A TTORNEY FOR A PPELLANT A TTORNEYS FOR A PPELLEE Eric K. Koselke Steve Carter Indianapolis, Indiana Attorney General of Indiana

Matthew D. Fisher Deputy Attorney General Indianapolis, Indiana


# In the 

# Indiana Supreme Court

_________________________________
No. 49S00-0501-CR-2

R ONALD C OVINGTON , J R ., Appellant (Defendant below),

v.

S TATE OF I NDIANA , Appellee (Plaintiff below)

.

_________________________________ Appeal from the Marion Superior Court, No. 49G02-0206-MR-157363 The Honorable Robert R. Altice, Judge

_________________________________

February 14, 2006
Shepard, Chief Justice.

Appellant Ronald Covington, Jr., challenges his sentence of life wit hout parole for the 2002 murder of three people. He argues that hi s sentence was inappropriate and that Indiana’s life without parole statute violates the Sixth Am endment. We conclude that imposition of the life sentence was appropriate. Our cases are stare decisis against him on the constitutional
claim. We therefore affirm.



### 1Facts and Procedural History

On June 1, 2002, Covington forced his way in to the apartment of Maranda Wilson (the mother of his two children) by kicking in the fr ont door. He began shooting the occupants of the apartment. Covington shot and killed Frederic Harris and Kevin Simmons who were visiting Wilson at the time. Covington then shot Jasmine We st five times -- three times in the chest, once
in the arm and once in the hand. The bullet that struck West’s hand passed through the hand and hit her in the face, ultimately lodging in her neck. Covington then took Wilson into a back
bedroom where he shot and killed her.

West remained conscious throughout the ordeal and survived by pretending to be dead. After Covington left, she managed to call the poli ce. When officers arrived, they discovered three bodies -- Harris and Simmons in the living room and Wilson in a bedroom. These three individuals were pronounced dead at the scene. We st was transported to a local hospital. During an interview with police several days later, West stated that Covington had shot her and the others. Based on that identification, and ca lls from Covington’s parents suggesting his involvement in the crimes, the State charged C ovington with three counts of murder, one count of attempted murder, and one count of class A burglary. On June 6, 2002, Covington surrendered to the police.

In September 2002, the State filed a death pe nalty request for the murders of Wilson, Harris, and Simmons. It alleged as aggravator s that the murder of Wilson occurred during the commission of a burglary and that Covington committed multiple murders. See I ND . C ODE A NN

. § 35-50-2-9(b)(1)(B), (b)(8) (West 2004).

On August 25, 2004, Covington entered into a plea agreement with the State under which the State withdrew its request for the death pena lty in exchange for his pleading guilty to all counts. The agreement left the State free to seek life without parole based on the same aggravators charged in requesting the death pe nalty. During the guilty plea hearing, Covington admitted the material allegations of the charging information and established a factual basis for



### 2the plea. The trial court rendered judgment on a ll counts, but entered the burglary conviction as a class B felony.

At the sentencing hearing, Covington intr oduced evidence of numerous mitigating circumstances, most notably: the contentious natu re of his relationship with Maranda Wilson, the dysfunctional nature of his family life during childhood, his generally good behavior prior to the murders, a risk assessment produced by a corr ections expert who concluded that Covington “would be completely harmless” after twenty-five to thirty years in prison, and the existence of several psychological disorders Covington claimed contributed to his actions. (Tr. at 37, 39, 60, 90, 110-11, 113, 142; Appellant’s Br. at 13-14.)

Judge Altice entered a substantial and helpfu l sentencing order. He recognized certain mitigating factors, but declined to find others, particularly those that suggested Covington was
not a risk to commit future acts of violence if his mental health issues were properly treated. The
court concluded that it was too difficult to predict Covington’s compliance with treatment
outside of a structured environment. In the end, the court found that th e statutory aggravators outweighed the mitigating circumstances and sent enced Covington to life without parole on the
three counts of murder.

For the attempted murder, the court found as aggravation the repeated shooting of Jasmine West and Covington’s actions in leaving he r to die. It declared that the aggravators outweighed the mitigators and thus sentenced Covi ngton to fifty years for attempted murder, and ten years for burglary, both to be served concurrently with the life sentence.

Covington appealed his sentence, arguing that the imposition of life without parole was inappropriate in light of the “nature of the offe nse and character of Mr. Covington” as well as the mitigating circumstances presented to the court, and that Indiana’s life without parole statute
violates the Sixth Amendment of the United St ates Constitution. (Appellant’s Br. at 7-8.) Pursuant to Indiana Rule of Appellate Pro cedure 4A(1)(a) this Court has mandatory and exclusive jurisdiction over the appeal.



### 3I. Covington’s Sentence Was Appropriate

Covington’s principal challenge to his sentence is that it is inappropriate in light of his character and the mitigating factors presented at sentencing. He makes two separate arguments on this issue: that the court failed to assign appr opriate weight to certain mitigators, and that it
failed to find others.

