Josselyn P. Johnson, Appellant-Defendant v. State of Indiana, Appellee-Plaintiff (2026)

MEMORANDUM DECISION

[1] Josselyn P. Johnson appeals following her conviction of felony murder ¹ and her sentencing for both a firearm enhancement ² and an adjudication as a habitual offender.³ We consolidate and restate the issues raised by the parties as:

1. Whether Johnson personally waived her right to trial by jury with respect to application of the habitual offender and firearm sentence enhancements; and

2. Whether Johnson waived her right to contest her habitual offender adjudication on direct appeal by admitting to the habitual offender enhancement.

We affirm in part, reverse in part, and remand.

Facts and Procedural History

[2] Johnson was part of a group of individuals who took Corbin Rogers captive because they believed he was responsible for a missing car. They forced Rogers to ask his grandmother to pay them a $5,000 ransom. Rogers's grandmother was unable to pay the ransom, and they killed Rogers.

[3] On December 19, 2022, the State charged Johnson with felony murder, Level 2 felony kidnapping,⁴ and Level 3 felony kidnapping.⁵ The State later amended the charging information to allege Johnson was eligible for an enhanced sentence because she used a firearm in the commission of the offense and because she was a habitual offender. On June 16, 2025, the trial court began a jury trial of Johnson and two of her co-conspirators, Christina Clark and D'Sean Bigbee-Cummings. The jury returned a verdict finding Johnson and each of her two co-defendants guilty of felony murder, Level 2 felony kidnapping, and Level 3 felony kidnapping. The trial court then examined both Clark and Bigbee-Cummings under oath regarding their desire to waive a jury trial regarding the firearm sentencing enhancement, and they both confirmed that they wished to waive their right to jury trial related to that enhancement. The trial court did not examine Johnson.

[4] Johnson filed an admission to the habitual offender enhancement. The admission acknowledged Johnson was a habitual offender because she had been convicted of Class C felony robbery in 2012 and Level 5 felony robbery in 2016. The admission listed the various rights Johnson waived because of the admission, including her “right to have a public and speedy trial by jury” on the habitual offender question and her “right to appeal the finding that [she] is an habitual offender.” (App. Vol. III at 66.) Johnson initialed next to each of the rights she agreed to forego, and both Johnson and her attorney signed the admission.

[5] On July 14, 2025, the trial court held a hearing involving both Clark and Johnson. At the beginning of the hearing, the State observed that the trial court still needed to decide the firearm enhancement question for both Clark and Johnson. The State explained: “I think Ms. Johnson may still need to do the official waiver.” (Tr. Vol. 4 at 86.) The deputy prosecutor explained that she and Johnson's counsel “were not sure if we circled back and actually did her waiver on the firearms phase.” (Id.) The trial court examined Clark under oath and Clark confirmed that she still wished to proceed with a bench trial regarding the firearm enhancement. The trial court did not question Johnson regarding whether she wished to waive her right to a jury trial on the firearm enhancement. The trial court then jointly tried Clark and Johnson regarding the firearm enhancement. The trial court took judicial notice of the jury trial proceedings and credited testimony that Johnson had attempted to shoot Rogers with a handgun while he was being held captive. To avoid double jeopardy, the trial court vacated Johnson's kidnapping convictions. The trial court sentenced Johnson to a base term of sixty-two years in the Indiana Department of Correction with respect to her felony murder conviction. The trial court then enhanced that sentence by fifteen years due to the habitual offender finding and further enhanced the sentence by eight years because of the firearm enhancement finding, for an aggregate sentence of eighty-five years.

Discussion and Decision

1. Jury Trial Waiver

[6] Johnson asserts the trial court committed fundamental error by failing to confirm that she personally waived her right to trial by jury regarding the habitual offender and firearm sentence enhancements. “Fundamental error is an exception to the general rule that a party's failure to object at trial results in a waiver of the issue on appeal.” Kelly v. State, 122 N.E.3d 803, 805 (Ind. 2019). However, “fundamental error occurs only when the error ‘makes a fair trial impossible or constitutes clearly blatant violations of basic and elementary principles of due process presenting an undeniable and substantial potential for harm.’ ” Strack v. State, 186 N.E.3d 99, 103 (Ind. 2022) (quoting Clark v. State, 915 N.E.2d 126, 131 (Ind. 2009)).

[7] Because Johnson was convicted of felony murder following a jury trial, she had the right to also have the jury decide whether her sentence should be enhanced because of her habitual offender status. See Ind. Code § 35-50-2-8(h) (“If the person was convicted of the felony in a jury trial, the jury shall reconvene for the sentencing hearing․ The role of the jury is to determine whether the defendant has been convicted of the unrelated felonies.”). In addition, she had the right to have the jury decide whether her sentence should be enhanced because of her use of a firearm during commission of the offense. See Ind. Code § 35-50-2-11(f) (“If the person was convicted ․ in a jury trial, the jury shall reconvene to hear evidence in the enhancement hearing.”).

[8] “The jury trial right is a bedrock of our criminal justice system, guaranteed by both Article 1, Section 13 of the Indiana Constitution[⁶ ] and the Sixth Amendment to the United States Constitution.[⁷ ]” Horton v. State, 51 N.E.3d 1154, 1158 (Ind. 2016) (footnotes added). The principle of these constitutional provisions is to “guarantee the same general protection - a criminal defendant must receive a jury trial, unless he waives it.” Id. The Sixth Amendment requires that the defendant's waiver “be ‘express and intelligent,’ and waiver of the Indiana constitutional jury trial right must be ‘knowing, voluntary[,] and intelligent[.]” Id. (quoting Patton v. U.S., 50 S. Ct. 253, 263 (1930), & Perkins v. State, 541 N.E.3d 927, 928 (Ind. 1989)) (first set of brackets in Horton). A felony defendant's waiver of his jury trial right under the Indiana Constitution must be personally communicated by the defendant. Id.

