                                                                                FILED
                                                                            Aug 28 2019, 8:04 am

                                                                                CLERK
                                                                            Indiana Supreme Court
                                                                               Court of Appeals
                                                                                 and Tax Court



      ATTORNEY FOR APPELLANT                                     ATTORNEYS FOR APPELLEE
      Anne C. Kaiser                                             Curtis T. Hill, Jr.
      Indianapolis, Indiana                                      Attorney General of Indiana
                                                                 Ellen H. Meilaender
                                                                 Deputy Attorney General
                                                                 Indianapolis, Indiana



                                                  IN THE
          COURT OF APPEALS OF INDIANA

      Aaron Moran Brown,                                         August 28, 2019
      Appellant-Petitioner,                                      Court of Appeals Case No.
                                                                 18A-PC-3128
              v.                                                 Appeal from the DeKalb Circuit
                                                                 Court
      State of Indiana,                                          The Honorable Kurt Bentley
      Appellee-Respondent.                                       Grimm, Judge
                                                                 Trial Court Cause No.
                                                                 17C01-9402-CF-8




      Tavitas, Judge.


                                              Case Summary
[1]   Aaron Moran Brown appeals from the post-conviction court’s (“PC court”)

      entry of summary disposition in favor of the State on Brown’s successive

      petition for post-conviction relief (“PCR”). We affirm.




      Court of Appeals of Indiana | Opinion 18A-PC-3128 | August 28, 2019                           Page 1 of 11
                                                       Issue
[2]   The sole issue on appeal is whether the PC court erred in granting summary

      disposition for the State and denying Brown’s successive petition for PCR on

      the ground that Brown’s aggregate sentence is unconstitutional.


                                                       Facts
[3]   This matter arises from Brown’s challenge to his convictions and sentences in

      light of the United States Supreme Court’s holding in Miller v. Alabama, 567

      U.S. 460, 489 (2012), which declared that mandatory sentencing schemes that

      require the imposition of life sentences without the possibility of parole for

      juvenile homicide offenders violate the Eighth Amendment. In the aftermath of

      Miller, incarcerated offenders throughout the country—including Brown—who

      received significant sentences as juveniles, have challenged their sentences as

      unconstitutional.


[4]   The facts as stated in Brown’s direct appeal follow:


              On February 7, 1994, Brown was charged by information with
              the murders of Elizabeth Grueb, his biological mother, and
              Jeffrey Grueb, his step-father. He pled guilty without a plea
              agreement in September of 1994. Following a guilty plea hearing
              the trial court entered judgment on the plea. The evidence
              reveals that in the early morning hours of February 6, 1994,
              Brown, then 16-years old, lay in wait for his parents to return
              home from a party, and upon their arrival, murdered them with a
              shotgun. Shortly thereafter, Brown turned himself in to the
              authorities.


      Brown v. State, 659 N.E.2d 671, 672 (Ind. Ct. App. 1995), trans. denied.
      Court of Appeals of Indiana | Opinion 18A-PC-3128 | August 28, 2019        Page 2 of 11
[5]   At Brown’s sentencing hearing on December 16, 1994, the trial court found the

      following aggravating circumstances: (1) “despite the fact that [Brown] ha[d] no

      prior record of criminal activity [he was] in need of correctional or rehabilitative

      treatment that c[ould] best be provided by [his] commitment to a penal facility”;

      (2) Brown’s membership in a gang; (3) one of Brown’s murder victims was his

      mother; (4) Brown premeditated the murders and lay in wait for his mother and

      stepfather; (5) Brown’s lack of remorse; and (6) Brown’s statement, after the

      murders, that he could conceive of killing again under certain circumstances.

      Appellant’s App. Vol. II p. 29.


[6]   The trial court found Brown’s youthful age to be a mitigating circumstance and

      stated: “When this happened you were sixteen (16). You’re seventeen (17) as

      you sit here today. In the eyes of the law in general terms, not even yet an

      adult.” Id. at 30. The trial court also found Brown’s lack of prior criminal

      history, as well as his prompt confession and cooperation with law enforcement

      to be mitigating. Concluding that the aggravating circumstances outweighed

      the mitigating circumstances, the trial court imposed consecutive fifty-year

      sentences on each of Brown’s murder convictions, for an aggregate sentence of

      one hundred years.


[7]   On direct appeal, Brown argued that: (1) his sentence was manifestly

      unreasonable in light of the nature of his offenses and his character; (2) he was

      denied his right against self-incrimination; (3) the trial court improperly

      articulated aggravating circumstances and overlooked, or assigned inadequate

      weight, to significant mitigating circumstances; and (4) the trial court “failed to

      Court of Appeals of Indiana | Opinion 18A-PC-3128 | August 28, 2019       Page 3 of 11
      contemplate Brown’s general character when structuring his sentence[.]” We

      affirmed, and our Supreme Court denied transfer. Brown, 659 N.E.2d at 674.