A. Mitigating Circumstances Not Improperly Weighed . Generally, the weight assigned to a mitigator is at the trial judge’s discretion, and the judge is under no obligation to assign the same weight to a mitigating circumstance as the defendant. Stevens v. State , 691 N.E.2d 412 (Ind. 1997). We set aside a judge’s we ighing of aggravators and mitigators only if
there is a manifest abuse of discretion. Dunlop v. State , 724 N.E.2d 592 (Ind. 2000).

Covington first argues that the court failed to give adequate weight to the effect a dysfunctional childhood home life had on his actions, to his remorse, and to the effect of his mental health on his actions. (Appellant’s Br. at 13.)

The court did find that the defendant’s dysfunctional home life as a child constituted a mitigating circumstance, but assigned little weight to it. (Appellant’s App. at 416.) The court explained this conclusion by stating that a lthough the defendant had witnessed episodes of domestic violence during his childhood, there was other “evidence that the Defendant’s home environment was, for the most part, very stable.” ( Id. ) Given this conflict, we conclude that the trial court could properly assign this mitigator little weight.

Covington also argues that the trial court fa iled to give significant weight to his expression of remorse for the murders. (Appellant ’s Br. at 13.) It was certainly proper for the defendant to show remorse, and the court did find this as a mitigator. (Appellant’s App. at 414.) Such an expression does not necessarily compel a conclusion that Covington’s regret outweighs the brutal nature of the killings. Covington killed th ree individuals and attempted to kill a fourth.



### 4One of those victims was the mother of his ch ildren and a woman with whom he had shared a long-term relationship. We cannot say the tria l court erred in finding that the aggravators outweighed this mitigator.

Covington also argues that the court failed to assign sufficient weight to the mitigating circumstance of his mental health. (Appellant’s Br. at 13.) At the se ntencing hearing, Covington introduced evidence that he suffered from Delusional Disorder, Depressive Disorder NOS, Anxiety Disorder NOS, and Schizotypal Persona lity Disorder. (Appellant’s App. at 378-87 (386 specifically listing diagnosis).) The trial court found that these disorders constituted a mitigating circumstance and that they had some impact on Covington’s actions.

The American Psychiatric Association’s defin itions of mental illness, contained in the Diagnostic and Statistical Manual of Mental Disorders (presently “DSM-IV-TR”) have continued to expand to the point that a recent study declared that about half of Americans become mentally ill and half do not. 1 This suggests the need for a high level of discernment when assessing a claim that mental illness warrants mitigating weight. In Weeks v. State , we laid out several factors to consider in weighing the mitigating force of a mental health issue. 697 N.E.2d 28 (Ind. 1998). Those factors include the exte nt of the inability to control behavior, the overall limit on function, the duration of the illne ss, and the nexus between the illness and the
crime. Id. at 30.

In this case, the judge acknowledged that th ere was some nexus between the crime and the illness. He also cited evidence, however, th at suggested that Covington was otherwise able
to control his behavior and that the illness im posed little limit on his functioning. For example, the examining psychologist noted that Covington wa s able to discern right from wrong behavior, that he had developed an awareness of his own temper and would “get away from a situation” when he noticed his temper becoming uncontrollabl e, and that “unless subject to intense or prolonged stress or provocation” Covington would be “unlikely to behave in . . . a disorganized

1 The National Comorbidity Survey Replication, conducted every ten years, found that 46 percent of Americans suffer or will suffer from mental illness during their lifetime. According to the survey, a third to a fifth of Americans will suffer from anxiety disorder s, impulse control disorders, or mood disorders. Sadly, the survey also revealed that many Americans go undiagnosed and untreated for these disorders. Alex Barnum, Mental Illness Will Hit Half in U.S., Study Says , S AN F RAN . C HRONICLE , June 7, 2005.



### 5and emotional fashion.” (Appellant’s App. at 384-85.) In light of this evidence, we are not persuaded that the court erred in assigning some , but not determinate, weight to Covington’s
mental condition.

B. Mitigators Not Improperly Disregarded . Covington also claims that the court failed to consider evidence regarding several mitigators, pa rticularly the lack of his risk for recidivism. The evidence he presented on this point consisted of: his lack of prior criminal history; his generally good behavior prior to the crime and during his stay in the Marion County Jail while awaiting trial; the report of corrections expert James Aiken, who concluded he would be little risk in twenty-five to thirty years; and that w ith treatment his mental health issues would allow him to re-enter society safely. (Tr. at 65, 68, 72-73, 90, 142; Appellant’s Br. at 13.)

The court addressed most of these mitigators in its sentencing order. For example, the court specifically found that Covington’s insi gnificant criminal history was a mitigating circumstance. (Appellant’s App. at 414.) However, here too the court concluded that it was of insufficient weight to outweigh the aggravators. ( Id. at 417.) 2

The other evidence was apparently introduced to demonstrate that the murders were a spontaneously one-time act, and that Covington’s future behavior could be controlled through
treatment of his mental health issues. The trial court sympathized with this argument, but did so conditionally. It noted that while Covington’s me ntal health issues may be treatable, this required “the Defendant [to] be compliant with his treatment.” (Appellant’s App. at 416.) The court concluded that the evidence presented of Covington’s apparent previous non-compliance with medical treatment for physical illness made it “too difficult to make an accurate prediction as to [his] future behavior.” ( Id. ) 3

