Attorneys for Appellant Attorneys for Appellee
Susan K. Carpenter Steve Carter
Public Defender of Indiana Attorney General of
Indiana
Thomas C. Hinesley Arthur Thaddeus Perry
Deputy Public Defender Deputy Attorney General
Emily Mills Hawk Stephen R. Creason
Special Assistant to the State Deputy Attorney
General
Public Defender
Indianapolis, Indiana Thomas D. Perkins
Deputy Attorney General
Indianapolis, Indiana
__________________________________________________________________
In the
Indiana Supreme Court
_________________________________
No. 48S00-9712-PD-647
Benny Saylor,
Appellant (Petitioner below),
v.
State of Indiana,
Appellee (Respondent below).
_________________________________
Appeal from the Madison Superior Court, No. 48D03-9206-CF-185
The Honorable Fredrick R. Spencer, Special Judge
_________________________________
On Petition for Rehearing
_________________________________
May 21, 2004
Boehm, Justice.
In 1992, Benny Saylor was sentenced to death despite a unanimous jury
recommendation to the contrary. In 2002, Indiana law was changed in an
important respect by requiring a unanimous jury recommendation of death
before the death penalty can be imposed. Appellate courts are to review
and revise sentences that are inappropriate. We conclude that it is not
appropriate to execute a person who was convicted and sentenced through a
procedure that has now been substantially revised so the same trial today
would no longer render the defendant eligible for the death penalty. At
the time of Saylor’s crime, life without parole could not be imposed under
Indiana law. Accordingly, we revise Saylor’s sentence to a term of one
hundred years.
Factual and Procedural Background
The factual background surrounding Benny Saylor’s conviction is set
forth in other opinions of this Court. Saylor v. State, 765 N.E.2d 535
(Ind. 2002); Saylor v. State, 686 N.E.2d 80 (Ind. 1997). On June 18, 1992,
Judy VanDuyn’s body was found in her van parked in a cornfield after a
night of heavy rainfall. Witnesses had observed Saylor’s car in the
parking lot of the laundromat where VanDuyn had gone to do her laundry.
When the police arrived to question Saylor, they found blood on his arms
and forehead, shoes matching the prints found at the crime scene, wet
clothes, and a wet billfold. At a lineup, a farmer identified Saylor as
the man he had seen in the van with VanDuyn. A jury convicted Saylor of
murder, robbery and confinement.
The circumstances of Saylor’s sentencing and changes in Indiana’s
death penalty statute raise the issue before us today. Although Indiana
law now provides for the possibility of a sentence of life without parole,
Saylor’s crime was committed at a time when the only sentencing
alternatives in a death penalty case were death or a term of years.
Despite a unanimous recommendation against the death penalty, the trial
judge nevertheless imposed death. Saylor is one of only three people in
this state currently under a sentence of death despite a jury
recommendation against it.[1] None of those have been executed.
At the time of Saylor’s trial and direct appeal Indiana law clearly
authorized the judge to “override” a jury recommendation if the judge found
the statutory aggravating circumstances to outweigh any mitigating
circumstances. Minnick v. State, 544 N.E.2d 471, 482 (Ind. 1989).
Consistent with that authority, in 1997 this Court affirmed Saylor’s
sentence. Saylor, 686 N.E.2d at 89. In 2000, the United States Supreme
Court decided Apprendi v. New Jersey, 530 U.S. 466 (2000), which held that
a jury must determine beyond a reasonable doubt any fact necessary to
enhance a sentence. In the 2002 session of the Indiana General Assembly,
in response to Apprendi, and anticipating that that decision might apply to
the death penalty despite the contrary holding in Walton v. Arizona, 497
U.S. 639 (1990), legislation was introduced to cure the perceived “Apprendi
problem” in the Indiana death penalty statute. In the meantime Saylor had
been denied post-conviction relief, and on March 20, 2002, this Court
affirmed the denial of relief. Saylor, 765 N.E.2d at 535. Six days later,
on March 26, 2002, the General Assembly amended Indiana’s death penalty
statute to remove the express authority to impose death even if the jury
recommended against it. Act of March 26, 2002, 2002 Ind. Acts 117; Ind.
Code § 35-50-2-9(e) (2002). On June 24, 2002, the United States Supreme
Court decided Ring v. Arizona, 536 U.S. 584 (2002), which overruled Walton
and applied Apprendi to capital cases. The result is that under current
Indiana law a jury recommendation against death would preclude imposition
of the death penalty.
Saylor now seeks rehearing, citing the new statute as well as the
logic of Apprendi.[2] He makes four claims: 1) his death sentence is
unconstitutional in light of Apprendi and Ring, 2) the amendments to the
death penalty statute should apply to him, 3) he was denied a fair trial
because of undisclosed juror-witness relationships, and 4) his counsel
failed to properly investigate the State’s case. We resolve Saylor’s claim
on the basis of his first two issues, and deny rehearing on the remaining
issues.
