                                                                         FILED
                                                                    Sep 06 2018, 6:15 am

                                                                         CLERK
                                                                     Indiana Supreme Court
                                                                        Court of Appeals
                                                                          and Tax Court




ATTORNEYS FOR APPELLANT                                  ATTORNEY FOR APPELLEE
Curtis T. Hill, Jr.                                      David W. Stone, IV
Attorney General of Indiana                              STONE Law Office & Legal
                                                         Research
Ellen H. Meilaender
                                                         Anderson, Indiana
Supervising Deputy Attorney General
Jodi Kathryn Stein
Deputy Attorney General
Indianapolis, Indiana



                                            IN THE
    COURT OF APPEALS OF INDIANA

State of Indiana,                                        September 6, 2018
Appellant-Respondent,                                    Court of Appeals Case No.
                                                         18A02-1701-PC-68
        v.                                               Appeal from the Delaware Circuit
                                                         Court
Matthew Stidham,                                         The Honorable Kimberly S.
Appellee-Plaintiff.                                      Dowling, Judge
                                                         Trial Court Cause No.
                                                         18C02-1602-PC-3



Brown, Judge.




Court of Appeals of Indiana |Opinion 18A02-1701-PC-68 | September 6, 2018                    Page 1 of 27
[1]   The State of Indiana appeals the post-conviction court’s grant of a petition for

      post-conviction relief filed by Matthew Stidham. The State raises one issue

      which we revise and restate as whether the post-conviction court erred by

      granting Stidham post-conviction relief. We reverse.


                                       Facts and Procedural History

[2]   The relevant facts as discussed in Stidham’s direct appeal follow:


              On the night of February 23, 1991, [Stidham] and several of his
              friends, including the decedent in this case, drove to the
              decedent’s apartment where they drank whiskey and played
              guitars. They eventually started “trading punches.” This
              evidentially started as horseplay but grew into an angry
              encounter between [Stidham] and the decedent.

              As the fight escalated, the others joined with [Stidham] in beating
              the decedent. Not only did they beat and kick the decedent, but
              they also struck him with a wooden club. They then loaded
              much of the decedent’s electronic equipment into his van, gagged
              him, placed him in the back of the van and drove off. They
              eventually arrived at a secluded area near the Mississinewa River
              where the decedent was removed from the van and again beaten
              and stabbed some forty-seven times before his body was thrown
              into the river. After visiting with friends, who they told of the
              killing, [Stidham] and his associates drove into the State of
              Illinois where they were arrested.

      Stidham v. State, 637 N.E.2d 140, 142 (Ind. 1994).


[3]   A jury trial resulted in the conviction of Stidham for murder, robbery as a class

      A felony, criminal confinement as a class B felony, battery as a class C felony,

      and auto theft as a class D felony. Id. In February 1993, the Indiana Supreme



      Court of Appeals of Indiana |Opinion 18A02-1701-PC-68 | September 6, 2018   Page 2 of 27
      Court reversed Stidham’s convictions and remanded the case for a new trial.

      Id. (citing Stidham v. State, 608 N.E.2d 699 (Ind. 1993)).


[4]   After retrial and convictions on all counts, Stidham appealed. Id. In that

      appeal, he contended in part that his 141-year sentence was unreasonable and

      disproportionate to the crime. Id. at 144. He argued “in sharp contrast to his

      behavior prior to his original sentencing, his behavior in prison had been

      exemplary, that he had obtained a GED, and that he actively participated in a

      substance abuse program as certified by a letter to Judge Dailey from Linda

      Poe[,] the substance abuse supervisor at the institution.” Id. He also argued

      that the record disclosed that he was an abused child. Id.


[5]   In an opinion issued in July 1994, the Indiana Supreme Court concluded:

      “Given the extreme brutality of the crimes committed in this case, the trial

      judge was well within his discretion in refusing to mitigate the sentences either

      on [Stidham’s] subsequent conduct in the prison or the abuse he had received as

      a child.” Id. The Court observed: “As pointed out by the trial judge, two of

      [Stidham’s] brothers had received the same treatment but had become

      upstanding citizens in their community.” Id. The Court concluded that the

      sentence was defective in one regard, remanded to the trial court for the

      purpose of vacating the auto theft conviction as it should have been merged




      Court of Appeals of Indiana |Opinion 18A02-1701-PC-68 | September 6, 2018   Page 3 of 27
      with the robbery conviction, and affirmed the trial court in all other respects. 1

      Id.


[6]   On February 8, 2016, Stidham filed a verified petition for post-conviction relief

      contending that his sentence violated the Eighth Amendment of the United

      States Constitution and Article 1, Section 16 of the Indiana Constitution. On

      February 12, 2016, the State filed an answer to Stidham’s petition, and on

      October 27, 2016, the court held a hearing. Stidham’s counsel offered an

      exhibit “which is a full and complete transcript, which is a fair and accurate

      copy of the original and that includes everything from the beginning through

      the sentencing and all the appendices.” October 27, 2016 Transcript at 5. The

      prosecutor had no objection, and the court admitted it as Petitioner’s Exhibit 1.

