Larry W. Newton, Jr. v. State of Indiana

                                                                                              FILED
                                                                                         09/06/2017, 9:29 am
                                                                                              CLERK
                                                                                          Indiana Supreme Court
                                                                                             Court of Appeals
                                                                                               and Tax Court




      ATTORNEYS FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
      Stephen T. Owens                                           Curtis T. Hill, Jr.
      Public Defender of Indiana                                 Attorney General of Indiana

      Joanna L. Green                                            Jodi Kathryn Stein
      Deputy Public Defender                                     Ellen Hope Meilaender
      Indianapolis, Indiana                                      Deputy Attorney General
                                                                 Indianapolis, Indiana



                                                  IN THE
          COURT OF APPEALS OF INDIANA

      Larry W. Newton, Jr.,                                      September 6, 2017
      Appellant-Defendant,                                       Court of Appeals Case No.
                                                                 18A05-1612-PC-2817
              v.                                                 Appeal from the Delaware Circuit
                                                                 Court
      State of Indiana,                                          The Honorable Linda Ralu Wolf,
      Appellee-Plaintiff                                         Judge
                                                                 Trial Court Cause No.
                                                                 18D01-9410-CF-46



      May, Judge.


[1]   In 1994, seventeen-year-old Larry W. Newton, Jr. (“Newton”) murdered

      nineteen-year-old Christopher Coyle (“Coyle”). Newton pled guilty to the

      murder and, per the terms of a plea agreement, the trial court sentenced

      Newton to life without the possibility of parole (“LWOP”). Newton now

      Court of Appeals of Indiana | Opinion 18A05-1612-PC-2817 | September 6, 2017              Page 1 of 35
      appeals the denial of his successive petition for post-conviction relief. Newton

      raises several arguments on appeal, which we consolidate and restate as:

              (1) Whether Newton’s sentence of LWOP violates the Eighth
                  Amendment’s prohibition against cruel and unusual
                  punishment; and


              (2) Whether Newton waived his right to challenge his sentence
                  under the Eighth Amendment when he entered into a plea
                  bargain agreeing to serve LWOP.


[2]   We affirm. 1



                             Facts and Procedural History
[3]   On September 23, 1994, Newton and a fellow member of the “Fly Gang,” (Plea

      Hr’g Tr. at 78), 2 Duane Turner (“Duane”), attended a party on the Ball State

      University campus. Duane was kicked out of the party. The following night,

      Newton, Duane, and other members of the gang were gathered in a graveyard

      discussing the previous night’s events. Newton decided he “felt like killing

      somebody” in retaliation for Duane being kicked out of the party, (id. at 80),




      1
       We held oral argument on this case on July 10, 2017, in the Court of Appeals Courtroom. We thank
      counsel for their oral advocacy.
      2
       This appeal concerns Newton’s second, or successive, petition for post-conviction relief. We refer to the
      transcript from the Change of Plea Hearing held October 16, 1995, as “Plea Hr’g Tr.” We refer to the
      transcript from the December 29, 1995, Sentencing Hearing as “Sent. Tr.” We refer to the transcript from the
      July 7, 2016, hearing on Newton’s successive petition for post-conviction relief as “Tr.” We refer to all
      appendices from Newton’s former post-conviction relief appeal, Appellate Case No. 18S00-0804-CR-00151,
      as “CR-151 App.” Finally, we refer to all appendices from Newton’s current successive post-conviction
      appeal, Appellate Case No. 18A05-1612-PC-2817, as “PC-2817 App.”

      Court of Appeals of Indiana | Opinion 18A05-1612-PC-2817 | September 6, 2017                   Page 2 of 35
      and said he was “hyped and wanted to get revenge.” (Id.) Newton borrowed a

      handgun from another gang member, Scott Turner (“Scott”). Duane agreed to

      participate in Newton’s idea, and their friend Chad Wright (“Wright”) agreed

      to drive them.


[4]   In the early morning hours of Sunday, September 25, 1994, Wright drove

      Newton and Duane to Ball State’s campus. Newton and Duane spotted Coyle,

      a Ball State student whom they did not know, walking alone near the

      university’s campus. Newton and Duane ran up to Coyle and forced Coyle

      into Wright’s car. Once Coyle was in the car, Newton and Duane attempted to

      rob him, but he had no money. They took Coyle to an alley where Newton

      shot Coyle in the back of the head, killing him. 3 Police found Coyle’s body at

      approximately 2:46 A.M. on Sunday, September 25, 1994, in the alley where he

      was shot.


[5]   After the murder, Newton and the others retreated to a friend’s house where

      Scott was staying. Newton was “smiling” and told Scott he “shot someone.”

      (Id. at 82.) Newton returned the gun to Scott and requested he destroy it. Scott

      attempted to destroy the gun by throwing the grips out of a car window,

      throwing some parts of the gun into the White River, and putting the remainder




      3
       After Newton shot Coyle in the back of the head, Duane also shot Coyle in the head. Duane was charged
      and proceeded to a jury trial on the same charges filed against Newton. Duane was convicted of murder,
      Class B felony criminal confinement, and Class A felony attempted robbery resulting in serious bodily injury,
      and the trial court sentenced Duane to LWOP for murder. Our Indiana Supreme Court affirmed Duane’s
      convictions. Turner v. State, 682 N.E.2d 491 (Ind. 1997).

      Court of Appeals of Indiana | Opinion 18A05-1612-PC-2817 | September 6, 2017                     Page 3 of 35
      of the gun in the Prairie Creek Reservoir. A few days later, Newton confessed

      to the murder.


[6]   On October 19, 1994, the State charged Newton under Cause Number 18D01-

      9410-CF-46 with murder, a felony, 4 Class B felony criminal confinement, 5 Class

      A felony conspiracy to commit robbery resulting in serious bodily injury, 6 and

      Class A felony attempted robbery resulting in seriously bodily injury. 7 The

      State requested the court impose the death penalty based on the facts Newton

      intentionally killed Coyle: (1) “while committing or attempting to commit

      robbery against [Coyle],” and (2) “while committing or attempting to commit

      criminal gang activity by intentionally actively participating in a criminal

      gang.” (CR-151 App. Vol. 1 at 46.)


[7]   Initially, Newton pled not guilty. In November 1994, Newton filed a petition

      alleging he was “mentally retarded” as defined by Indiana Code section 35-36-

      9-2 (1994) and requested the court dismiss the death penalty against him.

      Additionally, Newton filed notice of his intent to use the defense of mental

      disease or defect under Indiana Code section 35-41-3-6 (1984). Three court-

      appointed mental health experts and a neuropsychologist examined Newton.

      Based on their reports, in September 1995, the court determined Newton was




      4
          Ind. Code § 35-42-1-1(1) (1993).
      5
          Ind. Code § 35-42-3-3(1) (1989).
      6
          Ind. Code §§ 35-42-5-1(1) (1984); 35-41-5-2 (1977).
      7
          Ind. Code §§ 35-42-5-1(1) (1984); 35-41-5-1 (1977).


      Court of Appeals of Indiana | Opinion 18A05-1612-PC-2817 | September 6, 2017   Page 4 of 35
       “not a mentally retarded individual” under the statute, (CR-151 App. Vol. 4 at

       773-76), and denied Newton’s request to dismiss the death penalty allegation.


[8]    In October 1995, Newton’s counsel negotiated a plea agreement with the State.

       The terms of the plea agreement provided Newton would plead guilty to

       murder and serve a sentence of LWOP therefor, in exchange for the State’s

       dismissal of its request Newton receive the death penalty. The agreement

       further provided Newton’s sentences for confinement, conspiracy to commit

       robbery, and attempted robbery would be determined by the trial court.


[9]    On October 16, 1995, the court held a hearing on Newton’s change of plea.