[8]   In May 2000, Brown filed a pro se petition for post-conviction relief wherein he

      argued that his sentence violates the Eighth Amendment of the U.S.

      Constitution and Article 1, Section 16 of the Indiana Constitution because “no

      [] consideration was made in Brown’s sentencing” to “[a] juvenile’s specific

      characteristics[,]” and because his sentence is “the functional equivalent of a

      [sentence of] life without parole.” 1 Appellant’s App. Vol. II pp. 36-37. After a

      hearing on March 20, 2003, the PC court denied Brown’s petition for PCR.


[9]   On November 3, 2017, Brown sought, and we subsequently granted, leave to

      file a successive petition for PCR pursuant to Post-Conviction Rule 1, Section

      12. Brown filed his successive petition for PCR on November 3, 2017, and

      argued that he is entitled to relief under Miller. On March 26, 2018, the State

      moved for summary disposition. On July 31, 2018, the trial court conducted a

      hearing on the State’s motion for summary disposition. On September 12,

      2018, the trial court granted summary disposition in favor of the State and

      against Brown. 2 Brown now appeals from the entry of summary disposition in

      the State’s favor.




      1
       The Department of Correction has determined Brown’s earliest anticipated release date to be February 29,
      2040, when Brown will be sixty-two years old. Thus, as the State argued below, “Brown’s actual sentence is
      46 years in real time.” App. Vol. II pp. 37, 54.
      2
          The trial court did not rule on Brown’s ensuing motion to correct error, which was deemed denied.


      Court of Appeals of Indiana | Opinion 18A-PC-3128 | August 28, 2019                              Page 4 of 11
                                                     Analysis
[10]   Brown argues that “the trial court did not properly consider his youth at his

       original sentencing[,]” and that, pursuant to Miller, “he [i]s entitled to a new

       sentencing hearing.” Appellant’s Br. p. 12. The State counters that “[Brown]

       does not fall within” the category of offenders contemplated by the Supreme

       Court in Miller because Brown “received a Miller-compliant sentencing hearing”

       and is eligible for parole at the age of sixty-two. Appellee’s Br. pp. 14, 38.


[11]   We review the grant of a motion for summary disposition in PCR proceedings

       on appeal in the same way as a motion for summary judgment in a civil matter.

       Norris v. State, 896 N.E.2d 1149, 1151 (Ind. 2008). Thus, summary

       disposition—like summary judgment—is a matter for appellate de novo review.

       Id. Post-Conviction Rule 1(4)(g) provides:


               The court may grant a motion by either party for summary
               disposition of the petition when it appears from the pleadings,
               depositions, answers to interrogatories, admissions, stipulations
               of fact, and any affidavits submitted, that there is no genuine
               issue of material fact and the moving party is entitled to
               judgment as a matter of law. The court may ask for oral
               argument on the legal issue raised. If an issue of material fact is
               raised, then the court shall hold an evidentiary hearing as soon as
               reasonably possible.


[12]   A PC court is permitted to summarily deny a petition for PCR only if the

       pleadings conclusively show the petitioner is entitled to no relief as a matter of

       law. Gann v. State, 550 N.E.2d 803, 804 (Ind. Ct. App. 1990). The necessity of

       an evidentiary hearing is avoided when the pleadings show only issues of law.

       Court of Appeals of Indiana | Opinion 18A-PC-3128 | August 28, 2019        Page 5 of 11
       Id. The need for a hearing is not avoided, however, when a determination of

       the issues hinges, in whole or in part, upon facts not resolved. Id. This is true

       even though the petitioner has only a remote chance of establishing his claim.

       Id. at 804-805.


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

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

       Miller, 567 U.S. at 469, 132 S. Ct. at 2463. In Miller, the United States Supreme

       Court (“U.S. Supreme Court”) held that mandatory sentencing schemes that

       require lifetime incarceration without possibility of parole for juvenile homicide

       offenders violate the Eighth Amendment. 567 U.S. at 489, 132 S. Ct. at 2475.

       Subsequently, in Montgomery v. Louisiana, 136 S. Ct. 718, 736 (2016), the U.S.

       Supreme Court gave its Miller holding retroactive effect. The Seventh Circuit

       has since held that Miller applies, not only to a life sentence, but also to

       sentences that—although set out as a term of years—are essentially a life

       sentence. McKinley v. Butler, 809 F.3d 908 (7th Cir. 2016).


