I N T H E

Indiana Supreme Court

Supreme Court Case No. 19S-PC-548

Donnell Dontrell Wilson

Appellant (Petitioner Below)

–v–

State of Indiana

Appellee (Respondent Below)

Argued: November 26, 2019 | Decided: November 17, 2020

Appeal from the Lake County Superior Court,

No. 45G01-1608-PC-7

The Honorable Salvador Vasquez, Judge

The Honorable Kathleen A. Sullivan, Magistrate

On Petition to Transfer from the Indiana Court of Appeals,

No. 18A-PC-3041

Opinion by Justice Massa

Justices David and Goff concur.

Chief Justice Rush concurs in result.

Justice Slaughter concurs in Parts I and II.A and dissents from Parts II.B and 

II.C, with separate opinion.
Indiana Supreme Court | Case No. 19S-PC-548 | November 17, 2020 Page 2 of 30

Massa, Justice. 

Donnell Wilson was sentenced to 181 years for the murders of Charles 

Wood and Shaqwone Ham; the lengthy term of years also included a 

sentence for robbery and a criminal gang enhancement. Wilson, who was 

sixteen when he committed the crimes, now challenges his sentence on 

post-conviction review after his conviction was affirmed on direct appeal. 

On post-conviction review, Wilson argues his sentence constitutes a de 

facto juvenile life sentence that triggers additional constitutional

sentencing considerations under Miller v. Alabama, 567 U.S. 460 (2012). He 

also alleges that both his trial counsel and appellate counsel were 

ineffective. 

After a thorough review of U.S. Supreme Court precedent on juvenile 

sentencing, we reject Wilson’s contention that his sentencing falls under 

Miller. We conclude, however, that his appellate counsel was ineffective 

on direct appeal when counsel failed to bring an Appellate Rule 7(B) 

challenge to the appropriateness of Wilson’s sentence. Conducting this

review now, we reduce Wilson’s aggregate sentence to 100 years.

Facts and Procedural History.

In March 2013, sixteen-year-old Donnell Wilson, his then-girlfriend, her 

brother Jonte Crawford, and another of the Crawfords’ relatives were all 

walking home from playing basketball in their hometown of Gary, 

Indiana. When the group encountered fifteen-year-old Derrick Thompson, 

Wilson and Jonte flashed the handguns they were carrying and began 

harassing and intimidating Thompson, making references to the local Tre 

7 gang. The pair then took Thompson’s smartphone and headphones and 

walked away.

A short time later, the group happened upon brothers Shaqwone Ham 

and Charles Wood. Wilson and Jonte were members of several 

interrelated gangs, including the Get Fresh Boys, Tre 7, and Glen Park 

Affiliated, which were all at odds with the Bottom Side gang, to which 

Ham and Wood belonged. Wilson had previously argued in person with 
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the brothers and their disputes had continued online with the brothers 

threatening to fight Wilson. The groups initially exchanged greetings, but 

Wilson and Jonte soon began to argue with the brothers. Wilson 

exclaimed, “Oh, y’all looking for me? I’m in your hood.” DA Tr. Vol. 1, 

p.153. 1 Seconds later, he fatally shot Wood in the head. When Ham tried 

to run, Jonte shot him several times, killing him too. It is unclear from the 

record if Wilson also shot at Ham. The brothers were unarmed.

Three hours before the murders, Wilson—who had previously made 

several gang-related posts on Twitter—sent out a new tweet declaring 

“Glen Park or get shot,” referring to the Gary neighborhood where he 

lived. DA Ex. Vol. 1, p.43. An hour after the murder, he tweeted “Chillen 

wit my bros #[GetFreshBoys].” Id., p.42. Jonte and Wilson were quickly 

arrested, and police found Thompson’s possessions on Jonte. Wilson was 

charged with two counts of murder, Class B felony armed robbery, and a

Class D felony conspiracy to commit criminal gang activity.

2 The State

also sought a criminal gang enhancement.

3

While Wilson was lodged in the Lake County Jail awaiting trial, he told 

his cellmate he killed Ham and Wood because they were affiliated with 

the rival Bottom Side gang. He also explained how his gang affiliation had 

led to Twitter disputes with members of the Bottom Side gang. Wilson,

along with some fellow inmates, later jumped this cellmate because he 

was from the “other side of the bridge” dividing Gary. DA Tr. Vol. 2, 

p.410. During this period, Wilson was also recorded on a jailhouse video

conference stating he wanted to “smash” a member of a rival gang 

incarcerated in the same facility and indicated a desire to continue 

participating in gang activity. DA Tr. Vol. 4, p.745.

1 “DA” refers to the direct appeal materials from Wilson’s original conviction. “PCR”

indicates citations to the record in the present post-conviction proceedings.

2 See Ind. Code § 35-42-1-1(1) (2013) (murder); I.C. § 35-42-5-1(1) (Class B armed robbery); I.C. 

§ 35-45-9-3 (conspiracy to commit gang activity).

3

I.C. § 35-50-2-15 (criminal gang enhancement).
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After a four-day trial beginning in June 2014, a jury found Wilson 

guilty on all counts. The trial court sentenced Wilson to a term of sixty 

years for the first murder conviction, fifty-five consecutive years for the 

second murder conviction, six consecutive years for armed robbery, and 

two years for criminal gang activity, with an additional sixty consecutive 

years added under the criminal gang enhancement, for an aggregate 

sentence of 183 years. Wilson’s trial counsel did not retain any experts in 

preparation for the sentencing hearing and did not present any witnesses 

at sentencing. When handing down the sentence, the court cited several 

aggravating factors, but found Wilson’s youth to be a mitigating factor.

In a separate proceeding, Jonte was initially charged identically to 

Wilson, but he later pled guilty to a single count of murder and robbery as 

part of a plea agreement. Jonte’s plea deal capped his maximum possible 

sentence at sixty-five years, and he was ultimately sentenced to sixty-one 

years of incarceration.

On direct appeal, Wilson challenged his convictions on three grounds, 

contending that (1) the trial court erred by admitting Twitter messages 

into evidence without foundation, (2) his conviction for conspiracy to 

commit criminal gang activity should be vacated because it was 

duplicative of the gang enhancement, and (3) the trial court erred when it 

excluded Wilson from a portion of his trial after a violent outburst. The 

Court of Appeals found in favor of Wilson on the criminal-gang-activity 

issue and vacated the conviction, thereby reducing his sentence by two 

years. See Wilson v. State, 30 N.E.3d 1264, 1269 (Ind. Ct. App. 2015), trans. 

denied. Wilson’s other arguments were rejected, id. at 1268–71, and we 

denied transfer. 

Wilson then sought post-conviction relief arguing that—since he was a

juvenile—the criminal gang enhancement was unconstitutional as applied 

to him under both the U.S. and Indiana constitutions. Second, Wilson 

argued that both his trial counsel and appellate counsel were ineffective.

Specifically, Wilson argued that (1) both his trial counsel and appellate 

counsel should have challenged his 181-year aggregate sentence as a 

violation of the Eighth Amendment, (2) that trial counsel did not present 

adequate mitigation evidence at sentencing or properly investigate his 
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background, and (3) appellate counsel was ineffective for not raising an 

Appellate Rule 7(B) appropriateness challenge to his sentence.

When the post-conviction court held an evidentiary hearing in March 

2018, both Wilson’s trial and appellate counsel testified. Trial counsel 

testified that he met with Wilson five to eight times in jail and that Wilson

had rejected a 100-year plea agreement. To prepare for the sentencing 

hearing, trial counsel talked to Wilson and his family to investigate his 

background and learn of any mitigating evidence. He also reviewed the 

pre-sentencing report with his client, which indicated Wilson was not 

taking any medication and had no history of mental health issues. Based 

on his review of the records and these conversations, trial counsel 

concluded there was no need to hire a mental health expert. Further, since 

Wilson was not facing a life without parole sentence, counsel testified that 

the U.S. Supreme Court’s Miller v. Alabama decision—holding that

mandatory life-without-parole sentences for juvenile offenders are 

unconstitutional— “wasn’t even on my radar.” PCR Tr., p.15.

