                                                                           FILED
                                                                       Dec 21 2018, 9:12 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

Anne C. Kaiser                                            James B. Martin
Deputy Public Defender                                    Deputy Attorney General
                                                          Indianapolis, Indiana
Katherine Province
Deputy Public Defender
Indianapolis, Indiana


                                            IN THE
    COURT OF APPEALS OF INDIANA

Roderick Vandrell Lewis,                                  December 21, 2018
Appellant-Defendant,                                      Court of Appeals Case No.
                                                          18A-PC-767
        v.                                                Appeal from the Allen Superior
                                                          Court
State of Indiana,                                         The Honorable Frances C. Gull,
Appellee-Plaintiff                                        Judge
                                                          Trial Court Cause No.
                                                          02D05-1305-PC-84



Altice, Judge.


                                          Case Summary




Court of Appeals of Indiana | Opinion 18A-PC-767 | December 21, 2018                           Page 1 of 27
[1]   “Judge I’m going to defer to Mr. Lewis if he has any comments. I don’t have

      anything to add.” Sentencing Transcript at 23-24. This is the sum total of trial

      counsel’s participation at Lewis’s sentencing hearing, at which Lewis was being

      sentenced for two counts of felony murder and faced a maximum sentence of

      130 years in prison. The trial court found no mitigating circumstances – none

      being asserted by the defense – and sentenced Lewis to the maximum aggregate

      sentence of 130 years in prison.1


[2]   On direct appeal, appellate counsel presented only a sufficiency challenge,

      which this court rejected. Appellate counsel felt constrained by trial counsel’s

      failure to argue any mitigating circumstances at sentencing. Had trial counsel

      made an adequate record at sentencing, appellate counsel would have

      challenged the sentence as inappropriate under Ind. Appellate Rule 7(B).

      Appellate counsel, however, chose not to raise this issue to avoid hindering

      Lewis’s future pursuit of post-conviction relief based on trial counsel

      ineffectiveness.


[3]   After this court affirmed his convictions on direct appeal, Lewis sought post-

      conviction relief. He challenged the effectiveness of both trial and appellate

      counsel related to sentencing. The post-conviction court denied relief, and

      Lewis now appeals.




      1
       The sentencing range for murder is forty-five to sixty-five years, with the advisory sentence being fifty-five
      years. Ind. Code § 35-50-2-3(a).

      Court of Appeals of Indiana | Opinion 18A-PC-767 | December 21, 2018                                Page 2 of 27
[4]   We agree with Lewis that trial counsel’s performance at sentencing was clearly

      deficient. After a thorough review of the record and applicable case law,

      however, we conclude that no prejudice resulted from the deficient

      performance. In other words, there is not a reasonable probability that Lewis’s

      sentence would have been different if counsel had proffered the mitigating

      circumstances raised at the post-conviction hearing. Further, with regard to

      appellate counsel, we conclude that counsel was not ineffective.


[5]   We affirm.


                                       Facts & Procedural History2


[6]   The underlying facts supporting Lewis’s convictions were set out in detail on

      direct appeal, and we draw from those. On June 29, 1999, Christopher Hale

      had a discussion with sixteen-year-old Richard Rogers, who operated a drug

      house in Fort Wayne with fourteen-year-old Sidney Wilson. Rogers invited

      Hale to visit the drug house, but Hale declined due to problems he was having

      with Wilson. Rogers indicated that he would talk with Wilson and quash it.


[7]   Later that evening, Hale, Lewis, and Kajuanta Mays agreed on a plan to rob

      Wilson and Rogers of their drugs and money. First, they verified that Wilson

      and Rogers were alone by sending Angela Lawson to the house to buy drugs.




      2
       Oral argument was held at the Walker Career Center at Warren Central High School in Indianapolis on
      December 4, 2018. We thank the staff for our warm welcome and the students for their professionalism and
      attentiveness throughout the argument. We also wish to recognize the exceptional briefing and argument
      provided by counsel for Lewis and the State.

      Court of Appeals of Indiana | Opinion 18A-PC-767 | December 21, 2018                         Page 3 of 27
      As planned, Hale then went into the drug house followed later by Lewis and

      Mays, so that it would appear they were all there by happenstance. They all

      smoked and drank with Wilson and Rogers inside the house. Lewis was armed

      with a .38 special revolver, and Hale, who Lewis described as a violent person,

      was armed with a nine-millimeter firearm.


[8]   Hale went upstairs to use the restroom and as he returned down the stairs, he

      stated “die bitch” and shot Wilson five times, including in his chest, abdomen,

      and back. Trial Transcript at 97. Rogers and Lewis both reached for a shotgun

      that was in the room, and Hale then turned out the lights and ordered Rogers to

      sit down. Hale told Lewis to kill Rogers, which Lewis refused to do. Lewis

      handed his revolver to Mays and stated, “if you want it ... you do it.” Trial

      Transcript at 304. Mays proceeded to brutally shoot Rogers multiple times,

      including several times in the head from a distance of six to eighteen inches.

      Lewis, Hale, and Mays collected the victims’ drugs and money and ran to a

      nearby house, where they split up the proceeds of the robbery. Mays had taken

      the shotgun from the drug house also. Eventually, with Lawson’s help, they

      arranged for a ride to a hotel. The men then hung out in the hotel room with

      Lawson and sat around laughing and talking about the shootings. At some

      point that night, Lewis engaged in sex or oral sex with Lawson at the hotel.

      Later, Lewis had his uncle bury the revolver that had been used to kill Rogers.