[14]   Specifically, Miller holds that a sentencing scheme that “prevents those meting

       out punishment from considering a juvenile’s ‘lessened culpability’ and greater

       capacity for change’” impedes “individualized sentencing for defendants facing

       the most serious penalties” and is unconstitutional as violative of the Eighth

       Amendment. Miller, 567 U.S. at 465, 483, 132 S. Ct. at 2460, 2471.

       “[S]entencers must be able to consider the mitigating qualities of youth”

       because “the distinctive attributes of youth diminish the penological

       justifications for imposing the harshest sentences on juvenile offenders, even

       Court of Appeals of Indiana | Opinion 18A-PC-3128 | August 28, 2019            Page 6 of 11
       when they commit terrible crimes.” 567 U.S. ---, 132 S. Ct. at 2458 (citing

       Roper v. Simmons, 543 U.S. 551, 125 S. Ct. 1183 (2005), and Graham v. Florida,

       560 U.S. 48, 130 S. Ct. 2011 (2010)).


[15]           . . . [M]andatory life-without-parole sentences for children
               “pos[e] too great a risk of disproportionate punishment.” Miller,
               567 U.S. at 479, 132 S. Ct. at 2469. Miller requires that before
               sentencing a juvenile to life without parole, the sentencing judge
               take into account “how children are different, and how those
               differences counsel against irrevocably sentencing them to a
               lifetime in prison.” The Court recognized that a sentencer might
               encounter the rare juvenile offender who exhibits such
               irretrievable depravity that rehabilitation is impossible and life
               without parole is justified. But in light of “children’s diminished
               culpability and heightened capacity for change,” Miller made
               clear that “appropriate occasions for sentencing juveniles to this
               harshest possible penalty will be uncommon.”


       Montgomery, 136 S. Ct. at 733 (citations omitted).


[16]   In its order on the State’s motion for summary judgment, the PC court found:


               . . . Here, Brown did not receive a mandatory life sentence, nor
               did he receive a sentence which precluded parole. . . . [E]ven if
               Brown is correct in his claim that his sentence was a de facto life
               sentence, he would also have to demonstrate that his de facto life
               sentence was without parole in order to implicate Miller. Even
               then, Miller does not preclude the imposition of a mandatory life
               sentence without parole upon a defendant who committed the
               qualifying crime as a juvenile, rather it holds that before such
               sentence imposition can occur[,] certain factors have to be
               analyzed and considered by the sentencing court. Thus, for
               Brown to be successful on his petition for post-conviction relief,
               he must demonstrate that the sentence he received was in fact, if

       Court of Appeals of Indiana | Opinion 18A-PC-3128 | August 28, 2019           Page 7 of 11
               not [in] name, a life sentence and the nature of the sentence in
               essence renders any prospect of parole merely illusory.

                                                        *****

               Due to eligibility for parole, and Indiana’s good time credit
               statutes, Brown can potentially be released from prison when he
               is in his early 60’s. He did not receive a life sentence without
               parole. He did not receive a de facto life sentence without parole.
               He did not receive a de facto life sentence where the opportunity
               for parole or release is merely illusory. In short, Brown did not
               receive a sentence that implicates the narrow holding of Miller,
               and as a matter of law he is not entitled to the relief requested in
               his petition for post-conviction relief.

       Appellant’s App. pp. 199-201.


[17]   The trial court’s reading of Miller is underscored by the Seventh Circuit’s

       reasoning in Kelly v. Brown, 851 F.3d 686, 687 (7th Cir. 2017), which is factually

       akin to the instant case. Kelly sought leave from the Seventh Circuit to file a

       successive petition for habeas relief from a 110-year sentence—comprised of

       two, fifty-five year terms—for murders that Kelly committed when he was

       sixteen years old. Kelly would be eligible for parole at the age of seventy. The

       Seventh Circuit reasoned that, in affirming the trial court on direct appeal, our

       Supreme Court found that the trial court: (1) imposed the presumptive (not an

       enhanced) sentence for each murder; (2) “properly outlined its reasoning for

       [Kelly]’s sentences”; (3) adequately balanced the aggravating and mitigating

       circumstances”; and (4) “considered [Kelly’s] age[.]” Id. at 687. Thus, the

       Seventh Court concluded, “Kelly was afforded all he was entitled to under


       Court of Appeals of Indiana | Opinion 18A-PC-3128 | August 28, 2019        Page 8 of 11
       Miller.” Accordingly, the Seventh Circuit denied authorization for Kelly’s

       successive petition for habeas relief.