       The court questioned Newton thoroughly to ensure his understanding of the

       plea agreement, noted it would order a presentence investigation report, and

       “only after receiving and reviewing that report” would the court “decide

       whether or not to accept the plea agreement.” (Plea Hr’g Tr. at 40.)


[10]   On December 29, 1995, the court held a sentencing hearing. The court heard

       testimony from Newton’s mother Peggy Newton, Scott, and Detective Paul

       Singleton of the Muncie Police Department. The court also heard statements

       from members of Coyle’s family and Erica Miller, Coyle’s girlfriend. The court

       heard counsels’ arguments on mitigating and aggravating circumstances. The

       court made findings regarding mitigating and aggravating factors before

       sentencing Newton. The court accepted the plea agreement and, in accordance

       with that agreement, sentenced Newton to LWOP for Coyle’s murder. The

       trial court sentenced Newton to forty-five years for Class A felony conspiracy to


       Court of Appeals of Indiana | Opinion 18A05-1612-PC-2817 | September 6, 2017   Page 5 of 35
       commit robbery and twenty years for Class B felony criminal confinement. 8

       The court ordered those sentences served consecutive to each other and to the

       LWOP sentence. Newton did not, at that time, file a direct appeal from his

       sentencing.


[11]   In October 2001, Newton filed a petition for post-conviction relief alleging

       ineffective assistance of counsel and involuntary guilty plea. The post-

       conviction court held a hearing on July 18, 2002, and denied Newton relief on

       October 21, 2002. Newton did not appeal that decision.


[12]   On April 9, 2007, Newton filed a “Verified Petition for Permission to File a

       Belated Notice of Appeal,” (CR-151 App. Vol. 6 at 1134) (“First Belated

       Petition”), under Indiana Post-Conviction Rule 2 from the trial court’s

       December 29, 1995, sentencing order. The trial court appointed counsel to

       represent Newton. On September 6, 2007, the court held a hearing on

       Newton’s First Belated Petition, and on October 5, 2007, the court denied the

       petition. Newton did not perfect an appeal of the denial of that petition within

       thirty days as required by Indiana Appellate Rule 9(A)(1).


[13]   Then, on November 15, 2007, Newton filed a “Request for Permission to File a

       Belated Appeal,” (id. at 1182) (“Second Belated Petition”), from the court’s

       October 5 denial of his First Belated Petition, stating “it was through




       8
        The court determined the attempted robbery charge “merged” with the conspiracy to commit robbery
       conviction, and it dismissed the attempted robbery charge. (Sent. Tr. at 127.)

       Court of Appeals of Indiana | Opinion 18A05-1612-PC-2817 | September 6, 2017               Page 6 of 35
       inadvertence and mistake of this Public Defender that a Notice of Appeal was

       not filed in a timely manner.” (Id.) The trial court initially granted Newton’s

       Second Belated Petition, and on December 3, 2007, Newton filed that notice of

       appeal. But then, on December 10, 2007, the trial court sua sponte entered an

       order setting aside its order granting Newton’s Second Belated Petition, finding

       it lacked authority under Post Conviction Rule 2 to grant the Second Belated

       Petition. Newton proceeded with appeal of the trial court’s December 10 denial

       of his Second Belated Petition from the trial court’s October 5 denial of First

       Belated Petition. Our Indiana Supreme Court affirmed the trial court’s order

       setting aside its grant of Newton’s Second Belated Petition. Newton v. State, 894

       N.E.2d 192 (Ind. 2008).


[14]   On June 28, 2013, Newton filed, pro se, a petition for permission to file a

       Successive Verified Petition for Post-Conviction Relief in the Indiana Court of

       Appeals under Cause Number 18A02-1307-SP-580. (PC-2817 App. Vol. 2 at

       32-33.) Newton claimed his LWOP sentence had become unconstitutional

       under the changed legal landscape regarding sentences of LWOP for juveniles,

       and thus his sentence should be modified. On July 22, 2013, our Court granted

       permission for Newton to file his successive petition for post-conviction relief.


[15]   Newton filed his successive petition in the trial court on September 11, 2013.

       The State filed its answer on September 17, 2013. Indiana Deputy Public

       Defender Joanna Green entered her appearance on Newton’s behalf on

       September 19, 2013, and she notified the court of her inability to investigate

       Newton’s case at that time due to her caseload. Newton requested the court

       Court of Appeals of Indiana | Opinion 18A05-1612-PC-2817 | September 6, 2017   Page 7 of 35
       stay all proceedings until counsel was ready to proceed. The court granted

       Newton’s request to stay the proceedings.


[16]   On February 1, 2016, Newton, via counsel, filed an amended successive

       petition for post-conviction relief. The court held a hearing on Newton’s

       petition on July 7, 2016. At the hearing, Newton’s counsel argued Newton

       “has matured and shown moral growth” while in prison, (Tr. at 4), and offered

       evidence of Newton’s extensive participation in a Shakespeare for Offenders

       program during his time in prison. On December 7, 2016, the trial court denied

       Newton’s successive request for post-conviction relief.



                                   Discussion and Decision
[17]   “The petitioner in a post-conviction proceeding bears the burden of establishing

       grounds for relief by a preponderance of the evidence.” Humphrey v. State, 73

       N.E.3d 677, 681 (Ind. 2017). “When appealing 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,

       the petitioner must show the evidence leads “unerringly and unmistakably to a

       conclusion opposite that reached by the post-conviction court.” Id. We do not

       defer to the post-conviction court’s legal conclusions, but “a post-conviction

       court’s findings and judgment will be reversed only upon a showing of clear

       error—that which leaves us with a definite and firm conviction that a mistake

       has been made.” Id. at 682.



       Court of Appeals of Indiana | Opinion 18A05-1612-PC-2817 | September 6, 2017   Page 8 of 35
[18]   Post-conviction proceedings do not afford defendants the opportunity for a

       “super-appeal.” Conner v. State, 711 N.E.2d 1238, 1244 (Ind. 1999), reh’g denied,

       cert. denied sub nom Conner v. Indiana, 531 U.S. 829 (2000). “Rather, post-

       conviction proceedings provide defendants the opportunity to raise issues that

       were not known at the time of the original trial or that were not available to the

       defendant on direct appeal.” Id. They are not a substitute for direct appeals,

       but “provide a narrow remedy for subsequent collateral challenges to

       convictions.” Id. All grounds for relief available to a petitioner must be raised

       in his original petition. Ind. Post-Conviction R. 1(8). “Claims that could have

       been, but were not, raised in earlier proceedings and otherwise were not

       properly preserved are procedurally defaulted; we do not authorize the filing of

       successive petitions raising forfeited claims.” Matheney v. State, 834 N.E.2d 658,

       662 (Ind. 2005). “Claims that have already been decided adversely are barred

       from re-litigation in successive post-conviction proceedings by the doctrine of

       res judicata.” Id.


                          I. Waiver of Eighth Amendment Claim

[19]   We begin with the post-conviction court’s finding, and the State’s argument,

       that Newton waived his right to challenge the constitutionality of his LWOP

       sentence when he voluntarily entered a plea agreement that required he serve a

       sentence of LWOP. Newton claims he could not have waived a right “that was




       Court of Appeals of Indiana | Opinion 18A05-1612-PC-2817 | September 6, 2017   Page 9 of 35
       unknown or unavailable to him at the time he pled guilty.” 9 (Appellant’s Br. at

       17.)


[20]   Newton agreed to plead guilty and serve a sentence of LWOP in exchange for

       the State agreeing to dismiss its request for the death penalty. In challenging

       the validity of this plea agreement, Newton argues, because subsequent

       statutory revision and case law rendered the death penalty an illegal sentence

       for juvenile offenders, he did not receive any benefit from his plea bargain.

