Desmond Banks v. State of Indiana

                                             OPINION
                                                     .




                                            IN THE

            Court of Appeals of Indiana
                                         Desmond Banks,                       FILED
                                         Appellant-Defendant              Feb 13 2024, 8:43 am

                                                                              CLERK
                                                                          Indiana Supreme Court
                                                                             Court of Appeals
                                                    v.                         and Tax Court




                                         State of Indiana,
                                           Appellee-Plaintiff


                                          February 13, 2024
                                     Court of Appeals Case No.
                                            23A-CR-896
                                         Appeal from the
                                       Marion Superior Court
                                         The Honorable
                                    Marc T. Rothenberg, Judge
                                       Trial Court Cause No.
                                      49D29-2002-MR-6886




Court of Appeals of Indiana | Opinion 23A-CR-896 | February 13, 2024   Page 1 of 28
                                     Opinion by Judge Vaidik
                                      Judge Brown concurs.
                         Judge Bradford concurs in part and dissents in part,
                                      with separate opinion.



      Vaidik, Judge.



      Case Summary
[1]   Three defendants were tried together and convicted for a February 2020

      quadruple murder in Indianapolis. One of those defendants, Desmond Banks,

      was only sixteen years old at the time of the shootings. The trial court sentenced

      him to 220 years. He now appeals, arguing, among other things, that his de

      facto life sentence is inappropriate.


[2]   Between 2014 and 2020, the Indiana Supreme Court reduced the life or de facto

      life sentences of at least five juveniles convicted of murder given their young

      ages and the emerging scientific research on adolescent brain development,

      notwithstanding the horrific nature of the crimes. Three of the five cases

      involved double murders. In those cases, our Supreme Court reduced the

      sentences so the defendants would be eligible for release in their fifties or sixties,

      giving them reasonable hope for rehabilitation and some life outside prison.


[3]   After those cases were decided, the Indiana General Assembly amended

      Indiana Code section 35-38-1-17 to provide that a defendant who was convicted

      of a murder committed when they were less than eighteen years old may seek to

      Court of Appeals of Indiana | Opinion 23A-CR-896 | February 13, 2024        Page 2 of 28
      modify their sentence after serving substantial time. Given the availability of

      this statute and the fact that Desmond was convicted of four murders, we

      reduce his sentence to 135 years. Although this is still a de facto life sentence, it

      gives him a more realistic chance, with good behavior, at some life outside

      prison in his later years should he seek to modify his sentence under Section 35-

      38-1-17.



      Facts and Procedural History
[4]   The evidence most favorable to the verdicts is as follows. In February 2020,

      nineteen-year-old Jalen Roberts and twenty-year-old Marcel Wills lived at

      Carriage House East Apartments at 42nd Street and Mitthoeffer Road on the

      east side of Indianapolis. Marcel owned guns and sold marijuana. On the night

      of February 5, twenty-one-year-old Braxton Ford and twenty-one-year-old

      Kimari Hunt, who was Marcel’s girlfriend, were hanging out with Jalen and

      Marcel at the apartment.


[5]   That same night, Lasean Watkins, who was nineteen years old, called his

      friend, nineteen-year-old Rodreice Anderson, and asked for a ride. When

      Rodreice arrived at Lasean’s house, brothers Cameron and Desmond Banks

      were with Lasean. Cameron was nineteen, and Desmond was sixteen. The

      three got into Rodreice’s gold Oldsmobile, and Lasean told Rodreice to drive

      them to Jalen and Marcel’s apartment so they could buy marijuana.




      Court of Appeals of Indiana | Opinion 23A-CR-896 | February 13, 2024        Page 3 of 28
[6]   Meanwhile, Anton Wilson and his brother Mikalus Hervey pulled up at Jalen

      and Marcel’s apartment around 9:30 p.m. Anton went inside while Mikalus

      stayed in the car.


[7]   Shortly before 10 p.m., Rodreice, Lasean, Cameron, and Desmond pulled up at

      the apartment. Rodreice stayed in his car while the other three went inside.

      Anton was already inside when Lasean, Cameron, and Desmond entered.

      Anton didn’t know them but later identified them in a photo lineup as Lasean,

      Cameron, and Desmond. Anton noticed that Lasean had a rose tattoo on his

      hand and a gun at his waist. Anton also noticed that Lasean was acting “jittery”

      and pacing around. Tr. Vol. III p. 155. Marcel asked Lasean why he was acting

      that way, but Lasean didn’t respond. Marcel also asked Lasean if he wanted

      him to buy back the gun he had sold him, and Lasean responded that it would

      cost more because he had modified it. The situation made Anton feel

      “uncomfortable,” so he told Marcel that he was leaving and would see him

      later. Id. at 156.


[8]   According to surveillance footage, Anton walked out of the apartment at

      10 p.m. When Anton got back to his car, he saw that Lasean had exited the

      apartment and walked over to Rodreice, who was still sitting in his car. Lasean

      asked Rodreice if he had change for a $20, and Rodreice said no. According to

      Rodreice, Lasean told him there were “four people in the house” and he was

      “about to rob them.” Tr. Vol. V p. 22. Rodreice stayed in his car.




      Court of Appeals of Indiana | Opinion 23A-CR-896 | February 13, 2024    Page 4 of 28
[9]    Anton’s car pulled away as Lasean reentered the apartment. Soon after,

       Rodreice heard gunshots and moved his car in the parking lot so it was closer to

       the street. About five minutes later, Cameron got in the car shortly followed by

       Desmond and Lasean. Each carried a gun and a duffel bag. Rodreice drove

       them to Cameron and Desmond’s house, and Cameron gave Rodreice a jar of

       marijuana.