      Delonda Lee Hartman testified that Stidham was her student when she was

      teaching for Ball State University at Indiana State Prison in Michigan City. She

      stated she thought Stidham was one of those students highlighted in a video

      titled Cell Block Scholars. Stidham’s counsel offered the video as an exhibit,

      and the prosecutor objected on the basis of relevance. Stidham’s counsel

      argued that the video supports that “juveniles should be treated differently by

      the Court” and that “juveniles need to have the ability to be reformed.” Id. at 8-

      9. The court overruled the objection and admitted the exhibit. Hartman




      1
       Justice Sullivan, with Justice DeBruler concurring, dissented with respect to the sentence. 637 N.E.2d at
      144.



      Court of Appeals of Indiana |Opinion 18A02-1701-PC-68 | September 6, 2018                        Page 4 of 27
      testified that Stidham matured, was very helpful in class, and was an exemplary

      student.


[7]   Stidham indicated that he had “no real formal education” prior to being

      sentenced but had become a full-time firefighter in prison, taught the biohazard

      certification program and for an apprenticeship program, and was the firefighter

      instructor. Id. at 12.


[8]   On November 29, 2016, he filed proposed findings of fact and conclusions of

      law, which concluded that his sentence should be ordered reduced to time

      served. On January 3, 2017, the post-conviction court entered an order

      granting Stidham’s petition and stating in part:


                                                     *****

              2.       [Stidham] was seventeen (17) years old at the time of the
                       offense.

                                                     *****

              8.       The Petition raises a single issue for consideration by this
                       Court: Whether [Stidham’s] sentence violates the 8th
                       Amendment of the US Constitution and Article 1 Sec 16
                       of the Indiana Constitution prohibiting cruel and unusual
                       punishment.

              9.       Based upon the sentence imposed by this Court, if
                       [Stidham] is still alive, he will be eighty two (82) years of
                       age when his sentence is complete.

              10.      Since [Stidham] was sentenced much research has been
                       done on the brains of juveniles and their ability to change.




      Court of Appeals of Indiana |Opinion 18A02-1701-PC-68 | September 6, 2018        Page 5 of 27
        11.      Neither the trial court nor the Supreme Court had access
                 to this information and research since it did not exist at
                 that time.

        12.      Furthermore, [Stidham’s] actions and progress in prison is
                 a testament to this research.

        13.      There is no question that the crimes committed were
                 heinous.

        14.      The question for the Court, however, is whether the
                 sentence imposed was excessive in light of the research
                 done and cases decided in the meantime.

        CONCLUSIONS OF LAW

        15.      The United States Supreme Court in Miller v. Alabama, 132
                 S. Ct. 2455, 183 L. Ed. 2d 407 (2012) held that the
                 imposition of mandatory life sentences without parole on
                 juveniles is forbidden.

        16.      Miller requires the sentencing judge to “take into account
                 how children are different, and how those differences
                 counsel against irrevocably sentencing them to a lifetime
                 in prison” [132] S. Ct. at 2469.

        17.      While Stidham was not sentenced to life without parole, it
                 is the functional equivalent.

        18.      Other courts in other jurisdictions have held similarly in
                 cases involving juveniles. Hayden v. Keller, 134 F.Supp.3d
                 1000 (E.D.N.C. 2015) cites several cases where de facto
                 life sentences for juveniles were held to be cruel and
                 unusual punishment in violation of the 8th Amendment of
                 the Constitution.

        19.      The Indiana Supreme Court relied on Miller in two
                 separate 2014 cases.




Court of Appeals of Indiana |Opinion 18A02-1701-PC-68 | September 6, 2018     Page 6 of 27
              20.      In Brown v. State[,] 10 N.E.3d 1 (Ind. 2014)[,] and Fuller v.
                       State, [9 N.E.3d 653 (Ind. 2014),] the Court held that
                       imposition of juveniles of two consecutive 75 year
                       sentences for two (2) murders was improper.

              21.      The Court in those cases discussed the U.S. Supreme
                       Court’s observations that first, a juvenile lacks maturity
                       and has an underdeveloped sense of responsibility; second
                       that they are more vulnerable or susceptible to negative
                       influences and outside pressures, including peer pressure,
                       and they have limited control over their own environment
                       and lack the ability to extricate themselves from horrific,
                       crime-producing settings; and third a child’s character is
                       not as well formed as an adult’s and his actions are less
                       likely to be evidence of irretrievable depravity.

              22.      The Court in Fuller found that the maximum consecutive
                       sentence means denial of hope; it means that good
                       behavior and character improvement are immaterial; it
                       means that whatever the future might hold in store for the
                       mind and spirit of the juvenile convict, he will remain in
                       prison for the rest of his days.

              23.      As a result, this Court finds that [Stidham’s] sentence was
                       excessive in light of his age at the time of the offense and
                       his Petition should be GRANTED.

      Appellant’s Appendix Volume 2 at 51-52 (underlining omitted).


[9]   The State appealed. In a memorandum decision, we held that the post-

      conviction court had not entered “an appropriate order with respect to the

      conviction or sentence” or complied with Section 6 of Ind. Post-Conviction

      Rule 1 and we remanded for further proceedings. See State v. Stidham, No.

      18A02-1701-PC-68, slip op. at 8 (Ind. Ct. App. June 14, 2017).




      Court of Appeals of Indiana |Opinion 18A02-1701-PC-68 | September 6, 2018        Page 7 of 27
[10]   The State petitioned for rehearing and argued that this Court should have

       addressed its arguments that Stidham’s sentencing claim was barred from

       review by procedural default, that his sentence did not violate the Eighth

       Amendment, and that the post-conviction court could not revisit a sentence

       found not unreasonable or disproportionate by the Indiana Supreme Court.

