MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                         FILED
this Memorandum Decision shall not be
regarded as precedent or cited before any                               Jul 02 2020, 10:30 am

court except for the purpose of establishing                                   CLERK
                                                                         Indiana Supreme Court
the defense of res judicata, collateral                                     Court of Appeals
                                                                              and Tax Court
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
Ivan A. Arnaez                                            Curtis T. Hill, Jr.
Evansville, Indiana                                       Attorney General of Indiana
                                                          Ellen H. Meilaender
                                                          Supervising Deputy Attorney General
                                                          Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Joseph M. Henson, Jr.,                                    July 2, 2020
Appellant-Petitioner,                                     Court of Appeals Case No.
                                                          19A-PC-3040
        v.                                                Appeal from the Vanderburgh
                                                          Circuit Court
State of Indiana,                                         The Honorable David D. Kiely,
Appellee-Respondent.                                      Judge
                                                          The Honorable Kelli E. Fink,
                                                          Magistrate
                                                          Trial Court Cause Nos.
                                                          82C01-1811-PC-6374
                                                          82C01-9607-CF-717



Bailey, Judge.



Court of Appeals of Indiana | Memorandum Decision 19A-PC-3040 | July 2, 2020                     Page 1 of 14
                                              Case Summary
[1]   Joseph M. Henson, Jr. (“Henson”) appeals the denial of his petition for post-

      conviction relief. He presents a single issue for review: whether he is entitled to

      post-conviction relief because his aggregate 100-year sentence, imposed when

      he was a juvenile, amounts to cruel and unusual punishment prohibited by the

      Eighth Amendment to the United States Constitution.1 We affirm.



                              Facts and Procedural History
[2]   The facts and procedural history with respect to Henson’s convictions were

      recited by the Indiana Supreme Court on direct appeal:


               The events that gave rise to this case began in the early morning
               of July 26, 1996, when defendant and another man, Jason
               Wentz, abducted Donna Heseman in the parking lot at the
               Bristol–Myers facility in Evansville. After forcing her into her
               car, defendant held a shotgun as she drove. At some point
               shortly thereafter, defendant shot her to death, causing the car to
               crash through an entrance gate at the facility. Defendant exited
               Heseman’s car and joined Wentz in another vehicle.


               As they attempted to escape, defendant and Wentz rattled the
               basement doors of Cathryn Kuester’s residence but were not able
               to obtain entry. They then stole Gregory Epley’s automobile.
               Abandoning that vehicle, they then stole a truck from Stacey
               Durham. Subsequently abandoning that truck as well, they



      1
       In his petition for post-conviction relief, Henson also claimed that his sentence violates Article 1, Section 16
      of the Indiana Constitution, which prohibits cruel and unusual punishment. He has not developed a separate
      argument with respect to the Indiana Constitution.

      Court of Appeals of Indiana | Memorandum Decision 19A-PC-3040 | July 2, 2020                        Page 2 of 14
           broke into a residence owned by Orville Childers. When
           Childers arrived later, they obtained his truck keys. Defendant
           and Wentz were subsequently apprehended when they crashed
           Childers’s truck into a sheriff’s car. The shotgun with which
           Heseman had been killed was in the truck. Other physical
           evidence linking defendant with the murder was recovered from
           various of the vehicles and Childers’s residence.


           Defendant was charged with the intentional murder, 2 felony
           murder3 and kidnaping4 of Donna Heseman; attempted
           residential entry5 with respect to the Cathryn Kuester incident;
           auto theft6 with respect to the Gregory Epley incident; burglary 7
           and auto theft with respect to the Stacey Durham incident; and
           residential entry8 and robbery9 with respect to the Orville Childers
           incident. He was found guilty on all counts except the burglary
           count. The State also sought a sentence of life without parole
           under Ind. Code § 35–50–2–9; the jury recommended against life
           without parole.


           The jury found defendant guilty of intentional or knowing
           murder, felony-murder and kidnaping (the kidnaping serving as
           the underlying felony supporting the felony-murder charge).