[9]   The crime remained unsolved for quite some time, and Lewis lived in Arizona

      and Indiana over the next several years. He continued to be involved in drugs

      and crimes as a gang member until at least 2007. Between 2002 and 2006,

      Court of Appeals of Indiana | Opinion 18A-PC-767 | December 21, 2018     Page 4 of 27
       Lewis committed five misdemeanors (resisting law enforcement, driving

       without a license, and disorderly conduct (Indiana 2002); assault and unlawful

       imprisonment (Arizona 2005)) and three felonies (possession of cocaine

       (Indiana 2002), theft (Arizona 2004), and burglary (Arizona 2006)). Lewis

       violated probation more than once, and he was released to parole in Arizona in

       March 2011.


[10]   In the meantime, investigators in Fort Wayne eventually identified Lewis as a

       suspect in the 1999 double murder. They located him in an out-of-state prison

       and interviewed him on May 21, 2009. Lewis gave a statement detailing his

       involvement with Hale and Mays in the robbery turned murder.3


[11]   On February 25, 2011, the State charged Lewis with two counts of felony

       murder and two counts of robbery. He was arrested in Indiana on June 27,

       2011. Jeffrey Raff, an experienced criminal defense attorney, represented Lewis

       throughout the trial proceedings. Lewis rejected plea offers from the State –

       contrary to Raff’s recommendations – because Lewis could not grasp the

       concept of felony murder and believed he was not guilty of murdering Wilson

       and Rogers because he did not shoot either of them.


[12]   The case proceeded to a jury trial on November 29-30, 2011. The jury found

       him guilty as charged. At the beginning of the sentencing hearing on January 5,




       3
        Lewis had previously admitted his involvement in the crime during an interview with a Fort Wayne Police
       Detective in 2002, but no charges were filed at the time.

       Court of Appeals of Indiana | Opinion 18A-PC-767 | December 21, 2018                         Page 5 of 27
       2012, Lewis made clear his dissatisfaction with Attorney Raff and his lack of

       desire to consult with Attorney Raff about sentencing issues. Thereafter,

       Attorney Raff presented no witnesses, made no argument on Lewis’s behalf,

       and made no sentencing recommendation. He simply allowed Lewis to make

       his own statement, which spanned about six pages of the transcript. The State,

       on the other hand, presented a number of witnesses, asserted several

       aggravating circumstances, and asked the court to impose aggravated,

       consecutive sentences. At the conclusion of the sentencing hearing, the trial

       court imposed maximum sixty-five-year sentences for the felony murder

       convictions and ordered them to be served consecutively. 4 The trial court noted

       several aggravating circumstances (criminal history, gang membership, and the

       senseless, horrific nature of the offenses) and found no mitigating

       circumstances. In support of consecutive sentences, the trial court indicated

       that there were two victims and that Lewis had an aggravated criminal record.


[13]   Lewis pursued a direct appeal with new counsel, Stanley Campbell. Attorney

       Campbell challenged the sufficiency of the evidence. We affirmed the

       convictions in a memorandum decision. See Lewis v. State, No. 02A03-1201-

       CR-18 (Ind. Ct. App. Aug. 31, 2012), trans. denied. We noted that all

       participants in a robbery that results in killing by one robber are deemed equally

       guilty of murder, regardless of which participant actually killed the victim.

       Based on the evidence presented at trial, we determined the “jury could have



       4
           Judgments of conviction were not entered on the robbery counts.


       Court of Appeals of Indiana | Opinion 18A-PC-767 | December 21, 2018     Page 6 of 27
       reasonably inferred … that Lewis possessed the requisite intent to participate in

       the robberies, that he was an accomplice to the robberies and murders, and that

       the killings of Rogers and Wilson were probable and natural consequences of

       the actions of Lewis, Hale, and Mays.” Slip op. at 7.


[14]   On May 6, 2013, Lewis filed a pro se petition for post-conviction relief, which

       was amended by post-conviction counsel on October 31, 2016. An evidentiary

       hearing was held on July 7, 2017. Lewis argued that Attorney Raff failed to

       advocate on Lewis’s behalf at sentencing, which resulted in Lewis receiving a

       de facto life sentence. Lewis argued that there were several available mitigating

       circumstances that should have been asserted at sentencing. Specifically, Lewis

       was eighteen when he committed the crimes, he acted as an accomplice, he has

       mental health issues, and he had a difficult upbringing. Additionally, Lewis

       claimed that Attorney Campbell was ineffective for failing to challenge the

       sentence as inappropriate on direct appeal.


[15]   At the post-conviction hearing, Lewis called Attorney Raff and clinical

       psychologist Dr. James Cates as witnesses. He also testified on his own behalf

       and introduced several exhibits, including the affidavit of Attorney Campbell.

       The State acknowledged that Attorney Raff “basically did not do any advocacy

       at the sentencing hearing” but argued that “what Mr. Raff could have come up

       with would have had limited mitigating value and would probably not have

       made a difference in the outcome.” Post-Conviction Transcript at 4.




       Court of Appeals of Indiana | Opinion 18A-PC-767 | December 21, 2018      Page 7 of 27
[16]   The post-conviction court denied relief on March 15, 2018, with a lengthy

       order. The trial court made the following findings of fact regarding the

       evidence presented at the post-conviction hearing:


               8. Attorney Raff did nothing at sentencing, other than to
               announce that Petitioner might speak on his own behalf.
               Attorney Raff testified at the post-conviction hearing, in relevant
               part, as follows. In preparation for Petitioner’s sentencing, he
               would have reviewed Petitioner’s criminal history, had personal
               contact with him, and reviewed the pre-sentence investigation
               report. He believed that no mitigators were available in this case.
               He made no inquiries about Petitioner’s mental health history,
               and was not aware that Petitioner had attempted suicide at the
               Allen County Jail…. He did not ask Petitioner about his
               upbringing or his family members, did not speak to his relatives
               or friends, and did not have him examined by a mental health
               professional. He did not prepare Petitioner to make a statement
               at sentencing, and explained that Petitioner did not take his
               advice well. He would have asked whether any family members
               wanted to speak or write on Petitioner’s behalf. Petitioner had a
               very poor character and very bad criminal history. He expected
               that Petitioner would receive consecutive sentences, one for each
               victim, of at least 55 years each. He could not identify any
               mitigators that he could argue with a straight face. He saw no
               indication that Petitioner had mental health issues, but rather “he
               just had a pretty extensive history of being a gangster basically.”
               Young age could be a mitigator, but Petitioner was in his late 20s
               by the time of his sentencing, and “his criminal history negated
               any mitigator he might arguably have had because of his youth at
               the time of the offense.” He suspected that a defendant’s status
               as an accomplice had no weight as a mitigator. As to a
               defendant’s difficult upbringing, Attorney Raff testified:

                        I was not of the school of thought that said that my client
                        was not well treated when he was five or six, therefore that
                        explains to some extent his robbing these people with a
       Court of Appeals of Indiana | Opinion 18A-PC-767 | December 21, 2018        Page 8 of 27
                 gun. I think there’s got to be some realistic relationship
                 between the upbringing and the conduct.

        Attorney Raff saw no nexus between any possible mitigating
        factor and anything in Petitioner’s conduct and speech.


        9. Attorney Campbell stated by affidavit, in relevant part, that
        his ability to challenge Petitioner’s sentence was hindered by trial
        counsel’s (Raff’s) failure to present evidence and argument in
        favor of a mitigated sentence; Attorney Campbell would have
        challenged the sentence as inappropriate under Indiana Appellate
        Rule 7(B) if Attorney Raff had made a record at sentencing
        regarding Petitioner’s mental health issues and troubled family
        background; the sufficiency of evidence argument was not a
        strong issue, and the Appellate Rule 7(B) challenge would have
        been a stronger issue, particularly if a record had been developed
        at sentencing.


        10. Psychologist James A. Cates, Ph.D., testified at the post-
        conviction hearing, in relevant part, as follows. He interviewed
        Petitioner in 2016 and administered several psychological tests
        …. He learned that Petitioner’s mother was a drug abuser, she
        had abusive men in the home, and she was diagnosed with
        bipolar disorder; that Petitioner was physically abused by his
        mother and her boyfriends; and that his housing situation was
        unstable. Dr. Cates diagnosed Petitioner with “bipolar II
        disorder” and noted that he also exhibited antisocial personality
        traits. Dr. Cates was the first clinician who formally diagnosed
        Petitioner with bipolar disorder…. “Bipolar II” is a slightly less
        severe degree of bipolar disorder than “bipolar I,” not involving
        any reported full manic episodes. Bipolar disorder is not always
        apparent, and indeed people with that disorder “can go through
        periods where their mood is absolutely stable.” Dr. Cates
        believed that, at the time of the murder, Petitioner was likely
        already experiencing distorted logic and decision-making from
        bipolar disorder. The effect of bipolar disorder upon Petitioner’s

Court of Appeals of Indiana | Opinion 18A-PC-767 | December 21, 2018          Page 9 of 27
        behavior around the time of the crime would depend on whether
        he was in a depressed phase or a hypomanic/manic phase, but
        there were several possibilities:

                 [Y]ou could potentially see increased impulsivity, you
                 could see increased disruption in his thought processes, his
                 ability to think through the consequences of actions. You
                 could see … auditory/visual hallucinations, you could see
                 delusions, all those are potential.

        Petitioner had had a substance abuse problem, which could have
        resulted from efforts at self-medication for bipolar disorder.
        Consistent with the diagnosis of bipolar disorder, Petitioner’s
        medical records from the Arizona Department of Corrections
        indicated that he was prescribed mood-stabilizing drugs. At the
        time of the crime, Petitioner’s “maturity level was probably much
        younger than his chronological age would suggest.” Numerous
        children who live in traumatized situations do not evidence a
        conduct disorder. Up to the age of 18, around the time of the
        offense, Petitioner had displayed no conduct disorder. During
        the time when Petitioner was admittedly a gang member, from
        the ages of 13 to 26, he would have been more likely to derive his
        values from the gang, rather than anything in society that might
        have been opposed to the gang’s values.


        11. Relatives of Petitioner stated by affidavit, in relevant part,
        that his mother was addicted to drugs; his father was mostly
        absent and did not help to raise him; he had an unstable home
        life; he and his mother were physically abused by the mother’s
        boyfriends; at the age of nine, he witnessed one boyfriend
        stabbing another; he began using and selling drugs at an early
        age; members of his family suffer from mental illnesses including
        bipolar disorder, schizophrenia, depression, and substance abuse
        disorder; his mother has been diagnosed with bipolar disorder
        and is deemed “seriously mentally ill” by the State of Arizona;
        and he tried to commit suicide in his late teens.


Court of Appeals of Indiana | Opinion 18A-PC-767 | December 21, 2018       Page 10 of 27
               12. Petitioner testified at the post-conviction hearing, in relevant
               part, as follows. He and Attorney Raff never discussed a plan or
               evidence for sentencing. Attorney Raff never asked him about
               his mental health history or his family and personal background,
               and did not discuss having anyone speak on his behalf at
               sentencing. He told the probation officer who prepared his pre-
               sentence investigation report (PSI) that he did not have mental
               health issues (although he had been diagnosed with bipolar
               disorder) because he was nervous and scared. However, if
               Attorney Raff had asked him about his mental health, of course
               he would have told him about the previous treatment. Attorney
               Raff did not prepare him to speak at sentencing, and he did not
               meet with him between the time he was convicted and the time
               he was sentenced. He was admitted twice to Parkview
               Behavioral Health in 2002, and was first told that he had bipolar
               disorder while in the Arizona Department of Correction in 2004
               or 2005. He attempted suicide in the Allen County Jail in 2002.