       The State also argued that we should grant rehearing to clarify a jurisdictional

       issue, i.e., whether this Court had retained jurisdiction or whether a new notice

       of appeal would be necessary. We granted rehearing to clarify that we retained

       jurisdiction and remanded for the post-conviction court to issue a sentencing

       order. See State v. Stidham, No. 18A02-1701-PC-68 (Ind. Ct. App. October 18,

       2017).


[11]   On December 13, 2017, the State filed a Verified Motion for Writ in Aid of

       Appellate Jurisdiction asserting that the post-conviction court scheduled a

       resentencing hearing for March 8, 2018, and requested that this Court order the

       post-conviction court to issue an amended post-conviction order within fifteen

       days specifying the relief granted so that this Court could adjudicate the State’s

       appeal and to refrain from holding new sentencing proceedings. Stidham filed

       a response. On January 20, 2018, this Court entered an order denying the

       State’s motion and stating in part:


                In an affidavit attached to [Stidham’s] Response, Stidham’s
                counsel asserts that an unrecorded conference occurred on
                October 26, 2016, at which he and the deputy prosecutor were
                present and at which it was agreed that the case would proceed in
                two phases, that the first phase was to be limited to whether or
                not Stidham was entitled to post-conviction relief, and that the


       Court of Appeals of Indiana |Opinion 18A02-1701-PC-68 | September 6, 2018   Page 8 of 27
               second phase was to be devoted to evidence on what sentence
               should be imposed if it was determined by the trial court in the
               first phase that the defendant was entitled to post-conviction
               relief. See Affidavit of John C. Reeder at 1. Neither party
               previously mentioned the October 26, 2016 conference or that the
               parties had agreed to proceed in two phases, which we find
               disappointing. We disapprove of what appears to be a failure of
               candor with this Court in the briefing process.

       January 10, 2018 Order at 2.


[12]   On March 15, 2018, the post-conviction court held a resentencing hearing and

       incorporated prior proceedings at the request of Stidham’s counsel. Cynthia

       Morris, Stidham’s aunt, testified that since he had been incarcerated Stidham

       received his GED, his associate’s degree, and his bachelor’s degree, that he

       became the captain of the fire department, and that he was “completely

       changed.” March 15, 2018 Transcript at 7. She testified that Stidham suffered

       severe abuse from other family members and foster homes including starvation,

       someone trying to make him eat dog feces, being struck, and being stabbed with

       scissors. She offered that Stidham could live with her sister and stated that he

       had several job offers, that she spoke with people in the community who were

       aware that he would be eligible to work with volunteer fire departments, and

       that his family would help him financially.


[13]   Stidham testified that he continued his education and training since the last

       hearing and had become certified as a module A and a module B firefighter,

       which includes technical rescue awareness, hazardous response operations, and

       first responder awareness. When asked what had changed since the earlier

       sentencing hearings in the 1990s, he answered in part:


       Court of Appeals of Indiana |Opinion 18A02-1701-PC-68 | September 6, 2018   Page 9 of 27
               I would like to say that if there’s one (1) thing that changed the
               most is, you know, as a kid I was given a lot of opportunities.
               People tried to help me. I refused it. You know, I destroyed
               every relationship I ever come in contact with. And the biggest
               thing that I think I’ve overcome is the fact that when I see
               opportunities I try to take advantage of them. You know, even
               when I fell or fumble, you know, I, I pick myself back up and I
               put myself back on the right track. And that was something that
               I was incapable of doing as a kid.


       Id. at 16. He testified he had not received any conduct reports for any acts of

       violence while incarcerated. Stidham’s institutional behavior listed in

       Defendant’s Exhibit B included: refusing to obey an order in 1993, smoking

       where prohibited in 1997, refusing to obey an order in 1998, unauthorized use

       or possession of an electronic device in 2007, disruptive, unruly, rowdy conduct

       in 2009, and unauthorized use or possession of an electronic device in 2014.


[14]   On cross-examination, Stidham testified that he was sixty days shy of turning

       eighteen years old when the offense occurred. On redirect examination, he

       stated that one of his co-defendants received a sentence modification to be

       released from the Department of Correction and another received a plea

       agreement for only thirty-five years incarceration.


[15]   After Stidham rested, the State presented the testimony of Mary Ann Barker,

       who testified that she had known Daniel Barker, the victim in this case, and

       that her husband was the victim’s brother. She stated that Daniel was a “quiet,

       soft spoken person that wouldn’t hurt anybody,” “just wanted a friend,” and

       “thought he found friends.” Id. at 26. When asked if anything had lessened the


       Court of Appeals of Indiana |Opinion 18A02-1701-PC-68 | September 6, 2018   Page 10 of 27
       pain of the murder that occurred in 1991, she answered: “No, it has not.” Id. at

       27. She stated that her husband was not emotionally able to testify, and that

       she thought Stidham should serve his full sentence.


[16]   That same day, the court entered an order, stating:


               This Court granted that petition for post-conviction relief on June
               21, 2017.

               The Court now proceeds to re-sentencing.

               The Court has considered the pre-sentence investigation report
               with the attached addendum from the 1993 sentencing, together
               with the evidence as presented and the final comments of
               counsel.

