Donnell Wilson v. State of Indiana

FILED
Jun 27 2019, 6:05 am

CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Stephen T. Owens Curtis T. Hill, Jr.
Public Defender of Indiana Attorney General of Indiana
Katherine Province Monika Prekopa Talbot
Anne C. Kaiser Deputy Attorney General
Deputy Public Defenders Indianapolis, Indiana
Indianapolis, Indiana

IN THE
COURT OF APPEALS OF INDIANA

Donnell Wilson, June 27, 2019
Appellant-Petitioner, Court of Appeals Case No.
18A-PC-3041
v. Appeal from the Lake Superior
Court
State of Indiana, The Honorable Salvador Vasquez,
Appellee-Respondent Judge
The Honorable Kathleen A.
Sullivan, Magistrate
Trial Court Cause No.
45G01-1608-PC-7

Baker, Judge.

Court of Appeals of Indiana | Opinion 18A-PC-3041 | June 27, 2019 Page 1 of 20
[1] Donnell Wilson grew up in an urban war zone and became a gang member at a

young age. He was sixteen years old at the time he committed murder and

other crimes. The trial court sentenced him to an aggregate sentence of 181

years, which is a de facto sentence of life without parole. Wilson’s trial counsel

presented no evidence at his sentencing hearing, and counsel’s sentencing

argument takes up only 2 pages of a transcript that spans over 700. The

sentencing hearing did not include evidence regarding Wilson’s youth and its

attendant characteristics or Wilson’s particular characteristics; as a result, it did

not comply with relevant caselaw.

[2] On post-conviction, Wilson argued that he received the ineffective assistance of

trial counsel. We agree. We therefore reverse and remand with instructions to

vacate Wilson’s sentences and to hold a new sentencing hearing that complies

with Miller v. Alabama, 567 U.S. 460 (2012).

Facts 1

Wilson’s Background

[3] Wilson, who was sixteen years old at the time he committed the crimes at issue

in this appeal, grew up in Gary. He was the sixth of twelve children and was

intelligent and a role model to his siblings and classmates. Glen Park, the

neighborhood in which Wilson grew up, was an “urban war zone.” PCR Ex. 8

1
We held oral argument in Indianapolis on June 10, 2019. We thank counsel for their outstanding written
and oral presentations.

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 p. 5. His mother did not allow her children to play outside and taught them to

fall to the floor or go to the basement if they heard gunshots. Wilson was under

threat of serious injury and death nearly every day. When he was seven or

eight years old, he saw another child get shot in the head. On another

occasion, he saw two friends get shot. His home was firebombed on one

occasion and shot at multiple times; he was present when the home was

firebombed. Wilson had been shot on at least two occasions.

[4] Growing up in such an area caused Wilson to develop a “war zone mentality”

characterized by “hypervigilance,” which is manifested as extreme sensitivity to

potential threats and a high probability of responding to perceived threats with

aggression. PCR Ex. 6 p. 7. As a result of his surroundings, Wilson developed

post-traumatic stress disorder (PTSD) at a young age.

[5] As is common for individuals living in urban war zones, Wilson became

affiliated with several gang groups, including the Get Fresh Boys and Tre 7.

Glen Park and its gangs were rivals with the gangs of another Gary

neighborhood.

The Crimes and Direct Appeal

[6] On March 17, 2013, Wilson was sixteen years old. The facts, as described by

this Court in Wilson’s direct appeal, are as follows:

In March 17, 2013, fifteen-year-old Pecolla Crawford was
walking home with her brother Jonte Crawford, their cousin
Jordan Hendrix, and Wilson, who was dating Pecolla at the
time. Hendrix was in town visiting and staying with Pecolla and

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 Jonte. While the group was walking, they encountered fifteen-
year-old Derrick Thompson, at which point Jonte and Wilson
began harassing and intimidating Thompson, flashing the guns
they were carrying, and asking Thompson what part of town he
was from. Wilson was carrying a silver .357 revolver and Jonte
had a black handgun. Jonte then told Thompson to give him his
phone and Wilson made a reference to Tre 7, a local gang, and
grabbed Thompson’s Dre Beats headphones off of his head. The
two then left Thompson and continued walking with Pecolla and
Jordan.