Wilson’s appellate counsel testified that he was unfamiliar with Miller

at the time of the direct appeal. Instead, appellate counsel homed in on the 

clear error in the duplicity of the gang activity conviction. But in 

retrospect, he conceded that he should have also challenged the sentence’s 

appropriateness under Appellate Rule 7(B). Appellate counsel also 

admitted that, at the time, he was unfamiliar with two recent Appellate 

Rule 7(B) decisions issued by this Court, both addressing the 

appropriateness of de facto life sentences for juvenile double murderers. 

At the post-conviction review hearing, new evidence about Wilson’s 

background was introduced. Dr. Charles Ewing, a forensic psychologist 

who examined Wilson while in prison, concluded that he was suffering 

from PTSD linked to growing up in a violent neighborhood where 

someone once attempted to firebomb his childhood home and where he 

witnessed the shooting of two friends. Dr. Ewing concluded that Wilson’s 

decision to shoot the victims was based in fear stemming from previous 

traumatic experiences and that he did not appreciate the consequences of 

his actions. He also testified that Wilson likely had a good chance of being 

rehabilitated after he reached age twenty-five. But Dr. Ewing conceded 
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that Wilson had never previously been formally diagnosed with a mental 

health issue and a mental health professional only saw Wilson once. The 

testimony of developmental psychologist Dr. James Garbarino provided a 

similar positive outlook on Wilson’s chances for rehabilitation.

The post-conviction court, however, denied Wilson’s petition for relief.

The Court of Appeals reversed, finding that Wilson’s trial counsel was 

ineffective when he failed “to present any evidence related to youth and 

its attendant characteristics or to Wilson’s own youth, environment, 

mental health, good character, or prospects of rehabilitation,” as it found 

was required by U.S. Supreme Court precedent for de facto juvenile life 

sentences. Wilson v. State, 128 N.E.3d 492, 502 (Ind. Ct. App. 2019), vacated.

Ordering a new sentencing hearing, the Court of Appeals declined to 

address Wilson’s other arguments. Id. at 503.

The State sought transfer, which we granted. 

Standard of Review.

A post-conviction proceeding is a civil proceeding in which a defendant 

may present limited collateral challenges to a conviction and sentence. 

Ind. Post-Conviction Rule 1(1)(b); Gibson v. State, 133 N.E.3d 673, 681 (Ind. 

2019), reh’g denied, cert. denied, --- S. Ct. ----, No. 19-8904, 2020 WL 6037221

(Oct. 13, 2020). Potential relief is limited in scope to issues unknown at 

trial or unavailable on direct appeal. Ward v. State, 969 N.E.2d 46, 51 (Ind. 

2012) (citing Pruitt v. State, 903 N.E.2d 899, 905 (Ind. 2009)). “Issues 

available on direct appeal but not raised are waived, while issues litigated 

adversely to the defendant are res judicata.” Id. We do not review a 

“freestanding claim of error, either ‘fundamental’ or otherwise,” on postconviction review when it was not raised on direct appeal if the claim was 

known and available to him. Stephenson v. State, 864 N.E.2d 1022, 1029 

(Ind. 2007). We have also limited free-standing post-conviction 

constitutional claims under the Eighth Amendment to only assertions 

based in “evolving standards of decency, changes in the legal landscape, 

and the development of a national consensus since [a defendant’s 

previous appeal] such that [the] sentence now constitutes cruel and 
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unusual punishment.” Baird v. State, 831 N.E.2d 109, 115–16 (Ind. 2005)

(quotation marks omitted).

The defendant bears the burden of establishing his claims by a 

preponderance of the evidence. P-C.R. 1(5). “When, as here, the defendant 

appeals from a negative judgment denying post-conviction relief, he ‘must 

establish that the evidence, as a whole, unmistakably and unerringly 

points to a conclusion contrary to the post-conviction court’s decision.’”

Gibson, 133 N.E.3d at 681 (quoting Ben-Yisrayl v. State, 738 N.E.2d 253, 258 

(Ind. 2000)). “When a defendant fails to meet this ‘rigorous standard of 

review,’ we will affirm the post-conviction court’s denial of relief.” Id.

(quoting DeWitt v. State, 755 N.E.2d 167, 169–70 (Ind. 2001)).

Discussion and Decision.

Wilson’s claims for post-conviction relief fall into three main branches. 

First, he argues that his 181-year cumulative sentence amounts to a cruel 

and unusual punishment under the Eighth Amendment. While Wilson’s 

briefing in the Court of Appeals presented this constitutional argument as 

both a free-standing constitutional claim and as an ineffective assistance of 

counsel (IAC) claim, on transfer, he focuses on the IAC rationale. Second,

he argues his trial counsel was ineffective for failing to adequately 

investigate and present mitigation evidence at his sentencing hearing. 

Third, Wilson argues his appellate counsel was also ineffective because he

failed to challenge the appropriateness of the sentence under Indiana 

Appellate Rule 7(B) on direct appeal. We address each claim in turn.

I. Wilson’s 181-year sentence is not cruel and 

unusual punishment under the Eighth

Amendment.

Wilson originally presented his Eighth Amendment argument as both a 

free-standing constitutional claim and as an IAC claim based on his 

counsel’s failure to raise the unconstitutionality argument on direct 
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appeal. These arguments both fail because Wilson’s sentencing was 

appropriate under the Eighth Amendment.4

The Eighth Amendment states that “[e]xcessive bail shall not be 

required, nor excessive fines imposed, nor cruel and unusual punishments 

inflicted.” U.S. Const. amend. VIII. To determine what constitutes a cruel 

and unusual punishment, “courts must look beyond historical conceptions 

to the evolving standards of decency that mark the progress of a maturing 

society.” Graham v. Florida, 560 U.S. 48, 58 (2010) (citations omitted), as 

modified. “This is because the standard of extreme cruelty is not merely 

descriptive, but necessarily embodies a moral judgment.” Id. (quotations

omitted). What constitutes cruel and unusual punishment changes “as the 

basic mores of society change.” Kennedy v. Louisiana, 554 U.S. 407, 419 

(2008) (quotation omitted).

A. The recent evolution in Eighth Amendment juvenile 

sentencing requirements.

The U.S. Supreme Court has recently explained how its evolving Eighth

Amendment standard should be applied to juvenile offenders. In Roper v. 

Simmons, it held that the Eighth Amendment bars capital punishment for 

juvenile offenders—which it defined as those who committed the crime 

before age eighteen. 543 U.S. 551, 578 (2005). Finding that the juvenile 

offenders were categorically less culpable for their crimes than adults due 

to their (1) lack of impulse control, (2) heightened vulnerability to negative 

influences from “outside pressures,” and (3) “more transitory, less fixed”

personalities, the Court held that juveniles were no longer among the 

narrow class of “worst offenders” deserving of the death penalty. Id. at 

4 As we explain in greater detail in Section II below, an IAC claim requires Wilson to prove (1) 

that his counsel’s performance fell short of prevailing professional norms, and (2) that 

counsel’s deficient performance prejudiced his defense. Strickland v. Washington, 466 U.S. 668

(1984). Since we find the 181-year sentence imposed to be constitutional under our current 

understanding of the Eighth Amendment, Wilson’s constitutional IAC claims necessarily fail 

the second prong of the Strickland test because he cannot be prejudiced by his counsel’s failure 

to bring a constitutional argument on direct appeal that we now conclude to be a losing one. 
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569–70. In the opinion, however, the Court assured the states that lifewithout-parole sentences would continue to be available for juvenile 

killers, thereby providing a sufficient deterrent because such a sentence 

“is itself a severe sanction, in particular for a young person.” Id. at 572; see 

also Conley v. State, 972 N.E.2d 864, 877–80 (Ind. 2012) (holding that 

Indiana’s scheme of discretionary life without parole sentencing for 

juvenile murderers—which expressly requires the consideration of 

aggravating and mitigating factors—is constitutional under both the U.S.

and Indiana constitutions).

