Andrew Conley v. State of Indiana

prior felony convictions as sufficient nies because require we what should So jurisprudence with our habitu- accordance general for the direction legislative —is Assem- requiring the General Downey ex- Court also As al offender statute? criminal code for stand- bly to comb the substance offender in the habitual plained, judicial- later might alone felonies that we Assembly specifically the General statute penalty ly progressive define as de facto which would serve the offenses listed needlessly This seems demand- also did statutes? legislature crimes. The predicate ing. traffic violator stat- the habitual this with offender statute. repeat

ute and the sexual of this state communicated courts 9-30-l(M(a)-(c), §§ 35-50- See Ind.Code was, Assembly what and was the General 2-14(a). habitu- “specialized those are But not, respect with to double permissible statutes,” apply to “certain al offender times, the General enhancements. Several Downey, 770 offenses.” closely related I their Assembly responded. believe here at 795-96. We deal amending the habitual of- response offend- general and more habitual broader shows first that the SVF fender statute er statute. penalty stat- progressive statute is not a (a) it, ute, that, of the habitu- if As I read subsection and second even the SVF effect, says, in that a subject general al offender statute were to the statute still felony enhancement, offender enhancement to there against habitual rule double anytime the defen- charge may sought permitting explicit legislative direction felony unrelated convic- prior dant has two felon to be sub- adjudicated serious violent of the separate tions—unless a subsection enhancement under the ject additional (b) it. Subsection then prohibits statute habitual statute. general offender the three instances in which the articulates Accordingly, I dissent. prohibit- habitual offender enhancement is essence, prosecutors ed. it tells this, except where we may

courts: “You do here are the times

say you cannot. And say you

we cannot.”

I think this was the most reasonable Assembly General approach for the CONLEY, Appellant Andrew to Ross n ar- responding take while still (Defendant below), rule, general ticulation of our and I am it have done. not sure what else could Indiana, Appellee general scope the broad and of the STATE of Given below). (Plaintiff statute, starting pre- habitual offender sumption applies would be that it to all No. 58S00-1011-CR-634. felonies; it was far easier to list fel- those of Indiana. Supreme Court apply onies to which it does not than to attempt enumerating to draft a list all of July apply (particu- the ones to which it does Oct. Rehearing Denied if larly expand this Court continues to its pen- judicially progressive class of created statutes).

alty already pro- The statute enhancement of

hibits habitual offender felo-

misdemeanors that are elevated to

Gregory Zoeller, F. Attorney General of Indiana, Flores, Jr., Henry A. Deputy At- General, IN, torney Indianapolis, Attor- neys for Appellee.

DAVID, Justice.

This case a seventeen-and-a- involves half-year-old ten-year- who murdered his Conley old brother. Andrew confessed to the crime pleaded guilty to murdering brother, Conner, while was ba- bysitting Following days Conner. five sentencing testimony, including the testi- mony of twelve witnesses and one-hun- exhibits, dred-and-fífty-fíve the trial court judge sentenced to life pa- role. hold age We that based Conner, Conley, and the partic- ularly crime, heinous nature of the a sen- tence of life parole appropri- was case, ate. We hold that on the facts of this sentence of life without is con- stitutional. History

Facts and Procedural undisputed facts are On follows. 28, 2009, Saturday, November Conley was seventeen-and-a-half-year-old when he brother, murdered his ten-year-old Con- ner. The murder took between place 8:30 p.m. p.m. and 10:00 mother adop- His and tive father were at that evening work until early morning hours. As was not un- common, Conley responsible was for watching evening. Conley’s Conner that mother told him he have would to find a babysitter for go Conner if he wished to out with his friends.

Conley wanted go evening, out so Conley grandmoth- drove Conner their Sun, Indiana, er’s house in Rising but she was not home. He asked next his uncle to watch they Conner but was told no. After Weissmann, IN, home, Leanna Lawrenceburg, returned Conley began and Conner Attorney Appellant. wrestling. for a.m., Conley turned around 2:30 was Conley got behind his home point,

At some Conley him in a with acting and choked headlock normal. that Conner brother said out. passed Conner grandmother’s his arm until Conner house and Con- was his bleeding from the nose and mouth. was con- ley asked his father for some also breathing. drug Conley was still Conner doms. kitchen, pair into the retrieved a Conner mother home around arrived to choke and continued Conner gloves, a.m., Conley mother had 5:45 and his front, Conley his throat. from the around together, popcorn, watched movie approximately twenty choked Conner jokes back and His mother cracked forth. total. minutes early asleep. fell On two occasions that bag next Conley got plastic from father’s morning, Conley went into his in the it placed kitchen and over drawer over him a knife. bedroom and stood with Conley head. used black electri- Conner’s Conley kill his said he had intent tape bag wrapping to secure the cal father, but he decided not to. head. Conner tape around Conner’s Conley Sunday, Later same fact, alive. last words still Conner’s Follow- watched football his father. “Andrew stop.”

were football, ing Conley left home and drove Conley drug body then to the Conner’s park Rising Sun where Conner’s basement, steps drug that lead to the him discarded, body been but he never had feet, steps by his across the down Instead, went the actual Con- location. floor, the home. outside ley spoke friends him that to two and told on the slammed Conner’s head concrete Thereafter, he killed around had Conner. multiple times to ensure Conner dead p.m., Conley 8:00 car to the drove his body then in the placed his trunk Rising Department Police and volun- Sun car. himself up cleaned tarily “accidentally he killed his reported put He put bloody on new clothes. the brother” or that he he had “believed” in his and hid bloody clothes closet the killed his brother. gloves in a chair. Conley’s parents, The contacted police Conley girlfriend’s next drove to his consulting parents and after with his movie, they house. watched a While there counsel, right Conley con- waiving his gave “promise ring.” and he her a Con- intentionally ten-year- fessed to his killing ley’s girlfriend sentencing at the testified Conley charged old with brother. hearing Conley “[h]appier than ultimately guilty, pleaded murder and him in long Conley spent I’d seen time.” plea agreement. penalty The house, girlfriend’s two hours at his while phase Sep- trial was from of the conducted body in remained the trunk of Conner’s sentencing tember to 21. the Following leaving girlfriend’s the car. After his Conley the trial court hearing, sentenced house, Conley drove to an area behind the possibility to life imprisonment without Rising Conley Sun School. Middle decid- of parole. body into drag ed to Conner’s the woods the body vege- and covered with sticks and confronted four We are issues tation. by Conley. raised The first issue is allowing the trial court erred in during whether Conley early returned home Dr. morning Sunday testimony hours James Daum. Dr. 29th when testimony opin- did up provide no one was home. He cleaned the Daum’s Conley any in the ion had psychopathy, blood house. When father re- but testimony suggested Conley instead his the trial clearly court’s decision is against person had traits of a with such a diagno- the logic and effect of the facts cir sis. The second issue is whether the trial State, cumstances before it. Smith v. properly weighed (Ind.2001). court the aggravating N.E.2d The trial mitigating factors this case. The court’s decision will not be disturbed ab appeal third issue raised on is whether sent a requisite showing of abuse. Good ner, Conley’s sentence was appropriate under 685 N.E.2d at 1060. 7(B). Appellate Finally, Indiana Rule we In the presentation defendant’s address an issue that was first raised at court, Dr. Connor testified that he argument,1 oral par- which we had the diagnosed Conley as having schizoaffective ties amend their briefs to address whether disorder, the bipolar type, and a sleep imposition life-without-parole of a sen- disorder. Dr. James Daum was by called person tence on a eigh- under the State rebuttal during the penalty teen who has been convicted of murder phase of the trial to rebut the testimony of