[10]   Around this time, 911 calls about shots fired started coming in. Officers from

       the Indianapolis Metropolitan Police Department responded to the apartment

       and found the bodies of Jalen, Marcel, Braxton, and Kimari inside. Jalen had

       been shot twenty-nine times, Marcel and Braxton had been shot seven times

       each, and Kimari had been shot five times. It looked like the apartment had

       been “ransacked,” and Marcel’s guns and marijuana were missing. Tr. Vol. IV

       p. 166.


[11]   The State charged Lasean, Cameron, and Desmond each with four counts of

       murder, four counts of felony murder, and four counts of Level 2 felony robbery

       (enhanced from a Level 5 felony due to serious bodily injury). The State also

       charged Rodreice with four counts of felony murder and four counts of Level 2

       felony robbery. Rodreice and the State entered into a plea agreement, under

       which Rodreice would plead guilty to the four counts of Level 2 felony robbery

       and the State would dismiss the four counts of felony murder. Rodreice, who

       agreed to testify against Lasean, Cameron, and Desmond, was sentenced to

       thirty-five years, with five years suspended to probation.



       Court of Appeals of Indiana | Opinion 23A-CR-896 | February 13, 2024    Page 5 of 28
[12]   A five-day jury trial was held in February and March 2023. Lasean, Cameron,

       and Desmond were tried together. Anton and Rodreice testified as detailed

       above. A firearms expert testified that three different guns were used in the

       shootings. At the end of the second day of trial, the trial court was giving the

       jurors instructions for the night when it appeared that a spectator in the gallery

       started talking to the defendants or the attorneys. Ex. 3. Desmond and

       Cameron turned around, and a Marion County Sheriff’s Office deputy walked

       toward the gallery and directed the spectator to exit the courtroom. Id. After the

       trial court said “all rise” and as the jurors started filing out of the courtroom,

       three members of the Marion County Sheriff’s Office Critical Emergency

       Response Team (CERT), who had been stationed in the courtroom during the

       trial, approached Cameron and Desmond and stood behind them. Id. The

       CERT members, who were wearing special uniforms that resembled SWAT

       uniforms, told Desmond and Cameron to face forward. Desmond’s attorney

       moved for a mistrial:


               I’m moving for a mistrial. While the jury was in the room and
               standing up and proceeding towards the door, members of the
               CERT Team came and stood behind our clients, which gives the
               impression that our clients are in custody and essentially
               supervised by the Sheriff’s Office. The jurors could, and very
               likely would, have seen that. And that’s completely inappropriate
               and prejudicial to our clients.


               And earlier I may have said removing. They -- they not
               necessarily were taking them out the door, but they were
               standing behind them in order to take them back into the lockup,
               and the jurors would’ve seen them standing behind them like

       Court of Appeals of Indiana | Opinion 23A-CR-896 | February 13, 2024        Page 6 of 28
                that. And I think that’s just unduly prejudicial, and the jurors
                shouldn’t have seen that, and so we should have a mistrial.


       Tr. Vol. IV pp. 89-90. Cameron’s attorney joined in the motion, adding that the

       CERT members’ presence behind Desmond and Cameron “g[ave] the

       impression that they [were] dangerous.” Id. at 90. After reviewing a video of the

       incident and speaking at length with the parties, the court denied the motion for

       mistrial. The court detailed that the video showed that the CERT members

       stood behind Desmond and Cameron as the jurors filed out of the courtroom.

       The court explained that had the CERT members led Desmond and Cameron

       out of the courtroom while the jurors were still present, “that would be a much

       different situation.” Id. at 95. The court emphasized that the situation was

       precipitated by the spectator in the gallery who tried to communicate with

       someone at the front of the courtroom. Nevertheless, it instructed the CERT

       members not to approach Desmond and Cameron anymore “until the jury is

       out of the room.” Id.


[13]   After the trial, the jury found Lasean, Cameron, and Desmond guilty as

       charged.1 At Desmond’s sentencing hearing, the trial court entered judgment of

       conviction for the four murder counts, vacated the four felony-murder counts,

       and entered judgment of conviction for the four counts of Level 2 felony




       1
        Lasean appealed his convictions and raised a single issue: the evidence is insufficient to prove that he was
       one of the participants. We affirmed. See Watkins v. State, No. 23A-CR-1109 (Ind. Ct. App. Dec. 14, 2023)
       (mem.), trans. not sought.

       Court of Appeals of Indiana | Opinion 23A-CR-896 | February 13, 2024                               Page 7 of 28
       robbery. The trial court found that of the 100 murder trials it had presided over,

       this one was “the most horrific” because it involved a “slaughter” and an

       “execution” of the victims. Tr. Vol. VII p. 109. The court identified as

       aggravators the nature and circumstances of the offenses and that there were

       four victims.2 The court found no mitigators. Although the court acknowledged

       that Desmond was only sixteen years old at the time of the shootings and that

       there is emerging scientific research on adolescent brain development, it didn’t

       give his age any mitigating weight because “some things you do, you do as a

       man, you don’t do as a kid.” Id. at 108. The court also rejected as a mitigator

       that Desmond didn’t have a juvenile or criminal history because he had one

       juvenile adjudication from 2018 for carrying a concealed weapon. The court

       sentenced Desmond to fifty-five years for each murder conviction, to be served

       consecutively, and seventeen-and-a-half years for each robbery conviction, to be

       served concurrently, for a total of 220 years. The court acknowledged that it

       was a “de facto life sentence” but found that it was warranted because this “was

       one of the worst things I’ve ever seen in my entire life.” Id.


[14]   Desmond now appeals.