2
    Ind. Code § 35-42-1-1(1) (1993).
3
    I.C. § 35-42-1-1(2) (1993).
4
    I.C. § 35-42-3-2 (1993).
5
    I.C. §§ 35-41-5-1; 35-43-2-1.5 (1993).
6
    I.C. § 35-43-4-2.5 (1993).
7
    I.C. § 35-43-2-1 (1993).
8
    I.C. § 35-43-2-1.5 (1993).
9
    I.C. § 35-42-5-1 (1993).


Court of Appeals of Indiana | Memorandum Decision 19A-PC-3040 | July 2, 2020   Page 3 of 14
      Henson v. State, 707 N.E.2d 792, 793-94 (Ind. 1999).


[3]   Upon his conviction of Murder, Henson faced a sentence of forty-five to sixty-

      five years, with fifty-five years as the standard sentence.10 Upon his conviction

      of Kidnaping, a Class A felony, he faced a sentence of twenty to fifty years,

      with thirty years as the standard sentence.11 Upon his conviction of Robbery, as

      a Class B felony, he faced a sentence of six to twenty years, with ten years as

      the standard sentence.12 In selecting a sentence for Henson, the trial court

      found three mitigators: his age (sixteen at the time of the crimes), his lack of a

      criminal history, and his expression of remorse. The trial court found the

      nature and circumstances of the crimes to be an aggravator that outweighed the

      mitigators.13 Henson was sentenced to sixty years imprisonment for Murder,

      thirty years for Kidnaping, and ten years for Robbery, to be served

      consecutively. He received three concurrent two-year sentences for Auto Theft,

      Residential Entry, and Attempted Residential Entry. The two-year sentences

      were to be served concurrently with the Murder, Kidnaping, and Robbery

      sentences, providing for an aggregate term of 100 years.




      10
           I.C. § 35-50-2-3 (Supp. 1996).
      11
           I.C. § 35-50-2-4 (Supp. 1996).
      12
           I.C. § 35-50-2-4 (Supp. 1996).
      13
        The trial court characterized the murder, stemming from a random carjacking, as cold-blooded. Heseman
      had been shot in the head, apparently as she tried to escape her vehicle, and died on the pavement. The trial
      court also commented that Heseman’s death was instantaneous and she did not suffer.

      Court of Appeals of Indiana | Memorandum Decision 19A-PC-3040 | July 2, 2020                     Page 4 of 14
[4]   Henson appealed, challenging his sentence and arguing that he had been

      entitled to severance of some of the charges. He lodged several arguments

      against the propriety of the sentence: that the trial court considered improper

      aggravating circumstances in imposing a sentence more severe than the

      standard sentence for Murder; that the trial court did not give sufficient weight

      to mitigating circumstances; that the trial court improperly used the same

      aggravating circumstances both to enhance the standard sentences and to

      impose them consecutively; and that the sentence violates Article 1, Section 18

      of the Indiana Constitution.14 The Indiana Supreme Court found that the trial

      court had acted “well within its discretion” when imposing consecutive

      standard (or near-standard) terms for each of the three most egregious episodes

      “in the crime spree” and also found the aggravating circumstances identified

      were sufficient to justify the imposition of consecutive sentences. Henson, 707

      N.E.2d at 796. Henson failed to establish a state Constitutional claim or show

      his entitlement to severance of some counts; thus, the Court affirmed his

      convictions and sentences. Id. at 797.


[5]   On March 17, 2000, Henson filed a petition for post-conviction relief, which he

      amended on December 12, 2002. A hearing was conducted on February 25,

      2003, and Henson was denied post-conviction relief on April 16, 2003. A panel




      14
        Article I, Section 18 provides: “The penal code shall be founded on the principles of reform, and not of
      vindictive justice.”

      Court of Appeals of Indiana | Memorandum Decision 19A-PC-3040 | July 2, 2020                     Page 5 of 14
      of this Court affirmed the denial of post-conviction relief; the Indiana Supreme

      Court denied transfer. Henson v. State, 804 N.E.2d 875 (Ind. 2004).