Echoing Roper, the Court soon barred imposing life-without-parole 

sentences for non-homicide juvenile offenders but allowed the states to 

develop their own “means and mechanisms for compliance” with its new 

rule that offenders be given “some meaningful opportunity to obtain 

release based on demonstrated maturity and rehabilitation.” Graham, 560 

U.S. at 82, 75. The Court reasoned that the same factors that diminished 

juveniles’ culpability in Roper applied to lesser crimes making juveniles

“less deserving of the most severe punishments.” Id. at 68 (citing Roper, 

543 U.S. at 569). The Court held that life without parole—which it noted 

was “the second most severe penalty permitted by law” sharing “some 

characteristics with death sentences that are shared by no other 

sentences”—should not be applied to juvenile “defendants who do not 

kill” because such defendants are “categorically less deserving of the most 

serious forms of punishment than are murderers.” Id. at 69 (quotations 

omitted) (emphasis added).

Two years later, the U.S. Supreme Court held that the Eighth 

Amendment also “forbids a sentencing scheme that mandates life in 

prison without possibility of parole for juvenile [murderers].” Miller v. 

Alabama, 567 U.S. 460, 479 (2012) (emphasis added). Since “juveniles have 

diminished culpability and greater prospects for reform, . . . ‘they are less 

deserving of the most severe punishments.’” Id. at 471 (quoting Graham, 

560 U.S. at 68). Because “mandatory [life-without-parole] penalty schemes

. . . prevent the sentencer from taking [into] account [the] central 

considerations” of youth, the mandatory life sentences “contravene[d] 

Graham’s (and also Roper’s) foundational principle: that imposition of a 

State’s most severe penalties on juvenile offenders cannot proceed as 
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though they were not children.” Id. at 474 (citations omitted). Applying 

the holding, the Court noted that the sentencing court, “[a]t the least, . . . 

should look at” the “hallmark features” of youth, the defendant’s 

background, and “the circumstances of the homicide offense” before 

imposing a discretionary life without parole sentence. Id. at 477–78. And, 

the Court predicted, the “appropriate occasions” for imposing “this

harshest possible penalty will be uncommon.” Id. at 479.

In 2016, the U.S. Supreme Court held that Miller “announced a 

substantive rule of constitutional law,” requiring its retroactive 

application to juveniles sentenced pre-Miller. Montgomery v. Louisiana, 136 

S. Ct. 718, 736 (2016), as revised. The opinion required the state to grant the 

defendant—who was serving a mandatory life without parole sentence for 

killing a deputy sheriff at age seventeen in 1963—either a new sentencing 

hearing or parole eligibility. Id. at 725, 736. It was the opinion’s description 

of the procedural sentencing requirements imposed by Miller, however, 

that has since created the most debate in courts. The Court in Montgomery 

concluded that Miller “did more than require a sentencer to consider a 

juvenile offender’s youth before imposing life without parole,” explaining 

that

[e]ven if a court considers a child’s age before sentencing him 

or her to a lifetime in prison, that sentence still violates the

Eighth Amendment for a child whose crime reflects 

unfortunate yet transient immaturity. Because Miller

determined that sentencing a child to life without parole is 

excessive for all but the rare juvenile offender whose crime 

reflects irreparable corruption, it rendered life without parole 

an unconstitutional penalty for a class of defendants because of 

their status—that is, juvenile offenders whose crimes reflect the 

transient immaturity of youth.

Id. at 734 (citations omitted). Despite this language, the Court in 

Montgomery also acknowledged that “Miller did not require trial courts to 

make a finding of fact regarding a child’s incorrigibility,” writing that 
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states could develop independent procedures to enforce the constitutional 

requirement. Id. at 735. 

Montgomery’s murkiness has resulted in a split of authority among state 

high courts as to whether Miller requires a court to make a specific factual 

finding that the juvenile is irreparably corrupt (or permanently 

incorrigible) before it can issue a life sentence. See People v. Skinner, 917

N.W.2d 292, 322 (Mich. 2018) (McCormack, J., dissenting) (observing a 

“split of authority in state courts post-Miller on whether a court must 

make a specific ‘finding’ of irreparable corruption”); see also Alice 

Reichman Hoesterey, Confusion in Montgomery’s Wake, Appendix B: 

Irreparable Corruption Determination, 45 Fordham Urb. L.J. 149, 190–93 

(2017) (listing appellate opinions falling on different sides of the debate).

The U.S. Supreme Court seems poised to better define the scope of 

Miller’s procedural requirements in the near future, as earlier this year it

granted certiorari on a petition asking the Court to determine if the Eighth 

Amendment requires the sentencing court to find a defendant to be 

permanently incorrigible before imposing a sentence of life without 

parole. See Jones v. State, 285 So. 3d 626 (Miss. Ct. App. 2017), cert. granted,

140 S. Ct. 1293 (2020).

5 While a decision by the U.S. Supreme Court would 

certainly clarify some issues, it is unlikely to completely resolve the Eighth 

Amendment constitutional questions before us because the defendant in 

Jones was sentenced to life imprisonment for a single murder, not a

discretionary term of years sentence for multiple offenses like Wilson. See

id. at 627.

Since Miller, a separate split in authority has developed over whether a 

term of years sentence constitutes a de facto life without parole sentence

that implicates Miller’s procedural sentencing requirements. Miller and 

Montgomery both involved juveniles who were sentenced to de jure lifewithout-parole sentences for committing single murders. Miller, 567 U.S. 

at 465–66; Montgomery, 136 S. Ct. at 725–26. And the defendant in Graham 

had been sentenced to a de jure life without parole sentence for a single 

5 The Court heard oral argument in this case on November 3, 2020.
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count of armed burglary, with an additional fifteen years for attempted 

armed robbery. Graham, 560 U.S. at 57. So these opinions do not directly 

address whether the same heightened fact-finding requirements apply

directly to discretionary term-of-years sentences. 

Recently, many federal circuit courts and state appellate courts have 

issued opinions on the Eighth Amendment’s requirements for de facto lifewithout-parole sentences, falling into three main categories. In the first

group are jurisdictions who have held that Miller’s required consideration

of age and attendant circumstances is applicable to term-of-years

sentences long enough to be considered a de facto life sentence. See, e.g.,

Moore v. Biter, 725 F.3d 1184, 1191 (9th Cir. 2013) (Miller and Graham apply 

because the defendant’s “sentence of 254 years is materially 

indistinguishable from a life sentence without parole.”); State v. Null, 836 

N.W.2d 41, 71 (Iowa 2013) (“[A] 52.5–year minimum prison term for a 

juvenile based on the aggregation of mandatory minimum sentences for 

second-degree murder and first-degree robbery triggers the protections . . 

. afforded under Miller.”); State v. Ramos, 387 P.3d 650, 659, 661 n.6 (Wash. 

2017) (finding “Miller applies equally to literal and de facto life-without

parole-sentences[,]” and “[i]t is undisputed that [the defendant’s] 85-year 

aggregate sentence is a de facto life sentence”).

The second view finds Miller analysis inapplicable to aggregate

sentences that exceed the juvenile’s life expectancy.

6 See, e.g., United 

States v. Sparks, 941 F.3d 748, 754 (5th Cir. 2019) (holding that “a term-ofyears sentence cannot be characterized as a de facto life sentence[;] Miller

6 To be sure, some courts appear to fall somewhere between these categories. The Seventh 

Circuit, for instance, recently found that “the logic of Miller applies” to a de facto life 100-year 

cumulative sentence (50-year murder sentence enhanced by 50 years for use of a firearm). 

McKinley v. Butler, 809 F.3d 908, 911, 909 (7th Cir. 2016). The opinion, however, does not 

address its previous decision (also authored by then-Judge Posner), considering successive 

jailhouse disciplinary sanctions, where the court stated that “every sentence[ ] must be 

treated separately, not cumulatively, for purposes of determining whether it is cruel and 

unusual.” Pearson v. Ramos, 237 F.3d 881, 886 (7th Cir. 2001) (emphasis added). It is unclear if 

the Seventh Circuit’s views on sentence aggregation for Eighth Amendment analysis have 

evolved following Miller, or if the two opinions can be harmonized if the 100-year sentence in 

McKinley is viewed as a sentence for one crime: murder with a firearm. 
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dealt with a statute that specifically imposed a mandatory sentence of 

life”), cert. denied, 140 S. Ct. 1281 (2020); Bunch v. Smith, 685 F.3d 546, 547, 

553 (6th Cir. 2012) (finding Miller inapplicable to an eighty-nine-year 

aggregate fixed term for robbing, kidnapping, and raping a twenty-twoyear-old college student); Proctor v. Kelley, 562 S.W.3d 837, 839, 841–42

(Ark. 2018) (holding that a 240-year aggregate sentence—for eleven 

different robbery counts, none of which would singularly constitute a de 

facto life sentence—does not fall under the purview of Graham, which dealt 

with a life without parole sentence for a single crime), cert. denied, 140 S. 