[9] “Indiana's personal waiver requirement derives from the statutory procedure for waiving the state constitutional jury trial right.” Id. Indiana Code section 35-37-1-2 provides: “The defendant and prosecuting attorney, with the assent of the court, may submit the trial to the court. Unless a defendant waives the right to a jury trial under the Indiana Rules of Criminal Procedure, all other trials must be by jury.” This statute “requires that a defendant's waiver of the right to a jury trial be ‘personal,’ either in a writing signed by the defendant or in the form of a colloquy in open court between the defendant and judge.” Kellems v. State, 849 N.E.2d 1110, 1112-13 (Ind. 2006). “The defendant must express his personal desire to waive a jury trial and such personal desire must be apparent from the record.” Coleman v. State, 694 N.E.2d 269, 278 (Ind. 1998). The trial court's failure to confirm a defendant's personal waiver of his right to a jury trial before proceeding to a bench trial constitutes fundamental error. See, e.g., Horton, 51 N.E.3d at 1160 (holding the trial court's failure to ensure defendant's personal waiver of his right to a jury trial before proceeding with bench trial constituted fundamental error even though the defendant's counsel asked for a bench trial).

[10] Johnson's admission to the habitual offender enhancement included an express waiver of her right to “a public and speedy trial by jury” and a waiver of the rights enjoyed by a criminal defendant at trial, including the right to be presumed innocent of the enhancement, the right to have the State prove her guilt beyond a reasonable doubt, the right to confront and cross-examine the witnesses against her, the right to compulsory process to obtain witnesses on her behalf, and the right to appeal the finding that she is a habitual offender. (App. Vol. III at 66.) Johnson initialed next to each of the rights she waived and signed the admission. Thus, Johnson personally waived her right to a jury trial in her written admission to the habitual offender enhancement. See, e.g., Poore v. State, 681 N.E.2d 204, 207 (Ind. 1997) (holding defendant personally waived right to trial by jury by filing a written and signed jury trial waiver).

[11] However, the State concedes Johnson did not submit a written waiver of her right to a jury trial on the firearm enhancement nor did the trial court engage in a colloquy with her to ensure her waiver of that right, and the States asks us to “remand this case to the trial court for a proper advisement of Defendant's right to a jury trial on the firearm enhancement and for further proceedings as necessary.” (Appellee's Br. at 10.) Therefore, we reverse the trial court's finding that Johnson was subject to the firearm sentence enhancement. See, e.g., Butler v. State, 259 N.E.3d 362, 363 (Ind. Ct. App. 2025) (reversing defendant's conviction following bench trial because defendant did not personally waive his right to a jury trial).

2. Habitual Offender Finding

[12] Johnson also argues on appeal that the State presented insufficient evidence to sustain the habitual offender finding. However, Johnson admitted her status as a habitual offender and waived her right to challenge that finding on direct appeal. (App. Vol. III at 66.) An admission to habitual offender status is equivalent to a guilty plea. Stanley v. State, 849 N.E.2d 626, 630 (Ind. Ct. App. 2006). “One consequence of pleading guilty is restriction of the ability to challenge the conviction on direct appeal.” Tumulty v. State, 666 N.E.2d 394, 395 (Ind. 1995). While the defendant may challenge on direct appeal a trial court's exercise of discretion in sentencing or the trial court's denial of a motion to withdraw the guilty plea, the defendant cannot challenge the validity of a guilty plea on direct appeal. Hoskins v. State, 143 N.E.3d 358, 360-61 (Ind. Ct. App. 2020). Such a challenge must be brought in a petition for post-conviction relief. Id. at 361.

[13] In Tumulty, Tumulty pled guilty to criminal deviate conduct and to being a habitual offender. 666 N.E.2d at 395. On direct appeal, Tumulty sought “to appeal the trial court's acceptance of his plea to the habitual offender claim, contending that there was no factual basis in support of it.” Id. However, our Indiana Supreme Court held Tumulty could not bring that challenge on direct appeal. Id. at 396. Likewise, Johnson cannot challenge her adjudication as a habitual offender on direct appeal. See, e.g., Weaver v. State, 676 N.E.2d 22, 24 (Ind. Ct. App. 1997) (holding defendant who pled guilty to being a habitual offender could not challenge the sufficiency of the factual basis for that determination on direct appeal), trans. denied.

Conclusion

[14] Johnson personally waived her right to a jury trial regarding the habitual offender enhancement by filing a written admission to the enhancement. The admission also precludes Johnson from challenging the habitual offender finding on direct appeal. However, we reverse the trial court's finding that the firearm sentence enhancement applied to Johnson because Johnson did not personally waive her right to a jury trial on that enhancement. Accordingly, we affirm the trial court's finding as to the habitual offender finding, reverse the trial court's finding as to the firearm enhancement, and remand for a new trial limited to the firearm enhancement

[15] Affirmed in part, reversed in part, and remanded.

FOOTNOTES

1.   Ind. Code § 35-42-1-1(2) (2018).

2.   Ind. Code § 35-50-2-11 (2022).

3.   Ind. Code § 35-50-2-8 (2017).

4.   Ind. Code § 35-42-3-2(a), (b)(4)(A) (2019).

5.   Ind. Code § 35-42-3-2(a), (b)(3)(A) (2019).

6.   “In all criminal prosecutions, the accused shall have the right to a public trial, by an impartial jury ․” Ind. Const. Art. 1, § 13.

7.   “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury ․” U.S. Const. amend. VI.

May, Judge.

Mathias, J., and Felix, J., concur.