       Compare Ind. Code § 35-50-2-3(b)(1) (1995) with Ind. Code § 35-50-2-3(b)(1)

       (2002) (changing the statutorily-required age from sixteen to eighteen for death

       sentence to be available as punishment); see also Roper v. Simmons, 543 U.S. 551,

       125 S. Ct. 1183 (2005) (rendering death penalty unconstitutional punishment

       for juveniles). We are unpersuaded by Newton’s argument.


[21]   In Stites v. State, our Indiana Supreme Court held “a defendant may not enter a

       plea agreement calling for an illegal sentence, benefit from that sentence, and




       9
         Other courts have addressed the issue of waiver of this particular constitutional claim and have reached
       varying results. Some held the plea agreement did not waive the constitutional claim. See, e.g., Moore v. State,
       749 S.E.2d 660, 661 (Ga. 2013) (holding defendant, who avoided death sentence by voluntarily entering into
       plea agreement in which he consented to imposition of LWOP and waived all rights to post-conviction
       review, did not “waive or ‘bargain away’ right to challenge an illegal and void sentence”); Malvo v. Mathena,
       __ F. Supp. 3d __, No. 2:13-CV-375, 2017 WL 2462188, at *11 (E.D. Va. May 26, 2017) (concluding, in
       order to find petitioner, a juvenile offender, knowingly and intelligently waived his right to challenge his
       LWOP sentence, the court “would have to find Petitioner implicitly or indirectly waived the Eighth
       Amendment right announced in Miller” when he agreed to be sentenced to LWOP, which was “not likely”
       “given the fact petitioner was sentenced more than eight years before Miller”), appeal docketed, No. 17-6758
       (4th Cir. Jun 14, 2017). Others held the plea agreement waived the constitutional claim. See, e.g., Dingle v.
       Stevenson, 840 F.3d 171, 175 (4th Cir. 2016) (juvenile defendant who chose to plead guilty and serve life with
       parole in order to avoid death penalty or LWOP received the “present benefit” under the law as it existed at
       the time, and Roper did not undermine the voluntariness of his plea), cert. denied, 137 S. Ct. 2094, 197 L.
       Ed.2d 897 (2017).

       Court of Appeals of Indiana | Opinion 18A05-1612-PC-2817 | September 6, 2017                      Page 10 of 35
       then later complain that it was an illegal sentence.” 829 N.E.2d 527, 529 (Ind.

       2005), reh’g denied. Newton claims the Stites rationale does not apply to him

       because he “did not receive a significant benefit” through his plea bargain by

       “avoiding . . . a sentence he would have been ineligible for seven years later.”

       (Appellant’s Br. at 17.) However, since Stites, we have made clear a petitioner

       receives the benefit of a plea agreement at the time the agreement was entered,

       and cannot later challenge the sentence as illegal, despite later case law that

       would have rendered the sentence illegal. See Fowler v. State, 977 N.E.2d 464,

       468 (Ind. Ct. App. 2012), aff’d on reh’g, 981 N.E.2d 623 (Ind. Ct. App. 2013),

       trans. denied.


[22]   In Fowler, the State charged Fowler with felony unlawful possession of a

       firearm by a serious violent felon along with a host of other charges. Id. at 465-

       66. Fowler entered into a plea agreement wherein he agreed to plead guilty to

       the unlawful possession of a firearm charge and a habitual offender

       enhancement, and in exchange, the State dismissed the other charges and

       Fowler’s sentence was capped at thirty-five years. Id. at 466. The trial court

       ultimately sentenced Fowler to thirty years: fifteen for the firearm charge and

       fifteen for the habitual offender enhancement. Id. Subsequently, our Indiana

       Supreme Court held “a defendant convicted of unlawful possession of a firearm

       by a serious violent felon may not have his or her sentence enhanced under the

       general habitual offender statute by proof of the same felony used to establish

       that the defendant was a ‘serious violent felon.’” Mills v. State, 868 N.E.2d 446,




       Court of Appeals of Indiana | Opinion 18A05-1612-PC-2817 | September 6, 2017   Page 11 of 35
       450 (Ind. 2007). Fowler then filed a petition for post-conviction relief asserting

       his sentence was illegal. That petition was denied.


[23]   In our opinion affirming the denial of Fowler’s petition for post-conviction

       relief, we cited Stites and held that, even if Fowler’s sentence would have been

       illegal under the Mills rule, Fowler forfeited the right to challenge it by entering

       into his plea agreement. Id. at 466-467. In so holding, “we decline[d] Fowler’s

       invitation to measure Fowler’s ‘benefit’ at a time after he entered into the plea

       agreement,” id. at 467, because at the time he entered into the agreement, “he

       faced as many as fifty-six years and he bargained for a maximum of thirty-five.”

       Id. In support of our position, we cited the general principle of contract law that

       “all applicable law in force when the agreement is made impliedly forms a part of

       the agreement without any statement to that effect.” Id. at 468 (citing Ethyl

       Corp. v. Forcum-Lannon Assocs., Inc., 433 N.E.2d 1214, 1220 (Ind. Ct. App.

       1982)) (emphasis added). We thus concluded that, because Fowler received a

       benefit at the time he entered into the plea bargain, he could not later challenge

       the sentence as illegal. Id.


[24]   The same principle applies here. At the time Newton entered into the plea

       agreement, Newton could have been sentenced to death. See Ind. Code § 35-50-

       2-3(b)(1) (1994). Newton received a very significant benefit because the State

       dismissed its request for the death penalty. Put differently, Newton gained the

       certainty, at that time, of knowing he would not be put to death. Although this

       plea bargain would have been illusory under the subsequent version of section

       35-50-2-3, this fact is of no consequence because Newton received the benefit of

       Court of Appeals of Indiana | Opinion 18A05-1612-PC-2817 | September 6, 2017   Page 12 of 35
       his bargain at the time he entered into the plea agreement. See Fowler, 977

       N.E.2d at 468 (“As Fowler received a benefit at the time he entered into his

       plea bargain, he may not now challenge the sentence as illegal.”).


[25]   Nonetheless, we acknowledge “Newton’s sentence has never received appellate

       scrutiny,” see Newton, 894 N.E.2d at 195 (Rucker, J., dissenting), and “the

       appellate rules and legal neglect have conspired” against Newton obtaining

       such review. Id. at 193 (Shepard, C.J., concurring). Given the important

       interest at stake here—the possibility that Newton’s sentence of LWOP violates

       the Eighth Amendment’s prohibition of cruel and unusual punishment—we

       choose to exercise our appellate discretion and address the merits of the issue.

       See In re D.J. v. Indiana Dep’t of Child Servs., 68 N.E.3d 574, 579 (Ind. 2017)

       (reviewing courts have discretionary authority over the appellate rules, which

       “allows us to achieve our preference for deciding cases on their merits rather

       than dismissing them on procedural grounds”) (internal quotations omitted).


                II. Constitutionality of Newton’s LWOP Sentence

[26]   “The Eighth Amendment’s prohibition of cruel and unusual punishment

       ‘guarantees individuals the right not to be subjected to excessive sanctions.’”

       Miller v. Alabama, 567 U.S. 460, 469, 132 S. Ct. 2455, 2463, (2012) (quoting

       Roper, 543 U.S. at 560, 125 S. Ct. at 1190). That right “flows from the basic

       precept of justice that punishment for crime should be graduated and

       proportioned to both the offender and the offense.” Id.



       Court of Appeals of Indiana | Opinion 18A05-1612-PC-2817 | September 6, 2017   Page 13 of 35
               In order to determine whether a punishment is cruel and
               unusual, the [United States] Supreme Court “look[s] beyond
               historical conceptions to the evolving standards of decency that
               mark the progress of a maturing society.” The basic concept
               underlying the Eighth Amendment is nothing less than the
               dignity of man. While the State has the power to punish, the
               Amendment stands to assure that this power be exercised within
               the limits of civilized standards. The applicability of what is
               cruel and unusual punishment changes “as the basic mores of
               society change.”