       Appendix Vol. III at 30-34 (citations to record omitted).


[17]   In its conclusions, the post-conviction court addressed each of the potential

       mitigating circumstances and determined that Attorney Raff erred in certain

       regards. Regardless, the court concluded that Lewis was not prejudiced by the

       alleged deficient performance because “[e]ven if Attorney Raff had done

       everything that Petitioner now wishes he had done, there would have been little

       or (more likely) no effect on the sentence.” Id. at 41. The post-conviction

       court’s conclusions will be set out more fully below, but it ultimately concluded,

       based on lack of prejudice, that Lewis did not receive ineffective assistance of

       trial or appellate counsel. Additionally, the post-conviction court rejected

       Lewis’s argument, based on U.S. v. Cronic, 466 U.S. 648 (1984), that he did not


       Court of Appeals of Indiana | Opinion 18A-PC-767 | December 21, 2018      Page 11 of 27
       have to establish prejudice. Lewis now appeals the denial of his petition for

       post-conviction relief.


                                              Standard of Review


[18]   In a post-conviction proceeding, the petitioner bears the burden of establishing

       grounds for relief by a preponderance of the evidence. Bethea v. State, 983

       N.E.2d 1134, 1138 (Ind. 2013). “When appealing the denial of post-conviction

       relief, the petitioner stands in the position of one appealing from a negative

       judgment.” Id. (quoting Fisher v. State, 810 N.E.2d 674, 679 (Ind. 2004)). In

       order to prevail, the petitioner must demonstrate that the evidence as a whole

       leads unerringly and unmistakably to a conclusion opposite that reached by the

       post-conviction court. Id. Although we do not defer to a post-conviction

       court’s legal conclusions, we will reverse its findings and judgment only upon a

       showing of clear error, i.e., “that which leaves us with a definite and firm

       conviction that a mistake has been made.” Id. (quoting Ben–Yisrayl v. State, 729

       N.E.2d 102, 106 (Ind. 2000)).


[19]   A petitioner will prevail on a claim of ineffective assistance of counsel upon a

       showing that counsel’s performance fell below an objective standard of

       reasonableness and that the deficient performance prejudiced the petitioner. Id.

       To satisfy the first element, the petitioner must demonstrate deficient

       performance, which is “representation that fell below an objective standard of

       reasonableness, committing errors so serious that the defendant did not have

       the ‘counsel’ guaranteed by the Sixth Amendment.” Id. (quoting McCary v.


       Court of Appeals of Indiana | Opinion 18A-PC-767 | December 21, 2018      Page 12 of 27
       State, 761 N.E.2d 389, 392 (Ind. 2002)). The second element requires a

       showing of prejudice, which is “a reasonable probability that, but for counsel’s

       errors, the result of the proceeding would have been different.” Id. at 1139. “A

       reasonable probability is one that is sufficient to undermine confidence in the

       outcome.” Kubsch v. State, 934 N.E.2d 1138, 1147 (Ind. 2010) (quoting

       Strickland v. Washington, 466 U.S. 668, 694 (1984)). Because a petitioner must

       prove both deficient performance and prejudice to prevail on a claim of

       ineffective assistance of counsel, the failure to prove either element defeats such

       a claim. See Young v. State, 746 N.E.2d 920, 927 (Ind. 2001).


                                          Trial Counsel’s Effectiveness


[20]   Undoubtedly, Attorney Raff was deficient in his representation of Lewis at the

       sentencing hearing. Lewis faced a maximum sentence of 130 years, essentially

       a life sentence. Although present, Attorney Raff did nothing for his client at

       sentencing aside from indicate that Lewis would speak on his own behalf at the

       conclusion of the hearing. Lewis argues that at a minimum Attorney Raff

       should have proffered several mitigating circumstances and argued against

       maximum, consecutive sentences.5 See McCarty v. State, 802 N.E.2d 959, 969




       5
         In sum, Lewis asserts that “[i]nstead of humanizing Lewis and presenting evidence of his difficult
       upbringing, his youth, and his mental illness and substance addiction, [Attorney] Raff displayed rancor
       toward [Lewis].” Appellant’s Brief at 28. Lewis continues: “[Raff’s] comments during closing argument that
       his client was a disgusting and bad person with a disgusting lifestyle, coupled with his silence at sentencing,
       betrayed his duty of loyalty to his client and left the jury and sentencing court with a horrible impression of
       Lewis.” Id. Moreover, Lewis observes that it was the trial court’s duty to determine the weight of proffered
       mitigating circumstances, making Attorney Raff’s decision to unilaterally remove available mitigators from
       consideration improper. “While Raff had the discretion to weed out weaker arguments from stronger ones,

       Court of Appeals of Indiana | Opinion 18A-PC-767 | December 21, 2018                               Page 13 of 27
       (Ind. Ct. App. 2004) (concluding, in a multiple-felony case, that “[c]ounsel’s

       failure to investigate and present to the court numerous potentially mitigating

       circumstances constituted deficient performance”), trans. denied. Although we

       agree that trial counsel was deficient, our review leaves us with the firm

       conviction that Lewis was not prejudiced by counsel’s deficient performance.

       In this regard, we address each potential mitigating circumstance below.


