ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
Leanna Weissmann                                          Gregory F. Zoeller
Lawrenceburg, Indiana                                     Attorney General of Indiana

                                                          Henry A. Flores, Jr.
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana
______________________________________________________________________________


                                          In the
                                                                                FILED
                         Indiana Supreme Court                               Jul 31 2012, 3:24 pm
                           _________________________________
                                                                                      CLERK
                                                                                    of the supreme court,

                                   No. 58S00-1011-CR-634                            court of appeals and
                                                                                           tax court




ANDREW CONLEY,
                                                          Appellant (Defendant below),

                                           V.

STATE OF INDIANA,
                                                          Appellee (Plaintiff below),

                           _________________________________

             Appeal from the Ohio Circuit Court, Cause No. 58C01-0912-MR-001
                           The Honorable James Humphrey, Judge
                          _________________________________

                                    On Direct Appeal
                           _________________________________

                                        July 31, 2012

David, Justice.

       This case involves a seventeen-and-a-half-year-old who murdered his ten-year-old
brother. Andrew Conley confessed to the crime and pleaded guilty to murdering his brother,
Conner, while Conley was babysitting Conner. Following five days of sentencing testimony,
including the testimony of twelve witnesses and one-hundred-and-fifty-five exhibits, the trial
court judge sentenced Conley to life without parole. We hold that based on the age of Conley,
the age of Conner, and the particularly heinous nature of the crime, a sentence of life without
parole was appropriate. We hold that on the facts of this case, the sentence of life without parole
is constitutional.

                                 Facts and Procedural History

        The undisputed facts are as follows. On Saturday, November 28, 2009, Conley was
seventeen-and-a-half-year-old when he murdered his ten-year-old brother, Conner. The murder
took place between 8:30 p.m. and 10:00 p.m. His mother and adoptive father were at work that
evening until the early morning hours. As was not uncommon, Conley was responsible for
watching Conner that evening. Conley’s mother told him he would have to find a babysitter for
Conner if he wished to go out with his friends.

        Conley wanted to go out that evening, so Conley drove Conner to their grandmother’s
house in Rising Sun, Indiana, but she was not home. He next asked his uncle to watch Conner
but was told no. After they returned home, Conley and Conner began wrestling.

        At some point, Conley got behind his brother and choked him in a headlock with his arm
until Conner passed out. Conner was bleeding from the nose and mouth. Conner was still
breathing. Conley drug Conner into the kitchen, retrieved a pair of gloves, and continued to
choke Conner from the front, around his throat. Conley choked Conner for approximately
twenty minutes total.

        Conley next got a plastic bag from a drawer in the kitchen and placed it over Conner’s
head. Conley used black electrical tape to secure the bag by wrapping the tape around Conner’s
head. Conner was still alive. In fact, Conner’s last words were “Andrew stop.”

        Conley then drug Conner’s body to the steps that lead to the basement, drug him down
the steps by his feet, across the floor, and outside the home. Conley slammed Conner’s head on
the concrete multiple times to ensure Conner was dead and then placed his body in the trunk of
his car. Conley cleaned himself up and put on new clothes. He put the bloody clothes in his
closet and hid the bloody gloves in a chair.

        Conley next drove to his girlfriend’s house. While there they watched a movie, and he
gave her a “promise ring.” Conley’s girlfriend testified at the sentencing hearing that Conley

                                                  2
was “[h]appier than I’d seen him in a long time.” Conley spent two hours at his girlfriend’s
house, while Conner’s body remained in the trunk of the car. After leaving his girlfriend’s
house, Conley drove to an area behind the Rising Sun Middle School. Conley decided to drag
Conner’s body into the woods and covered the body with sticks and vegetation.

       Conley returned home during the early morning hours on Sunday the 29th when no one
was home. He cleaned up the blood in the house. When his father returned home around 2:30
a.m., Conley was acting normal. Conley said that Conner was at his grandmother’s house and
Conley also asked his father for some condoms.

       Conley’s mother arrived home around 5:45 a.m., and Conley and his mother had
popcorn, watched a movie together, and cracked jokes back and forth. His mother fell asleep.
On two occasions that early morning, Conley went into his father’s bedroom and stood over him
with a knife. Conley said he had the intent to kill his father, but he decided not to.

       Later that same Sunday, Conley watched football with his father. Following football,
Conley left home and drove to the park in Rising Sun where Conner’s body had been discarded,
but he never went to the actual location. Instead, Conley spoke to two friends and told him that
he had killed Conner. Thereafter, around 8:00 p.m., Conley drove his car to the Rising Sun
Police Department and voluntarily reported he “accidentally killed his brother” or that he
“believed” he had killed his brother.

       The police contacted Conley’s parents, and after consulting with his parents and waiving
his right to counsel, Conley confessed to intentionally killing his ten-year-old brother. Conley
was charged with murder and ultimately pleaded guilty, without a plea agreement. The penalty
phase of the trial was conducted from September 15 to 21. Following the sentencing hearing, the
trial court sentenced Conley to life imprisonment without the possibility of parole.

       We are confronted with four issues raised by Conley. The first issue is whether the trial
court erred in allowing the testimony of Dr. James Daum. Dr. Daum’s testimony did not provide
an opinion that Conley had any psychopathy, but instead his testimony suggested Conley had
traits of a person with such a diagnosis. The second issue is whether the trial court properly
weighed the aggravating and mitigating factors in this case. The third issue raised on appeal is


                                                  3
whether Conley’s sentence was appropriate under Indiana Appellate Rule 7(B). Finally, we
address an issue that was first raised at oral argument,1 in which we had the parties amend their
briefs to address whether the imposition of a life-without-parole sentence on a person under the
age of eighteen who has been convicted of murder violated either the United States or Indiana
Constitution.

                                I. Testimony of Dr. James Daum

       A sentence of life without parole (LWOP) is subject to the same statutory standards and
requirements as the death penalty. Krempetz v. State, 872 N.E.2d 605, 613 (Ind. 2007). Before
a life-without-parole sentence can be imposed, the State is required to prove beyond a reasonable
doubt at least one aggravating circumstance. Ind. Code § 35-50-2-9 (2008). The trial court must
determine if the State has proven the existence of an alleged aggravator beyond a reasonable
doubt, but also that the mitigating circumstances are outweighed by the aggravating
circumstances. Id. § 35-50-2-9(l). The penalty phase of an LWOP trial requires introduction of
evidence with the burden on the State to prove its case beyond a reasonable doubt. Dumas v.
State, 803 N.E.2d 1113, 1121 (Ind. 2004). The admission or exclusion of evidence rests within
the sound discretion of the trial court, and we review for an abuse of discretion. Goodner v.
State, 685 N.E.2d 1058, 1060 (Ind. 1997). An abuse of discretion occurs when the trial court’s
decision is clearly against the logic and effect of the facts and circumstances before it. Smith v.
State, 754 N.E.2d 502, 504 (Ind. 2001). The trial court’s decision will not be disturbed absent a
requisite showing of abuse. Goodner, 685 N.E.2d at 1060.

       In the defendant’s presentation to the court, Dr. Connor testified that he diagnosed
Conley as having schizoaffective disorder, the bipolar type, and a sleep disorder. Dr. James
Daum was called by the State in rebuttal during the penalty phase of the trial to rebut the
testimony of defendant’s expert, Dr. Connor, that Conley did not “fit the psychotic personality.”
In preparation for his testimony, Dr. Daum reviewed statements by Conley, Conley’s parents,
Conley’s girlfriend, and police reports. Dr. Daum also reviewed cell phone records, all of the
statements Conley made to the police, and reports submitted by the three psychologists who

1
  We thank Indiana University-South Bend for its hospitality in hosting us. We also acknowledge the
advocacy of Deputy Attorney General Henry Flores Jr., and Appellant’s counsel Leanna Weissmann, who
drove from Lawrenceburg, Indiana to participate. The Supreme Court thanks you.
                                                4
evaluated Conley, two of which were appointed by the court, and one retained by the defendant.
Dr. Daum testified Conley had evidence of psychopathy. The trial court ruled Dr. Daum was not
able to testify as to his opinion whether Conley was a psychopathic personality. The specific
line of questioning is as follows:

       QUESTION: And are psychopathic personalities difficult to rehabilitate?