violated either the United States or Connor, expert, defendant’s Dr. that Con Indiana Constitution. ley did psychotic not “fit the personality.” Testimony I. of Dr. James Daum In preparation for his testimony, Dr. Daum A reviewed parole by sentence of life without statements Conley, (LWOP) Conley’s parents, subject Conley’s girlfriend, is to the same statutory police reports. Dr. requirements standards and Daum also death reviewed cell phone records, all penalty. of the Krempetz v. statements (Ind.2007). made to the police, reports Before a life-without- by submitted the three psychologists imposed, sentence can be who the State Conley, evaluated two of which were required ap prove beyond a reasonable pointed by court, and one doubt at retained least one aggravating circum the defendant. Dr. Daum testified (2008). § stance. Ind.Code 35-50-2-9 had evidence of psychopathy. The trial The trial court must if determine the State court Dr. ruled Daum was not able to proven the existence alleged of an testify opinion as to his whether Conley aggravator doubt, beyond a reasonable but was a psychopathic personality. spe also mitigating that the circumstances are cific line of questioning is as follows: outweighed by the circum aggravating QUESTION: 35-50-2-9(1). And are psychopathic per- § stances. penalty The sonalities difficult to phase of an rehabilitate? requires LWOP trial introduc tion of evidence with the Objection. burden on the WATSON: Objection, Your prove State to beyond its case Honor. I reason believe it’s improper any State, able doubt. of Dumas v. these folks to opinion 803 N.E.2d render on reha- (Ind.2004). 1113, 1121 bilitation. That’s unnecessary specula- The admission or tion, (indis- Honor, exclusion of evidence Your my rests within the that client cernible) court, sound discretion of the trial and we review for an abuse of discretion. Good Okay. objection COURT: That is sus- State, (Ind. ner v. 685 N.E.2d tained. IAnd will also note-I do not 1997). An abuse of discretion occurs when believe that this witness has rendered University-South Weissmann, 1. We thank Indiana Bend counsel Leanna who drove from hospitality hosting for its us. We also Lawrenceburg, participate. Indiana to The acknowledge advocacy Deputy Attorney you. Court thanks Jr., Henty General Appellant's Flores eligible for aggravating I believe circumstances con psychopathy. opinion specified sideration to those statute. only regarding testified this witness (Ind. 831, 840 Cooper v. Okay? Objection far. thus characteristic 2006). relevant only evidence is sustained. aggravating court is evidence of and miti Furthermore, court later the trial would Bivins, 642 gating circumstances. sentence, announcing his explain in defense disagree at 957. We with coun by were conducted Examinations the State sel’s characterization that used experts, Dr. Don Olive and appointed testimony speak Conley’s Dr. Daum’s Parker, George following Defen- Dr. future in violation Bi dangerousness De- insanity plea. of an filing dant's rebuttal, only vins. Dr. testified Daum by examined Dr. Ed- was also fendant rebutting for the purpose of defense Conner, expert State’s defense ward Connor, Dr. expert that defendant did not Daum exam- Dr. James did not expert, fact, psychotic personality.” “fit the but reviewed other ine the Defendant expressly objec the trial court stated on Dr. reports. Olive conclud- records and tion, “Counsel, taking I’m this as rebuttal suffering Defendant was from a ed that of Dr. Not this ren Connor.... witness depressive order of at least mod- major dering opinion psychopathy.” his own as to disorder, severity; ei- personality erate testimony Dr. based on Daum’s Con personality ther antisocial or borderline ley’s preferred mitigating circumstance of personality Dr. di- disorder. Connor’s his mental health. suffering is that Defendant agnosis bipolar from schizoaffective disorder — challenging In addition to the sub diagnosed Dr. Parker Defendant type. testimony, stance of defense counsel depression psychotic with features. relevance Dr. challenges also Dr. Daum indicated that Defendant ex- testimony. Daum’s Relevant evidence is psycho- hibited some characteristics of a tendency to having any “evidence make Daum, however, path. Dr. was not able any the existence of fact that is conse diagnosis he specific to render because quence to of the the determination action personally examine the Defen- did probable probable more it or less than Defendant, experts agree All dant. would without the evidence.” Ind. Evi Conley, wrong- Andrew understood the Dr. Daum’s Again, dence Rule 401. testi criminally fulness of his actions and is mony testimony was offered to rebut the mental responsible. As of Dr. did not Connor “fit the offense, at the time of the Dr. state psychotic Rebuttal personality.” evidence functioning Connor stated “his executive “is limited which tends to explain, to that and he suspended was not was able to contradict, disprove or evidence offered make rational decisions.” State, the party.” adverse Schwestak State, (Ind.1996) 962, In Bivins v. 674 (quoting 642 N.E.2d N.E.2d 928, (Ind.1994), 1036, State, 955-956 court held Isaacs v. N.E.2d this (Ind.1995)). the only charged evidence relevant to stat Defense counsel couches its proffered Daum utory aggravators argument can admitted and as if Dr. an opinion in capital psychopathy. considered cases so as to avoid on Dr. thing. Daum did Dr. disproportionate sentences in violation of no such Daum’s 1, testimony explaining Article Section 16 of the was limited to Indiana Consti contradicting tution. When sentence of life without evidence offered relating to We sought, is courts must limit the his mental health. certain- no discretion on ly appropriate punishment can find abuse of for this of- allowing court’s behalf in this testimo- fender and this crime. trial ny. State, 872 Krempetz v. N.E.2d 613-14 (Ind.2007) State, (quoting Dumas v. recognize that Finally, we Dr. (Ind.2004)). 1122-23 Addi testimony given before the Daum’s tionally, trial may before the court impose court jury. presume trial and not a We a sentence of parole, “it must judge trial is aware and knows the proven find that State the exis only properly law and considers evidence aggravator tence of an alleged beyond a him or reaching before decision. her reasonable ‘any doubt and must find that State, Emerson 695 N.E.2d mitigating circumstances that exist are (Ind.1998). of prejudice The risk outweighed by the aggravating circum solely when the quelled evidence is before ” stance or circumstances.’ Id. (citing I.C. case, court. the trial Id. In this the trial 35-50-2-9(0(2». § This gives never court mentioned Dr. Daum’s testi “great deference to [trial] court’s deter as a mony repudiating any basis for mination of weight the proper assign to Conley’s proffered mitigators. Further aggravating and mitigating circum more, the trial recognized court that it was stances.” Id. This Court will “set aside any permitted aggravator consider only court’s weighing upon the show than other Dr. Daum age. victim’s did ing of a abuse discretion.” Id. manifest opinion an Conley’s psychopa not offer that a determination circumstance is future thy, dangerousness, or and the trial mitigating is within the trial court’s discre court did not find be the such to case. We tion, and the trial is not obligated court proper hold trial court exercised dis explain reasoning. State, its Dunlop v. in permitting cretion Dr. Daum’s limited (Ind.2000). The trial testimony. court is not required give the same weight as the give defendant would to the Weighing Aggravating II. preferred mitigating circumstances. Mitigating Factors permissible One aggravating argues Defense counsel next age factor is the of the victim. Indiana court improperly weighed ag the trial 35-50-2-9(b)(12). § Code An aggravating gravating and mitigating factors. When factor is the victim being murder less than a sentence imposing parole, of life without years case, twelve age. sentencing the trial court’s statement alleged aggravating State as its factor (i) identify must mitigating ag- each young age Conner’s when he was mur found, gravating circumstance deny dered. does not that Conner (ii) specific must include the facts and only years ten when he old died. The reasons which lead the court to find legislature’s decision include the existence of each such circum- aggravator the legislature’s reflects poli stance, cies of protection both of young increased (in) must the mitigating articulate that children punishment and a harsher aggravating circumstances have prey those who on them. Stevens v. been evaluated and balanced in de- (Ind.1997). 432-33 Be sentence, termination of the and proven cause the State beyond a rea (iv) must set trial per- factor, forth the court’s aggravating sonable doubt one and only