                                            Role as Accomplice
[21]   Lewis contends that his role as an accomplice in the murders was both relevant

       and mitigating. Our Supreme Court has observed:


                While an accomplice may be found guilty of the crime largely
                executed by his principal, it does not follow that the same penalty
                is appropriate. Justice Frankfurter has written, “[T]here is no
                greater inequality than the equal treatment of unequals.” Dennis
                v. United States, 339 U.S. 162, 184, 70 S.Ct. 519, 526, 94 L.Ed.
                734, 749 (1949) (dissenting opinion).


       Martinez Chavez v. State, 534 N.E.2d 731, 735 (Ind. 1989); see also Brown v. State,

       10 N.E.3d 1, 5 (Ind. 2014) (revising inappropriate sentence from 150 years to 80

       years in part because defendant acted as an accomplice in murders).


[22]   Although Lewis acted as an accomplice, the evidence establishes that his role in

       the murders was substantial and that he was actively involved before, during,

       and after the horrific murders of a fourteen-year old and sixteen-year old.




       his silence communicated to the court that there were no possible mitigators and that his client deserved the
       maximum sentence.” Appellant’s Reply Brief at 5.

       Court of Appeals of Indiana | Opinion 18A-PC-767 | December 21, 2018                             Page 14 of 27
       Before, Lewis planned the robbery of two young drug dealers with Hale and

       Mays. He took his own gun to the robbery and was aware that Hale, a person

       he knew to be violent, was armed with a gun. During the crime, as Wilson was

       being shot, Lewis reached for the shotgun to keep it away from Rogers. Lewis

       also handed his own gun to Mays, who was unarmed, and invited him to shoot

       Rogers if he wished. Mays proceeded to shoot Rogers in the head multiple

       times from a close distance. After, Lewis fled with his cohorts, taking the

       shotgun with him. The three divided the drugs and money and then spent the

       night in a hotel essentially celebrating and laughing about the evening’s events.

       Considering the totality of his involvement, we agree with the trial court that

       Lewis’s role as an accomplice was not deserving of mitigating weight.


                                                         Age


[23]   The murders were committed shortly after Lewis turned eighteen years old. He

       argues that his age, “while not legally excusing his behavior, was relevant to

       contextualize his behavior during and after the crime occurred.” Appellant’s

       Brief at 25.


[24]   In addressing the appropriateness of a sixteen-year-old defendant’s 150-year

       sentence in Brown, the Supreme Court stated:


               We take this opportunity to reiterate what the United States
               Supreme Court has expressed: Sentencing considerations for
               youthful offenders – particularly for juveniles – are not
               coextensive with those for adults. See Miller v. Alabama, [567]
               U.S. [460], [480,] 132 S.Ct. 2455, 2469, 183 L.Ed.2d 407 (2012)
               (requiring the sentencing judge to “take into account how
       Court of Appeals of Indiana | Opinion 18A-PC-767 | December 21, 2018    Page 15 of 27
               children are different, and how those differences counsel against
               irrevocably sentencing them to a lifetime in prison” (footnote
               omitted)). Thus, both at initial sentencing and on appellate
               review it is necessary to consider an offender’s youth and its
               attendant characteristics.


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


[25]   Though not identified as a statutory mitigating circumstance, it is well

       established that a defendant’s youth may be a significant mitigating factor in

       some circumstances. See Smith v. State, 872 N.E.2d 169, 178 (Ind. Ct. App.

       2007), trans. denied.


               Focusing on chronological age is a common shorthand for
               measuring culpability, but for people in their teens and early
               twenties it is frequently not the end of the inquiry. There are
               both relatively old offenders who seem clueless and relatively
               young ones who appear hardened and purposeful.


       Ellis v. State, 736 N.E.2d 731, 736 (Ind. 2000).


[26]   The record shows that Lewis was not a clueless eighteen-year-old. By his own

       admission, he had been a gang member for several years before the crime. He

       actively planned and participated in the robbery turned double murder and

       seemed unaffected by the horrific results. Further, any diminished culpability

       due to his age is overshadowed by his continued involvement in criminal

       conduct and gang life for many years thereafter. Any weight given this

       mitigator would be exceedingly minimal under the circumstances.


                                              Difficult Childhood

       Court of Appeals of Indiana | Opinion 18A-PC-767 | December 21, 2018       Page 16 of 27
[27]   With minimal investigation, Lewis argues that Attorney Raff would have

       learned of additional mitigating evidence, including his difficult childhood. In

       this regard, Lewis presented evidence at the post-conviction hearing that he was

       raised by a drug-addicted mother who suffers from bipolar disorder and has

       been deemed seriously mentally ill by the State of Arizona. Lewis was

       physically abused by his mother’s boyfriends and, at the age of nine, he

       witnessed one boyfriend stabbing another. Lewis began using and selling drugs

       at an early age and eventually dropped out of school and took to the streets.


[28]   Our Supreme Court has indicated that “evidence about the defendant’s

       background and character is relevant because of the belief, long held by this

       society, that defendants who commit criminal acts that are attributable to a

       disadvantaged background, or to emotional and mental problems, may be less

       culpable than defendants who have no such excuse.” Coleman v. State, 741

       N.E.2d 697, 700 (Ind. 2000) (quoting Penry v. Lynaugh, 492 U.S. 302, 319

       (1989)). Evidence of a difficult childhood, however, generally “warrants little,

       if any, mitigating weight.” Id.


                                                  Mental Health


[29]   The final mitigating factor advanced by Lewis at the post-conviction hearing

       was his mental illness. Specifically, Lewis had attempted suicide, was treated

       with mood-stabilizing drugs while incarcerated in Arizona, and has suffered

       from substance abuse and bipolar disorder. Dr. Cates opined that, at the time




       Court of Appeals of Indiana | Opinion 18A-PC-767 | December 21, 2018   Page 17 of 27
       of the murders, Lewis may have been experiencing distorted logic and decision

       making, and his maturity level was likely much younger than his actual age.