Ct. 481 (2019); State v. Helm, 431 P.3d 1213, 1215 (Ariz. Ct. App. 2018)

(refusing to find Miller analysis applicable to juvenile serving consecutive 

murder sentences because “we do not consider the aggregate sentence 

when conducting a proportionality analysis under the Eighth 

Amendment” but instead look to the sentence imposed for each specific 

crime) (citations omitted).

Third, are jurisdictions who have found Miller’s requirements only 

apply to de jure life-without-parole sentences and therefore are 

inapplicable to other discretionary sentences, including life with the 

possibility of parole. See, e.g., Lucero v. People, 394 P.3d 1128, 1133 (Colo. 

2017) (finding that “the analysis in Miller is limited to the sentence at issue 

in that case, mandatory life without parole, and does not extend to 

lengthy aggregate sentences or life sentences with the possibility of 

parole”); Veal v. State, 810 S.E.2d 127, 128–29 (Ga. 2018) (upholding six 

consecutive life-with-parole sentences for rape by juvenile because it 

found Miller’s requirements applied only to de jure life-without-parole 

sentences); State v. Slocumb, 827 S.E.2d 148, 156 (S.C. 2019) (holding that 

since the U.S. Supreme Court declined to also address a term of years 

sentence in Graham, it would hue to the narrow holding that Miller and 

Graham only apply to de jure life-without-parole sentences). All told, courts

around the country are split approximately evenly on whether Graham

and Miller should be extended to at least some de facto life sentences. See 

Slocumb, 827 S.E.2d at 156 n.16.
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B. A term of years sentence does not implicate Miller.

Given this split in authority, we take counsel in language from Miller 

and Graham suggesting their holdings should be read narrowly, absent 

further guidance from that Court.

7

Graham and Miller both explicitly state that their holdings are limited to 

the “particular” penalty of life without parole. See Lucero, 394 P.3d at 1133

(quoting Graham, 560 U.S. at 61; Miller, 567 U.S. at 483) (“In Graham, the 

Court categorically barred the ‘particular’ sentence of life without parole 

for juvenile nonhomicide offenders, saying nothing about consecutive or 

aggregate sentences. . . . Miller likewise speaks only of the sentence of life 

without parole, calling it a ‘particular penalty.’”). The majority in Graham 

explicitly differentiated life-without-parole sentences from other penalties,

calling life-without-parole sentences “the second most severe penalty 

permitted by law [after death,]” and noting that they “share some 

characteristics with death sentences that are shared by no other 

sentences.” 560 U.S. at 69 (citations omitted). Indeed, dissenting in 

Graham, Justice Alito noted that “[n]othing in the Court’s opinion affects 

the imposition of a sentence to a term of years without the possibility of 

parole.” Id. at 124 (Alito, J., dissenting). Likewise, the Court’s analysis in 

Miller “distinguished the mandatory sentencing schemes at issue in Miller 

from the impliedly constitutional alternatives whereby ‘a judge or jury 

could choose, rather than a life-without-parole sentence, a lifetime prison 

term with the possibility of parole or a lengthy term of years.’” Lucero, 394 

P.3d at 1133 (quoting Miller, 567 U.S. at 489). The implication from this 

distinction is that the holding was not meant to extend to these other types 

of sentences. See id.

7 Due to this holding, we see no need to separately address Wilson’s as-applied constitutional 

challenge to the criminal gang enhancement. To the extent Wilson presents a new 

constitutional argument differing from the general Eighth Amendment challenge we address 

above, this novel argument was waived by Wilson’s failure to bring it on direct appeal, see 

Ward v. State, 969 N.E.2d 46, 51 (Ind. 2012), and counsel’s failure to advance the argument 

does not constitute deficient performance, see Bieghler v. State, 690 N.E.2d 188, 194 (Ind. 1997). 
Indiana Supreme Court | Case No. 19S-PC-548 | November 17, 2020 Page 15 of 30

In fact, in the context of adult offenders, the U.S. Supreme Court has in 

the past explicitly cautioned against expanding Eighth Amendment 

protections by relying on general similarities between sentences. In 

Harmelin v. Michigan, an adult defendant was sentenced to a mandatory 

life without parole sentence for possessing 672 grams of cocaine despite 

having no prior felony convictions. 501 U.S. 957, 961, 994 (1991). The 

defendant argued that before the court imposed such a harsh sentence, he 

should have received an individualized sentencing hearing, equivalent to 

what is constitutionally required in death penalty cases. Id. at 994. Writing 

for the Court, Justice Scalia acknowledged several similarities between the 

death penalty and a life without parole sentence, but he found such

reasoning by analogy would lead to an ever-expanding category of 

sentences requiring additional protections. Id. at 996 (“It is true that 

petitioner’s [life without parole] sentence is unique in that it is the second 

most severe known to the law; but life imprisonment with possibility of 

parole is also unique in that it is the third most severe.”). Instead, the 

Court acknowledged it had already “drawn the line of required 

individualized sentencing at capital cases” and chose not to “extend[ ] it 

further.” Id. (emphasis added).

The Court later distinguished juvenile life-without-parole sentences 

from the holding of Harmelin because it found life-without-parole 

sentences to be a categorically more severe punishment for juveniles—

both due to the greater amount of time they would likely serve and 

juveniles’ unique characteristics. See Miller, 567 U.S. at 480–81. However, 

Harmelin’s core lesson regarding the Eighth Amendment’s cruel and 

unusual punishment clause’s constitutional analysis is still valid. That is, 

determining the reach of the clause is inherently a line drawing exercise 

best left to the U.S. Supreme Court. 

And determining what sentence constitutes a “de facto life sentence”

would be a task completely unmoored from the language of Miller. See 

Bunch, 685 F.3d at 552 (“At what number of years would the Eighth 

Amendment become implicated in the sentencing of a juvenile: twenty, 

thirty, forty, fifty, some lesser or greater number? Would gain time be 

taken into account? Could the number vary from offender to offender 

based on race, gender, socioeconomic class or other criteria? Does the 
Indiana Supreme Court | Case No. 19S-PC-548 | November 17, 2020 Page 16 of 30

number of crimes matter?”) (quotation omitted); Sparks, 941 F.3d at 754 

(noting that an attempt at determining what constitutes a de facto life 

sentence would be a line drawing exercise “not bound by law”). Indeed, 

well-meaning attempts at fully defining de facto life sentences can end up

creating requirements that would vastly alter sentencing procedures for a 

large swath of juveniles. See United States v. Grant, 887 F.3d 131, 150–53 (3d 

Cir. 2018) (proposing a “rebuttable presumption that a non-incorrigible 

juvenile offender should be afforded an opportunity for release before the 

national age of retirement” while also requiring trial courts hold a 

separate hearing to determine an offender’s “life expectancy before 

sentencing him or her to a term-of-years” based on demographic 

information8), reh'g en banc granted, opinion vacated; see also Kelly v. Brown,

851 F.3d 686, 688 (7th Cir. 2017) (Posner, J., dissenting) (arguing, based on 

third party actuarial data on juvenile prisoners, that a sentence requiring a 

juvenile to be released after age fifty is a de facto life sentence). These 

examples make clear that any attempt to define a de facto life sentence 

without further guidance from the U.S. Supreme Court would be largely 

guesswork and would likely require significant (and likely unnecessary)

change to Indiana’s existing discretionary sentencing scheme.9

In sum, “while we are duty-bound to enforce the Eighth Amendment 

consistent with the Supreme Court’s directives,” we must interpret this 

precedent based “upon case-specific holdings rather than general 

expressions in an opinion that exceed the scope of any particular holding.”