The group then encountered brothers Shaqwone Ham and
Charles Wood. Jordan, who was friends with the brothers,
exchanged greetings and continued walking with Pecolla.
Pecolla then heard Jonte and Wilson begin to argue with the
brothers. Wilson said, “Y’all looking for me? I’m in your hood.”
A couple seconds later, Wilson shot Wood in the head. As Ham
attempted to run, Jonte shot him several times. Both Ham and
Wood died as a result of their injuries. Shortly after the incident,
police received calls from Thompson and a nearby resident who
witnessed the shooting. Jonte and Wilson were subsequently
arrested and Thompson’s phone and headphones were recovered
from Jonte at the police station.

Ham and Wood were members of the Dolla Boys gang, which
was a subset of the larger Bottom Side gang. Wilson was part of
several interrelated gangs including the Get Fresh Boys, Tre 7,
and Glen Park Affiliated, all of which were at odds with the
Bottom Side gangs. Wilson had posted several gang related
comments on his Twitter account including, “up for da bottom,”
referring to people from Bottom Side, “Tre 7 got da mac,” “Yea
ima freshboy but im riding thru da bottom,” and “Claim da
bottom u get whacked.” On March 12, 2013, Wilson tweeted
“[If I] see a dolla he betta duck,” and on the day of the murders,
he tweeted, “GlenPark or get shot!!!”

Court of Appeals of Indiana | Opinion 18A-PC-3041 | June 27, 2019 Page 4 of 20
 Wilson v. State, 30 N.E.3d 1264, 1266 (Ind. Ct. App. 2015) (internal citations

and footnote omitted), trans. denied. The State charged Wilson with two counts

of murder, Class B felony armed robbery, and Class D felony conspiracy to

commit criminal gang activity, also seeking criminal gang activity sentence

enhancements for the murder and robbery charges.

[7] Wilson’s jury trial began on June 30, 2014. The State sought to introduce

Wilson’s tweets and Wilson objected; the trial court overruled the objection and

admitted the evidence. At the close of the trial, the jury found Wilson guilty as

charged, including the criminal gang activity sentence enhancement. The trial

court sentenced Wilson to consecutive terms of 60 years for one murder

conviction, 55 years for the second murder conviction, 6 years for armed

robbery, and 2 years for conspiracy to commit criminal gang activity, with an

additional 60 years added pursuant to the criminal gang activity sentence

enhancement, for an aggregate sentence of 183 years imprisonment.

[8] Wilson appealed, arguing that (1) the trial court erred by admitting the tweets

into evidence; (2) Wilson’s conviction for conspiracy to commit criminal gang

activity should be vacated because it violated the prohibition against double

jeopardy; and (3) the trial court erred by excluding Wilson from a portion of

trial because of an outburst. This Court found in favor of Wilson on the second

issue, vacating his conspiracy conviction based on double jeopardy principles

and remanding to the trial court for a sentence reduction. This Court ruled

against Wilson on the other two issues. The end result of the direct appeal was

Court of Appeals of Indiana | Opinion 18A-PC-3041 | June 27, 2019 Page 5 of 20
 an aggregate sentence of 181 years imprisonment. Our Supreme Court denied

Wilson’s petition to transfer.

Post-Conviction Relief

[9] On August 11, 2016, Wilson filed a pro se petition for post-conviction relief; it

was later amended by counsel on February 10, 2017, and again on August 18,

2017. Wilson argued that his sentence is unconstitutional pursuant to United

States Supreme Court precedent; that the criminal gang enhancement is

unconstitutional as applied to him; and that he was denied the effective

assistance of trial and appellate counsel.

[10] The post-conviction court held an evidentiary hearing on March 6-8, 2018.

Trial and appellate counsel each testified at the hearing. Trial counsel stated

that he met with Wilson five to eight times, spending forty-five to ninety

minutes with him each time. Wilson rejected a plea offer that would have

resulted in an aggregate sentence of 100 years imprisonment. Trial counsel

believed that trial would be an uphill battle based on eyewitness testimony and

Wilson’s tweets; counsel also knew that if convicted, Wilson would receive

consecutive sentences for each murder conviction because that trial judge

typically sentenced defendants in that manner. Counsel spoke with Wilson’s

family but no one told him that Wilson had any mental health issues; therefore,

counsel did not consider hiring a mental health expert. Wilson’s presentence

investigation report stated that Wilson did not have any mental health issues.