       2
         Desmond argues the trial court erroneously found as a third aggravator that his “MBK” tattoo was gang
       related. Although the trial court discussed Desmond’s tattoo, it did not find it to be an aggravator. But even if
       it did and we found it to be error, our revision of Desmond’s sentence corrects that.

       Court of Appeals of Indiana | Opinion 23A-CR-896 | February 13, 2024                                Page 8 of 28
       Discussion and Decision
       I. The trial court properly denied Desmond’s motion for
       mistrial based on the CERT members approaching and
       standing behind him as the jurors filed out of the courtroom
[15]   Desmond contends the trial court erred in denying his motion for mistrial based

       on the CERT members approaching and standing behind him as the jurors filed

       out of the courtroom. “[A] mistrial is an extreme remedy that is only justified

       when other remedial measures are insufficient to rectify the situation.” Mickens

       v. State, 742 N.E.2d 927, 929 (Ind. 2001). Because the trial court is in the best

       position to gauge the circumstances surrounding an event and its impact on the

       jury, we afford great deference to its decision on appeal. Id.


[16]   Desmond says a mistrial was warranted because “[t]he CERT team’s actions

       were a per se violation of [his] right to a fair trial” and branded him “with an

       unmistakable mark of guilt.” Appellant’s Br. pp. 20, 23 (quotation omitted).

       According to the Sixth and Fourteenth Amendments to the United States

       Constitution, a criminal defendant “is entitled to have his guilt or innocence

       determined solely on the basis of the evidence introduced at trial, and not on

       the grounds of official suspicion, indictment, continued custody, or other

       circumstances not adduced as proof at trial.” Holbrook v. Flynn, 475 U.S. 560,

       567 (1986) (quotation omitted). That does not mean, however, that “every

       practice tending to single out the accused from everyone else in the courtroom

       must be struck down.” Id. Whenever a courtroom arrangement is challenged as

       inherently prejudicial, the question is “not whether jurors actually articulated a

       Court of Appeals of Indiana | Opinion 23A-CR-896 | February 13, 2024      Page 9 of 28
       consciousness of some prejudicial effect, but rather whether an unacceptable

       risk is presented of impermissible factors coming into play.” Id. at 569

       (quotation omitted). “[T]he presence of armed personnel in a courtroom is not a

       practice that is inherently prejudicial and must be examined on a case-by-case

       basis.” Holifield v. State, 572 N.E.2d 490, 496 (Ind. 1991) (citing Holbrook, 475

       U.S. 560), reh’g denied; see also Meadows v. State, 785 N.E.2d 1112, 1123 (Ind. Ct.

       App. 2003) (“[W]hile several challenges have been made to uniformed officer

       presence in a courtroom, few cases have reached the conclusion that such police

       presence has resulted in an unacceptable risk to the defendant.”), trans. denied.


[17]   We first note that the trial court found, and Desmond does not challenge on

       appeal, that the CERT members’ presence was required during trial. Desmond

       suggests that the CERT members were there for Lasean, who was facing

       another murder charge for killing an inmate while he was in jail awaiting trial

       in this case. See Cause No. 49D31-2106-MR-17274.3 Regardless, Desmond only

       challenges that the CERT members approached him and stood behind him as

       the jurors exited the courtroom.


[18]   The CERT members’ presence behind Desmond for a few moments did not

       result in an unacceptable risk of impermissible factors coming into play. As the

       trial court explained, the CERT members approached and stood behind

       Desmond and Cameron because of a unique sequence of events—one that



       3
         After this trial, Lasean pled guilty to Level 3 felony aggravated battery for killing the inmate and was
       sentenced to five years.

       Court of Appeals of Indiana | Opinion 23A-CR-896 | February 13, 2024                               Page 10 of 28
       evidently did not repeat itself. As Exhibit 3 shows, shortly before the CERT

       members approached Desmond and Cameron, a spectator in the gallery started

       talking to the defendants or the attorneys, and Desmond and Cameron turned

       around. As a sheriff’s deputy removed the spectator from the courtroom, the

       CERT members approached Desmond and Cameron, stood behind them, and

       told them to face forward. The court, who was present during this incident and

       reviewed the video, found that the CERT members approached and stood

       behind Desmond and Cameron as the jurors exited the courtroom but that

       Desmond and Cameron were not removed from the courtroom until after the

       last juror had exited. Given our great deference to trial courts in ruling on

       requests for mistrial, see Mickens, 742 N.E.2d at 929, we cannot say the trial

       court abused its discretion here.


       II. The State concedes that three of the four robbery
       convictions should be vacated
[19]   Desmond next contends the evidence is insufficient to support four separate

       convictions for Level 2 felony robbery because he did not take property from

       each victim. The State concedes that only one conviction for robbery is

       appropriate (Count XII relating to Marcel) and that the other three convictions

       (Counts IX, X, and XI) should be vacated. We therefore reverse Desmond’s

       convictions for Counts IX, X, and XI.




       Court of Appeals of Indiana | Opinion 23A-CR-896 | February 13, 2024     Page 11 of 28
       III. Desmond’s convictions for the murder and Level 2 felony
       robbery of Marcel constitute double jeopardy, so we reduce
       the robbery to a Level 5 felony
[20]   Desmond next contends his convictions for the murder and Level 2 felony

       robbery of Marcel constitute double jeopardy under Wadle v. State, 151 N.E.3d

       227 (Ind. 2020), because the robbery was enhanced to a Level 2 felony “due to

       the same serious bodily injury that formed the basis” of the murder. Appellant’s

       Br. p. 29. The State says there is no double-jeopardy violation under Wadle.