               The Court, being duly and sufficiently advised in this cause, now
               finds as follows:

               Circumstances Supporting an Enhanced Sentence:

               1. The defendant has a lengthy history of juvenile criminal
               activity, which ultimately resulted in his commitment to the
               Indiana Boys School on two occasions; and the Court gives this
               factor some weight.

               2. The defendant is in need of correctional or rehabilitative
               treatment that can best be provided by commitment of the person
               to a penal facility, and prior attempts at correctional treatment
               and rehabilitation through juvenile probation and incarceration
               has not been successful; and the Court gives this factor some
               weight.

               3. Imposition of a reduced or suspended sentence would
               depreciate the seriousness of the crime; and the Court gives this
               factor some weight.



       Court of Appeals of Indiana |Opinion 18A02-1701-PC-68 | September 6, 2018   Page 11 of 27
        4. The victim was likely mentally challenged; and the Court
        gives this factor some weight.

        5. The crime was particularly devastating to the victim’s family
        members, and or relatives; and the Court gives this factor some
        weight.

        6. The defendant took substantial steps to conceal the crime and
        evade capture; and the Court gives this factor some weight.

        7. While incarcerated in the Madison County Jail, the defendant
        was involved in an escape attempt on May 16, 1991[,] and was
        placed on lockdown status; and the Court gives this factor some
        weight.

        8. This crime was savagely committed. The acts build upon
        themselves, and the defendant had the opportunity to stop his
        actions at any time, however, he chose to proceed to the ultimate
        level without stepping away; and the Court gives this factor some
        weight.

        Circumstances Supporting a Reduced Sentence:

        1. The defendant was of youthful age, that being 17 years of age
        and this is his first felony conviction as an adult; and the Court
        gives this factor some weight.

        2. The defendant was severely and brutally abused by his
        adopted mother while he was growing up; and the Court gives
        this factor significant weight.

        3. The defendant was first sentenced in 1991, and then again in
        1993. Between those dates the defendant served approximately
        two (2) years at the Indiana Department of Corrections. During
        that time, the defendant earned his GED; and the Court gives
        this factor some weight.

        4. Also during the two years prior to the re-sentencing in 1993,
        the defendant’s attitude completely had changed, he had learned
        why he had had such a difficult time getting along with others

Court of Appeals of Indiana |Opinion 18A02-1701-PC-68 | September 6, 2018   Page 12 of 27
        and was very polite during the second interview with probation;
        and the Court gives this factor some weight.

        5. The defendant had learning difficulties and was not well
        educated; and the Court gives this factor some weight.

        6. Also during the two years at the Department of Corrections
        between sentencings, defendant had taken advantage of
        substance abuse counseling and general counseling; and the
        Court gives this factor some weight.

        In weighing the above factors, the Court finds the circumstances
        supporting an enhanced sentence outweigh the circumstances
        supporting a reduced sentence.

        The nature of the offense would support an enhanced sentence.
        Defendant participated with others to confine another, kill him
        brutally and steal items. All of these were senseless acts.

        Defendant’s character supports the advisory sentence. Defendant
        has a juvenile history, albeit a lengthy one, and no prior adult
        convictions. The Court is going to take this opportunity to point
        out the obvious: we are here today, almost 25 years after the
        second sentencing. While the Court in re-sentencing must go
        back and look at the laws and circumstances as of 1993, we
        cannot ignore the accomplishments of the Defendant in prison
        during that 25 years, and the Court is doing so as part of the
        Defendant’s character. The Defendant has been a model
        prisoner. He has earned his Associates and Bachelor’s Degrees
        from Ball State University, was on the Dean’s List every
        semester, graduated Magna Cum Laude, became a certified
        firefighter and has spent 15 years as a paid full time firefighter
        through the Department of Corrections, earned additional
        certifications as a firefighter such that he is only one (1) of (11)
        people certified in the United States as a Structural Firefighter, is
        an instructor in firefighting, assists with education programs, and
        participated in a documentary about the positive changes people



Court of Appeals of Indiana |Opinion 18A02-1701-PC-68 | September 6, 2018   Page 13 of 27
        can make in the Department of Corrections, produced by Ball
        State University.

        Therefore, as to Count 1, Murder, a felony, Defendant is
        committed to the custody of the Indiana Department of
        Correction for a period of sixty (60) years executed.

        As to Count 2, Robbery, a Class A Felony, the Defendant is
        committed to the custody of the Indiana Department of
        Correction for a period of fifty (50) years, executed, which shall
        be served concurrently with the sentence imposed under Count 1.

        As to Count 3, Criminal Confinement, a Class B Felony, the
        Defendant is committed to the custody of the Indiana
        Department of Correction for a period of twenty (20) years,
        executed, which shall be served concurrently with the sentence
        imposed under Counts 1 and 2.

        As to Count 4, Battery, a Class C Felony, the Defendant is
        committed to the Indiana Department of Correction for a period
        of eight (8) years, suspended, which shall be served consecutively
        to the sentences imposed under Counts 1, 2, and 3.

        The Defendant should be given credit for nine thousand eight
        hundred eighty-one (9,881) days of jail time served as follows:

                 The original 851 days assessed at the time of sentencing in
                 1993

                 06/24/1993-12/31/1993 191 days

                 01/01/1994-03/14/2018 8839

        Together with one thousand two hundred seventy-six (1,276)
        days granted as a time cut by the Indiana Department of
        Corrections while incarcerated, for a total of eleven thousand one
        hundred fifty-seven (11,157) days served.

