephone repairman observed Connell 

coming out of the Crites’ house through a visibly broken door carrying a box, 

and the repairman immediately reported this to the police, along with the 

license plate number and description of Connell’s car. While responding to this 

burglary, an officer saw a car matching the description of Connell’s vehicle 
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drive past the Crites’ residence. When the officer attempted to stop Connell’s 

car, Connell led him on a high speed chase, which was evidence of 

consciousness of guilt and also constituted the crime of resisting law 

enforcement. See Clark v. State, 6 N.E.3d 992, 999 (Ind. Ct. App. 2014) 

(“Evidence of flight may be considered as circumstantial evidence of 

consciousness of guilt.”). When Connell was finally stopped, police found, on 

Connell’s person and in the car, various items that had been stolen from the 

Crites’ house that day, as well as items that had been stolen from the 

Pinkertons’ residence and a bag of marijuana. Included in the items stolen from 

the Crites’ home and found in the car were three guns, and at the time he was 

stopped by the police, Connell was trying to retrieve one of the guns, which was 

loaded with a round in the chamber, from between the driver’s seat and center 

console. The telephone repairman described the man he saw exiting the Crites’ 

home as a short black man wearing a toboggan hat and glasses. Connell is a 

short black man, who was wearing glasses, and a toboggan hat was found in the 

car by police. We, therefore, conclude that the evidence was overwhelming, 

and Connell cannot show that the result of the trial would have been different

or that he suffered any prejudice from the failure of his trial counsel to request a 

mistrial.

[20] Affirmed.

Vaidik, C.J., and Bradford, J., concur.