[21]   These offenses occurred in February 2020, before Wadle was decided. Under

       pre-Wadle law, this was a clear double-jeopardy violation. See, e.g., Spears v.

       State, 735 N.E.2d 1161 (Ind. 2000) (holding that a robbery conviction cannot be

       enhanced “based on the same serious bodily injury that forms the basis of a

       murder conviction”), reh’g denied. Desmond is entitled to the benefit of the law

       that was in effect when he committed the offenses. See Hessler v. State, 213

       N.E.3d 511, 528 (Ind. Ct. App. 2023) (Vaidik, J., dissenting), trans. denied. We

       therefore reverse Desmond’s conviction for the Level 2 felony robbery of

       Marcel (Count XII) and remand with instructions for the trial court to enter

       conviction for Level 5 felony robbery instead.4




       4
         Lasean’s sentencing hearing was held after Desmond and Cameron’s sentencing hearing. The trial court
       reduced Lasean’s robbery convictions to Level 5 felonies based on double-jeopardy principles. See Watkins,
       No. 23A-CR-1109 (Tr. Vol. VII pp. 38-39).

       Court of Appeals of Indiana | Opinion 23A-CR-896 | February 13, 2024                           Page 12 of 28
       IV. Desmond’s 220-year sentence is inappropriate, and we
       reduce it to 135 years
[22]   Finally, Desmond contends his 220-year sentence is inappropriate and asks us

       to reduce it. Indiana Appellate Rule 7(B) provides that an appellate 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.” The court’s role under

       Rule 7(B) is to “leaven the outliers,” and “we reserve our 7(B) authority for

       exceptional cases.” Faith v. State, 131 N.E.3d 158, 160 (Ind. 2019). “Whether a

       sentence is inappropriate ultimately turns on the culpability of the defendant,

       the severity of the crime, the damage done to others, and a myriad of other

       factors that come to light in a given case.” Thompson v. State, 5 N.E.3d 383, 391

       (Ind. Ct. App. 2014) (citing Cardwell v. State, 895 N.E.2d 1219, 1224 (Ind.

       2008)). Because we generally defer to the judgment of trial courts in sentencing

       matters, defendants must persuade us that their sentences are inappropriate.

       Schaaf v. State, 54 N.E.3d 1041, 1044-45 (Ind. Ct. App. 2016).


[23]   The sentencing range for murder is forty-five to sixty-five years, with an

       advisory sentence of fifty-five years. Ind. Code § 35-50-2-3(a). The trial court

       sentenced Desmond to the advisory sentence of fifty-five years for each murder

       conviction, to be served consecutively, for a total of 220 years. The court also

       sentenced Desmond to the advisory sentence of seventeen-and-a-half years for

       each Level 2 felony robbery conviction, to be served concurrently. But as just

       explained, we now reverse three of Desmond’s robbery convictions and reduce

       Court of Appeals of Indiana | Opinion 23A-CR-896 | February 13, 2024      Page 13 of 28
       the fourth to a Level 5 felony. The sentencing range for a Level 5 felony is one

       to six years, with an advisory sentence of three years. I.C. § 35-50-2-6(b).


[24]   Before addressing the nature of these offenses and Desmond’s character, we set

       forth the inappropriate-sentence framework the Indiana Supreme Court has

       applied to juveniles convicted of murder. Since 2014, our Supreme Court has

       reduced the sentences of at least five juveniles convicted of murder due to their

       young ages and the emerging scientific research on adolescent brain

       development. In the first case, Brown v. State, 10 N.E.3d 1 (Ind. 2014), sixteen-

       year-old Martez Brown and two other teenagers (eighteen-year-old Na-Son

       Smith and fifteen-year-old Jacob Fuller) robbed and killed two people in 2010.

       Brown was convicted of two counts of murder and one count of Class B felony

       robbery. The trial court sentenced him to sixty-five years for each count of

       murder and twenty years for robbery, to be served consecutively, for a total of

       150 years. On appeal, this Court found that Brown’s sentence was not

       inappropriate even though he was “just sixteen years old” at the time of the

       crimes. Brown v. State, No. 48A02-1212-CR-1007 (Ind. Ct. App. July 30, 2013),

       trans. granted. Our Supreme Court granted transfer and reduced Brown’s

       sentence:


               We take this opportunity to reiterate what the United States
               Supreme Court has expressed: Sentencing considerations for
               youthful offenders—particularly for juveniles—are not
               coextensive with those for adults. See Miller v. Alabama, 567 U.S.
               460, 480 (2012) (requiring the sentencing judge to “take into
               account how children are different, and how those differences
               counsel against irrevocably sentencing them to a lifetime in

       Court of Appeals of Indiana | Opinion 23A-CR-896 | February 13, 2024     Page 14 of 28
               prison” (footnote omitted)). Thus, both at initial sentencing and
               on appellate review it is necessary to consider an offender’s youth
               and its attendant characteristics.


               In holding death sentences and mandatory life without parole
               sentences for those under the age of eighteen to be
               unconstitutional, the United States Supreme Court has
               underpinned its reasoning with a general recognition that
               juveniles are less culpable than adults and therefore are less
               deserving of the most severe punishments. See Graham [v. Florida],
               560 U.S. [48, 68 (2010)]. This presumption that juveniles are
               generally less culpable than adults is based on previous and
               ongoing “developments in psychology and brain science” which
               “continue to show fundamental differences between juvenile and
               adult minds” in, for instance, “parts of the brain involved in
               behavior control.” Miller, 567 U.S. at 471-72.


       Brown, 10 N.E.3d at 6-7.