       WATSON: Objection. Objection, Your Honor. I believe it’s improper for any of
       these folks to render opinion on rehabilitation. That’s unnecessary speculation,
       Your Honor, that my client (indiscernible)

       COURT: Okay. That objection is sustained. And I will also note – I do not
       believe that this witness has rendered an opinion of psychopathy. I believe this
       witness has only testified regarding characteristic thus far. Okay? Objection is
       sustained.

Furthermore, the trial court would later explain in announcing his sentence,

       Examinations were conducted by Court appointed experts, Dr. Don Olive and Dr.
       George Parker, following Defendant[’]s filing of an insanity plea. Defendant was
       also examined by Dr. Edward Conner, defense expert and State’s expert, Dr.
       James Daum did not examine the Defendant but reviewed other records and
       reports. Dr. Olive concluded that Defendant was suffering from a major
       depressive order of at least moderate severity; personality disorder, either anti-
       social personality or borderline personality disorder. Dr. Connor’s diagnosis is
       that Defendant is suffering from schizoaffective disorder – bipolar type. Dr.
       Parker diagnosed Defendant with depression with psychotic features. Dr. Daum
       indicated that Defendant exhibited some characteristics of a psychopath. Dr.
       Daum, however, was not able to render a specific diagnosis because he did not
       personally examine the Defendant. All experts agree that Defendant, Andrew
       Conley, understood the wrongfulness of his actions and is criminally responsible.
       As to Conley’s mental state at the time of the offense, Dr. Connor stated “his
       executive functioning was not suspended and he was able to make rational
       decisions.”

       In Bivins v. State, 642 N.E.2d 928, 955–956 (Ind. 1994), this court held only evidence
relevant to the charged statutory aggravators can be admitted and considered in capital cases so
as to avoid disproportionate sentences in violation of Article 1, Section 16 of the Indiana
Constitution. When a sentence of life without parole is sought, courts must limit the aggravating
circumstances eligible for consideration to those specified in statute. Cooper v. State, 854
N.E.2d 831, 840 (Ind. 2006). The only evidence relevant to the court is evidence of aggravating
and mitigating circumstances. Bivins, 642 N.E.2d at 957. We disagree with defense counsel’s

                                                5
characterization that the State used Dr. Daum’s testimony to speak of Conley’s future
dangerousness in violation of Bivins. Dr. Daum testified only on rebuttal, for the purpose of
rebutting the defense expert Dr. Connor, that defendant did not “fit the psychotic personality.”
In fact, the trial court expressly stated on objection, “Counsel, I’m taking this as rebuttal of Dr.
Connor. . . . Not this witness rendering his own opinion as to psychopathy.” Dr. Daum’s
testimony was based on Conley’s proferred mitigating circumstance of his mental health.

       In addition to challenging the substance of the testimony, defense counsel also challenges
the relevance of Dr. Daum’s testimony. Relevant evidence is “evidence having any tendency to
make the existence of any fact that is of consequence to the determination of the action more
probable or less probable than it would be without the evidence.” Ind. Evidence Rule 401.
Again, Dr. Daum’s testimony was offered to rebut the testimony of Dr. Connor that Conley did
not “fit the psychotic personality.” Rebuttal evidence “is limited to that which tends to explain,
contradict, or disprove evidence offered by the adverse party.” Schwestak v. State, 674 N.E.2d
962, 964 (Ind. 1996) (quoting Isaacs v. State, 659 N.E.2d 1036, 1041 (Ind. 1995)). Defense
counsel couches its argument as if Dr. Daum proffered an opinion on Conley’s psychopathy. Dr.
Daum did no such thing. Dr. Daum’s testimony was limited to explaining and contradicting
evidence offered by Conley relating to his mental health. We certainly can find no abuse of
discretion on the trial court’s behalf in allowing this testimony.

       Finally, we recognize that Dr. Daum’s testimony was given before the trial court and not
a jury. We presume the trial judge is aware of and knows the law and considers only evidence
properly before him or her in reaching a decision. Emerson v. State, 695 N.E.2d 912, 917 (Ind.
1998). The risk of prejudice is quelled when the evidence is solely before the trial court. Id. In
this case, the trial court never mentioned Dr. Daum’s testimony as a basis for repudiating any of
Conley’s proffered mitigators. Furthermore, the trial court recognized that it was not permitted
to consider any aggravator other than the victim’s age. Dr. Daum did not offer an opinion on
Conley’s psychopathy, or future dangerousness, and the trial court did not find such to be the
case. We hold the trial court exercised proper discretion in permitting Dr. Daum’s limited
testimony.




                                                  6
                       II. Weighing the Aggravating and Mitigating Factors

       Defense counsel next argues the trial court improperly weighed the aggravating and
mitigating factors. When imposing a sentence of life without parole, the trial court’s sentencing
statement

       (i)     must identify each mitigating and aggravating circumstance found,

       (ii)    must include the specific facts and reasons which lead the court to find the
               existence of each such circumstance,

       (iii)   must articulate that the mitigating and aggravating circumstances have
               been evaluated and balanced in determination of the sentence, and

       (iv)    must set forth the trial court’s personal conclusion that the sentence is
               appropriate punishment for this offender and this crime.

Krempetz v. State, 872 N.E.2d 605, 613–14 (Ind. 2007) (quoting Dumas v. State, 803 N.E.2d
1113, 1122–23 (Ind. 2004)). Additionally, before the trial court may impose a sentence of life
without parole, “it must find that the State has proven the existence of an alleged aggravator
beyond a reasonable doubt and must find that ‘any mitigating circumstances that exist are
outweighed by the aggravating circumstance or circumstances.’” Id. (citing I.C. § 35-50-2-
9(l)(2)). This Court gives “great deference to a [trial] court’s determination of the proper weight
to assign to aggravating and mitigating circumstances.” Id. This Court will “set aside the court’s
weighing only upon the showing of a manifest abuse of discretion.” Id. The determination that a
circumstance is mitigating is within the trial court’s discretion, and the trial court is not obligated
to explain its reasoning. Dunlop v. State, 724 N.E.2d 592, 597 (Ind. 2000). The trial court is not
required to give the same weight as the defendant would give to the proferred mitigating
circumstances. Id.

       One permissible aggravating factor is the age of the victim. Indiana Code § 35-50-2-
9(b)(12). An aggravating factor is the murder victim being less than twelve years of age. In this
case, the State alleged as its aggravating factor Conner’s young age when he was murdered.
Conley does not deny that Conner was only ten years old when he died. The legislature’s
decision to include age as an aggravator reflects the legislature’s policies of both increased
protection of young children and a harsher punishment for those who prey on them. Stevens v.


                                                  7
State, 691 N.E.2d 412, 432–33 (Ind. 1997). Because the State has proven beyond a reasonable
doubt one aggravating factor, and because only one aggravating factor is necessary, we now turn
to the second prong, the issue of mitigators.

       Conley raised a number of mitigating factors.      I.C. § 35-50-2-9(c). The trial court
weighed five mitigating factors. The trial court gave some weight to four of the mitigators. The
trial court gave no weight to two of the mitigators.

       Conley was seventeen-and-a-half-years-old when he murdered Connor.                This is a
mitigating factor. Indiana Code § 35-50-2-9(c)(7). The trial court gave this “some” weight, but
found that he functioned in the normal range of intelligence and had an above average verbal IQ
of 118. We find no abuse of discretion in the weight assigned to this mitigating circumstance.
Conley was nearly eighteen years of age and functioned at a normal intelligence level.

       Conley had no criminal history. This is a mitigating factor. I.C. § 35-50-9-2(c)(1).
Again, the trial court gave this “some” weight but noted Conley admitted to smoking marijuana
and drinking alcohol. We believe the trial court properly weighed this factor. See Krempetz,
872 N.E.2d 605 (Ind. 2007); Losch v. State, 834 N.E.2d 1012, 1013 (Ind. 2005). In Losch, the
trial court noted the defendant’s lack of any adult criminal convictions would be a substantial
mitigating factor, but were properly given only minimal weight when it was taken into account
that the defendant continuously used marijuana since age thirteen and stole money from his
family. 834 N.E.2d at 1014. Similarly, in Krempetz, the defendant had no adult convictions, but
that was discounted because of defendant’s drug use and stealing. 872 N.E.2d at 614. Again, we
find no abuse of discretion in the weight assigned by the trial court. Conley’s lack of criminal
history was offset by his actual criminal behavior of smoking marijuana and drinking alcohol.