       Conley v. State, 972 N.E.2d 864, 877 (Ind. 2012) (internal citations omitted).


[27]   “[C]hildren are constitutionally different from adults for purposes of

       sentencing,” and “these differences result from children’s diminished culpability

       and greater prospects of reform.” Montgomery v. Louisiana, 136 S. Ct. 718, 733

       (2016). Therefore, it is cruel and unusual punishment for an individual under

       the age of eighteen to be sentenced to LWOP for a non-homicide crime.

       Graham v. Florida, 560 U.S. 48, 130 S. Ct. 2011 (2010)). In addition, sentencing

       schemes that impose mandatory LWOP on juveniles are unconstitutional under

       the Eighth Amendment. Miller, 567 U.S. at 487, 132 S. Ct. at 2473; Conley, 972

       N.E.2d at 877. Finally, under the Eighth Amendment, before sentencing a

       juvenile to LWOP, the sentencing judge must take into account “how children

       are different, and how those differences counsel against irrevocably sentencing

       them to a lifetime in prison.” Montgomery, 136 S. Ct. at 734. The Supreme

       Court created these special rules for juveniles because a sentence of LWOP is a

       disproportionate sentence for “all but the rarest of juvenile homicide offenders,”



       Court of Appeals of Indiana | Opinion 18A05-1612-PC-2817 | September 6, 2017   Page 14 of 35
       those whose crimes reflect “irreparable corruption” rather than the “unfortunate

       yet transient immaturity of youth.” Id.


[28]   Newton argues his LWOP sentence violates the Eighth Amendment of the

       United States Constitution under the recent United States Supreme Court

       decisions of Miller and Montgomery. The State argues the holdings of Miller and

       Montgomery do not apply to Newton’s sentence because Newton agreed to serve

       a LWOP sentence under the terms of a plea agreement, and thus his sentence

       does not fall within the meaning of “mandatory” in Miller and Montgomery. To

       decide these issues, we begin with a detailed review of those cases.


                                           1) Miller and Montgomery


[29]   In Miller, the U.S. Supreme Court held statutory sentencing schemes requiring

       mandatory life without parole for juvenile homicide offenders violate the

       Eighth Amendment’s prohibition on “cruel and unusual punishments.” 567

       U.S. at 465, 132 S. Ct. at 2460. There, the Court addressed two cases, one from

       Alabama and one from Arkansas, each involving a fourteen-year-old convicted

       of murder and sentenced to a mandatory term of LWOP. Id. In the Arkansas

       case, the petitioner, Jackson, was involved in a video store robbery that resulted

       in one of his co-conspirators shooting and killing the video store clerk. Id. at

       465-66, 132 S. Ct. at 2461. In the Alabama case, the petitioner, Miller, along

       with his friend, beat Miller’s neighbor to death and set fire to his trailer after

       drinking and using drugs. Id. at 468, 132 S. Ct. at 2462. Both Miller and

       Jackson were tried and convicted by juries, and their respective trial courts


       Court of Appeals of Indiana | Opinion 18A05-1612-PC-2817 | September 6, 2017   Page 15 of 35
       imposed statutorily mandated sentences of LWOP. Both states’ Supreme

       Courts upheld the LWOP sentences.


[30]   The U.S. Supreme Court granted certiorari and declared mandatory LWOP

       sentencing schemes are unconstitutional under the Eighth Amendment. In so

       holding, the Court rested its analysis on a line of decisions that included Roper,

       543 U.S. 551, 125 S. Ct. 1183 (holding it was cruel and unusual punishment to

       sentence an individual under the age of eighteen to death), and Graham, 560

       U.S. 48, 130 S. Ct. 2011 (declaring it is cruel and unusual punishment to

       sentence an individual under the age of eighteen to LWOP for a non-homicide

       crime).


[31]   The Court noted Roper and Graham collectively established that “children are

       constitutionally different from adults for purposes of sentencing,” 567 U.S. at

       471, 132 S. Ct. at 2464, and that “[b]ecause juveniles have diminished

       culpability and greater prospects for reform, . . . they are less deserving of the

       most severe punishments.” Id. The Court then noted its reliance on not only

       common sense, but “developments in psychology science and brain science,”

       id., to support its opinion that three fundamental differences exist between

       juvenile and adult minds: children’s “transient rashness, proclivity for risk, and

       inability to assess consequences.” Id. The Court noted these “distinctive

       attributes of youth diminish the penological justifications for imposing the

       harshest sentences on juvenile offenders, even when they commit terrible

       crimes.” Id. at 472, 132 S. Ct. at 2465. “Because the heart of the retribution



       Court of Appeals of Indiana | Opinion 18A05-1612-PC-2817 | September 6, 2017   Page 16 of 35
       rationale relates to an offender’s blameworthiness,” the Court reasoned, “the

       case for retribution is not as strong with a minor as an adult.” Id.


[32]   The Court then applied these previously-adopted rationales to demonstrate the

       “flaws of imposing mandatory LWOP sentences on juvenile homicide

       offenders.” Id. at 476, 132 S. Ct. at 2467. The Court stated:


               Mandatory life without parole for a juvenile precludes
               consideration of his chronological age and its hallmark features –
               among them, immaturity, impetuosity, and failure to appreciate
               risks and consequences. It prevents taking into account the
               family and home environment that surrounds him – and from
               which he cannot usually extricate himself – no matter how brutal
               or dysfunctional. It neglects the circumstances of the homicide
               offense, including the extent of his participation in the conduct
               and the way familial and peer pressures may have affected him.
               Indeed, it ignores that he might have been charged and convicted
               of a lesser offense if not for incompetencies associated with youth
               – for example, his inability to deal with police officers or
               prosecutors (including on a plea agreement) or his incapacity to
               assist his own attorneys. And finally, this mandatory
               punishment disregards the possibility of rehabilitation even when
               the circumstances most suggest it.


       Id. at 477-78, 132 S. Ct. at 2468 (internal citations omitted).


[33]   Applying this reasoning to the two cases before it, the Court noted both Jackson

       and Miller were only fourteen years old and both had troubled childhoods,

       which were facts that “[a]t the least, a sentencer should look at” before

       imposing a LWOP sentence. Id. at 478, 132 S. Ct. at 2469. The Court

       reasoned: “By making youth (and all that accompanies it) irrelevant to


       Court of Appeals of Indiana | Opinion 18A05-1612-PC-2817 | September 6, 2017   Page 17 of 35
       imposition of that harshest prison sentence, such a scheme poses too great a risk

       of disproportionate punishment.” Id. at 479, 132 S. Ct. at 2479. In remanding

       both cases, the Court noted, “a judge or jury must have the opportunity to

       consider mitigating circumstances before imposing the harshest possible penalty

       for juveniles,” and concluded the mandatory sentencing schemes therefore

       “violate[d] [that] principle of proportionality, and so the Eighth Amendment’s

       ban on cruel and unusual punishment.” Id. at 489, 132 S. Ct. at 2475.


[34]   Last year, in Montgomery, the U.S. Supreme Court held the rule announced in

       Miller—that a sentencing scheme mandating LWOP for juvenile homicide

       offenders violates the Eighth Amendment—is a substantive rule of

       constitutional law, and thus is retroactive. 136 S. Ct. at 736. In Montgomery,

       the petitioner, Montgomery, was seventeen years old in 1963 when he killed a

       deputy sheriff. Id. at 725. Montgomery was tried and found “guilty without

       capital punishment” by a jury. Id. Under Louisiana law, the verdict required

       the trial court to impose an LWOP sentence, which it so imposed. Id. at 726.