sonal aggravating conclusion that sentence is because one factor is nec- mitigator The prong, proffered next turn to the second now essary, we mitigators. Conley’s mental emotional health. the issue of was or 35-50-2-9(c)(2). trial court § The I.C. mitigating of a number Conley raised weight Conley’s limited mental or gave to 35-50-2-9(c). § The trial factors. I.C. carried out disturbance when he emotional The mitigating five factors. weighed court murder. The trial court must consider to four of gave weight some trial court in determining weight factors what gave weight trial no several court mitigators. mitigators. to two of the to evidence of mental illness. give to trial 872 N.E.2d at 615. The Krempetz, Conley seventeen-and-a-half- “(1) consider extent of the court must he This when murdered Connor. years-old inability her control his or defendant’s § factor. Indiana Code 35- mitigating ais impair or behavior due the disorder 50-2-9(c)(7). The this gave trial court (2) ment; overall limitations on function but he func weight, found that “some” (3) illness; ing; the duration of the mental range intelligence normal of in the tioned (4) any the extent nexus between and IQ of average an above verbal and had impairment or the com the disorder no of discretion find abuse We (citing circum of the Archer assigned mitigating this mission crime.” weight (Ind.1997)). State, Conley years was nearly eighteen stance. N.E.2d at a normal intelli age case, functioned all In this three doctors who testified level. gence Conley that confirmed “understood of his is criminal wrongfulness actions and Conley history. had no criminal in responsible.” The trial court noted ly § mitigating 35-50- This is a factor. I.C. in Conley’s consistencies statements. 2(c)(1). Again, gave the trial court 9— some from Conley told doctors he suffered weight Conley but admitted “some” noted but to another. hallucinations denied that marijuana drinking alco smoking Conley gloves told Dr. Parker he used properly believe the trial court hol. We during the murder he could not because weighed Krempetz, this factor. See touching placed bag handle Conner and (Ind.2007); Losch N.E.2d 605 (Ind.2005). Losch, looking head In over Conner’s to avoid N.E.2d lack Conley gloves the trial court noted the defendant’s him. told he used police any adult criminal convictions would bag to. fingerprints and the lessen factor, were mitigating a substantial but blood. only properly given weight minimal when story Conley’s was also inconsistent into

it was taken account that defen Dr. knew when he told Parker that no one continuously marijuana dant used since attempts, Dr. of his suicide but told money thirteen and stole from his trial parents Olive his knew. The court Similarly, family. 834 at 1014. Conley’s also noted mother testified Krempetz, the defendant had no adult con attempt cuts in a Conley’s claimed suicide victions, but discounted because superficial, were and no electrical breakers drug stealing. of defendant’s use and attempt in another tripped alleged suicide Again, N.E.2d at 614. we find no abuse space placing heater in a bathtub. assigned by in the weight discretion to all example, Conley another denied court. lack of criminal histo trial sexually mo- being three doctors ever ry was offset his actual criminal behav lested, but the week before trial smoking marijuana drinking al ior he find no cohol. told Dr. Conner had been. We ing statement, trial spanning thirty of in the court’s pages, abuse discretion was factor. weighing explained of this detailed and its rationale for awarding weight, affording or no weight, argues weight given no was also every to each and mitigating circumstance capacity appreciate to his lack of the proffered Conley. Again, the standard fact, criminality of conduct. the trial of review is a manifest of abuse discretion. just opposite, court the found Covington v. capacity appreciate indeed did have the (Ind.2006). find of We no abuse discretion conduct, the of his criminality thus by the trial court. gave weight mitigator. no the The trial relied, part, testimony court in on the of It is appropriate also to discuss the Su- Conner, Dr. expert defense who concluded decision, preme Court’s recent Miller v. that “at the time of the — crime executive Alabama, -, U.S. and he

functioning suspended was (2012). Supreme L.Ed.2d The able to make rational decisions.” Krem- Court “mandatory held that point giving weight is on minimal petz parole for under those the of 18 at the (1) mental defendant’s condition when time of their crimes the Eighth violates there was no evidence had defendant prohibition Amendment’s on ‘cruel and un- ” (2) intellect, inferior defendant was able to punishments.’ Miller, usual 132 S.Ct. at (3) basis, fully daily function a defen- opinion 2460. The Court’s discusses “two accepted responsi- dant full and complete precedent reflecting strands of our con- bility for his commission of the offense of cern proportionate punishment.” with (4) by entering plea guilty, murder a at 2463. The first strand of precedent the marijuana, defendant self medicated with Supreme refers to Court Graham (5) the doctor testified that defendant cases, Roper line respectively pro- manipulative deceptive. 872 viding Eighth Amendment bars Again, N.E.2d at 615. we no abuse of find capital punishment juveniles, for pro- discretion. hibits a sentence life the possi- Finally, provides the statute for “other bility who commit- appropriate circumstances for consider- ted nonhomicide offenses. Id. at 2458. 50—2—9(c)(8). § ation.” The trial I.C. The away most fundamental take from 35— gave court next “some” weight Conley’s “youth Graham was that matters deter- authorities, cooperation reasoning the mining appropriateness of a lifetime of easily crime be regard- would discovered possibility pa- incarceration without the However, Conley’s less of confession. strand, role.” Id. This trial court no gave weight to re- writes, is on the taking focused sentencer factor, mitigating finding morse as a it to into youth. “By removing youth account given “superficial the horrendous na- from by subjecting juvenile balance— ture of the crime.” to the life-without-parole same sentence applicable to an prohibit adult —these laws Judge Humphrey gave a de authority sentencing assessing from appraisal of each mitigating tailed circum whether the of impris- law’s harshest term weighed stance as he them against sole proportionately punishes juvenile onment aggravator youth. Conner’s We find offender.” Id. trial court was within discre its sound ultimately tion that the concluding ag precedent second strand of refer- gravating outweighed mitigating factor ences the of law body that has held manda- tory factors. We find the trial sentenc- death the Eighth court’s sentences violate 876 Therefore, cases, reviewing a sen Supreme when In these the

Amendment. especially important tence, is “leaven the principal noted it was our role to Court the opportunity have the sentencer necessarily that rather than achieve outliers” of “mitigating qualities the consider the result. perceived is “correct” what Miller, (quoting 2467 132 S.Ct. at youth.” State, 1219, v. 1225 Cardwell 367, Texas, 350, 113 v. 509 U.S. Johnson (Ind.2008). if look do not to determine We (1993)). L.Ed.2d 290 125 S.Ct. we appropriate; sentence instead the was that lead to find two us These strands the was not look to make sure sentence mandatory life-without-parole a imposing inappropriate. King, 894 N.E.2d at juvenile precludes the sentencer upon a The is a nature of offense account the defendant’s taking into from brutali unimaginable to defen crime of horror and issues related youth and various brother, his a appreci ty. babysitting a “failure to little youth, such as While dant’s at 2468. consequences.” ate risks his ten- nearly eighteen-year-old murdered further wrote that Supreme brother, The his hands. year-old bare a sentencer “to take they require would his over position was in a trust different, children are into account how He brother. murdered his little brother against counsel and how those differences very place have felt Conner should irrevocably sentencing them to a lifetime safest. Conner was choked from behind Id. at 2469. hold prison.” We out, passed he from the bleeding until just pres did that in the Judge Humphrey alive as mouth nose. Conner was still Finally, ent case. we note the kitchen, Conley drug put him into the on being Indiana as one Court mentioned gloves, and for a second time choked Con pa jurisdictions fifteen where life without choking approxi ner. The went on for discretionary, and role for mately minutes. Conner was still twenty in violation therefore not unconstitutional bag alive. a Conley placed over Conner’s n. Eighth Amendment. Id. at 2472 ultimately head. Conner died due to Conley drug body asphyxiation. Conner’s 7(B) Appellate III. Rule Indiana stairs, slamming down set of the head dead. concrete ensure Conner was by A authorized stat sentence dying words were “Andrew Conner’s inappropri ute can be revised where it is stop.” light ate in the nature of the offense and Appel of the offender. Ind. character This was a drawn out crime. Conner 7(B). 7(B) Appellate analy late Rule Rule Conley had unimaginable suffered horror. another sis is not to determine “whether opportunities stop murdering his broth- rather appropriate” sentence is more but with his hands. had er own imposed inappro “whether is the sentence actions opportunities stop number State, N.E.2d priate.” King Instead, get help medical for Conner. It is not a matter (Ind.Ct.App.2008). nearly in- he continued. This was not a guessing of second trial court sentence. by stantaneous death bullet. This under Rule Appellate Sentence review person charge death hands of the 7(B) very to the trial court. deferential nature protecting brutal Conner. (Ind. State,