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[11] Appellate counsel testified that at the time of Wilson’s direct appeal, he was not

familiar with Miller v. Alabama, 567 U.S. 460 (2012), and that he did not

consider challenging the constitutionality of Wilson’s sentence. He considered

raising an abuse of discretion argument regarding the sentence but decided

against it because the trial court mentioned Wilson’s young age many times

during sentencing. Counsel admitted that he should have raised an argument

that the sentence was inappropriate pursuant to Indiana Appellate Rule 7(B).

[12] As part of the post-conviction proceedings, forensic psychologist Dr. Charles

Ewing conducted a psychological evaluation of Wilson in August 2017. In his

opinion, Wilson should have had a competency evaluation before going to trial

because of his prior mental health history2 and the fact that he had only

completed the eighth grade at the age of sixteen. Dr. Ewing diagnosed Wilson

with PTSD, concluding that he had been suffering from PTSD since he was a

young child. Dr. Ewing testified that Wilson’s life experiences left him not fully

capable of appreciating the consequences of his behavior and that Wilson was

immature for his age, impulsive, poorly educated, unsocialized, and mildly

paranoid. In Dr. Ewing’s opinion, Wilson’s chances of recidivism were high

until he reached the age of twenty-five, but after that age, Wilson was a good

candidate for rehabilitation.

2
Dr. Ewing later acknowledged that Wilson had only been seen by a mental health professional once and
that he had no formal diagnoses aside from “behavioral problems” until Dr. Ewing diagnosed him with
PTSD. PCR Tr. Vol. II p. 85.

Court of Appeals of Indiana | Opinion 18A-PC-3041 | June 27, 2019 Page 7 of 20
[13] Developmental psychologist Dr. James Garbarino testified that at the time of

the murders, Wilson was in a state of hypervigilance. Wilson told Dr.

Garbarino that the victims had not pulled their guns out but that he anticipated

that they would and took a preemptive action to protect himself. In Dr.

Garbarino’s opinion, gang membership should be a mitigating factor because

gangs draw their members into committing crimes. Dr. Garbarino believed that

Wilson’s prospects for rehabilitation were good.

[14] On November 21, 2018, the post-conviction court denied Wilson’s petition for

post-conviction relief. Wilson now appeals.

Discussion and Decision
[15] The general rules regarding the review of a ruling on a petition for post-

conviction relief are well established:

“The petitioner in a post-conviction proceeding bears the burden
of establishing grounds for relief by a preponderance of the
evidence.” Fisher v. State, 810 N.E.2d 674, 679 (Ind. 2004).
“When appealing from the denial of post-conviction relief, the
petitioner stands in the position of one appealing from a negative
judgment.” Id. To prevail on appeal from the denial of post-
conviction relief, a petitioner must show that the evidence as a
whole leads unerringly and unmistakably to a conclusion
opposite that reached by the post-conviction court. Weatherford v.
State, 619 N.E.2d 915, 917 (Ind. 1993). Further, the post-
conviction court in this case made findings of fact and
conclusions of law in accordance with Indiana Post-Conviction
Rule 1(6). Although we do not defer to the post-conviction
court’s legal conclusions, “[a] post-conviction court’s findings
and judgment will be reversed only upon a showing of clear

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 error—that which leaves us with a definite and firm conviction
that a mistake has been made.” Ben-Yisrayl v. State, 729 N.E.2d
102, 106 (Ind. 2000) (quotation omitted).

Hollowell v. State, 19 N.E.3d 263, 268-69 (Ind. 2014).

[16] While Wilson raises multiple arguments on appeal, we find one dispositive.

Specifically, he argues that the post-conviction court erred by determining that

he did not receive the ineffective assistance of trial counsel with respect to his

sentencing hearing.

[17] A claim of ineffective assistance of trial counsel requires a showing that:

(1) counsel’s performance was deficient by falling below an objective standard

of reasonableness based on prevailing professional norms; and (2) counsel’s

performance prejudiced the defendant such that “‘there is a reasonable

probability that, but for counsel’s unprofessional errors, the result of the

proceeding would have been different.’” Davidson v. State, 763 N.E.2d 441, 444

(Ind. 2002) (quoting Strickland v. Washington, 466 U.S. 668, 687 (1984)). “A

reasonable probability arises when there is a ‘probability sufficient to undermine

confidence in the outcome.’” Grinstead v. State, 845 N.E.2d 1027, 1031 (Ind.