[6]   On April 27, 2018, this Court authorized Henson to file a successive petition for

      post-conviction relief. On October 28, 2018, Henson filed his petition. He

      contended that he, as a juvenile, received a de facto life sentence without a

      hearing mandated by Miller v. Arizona, 567 U.S. 460 (2012), and thus his

      sentence violates the Eighth Amendment. The parties agreed to proceed by

      submitting affidavits. On November 25, 2019, the post-conviction court issued

      an order denying Henson post-conviction relief. He now appeals.



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

      his or her grounds for relief by a preponderance of the evidence. Fisher v. State,

      810 N.E.2d 674, 679 (Ind. 2004). Here, the parties submitted affidavits for the

      post-conviction court’s consideration and requested that the post-conviction

      court take judicial notice of the sentencing transcript. Ultimately, the post-

      conviction court was presented with a question of law—whether Henson’s

      aggregate sentence violates the Eighth Amendment prohibition of cruel and

      unusual punishment. Although we do not defer to the post-conviction court's

      legal conclusions, a post-conviction court’s findings entered pursuant to Indiana

      Post-Conviction Rule 1(6) and its judgment will be reversed only upon a

      showing of clear error—that which leaves us with a definite and firm conviction



      Court of Appeals of Indiana | Memorandum Decision 19A-PC-3040 | July 2, 2020   Page 6 of 14
      that a mistake has been made. Hollowell v. State, 19 N.E.3d 263, 269 (Ind.

      2014).


[8]   Henson argues that he did not receive the particularized, juvenile-focused

      sentencing hearing which he was due according to the guidance of Miller. 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, 132 S.Ct. 2455. 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, 132 S.Ct. 2455.


[9]   The Court discussed in depth the differences between juveniles and adults:


                 Roper15 and Graham16 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




      15
           Roper v. Simmons, 543 U.S. 551, 125 S. Ct. 1183 (2005).
      16
           Graham v. Florida, 560 U.S. 48, 130 S. Ct. 2011 (2010).


      Court of Appeals of Indiana | Memorandum Decision 19A-PC-3040 | July 2, 2020   Page 7 of 14
        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
        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

Court of Appeals of Indiana | Memorandum Decision 19A-PC-3040 | July 2, 2020   Page 8 of 14
               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
               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, 132 S. Ct. 2455 (internal footnote and some internal citations

       omitted).


[10]   In sum, “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,

       132 S. Ct. 2455. 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, 132 S. Ct. 2455. 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).


       Court of Appeals of Indiana | Memorandum Decision 19A-PC-3040 | July 2, 2020   Page 9 of 14
[11]   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, 132 S. Ct. 2455. The Court declined to consider

       the alternative argument 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, 132 S. Ct. 2455 (internal footnote omitted).


[12]   Because the Miller decision announced a new substantive rule of Constitutional

       law, its holding is applicable retroactively. See Montgomery v. Louisiana, 136 S.

       Ct. 718, 736-37 (“In light of what this Court has said in Roper, Graham, and

       Miller about how children are constitutionally different from adults in their level

       of culpability, however, prisoners like Montgomery [who was seventeen in 1963

       when he committed murder] 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.”). The Montgomery Court

       Court of Appeals of Indiana | Memorandum Decision 19A-PC-3040 | July 2, 2020   Page 10 of 14
       explained that a State may remedy a Miller violation by extending the

       opportunity for parole to one sentenced as a juvenile to life without parole. Id.

       at 736.


[13]   Henson acknowledges, as he must, that he did not receive a life sentence

       without the possibility of parole, that which was directly addressed by Miller.

       Yet he argues that the Miller reasoning should be expanded to his

       circumstances. Although Miller was limited to de jure life sentences, the United

       States Supreme Court has remanded at least one juvenile de facto life case 17

       with instructions for the lower court to reconsider “in light of Miller v.