Felder v. N.E.2d not move of this crime does this Court Ct.App.2007). The burden is on the defen is inappropriate. believe sentence persuade appellate dant to court given he Defendant claims should be inappropriate. his sentence is Childress (Ind.2006). alleged illness. leniency due to his mental Following days five of testimony eighteen and one- of to be sentenced to life without exhibits, hundred-fifty-five the trial court parole for a non-homicide crime. Graham — determined that mental health Florida, U.S.-, 2011, 130 S.Ct. was not as dire or disturbed as the (2010). defen- 176 L.Ed.2d 825 As we mentioned Instead, sug- dant claimed. the evidence above, the recently Court decid- gests a hardened character. Speaking Alabama, ed Miller v. holding mandato- parents with his following the murder of ry sentencing scheme of life-without-parole brother, Conley his went about a normal is unconstitutional under the day, asking his father for even a condom. Eighth Amendment.2 Conley happy. seemed This is in line with In order to determine whether a

the doctors who testified at the trial. punishment unusual, is cruel and the Su Conley may While have had some mental preme beyond Court “look[s] historical disturbance, or emotional he still retained conceptions to the evolving standards of the capacity mental to control his conduct. decency that mark the progress of a ma Conley girlfriend, giv- visited with his even Graham, turing society.” 130 S.Ct. at ing her promise ring, while lay Conner (internal omitted). quotations “The dead the trunk of the car. Conley basic concept underlying Eighth following day. watched football the It was nothing Amendment is less than the digni Conley not until after go pick was told to ty of man. While State has the power house, from up grandmother’s Conner to punish, the Amendment stands to as reality that the began to set in. sure power that this had no exercised within escape, way avoiding no what he the limits of civilized standards.” Trop had done. The sentence of life without Dulles, 86, 100, 590, 356 U.S. appropriate was S.Ct. light of the de- (1958) L.Ed.2d 630 (plurality opinion). fendant’s character and the nature of this The applicability offense. of what is cruel and un punishment usual changes “as the basic Implications IY. Constitutional mores society change.” Kennedy v. of LWOP for a Seventeen- Louisiana, 407, 419, 554 U.S. Year-Old 2641, 171 (2008). L.Ed.2d 525 The constitutionality of stat utes is reviewed de novo. State v. Moss- We first note was born on 109, (Ind.1997). Dwyer, 686 N.E.2d 14, 1992, May and he murdered his broth- Such “highly review is restrained” and er on November 2009. He was seven- deferential,” “very beginning pre months, “with years, [a] teen six and two weeks old. sumption of validity, constitutional pleaded and He guilty 13, 2010, September party therefore the challenging the statute 15, 2010, and was sentenced on October heavy labors under a burden to show that age eighteen years and five months. the statute is unconstitutional.” Id. at Our review of other states reveals that the 111-12. The United States Supreme overwhelming majority provide for the Court has held it is cruel and unusual possibility of LWOP sentences to individu- punishment for an individual under the age als under eighteen.3 These Argument 2. We held Oral on November Briefing this completed February issue. University at Indiana South Bend. The Eighth Amendment Constitutional issue had by party. Alaska, been briefed either Colorado, Kansas, We asked Only Kentucky, parties Maine, Montana, Mexico, York, to amend their briefs to address New New Or- responded to the by legisla Roper, made been decisions have argument possibility made a policy has legislature ture. The necessary to deter penalty death is what want to do. we decision that committing minors from homicides written, “the Circuit Eleventh that the life with- noting punishment of required ju is not deter penalty death enough is a severe parole out sanction committing murder because a veniles from 572, as deterrence. 543 at serve U.S. is sentence deterrence parole life without Graham, 1183. In the Court 125 S.Ct. juvenile.” Log for a enough, particularly that recognized a line existed “between (11th Thomas, 1204, v. 654 F.3d 1223 gins homicide and other serious violent of- Cir.2011). Simmons, v. Roper 543 U.S. against the individual.” 130 S.Ct. fenses 1183, (2005), 551, 161 L.Ed.2d 1 (internal omitted). at De- 2027 citations States Court held United who of- fendants commit nonhomicide punishment it cruel and unusual that was fenses, therefore, “categorically less are the age an individual under sentence deserving of the most forms of serious However, Roper recog eighteen to death. punishment than are Id. murders.” a parole nized that life without still defendants who commit crimes Even juveniles, for noting viable sentence bodily that cause serious harm to anoth- enough was a severe LWOP sentence compared er individual cannot be need the penalty sanction to not death for regard severity to the and murders 572, at 125 juveniles. 543 U.S. S.Ct. 1183. irrevocability By of their crimes. then, implication is a Roper, that illustrating the differences all between for parole juve life without sentence of murderers, juvenile other criminals and nile of homicide is convicted constitutional. implies that it per- the Court remains Thomas, 1204, Loggins v. 654 F.3d 1222 legitimate juvenile for a fectly to receive (11th Cir.2011). opinions Recent have parole com- sentence life without for Nebraska,4 been handed down and Mis mitting murder. 130 S.Ct. at 2027. The 5 upholding souri constitutional justice chief further notes that there is juvenile to a who commits LWOP sentence “nothing inherently unconstitutional murder under United States Constitu imposing about sentences of life without tion and their state constitutions. juvenile parole on offenders.” 130 S.Ct. C.J., (Roberts, at concurring). 2041 held, have we agree, As other states and Andrews, 329 at 377. S.W.3d Roper analysis and defendant’s Graham is “Roper expressly flawed because and Gra- opinion The Missouri further notes that recognize life implicitly ham without that many prior there are and Roper cases punishment is parole not cruel unusual life parole Graham hold a without for a who is convicted of a homi- minor juvenile sentence for offender homicide Andrews, cide.” v. 329 Amendment, Missouri S.W.3d Eighth violate would not (Mo.2010). 369, As Zel following 376-77 Justice post-Roper cases contin- wrote, possibility Fischer ue a life to hold Texas, Golka, 360, egon, Virginia West do not allow State v. 281 Neb. 796 N.W.2d (2011). for those under LWOP sentences 198 Legisla- of 18. National State Conference of tures, (JLWOP), Life Parole Juvenile Without Andrews, (Mo. 329 S.W.3d 369 Missouri 2010, (available February www.ncsl.org/ 2010). (last documentslcjljlwopchart.pdf) viewed 27, 2012). June choice, juvenile sentence for a homicide when parole given indicates that constitutionally continues to impose offender sentencers Pierce, 570, 223 Ariz. State permissible: relatively rarely. contrary children And 1146, (Ariz.Ct.App.2010) P.3d argument, to The Justice’s Chief see (stating [Supreme] in Roper, 2462, “[t]he 2, post, at n. we have held that expressly a natural intimated that juries judges when do not often juvenile life for a who committed sentence sentence, impose a choose to it at least cruel unconstitutionally murder should not be mandatory. See Woodson unusual”); Allen, 550, State v. Conn. Carolina, v. North 428 U.S. 295- (2008) (“The 958 A.2d courts (1976) S.Ct. L.Ed.2d 944 consensus, however, the are in United opinion) (plurality (relying on the infre- Supreme clearly signaled States Court juries with which quency imposed the parole] life without [a [for sentence penalty given death when discretion juvenile violate the offender] does not mandatory hold that its imposition vio- [A]mendment.”); [E]ighth v. Wallace Amendment). Eighth lates the (con- State, (Del.2008) 956 A.2d 641 Miller, at 2472 holding n. 10. Our cluding that Supreme “the United States parole that the life without sentence is not Court, in Roper, recog- would not have unconstitutional is not altered Miller. a sentence parole nized of life without as acceptable alternative as a to death nowWe turn to the state con commit in- punishment who analysis. stitutional The Indiana Constitu Degree, Murder in the if tentional First provide protections tion can more than the the Eighth such sentence would violate provides. United States Constitution Jus Amendment.”). And we further under- State, (Ind.Ct. tice analysis our of the Supreme score Court’s Our App.1990). Constitution in provides decision in Miller v. recent Alabama pertinent part “Cruel and punish unusual it deals solely note with the of man- issue penalties ments shall not inflicted. All datory sentencing schemes life- requiring shall be proportioned the nature of the fact, without-parole for juveniles. In Const, 1, § offense.” Ind. art. “The specifically noted penal code be founded princi shall on the was one of where Indiana fifteen states life reformation, ples of and not of vindictive parole they was As discretionary. without Const, justice.” § Ind. art. 18. Al wrote, though language is not the same as the data, According only to available about Constitution, protections United States juvenile of all life-without-parole 15% are the same. jurisdic- sentences come from those “The

tions, prohibition constitutional while 85% come from the man- against cruel and unusual punishments datory Arg. ones. See Tr. Of Oral proscribes atrocious or obsolete 10-9646, 19; punish Rights p. No. Human Watch, ments and is aimed at the kind and of State form Distribution of Youth Of- the punishment, rather than the Serving duration fenders Juvenile Life Without (JLWOP), 2, 2009, or Dunlop online amount.” Parole Oct. (Ind.2000).