        Defendant shall be given Class I Credit Time for the jail time
        credit of nine thousand eight hundred eighty-one (9,881) days.

Court of Appeals of Indiana |Opinion 18A02-1701-PC-68 | September 6, 2018   Page 14 of 27
                  The Court finds the executed sentence imposed under Count 1
                  has been satisfied.

                  Further, the Court finds that the Defendant has served two
                  hundred seven (207) days of the eight (8) years imposed under
                  Count 4. Therefore, the Defendant shall serve seven (7) years
                  and one hundred fifty-eight (158) days of the eight (8) years
                  suspended sentence on supervised probation. The Defendant
                  shall pay all associated costs and fees associated with supervised
                  probation.

                  This Court assessed costs of $113.00 at the time of sentencing in
                  1993, but found the defendant indigent. This Court will not
                  assess any further fines or costs.

                                                         *****

                  The State of Indiana requests the Court to stay the portion of the
                  Order releasing the Defendant to supervised probation pending
                  resolution of the appeal that is currently before the Indiana Court
                  of Appeals.

                  Argument heard and concluded.

                  The Court denied the State’s request.

                  Defendant ordered released in this matter.

       March 15, 2018 Order on Sentencing Hearing at 1-4.2


                                                        Discussion

[17]   The issue is whether the post-conviction court erred by granting Stidham post-

       conviction relief. “Post-conviction proceedings are not super-appeals and




       2
           On March 16, 2018, this Court granted the State’s motion for stay.



       Court of Appeals of Indiana |Opinion 18A02-1701-PC-68 | September 6, 2018   Page 15 of 27
       provide only a narrow remedy for subsequent collateral challenges.” State v.

       Oney, 993 N.E.2d 157, 161 (Ind. 2013) (quoting State v. Cooper, 935 N.E.2d 146,

       148 (Ind. 2010)). Generally, freestanding claims are unavailable in post-

       conviction proceedings. See Reed v. State, 866 N.E.2d 767, 768 (Ind. 2007)

       (holding that only issues not known at the time of the original trial or issues not

       available on direct appeal may be properly raised through post-conviction

       proceedings); Sanders v. State, 765 N.E.2d 591, 592 (Ind. 2002) (holding that in

       “post-conviction proceedings, complaints that something went awry at trial are

       generally cognizable only when they show deprivation of the right to effective

       counsel or issues demonstrably unavailable at the time of trial or direct appeal”

       and that it is wrong to review the petitioner’s fundamental error claim in a post-

       conviction proceeding); Lambert v. State, 743 N.E.2d 719, 726 (Ind. 2001)

       (holding that post-conviction procedures do not provide a petitioner with a

       “super-appeal” or opportunity to consider freestanding claims that the original

       trial court committed error and that such claims are available only on direct

       appeal), reh’g denied, cert. denied, 534 U.S. 1136, 122 S. Ct. 1082 (2002).


[18]   Where, as here, the State appeals a judgment granting post-conviction relief, we

       review using the standard in Indiana Trial Rule 52(A). Oney, 993 N.E.2d at

       161.


               On appeal of claims tried by the court without a jury or with an
               advisory jury, at law or in equity, the court on appeal shall not
               set aside the findings or judgment unless clearly erroneous, and
               due regard shall be given to the opportunity of the trial court to
               judge the credibility of witnesses.


       Court of Appeals of Indiana |Opinion 18A02-1701-PC-68 | September 6, 2018    Page 16 of 27
       Id. (quoting State v. Hollin, 970 N.E.2d 147, 150 (Ind. 2012)). Under the clearly

       erroneous standard of review, we review only for the sufficiency of the

       evidence. Id. We neither reweigh the evidence nor determine the credibility of

       witnesses. Id. We consider only the probative evidence and reasonable

       inferences supporting the judgment and reverse only on a showing of clear

       error. Id. Clear error is “that which leaves us with a definite and firm

       conviction that a mistake has been made.” Id. We do not defer to the post-

       conviction court’s legal conclusions. Hollowell v. State, 19 N.E.3d 263, 269 (Ind.

       2014).


[19]   The State argues that Stidham’s challenge of his sentence is barred by res

       judicata. Stidham argues that his direct appeal addressed whether double

       jeopardy barred some of his sentences and whether his sentence was

       unreasonable. He argues that no claim was made that his sentence was

       unconstitutional.


[20]   “Res judicata is a legal doctrine intended ‘to prevent repetitious litigation of

       disputes that are essentially the same, by holding a prior final judgment binding

       against both the original parties and their privies.’” Ind. State Ethics Comm’n v.

       Sanchez, 18 N.E.3d 988, 993 (Ind. 2014) (quoting Becker v. State, 992 N.E.2d

       697, 700 (Ind. 2013)). “It applies ‘where there has been a final adjudication on

       the merits of the same issue between the same parties.’” Id. (quoting Gayheart v.

       Newnam Foundry Co., Inc., 271 Ind. 422, 426, 393 N.E.2d 163, 167 (1979)). The

       Indiana Supreme Court has held:



       Court of Appeals of Indiana |Opinion 18A02-1701-PC-68 | September 6, 2018   Page 17 of 27
                Stated in more detail:

                        1. the former judgment must have been rendered by a
                        court of competent jurisdiction;

                        2. the former judgment must have been rendered on the
                        merits;

                        3. the matter now in issue was or might have been
                        determined in the former suit; and

                        4. the controversy adjudicated in the former suit must have
                        been between the parties to the present action or their
                        privies.