Slocumb, 827 S.E.2d at 153. As a result, Miller’s enhanced protections do

not currently apply to Wilson’s 181-year term of years sentence. The 

8

In addition to the practical implications of such hearings, we would be deeply concerned by 

the constitutional implications of sentencing someone to a longer sentence based on their 

immutable characteristics because of life expectancy differences. 

9 While U.S. Supreme Court precedent does not currently apply the Miller factors to de facto 

life sentences, trial courts would be well served to explicitly consider the factors relied on by 

Miller before imposing a sentence that would certainly result in a juvenile defendant spending 

the rest of his life incarcerated. This analysis would likely inoculate their sentencing 

determinations from further scrutiny if the U.S. Supreme Court expands Miller’s reach. Such 

careful analysis would also serve to better explain why the imposed sentence is appropriate if 

Appellate Rule 7(B) review is sought.
Indiana Supreme Court | Case No. 19S-PC-548 | November 17, 2020 Page 17 of 30

sentence does not violate the Eighth Amendment because Miller, Graham,

and Montgomery expressly indicate their holdings apply only to lifewithout-parole sentences.

C. Wilson’s sentencing suffices under Miller. 

Even assuming the standards in Miller apply to a de facto juvenile life 

sentence, the judge adequately considered youth and attendant 

circumstances during sentencing. Since “Miller did not impose a formal 

factfinding requirement,” a sentence cannot “be vacated merely because 

the [sentencing] court failed to quote certain magic words from the 

Supreme Court’s Miller decision.” Sparks, 941 F.3d at 756 (quotation 

omitted). 

While the sentencing judge may not have used the “irreparable 

corruption” language of Miller, he expressly considered Wilson’s youth 

and immaturity as the main mitigating factor throughout sentencing. He 

also considered the defendant’s background—including his three prior 

referrals to the juvenile justice system and previous conviction for a 

possession of a dangerous firearm—as evidence of Wilson’s corruption. 

And testimony was presented that even while awaiting trial, Wilson

continued to engage in gang activity and expressed that he hoped to 

“smash” members of a rival gang also incarcerated at the same facility—

evidence he was irreparably corrupted. DA Tr. Vol. 4, p.745. While the 

sentencing judge did not delve into a detailed discussion of Wilson’s

home environment at sentencing, such a discussion appeared unnecessary 

based on what the judge knew of Wilson’s background at the time because

being raised by a stable two-parent family in a bad neighborhood is not a 

significant mitigator. 

The sentencing judge also knew of the gang-centric neighborhood 

environment to which Wilson was exposed. The victims were members of 

the rival Bottom Side gang and significant testimony at trial discussed the 

activities and disputes between these different gangs. Looking at the 

information considered by the trial judge, as a whole, the sentencing court 

sufficiently considered Wilson’s background, environment and 
Indiana Supreme Court | Case No. 19S-PC-548 | November 17, 2020 Page 18 of 30

immaturity before determining that Wilson was sufficiently corrupted and 

his crimes so serious that he deserved a long term of years sentence. 

II. Wilson’s ineffective assistance of counsel claims.

To prevail on his IAC claims, Wilson must show (1) that his counsel’s 

performance fell short of prevailing professional norms, and (2) that 

counsel’s deficient performance prejudiced his defense. Strickland v. 

Washington, 466 U.S. 668 (1984). “A showing of deficient performance

under the first of these two prongs requires proof that legal representation 

lacked ‘an objective standard of reasonableness,’ effectively depriving the 

defendant of his Sixth Amendment right to counsel.” Gibson, 133 N.E.3d at 

682 (quoting Overstreet v. State, 877 N.E.2d 144, 152 (Ind. 2007)). “To 

demonstrate prejudice, the defendant must show a reasonable probability

that, but for counsel’s errors, the proceedings below would have resulted 

in a different outcome.” Id. (citing Wilkes v. State, 984 N.E.2d 1236, 1240–41

(Ind. 2013)). “A reasonable probability is a probability sufficient to 

undermine confidence in the outcome.” Strickland, 466 U.S. at 694.

When assessing the counsel’s performance, we rely on some basic

guidelines. First, we start by strongly presuming that, throughout the 

proceedings, counsel exercised “reasonable professional judgment” and 

rendered adequate legal assistance. Stevens v. State, 770 N.E.2d 739, 746 

(Ind. 2002). Second, defense counsel enjoys “considerable discretion”

when developing legal strategies for a client, demanding deference during 

judicial review. Id. at 746–47. Third, counsel’s “[i]solated mistakes, poor 

strategy, inexperience, and instances of bad judgment do not necessarily 

render representation ineffective.” Id. at 747.

Wilson brings two types of IAC claims. First, Wilson argues that his 

trial counsel was ineffective when counsel failed to adequately investigate 

Wilson’s background so he could present mitigating and aggravating 

factors at the sentencing hearing. Second, Wilson asserts that appellate 

counsel was ineffective for failing to raise significant issues on appeal—

including the previously discussed Eighth Amendment constitutional 

argument—and for failing to seek evaluation of Wilson’s 181-year 

sentence under our inherent revisory authority as part of his direct appeal. 
Indiana Supreme Court | Case No. 19S-PC-548 | November 17, 2020 Page 19 of 30

We find his trial counsel’s preparation for sentencing were within the 

bounds of prevailing professional norms. But, given precedent existing at 

the time, the grounds for relief under Appellate Rule 7(B) should have 

been significant and obvious to appellate counsel; therefore, we consider 

and grant 7(B) relief reducing Wilson’s sentence to 100 aggregate-years. 

A. Wilson’s trial counsel was not ineffective.

Wilson claims his trial counsel was ineffective for failing to investigate 

and present mitigation evidence at sentencing. Specifically, he contends 

that his trial counsel should have presented expert testimony regarding 

the mitigating qualities of youth and conducted a more thorough

investigation of Wilson’s background, including his mental health history. 

The post-conviction court made factual findings rejecting these 

arguments. It concluded that the trial court had conducted an adequate 

analysis of Wilson’s background in line with prevailing professional 

norms and that trial counsel did not miss the importance of age as the 

major mitigating factor and had “argued it competently.” Appellant’s 

Corr. App. Vol. 2, p.234.

Appealing a factual conclusion by the post-conviction court is an uphill 

battle requiring Wilson to establish “that the evidence, as a whole, 

unmistakably and unerringly points to a conclusion contrary to the postconviction court’s decision.” Ben-Yisrayl, 738 N.E.2d at 258. The evidence 

here is not that one-sided in Wilson’s favor.

Arguing that his trial counsel should have presented expert testimony 

on how his age reduced his criminal culpability and his prospects for 

rehabilitation, Wilson cites no evidence that this presentation was 

required by “prevailing professional norms” in 2014. See Strickland, 466 

U.S. at 688. In fact, his brief cites only to American Bar Association 

guidelines, in effect at the time, applicable to the presentation of 

mitigation evidence in the death penalty context. Wilson simply fails to 

establish that it was standard practice among defense counsel to present 

such expert testimony at a sentencing hearing for a juvenile facing a 

lengthy term of years sentence.
Indiana Supreme Court | Case No. 19S-PC-548 | November 17, 2020 Page 20 of 30

Wilson also claims that his trial counsel’s sentencing investigation was 

inadequate because he failed to uncover Wilson’s mental health issues—a 

PTSD diagnosis discovered by experts hired during the post-conviction 

investigation. We have previously explained that the Constitution does 

not demand a “scorch-the-earth strategy” in conducting a mitigation 

investigation. Ward, 969 N.E.2d at 56 (quotation omitted). Instead, “[w]hat 

is reasonable depends on the circumstances of each case, including the 

facts of the crime, information gleaned from the defendant and others, and 

other readily available sources of information.” Id. Here, trial counsel 

investigated Wilson’s background by speaking to members of his family, 

reviewing the pre-sentencing investigation report with his client and 

making his own observations about Wilson’s mental state during their 

meetings. The investigative report indicated Wilson had no mental illness. 

Counsel’s interview with family and counsel’s own observations did not 

contradict this evaluation. Because sufficient evidence supports the postconviction court’s conclusion—finding trial counsel’s investigation to be 

adequate—we affirm its holding. 

B. Wilson was provided ineffective assistance of appellate 

counsel when his attorney failed to seek relief under 

Indiana Appellate Rule 7(B).