http://www. punishment hrw. The will org/news/2009/10/02/ be deemed cruel and unusual Article state-distribution-juvenile-offenders- under (as 1, “if Section 16 it makes no serving-juvenile-life-withut-parole measurable 21, 2012, June in acceptable goals punish visited and available contribution to file). ment, figure only Clerk Court’s case That but rather constitutes purpose- nothing if body, acted as imposition pain and needless less (internal quo- steps He took ordinary. citations and of the out suffering.” omitted). “[Ljife imprisonment up the crime and hid his brother’s tations cover n without cruel does not constitute parole factor body park. aggravating in a The punishment.” Id. unusual clearly established and uncontrovert- in judge his discretion ed. was within he is correctly points out that in factors weighing mitigating a life- juvenile fourth sentenced only the Ultimately, manner in which he did. we sentence, Daniel following without-parole Judge in find no abuse discretion Hum- killing in a six- 1997 for Boyd,6 sentenced Newton,7 man; analysis Larry sen- of those factors ulti- ty-five-year-old phrey’s Also, a Ball State parole. the 1994 murder of tenced for mate sentence Dickins,8 student; Greg sentenced trial court did not abuse its discretion Life shooting a officer. police after testimony of Dr. admitting Daum. only is reserved for use without Finally, imposition pa- of life that so shock heinous of crimes the most the age to a convicted under role murderer community. If retri- conscience as our line eighteen in is in with the Indiana stated, Conley has goal, bution was the as holding nation such a rest of the in sen- fre- far more parole life without would be is We affirm tence constitutional. Con- life hold that quently used Indiana. We ley’s parole. sentence of without life is not unconstitutional parole constitution sentence under Indiana DICKSON, MASSA, J., C.J., and circumstances. under these concur. Conclusion RUCKER, J., separate dissents facts of crime are diffi- The heinous SULLIVAN, J., opinion which concurs. comprehend. A cult to seventeen-and-a- J., RUCKER, dissenting. ten-year-old