[30]   Several factors bear on the weight, if any, that should be given to mental illness

       at sentencing.


               These factors include: (1) the extent of the defendant’s inability to
               control his or her behavior due to the disorder or impairment; (2)
               overall limitations on functioning; (3) the duration of the mental
               illness; and (4) the extent of any nexus between the disorder or
               impairment and the commission of the crime.


       Weeks v. State, 697 N.E.2d 28, 30 (Ind. 1998). Here, Dr. Cates diagnosed Lewis

       in 2016 with Bipolar II, a less-severe form of the disorder. There is no evidence

       that Lewis was suffering from this disorder in 1999, which makes establishing a

       nexus between the crime and Lewis’s mental state rather difficult. The extent

       to which Lewis would have been unable to control his behavior due to the

       disorder is similarly unclear, and his behavior before, during, and after the

       murders suggests that he was in control of his faculties. The weight attributable

       to this mitigator, if any, would have been extremely low under the

       circumstances.


                                            Consecutive Sentences


[31]   Additionally, Lewis argues that Attorney Raff should have argued against

       consecutive sentences in light of the available mitigating circumstances. Lewis

       does not dispute that the aggravating circumstance of multiple victims generally

       suffices to support consecutive sentences. Indeed, “when the perpetrator

       Court of Appeals of Indiana | Opinion 18A-PC-767 | December 21, 2018       Page 18 of 27
       commits the same offense against two victims, enhanced and consecutive

       sentences seem necessary to vindicate the fact that there were separate harms

       and separate acts against more than one person.” Serino v. State, 798 N.E.2d

       852, 857 (Ind. 2003).


[32]   Lewis notes that consecutive sentences, however, are not always required where

       there are multiple murder victims. For example, in Holsinger v. State, 750

       N.E.2d 354 (Ind. 2001), the Court reversed a sentence of two consecutive

       sentences of life in prison without parole after finding several sentencing errors.

       The Court chose to resentence the defendant with an independent consideration

       of the aggravating and mitigating factors. In mitigation, the Court observed

       that the defendant was nineteen when he participated in the murders (and

       robberies), he had a troubled childhood, his co-defendant was the

       instigator/leader of the criminal episode, and he had no juvenile or criminal

       history. Id. at 363-64. Despite finding that the “aggravating circumstances

       outweighed the mitigating circumstances by a sufficient magnitude that the

       maximum sentence of 65 years for murder should be imposed on each count”,

       the Court ordered the sentences on the two murder counts to be served

       concurrently. Id. at 365; see also Brown, 10 N.E.3d at 4-8 (revising inappropriate

       sentence from 150 years to 80 years for two counts of murder and one count of

       robbery where defendant was only 16 years old, was an accomplice/not the

       mastermind, the murders were not particularly heinous, and defendant’s only

       violent juvenile offense was a battery).




       Court of Appeals of Indiana | Opinion 18A-PC-767 | December 21, 2018     Page 19 of 27
[33]   Although consecutive sentences are not always a given when there are multiple

       murder victims, concurrent sentences are undoubtedly the exception. We

       cannot agree with Lewis that the facts of this case lend themselves to making

       concurrent sentences appropriate. As discussed above, although Lewis was

       relatively young and acted as an accomplice, his culpability was great.

       Moreover, unlike in Brown, these murders were particularly heinous. The

       victims were fourteen and sixteen years old and were each shot multiple times

       in senseless acts of violence. In fact, Lewis callously provided the murder

       weapon to Mays for the purpose of killing Rogers if Mays wanted to. After

       leaving the victims to die,6 the trio, along with Lawson, partied into the night

       and laughed about their crimes. In addition to the nature and circumstances of

       the murders, we find relevant Lewis’s substantial criminal behavior in the

       subsequent years and his continued association with Hale and Mays.


                                                      Prejudice
[34]   The post-conviction court determined that even if Attorney Raff had done

       everything that Lewis now wishes he had done, “there would have been little or

       (more likely) no effect on the sentence.” Appendix Vol. III at 41. The court

       noted that consecutive sentences were supported by the aggravating

       circumstance of multiple victims, the second of which was killed after Lewis

       handed his gun to Mays. The court opined, “it is inconceivable that Attorney




       6
        The evidence at trial indicated that one of the victims was still alive for a period of time after being shot and
       he moved around the house, leaving a trail of blood.

       Court of Appeals of Indiana | Opinion 18A-PC-767 | December 21, 2018                                Page 20 of 27
Raff could have presented any evidence or argument that would have altered

the Court’s decision” regarding consecutive sentences. Id. The court

continued:


        [I]t is at least conceivable that Attorney Raff could have obtained
        an aggregate sentence of less than 130 years (but at least 110
        years) for Petitioner by presenting mitigating evidence. In view
        of the weakness of the available mitigating evidence, however,
        there is no reasonable probability that Petitioner would have
        received a sentence of less than 130 years. There would have
        been no basis for an argument that Petitioner’s participation as
        an accomplice was entitled to any mitigating weight. His age of
        18 at the time of the offense would have lost all or most of the
        limited significance it did possess in view of his age of 30 at the
        time of sentencing. His difficult childhood would have
        warranted “little, if any, mitigating weight”, particularly in view
        of the lack of evidence connecting his bad childhood with his
        later decision to take part in an armed robbery. His bipolar
        disorder, also not shown to have any nexus with his crimes,
        would likewise have deserved little weight, if any, as a mitigating
        factor. Although the Court would have had discretion to give
        some modest weight to these claimed mitigators, and accordingly
        to impose an aggregate sentence slightly below the maximum
        possible, there is no reasonable probability that the Court would
        actually have done so under the circumstances of Petitioner’s
        case. See Taylor v. State, 840 N.E.2d 324, 331 (Ind. 2006),
        quoting Strickland, 466 U.S. at 687 (a “reasonable probability” is
        a probability “sufficient to undermine confidence in the
        outcome”). Petitioner’s defense therefore did not suffer prejudice
        from Attorney Raff’s failure to present mitigating evidence and
        argument at sentencing.


