                                                                         FILED
                                                                    Jun 27 2019, 6:05 am

                                                                         CLERK
                                                                     Indiana Supreme Court
                                                                        Court of Appeals
                                                                          and Tax Court




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



                                            IN THE
    COURT OF APPEALS OF INDIANA

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



Baker, Judge.




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

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

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

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

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

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

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

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

      not comply with relevant caselaw.


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

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

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

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


                                                      Facts     1




                                             Wilson’s Background

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

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

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

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




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

      Court of Appeals of Indiana | Opinion 18A-PC-3041 | June 27, 2019                            Page 2 of 20
      p. 5. His mother did not allow her children to play outside and taught them to

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

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

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

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

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

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


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

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

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

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

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


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

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

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

      neighborhood.


                                       The Crimes and Direct Appeal

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

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


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

      Court of Appeals of Indiana | Opinion 18A-PC-3041 | June 27, 2019        Page 3 of 20
        Jonte. While the group was walking, they encountered fifteen-
        year-old Derrick Thompson, at which point Jonte and Wilson
        began harassing and intimidating Thompson, flashing the guns
        they were carrying, and asking Thompson what part of town he
        was from. Wilson was carrying a silver .357 revolver and Jonte
        had a black handgun. Jonte then told Thompson to give him his
        phone and Wilson made a reference to Tre 7, a local gang, and
        grabbed Thompson’s Dre Beats headphones off of his head. The
        two then left Thompson and continued walking with Pecolla and
        Jordan.


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


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


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

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

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

      commit criminal gang activity, also seeking criminal gang activity sentence

      enhancements for the murder and robbery charges.


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

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

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

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

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

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

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

      additional 60 years added pursuant to the criminal gang activity sentence

      enhancement, for an aggregate sentence of 183 years imprisonment.


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

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

      activity should be vacated because it violated the prohibition against double

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

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

      issue, vacating his conspiracy conviction based on double jeopardy principles

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

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



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

       Wilson’s petition to transfer.


                                             Post-Conviction Relief

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

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

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

       States Supreme Court precedent; that the criminal gang enhancement is

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

       assistance of trial and appellate counsel.


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

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

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

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

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

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

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

       consecutive sentences for each murder conviction because that trial judge

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

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

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

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




       Court of Appeals of Indiana | Opinion 18A-PC-3041 | June 27, 2019          Page 6 of 20
[11]   Appellate counsel testified that at the time of Wilson’s direct appeal, he was not

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

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

       raising an abuse of discretion argument regarding the sentence but decided

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

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

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


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

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

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

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

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

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

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

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

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

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

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

       candidate for rehabilitation.




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

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

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

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

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

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

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

       Wilson’s prospects for rehabilitation were good.


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

       post-conviction relief. Wilson now appeals.


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

       conviction relief are well established:


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

       Court of Appeals of Indiana | Opinion 18A-PC-3041 | June 27, 2019        Page 8 of 20
               error—that which leaves us with a definite and firm conviction
               that a mistake has been made.” Ben-Yisrayl v. State, 729 N.E.2d
               102, 106 (Ind. 2000) (quotation omitted).


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


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

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

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

       sentencing hearing.


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

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

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

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

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

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

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

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

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

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

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

       Ct. App. 2012).




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

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

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

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

       case did the sentencing authority have discretion to impose a different

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

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

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

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

       470.


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


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



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


       Court of Appeals of Indiana | Opinion 18A-PC-3041 | June 27, 2019           Page 10 of 20
        horrific, crime-producing settings. Ibid. And third, a child’s
        character is not as “well formed” as an adult’s; his traits are “less
        fixed” and his actions less likely to be “evidence of irretrievabl[e]
        deprav[ity].” Id., at 570, 125 S.Ct. 1183.


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


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

Court of Appeals of Indiana | Opinion 18A-PC-3041 | June 27, 2019          Page 11 of 20
               sentence. Life without parole “forswears altogether the
               rehabilitative ideal.” Graham, 560 U.S., at 74, 130 S.Ct., at 2030.
               It reflects “an irrevocable judgment about [an offender’s] value
               and place in society,” at odds with a child’s capacity for
               change. Ibid.


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

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

       diminish the penological justifications for imposing the harshest sentences on

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

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


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

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

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

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

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

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

       Court also emphasizes that life without parole sentences imposed on juveniles

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

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

       offense(s).


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

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

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


       Court of Appeals of Indiana | Opinion 18A-PC-3041 | June 27, 2019        Page 12 of 20
       that the Eighth Amendment requires a categorical bar on life without parole for

       juveniles, but explicitly noted that


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


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


                                    Miller and De Facto Life Sentences

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

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

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

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

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

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

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

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

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

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

       Court of Appeals of Indiana | Opinion 18A-PC-3041 | June 27, 2019        Page 13 of 20
       release based on demonstrated rehabilitation”); Johnson v. State, 215 So.3d 1237

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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


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

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

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

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

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

       Court of Appeals of Indiana | Opinion 18A-PC-3041 | June 27, 2019          Page 14 of 20
       sentence); Budder v. Addison, 851 F.3d 1047 (10th Cir. 2017) (applying Graham

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

       served 131 years in prison), cert. denied.


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

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

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

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

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

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

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

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

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

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

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

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

       address the Eighth Amendment.


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

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

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

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

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

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

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

       Court of Appeals of Indiana | Opinion 18A-PC-3041 | June 27, 2019          Page 15 of 20
       year sentence, it is apparent to us that this is a distinction without a difference.

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

       considering the wealth of authority cautioning that the judicial system must

       treat juveniles with extra care.


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

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

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

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

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

       sentencing hearing.


                                              Miller Requirements

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

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

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

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

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

       how children are different, and how those differences counsel against

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

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

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

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




       Court of Appeals of Indiana | Opinion 18A-PC-3041 | June 27, 2019          Page 16 of 20
[28]   It is not enough, therefore, to simply acknowledge the defendant’s youth. A

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

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

       include expert testimony, which would ideally cover both the attendant

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

       the defendant being sentenced.


                       Did Wilson’s Sentencing Hearing Comply with Miller?

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

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

       was ineffective as a result.


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

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

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

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

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

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

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

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

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

       of Miller.


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

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

       Court of Appeals of Indiana | Opinion 18A-PC-3041 | June 27, 2019        Page 17 of 20
       characteristics in general and as related to Wilson, two of whom testified about

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

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

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

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


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

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


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


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

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

       adult client:


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


       Court of Appeals of Indiana | Opinion 18A-PC-3041 | June 27, 2019        Page 18 of 20
               years, he’ll get out when he’s 91, minimally. That’s where my
               head was at.


       Id. at 17.


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

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

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

       consider hiring any experts who specialized in child or developmental

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

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

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

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

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

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

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

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

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

       26.


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

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

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

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

       words, counsel’s performance was deficient.


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

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

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

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

       committed multiple offenses involving separate and distinct victims. As noted

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

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

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

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

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

       deficient performance, Wilson would have received a lesser sentence.


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

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

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

       including the constitutionality of the criminal gang activity sentence

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

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

       again.


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

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

       that complies with Miller.


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

       Court of Appeals of Indiana | Opinion 18A-PC-3041 | June 27, 2019        Page 20 of 20