       Id. (quoting Chemco Transp., Inc. v. Conn, 527 N.E.2d 179, 181 (Ind. 1988)). If

       any element is absent, res judicata does not apply. Id. “[I]ssues decided on

       direct appeal may not be collaterally attacked on post-conviction review.” Allen

       v. State, 749 N.E.2d 1158, 1178 (Ind. 2001), reh’g denied, cert. denied, 535 U.S.

       1061, 122 S. Ct. 1925 (2002).


[21]   In Stidham’s brief filed with the Indiana Supreme Court on November 22,

       1993, he specifically cited the Eighth Amendment and Article 1, § 16 of the

       Indiana Constitution, which are the same provisions cited in his petition for

       post-conviction relief. See Appellant’s November 22, 1993 Brief at 27.3 In his

       1993 brief, Stidham raised the arguments of improvements while in prison. He

       argued that he did not have any conduct write-ups in prison, obtained his




       3
        The State did not include a copy of Stidham’s 1993 brief in the record. However, Ind. Evidence Rule 201
       provides that we “may judicially notice . . . the existence of . . . records of a court of this state.”



       Court of Appeals of Indiana |Opinion 18A02-1701-PC-68 | September 6, 2018                    Page 18 of 27
       G.E.D., and participated in a substance abuse program and religion classes.

       Stidham also pointed to the abuse he suffered as a child.


[22]   In responding to Stidham’s arguments, the Indiana Supreme Court issued an

       opinion in July 1994 which held:


               Appellant points out that he was resentenced after the second
               trial nearly two years after his first trial and that during that
               period of time he was incarcerated in the Indiana State Prison.
               Appellant contends that, in sharp contrast to his behavior prior to
               his original sentencing, his behavior in prison had been
               exemplary, that he had obtained a GED, and that he actively
               participated in a substance abuse program as certified by a letter
               to Judge Dailey from Linda Poe the substance abuse supervisor
               at the institution.

               Appellant further states that the record discloses he was an
               abused child, a fact which should be taken into consideration as a
               mitigating factor. Although the trial judge considered these
               factors in rendering his sentence, he was not required to make an
               affirmative finding expressly negating each potential mitigating
               factor. Stout v. State (1988), Ind., 528 N.E.2d 476; Hammons v.
               State (1986), Ind., 493 N.E.2d 1250.

               Given the extreme brutality of the crimes committed in this case,
               the trial judge was well within his discretion in refusing to
               mitigate the sentences either on appellant’s subsequent conduct
               in the prison or the abuse he had received as a child. As pointed
               out by the trial judge, two of appellant’s brothers had received the
               same treatment but had become upstanding citizens in their
               community.


       Stidham, 637 N.E.2d at 144.




       Court of Appeals of Indiana |Opinion 18A02-1701-PC-68 | September 6, 2018   Page 19 of 27
[23]   Based upon the arguments in his 1993 brief and in his petition for post-

       conviction relief, we conclude that the controversy adjudicated by the Indiana

       Supreme Court in 1994 determined this issue and that the doctrine of res judicata

       precludes Stidham’s claim. See Wrinkles v. State, 749 N.E.2d 1179, 1187 n.3

       (Ind. 2001) (“Wrinkles contends on post-conviction that his death sentence

       constitutes ‘cruel and unusual punishment’ because of ‘unfair and unreliable

       sentencing procedures.’ We reviewed Wrinkles’ death sentence on direct

       appeal and found it to be appropriate. To the extent Wrinkles now seeks to

       relitigate the appropriateness of his death sentence, his claim is barred by res

       judicata.”), cert. denied, 535 U.S. 1019, 122 S. Ct. 1610 (2002); Allen, 749 N.E.2d

       at 1178 (holding that issues raised by the petitioner were barred by res judicata);

       Marts v. State, 478 N.E.2d 63, 64-65 (Ind. 1985) (“The precise issue, i.e.

       whether his sentence constituted cruel and unusual punishment in violation of

       the State and Federal Constitutions, regardless of how it is now phrased, was

       presented to this Court and determined adversely to his position in his direct

       appeal. Hence, the issue was not reviewable in a subsequent post-conviction

       proceeding.”) (citations omitted).


[24]   To the extent Stidham’s claims are based upon improvements since 1994, he is

       essentially requesting a sentence modification. At the time Stidham filed his

       petition for post-conviction relief on February 8, 2016, Ind. Code § 35-38-1-17

       was titled “Reduction or suspension of sentence,” and subsection (k) provided:




       Court of Appeals of Indiana |Opinion 18A02-1701-PC-68 | September 6, 2018   Page 20 of 27
                  This subsection applies to a convicted person who is a violent
                  criminal.[4] A convicted person who is a violent criminal may,
                  not later than three hundred sixty-five (365) days from the date of
                  sentencing, file one (1) petition for sentence modification under
                  this section without the consent of the prosecuting attorney.
                  After the elapse of the three hundred sixty-five (365) day period,
                  a violent criminal may not file a petition for sentence
                  modification without the consent of the prosecuting attorney.