half-year-old caring for his age Conley At the of seventeen Andrew child murdered the brother defenseless disposing ten-year-old of murdered his brother. I with his bare hands. After walking Boyd being returning three a male a cites one of found from female as serving male a friend home. Newton shot the in the such sentence. State, authority, head. returns no back of the Turner v. N.E.2d cites no and a search 491, State, (Ind.1997); Boyd. Perhaps Newton v. appellate citation to a 493-494 Daniel (Ind.2008). Newton's Boyd accepted plea agreement a in lieu of date of 1976, 9, dismissing A prosecution penalty. birth is and crime the death November 1994, 24, September making Department review the Indiana of Correc- occurred age Boyd Date was born Oc- Newton seventeen and ten months of at tion Offender shows 1977, 17, See and for murder the time crime occurred. Indiana tober was sentenced 27, Department 1997. See of Correction Offender Data on June (available www.in.govlappslindcorrection/ Department Offender at Indiana of Correction 27, 2012). (last (available wuw.rn.gov/appsl ofs), visited June Data at 27, 2012). (last indcorrection.ofs). visited June eighteen Boyd likely 1997, near the sixteen-year-old 8.In a Dickens was rid- the murder was when committed. ing bike when the officer with a friend riding potentially observed Dickens stolen 24, 1994, Larry approached and The them September 7. On Newton bike. officer in his car, drinking graveyard patrol they home. near and fled to a The friends were in a porch, campus. he followed onto the Ball State's Newton decided officer Dickens head, killing go campus in the wanted to rob someone and Dickens shot officer 1, stated, killing 3-4 hyped "I’m I feel like him. Dickens there, (Ind.2001). somebody.” and friends Once Newton majority agree with the that Dr. Daum’s “the evolving tions to standards of decency testimony I do properly admitted and the progress maturing mark of a soci- — believe trial court manifestly Florida, ety.” U.S.-, Graham in weighing aggrava- abused its discretion 2011, 2021, 130 S.Ct. 176 L.Ed.2d 825 ting mitigating in this circumstances (2010) Gamble, (quoting Estelle v. 429 U.S. However, agree Conley I do not case. 97, 102, 285, 97 S.Ct. 50 L.Ed.2d 251 pris- should have been sentenced to die in (1976)).9 respectfully on. Therefore I dissent. examining punishment When for cate States prohibits United Constitution gorical compliance with the Eighth punishment.” “cruel and unusual U.S. Amendment, the Supreme Court exercises Const, punishment Such amend. VIII. independent its “own judgment whether violating an excessive sanction “basic punishment in question violates the ‘precept justice punishment Constitution,” Graham, at S.Ct. graduated should propor- crime “ ‘objective and considers indicia of soci to both the offender tioned’ and the of- — standards, ety’s Alabama, expressed U.S.-, legislative fense.” Miller v. 132 S.Ct. 407 enactments and state practice’ L.Ed.2d to deter (2012) Simmons, Roper v. (quoting 543 mine whether there is a national consensus 551, 560, U.S. 161 L.Ed.2d against sentencing practice at issue.” (2005)). juvenile’s Whether sentence (quoting 563-64, 125 Roper, 543 U.S. life without parole constitutes “cruel and 1183). S.Ct. punishment” is an unusual issue of national Employing this analysis, the Supreme import and international as well as the Court held has death sentences for those subject scholarly of much literature. See age under of eighteen violate the Miller, 2455; generally, e.g., 132 S.Ct. Amendment, Eighth 543 Roper, U.S. at Vega Leighton, de la & Connie Michelle 568, 1183, 125 S.Ct. and has held life with- Sentencing Our Children to Die in Prison: out parole sentences for Practice, juveniles commit- Law and 42 Global U.S.F.L. Rev. (2008). ting crimes other than homicide to be simi- pun- 983 To determine whether a offensive, Amendment, Graham, Eighth larly ishment violates the 130 S.Ct. at beyond concep- courts must look historical 2030.10 And the Supreme very Court re- Constitution, 9. Like the U.S. goals punishment, Indiana Con able of but rather consti- prohibits only stitution purposeless also cruel and unusual tutes imposi- and needless Const, punishment. 1, pain suffering.” § See Ind. Dunlop art. 16 tion of and v. State. ("Cruel 592, (Ind.2000) (internal punishments and quo- unusual not be 597 shall inflicted.”). omitted). Further, penal ”[t]he Protections afforded under tations code necessarily principles Indiana’s are shall be founded on the tion, Constitution not of reforma- justice.” provided by coextensive and not of with those Feder vindictive Ind. Const, Constitution, 1, § al analysis many and our art. 18. of This Court has held that imprisonment life frequently parole per Constitutional issues is does not fol without not se See, lockstep punishment. low in cruel unusual analysis. Dunlop, with the federal and 724 e.g., prior 824 N.E.2d at 597. But N.E.2d 359 case we have Litchfield (Ind.2005) (applying analysis specifically different never considered for rea whether life im- search); prisonment parole may police sonableness of without a unconsti- Collins (Ind.1994) (id Day, applied entifyi juveniles. 644 tutional as ng independent analyses for Privi Indiana leges and and Equal Roper Immunities Federal Pro seventeen-year-old concerned a sen- clauses). tection "Punishment planning executing is cruel death tenced to for a unusual under horrifying Article Section if it burglary, crime that included kid- accept- makes no measurable contribution napping, Roper, and murder. 543 U.S. at by jurisdiction noting man- sentences sentencing parole schemes cently held that jurisdictions parole life without under in which for those parole life without dating Ac- entirely discretionary). of crimes— sentences are time their at the Investiga- Bureau of cording Federal crimes—violate including homicide 45,429 statistics, Amendment, juveniles committed tion juvenile because a Eighth “ 1980 and See C. ‘capaci- murders between greater culpability ‘lessened ” Kang, Easy Access to Puzzanchera & W. precedent and because ty change,’ for Re- Supplementary FBPs Homicide sentencing for de- requires “individualized (2010), penal- http://ojjdp.gov/ 1980-2009 ports: the most serious facing fendants (national data- Miller, (quoting ojstatbb/ezashr/ at homicide S.Ct. ties.” 2030).11 by age Graham, permitting selection results Based base incident). cases, As of year offender and advanced in these reasoning on the 2010, 2,465 February were any of life U.S. Conley argues that sentence serving parole life without for homicide of- juvenile all offenders parole without for State unconstitutional, for com- fenses. See Nat’l Conference of even those who numbers, Legislatures, supra. These mit homicide. providing comparison, an exact while even Supreme has found Court a to confirm that as matter of overall tend jurisdictions may stat- majority where im- opportunities for its proportion to sentence, “an utorily permit particular for parole life without sentences position, prac- sentencing of actual examination crimes is juveniles convicted of homicide may against “disclose[ ] tices” consensus than quite infrequent occurring in less — Graham, at 2023. its use.” S.Ct. juvenile prosecutions. Ac- 6% of homicide Miller, identified (ana- Graham, 130 at 2024-25 cord S.Ct. permitting fifteen states Indiana one of juvenile pa- lyzing statistics life discretionary sentences crimes role sentences for non-homicide juveniles. And as the Miller Court “in concluding that proportion noted, jurisdictions juvenile in life where imposition, life with- opportunities for its are discretion- parole without sentences juveniles for parole out sentences convict- Miller, are ary, such sentences unusual. rare as ed of nonhomicide crimes is (“[W]hen given n. 10. 132 S.Ct. at 2471 sentencing practices other found to choice, impose life without sentencers unusual”). cruel and relatively rarely.”). on Of parole children juveniles serving pa- holding punishments cases certain the 421 life without In states, juve- to categorically in these 348—83%— unconstitutional as role sentences Arizona, niles, the found confir- only Supreme in four Court has were confined states: California, matters judgment mation for its on these Mississippi, and Oklahoma. practice the in- Legisla- by reviewing accepted Nat’l in See State Conference tures, community. Roper, Without Parole ternational 543 U.S. Juvenile Life (JLWOP) (2010), years http://www.ncsl.org/ many at 1183. For S.Ct. (table of “has referred the laws of documents/cj/jlwopehart.pdf U.S. the Court and to au- listing juvenile life without other countries international jurisdictions 556-57, involved 11. The defendants in Miller were fourteen- S.Ct. Graham sixteen-year-old pa- without sentenced to life year-olds Both were convicted homicide. first-degree felony burglary role for armed parole without under two sentenced to life Graham, battery. 130 S.Ct. at assault or mandatory sentencing state statutes. different (1988)) interpreta- thorities for (plurality opinion) (emphasis as instructive its in Miller, of the Eighth prohibi- original). tion Amendment’s See also 132 S.Ct. at ” unusual punishments.’ case, tion of ‘cruel and In Conley’s 2472-73. he was ex- juvenile it Id. And as relates posed a life parole without by sentence parole sentences —even homicide virtue of Indiana Code section 31-30-1- only- United States is the “[t]he 4(a)(2) provides: juvenile crimes— which “The court country comply that the world does not jurisdiction does have not over an individu- with the norm with- against imposing life years al least 16 age] alleged [at for an possibility parole out on sentences of- (murder).” of ... violation IC 35-42-1-1 who at the fenders are under of 18 key Supreme But in the Court’s of the Amnesty time offense.” Brief for Eighth Amendment analysis juvenile International, Sup- et as Amici al. Curiae “judicial cases is its indepen exercise of Petitioners, Alabama, porting Miller v. judgment” “requires dent which consider Hobbs, 132 S.Ct. 2455 and Jackson v. No. culpability ation of the of the offenders at 10-9647, According at *2. WL light issue in of their crimes and character article cited istics, along with the severity of the pun Graham, “Most govern- question” ishment in together with a deter allowed, ments have either never expressly mination of whether the sentence at issue practice or prohibited, will without [life legitimate serves penological goals. Gra parole] sentencing child offenders be- ham, 130 S.Ct. at 2026. respect With cause it the principles violates of child juvenile offenders, inquiries these are un development protection established derpinned by the Supreme Court’s re through national standards and interna- peated recognition juveniles that are less rights Vega tional human law.” de la & culpable than adults and therefore are less Leighton, fact, supra, at 989. “[t]here deserving punishments. the most severe are now at least 135 countries have that See Id. expressly rejected the sentence via their commitments, legal domestic coun- The presumption are gen- that have so in erally tries done General culpable U.N. less than is adults based on “ Assembly.” Id. past ongoing extensive ‘develop- psychology ments in brain science Further, it notable exposure continue to [which] show fundamental dif- juveniles to life sentences is juvenile ferences between and adult frequently prev- of the result increased example, “‘parts minds’”—for in of the permitting mandating alence of statutes or ” brain in involved behavior control.’ Mil- juveniles of transfer into adult court. See ler, Graham, at (quoting 132 S.Ct. 2464 at 991-92. the Supreme id. As has Court 2026). 130 at Supreme S.Ct. As the recognized, “transfer laws show ‘that the observed, has there significant are “three 15-year-olds States consider old be gaps juveniles between and adults.” Id. at enough to be tried criminal court for First, (or adults, compared juve- “[a]s crimes too old to serious be dealt maturity niles a ‘lack court), have and an effectively juvenile us un- tell[] but ” derdeveloped sense nothing judgment responsibility.’ about the States these Graham, regarding pun- (quoting have made the 130 S.Ct. at 2026 appropriate Roper, 1183). 569, Second, 543 at youthful ishment such U.S. 125 S.Ct. for offenders’” Graham, “they at or susceptible 130 S.Ct. 2025 ‘are more vulnerable (quoting Oklahoma, 815, Thompson negative 487 826 to outside pres- U.S. influences and ” 24, 2687, sures, n. including peer 108 S.Ct. 101 L.Ed.2d 702 pressure,’ (quot- id. 884 1183), retribution, deterrence, 569, 125 goals how the at S.Ct.

ing 543 U.S. Roper, their have limited ‘control over “they incapacitation, and rehabilitation are not ability lack own environment’ by sentencing juveniles to served life with- horrific, crime- from themselves extricate id. that parole. (noting out See at 2465 Miller, at settings.” 132 S.Ct. producing retribution makes less sense the less cul- 569, 543 U.S. at 125 (quoting Roper, 2464 offender; against ju- pable deterrence 1183). is “a child’s character Finally, S.Ct. veniles limited effect as the attributes ... as an not formed’ adult’s as ‘well youth likely them to consid- “make less likely to ‘evidence [are] his actions less potential punishment”; incapacitation er (quoting depravity.’” of irretrievable juvenile only justified juve- is where 1183). 570, 125 S.Ct. Roper, 543 U.S. at “ ‘incorrigibility is is incorrigible, nile is mean ‘it characteristics “These salient youth’ ”; inconsistent with the sentence of psychologists to expert for difficult even “ life parole altogether ‘forswears juvenile offender between differentiate ” ideal’ (quoting rehabilitative Gra- yet tran reflects unfortunate whose crime ham, 2029-30)). 130 at As S.Ct. the Court immaturity, juvenile and the rare sient aptly put assessing parole it in life without irreparable crime reflects offender whose juvenile ” for non-homicide crimes: “[T]his Graham, 130 at 2026 S.Ct. corruption.’ hope; sentence ‘means denial of it means 573, at 125 S.Ct. (quoting Roper, 543 U.S. good that improve- behavior and character 1183). justices finding categori Even immaterial; are ment it means that what- in these Eighth cal Amendment violations might ever the hold in store future for juvenile precept. cases with this agree mind and spirit [juvenile] of the con- Graham, (Roberts, at 2039 See 130 S.Ct. vict, he will remain for prison the rest C.J., judgment) (“Rop concurring in the ” days.’ Graham, of his 130 S.Ct. 2027 at juveniles typically er’s conclusion that are 525, (quoting Naovarath 105 culpable pertinence less than adults has Nev. cases.”); 944, (1989)). beyond Roper, 543 U.S. at P.2d capital (O’Connor, J., S.Ct. dissent The holding Miller Court limited its (“It ing) beyond cavil that as a is unconstitutionality mandatory juvenile mature, re generally class are less less sentences, parole stating, life without fully sponsible, and less formed than holding that is sufficient to de- “[b]ecause adults, that on these differences bear cases, cide these we do not Jack- consider juveniles’ comparative culpability.”). moral argument son’s and Miller’s alternative backdrop, Using Eighth requires Amendment recognized that Court has “life without categorical parole bar penalty is the most severe ‘second ” juveniles, or at least for those 14 and Graham, law,’ permitted by 130 S.Ct. at Miller, younger.” S.Ct. 2027 (quoting Michigan, Harmelin v. holding thrust behind the Miller U.S. juvenile sentencing must indi- decisions (1991) J., (Kennedy, L.Ed.2d 836 concur- because, given vidualized the diminished ring part concurring judg- in in the offenders, culpability juvenile is a there ment)), “the distinctive attributes of a greater parole risk that sen- youth penological justifica- diminish the tence will Amendment. Eighth violate imposing tions for the harshest sentences sentencing A court therefore must consid- offenders, juvenile they even when Miller, youth er and its attendant characteris- commit terrible crimes.” 132 S.Ct. opinion highlighted at those counsel Miller tics—“and how differences against irrevocably sentencing play [children] status can a central role” in consid- prison.” in ering to a lifetime a proportionality. sentence’s Miller, 132 S.Ct. at 2465-66 (quoting Gra- Conley was not sentenced under a man- ham, 130 S.Ct. at 130 S.Ct. at 2039 datory scheme like those held unconstitu- (Roberts, C.J., concurring in the judg- tional in Miller. But the Miller decision ment)). preclude does not a conclusion that Con- ley’s sentence is unconstitutional. It is the Graham, In his concurrence in the Chief very things consideration of those a applied Justice a “narrow proportionality” mandatory prohibits scheme —such review to determine if a life without parole