[25]   The Court compared Brown’s 150-year sentence to a sentence of life without

       parole, as it “forswears altogether the rehabilitative ideal” and “essentially

       means 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 (quotation omitted). Accordingly, the court revised Brown’s

       sentence to sixty years for each count of murder, to be served concurrently, and

       twenty years for robbery, to be served consecutively, for a total of eighty years.

       With credit for good behavior, this meant Brown would be eligible for release in

       his late fifties.



       Court of Appeals of Indiana | Opinion 23A-CR-896 | February 13, 2024      Page 15 of 28
[26]   In fifteen-year-old Fuller’s appeal, this Court likewise found that his 150-year

       sentence was not inappropriate. See Fuller v. State, No. 48A02-1210-CR-848

       (Ind. Ct. App. July 10, 2013), trans. granted. Again, our Supreme Court granted

       transfer and reduced Fuller’s sentence to eighty-five years:


               In the case of sixteen-year-old Brown we employed our collective
               sense of what was an appropriate sentence and determined he
               “should receive an enhanced sentence of sixty years for each
               count of murder to be served concurrently and an enhanced
               sentence of twenty years for robbery to be served consecutively,
               for a total aggregate sentence of eighty years imprisonment.”
               Brown, 10 N.E.3d at 8. We believe Fuller is entitled to a sentence
               revision as well. But we are not inclined to revise Fuller’s
               sentence to be precisely the same, or even less than that of his
               cohort. Although only a year older than Fuller, Brown unlike
               Fuller was an accomplice—a factor that we found particularly
               important. Instead Fuller was one of the actual shooters. We
               conclude that Fuller should receive the maximum enhanced
               sentence of sixty-five years for each count of murder to be served
               concurrently, and an enhanced sentence of twenty years for
               robbery to be served consecutively for a total aggregate sentence
               of eighty-five years imprisonment.


       Fuller v. State, 9 N.E.3d 653, 658-59 (Ind. 2014). With credit for good behavior,

       this also meant Fuller would be eligible for release in his late fifties.


[27]   Three years after Brown and Fuller, our Supreme Court decided Taylor v. State,

       86 N.E.3d 157 (Ind. 2017), reh’g denied. There, seventeen-year-old Carltez

       Taylor shot and killed someone in 2015. He was convicted of murder,

       conspiracy to commit murder, and a firearm enhancement and sentenced to life

       without parole. On appeal, our Supreme Court revised Taylor’s sentence to

       Court of Appeals of Indiana | Opinion 23A-CR-896 | February 13, 2024        Page 16 of 28
eighty years (sixty-five years for murder enhanced by fifteen years for using a

firearm and a concurrent sentence of thirty-five years for conspiracy to commit

murder):


         [W]e consider many factors in weighing 7(B) revisions. “[M]ost
         significantly” here, Taylor was only seventeen years old at the
         time of the crimes. As this Court and the United States Supreme
         Court have recognized, “children are different.” “[J]uveniles are
         less culpable than adults and therefore are less deserving of the
         most severe punishments.”


                                                 *****


         In Fuller and Brown, two juvenile codefendants received 150-year
         sentences for a double murder. We unanimously revised fifteen-
         year-old Fuller’s sentence to eighty-five years and sixteen-year-
         old Brown’s sentence to eighty years because, while their crimes
         were “senseless and reprehensible,” no evidence showed “that
         the victims were tortured, beaten, or lingered in pain.” And
         “most significantly,” we considered their ages, as “[s]entencing
         considerations for youthful offenders—particularly for
         juveniles—are not coextensive with those for adults.”


Id. at 166-67 (citations and quotations omitted). With credit for good behavior,

this meant Taylor would be eligible for release in his late seventies.5




5
  For crimes committed before July 1, 2014, defendants generally received one day of credit for each day
served, meaning they could be released after serving 50% of their sentences. Now, defendants convicted of
more serious felonies generally receive one day of credit for every three days served, meaning they could be
released after serving 75% of their sentences. See I.C. §§ 35-50-6-3.1, -4. Because Taylor committed his
offenses in 2015, the new system applies to him. The old system applies to the other four cases.

Court of Appeals of Indiana | Opinion 23A-CR-896 | February 13, 2024                            Page 17 of 28
[28]   Finally, our Supreme Court decided a pair of cases in 2020. In the first case,

       Wilson v. State, 157 N.E.3d 1163 (Ind. 2020), reh’g denied, sixteen-year-old

       Donnell Wilson and Jonte Crawford shot and killed two brothers in 2013

       because of a gang dispute. Wilson was charged with two counts of murder,

       Class B felony armed robbery, Class D felony conspiracy to commit criminal-

       gang activity, and a criminal-gang enhancement. Crawford was charged

       identically, but he pled guilty to one count of murder and robbery and was

       sentenced to sixty-one years. A jury found Wilson guilty, and the trial court

       sentenced him to sixty years for one murder conviction, fifty-five years for the

       other murder conviction, six years for armed robbery, and two years for

       criminal-gang activity, to be served consecutively. The court then added sixty

       years for the criminal-gang enhancement, for a total sentence of 183 years. On

       appeal, Wilson’s criminal-gang-activity conviction was vacated, reducing his

       sentence to 181 years.


[29]   Wilson later sought post-conviction relief, arguing, among other things, that his

       appellate counsel was ineffective for not arguing on direct appeal that his

       sentence was inappropriate. Our Supreme Court found that appellate counsel

       was ineffective because “even a cursory reading of Fuller and Brown shows that

       the facts of the cases closely track Wilson’s crimes and that the reasoning we

       used to reduce those sentences is also largely applicable to his sentence.”