2006) (quoting Strickland, 466 U.S. at 694). “Failure to satisfy either of the two

prongs will cause the claim to fail.” Gulzar v. State, 971 N.E.2d 1258, 1261 (Ind.

Ct. App. 2012).

Court of Appeals of Indiana | Opinion 18A-PC-3041 | June 27, 2019 Page 9 of 20
 Miller v. Alabama

[18] This issue will turn on the United States Supreme Court’s decision in Miller v.

Alabama. In Miller, two fourteen-year-old defendants were convicted of murder

and sentenced to life imprisonment without the possibility of parole; in neither

case did the sentencing authority have discretion to impose a different

punishment. 567 U.S. at 465. The Miller Court noted two relevant lines of

cases—one in which it held that the Eighth Amendment bars capital

punishment for children because of juveniles’ “lesser culpability,” and the other

in which it prohibited the mandatory imposition of capital punishment. Id. at

470.

[19] The Court explored the differences between juveniles and adults in depth:

Roper[3] and Graham[4] establish that children are constitutionally
different from adults for purposes of sentencing. Because
juveniles have diminished culpability and greater prospects for
reform, we explained, “they are less deserving of the most severe
punishments.” Graham, 560 U.S., at 68, 130 S.Ct., at 2026.
Those cases relied on three significant gaps between juveniles and
adults. First, children have a “‘lack of maturity and an
underdeveloped sense of responsibility,’” leading to recklessness,
impulsivity, and heedless risk-taking. Roper, 543 U.S., at 569,
125 S.Ct. 1183. Second, children “are more vulnerable . . . to
negative influences and outside pressures,” including from their
family and peers; they have limited “contro[l] over their own
environment” and lack the ability to extricate themselves from

3
Roper v. Simmons, 543 U.S. 551 (2005).
4
Graham v. Florida, 560 U.S. 48 (2010).

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 horrific, crime-producing settings. Ibid. And third, a child’s
character is not as “well formed” as an adult’s; his traits are “less
fixed” and his actions less likely to be “evidence of irretrievabl[e]
deprav[ity].” Id., at 570, 125 S.Ct. 1183.

Our decisions rested not only on common sense—on what “any
parent knows”—but on science and social science as well. Id., at
569, 125 S.Ct. 1183. In Roper, we cited studies showing that
“‘[o]nly a relatively small proportion of adolescents’” who
engage in illegal activity “‘develop entrenched patterns of
problem behavior.’” Id., at 570, 125 S.Ct. 1183. And in Graham,
we noted that “developments in psychology and brain science
continue to show fundamental differences between juvenile and
adult minds”—for example, in “parts of the brain involved in
behavior control.” 560 U.S., at 68, 130 S.Ct., at 2026. We
reasoned that those findings—of transient rashness, proclivity for
risk, and inability to assess consequences—both lessened a child’s
“moral culpability” and enhanced the prospect that, as the years
go by and neurological development occurs, his “‘deficiencies
will be reformed.’” Ibid. (quoting Roper, 543 U.S., at 570, 125
S.Ct. 1183).

. . . Because “‘[t]he heart of the retribution rationale’” relates to
an offender’s blameworthiness, “‘the case for retribution is not as
strong with a minor as with an adult.’” Graham, 560 U.S., at 71,
130 S.Ct., at 2028. Nor can deterrence do the work in this
context, because “‘the same characteristics that render juveniles
less culpable than adults’”—their immaturity, recklessness, and
impetuosity—make them less likely to consider potential
punishment. Graham, 560 U.S., at 72, 130 S.Ct., at 2028.
Similarly, incapacitation could not support the life-without-
parole sentence in Graham : Deciding that a “juvenile offender
forever will be a danger to society” would require “mak[ing] a
judgment that [he] is incorrigible”—but “‘incorrigibility is
inconsistent with youth.’” 560 U.S., at 72–73, 130 S.Ct., at 2029.
And for the same reason, rehabilitation could not justify that

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 sentence. Life without parole “forswears altogether the
rehabilitative ideal.” Graham, 560 U.S., at 74, 130 S.Ct., at 2030.
It reflects “an irrevocable judgment about [an offender’s] value
and place in society,” at odds with a child’s capacity for
change. Ibid.