[25]   In his 1993 brief, Stidham asserted that his sentence was unconstitutional, and

       the Indiana Supreme Court rejected the claim. Accordingly, despite his

       argument to the contrary, Stidham is essentially requesting a modification of his

       sentence. See Marts, 478 N.E.2d at 65 (“In the case at bar, however, this Court

       had previously determined that the sentence was not unconstitutional, Marts v.

       State, 432 N.E.2d [18, 22 (Ind. 1982)], the only ground upon which Petitioner

       claims error; hence, he is clearly requesting a modification, not a correction, of

       his sentence.”). Stidham does not allege that he filed a petition for sentence

       modification or that he had the consent of the prosecuting attorney.

       Accordingly, we cannot say that Stidham filed a proper modification of his

       sentence pursuant to Ind. Code § 35-38-1-17(k) or that the post-conviction court

       had the authority to modify the sentence. See id. (holding that the post-

       conviction court had no authority to modify the petitioner’s sentence following

       the time limit in Ind. Code § 35-38-1-17 and “in light of the fact that the Post-

       Conviction Rules do not provide for modification of a sentence which has been




       4
           Ind. Code § 35-38-1-17(d) defines a “violent criminal” as a person convicted of murder.



       Court of Appeals of Indiana |Opinion 18A02-1701-PC-68 | September 6, 2018                     Page 21 of 27
       established by the Legislature as appropriate for the offense and which has been

       found to be constitutional”).


[26]   For the foregoing reasons, we reverse the post-conviction court’s grant of

       Stidham’s petition for post-conviction relief.


[27]   Reversed.


       Pyle, J., concurs.


       May, J., concurs in result with separate opinion.




       Court of Appeals of Indiana |Opinion 18A02-1701-PC-68 | September 6, 2018   Page 22 of 27
                                                   IN THE
           COURT OF APPEALS OF INDIANA

       State of Indiana,                                        Court of Appeals Case No.
                                                                18A02-1701-PC-68
       Appellant-Respondent,

               v.

       Matthew Stidham,
       Appellee-Plaintiff.




       May, Judge, concurring in result.


[28]   The doctrine of res judicata undoubtedly performs functions essential to the

       success of our American legal system, as it prevents repetitious litigation that

       would keep parties in interminable conflict, bog down our system, and delay or

       prevent the administration of justice. See, e.g., Ind. State Ethics Comm’n v.

       Sanchez, 18 N.E.3d 988, 993 (Ind. 2014) (res judicata ‘prevent[s] repetitious

       litigation of disputes that are essentially the same, by holding a prior final

       judgment binding against both the original parties and their privies’”) (quoting

       Becker v. State, 992 N.E.2d 697, 700 (Ind. 2013)). Nevertheless, our Indiana

       Supreme Court has also explained:


               With due respect for the doctrine of res judicata this Court has
               always maintained the option of reconsidering earlier cases in
               order to correct error. “A court has the power to revisit prior
               decisions of its own or of a coordinate court in any circumstance,
               although as a rule courts should be loathe to do so in the absence

       Court of Appeals of Indiana |Opinion 18A02-1701-PC-68 | September 6, 2018            Page 23 of 27
               of extraordinary circumstances such as where the initial decision
               was ‘clearly erroneous and would work manifest injustice.’”
               State v. Lewis (1989), Ind., 543 N.E.2d 1116[, 1118] (quoting
               Christianson v. Colt Industries Operating Corp., 486 U.S. 800, 817,
               108 S. Ct. 2166, 2178, 100 L.Ed.2d 811, 831 (1988)). Finality
               and fairness are both important goals. When faced with an
               apparent conflict between them, this Court unhesitatingly
               chooses the latter.


       State v. Huffman, 643 N.E.2d 899, 901 (Ind. 1994).


[29]   Our understanding of juvenile offenders and of the factors to consider when

       determining an appropriate sentence for juveniles have changed greatly in the

       twenty-five years since seventeen-year-old Stidham received his 141-year

       sentence:


               In holding death sentences and mandatory life without parole
               sentences for those under the age of eighteen to be
               unconstitutional, the United States Supreme Court has
               underpinned its reasoning with a general recognition that
               juveniles are less culpable than adults and therefore are less
               deserving of the most severe punishments. See Graham [v.
               Florida], 560 U.S. [48,] 68, 130 S. Ct. 2011 [2010]. This
               presumption that juveniles are generally less culpable than adults
               is based on previous and ongoing “‘developments in psychology
               and brain science’” which “‘continue to show fundamental
               differences between juvenile and adult minds’” in, for instance,
               “‘parts of the brain involved in behavior control.’” Miller [v.
               Alabama], [567 U.S. 460, 471-72,] 132 S. Ct. [2455,] 2464
               (quoting Graham, 560 U.S. at 68, 130 S. Ct. 2011). The Supreme
               Court has discerned “three significant gaps between juveniles and
               adults.” Id. First, “[a]s compared to adults, juveniles have a
               ‘lack of maturity and an underdeveloped sense of responsibility.’”
               Graham, 560 U.S. at 68, 130 S. Ct. 2011 (quoting Roper v.