Review of Saylor’s Sentence in Light of Changes in the Law
Saylor seeks rehearing of our decision affirming denial of post-
conviction relief. He points to the changes in both federal constitutional
jurisprudence and in our state’s death penalty statute. For the reasons
given below, we revise Saylor’s sentence to a term of one hundred years.
Both parties address the issue in part as whether Ring is to be
applied retroactively. In Daniels v. State, 561 N.E.2d 487, 489 (Ind.
1990), we adopted for Indiana state law the federal retroactivity analysis
outlined in Teague v. Lane, 489 U.S. 288 (1989). Teague deals with
retroactivity on collateral review, and begins with the premise that the
court should apply a “newly declared constitutional rule to criminal cases
pending on direct review.” Id. at 304 (citations omitted). On collateral
review the threshold question is whether the new rule is procedural or
substantive. If it is procedural, it “is generally not applicable to those
cases on collateral review, that is, those which have become final before
the new rule was announced.” Daniels, 561 N.E.2d at 489 (citing Teague,
489 U.S. at 288). Saylor’s conviction and sentence became final in 1997
when this Court affirmed his direct appeal. This general rule has two
exceptions: 1) rules which place “certain kinds of primary, private
individual conduct beyond the power of the criminal law-making authority to
proscribe,” and 2) those which require the observance of “procedures that .
. . are ‘implicit in the concept of ordered liberty,’” and “without which
the likelihood of an accurate conviction is seriously diminished.” Id. at
490 (citing Teague, 489 U.S. at 307, 313) (internal citations omitted).
The majority of courts to have considered the issue have held that
Ring is an application of the procedural rule announced in Apprendi, and as
such does not apply retroactively to cases on collateral review. Lambert
v. McBride, No. 03-1015, 2004 U.S. App. LEXIS 6658 (7th Cir. April 7,
2004); Turner v. Cosby, 339 F.3d 1247 (11th Cir. 2003); Cannon v. Mullin,
297 F.3d 989 (10th Cir. 2002); State v. Lotter, 664 N.W.2d 892 (Neb. 2003);
Colwell v. State, 59 P.3d 463 (Nev. 2002). Summerlin v. Stewart, 341 F.3d
1082 (9th Cir. 2003) (en banc), cert granted sub nom, Schriro v. Summerlin,
124 S.Ct. 833, is the only case we have found that applies Ring
retroactively. The United States Supreme Court granted certiorari in
Summerlin on December 1, 2003. At this writing we have no definitive
decision on the retroactive application of Ring under Teague. For the
reasons given below we do not need to await resolution of this federal
constitutional issue, and also do not address whether, even if there is no
federal requirement that Ring be applied retroactively, Indiana may
nevertheless choose to apply it to pre-Ring convictions as a matter of
state law.
Article VII, Section 4 of the Indiana Constitution provides that
“[t]he Supreme Court shall have, in all appeals of criminal cases, the
power to . . . review and revise the sentence imposed.” Appellate Rule
7(B) implements that authority: “The Court may revise a sentence
authorized by statute if, after due consideration of the trial court’s
decision, the Court finds that the sentence is inappropriate in light of
the nature of the offense and the character of the offender.”
Sentencing decisions are highly case sensitive and are for the most
part best left to the discretion of the trial court as long as the sentence
comports with applicable statutes and is imposed in accordance with
applicable procedural requirements. Nevertheless, the power to review and
revise was expressly conferred by the 1970 amendment to the Indiana
Constitution. In Serino v. State, 798 N.E.2d 852 (Ind. 2003), this Court
recently reviewed the history of Indiana appellate review of sentencing.
In brief, the Indiana Constitution was amended in 1970 to recognize the
desirability of encouraging consistency in sentencing in similar cases
despite differences of time, place, and sentencing judge. In taking this
approach, Indiana expressed a preference for the British tactic of
appellate review of sentences, and did not pursue the much more severe
restrictions on sentencing discretion imposed on federal courts at roughly
the same time in our nation’s history by the Federal Sentencing Guidelines.
See generally Walker v. State, 747 N.E.2d 536, 537-38 (Ind. 2001)
(addressing prior version of Indiana Appellate Rule 7(B)); Charles J.
Ogletree, Jr., Commentary: The Death of Discretion? Reflections on the
Federal Sentencing Guidelines, 101 Harv. L. Rev. 1938, 1940-42, 1957-58
(1988); Joel M. Schumm, Survey: Criminal Law and Procedure: Recent
Developments in Indiana Criminal Law and Procedure, 34 Ind. L. Rev. 645,
670-71 (2001).