Id. at 471-73 (internal footnote and some internal citations omitted). In other

words, “Roper and Graham emphasized that the distinctive attributes of youth

diminish the penological justifications for imposing the harshest sentences on

juvenile offenders, even when they commit terrible crimes,” and this reasoning

implicates any life without parole sentence imposed on a juvenile. Id. at 472.

[20] The Miller Court ruled that an offender’s youth and its attendant characteristics

must be taken into consideration. And in the cases before it, “the mandatory

penalty schemes . . . prevent the sentencer from taking account of these central

considerations. By removing youth from the balance . . . these laws prohibit a

sentencing authority from assessing whether the law’s harshest term of

imprisonment proportionately punishes a juvenile offender.” Id. at 474. The

Court also emphasizes that life without parole sentences imposed on juveniles

are akin to the death penalty itself. Indeed, juvenile offenders who face life in

prison will generally serve a greater sentence than adults convicted of the same

offense(s).

[21] The Court limited its holding to a rule that “the Eighth Amendment forbids a

sentencing scheme that mandates life in prison without possibility of parole for

juvenile offenders.” Id. at 479. It declined to consider the alternative argument

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 that the Eighth Amendment requires a categorical bar on life without parole for

juveniles, but explicitly noted that

we think appropriate occasions for sentencing juveniles to this
harshest possible penalty will be uncommon. That is especially
so because of the great difficulty we noted in Roper and Graham
of distinguishing at this early age between “the juvenile offender
whose crime reflects unfortunate yet transient immaturity, and
the rare juvenile offender whose crime reflects irreparable
corruption.” Roper, 543 U.S., at 573, 125 S.Ct. 1183; Graham,
560 U.S., at 68, 130 S.Ct., at 2026-2027. Although we do not
foreclose a sentencer’s ability to make that judgment in homicide
cases, we require it to take into account how children are
different, and how those differences counsel against irrevocably
sentencing them to a lifetime in prison.

Id. at 479-80 (internal footnote omitted).

Miller and De Facto Life Sentences

[22] While Miller was limited to de jure life sentences, the United States Supreme

Court has remanded at least one juvenile de facto life case with instructions for

the lower court to reconsider “in light of Miller v. Alabama.” Bear Cloud v.

Wyoming, 568 U.S. 802 (2012). Moreover, a majority of state supreme courts

agree that the holding of Miller and its predecessors should be extended to

juvenile de facto life sentences. See Ira v. Janecka, 419 P.3d 161 (N.M. 2018)

(applying Miller to aggregate 108-year sentence); State v. Ramos, 387 P.3d 650,

660 (Wash. 2017) (applying Miller to aggregate 85-year sentence, concluding

that it “clearly” applies to “any juvenile homicide offender who might be

sentenced to die in prison without a meaningful opportunity to gain early

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 release based on demonstrated rehabilitation”); Johnson v. State, 215 So.3d 1237

(Fla. 2017) (applying Graham to 100-year sentence); State ex. rel Carr v. Wallace,

527 S.W.3d 55 (Mo. 2017) (applying Miller to sentence that would require

juvenile to serve 50 years before being eligible for parole); Steilman v. Michael,

407 P.3d 313, 319 (Mont. 2017) (applying Miller to 110-year sentence), cert.

denied; State v. Zuber, 152 A.3d 197, 211 (N.J. 2017) (applying Miller and Graham

to 110-year and 75-year sentences), cert. denied; Morgan v. State, 217 So.3d 266

(La. 2016) (applying Graham to 99-year sentence); State v. Moore, 76 N.E.3d

1127 (Oh. 2016) (applying Graham to 112-year aggregate sentence), cert. denied;

People v. Reyes, 63 N.E.3d 884 (Ill. 2016) (applying Miller to an aggregate 97-year

sentence); Casiano v. Comm’r of Correction, 115 A.3d 1031 (Conn. 2015) (applying

Miller to aggregate 50-year sentence), cert. denied; State v. Boston, 363 P.3d 453,

457 (Nev. 2015) (applying Graham to sentence that would require juvenile to

serve 100 years before being eligible for parole); Bear Cloud v. State, 294 P.3d 36,

45 (Wyo. 2013) (finding, after remand from U.S. Supreme Court, that Miller

applies to juvenile sentence of “life according to law,” meaning that other state

statutes made him ineligible for parole); People v. Caballero, 282 P.3d 291 (Cal.

2012) (applying Graham to sentence of 110 years to life), cert. denied.