       Alabama.” Bear Cloud v. Wyoming, 568 U.S. 802, 133 S. Ct. 183, 184 L.Ed.2d 5

       (2012).18 Henson argues that his sentence is such a de facto life sentence. The

       State contends that it is not a de facto life sentence, because Henson was

       initially eligible for parole at age sixty-two and, even in light of some loss of

       good time credit, he may be paroled at age sixty-eight.19




       17
         The juvenile had received a life sentence with the possibility of parole for felony murder, in addition to
       consecutive terms of years for two other offenses.
       18
          The Seventh Circuit has 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).
       19
          The State also argues that, although Miller had not yet been decided at the time of Henson’s sentencing, he
       received, in effect, a Miller compliant hearing. Evidence was adduced that Henson ran away from home,
       purportedly to escape his father’s alcoholic rages and beatings. Henson had attended Paris High School in
       Illinois, and 250 individuals associated with that school (including students, parents, and coaches) signed a
       document attesting to Henson’s good character. The school principal testified to Henson’s pleasantness and
       willingness to take direction; the school nurse testified that he faithfully attended group sessions designed to
       help students cope with parental substance abuse. According to Henson’s classmates and neighbors, the
       crimes that he committed were out of character for him. Finally, there was evidence that Henson had been
       invited to live in the school nurse’s home, but he declined to leave his severely disabled sister who needed his

       Court of Appeals of Indiana | Memorandum Decision 19A-PC-3040 | July 2, 2020                       Page 11 of 14
[14]   Recently, a panel of this Court considered whether a post-conviction

       petitioner’s aggregate sentence of 100 years, consisting of two consecutive fifty-

       year sentences for Murder, received as a juvenile, was unconstitutional. Brown

       v. State, 131 N.E.3d 740 (Ind. Ct. App. 2019), trans. denied, cert. denied, 2020 WL

       2515760 (U.S. May 18, 2020). Brown had filed a successive petition for post-

       conviction relief wherein he argued that his sentence violated the Eighth

       Amendment of the U.S. Constitution and Article 1, Section 16 of the Indiana

       Constitution because consideration was not given at sentencing to a juvenile’s

       specific characteristics, and because his sentence is “the functional equivalent of

       a sentence of life without parole.” Id. at 742. The State’s position was that

       Brown was not due a Miller hearing, as he was eligible for parole at age sixty-

       two, but that he had nonetheless received a Miller compliant hearing. Id.


[15]   On appeal from the denial of post-conviction relief, the Brown Court discussed a

       Seventh Circuit decision, the reasoning of which it found persuasive:


                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



       assistance. In sum, there was a plethora of evidence about Henson’s particular background, but the evidence
       did not address the general characteristics of juveniles related to culpability. Henson argues that expert
       testimony would have been warranted under Miller. However, because we have determined that Henson did
       not receive a de facto life sentence, that might arguably entitle him to a Miller hearing, we need not decide
       whether his actual sentencing hearing would have been adequate for those purposes.

       Court of Appeals of Indiana | Memorandum Decision 19A-PC-3040 | July 2, 2020                    Page 12 of 14
               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 Miller.” Accordingly, the
               Seventh Circuit denied authorization for Kelly’s successive
               petition for habeas relief.


       Brown, 11 N.E.3d at 744. The Court observed that the trial court, in sentencing

       Brown, had issued an extensive sentencing statement reflecting consideration of

       aggravating and mitigating circumstances, including Brown’s young age. The

       Court declined to reach the question of whether the “age discussion” was “too

       cursory.” Id. at 745. Rather, the Court, with reference to Miller and

       Montgomery, found it well-settled law that a Miller violation is subject to cure by

       offering a juvenile homicide offender consideration for parole and he need not

       be resentenced. Id. Ultimately, the Court concluded: “Brown is not a

       candidate for Miller review” given that the Miller remedy was already available

       to him. Id.


[16]   Even if we consider Henson’s aggregate sentence to be so significant that it

       might be characterized as a de facto life sentence, there is no uncured Miller

       violation here. Henson, like Brown, is eligible for consideration for parole in

       his sixties. He is not entitled to a new sentencing hearing.




       Court of Appeals of Indiana | Memorandum Decision 19A-PC-3040 | July 2, 2020   Page 13 of 14
                                                Conclusion
[17]   The post-conviction court did not err as a matter of law in denying Henson

       post-conviction relief in the form of a new sentencing hearing. Henson did not

       show that his sentence violates the Eighth Amendment prohibition of cruel and

       unusual punishment.


[18]   Affirmed.


       Crone, J., and Altice, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 19A-PC-3040 | July 2, 2020   Page 14 of 14