juvenile defendant’s abuse his stepfa- sentence as to Graham in particular violat ther, alcohol, regular drugs his use of ed the Eighth Amendment. The Chief id., and his four suicide attempts, see at recognized Justice purpose of such a may 2459-60—that lead to a conclusion review is not to “second-guess” the deci sentence, that a particular applied when legislatures courts, sions of or trial as “the particular youth, Eighth violates the Eighth require Amendment does not strict Amendment. As the Court stated: proportionality between the crime and the Most fundamentally, Graham, Graham insists sentence.” S.Ct. youth (Roberts, C.J., matters in determining the concurring the judg ment) appropriateness of a lifetime of incarcer- (quoting Ewing California, possibility 11, 23, ation without the parole. U.S. 123 S.Ct. 155 L.Ed.2d there, (2003)). juvenile Rather, the circumstances sta- it only “forbids ex tus precluded parole a life without sen- treme sentences that are grossly dispro tence, though even an adult could re- portionate to the crime.” Id. (quoting Ew ceive it for a similar 1179). crime. And in ing, Still, 538 U.S. at well, other contexts as the characteris- the Chief Justice concluded that based on youth, way they tics of and the juvenile weaken defendant’s lack of prior crimi punishment, rationales for convictions,12 can render a nal the “difficult circum life-without-parole (which dispropor- sentence stances of upbringing” his included tionate. “An age,” offender’s we made parents’ drug his early addiction in his Graham, clear in “is years, relevant to the diagnosis with attention deficit Amendment,” Eighth disorder, and so “criminal hyperactivity and his use at a procedure alcohol, laws that fail to take young tobacco, defen- age of and marijua na) youthfulness (sixteen dants’ into account youth at all and his at the time of Justice, would be crime), flawed.” The Chief the sentence of life without concurring judgment, made sim- likely grossly disproportion ilar point. Although rejecting a categor- punishment ate for his crime of first-de ical on life-without-parole bar gree sentences felony burglary armed with assault or juveniles, acknowledged he “Roper’s battery. (Roberts, J., Id. at 2040 C. con conclusion that are typically curring judgment). Chief Justice adults,” culpable less than and accord- Roberts therefore concurred in the Court’s ingly wrote that “an juvenile offender’s judgment that Graham’s sentence was un- Although Graham, this was Graham’s first convic- firearm. 130 S.Ct. at 2019. Fur- tion, acknowledged committing ther, he had “two began drinking Graham alcohol and us- robberies, or three” other and was at the time ing age marijua- tobacco at 9 and he smoked guilty sepa- of this conviction also found aof na at 13. Id. at 2018. robbery possessing rate home invasion and a 886 C.J., (Roberts, by statute to “revise a sentence authorized at 2042

constitutional. if, trial after due consideration of the in concurring judgment). decision, court’s the Court finds that the recog- majority correctly here As the light in of the inappropriate sentence is Graham, nizes, Miller cer- are Roper,; nature offense and character of of the this And distinguishable from case. tainly Though long rec- the offender.” we have holding apply does not though Miller's ognized per- the maximum sentence that “[Gjiven here, all we its admonition does: mitted for the by law should reserved Graham, and in this deci- Roper, have said offenders, State, very v. 686 worst Bacher culpability diminished sion about children’s 791, (Ind.1997), purpose N.E.2d 802 capacity change, we heightened appellate review of sentences is “not to sentencing appropriate think occasions for in each perceived achieve a ‘correct’ result possible penalty this harshest case,” rather to “leaven the outliers.” but Miller, 132 will be uncommon.” S.Ct. State, Cardwell v. 895 N.E.2d added). I (emphasis Ultimately (Ind.2008).14 not lim- Appellate courts are unnecessary it this would find decide statutory mitigators aggra- ited to grounds and would case on Constitutional 7(B) claim, considering vators a when Rule instead exercise this Court’s review but to other in the may look evidence 7(B) authority Appellate revise under Rule State, Roney record. v. See Conley’s sentence a term of to reduce (Ind.Ct.App.2007), denied. trans. years. offense, As of the is to the nature there did agree I trial court not mani- question no this was brutal crime. Con- sentencing festly abuse its discretion brother, ley younger strangled asphyxi- his Nonetheless, case.13 a tri- “[although by covering plas- ated him with a head may al court have acted within its lawful car, in the bag, placed tic him trunk of his sentence, determining Arti- discretion girlfriend. then went to see his But this is VII, 6 of cle Sections 4 and the Indiana 7(B). inquiry not entire Rule under independent ap- constitution ‘authorize^ character, considering of a pellate Conley’s review and revision sentence When ” imposed by Anglemyer majority trial court.’ focuses on behavior (Ind.2007) State, during day. I the crime the next (quoting regard day N.E.2d would in this on the Childress note (Ind.2006)). authority anyone This after murder —before two but hap- Indiana of his friends implemented through Appellate best knew of what 7(B), appeal pened Conley Rule a court police which allows on drove himself to the — point According Department 13. The Court in Miller made a to the U.S. of Jus tice, requiring juvenile’s into quarter sentence "to take than one homicide less of state different, account how children are and how year in the in life convictions 2006 resulted against irrevocably those counsel Rosen differences sentences. See Seth sentencing prison." Mil- them to a al., merkel, lifetime Dep’t et U.S. of Justice Bureau of ler, added). (emphasis 132 S.Ct. at 2469 It is Statistics, Felony in State Justice Sentences yet language might apply clear how this Courts, (Table 2006—Statistical Tables at 7 appellate Eighth Amendment review of a 1.4) (2010), http://bjs.ojp.usdoj.gov/content/ Nevertheless, particular juvenile’s sentence. fact, pub/pdf/fssc06st.pdf. sen the median clear it seems to me that our “manifest abuse including tence in 2006 for homicide crimes— of discretion" for review of a trial standard twenty-two those adult offenders—was weighing aggravators court's and miti- (Table 1.3). years. at 6 See id. gators Eighth is no for an Amend- substitute proportionality analysis. ment have police “good relationship” he he killed and that Conley station where told his his brother. He waived Constitutional consistently made “sure Conner’s needs rights15 cooperated police. Con- met”); were Tr. (testimony at 845 of Con- by ley very clearly distraught what he ley’s maternal grandmother “He’s al- why cannot he did it. did and understand ways good been a boy,” my “He’s best 617-18, He even Tr. at 704. asked the grandchild”). According Conley’s moth- assessing him after his ar- psychologists er, he received As and Bs “without even death help get penalty rest to him for trying” but ability she he had the knew crime. 704. his Tr. at get all As if he applied Depo. himself. of Conley’s punctuated by was upbringing Bridget See Conley at 7. also Tr. at marriages his mother’s four and the conse- long-time 827 (testimony of teachers of quent living arrangements. in her changes Conley’s). He aspirations going had of Conley at Depo. Bridget See of 59-67.16 college, and his best friend’s mother had Conley’s psychologists interviews with af- campus taken him to make visits before he attempted ter the crime indicated had beginning his of year high senior school. suicide at least five Tr. at times. 790. 858-59; Tr. at Appellant’s App. at 535. neglect There by was evidence of his moth- Then, abruptly two about weeks before er, 834-35, Tr. at and that one of his killing brother, Conley his revealed his raped him stepfathers anally had at mother that he to kill wanted himself and so, seven or at 622.17 Even eight. Tr. had tried to electrocute himself in the fam- prior to crime committing Conley had ily Depo. Bridget Conley bathtub. of at juvenile adjudications no convictions or of 13. He showed his mother that he had all any by kind. He was accounts a model chest, arms, also cut himself all over his “great” relationship student and had a stomach legs. Depo. Bridget See with his mother See Tr. and brother. at (testimo- Conley at 12. Tr. at See also (testimony Conley’s high school ny of describing Conley’s Dr. Parker “cut- Bridget at principal); Depo. Conley ting (testimony multiple behavior” and “serious See also Tr. at 861 of Marsha at- suicide). noting tempts” Louden brothers seemed to He then that the told his minor, Conley’s 17.Conley's Conley rape 15. Because was a out about the counsel found (also mother) Conley because it had confided about to a mother the victim’s was re- friend before these events. The friend in- waiver, quired to consent to this which she counsel, formed who informed Dr. Conley did. Tr. at 1022. She has not seen Conner, consulting psychiatrist. When since of the she became aware murder. See why later asked he Dr. Connor hadn't Depo. Bridget Conley at 67. molestation, initially Conley disclosed the re- sponded nasty, ... felt like it was it ”[h]e crime, Conley’s Bridget 16. After the mother business, really was no it one's didn’t have relocated outside of Indiana and was unavail- anything to do with [these events].” Tr. at parties agreed able for trial. The to conduct fact, Conley when Dr. Connor asked deposition Conley Bridget lieu of her whether the could molestation be connected testimony. deposition trial of the A video brother, Conley Conley to what did played on the record the trial court at the replied They “I don’t it could be. see how are sentencing hearing, copy of the tran- very things.” two different Tr. at 623. Dr. script deposition of the was admitted as Ex- responses Connor found that these —and 576-81; Depo. Bridg- hibit 498A. See Tr. at initially fact that had not tried to use recording et at 5. the actual Because advantage the molestation to his Con- —made record, directly not transcribed into I ley’s descriptions of this and other events of Transcript Deposition refer to the in lieu of his childhood "more credible” rather than Sentencing Hearing Transcript. less so. Tr. See at 623-24. 888 he Tr. at Dr. Connor further testified wanted 615. of the blue—that