Wilson is entitled to effective assistance of counsel under the Sixth 

Amendment not only at trial but also on direct appeal. Timberlake v. State, 

753 N.E.2d 591, 604 (Ind. 2001). These claims are also judged under the 

two-part Strickland test. Id. at 603. “Ineffective assistance of appellate 

counsel claims generally fall into three basic categories: (1) denial of access 

to an appeal, (2) waiver of issues, and (3) failure to present issues well.”

Reed v. State, 856 N.E.2d 1189, 1195 (Ind. 2006) (citation omitted) (emphasis 

added). Wilson argues that appellate counsel failed to raise significant 

issues on appeal, which falls into the second category.

“To show that counsel was ineffective for failing to raise an issue on 

appeal thus resulting in waiver for collateral review, the defendant must 

overcome the strongest presumption of adequate assistance, and judicial 

scrutiny is highly deferential.” Gallien v. State, 19 N.E.3d 303, 307 (Ind. Ct. 
Indiana Supreme Court | Case No. 19S-PC-548 | November 17, 2020 Page 21 of 30

App. 2014) (citing Reed, 856 N.E.2d at 1195). “To evaluate the performance 

prong when counsel waived issues upon appeal, we apply the following 

test: (1) whether the unraised issues are significant and obvious from the 

face of the record and (2) whether the unraised issues are clearly stronger 

than the raised issues.” Reed, 856 N.E.2d at 1195 (quotation omitted)

(emphasis added). IAC is very rarely found in cases where a defendant 

asserts that appellate counsel failed to raise an issue on direct appeal, in 

part, because the decision of what issues to raise is one of the most 

important strategic decisions to be made by appellate counsel. Bieghler v. 

State, 690 N.E.2d 188, 193–94 (Ind. 1997). Though instances of successful 

claims are “very rare,” one ground for past successful IAC claims is

appellate counsel’s failure “to locate[ ] and rel[y] upon” recent precedent 

from this Court that is “not out-of-date or obscure” and would have 

directly supported a meritorious argument for relief. Hopkins v. State, 841 

N.E.2d 608, 614 (Ind. Ct. App. 2006).

Wilson’s appellate counsel raised three issues on appeal: (1) whether 

the trial court properly admitted Twitter messages into evidence, (2) 

whether Wilson’s convictions for conspiracy to commit a criminal gang 

activity and the resulting enhancement violated double jeopardy, and (3) 

whether the trial court properly excluded Wilson from the courtroom after 

an outburst. The Court of Appeals easily affirmed both the admission of 

tweets and Wilson’s removal from the courtroom on direct appeal, and we 

denied transfer. See Wilson, 30 N.E.3d at 1267–71. The Court of Appeals, 

however, agreed that the conspiracy to commit gang activity charge was 

impermissibly duplicative and it vacated the conviction and its two-year 

sentence. Id. at 1269. So, Wilson’s sentence was only reduced from 183 to 

181 years.

Wilson now argues on post-conviction review that his appellate counsel

on direct appeal should have brought an independent claim for appellate 

review under Indiana Appellate Rule 7(B). The rule provides that “[t]he 

Court may 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.” Ind. Appellate Rule 7(B). “This appellate review and revise 

authority derives from Article 4 of the Indiana Constitution, and includes 
Indiana Supreme Court | Case No. 19S-PC-548 | November 17, 2020 Page 22 of 30

the power to either reduce or increase a criminal sentence on appeal.”

McCain v. State, 148 N.E.3d 977, 985 (Ind. 2020) (quotation omitted) 

(cleaned up).

At the post-conviction review hearing, Wilson’s appellate counsel 

admitted that in retrospect his appeal strategy was poor. PCR Tr., p.36 (“I 

saw the clear error in the gang activity [conspiracy] sentence, which 

surprised me a bit. And I realized, however, that it made virtually no 

difference in [Wilson]’s sentence. And I believe I should have gone 

further and considered more the appropriateness of the sentence [under 

Appellate Rule 7(B)].”) (emphasis added). In short, appellate counsel

himself conceded that an Appellate Rule 7(B) challenge was clearly 

stronger than the issues he raised on appeal.

Further, counsel conceded that at the time he was unfamiliar with this 

Court’s recent companion decisions reducing long sentences for juvenile 

double murderers. See Fuller v. State, 9 N.E.3d 653, 659 (Ind. 2014); Brown 

v. State, 10 N.E.3d 1, 8 (Ind. 2014). Fuller and Brown involved two 

teenagers—ages fifteen and sixteen years old, respectively—who were 

convicted of the robbery and murder of an Anderson couple in their own 

home; both juvenile defendants were originally given 150-year sentences.

Fuller, 9 N.E.3d at 654–55; Brown, 10 N.E.3d at 2–3. However, after 

reviewing the character of the offenders and the circumstances of their 

crimes, we found both sentences inappropriate under our Appellate Rule 

7(B) discretionary review authority. Fuller, 9 N.E.3d at 659; Brown, 10 

N.E.3d at 8. We reduced their aggregate sentences to eighty-five years and 

eighty years, respectively. Fuller, 9 N.E.3d at 659; Brown, 10 N.E.3d at 8. To 

be sure, Wilson—who also faced an additional gang enhancement—was 

not necessarily entitled to an identical sentence, but even a cursory 

reading of Fuller and Brown shows that the facts of the cases closely track 

Wilson’s crimes and that the reasoning we used to reduce those sentences

is also largely applicable to his sentence.

The post-conviction court dismissed Wilson’s Appellate Rule 7(B) IAC 

claim, reasoning that his counsel’s failure to bring the claim was harmless 

because Indiana appellate courts have the power to find a sentence 

inappropriate sua sponte. The court cited as an example our decision in 
Indiana Supreme Court | Case No. 19S-PC-548 | November 17, 2020 Page 23 of 30

Ritchie v. State, a death penalty appeal, in support of this proposition. 875 

N.E.2d 706 (Ind. 2007). In Ritchie, we found that “counsel cannot be 

criticized for failing to raise” an Appellate Rule 7(B) claim on direct appeal

because it is “an issue this Court routinely addressed on its own 

initiative.” Id. at 724. A close reading of Ritchie, however, makes clear that 

observation is confined to the context of death penalty cases where—prior 

to later statutory amendments—“this Court as a matter of course 

reviewed and revised sentences . . . without the need of counsel raising

this claim.” Id.

A few years later, however, we clarified that a request under Appellate

Rule 7(B) to “revise a lawfully entered sentence” requires that outside of 

capital cases the defendant “persuade the appellate court that his or her 

sentence has met this inappropriateness standard of review.” Kimbrough v. 

State, 979 N.E.2d 625, 630 (Ind. 2012) (citing Childress v. State, 848 N.E.2d 

1073, 1080 (Ind. 2006)) (quotations omitted). Since the defendant in 

Kimbrough “made no such request . . . there was no issue in this regard to 

be considered by a reviewing court.” Id. As Kimbrough demonstrates, it has 

not been our custom to sua sponte consider a sentence’s appropriateness

under Appellate Rule (7)(B). We do not generally review a sentence’s 

appropriateness unless prompted by the defendant because this policy 

allows the defendant to challenge specific parts of trial procedure or his

sentencing without risking the possibility the appellate court would find 

his overall sentence inappropriately low and increase it. See McCain, 148 

N.E.3d at 985 (noting the appellate court’s authority to “either reduce or 

increase” sentences) (quotation omitted). Any other policy would only 

chill a criminal defendant’s incentive to litigate meritorious appeals.

Despite the high bar required to bring an IAC claim, we find the 

attorney’s failure to bring a claim for Appellate Rule 7(B) constituted 

deficient performance under Strickland. By appellate counsel’s own 

admission, he was ignorant of important recent precedents: Brown and 

Fuller—involving juvenile double murderers who also committed armed 

robbery yet had their sentences significantly reduced. Counsel also 

conceded he had no other strategic reason for not bringing an argument 

under Appellate Rule 7(B). Appellate “[c]ounsel should have located and 

relied upon these cases,” and “[w]e also are confident” that had this 
Indiana Supreme Court | Case No. 19S-PC-548 | November 17, 2020 Page 24 of 30

authority been presented on direct appeal, the Court of Appeals would 

have revised Wilson’s sentence. See Hopkins, 841 N.E.2d at 614. Since 

requesting review of the appropriateness of a sentence prompts a review 

“to either reduce or increase a criminal sentence on appeal,” McCain, 148 

N.E.3d at 985 (quotation omitted) (emphasis added), we would ordinarily 

be especially hesitant to second guess an appellate counsel’s strategic 

decision to forgo this review. But Wilson’s case is different, because even 

an upward revision of his sentence by an appellate court would have put 

him in no worse position since he was already going to die in prison.