       The next proffered mitigator was Conley’s mental or emotional health. I.C. § 35-50-2-
9(c)(2). The trial court gave limited weight to Conley’s mental or emotional disturbance when
he carried out the murder. The trial court must consider several factors in determining what
weight to give to evidence of mental illness. Krempetz, 872 N.E.2d at 615. The trial court must
consider “(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

                                                 8
of the crime.” Id. (citing Archer v. State, 689 N.E.2d 678, 685 (Ind. 1997)). In this case, all
three doctors who testified confirmed that Conley “understood the wrongfulness of his actions
and is criminally responsible.” The trial court noted inconsistencies in Conley’s statements.
Conley told some doctors he suffered from hallucinations but denied that to another. Conley told
Dr. Parker he used gloves during the murder because he could not handle touching Conner and
placed a bag over Conner’s head to avoid looking at him. Conley told police he used gloves and
the bag to lessen fingerprints and blood.

        Conley’s story was also inconsistent when he told Dr. Parker that no one knew of his
suicide attempts, but Conley told Dr. Olive his parents knew. The trial court also noted Conley’s
mother testified that Conley’s cuts in a claimed suicide attempt were superficial, and no
electrical breakers tripped in another alleged suicide attempt of placing a space heater in a
bathtub. In another example, Conley denied to all three doctors to ever being sexually molested,
but the week before trial Conley told Dr. Conner he had been. We find no abuse of discretion in
the trial court’s weighing of this factor.

        Conley also argues no weight was given to his lack of capacity to appreciate the
criminality of conduct. In fact, the trial court found just the opposite, that Conley indeed did
have the capacity to appreciate the criminality of his conduct, and thus gave no weight to the
mitigator. The trial court relied, in part, on the testimony of defense expert Dr. Conner, who
concluded that “at the time of the crime his executive functioning was not suspended and he was
able to make rational decisions.” Krempetz is on point in giving minimal weight to defendant’s
mental condition when (1) there was no evidence defendant had an inferior intellect, (2)
defendant was able to fully function on a daily basis, (3) defendant accepted full and complete
responsibility for his commission of the offense of murder by entering a plea of guilty, (4)
defendant self medicated with marijuana, and (5) the doctor testified that defendant was
manipulative and deceptive. 872 N.E.2d at 615. Again, we find no abuse of discretion.

        Finally, the statute provides for “other circumstances appropriate for consideration.” I.C.
§ 35-50-2-9(c)(8).    The trial court next gave “some” weight to Conley’s cooperation with
authorities, reasoning the crime would be easily discovered regardless of Conley’s confession.




                                                 9
However, the trial court gave no weight to Conley’s remorse as a mitigating factor, finding it to
be “superficial given the horrendous nature of the crime.”

        Judge Humphrey gave a detailed appraisal of each mitigating circumstance as he weighed
them against the sole aggravator of Conner’s youth. We find the trial court was within its sound
discretion in ultimately concluding that the aggravating factor outweighed the mitigating factors.
We find the trial court’s sentencing statement, spanning thirty pages, was detailed and explained
its rationale for awarding weight, or affording no weight, to each and every mitigating
circumstance proffered by Conley.      Again, the standard of review is a manifest abuse of
discretion. Covington v. State, 842 N.E.2d 345, 348 (Ind. 2006). We find no abuse of discretion
by the trial court.

        It is also appropriate to discuss the Supreme Court’s recent decision, Miller v. Alabama,
132 S.Ct. 2455 (2012). The Supreme Court held that “mandatory life without parole for those
under the age of 18 at the time of their crimes violates the Eighth Amendment’s prohibition on
‘cruel and unusual punishments.’” Miller 132 S.Ct. at 2460. The Court’s opinion discusses “two
strands of precedent reflecting our concern with proportionate punishment.” Id. at 2463. The
first strand of precedent the Supreme Court refers to is the Graham and Roper line of cases,
respectively providing that the Eighth Amendment bars capital punishment for juveniles, and
prohibits a sentence of life without the possibility of parole for juveniles who committed
nonhomicide offenses. Id. at 2458. The most fundamental take away from Graham was that
“youth matters in determining the appropriateness of a lifetime of incarceration without the
possibility of parole.” Id. This strand, the Supreme Court writes, is focused on the sentencer
taking into account youth. “By removing youth from the balance—by subjecting a juvenile to
the same life-without-parole sentence applicable to an adult—these laws prohibit a sentencing
authority from assessing whether the law’s harshest term of imprisonment proportionately
punishes a juvenile offender.” Id. at 2466.

        The second strand of precedent references the body of law that has held mandatory death
sentences violate the Eighth Amendment. In these cases, the Supreme Court noted it was
especially important that the sentencer have the opportunity to consider the “mitigating qualities
of youth.” Miller, 132 S.Ct. at 2467 (quoting Johnson v. Texas, 509 U.S. 350, 367 (1993)).


                                               10
These two strands lead us to find that imposing a mandatory life-without-parole upon a juvenile
precludes the sentencer from taking into account the defendant’s youth and various issues related
to defendant’s youth, such as a “failure to appreciate risks and consequences.” Id. at 2468. The
Supreme Court further wrote that they would require a sentencer “to take into account how
children are different, and how those differences counsel against irrevocably sentencing them to
a lifetime in prison.” Id. at 2469. We hold that Judge Humphrey did just that in the present case.
Finally, we note the Supreme Court mentioned Indiana as being one of fifteen jurisdictions
where life without parole for juveniles was discretionary, and therefore not unconstitutional in
violation of the Eighth Amendment. Id. at 2472 n.10.

                                 III. Indiana Appellate Rule 7(B)

       A sentence authorized by statute can be revised where it is inappropriate in light of the
nature of the offense and the character of the offender. Ind. Appellate Rule 7(B). Appellate Rule
7(B) analysis is not to determine “whether another sentence is more appropriate” but rather
“whether the sentence imposed is inappropriate.” King v. State, 894 N.E.2d 265, 268 (Ind. Ct.
App. 2008). It is not a matter of second guessing the trial court sentence. Sentence review under
Appellate Rule 7(B) is very deferential to the trial court. Felder v. State, 870 N.E.2d 554, 559
(Ind. Ct. App. 2007). The burden is on the defendant to persuade the appellate court that his
sentence is inappropriate. Childress v. State, 848 N.E.2d 1073, 1080 (Ind. 2006).

       Therefore, when reviewing a sentence, our principal role is to “leaven the outliers” rather
than necessarily achieve what is perceived as the “correct” result. Cardwell v. State, 895 N.E.2d
1219, 1225 (Ind. 2008). We do not look to determine if the sentence was appropriate; instead we
look to make sure the sentence was not inappropriate. King, 894 N.E.2d at 268.

       The nature of the offense is a crime of unimaginable horror and brutality.          While
babysitting his little brother, a nearly eighteen-year-old murdered his ten-year-old brother, with
his bare hands. Conley was in a position of trust over his brother. He murdered his little brother
in the very place Conner should have felt the safest. Conner was choked from behind until he
passed out, bleeding from the mouth and nose. Conner was still alive as Conley drug him into
the kitchen, put on gloves, and for a second time choked Conner. The choking went on for
approximately twenty minutes. Conner was still alive. Conley placed a bag over Conner’s head.

                                               11
Conner ultimately died due to this asphyxiation. Conley drug Conner’s body down a set of
stairs, slamming the head on concrete to ensure Conner was dead. Conner’s dying words were
“Andrew stop.”

       This was a drawn out crime.         Conner suffered unimaginable horror.        Conley had
opportunities to stop murdering his brother with his own hands. Conley had a number of
opportunities to stop his actions and get medical help for Conner. Instead, he continued. This
was not a nearly instantaneous death by a bullet. This was death by the hands of the person in
charge of protecting Conner. The brutal nature of this crime does not move this Court to believe
the sentence is inappropriate.