[18]   Here, the record reveals that the trial court, in its discretion, entered an

       extensive sentencing statement and engaged in thoughtful consideration of the

       aggravating and mitigating circumstances, including Brown’s youthful age at

       the time he committed the murders. Regarding Brown’s youthful age, the trial

       court stated: “When this happened you were sixteen (16). You’re seventeen

       (17) as you sit here today. In the eyes of the law in general terms, not even yet

       an adult.” Appellant’s App. Vol. II p. 30. After concluding that the

       aggravating circumstances outweighed the mitigating circumstances, the trial

       court imposed an enhanced sentence of fifty years on each count, however, the

       court did not impose the maximum sentence. 3


[19]   We need not reach the question of whether the trial court’s discussion of

       Brown’s youthful age was adequate or too “cursory.” See Kelly, 851 F.3d at 689

       (J. Posner, dissenting). Brown is not a candidate for Miller review. The law is

       well settled that “[a] State may remedy a Miller violation by permitting juvenile

       homicide offenders to be considered for parole, rather than by resentencing

       them.” See Montgomery, 136 S. Ct. at 736. Brown did not receive a mandatory




       3
         At the time of Brown’s offenses, the sentencing range for murder was thirty to sixty years, with a
       presumptive sentence of forty years, with not more than twenty years added for aggravating circumstances or
       not more than ten years substracted for mitigating circumstances. Ind. Code § 35-50-2-3 (1993). Thus,
       Brown faced a maximum sentence of sixty years on each murder conviction, for a maximum aggregate
       sentence of 120 years.

       Court of Appeals of Indiana | Opinion 18A-PC-3128 | August 28, 2019                            Page 9 of 11
       sentence of life without the possibility of parole; rather, Brown is eligible for

       parole with an earliest possible release date of age sixty-two. The fact that the

       widely-accepted remedy for a Miller violation is already available to Brown

       undercuts Brown’s claim that a Miller violation has occurred here.


[20]   To the extent that Brown seeks revision of his sentence pursuant to Indiana

       Appellate Rule 7(B), Brown has already unsuccessfully argued, on direct

       appeal, that his sentence is manifestly unreasonable in light of the nature of the

       offenses and his character. 4 After considering the aggravating and mitigating

       circumstances, including Brown’s mitigating youthful age at the time of the

       murders, we concluded that “[c]onsidering the nature of the offense, the

       character of the offender and the many aggravating factors, Brown’s sentence is

       not unreasonable.” Brown, 659 N.E.2d at 675. Cf. Martez Brown v. State, 10

       N.E.3d 1 (Ind. 2014) (revising offender’s sentence downward on direct appeal

       pursuant to Rule 7(B)), cf. Fuller v. State, 9 N.E.3d 653 (Ind. 2014) (reducing

       offender’s sentence on direct appeal, pursuant to Rule 7(B)). The PC court did

       not err in granting the State’s motion for summary disposition because Brown is

       entitled to no relief as a matter of law. 5




       4
        When Brown was sentenced in 1994, the standard for reviewing a sentence was the now-obsolete
       “manifestly unreasonable” standard. See Indiana Appellate Rule 17(B) (1994).
       5
         We note that transfer is pending in State v. Stidham, 110 N.E.3d 410 (Ind. Ct. App. 2018), in which we
       reversed the PC court’s reduction of Stidham’s sentence pursuant to its grant of Stidham’s petition for PCR.
       In reversing the PC court’s judgment, a panel of this Court concluded that: (1) Stidham’s claims that his
       sentence violated the Eighth Amendment of the U.S. Constitution and Article 1, Section 16 of the Indiana
       Constitution were barred on principle of res judicata as Stidham asserted the same claim on direct appeal in
       1993 “and the Indiana Supreme Court rejected the claim”; and (2) “[t]o the extent Stidham’s claims [we]re


       Court of Appeals of Indiana | Opinion 18A-PC-3128 | August 28, 2019                             Page 10 of 11
                                                    Conclusion
[21]   The PC court did not err in granting the State’s motion for summary

       disposition. We affirm.


[22]   Affirmed.


       Crone, J., and Bradford, J., concur.




       based on improvements [in his character] since 1994, [Stidham was] essentially requesting a sentence
       modification,” which was not authorized under the post-conviction rules, which “do not provide for
       modification of a sentence which has been established by the Legislature as appropriate for the offense and
       which has been found to be constitutional.” 110 N.E.3d at 420, 421.

       Brown argues that his case is readily distinguishable from Stidham because, unlike Stidham, Brown: (1) did
       not assert an Eighth Amendment claim on direct appeal; and (2) has not previously presented any tribunal
       with evidence of his rehabilitation efforts.


       Court of Appeals of Indiana | Opinion 18A-PC-3128 | August 28, 2019                             Page 11 of 11