In sum, we find that due to the availability of the on-point Brown and 

Fuller decisions, a request for review of the sentence’s appropriateness had

a high likelihood of success. Since the claims appellate counsel brought on 

direct appeal resulted in an insignificant two-year reduction in Wilson’s 

sentence, his claim for Appellate Rule 7(B) revision was “clearly stronger 

than the raised issues,” as appellate counsel himself conceded. Reed, 856 

N.E.2d at 1195 (quotation omitted).

“Based on the Indiana authority available at the time of” his sentencing, 

there is support for Wilson’s argument that an appropriateness challenge 

to his sentence had a high likelihood of success, and his appellate counsel 

“should have challenged” his aggregate sentence. Taylor v. State, 840 

N.E.2d 324, 342 (Ind. 2006). “We find that failure to do so amounted to 

deficient performance,” and Wilson “was prejudiced and deprived a fair 

appeal by his counsel’s failure to raise his sentence as an issue.” Id. The 

correct remedy for this failure, in this instance, is to give Wilson a new 

chance to present an Appellate Rule 7(B) claim. But rather than remand 

for consideration, in the interest of judicial economy, we choose to now 

conduct a review of the sentence under Appellate Rule 7(B).

C. Applying Appellate Rule 7(B) to Wilson’s sentence.

Examining only the facts available on direct appeal, we conclude that a

downward adjustment to Wilson’s sentence is appropriate. We modify a 

sentence only when we find that “the sentence is inappropriate in light of 

the nature of the offense and the character of the offender.” App. R. 7(B).

“The principal role of [Appellate Rule 7(B)] review should be to attempt to 
Indiana Supreme Court | Case No. 19S-PC-548 | November 17, 2020 Page 25 of 30

leaven the outliers.” Cardwell v. State, 895 N.E.2d 1219, 1225 (Ind. 2008). 

The point is “not to achieve a perceived correct sentence.” Knapp v. State, 9 

N.E.3d 1274, 1292 (Ind. 2014) (quotation omitted). Rather, “appellate 

review and revision ultimately boils down to the appellate court’s 

collective sense of what is appropriate.” Brown, 10 N.E.3d at 8 (quotation 

omitted). “Whether a sentence should be deemed inappropriate ‘turns on 

our sense of the culpability of the defendant, the severity of the crime, the 

damage done to others, and [a] myriad [of] other factors that come to light 

in a given case.’” McCain, 148 N.E.3d at 985 (quoting Cardwell, 895 N.E.2d 

at 1224). Because “the number of counts that can be charged and proved is 

virtually entirely at the discretion of the prosecution[,] . . . appellate 

review should focus on the forest—the aggregate sentence—rather than 

the trees—consecutive or concurrent, number of counts, or length of the 

sentence on any individual count.” Cardwell, 895 N.E.2d at 1225.

At sentencing, Wilson was given (1) an enhanced sixty years for the 

murder of Charles Wood, which was automatically doubled under the

criminal gang enhancement, (2) a consecutive (advisory) fifty-five-year 

sentence for his role as an accomplice in the murder of Shaqwone Ham,

and (3) a minimum six-year sentence for armed robbery. See Wilson, 30 

N.E.3d at 1267; see also Ind. Code § 35-50-2-3 (2013) (providing for a 

sentence of forty-five to sixty-five years for murder, with a fifty-five-year 

advisory sentence); I.C. § 35-50-2-5 (providing for a sentence between six 

and twenty years for a Level 3 felony, with a ten-year advisory sentence).

i. Nature of the offense.

First, like in Brown, “although senseless and reprehensible, . . . there is 

no evidence that the victims were tortured, beaten, or lingered in pain.” 10 

N.E.3d at 5. Wilson fired a single gunshot at Wood, instantly killing him,

and was an accomplice to Ham’s death—who was shot almost 

simultaneously. Although shocking, these shootings do not rise to the 

same level of heinousness of recent murders by juveniles where we found 

an enhanced sentence appropriate. See, e.g., Conley, 972 N.E.2d at 876

(finding the heinousness of the murder justified a life without parole 

sentence for a seventeen-year-old because—while babysitting his ten-year-
Indiana Supreme Court | Case No. 19S-PC-548 | November 17, 2020 Page 26 of 30

old brother—he strangled the young child to death for over twenty

minutes while the victim begged him to stop before slamming the victim’s 

head on the concrete to ensure he was dead).

That said, the crime’s gang connection justifies an enhanced sentence,

and this is accounted for in the mandatory criminal gang enhancement.

The General Assembly has found a crime committed as part of gang 

activity to be deserving of enhanced punishment and enacted a statute 

that allows for the proportional doubling of “the longest sentence 

imposed for the underlying felonies.” I.C. § 35-50-2-15. The connection to 

ongoing gang activity here is legitimate grounds for an enhanced 

sentence. The conduct of Wilson and his gang and their turf wars likely 

caused significant harm to his neighborhood and was surely especially 

harmful to other adolescents living there. The sentencing enhancement 

enacted by the General Assembly more than adequately captures this 

point. So, the appropriate sentence here will be greater than what we 

found appropriate for a double murder and robbery in Fuller, where the 

perpetrators were not part of a gang. See 9 N.E.3d at 654–55.

ii. Character of the offender.

Weighing against Wilson’s character is his previous misdemeanor and 

his actions while incarcerated, but we find these factors to be outweighed 

by Wilson’s age. Wilson’s juvenile record is not especially egregious: he

was convicted of a single misdemeanor for dangerous possession of a 

firearm, providing little support for a more severe enhancement. See, e.g., 

Prickett v. State, 856 N.E.2d 1203, 1208–09 (Ind. 2006) (finding that a

twenty-one-year-old’s juvenile convictions for “incorrigibility, burglary, 

and theft” were not “weighty enough” or “sufficiently similar” to justify a 

ten-year enhancement to an adult Class A child molestation conviction).

Wilson’s conduct while incarcerated and awaiting trial also evinces that

he had learned little following his arrest. In a recorded jailhouse 

conversation, Wilson stated a desire to “smash” a member of a rival gang

incarcerated in the same facility, bragged about the murders to a cellmate,

and showed a desire to continue to participate in gang activity. DA Tr. 

Vol. 4, p.745. These facts weigh against his character.
Indiana Supreme Court | Case No. 19S-PC-548 | November 17, 2020 Page 27 of 30

As we have stated repeatedly, when reviewing the appropriateness of a

juvenile’s term of years sentence that is so long that it “forswears 

altogether the rehabilitative ideal” and “means denial of hope,” we look 

closely at “an offender’s youth and its attendant characteristics.” Brown, 10 

N.E.3d at 8, 7 (quotations omitted); Fuller, 9 N.E.3d at 658, 657 (quotations 

omitted). Since Wilson was only sixteen, his age is a major factor that 

requires careful consideration during Appellate Rule 7(B) review. Even 

though the heightened constitutional requirements in Miller and Graham 

were limited by the U.S. Supreme Court to life-without-parole sentences, 

in Brown and Fuller we made clear that we are free to apply the 

developmental science undergirding those cases more broadly through 

our unique ability to consider a sentence’s appropriateness by looking 

beyond the aggravators and mitigators relied on by the sentencing court.

See Fuller, 9 N.E.3d at 658 (“Consistent with the Supreme Court’s 

reasoning[,] this Court has not been hesitant to reduce maximum 

sentences for juveniles convicted of murder.”). While we find, just as in 

Brown, that the sentencing court “acted well within its broad discretion in 

imposing this sentence,” 10 N.E.3d at 4, we today—both here and in State 

v. Stidham, No. 20S-PC-634, --- N.E.3d ---- (Ind. 2020) (reducing a 138-year 

sentence to an aggregate eighty-eight-year sentence)—use our power of

independent appellate review and revision under the Indiana 

Constitution to leaven this outlier based on our review of other similarly 

situated teenagers who also committed murder.