       Wilson, 157 N.E.3d at 1180. The Court then reduced Wilson’s sentence:


               [I]n both Fuller and Brown, where the defendants’ offenses
               were largely analogous to Wilson’s, we reduced each

       Court of Appeals of Indiana | Opinion 23A-CR-896 | February 13, 2024    Page 18 of 28
        defendant’s aggregate sentence to eighty-five years and eighty
        years, respectively, which means the defendants both have a
        realistic chance at release by their early sixties. Fuller, 9 N.E.3d
        at 659; Brown, 10 N.E.3d at 8. We have made similar reductions
        in the past even under the old, more deferential “manifestly
        unreasonable” standard; for instance, we reduced to fifty years a
        fourteen-year-old’s maximum sixty-year sentence for the brutal
        murder of a seven-year-old girl, recognizing, among other things,
        his “very youthful age.” Carter v. State, 711 N.E.2d 835, 841-43
        (Ind. 1999). And in the case of a sixteen-year-old who brutally
        beat and stabbed his adoptive parents to death while they slept,
        we reduced a maximum 120-year sentence to eighty years when,
        along with his mental illness and lack of criminal history, we
        considered the age of “this offender.” Walton v. State, 650 N.E.2d
        1134, 1135, 1137 (Ind. 1995).


                                               *****


        Fuller and Brown—as factually analogous cases—provide us
        baseline sentences (eighty-five and eighty-year sentences) for
        what is appropriate for a sixteen-year-old who committed
        robbery and a double murder. Comparing the nature of Wilson’s
        offense and his character to these cases, we conclude that
        Wilson’s sentence should be reduced to an aggregate 100 years.
        This includes two concurrent fifty-year sentences for the murders
        of [the brothers], a fifty-year criminal gang enhancement . . . ,
        and a concurrent six-year robbery sentence. Unlike Fuller and
        Brown, Wilson was also convicted of a criminal gang
        enhancement and we must respect the legislature’s determination
        that the corrosive nature of gang activity justifies a higher
        sentence than what Fuller and Brown received.


        Nevertheless, the main factor weighing in favor of a shorter
        sentence is Wilson’s age. A 100-year sentence means that after
        receiving good time credit Wilson will likely be eligible for

Court of Appeals of Indiana | Opinion 23A-CR-896 | February 13, 2024      Page 19 of 28
               release in his mid-to-late sixties, meaning that he has
               reasonable hope for a life outside prison. If Fuller, Brown, and
               Crawford are all able to envision a life outside prison walls, we
               collectively find it an outlier that Wilson is not provided a similar
               opportunity and incentive to rehabilitate.


       Id. at 1183-84 (emphases added).


[30]   In the second case, State v. Stidham, 157 N.E.3d 1185 (Ind. 2020), reh’g denied,

       which was decided the same day as Wilson, our Supreme Court revisited its

       prior decision that seventeen-year-old Matthew Stidham’s 138-year sentence for

       murder and other crimes committed in 1991 was not inappropriate given the

       “developments in the fields of psychology, brain science, and social science,

       along with common sense.” Id. at 1193. It thus revised Stidham’s sentence to

       eighty-eight years:


               As we did in Taylor, Brown, and Fuller, and as we do again today
               in Wilson, we find that the nature of Stidham’s crimes and his
               character warrant a lengthy sentence short of the maximum. See
               Taylor, 86 N.E.3d at 167 (reducing a life-without-parole sentence
               to an aggregate 80-year sentence); Brown, 10 N.E.3d at 8
               (reducing a maximum 150-year sentence to an aggregate 80-year
               sentence); Fuller, 9 N.E.3d at 658-59 (reducing a maximum 150-
               year sentence to an aggregate 85-year sentence); Wilson v. State,
               No. 19S-PC-548, 157 N.E.3d 1163 (Ind. 2020) (reducing a 181-
               year sentence to an aggregate 100-year sentence). We conclude
               that Stidham should receive the maximum terms at the time of
               his offenses for each individual crime—60 years for murder, 50
               years for robbery, 20 years for criminal confinement, and 8 years
               for battery. However, the robbery term should be served
               concurrent to the murder term, and the murder, criminal
               confinement, and battery terms should be served consecutively.

       Court of Appeals of Indiana | Opinion 23A-CR-896 | February 13, 2024       Page 20 of 28
                Thus, we revise Stidham’s overall sentence from 138 years to 88
                years.


       Id. at 1197-98. With credit for good behavior, this meant Stidham would be

       eligible for release in his early sixties.


[31]   With this background in mind, we turn to Desmond’s sentence. As for the

       nature of the offenses, there is no doubt these were heinous crimes. Four people

       were “slaughter[ed]” in an incident that the judge described as “one of the

       worst things I’ve ever seen in my entire life.” But Desmond didn’t act alone.

       There were three shooters, and Desmond, at sixteen, was the youngest of the

       group. As for Desmond’s character, his age is a “major factor” to which we give

       “careful consideration,” which the trial court didn’t do.6 See Wilson, 157 N.E.3d

       at 1182 (“Since Wilson was only sixteen, his age is a major factor that requires

       careful consideration during Appellate Rule 7(B) review.”). And as the State

       acknowledges, Desmond’s juvenile history is “minor.” Appellee’s Br. p. 42.


[32]   Given Desmond’s age, we believe a reduction in his 220-year sentence is

       warranted. But we do not believe that he is entitled to a reduction as substantial

       as Brown, Fuller, and Wilson received.7 First, Desmond was convicted of four

       counts of murder, not two. Second, there is a new statute on the books that was




       6
        Desmond also argues the trial court abused its discretion in not finding his age to be a mitigator. We agree.
       But given our revision of Desmond’s sentence, we need not separately address this issue.
       7
         As explained above, in Wilson’s case, his 100-year sentence meant that he would likely be eligible for
       release in his mid-to-late sixties. And in Fuller’s and Brown’s cases, their sentences gave them a realistic
       chance at release in their late fifties.