       After the U.S. Supreme Court issued its Miller decision, Montgomery sought

       review of his mandatory LWOP sentence by filing a motion to correct an illegal

       sentence. Id. The trial court denied Montgomery’s motion, finding “Miller is

       not retroactive on collateral review.” Id.


[35]   In its review of the trial court’s decision, the U.S. Supreme Court determined

       Miller’s prohibition on mandatory LWOP announced a new substantive rule

       that must be retroactive under the federal Constitution. Id. at 732. The Court

       noted that, although Miller’s holding has a “procedural component,” id. at 734,
       Court of Appeals of Indiana | Opinion 18A05-1612-PC-2817 | September 6, 2017   Page 18 of 35
       “Miller . . . did more than require a sentencer to consider a juvenile offender’s

       youth before imposing life without parole.” Id.


               [I]t established that the penological justifications for life without
               parole collapse in light of “the distinctive attributes of youth.”
               Even if a court considers a child’s age before sentencing him or
               her to a lifetime in prison, that sentence still violates the Eighth
               Amendment for a child whose crime reflects “unfortunate yet
               transient immaturity.”


       Id. (internal citations omitted). The Court thus reasoned, because Miller

       determined that sentencing a child to LWOP is excessive “for all but the rare

       juvenile offender whose crime reflects irreparable corruption,” id., Miller

       established a substantive rule because it established “a class of defendants

       because of their status,” id. (emphasis added), for whom LWOP sentences were

       unconstitutional: “juvenile offenders whose crimes reflect the transient

       immaturity of youth.” Id. The Court explained, “when the Constitution

       prohibits a particular form of punishment for a class of persons, an affected

       prisoner receives a procedure through which he can show that he belongs to a

       protected class.” Id. at 735. The Court therefore reasoned, “The hearing does

       not replace but rather gives effect to Miller’s substantive holding that life without

       parole is an excessive sentence for children whose crimes reflect transient

       immaturity.” Id.


[36]   Applying this framework to Montgomery’s circumstances, the Court noted

       Montgomery’s submission of his “evolution from a troubled, misguided youth

       to a model member of the prison community.” Id. The Court concluded

       Court of Appeals of Indiana | Opinion 18A05-1612-PC-2817 | September 6, 2017   Page 19 of 35
       “prisoners like Montgomery must be given the opportunity to show their crime

       did not reflect irreparable corruption; and if it did not, their hope for some years

       of life outside prison walls must be restored.” Id.


                              2) Indiana’s Application of Miller Principles


[37]   Our Indiana Supreme Court applied Miller when addressing the constitutional

       implications of LWOP for a seventeen-year-old convicted of murder in Conley,

       972 N.E.2d at 864. 10 In Conley, seventeen-and-a-half-year-old Conley brutally

       murdered his ten-year old brother while babysitting him. Id. at 869. Conley




       10
         We also note in 2014, our Indiana Supreme Court discussed Miller in the context of inappropriate
       sentencing under Indiana Appellate Rule 7(B) in two companion cases: Brown v. State, 10 N.E.3d 1 (Ind.
       2014), and Fuller v. State, 9 N.E.3d 653 (Ind. 2014). For reasons set forth below, we will not undertake to
       analyze Newton’s sentence under Indiana Appellate Rule 7(B). See infra n.13. However, Brown and Fuller
       bear mentioning because, in those cases, our Indiana Supreme Court applied the Miller reasoning.
       Brown and Fuller arose out of an incident in which three teenagers, sixteen-year-old Brown, fifteen-year-old
       Fuller, and eighteen-year-old Smith murdered Stephen Streeter and his girlfriend, Keya Prince, while robbing
       the couple in their home. The trial court sentenced both Brown and Fuller to two maximum terms of sixty-
       five years (one for each murder) and to a maximum term of twenty years for Class B felony robbery. The
       court ordered the sentences served consecutively, resulting in an aggregate 150-year sentence for both Brown
       and Fuller. Brown, 10 N.E.3d at 3; Fuller, 9 N.E.3d at 655.
       In reducing both of their sentences, our Indiana Supreme Court gave significant weight to Brown’s young age
       of sixteen and Fuller’s young age of fifteen. Citing Miller’s holding that mandatory LWOP sentences for
       those under eighteen are unconstitutional, the Court noted Miller’s “general recognition that juveniles are less
       culpable than adults and therefore are less deserving of the most severe punishments.” 10 N.E.3d at 7; 9
       N.E.3d at 657. The Court then reasoned, “similar to a life without parole sentence, a 150-year sentence
       forswears altogether the rehabilitative ideal.” 10 N.E.3d at 8; 9 N.E.3d at 658. The Court also found a
       “particularly important” factor in that while Brown was an accomplice, Fuller was “one of the actual
       shooters.” 9 N.E.3d at 658. The Court reduced Brown’s murder sentences to sixty years for each murder, to
       be served concurrent to each other and consecutive with the twenty-year sentence for robbery, resulting in an
       aggregate sentence of eighty years. 10 N.E.3d at 8. The Court reduced Fuller’s sentence to the maximum
       sixty-five years for each murder, to be served concurrent to each other and consecutive to the twenty-year
       sentence for robbery, for an aggregate sentence of eighty-five years. 9 N.E.3d at 659.

       Court of Appeals of Indiana | Opinion 18A05-1612-PC-2817 | September 6, 2017                      Page 20 of 35
       pleaded guilty to murder without a plea agreement, and following a sentencing

       hearing, the trial court sentenced Conley to LWOP.


[38]   On direct appeal, the Indiana Supreme Court affirmed Conley’s LWOP

       sentence, holding a sentence of LWOP for a juvenile does not violate the

       Eighth Amendment’s prohibition of cruel and unusual punishment. 11 Id. at

       879. In so holding, the Court noted the U.S. Supreme Court’s explicit

       statement in Roper, that while sentencing someone under the age of eighteen to

       death was cruel and unusual punishment, “life without parole was still a viable

       sentence for juveniles, noting the LWOP sentence was a severe enough

       sanction to not need the death penalty for juveniles.” Id. (citing Roper, 543 U.S.

       at 572, 125 S. Ct. at 1183). The Court reasoned, “the implication of Roper then,

       is that a sentence of life without parole for a juvenile convicted of homicide is

       constitutional.” Id.


[39]   The Court “underscored” its position that the Miller decision “deal[t] solely

       with the issue of mandatory sentencing schemes requiring life-without-parole

       for juveniles,” id. at 879, and that, in fact, the U.S. Supreme Court specifically

       noted “Indiana was one of fifteen states where life without parole was

       discretionary.” Id. Thus, the Court reasoned, its holding that an LWOP

       sentence in Indiana is not unconstitutional “was not altered by Miller.” Id.




       11
         In Conley, our Indiana Supreme Court also found Conley’s LWOP sentence constitutional under the
       Indiana Constitution. 972 N.E.2d at 880.

       Court of Appeals of Indiana | Opinion 18A05-1612-PC-2817 | September 6, 2017              Page 21 of 35
             3) Constitutionality of Newton’s LWOP Sentence under Miller and
                                        Montgomery

[40]   Before we can undertake a discussion of whether Newton’s LWOP sentence is

       constitutional under Miller and Montgomery, we note the parties initially dispute

       whether Miller and Montgomery are even applicable to Newton’s particular

       circumstance. Newton characterizes his LWOP sentence as “mandatory,”

       (Appellant’s Br. at 15), and thus argues it is unconstitutional under Miller and

       Montgomery. The State argues, and the successive post-conviction court

       concluded, “the holding in Miller does not apply to [Newton’s] LWOP

       sentence” because he “was not sentenced under a mandatory sentencing

       scheme nor even a discretionary one[.]” (Appellee’s Br. at 26.)