[23] Additionally, at least three federal courts of appeal have recognized that a

sentence expressed as a term of years was a de facto life without parole sentence

to which Miller and its predecessors apply. McKinley v. Butler, 809 F.3d 908, 911

(7th Cir. 2016) (applying Miller to aggregate 100-year sentence); Moore v. Biter,

725 F.3d 1184, 1190 (9th Cir. 2013) (applying Graham to aggregate 254-year

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 sentence); Budder v. Addison, 851 F.3d 1047 (10th Cir. 2017) (applying Graham

to sentence under which juvenile would not be eligible for parole until he had

served 131 years in prison), cert. denied.

[24] While our Supreme Court has not squarely considered whether a juvenile who

receives a de facto life sentence is entitled to a Miller hearing, it has examined

Miller in another context. In Brown v. State, our Supreme Court considered the

appropriateness of a 150-year sentence for a juvenile under Indiana Appellate

Rule 7(B). 10 N.E.3d 1 (Ind. 2014). Citing Miller, the Brown Court found that a

150-year sentence for a juvenile is analogous to life without parole, that it

“‘forswears altogether the rehabilitative ideal,’” and that it was a “‘denial of

hope; it means that good behavior and character improvement are immaterial;

it means that whatever the future might hold in store for the mind and spirit of

the [juvenile] convict, he will remain in prison for the rest of his days.’” Id. at 8

(quoting, respectively, Miller, 567 U.S. at 473, and Graham, 560 U.S. at 70).

Our Supreme Court revised Brown’s sentence to eighty years and did not

address the Eighth Amendment.

[25] It is apparent that an abundance of authority across all quarters of our judicial

spectrum agrees that Miller should be extended to cases in which a juvenile

receives a de facto life sentence, whether because of one single lengthy sentence

or because of an aggregation of multiple sentences. And in Brown, our Supreme

Court signaled its agreement that Miller does, indeed, apply to such cases.

While the State insists that the only thing that matters is the label applied to

such cases, arguing that there is a distinction between a life sentence and a 181-

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 year sentence, it is apparent to us that this is a distinction without a difference.

We decline to elevate form over substance in this fashion, especially

considering the wealth of authority cautioning that the judicial system must

treat juveniles with extra care.

[26] We find that Miller applies to sentences for juveniles that amount to a life

sentence, regardless of the label applied by the trial court or the State. In other

words, if the effect of a sentence is that the juvenile will remain in prison for the

rest of his days, with no meaningful opportunity to gain early release based on

demonstrated rehabilitation, then that defendant has the right to a Miller

sentencing hearing.

Miller Requirements

[27] That conclusion, of course, begs the question of what, precisely, is required by

Miller. The United States Supreme Court explained that its holding required

“that a sentence follow a certain process—considering an offender’s youth and

attendant characteristics—before imposing a particular penalty.” Miller, 567

U.S. at 483. More specifically, “we require [the trial court] to take into account

how children are different, and how those differences counsel against

irrevocably sentencing them to a lifetime in prison.” Id. at 480. Our Supreme

Court agrees, holding that in cases requiring a Miller hearing, “both at initial

sentencing and on appellate review it is necessary to consider an offender’s

youth and its attendant characteristics.” Brown, 10 N.E.3d at 6-7.

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[28] It is not enough, therefore, to simply acknowledge the defendant’s youth. A

Miller hearing requires more. While we do not intend to create specific

requirements or an exhaustive list, we note that a Miller hearing will likely

include expert testimony, which would ideally cover both the attendant

characteristics of youth in general and the particular youth and characteristics of

the defendant being sentenced.

Did Wilson’s Sentencing Hearing Comply with Miller?

[29] Next, we turn to the sentencing hearing in this case to determine first, whether

it complied with Miller, and second, if it did not, whether Wilson’s trial counsel

was ineffective as a result.

[30] Wilson’s sentencing hearing comprises only 34 pages of a 767-page transcript.

Wilson’s attorney presented no evidence on his behalf. The State offered a

victim impact statement and one witness, a detective who testified about

Wilson’s affiliation with gangs and behavior while incarcerated. The

sentencing argument made by Wilson’s trial counsel takes up only 2 pages of a

transcript with over 700, and while counsel mentions Wilson’s youth, there was

absolutely no argument or evidence regarding the significance of youth and its

attendant characteristics, much less Wilson’s particular characteristics. We

have little difficulty concluding that this hearing did not meet the requirements

of Miller.