2 The court did not make mention of Covington’s witnesse s who testified about his ge nerally good behavior before the murder. Given the court’s careful consideration of other mitigators, and the weight of the aggravators, we are not persuaded that the trial court abused its discretion in not listing this as a mitigating circumstance, or that finding the mitigator would have had any measurable impact on the court’s decision. 3 The evidence of this is contained in the report of the psychiatrist who interviewed and diagnosed Covington. The report indicates that Covington sought treatment for a sexual dysfunction, but during the interview Covington indicated that he disregarded the treatment prescribed. (Appellant’s App. at 380-81.) Covington made this denial even though the psychiatrist indicates that review of the medical records strongly suggests his compliance with the



### 6Similarly, the court carefully considered th e testimony of James Aiken, Indiana’s former Commissioner of Correction, who testified that lifelong incarceration would likely not be necessary for Covington, and that Covington coul d likely be successfully reintegrated into society after twenty-five or th irty years. The court took note of this testimony, but again concluded that Covington’s mental health issu es and unpredictable compliance with mental
treatment outside of the structured corrections environment made it “too difficult to make an accurate prediction” regarding him. (Appellant’s App. at 416.)

Judge Altice’s sentencing order clearly indicate that the trial court carefully considered the evidence about Covington’s seemingly low risk of recidivism, but determined that this
evidence was insufficient to demonstrate the defe ndant’s contention. We cannot conclude that the trial court was wrong in refusing to find these mitigators.

Finally, Covington says the court should ha ve found the contentious nature of his relationship with Maranda Wilson as a mitigating circumstance. (Appellant’s Br. at 13.) Certainly there are occasions when a victim’s ow n actions may be appropriately considered as a mitigating circumstance; however, as the court note d, this is not one of those times. The court stated, “while the relationship was certainly ‘ro cky’ at times, the stress and dysfunction should not have resulted in the death of Miranda [sic] Wilson . . . [nor those of] Frederick [sic] Harris and Kevin Simmons as well as the attempted murder of Jasmine West. Each of these victims had nothing to do with that relationship.” (Appellant’s App. at 415.) We agree. Evidence heard at the sentencing hearing suggests Covington’s relati onship with Wilson had been “rocky” for years and that he had handled repeated moments of stre ss in the relationship without becoming violent. The court was not in error by refusing to find this mitigator.

All things considered, the trial court s eems warranted in finding that three unprovoked killings outweighed the mitigating circumstances.

treatment plan. ( Id. at 381.) The report also indicates that Covington was at one time prescribed Wellbutrin – apparently for the same physical condition – but insisted that he never took the drug, and indicated that in the past “he has vigorously opposed taking any pills that can alter your thinking.” ( Id. at 380.)



### 7II. LWOP Does not Violate the Sixth Amendment

Covington argues that Indiana’s statute on life without parole violates the Sixth Amendment because it does not require that th e determination that the aggravating facts outweigh the mitigating circumstances be made beyond a reasonable doubt before the imposition of a sentence of life without parole.

As Covington rightly notes, we have already decided this issue adverse to his position. In
Ritchie v. State , we addressed a similar challenge to our death penalty sentencing scheme based

on Apprendi v. New Jersey
, 4 and Ring v. Arizona

. 5 809 N.E.2d 258, 264-68 (Ind. 2004) cert. denied , 126 S.Ct. 42 (2005).

We addressed this issue again in Pruitt v. State , 834 N.E.2d 90 (Ind. 2005), where we examined Indiana’s death penalty in light of the U.S. Supreme Court’s holding in Blakely v. Washington

. 6 Blakely reiterated the holding of Ring and Apprendi that “[o]ther than the fact of a prior conviction, any fact that increases the pe nalty for a crime beyond the prescribed statutory maximum must be submitted to a jur y, and proved beyond a reasonable doubt.” Blakely , 542
U.S. at 301. Blakely went further, however, by defining th e term statutory maximum as “the maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdict or admitted by the defendant .” Id. at 303.

Pruittheld that Blakely did not affect Indiana’s death penalty statute since the “jury’s determination of whether the eligibility factors outweigh any mitigating factors is not a finding of fact and it does not increase the penalty of the crime.” Pruitt , 834 N.E.2d at 112.

Although both Richie and Pruittdealt with challenges to Indiana’s death penalty, Indiana’s death penalty provisions and life w ithout parole option operate under the same
framework. See Ajabu v. State , 693 N.E.2d 921, 938 (Ind. 1998). We have previously upheld

4 530 U.S. 466 (2000). 5 536 U.S. 584 (2002). 6 542 U.S. 296 (2004).



### 8our life without parole statute in the face of challenges under Ring and Apprendi when, as here, the defendant pleads guilty. Leone v. State , 797 N.E.2d 743, 749-50 (Ind. 2003). Covington’s arguments are substantially the same as those we considered in the foregoing cases, and they are
stare decisis against him.

Conclusion

We affirm the judgment of trial court.

Dickson
, Sullivan , and Boehm , JJ., concur.
Rucker , J., concurs in Part I and concurs in result in Part II.



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