       Court of Appeals of Indiana | Opinion 23A-CR-896 | February 13, 2024                                Page 21 of 28
       not available to our Supreme Court when it decided those cases. That is, the

       Indiana General Assembly amended Indiana Code section 35-38-1-17 effective

       July 1, 2023, to provide as follows:


                (n) A person sentenced in a criminal court having jurisdiction
                over an offense committed when the person was less than
                eighteen (18) years of age may file an additional petition for
                sentence modification under this section without the consent of
                the prosecuting attorney if the person has served at least:


                         (1) fifteen (15) years of the person’s sentence, if the person
                         is not serving a sentence for murder; or


                         (2) twenty (20) years of the person’s sentence, if the person
                         is serving a sentence for murder.


                The time periods described in this subsection are computed on
                the basis of time actually served and do not include any reduction
                applied for good time credit or educational credit time.


       See P.L. 115-2023, § 11. If Desmond behaves well and gets the rehabilitation he

       needs, this statute gives him a chance of some life outside prison.8


[33]   Based on the above, we reduce Desmond’s sentence to 135 years as follows:

       forty-five years for each murder conviction and one year for Level 5 felony

       robbery, with three of the murder sentences to run consecutively and the other




       8
        In Stidham’s case, the trial court is holding a hearing on his petition to modify his sentence under Section
       35-38-1-17(n) on February 22, 2024. See No. 18D02-9102-CF-13.

       Court of Appeals of Indiana | Opinion 23A-CR-896 | February 13, 2024                              Page 22 of 28
       sentences to run concurrently. We recognize this is still a de facto life sentence,

       since Desmond would have to serve over 100 years even with credit for good

       behavior. See supra note 5. But reducing Desmond’s sentence to 135 years now

       makes it more likely that, with good behavior, a trial court would grant a

       modification under Section 35-38-1-17(n) and reduce his sentence to a point

       that would allow for some life outside of prison.9


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


       Brown, J., concurs.


       Bradford, J., concurring in part and dissenting in part, with separate opinion.

       ATTORNEY FOR APPELLANT
       Lisa Johnson
       Brownsburg, Indiana


       ATTORNEYS FOR APPELLEE
       Theodore E. Rokita
       Attorney General
       Courtney Staton
       Deputy Attorney General
       Indianapolis, Indiana




       9
         Again, the statute says a juvenile convicted of murder must serve twenty actual years before seeking to
       modify their sentence. But this doesn’t mean that Desmond can get released from prison after serving only
       twenty actual years. Indiana Code section 35-50-2-2.2(c) provides that a court may suspend only that part of
       a murder sentence that is in excess of the minimum, i.e., forty-five years. Thus, even if the trial court were to
       modify Desmond’s sentence to concurrent, minimum terms of forty-five years, he would still have to serve at
       least 75% of that (about thirty-four years).



       Court of Appeals of Indiana | Opinion 23A-CR-896 | February 13, 2024                               Page 23 of 28
       Bradford, Judge, concurring in part and dissenting in part.


[35]   I disagree with the majority that Banks’s sentence is inappropriate. 10 Appellants

       routinely argue that severe sentences should be reserved for the “worst of the

       worst” offenders. Banks is amongst the worst of the worst.


[36]   Banks was an active participant in the ruthless, execution-style killing of four

       human beings. Banks was sentenced to a 220-year term of imprisonment. The

       sentencing range for murder is forty-five to sixty-five years, with an advisory

       sentence of fifty-five years. Ind. Code § 35-50-2-3(a). In sentencing Banks, the

       trial court imposed the fifty-five-year advisory sentence for each murder, with

       each to be served consecutively, for a total 220-year sentence. The trial court

       showed restraint in not imposing the maximum sentence, which would not

       have been inappropriate given Banks’s murderous conduct.


[37]   The nature of Banks’s offenses is clearly amongst the worst of the worst. Banks

       and his confederates left a wake of bullet-riddled bodies lying in pools of blood,

       shell casings, and shattered glass. Before Officer Matthew Melkey even entered

       the apartment in which the murders had occurred, he “could immediately see a

       shattered glass door.” Tr. Vol. III p. 83. As Officer Melkey approached, he

       observed an individual, later identified as Braxton Ford, lying “next to the

       broken glass door” with his arm “against” the glass. Tr. Vol. III p. 84. Officer

       Melkey continued to approach the apartment, observing another individual,




       10
            I concur with the balance of the majority’s opinion.

       Court of Appeals of Indiana | Opinion 23A-CR-896 | February 13, 2024     Page 24 of 28
       later identified as Kimari Hunt, lying on the couch. Both Ford and Hunt had

       been shot. Upon entering the apartment, Officer Melkey immediately observed

       two other victims, both of whom had also been shot. One of these individuals,

       later identified as Jalen Roberts, was lying on the ground near a shattered

       television stand, and the other, later identified as Marcel Wills, was lying on the

       floor in the kitchen. Roberts, Wills, Ford, and Hunt were all dead before help

       could arrive.


[38]   Nothing in the record suggests that Banks was anything other than a willing

       and active participant. After the commission of these murders, Banks jogged

       out of the apartment leaving four dead bodies behind, in possession of a

       handgun, and carrying a “duffle bag.” Tr. Vol. V. p. 25. The apartment had

       been “ransacked.” Tr. Vol. IV p. 166. Before leaving the apartment, Banks and

       his cohorts stole money, guns, and marijuana. Banks and his fellow murderers

       did not show any immediate remorse; indeed, it was quite the opposite, with

       videos and pictures being posted to social media soon after the murders in

       which they were showing off the money, guns, and drugs that they had taken

       from the apartment.