       Defendant claims he should be given leniency due to his alleged mental illness.
Following five days of testimony and one-hundred-fifty-five exhibits, the trial court determined
that Conley’s mental health was not as dire or disturbed as the defendant claimed. Instead, the
evidence suggests a hardened character. Speaking with his parents following the murder of his
brother, Conley went about a normal day, even asking his father for a condom. Conley seemed
happy. This is in line with the doctors who testified at the trial. While Conley may have had
some mental or emotional disturbance, he still retained the mental capacity to control his
conduct. Conley visited with his girlfriend, even giving her a promise ring, while Conner lay
dead in the trunk of the car. Conley watched football the following day. It was not until after
Conley was told to go pick Conner up from his grandmother’s house, that the reality began to set
in. Conley had no escape, no way of avoiding what he had done. The sentence of life without
parole was appropriate in light of the defendant’s character and the nature of this offense.

               IV. Constitutional Implications of LWOP for a Seventeen-Year-Old

       The constitutionality of statutes is reviewed de novo. State v. Moss-Dwyer, 686 N.E.2d
109, 110 (Ind. 1997). Such review is “highly restrained” and “very deferential,” beginning “with
[a] presumption of constitutional validity, and therefore the party challenging the statute labors
under a heavy burden to show that the statute is unconstitutional.” Id. at 111–12. The United
States Supreme Court has held it is cruel and unusual punishment for an individual under the age
of eighteen to be sentenced to life without parole for a non-homicide crime. Graham v. Florida,
130 S. Ct. 2011 (2010). As we mentioned above, the Supreme Court recently decided Miller v.

                                                12
Alabama, holding a mandatory sentencing scheme of life-without-parole for juveniles is
unconstitutional under the Eighth Amendment.2

       In order to determine whether a punishment is cruel and unusual, the Supreme Court
“look[s] beyond historical conceptions to the evolving standards of decency that mark the
progress of a maturing society.” Graham, 130 S. Ct. at 2021 (internal quotations omitted). “The
basic concept underlying the Eighth Amendment is nothing less than the dignity of man. While
the State has the power to punish, the Amendment stands to assure that this power be exercised
within the limits of civilized standards.” Trop v. Dulles, 356 U.S. 86, 100 (1958) (plurality
opinion). The applicability of what is cruel and unusual punishment changes “as the basic mores
of society change.” Kennedy v. Louisiana, 554 U.S. 407, 419 (2008).

       We first note that Conley was born on May 14, 1992, and he murdered his brother on
November 28, 2009. He was seventeen years, six months, and two weeks old. He pleaded guilty
on September 13, 2010, and was sentenced on October 15, 2010, at the age of eighteen years and
five months. Our review of other states reveals that the overwhelming majority provide for the
possibility of LWOP sentences to individuals under the age of eighteen.3 These decisions have
been made by the legislature. The legislature has made a policy decision that this is what we
want to do. The Eleventh Circuit has written, “the death penalty is not required to deter juveniles
from committing murder because a life without parole sentence is deterrence enough,
particularly for a juvenile.” Loggins v. Thomas 654 F.3d 1204, 1223 (11th Cir. 2011). In Roper
v. Simmons, 543 U.S. 551 (2005), the United States Supreme Court held that it was cruel and
unusual punishment to sentence an individual under the age of eighteen to death. However,
Roper recognized that life without parole was still a viable sentence for juveniles, noting the
LWOP sentence was a severe enough sanction to not need the death penalty for juveniles. 543
U.S. at 572. The implication of Roper, then, is that a sentence of life without parole for a


2
  We held Oral Argument on November 14, 2011, at Indiana University South Bend. The Eighth
Amendment Constitutional issue had not been briefed by either party. We asked the parties to amend
their briefs to address this issue. Briefing was completed February 28, 2012.
3
 Only Alaska, Colorado, Kansas, Kentucky, Maine, Montana, New Mexico, New York, Oregon, Texas,
and West Virginia do not allow for LWOP sentences for those under the age of 18. National Conference
of State Legislatures, Juvenile Life Without Parole (JLWOP), February 2010, (available at
www.ncsl.org/documents/cj/jlwopchart.pdf) (last viewed June 27, 2012).

                                                13
juvenile convicted of homicide is constitutional. Loggins v. Thomas, 654 F. 3d 1204, 1222 (11th
Cir. 2011). Recent opinions have been handed down by Nebraska,4 and Missouri5 upholding as
constitutional an LWOP sentence to a juvenile who commits murder under the United States
Constitution and their state constitutions.

          As other states have held, and we agree, defendant’s Roper and Graham analysis is
flawed because “Roper expressly and Graham implicitly recognize that life without parole is not
cruel and unusual punishment for a minor who is convicted of a homicide.”               Missouri v.
Andrews, 329 S.W.3d 369, 376–77 (Mo. 2010). As Justice Zel Fischer wrote,

          In Roper, the Court responded to the argument that the possibility of the death
          penalty was necessary to deter minors from committing homicides by noting that
          the punishment of life without parole is a severe enough sanction to serve as
          deterrence. 543 U.S. at 572, 125 S. Ct. 1183. In Graham, the Court recognized
          that a line existed “between homicide and other serious violent offenses against
          the individual.” 130 S. Ct. at 2027 (internal citations omitted). Defendants who
          commit nonhomicide offenses, therefore, are “categorically less deserving of the
          most serious forms of punishment than are murders.” Id. Even defendants who
          commit crimes that cause serious bodily harm to another individual cannot be
          compared to murders with regard to the severity and irrevocability of their crimes.
          Id. By illustrating the differences between all other juvenile criminals and
          murderers, the Court implies that it remains perfectly legitimate for a juvenile to
          receive a sentence of life without parole for committing murder. 130 S. Ct. at
          2027. The chief justice further notes that there is “nothing inherently
          unconstitutional about imposing sentences of life without parole on juvenile
          offenders.” 130 S. Ct. at 2041 (Roberts, C.J., concurring).

Andrews, 329 S.W.3d at 377.

          The Missouri opinion further notes that there are many cases prior to Roper and Graham
that hold a life without parole sentence for a juvenile homicide offender would not violate the
Eighth Amendment, and the following post-Roper cases continue to hold a life without the
possibility of parole sentence for a juvenile homicide offender continues to be constitutionally
permissible: State v. Pierce, 225 P.3d 1146, 1147 (Ariz. Ct. App. 2010) (stating that in Roper,
“[t]he [Supreme] Court expressly intimated that a natural life sentence for a juvenile who
committed murder is not unconstitutionally cruel and unusual”); State v. Allen, 958 A.2d 1214,

4
    State v. Golka, 796 N.W.2d 198 (Neb. 2011).
5
    Missouri v. Andrews, 329 S.W. 3d 369 (Mo. 2010).

                                                  14
1236 (Conn. 2008) (“The courts are in consensus, however, that the United States Supreme
Court clearly has signaled that [a life without parole] sentence [for a juvenile offender] does not
violate the [E]ighth [A]mendment.”); Wallace v. State, 956 A.2d 630, 641 (Del. 2008)
(concluding that “the United States Supreme Court, in Roper, would not have recognized a
sentence of life without parole as an acceptable alternative to death as a punishment for juveniles
who commit intentional Murder in the First Degree, if such a sentence would violate the Eighth
Amendment.”). And we further underscore our analysis of the Supreme Court’s recent decision
in Miller v. Alabama and note it deals solely with the issue of mandatory sentencing schemes
requiring life-without-parole for juveniles.   In fact, as the Supreme Court specifically noted
Indiana was one of fifteen states where life without parole was discretionary. As they wrote,

       According to available data, only about 15% of all juvenile life-without-parole
       sentences come from those 15 jurisdictions, while 85% come from the 29
       mandatory ones. See Tr. Of Oral Arg. In No. 10-9646, p. 19; Human Rights
       Watch, State Distribution of Youth Offenders Serving Juvenile Life Without
       Parole (JLWOP), Oct. 2, 2009, online at http://www.hrw.org/news/2009/10/02/
       state-distribution-juvenile-offenders-serving-juvenile-life-withut-parole (as visited
       June 21, 2012, and available in Clerk of Court’s case file). That figure indicates
       that when given the choice, sentencers impose life without parole on children
       relatively rarely. And contrary to The Chief Justice’s argument, see post, at 2462,
       n. 2, we have held that when judges and juries do not often choose to impose a
       sentence, it at least should not be mandatory. See Woodson v. North Carolina,
       428 U.S. 280, 295–296 (1976) (plurality opinion) (relying on the infrequency with
       which juries imposed the death penalty when given discretion to hold that its
       mandatory imposition violates the Eighth Amendment).