[41]   Thus, we must first determine whether the scope of Miller and Montgomery

       extends to this case. That is, whether the rule established in Miller and

       Montgomery—that a sentencer must undergo individualized sentencing, taking

       into account a juvenile offender’s youth and its attendant characteristics before

       imposing LWOP on a juvenile—extends only to sentences imposed under

       mandatory sentencing schemes, or whether the rule is applicable anytime a

       juvenile will potentially serve LWOP, regardless of whether under a mandatory

       or discretionary sentencing scheme or by way of a plea agreement, so long as

       the offender had the “opportunity” to present mitigating circumstances.


[42]   We briefly note other courts have recently considered the limits of Miller and

       Montgomery. Some courts have interpreted the scope of Miller and Montgomery

       broadly, holding proportionality requires individualized sentencing anytime a

       Court of Appeals of Indiana | Opinion 18A05-1612-PC-2817 | September 6, 2017   Page 22 of 35
       court imposes an LWOP sentence, regardless of whether under a mandatory or

       discretionary sentencing scheme. See Commonwealth v. Batts, __ A.3d __, No. 45

       MAP 2016, 2017 WL 2735411 at *18 (Pa. June 26, 2017) (finding, “in the

       absence of the sentencing court reaching a conclusion, supported by competent

       evidence, that the defendant will forever be incorrigible, without any hope for

       rehabilitation,” a LWOP sentence is illegal); Malvo v. Mathena, __ F. Supp. 3d

       __, No. 2:13-CV-375, 2017 WL 2462188, at *3 (E.D. Va. May 26, 2017)

       (concluding “the rule announced in Miller applies to all situations in which

       juveniles receive a LWOP sentence,” regardless of whether imposed under

       mandatory or discretionary sentencing schemes), appeal docketed, No. 17-6758

       (4th Cir. Jun 14, 2017).


[43]   Other courts have construed Miller and Montgomery narrowly. For example, the

       Supreme Court of Virginia recently held Miller and Montgomery inapplicable

       where the Virginia sentencing scheme gave a juvenile offender the

       “opportunity” to present mitigating evidence at a hearing, but the offender

       agreed to the sentence through a plea bargain, forgoing the opportunity for the

       “certainty of a plea agreement.” See Jones v. Commonwealth, 795 S.E.2d 705, 713

       (Va. 2017), petition for cert. filed, (U.S., May 5, 2017) (No. 16-1337). In

       concluding Miller held that a judge or jury must merely have “the opportunity to

       consider mitigating circumstances before imposing the harshest possible penalty

       for juveniles,’” id. at 708, the Court expressly disagreed with the dissent’s

       position that “Montgomery requires a Miller hearing . . . regardless of whether the

       sentence is mandatory or discretionary.” Id. at 721.

       Court of Appeals of Indiana | Opinion 18A05-1612-PC-2817 | September 6, 2017   Page 23 of 35
[44]   We hold the rule announced in Miller and Montgomery is not applicable to the

       narrow circumstance, such as here, where a juvenile defendant agrees to serve

       LWOP pursuant to a plea agreement that is accepted by a trial court. While the

       Miller court concluded, “a judge or jury must have the opportunity to consider

       mitigating circumstances before imposing the harshest possible penalty for

       juveniles,” 567 U.S. at 489, 132 S. Ct. at 2475 (emphasis added), and the

       Montgomery court explained, “Miller requires a sentencer to consider a juvenile

       offender’s youth and attendant characteristics before determining that life

       without parole is a proportionate sentence,” 136 S. Ct. at 734, neither of those

       cases addresses the narrow circumstance at hand: Two parties agreeing the

       sentencing court—which would otherwise retain statutorily-provided discretion

       in imposing a sentence—would not have discretion at sentencing, because the

       sentence is provided in a plea agreement.


[45]   “A plea agreement is contractual in nature, binding the defendant, the State,

       and the trial court.” Jackson v. State, 968 N.E.2d 328, 332 (Ind. Ct. App. 2012).

       “Trial courts have discretion to accept or reject plea agreements.” Hunter v.

       State, 60 N.E.3d 284, 288 (Ind. Ct. App. 2016) (citing Pannarale v. State, 638

       N.E.2d 1247, 1248 (Ind. 1994)); Ind. Code § 35-35-3-3. However, once the trial

       court accepts a plea agreement, “it is strictly bound by its sentencing provision

       and is precluded from imposing any sentence other than required by the plea

       agreement.” Jackson, 968 N.E.2d at 332.


[46]   Here, Newton would have had an opportunity to present evidence of mitigating

       factors at his sentencing hearing prior to the court imposing the LWOP

       Court of Appeals of Indiana | Opinion 18A05-1612-PC-2817 | September 6, 2017   Page 24 of 35
       sentence. See Ind. Code § 35-38-1-7.1 (1994). However, Newton chose to

       forego this opportunity, when he agreed to plead guilty for the certainty of

       serving LWOP instead of the possibility of a death sentence. We agree with the

       State that Newton’s sentence here is not “mandatory” within the meaning of

       Miller. See Jones, at 795 S.E.2d at 711 (“Only where the General Assembly has

       prescribed a mandatory minimum sentence imposing an inflexible penalty has it

       divested trial judges of all discretion respecting punishment.”).


[47]   Even if we were to assume, in an abundance of caution, the rationale of Miller

       and Montgomery applies here, Newton nonetheless cannot demonstrate his

       sentence violates the Eighth Amendment because his sentencing court refused

       to accept his plea agreement calling for LWOP until it had given thorough

       consideration to whether the evidence demonstrated an LWOP sentence was

       proper for Newton.


[48]   At the change of plea hearing on October 16, 1995, the trial court emphatically

       explained it was up to the court’s discretion whether to accept the parties’ plea

       agreement. First, the court thoroughly questioned Newton to ensure his

       understanding of the charges against him and the terms of the plea agreement.

       The court also specifically asked Newton’s counsel whether there was “any

       reason to believe [Newton] did not understand the terms of the plea

       agreement,” (Plea Hr’g Tr. at 36), whether there had been “some consultation

       with family members,” (id. at 37), and whether Newton’s counsel was “satisfied

       . . . [he] had sufficient time to discuss the matter with [Newton’s] family and

       with [Newton].” (Id.) Finally, the court noted it would order a presentence

       Court of Appeals of Indiana | Opinion 18A05-1612-PC-2817 | September 6, 2017   Page 25 of 35
       investigation report, review it, and “only after receiving and reviewing that

       report” the court would “decide whether or not to accept the plea agreement.”

       (Id. at 40.) The court did note, however, if it accepted the plea agreement, it

       would be “bound to sentence [Newton] as the agreement provide[d].” (Id. at

       41.)


[49]   At the sentencing hearing, the trial court heard evidence on mitigating factors

       and specifically made findings regarding Newton’s youth and his prospect of

       rehabilitation prior to accepting the plea agreement. Newton submitted a

       mitigation timeline. The trial court heard testimony from Peggy, Newton’s

       mother, on Newton’s troubled childhood and the instability of Newton’s

       relationship with his father. Peggy testified in July 1994, roughly two months

       before Newton murdered Coyle, she moved homes with Newton’s stepfather

       and told Newton he could no longer live with her. (Sent. Tr. at 37.) She

       testified Newton was sexually molested by a relative from roughly “first

       through the third grade.” (Id. at 38.) She testified Newton was physically

       abused by his stepfather. (Id. at 42.) She also testified, at the age of twelve,

       Newton began running away from home and would sometimes be gone for

       “weeks at a time.” (Id. at 43.) Peggy admitted that, on occasion, she

       encouraged this behavior, and testified when Newton would call home, she

       would “tell him not to come home that day.” (Id. at 44.) Peggy testified

       Newton was involved with drug and alcohol counseling at a Youth Services

       Bureau, was on juvenile probation, and attended the Indiana Boys’ School from

       roughly the ages of ten to twelve. The court also heard testimony from


       Court of Appeals of Indiana | Opinion 18A05-1612-PC-2817 | September 6, 2017   Page 26 of 35
       Detective Paul Singleton, a police officer for the Muncie Police Department,

       and Scott, who was in the Fly Gang with Newton. Detective Singleton and

       Scott both testified about the Fly Gang’s activities generally and about the

       specific events leading to the murder.