We have long explained that review of a death sentence must be more
intensive than that required for a term of years. We reaffirm our goal of
assuring “evenhanded operation of the death penalty statute” by reviewing
death sentences “in light of other death penalty cases.” Cooper v. State,
540 N.E.2d 1216, 1218 (Ind. 1989) (quoting Judy v. State, 275 Ind. 145,
169, 416 N.E.2d 95, 108 (1981)). Indeed, we have stated “[t]he
thoroughness and relative independence of this Court’s review is a part of
what makes Indiana’s capital punishment statute constitutional.” Cooper,
540 N.E.2d at 1218.
Before 2002, Appellate Rule 7(B) appellate review called for revision
of a sentence only if it was “manifestly unreasonable.” The rule now
provides that an appellate court may revise a sentence if it is
“inappropriate.” On direct appeal, we reviewed Saylor’s claim under
Article VII, Section 4 and concluded that the death penalty was appropriate
under the statute. Saylor v. State, 686 N.E.2d 80, 89 (Ind. 1997). Since
that time the legal landscape has significantly changed. Even if the Sixth
Amendment does not bar Saylor’s execution for a pre-Ring crime, as a matter
of Indiana state law Saylor, if tried today, could not be sentenced to
death without a jury recommendation that death be imposed. Under these
circumstances we conclude that his death sentence is inappropriate and
should be revised.
Exercise of our Article VII powers to revise a death sentence in light
of changes in the legal landscape is not unprecedented. In Cooper v.
State, this Court revised Paula Cooper’s sentence from death to a term of
years because she would have been the only fifteen-year-old defendant to be
executed. In Cooper’s case, after she was sentenced to death two
significant events occurred. First, the legislature amended the death
penalty statute so that it applied only to persons sixteen years old or
older at the time of the crime. Cooper, 540 N.E.2d at 1219. The effective
date of this amendment made it inapplicable to Cooper. Id. Second, the
United States Supreme Court had recently decided Thompson v. Oklahoma, 487
U.S. 815 (1988), where, in a plurality opinion, the Court held it would be
cruel and unusual punishment to execute a fifteen year old.
Cooper is not squarely controlling precedent for Saylor’s case.
First, Cooper was a direct appeal and Saylor seeks collateral review. It
is also true that Cooper would have been both the first and the last
Indiana convict to be sentenced to death for a crime committed at the age
of fifteen. Saylor cannot claim he would be the only person executed
despite a jury recommendation to the contrary, but he comes very close.
Currently two other inmates are on death row after a judge overruled the
jury’s recommendation against death, but no execution has been carried out
in Indiana where the jury recommended against death. There is one instance
where the jury was unable to agree on a recommendation and the death
penalty was carried out, Burris v. State, 642 N.E.2d 961 (Ind. 1994); and
another defendant sentenced in that circumstance remains on death row
today. Holmes v. State, 671 N.E.2d 841 (Ind. 1996). Despite these
differences both Paula Cooper and Benny Saylor present situations in which
the legislature, after their sentences were imposed, enacted significant
changes in the requirements for the death penalty that would render them
ineligible for a death sentence in a trial conducted today. Even in
dealing with the death penalty not every change in the law affects earlier
trials. But we conclude it is not appropriate to carry out a death
sentence that was the product of a procedure that has since been revised in
an important aspect that renders the defendant ineligible for the death
penalty.
In sum, Saylor is one of only three individuals currently under a
death sentence despite a jury’s recommendation to the contrary. By virtue
of the 2002 amendments to the death penalty statute, no future executions
will take place without a jury recommendation. Under these circumstances,
it is inappropriate to carry out a death sentence that could not be imposed
today. Accordingly, we revise the sentence to a term of imprisonment. It
remains to fix that term.
Saylor was charged and convicted of murder, murder in the commission
of a robbery, robbery, and confinement. The two murder convictions merge
into one. At the time of Saylor’s 1992 crime, the punishment of life
without parole was not available in Indiana. As we noted in Saylor’s
direct appeal, life without parole was available only for crimes committed
after June 30, 1993. Saylor, 686 N.E.2d at 83-84. Sentencing options for
murders committed before that date were either a term of years or death.
Ind. Code § 35-50-2-3 (1988). The maximum term of years for murder at the
time of Saylor’s crime was forty years, with up to twenty years added for
aggravating circumstances. Id. Saylor was also convicted of robbery and
confinement, both Class B felonies carrying a presumed sentence of ten
years, and up to ten years added for aggravating circumstances. I.C. § 35-
50-2-5.