Miller, 132 S.Ct. at 2472 n.10.       Our holding that the life without parole sentence is not
unconstitutional is not altered by Miller.

       We now turn to the state constitutional analysis. The Indiana Constitution can provide
more protections than the United States Constitution provides. Justice v. State, 552 N.E.2d 844,
847 (Ind. Ct. App. 1990). Our Constitution provides in pertinent part “Cruel and unusual
punishments shall not be inflicted. All penalties shall be proportioned to the nature of the
offense.” Ind. Const. art. 1, § 16. “The penal code shall be founded on the principles of
reformation, and not of vindictive justice.” Ind. Const. art. 1, § 18. Although the language is
not the same as the United States Constitution, the protections are the same.



                                                15
        “The constitutional prohibition against cruel and unusual punishments proscribes
atrocious or obsolete punishments and is aimed at the kind and form of the punishment, rather
than the duration or amount.”        Dunlop v. State, 724 N.E.2d 592, 597 (Ind. 2000).              The
punishment will be deemed cruel and unusual under Article 1, Section 16 “if it makes no
measurable contribution to acceptable goals of punishment, but rather constitutes only
purposeless and needless imposition of pain and suffering.”              Id.   (internal citations and
quotations omitted). “[L]ife imprisonment without parole does not constitute cruel and unusual
punishment.” Id.

        Conley correctly points out that he is only the fourth juvenile sentenced to a life-without-
parole sentence, following Daniel Boyd,6 sentenced in 1997 for killing a sixty-five-year-old man;
Larry Newton,7 sentenced for the 1994 murder of a Ball State student; and Greg Dickins,8
sentenced in 2001 after shooting a police officer. Life without parole is reserved for use in only
the most heinous of crimes that so shock our conscience as a community. If retribution was the
goal, as Conley has stated, life without parole would be far more frequently used in Indiana. We
hold that life without parole is not an unconstitutional sentence under the Indiana constitution
under these circumstances.




6
  Conley cites Boyd as being one of three juveniles serving such a sentence. Conley cites no authority,
and a search returns no appellate citation to a Daniel Boyd. Perhaps Boyd accepted a plea agreement in
lieu of the prosecution dismissing the death penalty. A review of the Indiana Department of Correction
Offender Date shows Boyd was born October 17, 1977, and was sentenced for murder to life without
parole on June 27, 1997. See Indiana Department of Correction Offender Data (available at
www.in.gov/apps/indcorrection.ofs), (last visited June 27, 2012). Boyd was likely near the age of
eighteen when the murder was committed.
7
  On September 24, 1994, Larry Newton and friends were drinking in a graveyard near Ball State’s
campus. Newton decided he wanted to go to campus and rob someone and stated, “I’m hyped and I feel
like killing somebody.” Once there, Newton and friends found a male returning from walking a female
friend home. Newton shot the male in the back of the head. Turner v. State, 682 N.E.2d 491, 493–494
(Ind. 1997); Newton v. State, 894 N.E.2d 192 (Ind. 2008). Newton’s date of birth is November 9, 1976,
and the crime occurred on September 24, 1994, making Newton seventeen and ten months of age at the
time the crime occurred. See Indiana Department of Correction Offender Data (available at
www.in.gov/apps/indcorrection/ofs), (last visited June 27, 2012).
8
  In 1997, a sixteen-year-old Dickens was riding his bike with a friend when the officer observed Dickens
riding a potentially stolen bike. The officer approached them in his patrol car, and they fled to a home.
The officer followed Dickens onto the porch, and Dickens shot the officer in the head, killing him.
Dickens v. State, 754 N.E.2d 1, 3–4 (Ind. 2001).

                                                   16
                                           Conclusion

        The heinous facts of this crime are difficult to comprehend. A seventeen-and-a-half-
year-old caring for his ten-year-old brother murdered the defenseless child with his bare hands.
After disposing of the body, Conley acted as if nothing was out of the ordinary. He took steps to
cover up the crime and hid his brother’s body in a park. The aggravating factor was clearly
established and uncontroverted. The judge was within his discretion in weighing the mitigating
factors in the manner in which he did. Ultimately, we find no abuse of discretion in Judge
Humphrey’s analysis of those factors and ultimate sentence of life without parole. Also, the trial
court did not abuse its discretion in admitting the testimony of Dr. Daum. Finally, the imposition
of life without parole to a convicted murderer under the age of eighteen in Indiana is in line with
the rest of the nation in holding such a sentence is constitutional. We affirm Conley’s sentence
of life without parole.

Dickson, C.J., and Massa, J., concur.

Rucker, J., dissents with separate opinion in which Sullivan, J., concurs.




                                                17
Rucker, J., dissenting.


        At the age of seventeen Andrew Conley murdered his ten-year-old brother. I agree with
the majority that Dr. Daum’s testimony was properly admitted and I do not believe the trial court
manifestly abused its discretion in weighing aggravating and mitigating circumstances in this
case. However, I do not agree Conley should have been sentenced to die in prison. Therefore I
respectfully dissent.


        The United States Constitution prohibits “cruel and unusual punishment.” U.S. Const.
amend. VIII. Such punishment is an excessive sanction violating the “basic ‘precept of justice
that punishment for crime should be graduated and proportioned’ to both the offender and the
offense.” Miller v. Alabama, No. 10-9646, slip op. at 6 (U.S. June 25, 2012) (quoting Roper v.
Simmons, 543 U.S. 551, 560 (2005)). Whether a juvenile’s sentence of life without parole
constitutes “cruel and unusual punishment” is an issue of national and international import as
well as the subject of much scholarly literature. See generally, e.g., Miller, No. 10-9646; Connie
de la Vega & Michelle Leighton, Sentencing Our Children to Die in Prison: Global Law and
Practice, 42 U.S.F.L. Rev. 983 (2008). To determine whether a punishment violates the Eighth
Amendment, courts must look beyond historical conceptions to “the evolving standards of
decency that mark the progress of a maturing society.” Graham v. Florida, 130 S. Ct. 2011, 2021
(2010) (quoting Estelle v. Gamble, 429 U.S. 97, 102 (1976)).9




9
  Like the U.S. Constitution, the Indiana Constitution also prohibits cruel and unusual punishment. See
Ind. Const. art. 1, § 16 (“Cruel and unusual punishments shall not be inflicted.”). Protections afforded
under Indiana’s Constitution are not necessarily coextensive with those provided by the Federal
Constitution, and our analysis of many Constitutional issues frequently does not follow in lockstep with
the federal analysis. See, e.g., Litchfield v. State, 824 N.E.2d 356, 359 (Ind. 2005) (applying different
analysis for reasonableness of a police search); Collins v. Day, 644 N.E.2d 72, 75 (Ind. 1994) (identifying
independent analyses for Indiana Privileges and Immunities and Federal Equal Protection clauses).
“Punishment is cruel and unusual under Article 1, Section 16 if it makes no measurable contribution to
acceptable goals of punishment, but rather constitutes only purposeless and needless imposition of pain
and suffering.” Dunlop v. State, 724 N.E.2d 592, 597 (Ind. 2000) (internal quotations omitted). Further,
“[t]he penal code shall be founded on the principles of reformation, and not of vindictive justice.” Ind.
Const. art. 1, § 18. This Court has held that life imprisonment without parole is not per se cruel and
unusual punishment. Dunlop, 724 N.E.2d at 597. But prior to this case we have never considered
specifically whether life imprisonment without parole may be unconstitutional as applied to juveniles.
        When examining a punishment for categorical compliance with the Eighth Amendment,
the Supreme Court exercises its “own independent judgment whether the punishment in question
violates the Constitution,” Graham, 130 S. Ct. at 2022, and considers “‘objective indicia of
society’s standards, as expressed in legislative enactments and state practice’ to determine
whether there is a national consensus against the sentencing practice at issue.” Id. (quoting
Roper, 543 U.S. at 563-64).