[50]   After hearing evidence, the court asked counsel to present comments on issues

       that had formerly been taken under advisement, including “whether or not the

       submitted plea agreement should be accepted.” (Id. at 96.) Newton’s counsel

       urged the court to accept the plea agreement, citing mitigating circumstances

       that had “not been heretofore considered . . . that justif[ied] the plea

       agreement.” (Id. at 104-05.) Both Newton’s counsel and the prosecution made

       lengthy arguments encouraging the court to accept the plea agreement. After

       hearing testimony and comments from counsel, the court stated it would accept

       the plea agreement. The court said it would “incorporate all evidence offered

       on behalf of the Defendant up until now into the sentencing hearing along with

       [counsel’s] comments previously made[.]” (Id. at 128.)


[51]   Next, the court heard statements from Coyle’s mother, brother, father, and

       girlfriend. Newton’s counsel then made arguments on mitigating

       circumstances. Counsel argued “Newton’s growth and development

       psychologically has affected his adult psychology and personality[,]” (id. at

       174), his “criminal activity was caused by various psychological factors and

       alcohol-related factors that could be treated and would diminish with age,” (id.

       at 176), that “at a very young age, [Newton] exhibited signs of mental or

       emotional disturbance that went untreated,” (id. at 177), that, “if treated,

       Court of Appeals of Indiana | Opinion 18A05-1612-PC-2817 | September 6, 2017   Page 27 of 35
       [Newton] can be productive in prison society,” (id. at 177-78), and that Newton

       suffered from “serious personality disorders.” (Id. at 178.) Lastly, counsel

       argued Duane “used [Newton]” and was “the man responsible” for the crime.

       (Id. at 181.) Yet still, counsel acknowledged “it does not mean that [Newton]

       should get anything less than life without parole.” (Id. at 175.) After both sides

       presented arguments regarding mitigators and aggravators, the court gave

       Newton the opportunity to address the court before sentencing, but Newton

       declined the opportunity to do so.


[52]   The court noted, “in support of its conclusion this was an intentional killing

       while committing criminal gang activity,” (id. at 211), the court considered

       “evidence submitted at the change of plea hearing and today’s [sentencing]

       hearing.” (Id.) The court then stated:


               In any criminal sentence [the] Court considers, Mr. Newton, the
               risk as to whether or not you would commit other crimes, the
               nature and the circumstances of the crime that you have
               committed, your prior criminal record, if any, character and
               condition, whether or not the victim was less than 12 or at least
               65 years of age, whether you violated any type of protective
               order. Court also considers any oral or written statements made
               by the victim of the crime. In this case the Court has considered
               all those factors.


       (Id. at 212.)


[53]   Although the court acknowledged “in his written plea agreement, [Newton]

       [had] admitted the existence of both aforementioned aggravators and further

       admitted that those aggravators outweigh[ed] potential mitigators,” (id.), the
       Court of Appeals of Indiana | Opinion 18A05-1612-PC-2817 | September 6, 2017   Page 28 of 35
court was required to make a determination as to whether the aggravators

outweighed the mitigators in sentencing Newton for confinement and

conspiracy. The court then made the following comments about aggravating

circumstances:

        Court has considered and considered and considered the relative
        youth of this Defendant. Age is always considered in any
        sentencing hearing. It’s particularly troubling that one so young
        can commit such a vicious and unprovoked attack. You had
        time in this case, Mr. Newton, to contemplate your actions. You
        had time to avoid inflicting any injury at all on Christopher
        Coyle. This was not a killing done during the heat of battle or
        during any type of confrontation. What you did, Mr. Newton,
        was you coldly and deliberately executed Christopher Coyle.
        When I see such a total disregard for human life at such a young
        age it is, as Mr. Arnold points out, both shocking and it is to me
        indicative that if placed in a similar situation as this, you would
        respond in a similar manner.


        Secondly, the Court has considered whether or not this
        Defendant can be rehabilitated by incarceration in rehabilitative
        treatment. In assessing any person’s chance at rehabilitation[,]
        the Court must look to the Defendant’s past behavior. I also
        look, Mr. Newton, at what prior attempts at rehabilitation have
        been made. I consider whether or not a Defendant has
        voluntarily sought any rehabilitative treatment. In determining
        whether or not rehabilitation could be successful, it’s especially
        difficult to make that kind of determination when you’re dealing
        with a younger person. I don’t see any evidence that you have
        made any voluntary effort at rehabilitation. In most of your prior
        actions, Mr. Newton, you have acted both impulsively and
        unfortunately without regard for harm to any other people. You
        have displayed total resistance to any type of authority, and you
        have continually demonstrated disdain for the justice system in

Court of Appeals of Indiana | Opinion 18A05-1612-PC-2817 | September 6, 2017   Page 29 of 35
        its entirety. This Court cannot conclude that rehabilitation is a
        strong possibility here in your case. Consequently[,] the Court
        cannot find this to be a mitigating circumstance.


                                               *****


        This process of alleging aggravating circumstances in a murder
        case enables society to identify and distinguish those most
        heinous type of murders. This is one.


        Mr. Newton, this was the act of a coward. It was senseless and
        in a very real sense, as I pointed out, it was an execution. The
        tragedy is that the fact that this act is magnified by the fact that
        Christopher Coyle was minding his own business, he didn’t
        cause you any trouble. The only reason he was on the street, as
        his father has pointed out, trying to get a friend home safely [sic].
        This crime is aggravated even more by the impact it has had on
        our community and the community of Pendleton.


        Court is also aware of the impact this had on our students in this
        community only trying to get an education, and as we heard
        today, trying not to live in fear. I don’t think the students out
        there can ever feel the same about campus life.


        You made a conscious choice and a deliberate choice, and you
        made the choice to kill Christopher Coyle. When you made that
        choice, Mr. Newton, it seems to me that you have forfeited your
        right to be a part of our society. It seems to me this is precisely
        the kind of case the legislature had in mind when the life without
        parole statute was passed. Frankly[,] society should not have to
        put up with people like Mr. Newton.


        From what I’ve heard today and what I heard the last time we
        were in Court, Mr. Newton, it seems to me you were a bomb

Court of Appeals of Indiana | Opinion 18A05-1612-PC-2817 | September 6, 2017   Page 30 of 35
               waiting to explode. To lead a person into an alley and to put a
               bullet in his head and leave him there to die in the dirt takes a
               very different kind of person. It seems to the Court it takes a
               person filled with hate, and a person who is genuinely evil, and
               in my opinion, Mr. Newton, beyond rehabilitation.


       (Id. at 220-25.)


[54]   The court then noted it found as mitigating circumstances Newton’s age of

       seventeen at the time of the crimes, that the crimes were Newton’s first felony

       convictions, and that Newton had “a strong family support group.” (Id. at

       225.) The court also noted Newton “had been subjected to a dysfunctional

       family,” “poor parenting,” abuse, and a “lack of proper discipline.” (Id.)

       However, the court noted these mitigating circumstances were “slight” in

       comparison to the aggravating factors. (Id. at 225-26.)


[55]   After discussing the mitigating and aggravating circumstances, the court stated:

       “The issue still remains, Mr. Newton, as to whether or not life imprisonment

       without the possibility of parole [is] an appropriate punishment. Court

       concludes that it is an appropriate punishment.” (Id. at 226.) The court

       supported this conclusion by stating: “This was a thrill killing, this act was

       totally random, it was unprovoked, and it was senseless. It was also savage.