As we noted in Saylor’s direct appeal, the trial court, in imposing
death, found that the State had proved two death penalty aggravating
circumstances beyond a reasonable doubt: 1) Saylor intentionally killed the
victim while attempting to commit a robbery; and 2) at the time the murder
was committed, Saylor was on probation after receiving a sentence for
burglary. Saylor, 686 N.E.2d at 85. In the sentencing order, the trial
court noted each of the eight mitigating circumstances listed in Indiana
Code section 35-50-2-9(c). After discussing each circumstance in detail,
the court expressly found that “none of the mitigating circumstances in
I.C. § 35-50-2-9 were proven or established in this case.” Saylor, 686
N.E.2d at 85.
Saylor does not challenge the court’s finding of aggravating
circumstances, but instead argues that there were several mitigating
circumstances supported by the record that should have been considered by
the court. As we held in Saylor’s direct appeal, the other mitigating
circumstances—that he would respond affirmatively to confinement, that he
was intoxicated at the time of the offense, and that he had a troubled
childhood—were not clearly supported by the record and are entitled to
little weight. Id. at 86, 89. Accordingly, we sentence Saylor to forty
years for murder, enhanced by twenty years reflecting the trial court’s
conclusion that the maximum penalty should be imposed. For the same
reason, we revise the sentences for robbery and confinement to twenty years
in each case, with all these sentences to be served consecutively. The
result is a total sentence of one hundred years.
Conclusion
This case is remanded to the trial court with instructions to enter a
sentence of sixty years for murder, twenty years for robbery and twenty
years for confinement, all to be served consecutively.
Dickson, Sullivan, and Rucker, JJ., concur.
Shepard, C.J., dissents with opinion.
SHEPARD, Chief Justice, dissenting.
As we did when the Court considered the appropriateness of Saylor’s
sentence during his direct appeal, we have always approached the question
by examining all of the aggravating and mitigating circumstances.
Saylor’s case presented two aggravating circumstances. One was that
he “intentionally” killed Judy VanDuyn, whose only offense was taking her
clothes to the laundromat late in the evening. The weight of this
aggravator, measured by the level of Saylor’s intentionality, has always
seemed substantial. Saylor stabbed Ms. VanDuyn forty-five times, aiming
half of these blows at her left breast.
The second aggravating circumstance was that Saylor committed the
murder at a moment when the judicial system had offered him grace on the
promise of good behavior: he was on probation when he killed a human being
over the $22 she was carrying.
As Justice Boehm notes, both the sentencing judge and this Court have
rejected most of Saylor’s claims concerning mitigating circumstances.
Until today, only a few of these have been found viable: a troubled
childhood, consuming drugs and alcohol at the time of the offense, and a
history of substance abuse. We earlier declared that, individually and
collectively, these were entitled to low “if any” mitigating weight.
Saylor, 586 N.E.2d at 89.
To these mitigating circumstances, the Court now adds the changes in
the death penalty statute prompted by Apprendi v. New Jersey, 530 U.S. 466
(2000). These changes had little to do with defendants situated like Benny
Saylor, whose jury, after all, found beyond a reasonable doubt both the
aggravating circumstances that render him eligible for the death penalty.
I thus do not regard these amendments, even if one can plausibly describe
them as a “mitigating circumstance”, as adding enough to make Saylor’s
sentence inappropriate. The high level of culpability reflected in the two
aggravators still more than outweigh the modest mitigators.
But so it will be. Saylor will be relieved of the penalty imposed
for his 1992 crime. And, it is clear enough, so will others who are
presently sitting on death row.
-----------------------
[1] The two others are William Minnick and Christoper Peterson, now known
as Obadyah Ben-Yisrayl. This Court affirmed Minnick’s conviction on direct
appeal in Minnick v. State, 544 N.E.2d 471, 482 (Ind. 1989). His petition
for habeas corpus is currently pending in the Northern District of Indiana.
Ben-Yisrayl was convicted and sentenced to death in two separate trials in
Lake County and Porter County. In Lake County, the trial court imposed
death despite the jury’s recommendation against it. That was affirmed on
direct appeal. Peterson v. State, 674 N.E.2d 528 (Ind. 1996). Denial of
post-conviction relief was affirmed, Ben-Yisrayl v. State, 729 N.E.2d 102
(Ind. 2000), and the district court denied his habeas petition. His appeal
of denial of federal habeas is pending in the Seventh Circuit. In the
Porter County case, the jury recommended death and we affirmed. Ben-
Yisrayl v. State, 690 N.E.2d 1141 (Ind. 1997). We also affirmed the denial
of post-conviction relief. Ben-Yisrayl v. State, 753 N.E.2d 649 (Ind.
2001). The Northern District of Indiana recently granted Ben-Yisrayl’s
petition for habeas corpus in the Porter County case, and the State has
appealed. Ben-Yisrayl v. Davis, 277 F. Supp. 2d 898, 907 (N.D. Ind. 2003).
[2] Saylor sought rehearing on April 19, 2002. At that time the United
States Supreme Court had granted certiorari but not yet decided Ring.
After Ring was decided, both parties submitted supplemental briefs.