        Employing this analysis, the Supreme Court has held death sentences for those under the
age of eighteen violate the Eighth Amendment, Roper, 543 U.S. at 568, and has held life without
parole sentences for juveniles committing crimes other than homicide to be similarly offensive,
Graham, 130 S. Ct. at 2030.10 And the Supreme Court very recently held that sentencing
schemes mandating life without parole for those under the age of 18 at the time of their crimes –
including homicide crimes – violate the Eighth Amendment, because a juvenile has “‘lessened
culpability’ and greater ‘capacity for change,’” and because precedent requires “individualized
sentencing for defendants facing the most serious penalties.” Miller, No. 10-9646, slip op. at 1-2
(quoting Graham, 130 S. Ct. at 2026, 2030).11 Based on the reasoning advanced in these cases,
Conley argues that any sentence of life without parole for all juvenile offenders is
unconstitutional, even for those who commit homicide.


        The Supreme Court has found even where a majority of jurisdictions may statutorily
permit a particular sentence, “an examination of actual sentencing practices” may “disclose[] a
consensus against its use.” Graham, 130 S. Ct. at 2023. In Miller, the Supreme Court identified
Indiana as one of fifteen states permitting discretionary life without parole sentences for
juveniles. And as the Miller Court noted, in jurisdictions where juvenile life without parole
sentences are discretionary, such sentences are unusual. Miller, No. 10-9646, slip op. at 21-22
n.10. (“[W]hen given the choice, sentencers impose life without parole on children relatively


10
  Roper concerned a seventeen-year-old sentenced to death for planning and executing a horrifying crime
that included burglary, kidnapping, and murder. Roper, 543 U.S. at 556-57. Graham involved a sixteen-
year-old sentenced to life without parole for first-degree felony armed burglary with assault or battery.
Graham, 130 S. Ct. at 2018.
11
  The defendants in Miller were fourteen-year-olds convicted of homicide. Both were sentenced to life
without parole under two different mandatory state sentencing statutes.

                                                   2
rarely.”). Of the 421 juveniles serving life without parole sentences in these states, 348 – 83% –
were confined in only four states: Arizona, California, Mississipi, and Oklahoma. See Nat’l
Conference of State Legislatures, Juvenile Life Without Parole (JLWOP) (2010),
http://www.ncsl.org/documents/cj/jlwopchart.pdf (table of U.S. jurisdictions listing juvenile life
without parole sentences by jurisdiction and noting in which jurisdictions life without parole
sentences are entirely discretionary). According to Federal Bureau of Investigation statistics,
juveniles committed 45,429 murders between 1980 and 2009. See C. Puzzanchera & W. Kang,
Easy   Access    to   the   FBI’s   Supplementary    Homicide    Reports:    1980-2009    (2010),
http://ojjdp.gov/ojstatbb/ezashr/ (national homicide database permitting selection of results by
age of offender and year of incident). As of February 2010, 2,465 U.S. juveniles were serving
life without parole for homicide offenses. See Nat’l Conference of State Legislatures, supra.
These numbers, while not providing an exact comparison, tend to confirm that as a matter of
overall proportion to the opportunities for its imposition, life without parole sentences for
juveniles convicted of homicide crimes is quite infrequent – occurring in less than 6% of juvenile
homicide prosecutions. Accord Graham, 130 S. Ct. at 2024-25 (analyzing statistics of juvenile
life without parole sentences for non-homicide crimes and concluding that “in proportion to the
opportunities for its imposition, life without parole sentences for juveniles convicted of
nonhomicide crimes is as rare as other sentencing practices found to be cruel and unusual”).


       In cases holding certain punishments categorically unconstitutional as to juveniles, the
Supreme Court has found confirmation for its judgment on these matters by reviewing accepted
practice in the international community. Roper, 543 U.S. at 575. For many years the Court “has
referred to the laws of other countries and to international authorities as instructive for its
interpretation of the Eighth Amendment’s prohibition of ‘cruel and unusual punishments.’” Id.
And as it relates to juvenile life without parole sentences – even for homicide crimes – “[t]he
United States is the only country in the world that does not comply with the norm against
imposing life without possibility of parole sentences on offenders who are under the age of 18 at
the time of the offense.” Brief for Amnesty International, et al. as Amici Curiae Supporting
Petitioners, Miller v. Alabama, No. 10-9646 and Jackson v. Hobbs, No. 10-9647, 2012 WL
174238, at *2. According to an article cited by the Supreme Court in Graham, 130 S. Ct. at
2033, “Most governments have either never allowed, expressly prohibited, or will not practice

                                                3
[life without parole] sentencing on child offenders because it violates the principles of child
development and protection established through national standards and international human
rights law.” de la Vega & Leighton, supra, at 989. In fact, “[t]here are now at least 135
countries that have expressly rejected the sentence via their domestic legal commitments, and
185 countries that have done so in the U.N. General Assembly.” Id.


       Further, it is notable that exposure of juveniles to life without parole sentences is
frequently the result of the increased prevalence of statutes permitting or mandating transfer of
juveniles into adult court. See Id. at 991-92. As the Supreme Court has recognized, “transfer
laws show ‘that the States consider 15-year-olds to be old enough to be tried in criminal court for
serious crimes (or too old to be dealt with effectively in juvenile court), but tell[] us nothing
about the judgment these States have made regarding the appropriate punishment for such
youthful offenders.’” Graham, 130 S. Ct. at 2025 (quoting Thompson v. Oklahoma, 487 U.S.
815, 826 n.24 (1988) (plurality opinion) (emphasis in original). See also Miller, No. 10-9646,
slip op. at 23. In Conley’s case, he was exposed to a life without parole sentence by virtue of
Indiana Code section 31-30-1-4(a)(2) which provides: “The juvenile court does not have
jurisdiction over an individual [at least 16 years of age] for an alleged violation of . . . IC 35-42-
1-1 (murder).”


       But the key in the Supreme Court’s Eighth Amendment analysis in juvenile cases is its
“judicial exercise of independent judgment” which “requires consideration of the culpability of
the offenders at issue in light of their crimes and characteristics, along with the severity of the
punishment in question” together with a determination of whether the sentence at issue serves
legitimate penological goals. Graham, 130 S. Ct. at 2026. With respect to juvenile offenders,
these inquiries are underpinned by the Supreme Court’s repeated recognition that juveniles are
less culpable than adults and therefore are less deserving of the most severe punishments. See
Id.


       The presumption that juveniles are generally less culpable than adults is based on
extensive past and ongoing “‘developments in psychology and brain science [which] continue to
show fundamental differences between juvenile and adult minds’” – for example, in “parts of the

                                                  4
brain involved in behavior control.’” Miller, No. 10-9646, slip op. at 9 (quoting Graham, 130 S.
Ct. at 2026). As the Supreme Court has observed, there are “three significant gaps between
juveniles and adults.” Id. at 8. First, “[a]s compared to adults, juveniles have a ‘lack of maturity
and an underdeveloped sense of responsibility.’” Graham, 130 S. Ct. at 2026 (quoting Roper,
543 U.S. at 569). Second, “they ‘are more vulnerable or susceptible to negative influences and
outside pressures, including peer pressure,’” id. (quoting Roper, 543 U.S. at 569), and “they have
limited ‘control over their own environment’ and lack the ability to extricate themselves from
horrific, crime-producing settings.” Miller, No. 10-9646, slip op. at 8 (quoting Roper, 543 U.S.
at 569). Finally, “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.’” Id. (quoting Roper, 543 U.S. at
570).   “These salient characteristics mean ‘it 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, 130 S. Ct. at 2026 (quoting Roper, 543 U.S. at 573). Even justices not finding
categorical Eighth Amendment violations in these juvenile cases agree with this precept. See
Graham, 130 S. Ct. at 2039 (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 (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.”).


        Using this backdrop, the Supreme Court has recognized that “life without parole is the
‘second most severe penalty permitted by law,’” Graham, 130 S. Ct. at 1027 (quoting Harmelin
v. Michigan, 501 U.S. 957, 1001 (1991) (Kennedy, J., concurring in part and concurring in the
judgment)), and “the distinctive attributes of youth diminish the penological justifications for
imposing the harshest sentences on juvenile offenders, even when they commit terrible crimes.”
Miller, 10-9646, slip op. at 9. The Miller opinion highlighted how the goals of retribution,
deterrence, incapacitation, and rehabilitation are not served by sentencing juveniles to life
without parole. See id. at 9-10 (noting that retribution makes less sense the less culpable the
offender; deterrence against juveniles has limited effect as the attributes of youth “make them
less likely to consider potential punishment”; incapacitation of a juvenile is only justified where

                                                 5
the juvenile is incorrigible, and “‘incorrigibility is inconsistent with youth’”; the sentence of life
without parole “‘forswears altogether the rehabilitative ideal’” (quoting Graham, 130 S. Ct. at
2029-30)). As the Court aptly put it in assessing life without parole for juvenile non-homicide
crimes: “[T]his 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 the spirit of the [juvenile] convict, he will remain in prison for the rest of his days.’”
Graham, 130 S. Ct. at 2027 (quoting Naovarath v. State, 779 P.2d 944, 944 (Nev. 1989)).