       Court of Appeals of Indiana |Opinion 18A02-1701-PC-68 | September 6, 2018   Page 24 of 27
        Simmons, 543 U.S. 551, 569, 125 S. Ct. 1183, 161 L.Ed.2d 1
        (2005) (quotation omitted)). Second, “they ‘are more vulnerable
        or susceptible to negative influences and outside pressures,
        including peer pressure,’” Id. (quoting Roper, 543 U.S. at 569, 125
        S. Ct. 1183), and “they have limited ‘contro[l] over their own
        environment’ and lack the ability to extricate themselves from
        horrific, crime-producing settings.” Miller, 132 S. Ct. at 2464
        (alteration in original) (quoting Roper, 543 U.S. at 569, 125 S. Ct.
        1183). Finally, “a child’s character is not as ‘well formed’ as an
        adult’s . . . and his actions [are] less likely to be ‘evidence of
        irretrievabl[e] deprav[ity].’” Id. (alteration in original) (quoting
        Roper, 543 U.S. at 570, 125 S. Ct. 1183). “These salient
        characteristics mean that ‘[i]t is difficult even for expert
        psychologists to differentiate between the juvenile offender whose
        crime reflects unfortunate yet transient immaturity, and the rare
        juvenile offender whose crime reflects irreparable corruption.’”
        Graham, 560 U.S. at 68, 130 S. Ct. 2011 (alteration in original)
        (quoting Roper, 543 U.S. at 573, 125 S. Ct. 1183). Even justices
        not finding categorical Constitutional violations in these juvenile
        cases agree with this precept. See Graham, 560 U.S. at 90, 130 S.
        Ct. 2011 (Roberts, C.J., concurring in the judgment) (“Roper’s
        conclusion that juveniles are typically less culpable than adults
        has pertinence beyond capital cases.”); Roper, 543 U.S. at 599,
        125 S. Ct. 1183 (O’Connor, J., dissenting) (“It is beyond cavil
        that juveniles as a class are generally less mature, less
        responsible, and less fully formed than adults, and that these
        differences bear on juveniles’ comparative moral culpability.”).


        Consistent with the [United States] Supreme Court’s reasoning
        this Court has not been hesitant to reduce maximum sentences
        for juveniles convicted of murder. In Carter v. State, we reduced
        to fifty years a fourteen-year-old’s maximum sixty-year sentence
        for the brutal murder of a seven-year-old girl, recognizing among
        other things his young age. 711 N.E.2d 835, 836-37 (Ind. 1999).
        In the case of a sixteen-year-old who brutally beat his adoptive
        parents to death while they slept, we reduced a maximum 120-


Court of Appeals of Indiana |Opinion 18A02-1701-PC-68 | September 6, 2018   Page 25 of 27
               year sentence to eighty years. Walton v. State, 650 N.E.2d 1134,
               1135, 1137 (Ind. 1995). And in Widener v. State, 659 N.E.2d 529,
               530 (Ind. 1995), the seventeen-year-old defendant and his two
               eighteen-year-old cohorts planned to rob a woman as she made a
               night deposit after work. In executing the crime, the defendant
               fired multiple shots at the victim, killing her. In the days after the
               robbery the perpetrators spent the proceeds of their crime at the
               mall, going to the movies and out to eat. Finding additional
               mitigating circumstances not recognized by the trial court, we
               concluded the defendant’s seventy-year sentence was manifestly
               unreasonable and reduced it to an aggregate term of fifty years.
               Id. at 530-31, 534.


               Similar to a life without parole sentence, Brown’s 150 year
               sentence “‘forswears altogether the rehabilitative ideal.’” Miller,
               132 S. Ct. at 2465 (quoting Graham, 560 U.S. at 74, 130 S. Ct.
               2011). Indeed, Brown’s sentence essentially “‘means denial of
               hope; it means that good behavior and character improvement
               are immaterial; it means that whatever the future might hold in
               store for the mind and spirit of the [juvenile] convict, he will
               remain in prison for the rest of his days.’” Graham, 560 U.S. at
               70, 130 S. Ct. 2011 (quoting Naovarath v. State, 105 Nev. 525, 779
               P.2d 944, 944 (1989)).


       Brown v. State, 10 N.E.3d 1, 6-8 (Ind. 2014). Thus, were we able to consider the

       merits of Stidham’s argument, it may be that his 141-year sentence is

       inappropriate in light of his offenses and character.


[30]   However, Stidham challenged his sentence on 8th Amendment grounds in his

       1993 appellate brief and our Indiana Supreme Court addressed his sentencing

       arguments. See Stidham v. State, 637 N.E.2d 140, 144 (Ind. 1994). While a

       court has “the power to revisit prior decisions of its own or of a coordinate



       Court of Appeals of Indiana |Opinion 18A02-1701-PC-68 | September 6, 2018   Page 26 of 27
court in any circumstance,” Huffman, 643 N.E.2d at 901 (quoting Lewis, 543

N.E.2d at 1118), we are not a “coordinate court” of our Indiana Supreme

Court. Cf. Inferior Court, BLACK’S LAW DICTIONARY (10th ed. 2014) (“Any

court that is subordinate to the chief appellate tribunal within a judicial

system.”). And see, e.g., American Family Mut. Ins. Co. v. Federated Mut. Ins. Co.,

800 N.E.2d 1015, 1022 (Ind. Ct. App. 2004) (“The trial court is not a

coordinate court to this court; thus, it has no power to alter an appellate

decision.”). Therefore, I am constrained to concur with the majority’s

determination that the doctrine of res judicata prohibits us from reconsidering

the appropriateness of Stidham’s sentence.




Court of Appeals of Indiana |Opinion 18A02-1701-PC-68 | September 6, 2018   Page 27 of 27