[31] In contrast, at Wilson’s post-conviction hearing, his attorney presented multiple

witnesses, two of whom testified at length about youth and its attendant

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 characteristics in general and as related to Wilson, two of whom testified about

Wilson’s tumultuous and traumatic childhood, and three of whom testified

about Wilson’s childhood environment and his behavior and character at

school. Had the sentencing hearing been more similar to the post-conviction

hearing, it cannot be denied that Miller would have been satisfied.

[32] At the post-conviction hearing, Wilson’s trial attorney testified that he was

largely unfamiliar with Miller at the time of Wilson’s sentencing hearing:

I wasn’t familiar at the time of this case of [the] movement
keeping kids from getting sentenced to life without parole. That
wasn’t even on my radar. Essentially, if he did get convicted in
this case, which he did, he would probably get sentenced to life in
prison. But it’s not like they were trying to give him life without
parole. [Miller] was not on my radar at all.

PCR Tr. Vol. II p. 15. Counsel also admitted that he did nothing different to

prepare for a sentencing hearing for a juvenile client than he would have for an

adult client:

I thought that no matter what I did, nothing was going to
essentially change the fact that he was going to die in jail. Judge
Vasquez typically gives out separate sentences for each victim.
He’ll reject the plea if the sentences are concurrent, and I’m well
aware of it. I knew he was going to get—he was going to get the
murder and the double gang enhancement. And then he was
going to get a sentence for the murder, and then a separate
sentence for the robbery. My thought going in there is, we’re
going to do our best, but likely the outcome within a range of 20
to 40 years, is all going to be something between—I ballparked it,
I think, like 150 and 200 years, and he was 17. Seventy-five

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 years, he’ll get out when he’s 91, minimally. That’s where my
head was at.

Id. at 17.

[33] Counsel acknowledged that at times, even when he suspected a judge would

give a harsh sentence, he would present more evidence at sentencing to create a

good record for appeal. But in this case, he did not do so. He also did not

consider hiring any experts who specialized in child or developmental

psychology, mental health experts, or life history investigators. Moreover,

while he had not previously represented a juvenile facing a life sentence, he did

not reach out to the Indiana Public Defender Council or any other attorneys for

resources on or help with representing a juvenile in such circumstances. And

although he talked with Wilson’s family, he did not call any family members as

witnesses and he did not talk with any of Wilson’s teachers. Counsel admitted

that “[i]t never came across my mind at all” that Wilson should have been

evaluated for PTSD even though counsel believed that “a lot of people in gangs

have PTSD” and he was aware of Wilson’s violence-ridden childhood. Id. at

26.

[34] We can only conclude that trial counsel’s failure to present any evidence related

to youth and its attendant characteristics or to Wilson’s own youth,

environment, mental health, good character, or prospects of rehabilitation

resulted in a hearing that was deficient and non-compliant with Miller. In other

words, counsel’s performance was deficient.

Court of Appeals of Indiana | Opinion 18A-PC-3041 | June 27, 2019 Page 19 of 20
[35] We can likewise only conclude that the absence of the above-described evidence

prejudiced Wilson. The sentencing court cited Wilson’s age as the sole

mitigating factor, though giving it minimal weight, and found two aggravating

factors—Wilson’s history of juvenile adjudications and the fact that he had

committed multiple offenses involving separate and distinct victims. As noted

above, there was a wealth of mitigation evidence available and presented on

post-conviction, and we believe that this evidence would have weighed heavily

on the mitigating side of the scale. We also note that mitigation evidence is

“particularly relevant” for juveniles. Eddings v. Oklahoma, 455 U.S. 104, 115

(1982). We find that there is a reasonable probability that, but for counsel’s

deficient performance, Wilson would have received a lesser sentence.

[36] In sum, we find that the post-conviction court erred by finding that Wilson did

not receive the ineffective assistance of counsel. Because we resolve the case in

this fashion, we need not and will not address Wilson’s remaining arguments,

including the constitutionality of the criminal gang activity sentence

enhancement as applied to him. Should he choose to appeal the sentence

imposed after his new sentencing hearing, he is free to raise that argument

again.

[37] The judgment of the post-conviction court is reversed and remanded with

instructions to vacate Wilson’s sentences and to hold a new sentencing hearing

that complies with Miller.

Najam, J., and Robb, J., concur.

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