          The Miller Court limited its holding of unconstitutionality to mandatory juvenile life
without parole sentences, stating, “[b]ecause that holding is sufficient to decide these cases, we
do not consider Jackson’s and Miller’s alternative argument that the Eighth Amendment requires
a categorical bar on life without parole for juveniles, or at least for those 14 and younger.”
Miller, 10-9646, slip op. at 17. The thrust behind the Miller holding is that juvenile sentencing
decisions must be individualized because, given the diminished culpability of juvenile offenders,
there is a greater risk that a life without parole sentence will violate the Eighth Amendment. A
sentencing court therefore must consider youth and its attendant characteristics – “and how those
differences counsel against irrevocably sentencing [children] to a lifetime in prison.” Id.


          Conley was not sentenced under a mandatory scheme like those held unconstitutional in
Miller.    But the Miller decision does not preclude a conclusion that Conley’s sentence is
unconstitutional. It is the consideration of those very things that a mandatory scheme prohibits –
such as the juvenile defendant’s abuse by his stepfather, his regular use of drugs and alcohol, and
his four suicide attempts, see id., at 4 – that may lead to a conclusion that a particular sentence,
when applied to a particular youth, violates the Eighth Amendment. As the Court stated:

                 Most fundamentally, Graham insists that youth matters in
                 determining the appropriateness of a lifetime of incarceration
                 without the possibility of parole. In the circumstances there,
                 juvenile status precluded a life without parole sentence, even
                 though an adult could receive it for a similar crime. And in other
                 contexts as well, the characteristics of youth, and the way they
                 weaken rationales for punishment, can render a life-without-parole
                 sentence disproportionate. “An offender’s age,” we made clear in
                 Graham, “is relevant to the Eighth Amendment,” and so “criminal

                                                  6
               procedure laws that fail to take defendants’ youthfulness into
               account at all would be flawed.” The Chief Justice, concurring in
               the judgment, made a similar point. Although rejecting a
               categorical bar on life-without-parole sentences for juveniles, he
               acknowledged “Roper’s conclusion that juveniles are typically less
               culpable than adults,” and accordingly wrote that “an offender’s
               juvenile status can play a central role” in considering a sentence’s
               proportionality.

Miller, 10-9646, slip op. at 10-11 (quoting Graham, 130 S. Ct. at 2031; 130 S. Ct. at 2039
(Roberts, C.J., concurring in the judgment)).


       In his concurrence in Graham, the Chief Justice applied a “narrow proportionality”
review to determine if a life without parole sentence as to Graham in particular violated the
Eighth Amendment. The Chief Justice recognized the purpose of such a review is not to
“second-guess” the decisions of legislatures or trial courts, as “the Eighth Amendment does not
require strict proportionality between the crime and the sentence.” Graham, 130 S. Ct. at 2037
(Roberts, C.J., concurring in the judgment) (quoting Ewing v. California, 538 U.S. 11, 23
(2003)). Rather, it “forbids only extreme sentences that are grossly disproportionate to the
crime.” Id. (quoting Ewing, 538 U.S. at 23). Still, the Chief Justice concluded that based on the
juvenile defendant’s lack of prior criminal convictions,12 the “difficult circumstances of his
upbringing” (which included his parents’ drug addiction in his early years, his diagnosis with
attention deficit hyperactivity disorder, and his use at a young age of alcohol, tobacco, and
marijuana) and his youth (sixteen at the time of the crime), the sentence of life without parole
was likely a grossly disproportionate punishment for his crime of first-degree felony armed
burglary with assault or battery. Id. at 2040 (Roberts, C.J., concurring in the judgment). Chief
Justice Roberts therefore concurred in the Court’s judgment that Graham’s sentence was
unconstitutional. Id. at 2042 (Roberts, C.J., concurring in the judgment).


       As the majority here correctly recognizes, Roper, Graham, and Miller are certainly
distinguishable from this case. And though Miller’s holding does not apply here, its admonition

12
  Although this was Graham’s first conviction, he had acknowledged committing “two or three” other
robberies, and was at the time of this conviction also found guilty of a separate home invasion robbery
and possessing a firearm. Graham, 130 S. Ct. at 2019. Further, Graham began drinking alcohol and
using tobacco at age 9 and he smoked marijuana at age 13. Id. at 2018.

                                                  7
does: “[G]iven all we have said in Roper, Graham, and this decision about children’s diminished
culpability and heightened capacity for change, we think appropriate occasions for sentencing
juveniles to this harshest possible penalty will be uncommon.” Miller, 10-9646, slip op. at 17
(emphasis added). Ultimately I would find it unnecessary to decide this case on Constitutional
grounds and would instead exercise this Court’s review and revise authority under Appellate
Rule 7(B) to reduce Conley’s sentence to a term of years.


        I agree that the trial court did not manifestly abuse its sentencing discretion in this case. 13
Nonetheless, “[a]lthough a trial court may have acted within its lawful discretion in determining
a sentence, Article VII, Sections 4 and 6 of the Indiana constitution ‘authorize[] independent
appellate review and revision of a sentence imposed by the trial court.’” Anglemyer v. State,
868 N.E.2d 482, 491 (Ind. 2007) (quoting Childress v. State, 848 N.E.2d 1073, 1080 (Ind.
2006)). This authority is implemented through Indiana Appellate Rule 7(B), which allows a
court on appeal to “revise a sentence authorized by statute if, after due consideration of the trial
court’s decision, the Court finds that the sentence is inappropriate in light of the nature of the
offense and the character of the offender.” Though we have long recognized that the maximum
sentence permitted by law should be reserved for the very worst offenders, Bacher v. State, 686
N.E.2d 791, 802 (Ind. 1997), the purpose of appellate review of sentences is “not to achieve a
perceived ‘correct’ result in each case,” but rather to “leaven the outliers.” Cardwell v. State,
895 N.E.2d 1219, 1225 (Ind. 2008).14 Appellate courts are not limited to the statutory mitigators
and aggravators when considering a Rule 7(B) claim, but may look to other evidence in the
record. See Roney v. State, 872 N.E.2d 192, 206 (Ind. Ct. App. 2007), trans. denied.



13
  The Supreme Court in Miller made a point of requiring a juvenile’s sentence “to take into account how
children are different, and how those differences counsel against irrevocably sentencing them to a lifetime
in prison.” Miller, No. 10-9646, slip op. at 17 (emphasis added). It is not yet clear how this language
might apply on appellate Eighth Amendment review of a particular juvenile’s sentence. Nevertheless, it
seems clear to me that our “manifest abuse of discretion” standard for review of a trial court’s weighing
of aggravators and mitigators is no substitute for an Eighth Amendment proportionality analysis.
14
  According to the U.S. Department of Justice, less than one quarter of state homicide convictions in the
year 2006 resulted in life without parole sentences. See Seth Rosenmerkel, et al., U.S. Dep’t of Justice
Bureau of Justice Statistics, Felony Sentences in State Courts, 2006 – Statistical Tables at 7 (Table 1.4)
(2010), http://bjs.ojp.usdoj.gov/content/pub/pdf/fssc06st.pdf. In fact, the median sentence in 2006 for
homicide crimes – including those by adult offenders – was twenty-two years. See Id. at 6 (Table 1.3).

                                                    8
        As to the nature of the offense, there is no question this was a brutal crime. Conley
strangled his younger brother, asphyxiated him by covering his head with a plastic bag, placed
him in the trunk of his car, then went to see his girlfriend. But this is not the entire inquiry under
Rule 7(B).