[39]   The mortal wounds inflicted on the victims are disturbing, to say the least.

       Autopsies revealed the following: Roberts had been shot twenty-nine times,

       sustaining gunshot wounds to the head, jaw, chest, right flank, left flank, pelvis,

       right shoulder, right forearm, right wrist, left upper arm, left forearm, left

       buttock, left thigh, and left shin. Ford had been shot seven times, sustaining

       gunshot wounds to his jaw, neck, chest, left flank, left shoulder, left upper arm,

       Court of Appeals of Indiana | Opinion 23A-CR-896 | February 13, 2024       Page 25 of 28
       and left hand. Wills had been shot seven times, sustaining gunshot wounds to

       the forehead, right temple, neck, chest, thigh, and hip. Hunt had been shot five

       times, sustaining gunshot wounds to her head, chest, abdomen, left flank, and

       pelvis. Dr. John Cavanaugh, who had performed each of the autopsies,

       determined that the manner of death for Hunt, Ford, Wills, and Roberts had

       been homicide, with each dying as a result of their gunshot wounds, all of

       which appear to have been inflicted at close range.


[40]   Combined, Hunt, Ford, Wills, and Roberts suffered forty-eight gunshot wounds

       and investigating officers recovered forty-seven shell casings. Banks and his

       accomplices, therefore, “did not miss” their targets, Tr. Vol. VII p. 101, but

       rather “slaughter[ed]” and “execut[ed]” them. Tr. Vol. VII p. 109. The evidence

       demonstrates that Banks and his cohorts were meticulous and methodical in

       killing Hunt, Ford, Wills, and Roberts by shooting all of them, execution-style,

       at least five times. Each was shot, among other places, in the head and chest at

       what appeared to be close range. In addition, it is noteworthy that the trial

       court, which indicated that it had seen “a lot of murders,” described these

       murders as “one of the most horrific things” that it had ever seen. Tr. Vol. VII

       p. 109. I agree with the State that “[t]he callous disregard for four lives, and the

       way [Banks and his co-conspirators] carried out the act, sets these murders

       apart from” a typical murder and that “[t]here is nothing about the nature of the

       offenses … that show[s] restraint, regard, or lack of brutality.” Appellee’s Br.

       pp. 41, 42.




       Court of Appeals of Indiana | Opinion 23A-CR-896 | February 13, 2024      Page 26 of 28
[41]   To say the least, it does not reflect well on Banks’s character that he was an

       active participant in a quadruple murder. It is also telling that his criminal

       conduct escalated quickly from a juvenile adjudication in which he was found

       to have improperly handled a firearm to quadruple murder. Clearly, court

       intervention following Banks’s juvenile adjudication did not dissuade him from

       using a firearm in an illegal manner in the future. Banks was also determined to

       be a “high” risk to reoffend. Appellant’s App. Vol. III p. 106.


[42]   Banks has shown no remorse for his victims, only disappointment that he is in

       jail. This reflects poorly on his character.


[43]   In challenging his sentence, Banks argues both that the trial court abused its

       discretion in refusing to find his youthful age to be a mitigating factor and that

       the 220-year sentence is inappropriate in light of his age at the time of the

       murders.11 The majority largely, if not entirely, relies on Banks’s age in reducing

       his sentence, citing to cases from the Indiana Supreme Court wherein the Court

       reduced the sentences of other juveniles who had been tried and sentenced as

       adults. The facts of this case can easily be differentiated from the cases relied on

       by the majority in that this case involves the killing of four individuals in a

       manner that demonstrates Banks’s depravity and disregard for human life. I do



       11
          Banks also argues that the trial court abused its discretion in referring to his tattoos during sentencing.
       While the trial court mentioned Banks’s tattoos, it did not specifically find them or Banks’s potential gang
       involvement to be an aggravating circumstance. In any event, to the extent that the trial court’s statement
       regarding Banks’s “MBK” tattoo could be interpreted as potentially suggesting gang involvement, it is
       important to note that the record indicates that the trial court’s statement was based on its prior experience,
       with the trial court indicating that it had “run across it before” and “[t]hat [it] stands for something.” Tr. Vol.
       VII p. 111. The trial court did not abuse its discretion in this regard.

       Court of Appeals of Indiana | Opinion 23A-CR-896 | February 13, 2024                                 Page 27 of 28
       not believe that we have reached a point in time where a defendant’s age alone

       can outweigh a rampage of killing such as what occurred in this case.


[44]   Banks is no tender-aged, naive juvenile. Banks was just one day shy of his

       seventeenth birthday when he participated in the murders. At sentencing, the

       trial court acknowledged the emerging scientific research on adolescent-brain

       development, but declined to give Banks’s age any mitigating weight, stating

       “some things you do, you do as a man, you don’t do as a kid.” Tr. Vol. VII p.

       108. While I also acknowledge the research relating to adolescent-brain

       development and the Indiana Supreme Court’s prior reduction of sentences of

       individuals who had been convicted of murder as youths to give them hope for

       life outside of prison, the fact that Banks will never be released from prison

       based on his murderous actions, if anything, demonstrates that his sentence is

       appropriate, not inappropriate. Banks is the worst of the worst and his advisory

       sentence for each of the four murders should be affirmed.




       Court of Appeals of Indiana | Opinion 23A-CR-896 | February 13, 2024     Page 28 of 28