State of Indiana v. Donnell Wilson, Part 2
In Part 1, I described Donnell’s case, his trial, and his direct appeal proceedings. Below is an infographic I created to explain the process to clients. Having completed the trial and direct appeal process, represented by the first column on the chart, Donnell’s case moved on to state post-conviction proceedings.
Donnell next pursued post-conviction relief. Unlike on direct appeal where the focus is on errors allegedly made by the trial court, in post-conviction proceedings the focus is primarily on mistakes made by the defendant’s attorney, and any new evidence that may have come to light since the trial. Procedurally, the post-conviction process resembles the trial process, in that the petitioner returns to the trial court to present evidence to support his post-conviction claims. If he is denied relief by the trial court, he can appeal.
Donnell raised several post-conviction claims, including the following:
whether his 181-year sentence constituted cruel and unusual punishment under the Eighth Amendment;
whether Donnell’s trial attorney was ineffective for failing to investigate and present mitigation evidence at Donnell’s sentencing hearing; and
whether Donnell’s appellate counsel was ineffective for failing to argue on appeal that Donnell’s de facto life sentence was inappropriate under Indiana Appellate Rule 7(B).
To prove an ineffective-assistance-of-counsel claim, a petitioner must satisfy two prongs. First, the petitioner must show that his attorney performed deficiently. In other words, the attorney’s handling of the case was objectively unreasonable based on prevailing professional norms. Second, the petitioner must show that the attorney’s deficient performance so affected the case that, had the attorney not performed deficiently the outcome of the proceeding possibly would have been different. In rare cases, an attorney’s performance can be so deficient that the harm to the outcome is presumed.
How does a petitioner prove his claim of trial ineffective assistance of counsel? Essentially, he must conduct the investigation and present the evidence trial counsel failed to. This is why post-conviction proceedings can take years; a post-conviction attorney must review the entire case and conduct an independent investigation of the case.
In Donnell’s case, his post-conviction claims were primarily focused not on the guilt phase, but on sentencing. Thus, Donnell’s post-conviction hearing was essentially a recreation of what his sentencing hearing should have looked like. Donnell called the following witnesses:
three of Donnell’s teachers at school, who testified about Donnell being one of their top students in mathematics;
Donnell’s mother and sister, who testified about the chaotic conditions in their neighborhood and the incident where Donnell’s friend was shot;
Dr. Charles Ewing, a forensic psychologist who testified that Donnell had PTSD, could not fully appreciate the consequences of his actions, was immature for his age, was impulsive, unsocialized, mildly paranoid, and poorly educated, and was a good candidate for rehabilitation after the age of 25;
Dr. James Garbarino, a developmental psychologist who testified that at the time of the murders Donnell was in a state of hypervigilance and believed that the victims were going to draw their weapons and shoot him, and that he was a good candidate for rehabilitation;
trial counsel, who talked to Donnell’s family before sentencing but did not raise any concerns about Donnell’s mental health; and
appellate counsel, who was not aware of recent Eighth Amendment case law on life sentences for children at the time of Donnell’s direct appeal and admitted he should have raised a claim about the inappropriateness of Donnell’s sentence.
After the hearing, the post-conviction court denied Donnell relief. Donnell appealed. The Court of Appeals decided only one claim on its merits: whether Donnell’s trial counsel was ineffective. The Court of Appeals compared what occurred at Donnell’s original sentencing hearing (no one testified on Donnell’s behalf, and counsel made only a brief argument) to what occurred at the post-conviction hearing (numerous witnesses testified on Donnell’s behalf at a lengthy hearing).
The Court of Appeals began by discussing Miller v. Alabama, 567 U.S. 460 (2012), which held that mandatory imposition of life without parole for juvenile offenders was cruel and unusual punishment under the Eighth Amendment. The Court next explained the case law from many states that had applied Miller’s holding to de facto life sentences. The Court of Appeals noted, however, that the Indiana Supreme Court had not yet considered the issue. Nevertheless, the Court of Appeals held that Miller did apply to de facto life sentences for juvenile offenders, because the distinction between life-without-parole sentences and de facto life sentences was “without a difference.”
In other words, if the effect of the sentence is that the child will remain in prison for life, he is entitled to a hearing that considers his youthful age and its attendant circumstances. The Court of Appeals held that such a hearing required more than simply acknowledging the child’s age; ideally, it would include expert testimony about children in general as well as Donnell in particular. Since Donnell’s original sentencing hearing did not comply with the Miller requirements, the Court of Appeals held that trial counsel was ineffective.
The State asked the Indiana Supreme Court to review the case. The Court granted the State’s request. First, unlike the Court of Appeals, the Supreme Court held that Miller did not apply to de facto life sentences for juvenile offenders. But even if Miller had applied, unlike the Court of Appeals the Supreme Court held that Donnell’s sentencing hearing complied with Miller because the trial court had considered Donnell’s age when imposing the sentence.
Regarding Donnell’s claim that his trial counsel was ineffective, the Supreme Court noted Donnell’s heavy burden of proof on appeal from a denial of post-conviction relief. The Court held that Donnell failed to show it was standard practice among defense counsel to present expert testimony in a case like Donnell’s.
In post-conviction relief practice, this burden can be met by calling as a witness an “IAC expert.” In this situation, an experienced and well-respected criminal defense attorney from the area could have testified at Donnell’s post-conviction hearing on what the attorney normally would do if handling a case like Donnell’s. Would such testimony have made a difference in Donnell’s case?
The Supreme Court of Indiana next addressed whether appellate counsel was ineffective for failing to raise a challenge to the inappropriateness of Donnell’s sentence under Indiana Appellate Rule 7h(B). To succeed on such a claim, Donnell had to show that the issue was significant and obvious from the record, and that it was stronger than the issues he raised on direct appeal.
At Donnell’s post-conviction hearing, appellate counsel testified and admitted he should have raised an inappropriate-sentence claim on Donnell’s behalf. The Supreme Court agreed, holding the claim would have had a high likelihood of success.
At this point, the Supreme Court had two options: allow Donnell the opportunity to file a second direct appeal in the criminal case so Donnell could raise an inappropriate-sentence claim; or for judicial economy just decide the merits of an inappropriate-sentence claim. The Court chose the latter option.
When considering whether to revise a sentence, the Court considers both the nature of the offenses and the defendant’s character. As to the nature of Donnell’s offenses, the Supreme Court noted that the shootings were part of gang activity but did not involve torture or the victims languishing in pain. The Court compared the nature of Donnell’s offenses to murders committed by other children to establish a “baseline” sentence.
The Court then turned to Donnell’s character. Notably, the Court only considered the facts and circumstances that were presented at Donnell’s original sentencing hearing. The Court did not consider Donnell’s mental health or his childhood environment. Instead, the Court held that Donnell’s youthful age at the time of the offenses was a major factor, given the science of adolescent brain development. Thus, the Court revised Donnell’s overall sentence to 100 years.
In Part 3, I will discuss the final leg of the post-conviction process: federal habeas corpus.