mother —out GED, school, join his that mental affected high get Conley’s illness his quit to Depo. Bridget of as com- “ability Guard. to control [his actions] the National Conley’s interpreted mother Conley at has no pared person to ... a who mental manipu- as behavior his self-destructive Conley’s Tr. diagnosis.” health at 616. to let get agree quit her to him lation to illness, youth, with his mental combined Depo. Bridget Conley at 16. of school. even less than the av- culpable made him stated she “didn’t But mother Graham, 130 S.Ct. erage juvenile. at Cf. quit during he to school that wanted mind” part 2027 on the “twice dimin- (relying day year, the next she took his senior culpability” juvenile of a who ished moral school, her giving from him to withdraw compared intend to kill to an did not Depo. him to do so. of written consent for finding pa- adult murderer 14, 19; Appellant’s Conley App. at Bridget juve- role for categorically unconstitutional also Conley’s mother started at 529. crimes). niles of convicted non-homicide a for him. searching therapist for Con- recognized that even This Court any had mother stated that she ley’s though of a evidence difficult childhood be a to knowledge danger he would may weight, always mitigating warrant others, him have “had she would commit- true “[i]t is of course that ‘evidence about right away.” Depo. Bridget Conley of ted background defendant’s character Conley But later expressed at 51. when belief, long school, is relevant because held returning interest in to his mother school, society, that who if defendants com- him that he went back to told mit criminal acts that counselor would commit him to the are attributable a school (testimony psychiatric disadvantaged background, ward. Tr. at 857 or to emotional Louden). problems, may culpable Marsha and mental be less than who have no such ex- defendants sentencing trial in its As the court noted ” State, 706, cuse.’ Ritchie v. 875 N.E.2d order, “All medical [diagnosing experts] (Ind.2007) 725 v. (quoting Penry Lynaugh, that the a agree Defendant suffered from 302, 319, 492 U.S. 106 mental disease at the time of murder.” (1989)).18 previ- we have L.Ed.2d 256 And diagnoses Tr. at var- specific 1026. Their ously a mental ill- considered defendant’s ied, significant but included similarities. deciding ness in reduce sentence. (Dr. See, Tr. at e.g., diagno- Connor’s See, State, v. e.g., Reid disorder bipolar sis schizoaffective (Ind.2007) (citing twenty-two-year-old (Dr. type); diagno- Tr. 780-81 Parker’s “history prob- of mental health defendant’s features, depression psychotic sis of with reducing year lems” his fifty sentence disorder); bipolar possible with Tr. at 524 (Dr. conspiracy commit murder diagnosis major depressive Olive’s advisory thirty years); sentence Walton symptoms person- with of mixed disorder (Ind.1995) State, disorder). ality opined And Dr. Connor (reducing by high half sentence of had from mental ill- suffered junior diverging school with mental illness pre-adolescent years. Spe- since his ness diagnoses for brutal murders cifically, he found that an “on- had adoptive parents). ... Carter going untreated mental health Cf. (Ind.1999) (reducing from he had condition” which suffered N.E.2d age eleven or of a be- approximately juvenile since twelve. murder sentence above, 7(B) mitigators. analysis statutory And as noted the Rule not limited havioral disorder and some childhood GROUP, M M& fifty years INVESTMENT sixty

abuse from under the LLC, 7(B)). Appellant-Petitioner, precursor Rule Finally, only Conley was seventeen at crime, find, the time of and I as has FARMS, AHLEMEYER and1 INC. Court, that his is rele- Bank, Appellee- Monroe

vant to the assessment of his character. Respondent. question juveniles There is no that have developmental issues reduce their cul- No. 03A04-1112-CC-639. case, pability for crimes. In this it seems Court of Appeals Indiana. clear that still a teenager “was developing impulse a brain and control July by issues his mental made worse illness.” Amended Br. of at 28. Appellant disagree majority’s

I with the character-

ization of “hardened character.”

Op. many at 877. juveniles may While

commit crimes that “reflect[ ] unfortunate

yet immaturity,” only transient “the rare

juvenile” capable a committing crime irreparable corruption.” “reflects See

Roper, 543 U.S. at I S.Ct. 1183.

cannot conclude at this time that Andrew juveniles.19 is one of those rare

For this reason I would revise his sentence

to the maximum of sixty-five years. term

SULLIVAN, J., concurs. notes, majority riding potentially bicycle. 19. As the we know the him details a stolen at of the crimes committed two of the 880 n. 8. three other Indiana sentenced to life with- parole. unsuspecting out One stalked Farms, col- Ahlemeyer seeking is not Inc. relief lege student and in the shot him head because appeal on has not filed brief as either hyped killing "I'm like somebody.” and I feel appellant appellee. or Pursuant to Indiana however, op. police 17(A), See other Appellate party 880 n. 7. The shot a Rule party appeal. officer in the head after the officer observed record in the trial court is

Case Details

Case Name: Andrew Conley v. State of Indiana

Court Name: Indiana Supreme Court

Date Published: Jul 31, 2012

Citation: 972 N.E.2d 864

Docket Number: 58S00-1011-CR-634

Court Abbreviation: Ind.