Appendix Vol. III at 41-42 (some citations omitted).



Court of Appeals of Indiana | Opinion 18A-PC-767 | December 21, 2018     Page 21 of 27
[35]   “The dispositive question in determining whether a defendant is prejudiced by

       counsel’s failure at sentencing to present mitigating evidence is what effect the

       totality of the omitted mitigation evidence would have had on the sentence.”

       McCarty, 802 N.E.2d at 967 (citing Coleman, 741 N.E.2d at 702). Thus, on

       review, we determine whether there is a reasonable probability that the trial

       court would have imposed a lesser sentence had it been fully informed of the

       mitigating evidence. McCarty, 802 N.E.2d at 969.


[36]   We agree with the post-conviction court that there is not a reasonable

       probability that presentation of the omitted mitigating evidence would have

       affected Lewis’s sentence. While Attorney Raff certainly should have proffered

       the mitigators at sentencing, the meager weight of those simply could not

       withstand the overwhelming weight of the aggravating circumstances. Without

       recounting everything above, we observe that this was a senseless and horrific

       crime, resulting in the death of two teenage boys, and Lewis, an active

       participant at all stages, seemed to be unfazed by his involvement in the killings.

       For at least the next eight years, Lewis continued his criminal behavior and was

       convicted in both Arizona and Indiana of several felonies and misdemeanors. 7

       Although Lewis gave a detailed statement to detectives, he never grasped that

       he was culpable for the killings and his statement at sentencing was not




       7
        Lewis reported that his role in the Gangster Disciples, of which he was a member from age thirteen to age
       twenty-six, was “selling drugs, robbing people, and beating people up.” Post-Conviction Exhibits at Petitioner’s
       Exhibit B (PSI report).

       Court of Appeals of Indiana | Opinion 18A-PC-767 | December 21, 2018                              Page 22 of 27
       reflective of true remorse. The post-conviction court’s determination regarding

       lack of prejudice was not clearly erroneous.


                                                  U.S. v. Cronic


[37]   Lewis argues that this is a rare case in which prejudice is presumed due to trial

       counsel’s effective abandonment of his client during a critical stage in the

       proceedings. This argument is based on U.S. v. Cronic, 466 U.S. 648 (1984).


[38]   In Cronic, the U.S. Supreme Court identified three situations implicating the

       right to counsel that involved circumstances “so likely to prejudice the accused

       that the cost of litigating their effect in a particular case is unjustified.” Id. at

       658-659. First and “[m]ost obvious … is the complete denial of counsel” at a

       critical stage of trial. Id. at 659. Secondly, the Court noted “if counsel entirely

       fails to subject the prosecution’s case to meaningful adversarial testing, then

       there has been a denial of Sixth Amendment rights that makes the adversary

       process itself presumptively unreliable.” Id. Finally, the Court included cases

       “where counsel is called upon to render assistance under circumstances where

       competent counsel very likely could not”. Bell v. Cone, 535 U.S. 685, 696 (2002)

       (citing Cronic, 466 U.S. at 659-662).


[39]   Lewis argues that his claim fits within the second exception identified in Cronic

       because counsel failed to subject the State’s case to meaningful adversarial

       testing at the sentencing hearing. We do not agree that Lewis’s claim is

       controlled by Cronic rather than Strickland.



       Court of Appeals of Indiana | Opinion 18A-PC-767 | December 21, 2018          Page 23 of 27
[40]   The U.S. Supreme Court has emphasized the narrowness of Cronic’s exceptions.


                The Court has relieved defendants of the obligation to make this
                affirmative showing [of prejudice] in only a very narrow set of
                cases in which the accused has effectively been denied counsel
                altogether: These include the actual or constructive denial of
                counsel, state interference with counsel’s assistance, or counsel
                that labors under actual conflicts of interest.


       Weaver v. Massachusetts, 137 S. Ct. 1899, 1915, 198 L. Ed. 2d 420 (2017); see also

       Kimmelman v. Morrison, 477 U.S. 365, 382 n.6 (1986) (noting the “few contexts”

       where prejudice is presumed are “where counsel is either totally absent or

       prevented from assisting the accused during a critical stage of the proceeding”

       and “where counsel is burdened by an actual conflict of interest”).


[41]   Strickland and Cronic were issued the same day, and Strickland also addressed the

       concept of presuming prejudice in certain contexts:


                Actual or constructive denial of the assistance of counsel
                altogether is legally presumed to result in prejudice. So are
                various kinds of state interference with counsel’s assistance.
                Prejudice in these circumstances is so likely that case-by-case
                inquiry into prejudice is not worth the cost. Moreover, such
                circumstances involve impairments of the Sixth Amendment
                right that are easy to identify and, for that reason and because the
                prosecution is directly responsible, easy for the government to
                prevent.[8]



       8
        Similarly, in discussing the second exception in Cronic, the Court cited a case in which defense counsel was
       precluded by a protective order from effectively cross examining a key prosecution witness. Cronic, 466 U.S.
       at 659 (citing Davis v. Alaska, 415 U.S. 308 (1974)). Because this was a “constitutional error of the first
       magnitude”, no showing of lack of prejudice could cure it. Id. (quoting Davis, 415 U.S. at 318). The Court

       Court of Appeals of Indiana | Opinion 18A-PC-767 | December 21, 2018                            Page 24 of 27
                One type of actual ineffectiveness claim warrants a similar,
                though more limited, presumption of prejudice. [P]rejudice is
                presumed when counsel is burdened by an actual conflict of
                interest. Even so, the rule is not quite the per se rule of prejudice
                that exists for the Sixth Amendment claims mentioned above.
                Prejudice is presumed only if the defendant demonstrates that
                counsel “actively represented conflicting interests” and that “an
                actual conflict of interest adversely affected his lawyer’s
                performance.”