       Anyone who would commit such an act has stepped outside the bounds of

       civilized society and should not be welcomed back.” (Id.) The court noted

       Newton “demonstrated absolutely no regard for the consequences of any of

       [his] actions,” (id. at 227), “demonstrated no regard for human life,” (id.), “the

       risk that [Newton] would kill again is too great,” (id.), and that it was “a risk
       Court of Appeals of Indiana | Opinion 18A05-1612-PC-2817 | September 6, 2017   Page 31 of 35
       this community should not have to take.” (Id.) The court concluded “the only

       appropriate penalty for the offense of murder as alleged is a sentence of life

       imprisonment without parole.” (Id.)


[56]   Thus, in determining whether to accept the sentence of LWOP as punishment

       for Newton, the trial court underwent the very considerations the U.S. Supreme

       Court prescribed seventeen years later in Miller and twenty years later in

       Montgomery. The trial court explicitly made determinations, based on evidence,

       regarding Newton’s youth and its attendant characteristics, yet still reached the

       conclusion Newton should never be given the opportunity for parole. We note

       the U.S. Supreme Court was reluctant to impose a strict procedural requirement

       on courts in sentencing, such as requiring trial courts “to make a finding of fact

       regarding a child’s incorrigibility.” See Montgomery, 136 S. Ct. at 735 (“When a

       new substantive rule of constitutional law is established, this Court is careful to

       limit the scope of any attendant procedural requirement to avoid intruding

       more than necessary upon the States’ sovereign administration of their criminal

       justice systems.”). Nevertheless, because the trial court did in fact explicitly

       make those determinations here, we hold Newton’s sentence was safeguarded

       against any possibility it violated the Eighth Amendment of the Constitution.

       See id. (holding a sentencing hearing “does not replace but rather gives effect to

       Miller’s substantive holding that life without parole is an excessive sentence for

       children whose crimes reflect transient immaturity”).


[57]   Furthermore, to the extent Newton can now show he has rehabilitated himself

       while in prison, this does not render his sentence unconstitutional. The Miller

       Court of Appeals of Indiana | Opinion 18A05-1612-PC-2817 | September 6, 2017   Page 32 of 35
and Montgomery holdings require “[a] hearing where ‘youth and its attendant

characteristics’ are considered as sentencing factors to separate those juveniles

who may be sentenced to life without parole from those who may not.” 136 S.

Ct. at 735. Implicit in this holding is the notion that the individualized

determination, taking into account the prospect of rehabilitation, is made at the

time of sentencing. In Montgomery, the U.S. Supreme Court remanded

Montgomery’s case for resentencing because Montgomery was never given the

opportunity to present evidence that his crime did not reflect irreparable

corruption. However, here, unlike in Montgomery, Newton was given the

opportunity at sentencing to present evidence of his prospect for rehabilitation.

Because the trial court heard that evidence and made the individualized

determination at the sentencing hearing, it is irrelevant whether Newton has in

fact made progress towards rehabilitating himself while in prison. 12




12
  We also note Newton’s claim on appeal that the successive post-conviction court erred in excluding certain
evidence he submitted of his rehabilitation in prison. At the post-conviction hearing, Newton offered
multiple exhibits as evidence of his participation in the Shakespeare for Offenders program in the Special
Confinement Unit at Wabash Correctional Facility. The post-conviction court heard expert testimony from
James E. Aiken, a consultant in prison security management, regarding Newton’s rehabilitation in prison.
The trial court excluded other evidence, including workbooks Newton wrote in the Shakespeare for
Offenders program, and letters written to Newton from various individuals who were positively influenced by
Newton’s work.
Newton argues the excluded evidence showed his successful involvement in a prison program and that this
evidence was relevant to show his crime “was the product of transient youth rather than irreparable
corruption.” (Appellant’s Br. at 48.) However, we hold Newton’s sentence is not unconstitutional because
the trial court complied with the procedural safeguards mandated by Miller and Montgomery before imposing
LWOP on Newton. As the evidence Newton sought to admit would not have been available to the
sentencing court, we cannot find the post-conviction court erred in excluding irrelevant evidence. See
Barnhart v. State, 15 N.E.3d 138, 143 (Ind. Ct. App. 2014) (“Errors in the admission or exclusion of evidence
are to be disregarded as harmless error unless they affect the substantial rights of a party.”).



Court of Appeals of Indiana | Opinion 18A05-1612-PC-2817 | September 6, 2017                    Page 33 of 35
[58]   We acknowledge the Montgomery court’s cautioning that “Miller’s conclusion

       that the sentence of life without parole is disproportionate for the vast majority

       of juvenile offenders raises a grave risk that many are being held in violation of

       the Constitution.” 132 S. Ct. at 736. To this point, we reiterate, as our Indiana

       Supreme Court did in Conley, that Newton is only one of four juveniles to have

       ever been sentenced to LWOP in Indiana. See Conley, 972 N.E.2d at 880

       (noting Andrew Conley was the fourth juvenile sentenced to LWOP after Larry

       Newton in 1995, Daniel Boyd in 1997, Greg Dickins in 2001). We believe this

       serves as further evidence that Indiana indeed has historically exercised a policy

       of reserving LWOP for use “in only the most heinous of crimes.” Id. at 880.


[59]   The U.S. Supreme Court did not categorically bar LWOP for juveniles, but

       instead effectively carved out an exception, allowing LWOP for “the rarest of

       juvenile offenders.” 132 S. Ct. at 734. Because Newton’s sentencing court gave

       extensive consideration to whether LWOP was appropriate for Newton and, in

       the process, explicitly found Newton was “beyond rehabilitation,” (Sent. Tr. at

       225), even if Newton had not waived his Eighth Amendment right by signing a

       plea agreement that called for LWOP sentencing, we could not say the

       imposition of LWOP violated his Eighth Amendment right to be free of cruel

       and unusual punishment. 13




       13
         Newton also claims that his sentence is inappropriate and he was denied the right to effective assistance of
       counsel under the Sixth Amendment of the United States Constitution. Both of these claims are procedurally
       barred.

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                                                    Conclusion
[60]   We hold the mandate of Miller and Montgomery does not apply to the narrow

       circumstance, such as here, where a juvenile defendant voluntarily enters into a

       plea agreement to serve LWOP. Even so, in determining whether to accept the

       plea agreement, the trial court complied with the procedural safeguards

       contemplated by Miller and Montgomery. These safeguards ensured Newton

       does not fit within the “vast majority of juvenile offenders” for whom a

       sentence of LWOP is disproportionate. Newton’s sentence of LWOP is thus

       not unconstitutional under the Eighth Amendment of the United States

       Constitution. Accordingly, we affirm the judgment of the successive post-

       conviction court.


[61]   Affirmed.


       Brown, J., and Pyle, J., concur.




       Newton raises the issue of ineffective assistance of counsel in his Appellant’s Brief. Newton raised this claim
       in his prior post-conviction petition, and that post-conviction court found Newton’s counsel were effective.
       This claim is thus barred by the doctrine of res judicata. See Matheney, 834 N.E.2d at 662 (claims that have
       already been decided adversely are barred from re-litigation in successive post-conviction proceedings by the
       doctrine of res judicata).
       Similarly, Newton’s claim that his sentence is inappropriate was available to him in his prior petition for
       post-conviction relief, but he failed to raise it. Thus, this claim too, is barred. See id. (“Claims that could
       have been, but were not, raised in earlier proceedings and otherwise were not properly preserved are
       procedurally defaulted; we do not authorize the filing of successive petitions raising forfeited claims.”).




       Court of Appeals of Indiana | Opinion 18A05-1612-PC-2817 | September 6, 2017                          Page 35 of 35