        When considering Conley’s character, the majority focuses on Conley’s behavior during
the crime and the next day. I would note in this regard that on the day after the murder – before
anyone but two of his best friends knew of what happened – Conley drove himself to the police
station where he told police he killed his brother. He waived his Constitutional rights15 and
cooperated with police. Conley is very clearly distraught by what he did and cannot understand
why he did it. Tr. at 617-18, 704. He even asked the psychologists assessing him after his arrest
to help him get the death penalty for his crime. Tr. at 617, 704.


        Conley’s upbringing was punctuated by his mother’s four marriages and the consequent
changes in her living arrangements.            See Depo. of Bridget Conley at 59-67.16                Conley’s
interviews with psychologists after the crime indicated he had attempted suicide at least five
times. Tr. at 521, 790. There was evidence of neglect by his mother, Tr. at 834-35, and that one
of his stepfathers had anally raped him at age seven or eight. Tr. at 622.17 Even so, prior to
committing this crime Conley had no convictions or juvenile adjudications of any kind. He was
15
   Because Conley was a minor, Conley’s mother (also the victim’s mother) was required to consent to
this waiver, which she did. Tr. at 1022. She has not seen Conley since she became aware of the murder.
See Depo. of Bridget Conley at 67.
16
   After the crime, Conley’s mother Bridget relocated outside of Indiana and was unavailable for trial.
The parties agreed to conduct a deposition of Bridget Conley in lieu of her trial testimony. A video of the
deposition was played on the record for the trial court at the sentencing hearing, and a copy of the
transcript of the deposition was admitted as Exhibit 498A. See Tr. at 576-81; Depo. of Bridget Conley at
5. Because the actual recording was not transcribed directly into the record, I refer to the Deposition
Transcript in lieu of the Sentencing Hearing Transcript.
17
   Conley’s counsel found out about the rape because Conley had confided about it to a friend before
these events. The friend informed Conley’s counsel, who informed Dr. Conner, the consulting
psychiatrist. When later asked by Dr. Connor why he hadn’t initially disclosed the molestation, Conley
responded that “[h]e felt like . . . it was nasty, it was no one’s business, it didn’t really have anything to do
with [these events].” Tr. at 626. In fact, when Dr. Connor asked Conley whether the molestation could
be connected to what Conley did to his brother, Conley replied “I don’t see how it could be. They are two
very different things.” Tr. at 623. Dr. Connor found that these responses – and the fact that Conley had
not initially tried to use the molestation to his advantage – made Conley’s descriptions of this and other
events of his childhood “more credible” rather than less so. See Tr. at 623-24.

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by all accounts a model student and had a “great” relationship with his mother and brother. See
Tr. at 821 (testimony of Conley’s high school principal); Depo. of Bridget Conley at 6. See also
Tr. at 861 (testimony of Marsha Louden noting that the brothers seemed to have a “good
relationship” and that Conley consistently made “sure Conner’s needs were met”); Tr. at 845
(testimony of Conley’s maternal grandmother that “He’s always been a good boy,” and “He’s
my best grandchild”). According to Conley’s mother, he received As and Bs “without even
trying” but she knew he had the ability to get all As if he applied himself. Depo. of Bridget
Conley at 7. See also Tr. at 678, 827 (testimony of long-time teachers of Conley’s). He had
aspirations of going to college, and his best friend’s mother had taken him to make campus visits
before beginning his senior year of high school. Tr. at 858-59; Appellant’s App. at 535.


       Then, abruptly about two weeks before killing his brother, Conley revealed to his mother
that he wanted to kill himself and had tried to electrocute himself in the family bathtub. Depo. of
Bridget Conley at 8, 13. He showed his mother that he had also cut himself all over his chest,
arms, stomach and legs. See Depo. of Bridget Conley at 12. See also Tr. at 790 (testimony of
Dr. Parker describing Conley’s “cutting behavior” and multiple “serious attempts” at suicide).
He then told his mother – out of the blue – that he wanted to quit high school, get his GED, and
join the National Guard. Depo. of Bridget Conley at 14. Conley’s mother interpreted his self-
destructive behavior as manipulation to get her to agree to let him quit school. Depo. of Bridget
Conley at 16. But Conley’s mother stated she “didn’t mind” that he wanted to quit school during
his senior year, and the next day she took him to withdraw from school, giving her written
consent for him to do so. Depo. of Bridget Conley at 14, 19; Appellant’s App. at 529. Conley’s
mother also started searching for a therapist for him. Conley’s mother stated that had she any
knowledge that he would be a danger to others, she would have “had him committed right
away.” Depo. of Bridget Conley at 51. But when Conley later expressed interest in returning to
school, his mother told him that if he went back to school, the school counselor would commit
him to the psychiatric ward. Tr. at 857 (testimony of Marsha Louden).


       As the trial court noted in its sentencing order, “All [diagnosing medical experts] agree
that the Defendant suffered from a mental disease at the time of the murder.” Tr. at 1026. Their
specific diagnoses varied, but included significant similarities.     See, e.g., Tr. at 606 (Dr.

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Connor’s diagnosis of schizoaffective disorder bipolar type); Tr. at 780-81 (Dr. Parker’s
diagnosis of depression with psychotic features, with possible bipolar disorder); Tr. at 524 (Dr.
Olive’s diagnosis of major depressive disorder with symptoms of mixed personality disorder).
And Dr. Connor opined that Conley had suffered from mental illness since his pre-adolescent
years. Specifically, he found that Conley had an “ongoing and untreated . . . mental health
condition” from which he had suffered since approximately age eleven or twelve. Tr. at 615.
Dr. Connor further testified that Conley’s mental illness affected his “ability to control [his
actions] as compared to . . . a person who has no mental health diagnosis.” Tr. at 616. Conley’s
youth, combined with his mental illness, made him even less culpable than the average juvenile.
Cf. Graham, 130 S. Ct. at 2027 (relying in part on the “twice diminished moral culpability” of a
juvenile who did not intend to kill as compared to an adult murderer in finding life without
parole categorically unconstitutional for juveniles convicted of non-homicide crimes).


           This Court has recognized that even though evidence of a difficult childhood may not
always warrant mitigating weight, “[i]t is of course true 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.’” Richie v. State, 875 N.E.2d 706, 725 (Ind. 2007) (quoting Penry v. Lynaugh, 492 U.S.
302, 319 (1989)).18 And we have previously considered a defendant’s mental illness in deciding
to reduce a sentence. See, e.g., Reid v. State, 876 N.E.2d 1114, 1117 (Ind. 2007) (citing twenty-
two-year-old defendant’s “history of mental health problems” in reducing his fifty year sentence
for conspiracy to commit murder to the advisory sentence of thirty years); Walton v. State, 650
N.E.2d 1134, 1137 (Ind. 1995) (reducing by half the sentence of a high school junior with
diverging mental illness diagnoses for the brutal murders of his adoptive parents). Cf. Carter v.
State, 711 N.E.2d 835, 843 (Ind. 1999) (reducing the murder sentence of a juvenile with a
behavioral disorder and some childhood abuse from sixty to fifty years under the precursor to
Rule 7(B)).




18
     And as noted above, the Rule 7(B) analysis is not limited to statutory mitigators.

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         Finally, Conley was only seventeen at the time of this crime, and I find, as has the
Supreme Court, that his age is relevant to the assessment of his character. There is no question
that juveniles have developmental issues that reduce their culpability for crimes. In this case, it
seems clear that Conley “was still a teenager with a developing brain and impulse control issues
made worse by his mental illness.” Amended Br. of Appellant at 28.


         I disagree with the majority’s characterization of Conley’s “hardened character.” Slip op.
at 12.    While many juveniles may commit crimes that “reflect[] unfortunate yet transient
immaturity,” only “the rare juvenile” is capable of committing a crime that “reflects irreparable
corruption.” See Roper, 543 U.S. at 573. I cannot conclude at this time that Andrew Conley is
one of those rare juveniles.19 For this reason I would revise his sentence to the maximum term of
sixty-five years.

Sullivan, J., concurs.




19
  As the majority notes, we know the details of the crimes committed by two of the three other Indiana
juveniles sentenced to life without parole. One stalked an unsuspecting college student and shot him in
the head because “I’m hyped and I feel like killing somebody.” See slip op. at 16 n.7. The other shot a
police officer in the head after the officer observed him riding a potentially stolen bicycle. Id. at 16 n.8.

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