                Conflict of interest claims aside, actual ineffectiveness claims
                alleging a deficiency in attorney performance are subject to a
                general requirement that the defendant affirmatively prove
                prejudice. The government is not responsible for, and hence not
                able to prevent, attorney errors that will result in reversal of a
                conviction or sentence.


       Strickland, 466 U.S. at 692-93 (citations omitted).


[42]   Moreover, since Cronic was decided in 1984, the U.S. Supreme Court has never

       applied the second exception to relieve a convicted defendant of the need to

       prove prejudice, nor has the Indiana Supreme Court.9 In Bell, the Court simply

       spoke of “the possibility of presuming prejudice based on an attorney’s failure to

       test the prosecutor’s case” where the attorney’s failure is complete. Bell, 535




       observed: “Apart from circumstances of that magnitude, however, there is generally no basis for finding a
       Sixth Amendment violation unless the accused can show how specific errors of counsel undermined the
       reliability of the finding of guilt.” Id. at 659 n. 26.
       9
         We acknowledge that the Seventh Circuit has applied the second Cronic exception in cases similar to
       Lewis’s. See Miller v. Martin, 481 F.3d 468, 472 (7th Cir. 2007); Patrasso v. Nelson, 121 F.3d 297, 303-05 (7th
       Cir. 1997). These decisions, however, are not binding upon us. See Ind. Dep’t of Public Welfare v. Payne, 622
       N.E.2d 461, 468 (Ind. 1993) (“Although U.S. Supreme Court decisions pertaining to federal questions are
       binding on state courts, lower federal court decisions may be persuasive but have non-binding authority on
       state courts.”).

       Court of Appeals of Indiana | Opinion 18A-PC-767 | December 21, 2018                               Page 25 of 27
       U.S. at 696-97 (emphasis supplied). Ultimately, the Court concluded in Bell:

       “The aspects of counsel’s performance challenged by respondent – the failure to

       adduce mitigating evidence and the waiver of closing argument – are plainly of

       the same ilk as other specific attorney errors we have held subject to Strickland’s

       performance and prejudice components.” Id. at 697-98.


[43]   We are not persuaded that Lewis’s claim falls within one of the limited

       circumstances of extreme magnitude that justify a presumption of

       ineffectiveness under Cronic.10 The post-conviction court, therefore, correctly

       determined that Lewis was required to establish prejudice under Strickland.


                                      Appellate Counsel’s Effectiveness


[44]   Briefly, Lewis also argues that his appellate counsel, Attorney Campbell, was

       ineffective for failing to challenge his sentence as inappropriate on direct appeal.

       Deficient performance will be found where the unraised issue on appeal was

       “significant and obvious from the face of the record” and was “clearly stronger”

       than the issue raised. Timberlake v. State, 753 N.E.2d 591, 606 (Ind. 2001). A

       reviewing court, however, “should not find deficient performance when

       counsel’s choice of some issues over others was reasonable in light of the facts




       10
          We note that Attorney Raff’s lack of advocacy at the sentencing hearing appears to have been, at least in
       part, invited by Lewis, who expressed clear disdain for counsel. Lewis, a difficult, angry client, indicated at
       the sentencing hearing, “I really don’t want to discuss nothin’ with Jeffrey Raff any further.” Sentencing
       Transcript at 5. In preparing for the sentencing hearing, Attorney Raff determined (incorrectly) that there
       were no mitigating circumstances that he could present to the trial court. He believed “the only hope [for
       Lewis] was to make an expression of remorse”. Post-Conviction Transcript at 15. In this vein, Lewis gave a
       lengthy statement at sentencing. The statement, however, veered off from any true expression of remorse.

       Court of Appeals of Indiana | Opinion 18A-PC-767 | December 21, 2018                               Page 26 of 27
       of the case and the precedent available to counsel when that choice was made.”

       Bieghler v. State, 690 N.E.2d 188, 194 (Ind. 1997). If deficient performance is

       established, we then examine whether the issue that appellate counsel failed to

       raise would have been clearly more likely to result in reversal or an order for a

       new trial. Id.


[45]   Attorney Campbell acknowledged that the sufficiency argument presented on

       direct appeal was not a strong issue and that a challenge to the sentence would

       have been a stronger issue if the record had been properly developed at the

       sentencing hearing. Attorney Campbell, however, felt that his hands were tied

       by Attorney Raff’s failure to proffer any mitigating circumstances below. Had

       Attorney Raff made a proper record, Attorney Campbell averred that he would

       have challenged the 130-year sentence as inappropriate. Additionally, Attorney

       Campbell believed that challenging the sentence on direct appeal with an

       undeveloped record might hinder Lewis’s ability to pursue a post-conviction

       claim of ineffective assistance of trial counsel. Attorney Campbell’s assessment

       of the sentencing issue and determination not to raise it on direct appeal were

       reasonable and did not constitute deficient performance.


[46]   Judgment affirmed.


       Riley, J. and Bradford, J., concur.




       Court of Appeals of Indiana | Opinion 18A-PC-767 | December 21, 2018     Page 27 of 27