As noted above, in both Fuller and Brown, where the defendants’

offenses were largely analogous to Wilson’s, we reduced each defendant’s

aggregate sentence to eighty-five years and eighty years, respectively, 

which means the defendants both have a realistic chance at release by 

their early sixties. Fuller, 9 N.E.3d at 659; Brown, 10 N.E.3d at 8. We have 

made similar reductions in the past even under the old, more deferential 

“manifestly unreasonable” standard; for instance, we reduced to fifty 

years a fourteen-year-old’s maximum sixty-year sentence for the brutal 

murder of a seven-year-old girl, recognizing, among other things, his 
Indiana Supreme Court | Case No. 19S-PC-548 | November 17, 2020 Page 28 of 30

“very youthful age.”

10 Carter v. State, 711 N.E.2d 835, 841–43 (Ind. 1999). 

And in the case of a sixteen-year-old who brutally beat and stabbed his 

adoptive parents to death while they slept, we reduced a maximum 120–

year sentence to eighty years when, along with his mental illness and lack 

of criminal history, we considered the age of “this offender.” Walton v. 

State, 650 N.E.2d 1134, 1135, 1137 (Ind. 1995).

To be sure, lifetime imprisonment may sometimes be appropriate for a 

juvenile. In Conley, for instance, we found a life without parole sentence to 

be appropriate for the seventeen-and-a-half-year-old who brutally

strangled his ten-year-old brother to death while babysitting. 972 N.E.2d 

at 876–77. We found it appropriate due to the especially heinous nature of 

the crime, the defendant’s lack of significant mental health issues reducing 

his culpability, and evidence suggesting a “hardened character.” Id.

Although technically not a juvenile, the Court of Appeals similarly 

considered age and maturity when affirming an aggregate 175-year 

sentence for a twenty-one-year-old who was convicted of multiple crimes,

including murder (as an accomplice) with a gang enhancement, attempted 

murder, and kidnapping. Armstrong v. State, 22 N.E.3d 629, 636, 644–46

(Ind. Ct. App. 2014) (finding defendant’s previous six felony and twelve 

misdemeanor convictions along with the brutal nature of the crime 

justified an enhanced sentence despite defendant’s youth), trans. denied.

Fuller and Brown—as factually analogous cases—provide us baseline 

sentences (eighty-five- and eighty-year sentences) for what is appropriate 

for a sixteen-year-old who committed robbery and a double murder.

Comparing the nature of Wilson’s offense and his character to these cases,

we conclude that Wilson’s sentence should be reduced to an aggregate 100

years. This includes two concurrent fifty-year sentences for the murders of 

Wood and Ham, a fifty-year criminal gang enhancement for Wood’s 

murder, and a concurrent six-year robbery sentence. Unlike Fuller and 

Brown, Wilson was also convicted of a criminal gang enhancement and we 

10 At the time, our appellate rules permitted reviewing courts to revise a sentence if it was 

“manifestly unreasonable.” The current version of Indiana Appellate Rule 7(B), effective 

January 1, 2003, allows us to revise sentences that are “inappropriate.”
Indiana Supreme Court | Case No. 19S-PC-548 | November 17, 2020 Page 29 of 30

must respect the legislature’s determination that the corrosive nature of 

gang activity justifies a higher sentence than what Fuller and Brown 

received.

Nevertheless, the main factor weighing in favor of a shorter sentence is 

Wilson’s age. A 100-year sentence means that after receiving good time 

credit Wilson will likely be eligible for release in his mid-to-late sixties,

meaning that he has reasonable hope for a life outside prison. If Fuller, 

Brown, and Crawford are all able to envision a life outside prison walls,

we collectively find it an outlier that Wilson is not provided a similar 

opportunity and incentive to rehabilitate.

Conclusion.

We hold that Wilson’s original 181-year sentence was not 

unconstitutional under the Eighth Amendment because the protections 

outlined in Miller for juvenile life-without-parole sentences are 

inapplicable to a term of years sentence. Furthermore, we find even if the 

sentence were subject Miller’s requirements—that age and attendant 

circumstances be considered—the trial court’s consideration of such 

factors in the present case was adequate. But we conclude Wilson’s

appellate counsel performed inadequately when he failed to request 

appellate review of the sentence’s appropriateness under Appellate Rule 

7(B). After reviewing Wilson’s character and the nature of the offense, we 

revise Wilson’s sentence downward to an aggregate 100 years.

David and Goff, JJ., concur. 

Rush, C.J., concurs in result.

Slaughter, J., concurs in Parts I and II.A and dissents from Parts II.B 

and II.C, with separate opinion.
Indiana Supreme Court | Case No. 19S-PC-548 | November 17, 2020 Page 30 of 30

A T T O R N E Y S F O R A P P E L L A N T

Amy E. Karozos

Public Defender of Indiana

Katherine Province

Mark S. Koselke

Deputy Public Defenders

Indianapolis, Indiana

A T T O R N E Y S F O R A P P E L L E E

Curtis T. Hill, Jr.

Attorney General of Indiana

Stephen R. Creason 

Chief Counsel, Appeals Division 

Indianapolis, Indiana

Ellen H. Meilaender

Monika P. Talbot

Deputy Attorneys General 

Indianapolis, Indiana
Slaughter, J., concurring in part, dissenting in part.

I agree with the Court that Wilson’s term-of-years sentence does not 

violate the Eighth Amendment’s ban on cruel-and-unusual punishments. 

To date, the Supreme Court of the United States has not extended its 

evolving legal standard for juvenile life-without-parole sentences to “de 

facto” LWOP sentences. Thus, I concur in Part I of our Court’s opinion. I 

also concur in Part II.A of the opinion because I agree that Wilson’s trial 

counsel was not ineffective. But I respectfully dissent from Parts II.B and 

II.C. I cannot agree that Wilson’s appellate counsel was ineffective and 

that Wilson is entitled to relief under Appellate Rule 7(B).

Until today, we have never held that counsel’s failure to raise Rule 7(B)

on direct appeal amounts to constitutionally deficient performance under 

Strickland v. Washington, 466 U.S. 668 (1984). We adopted Rule 7(B) to 

effectuate the 1970 amendment to our state constitution’s Judicial Article, 

which (among other things) conferred in our Court the power “to review 

and revise the sentence imposed” in a criminal case. Ind. Const. art. 7, § 4. 

Conferring a court with the power to act is not the same as bestowing a 

defendant with a right to relief. Relief in 7(B) cases is purely a matter of 

judicial grace. There would be no violation of a defendant’s rights—and 

the defendant would have no judicial recourse—were we to withhold our 

prerogative under this provision or were the People to amend the 

constitution and rescind this provision altogether. I would hold as a 

matter of law that counsel is never deficient for failing to argue that a 

sentence is inappropriate under Rule 7(B).

The practical effect of today’s decision will be to encourage the filing of 

more claims seeking relief under Rule 7(B), even if there is little or no 

chance of success, just to avoid the charge that counsel failed to provide

the minimal level of competence guaranteed under the Sixth Amendment. 

At present, there is no shortage of claims seeking this relief. By my count, 

in 2019 the court of appeals issued 335 written decisions addressing a 7(B) 

claim, representing nearly one-sixth of its decisions. Of these 335 

decisions, 330 denied 7(B) relief; only five found relief under 7(B) to be 

warranted—a success rate of about 1.5 percent.
Indiana Supreme Court | Case No. 19S-PC-548 | November 17, 2020 Page 2 of 2

Today’s decision highlights the need for a workable 7(B) standard, 

especially considering that 7(B) claims—most of which will fail—require 

an enormous commitment of appellate resources. As we noted in Cardwell 

v. State, our 7(B) decisions show that “we have not adopted a consistent 

methodology in reviewing sentences.” 895 N.E.2d 1219, 1224 (Ind. 2008)

(cleaned up). Yet crafting a consistent method should be, in my view, our 

primary task. I would give full weight to Cardwell’s charge not only to 

“leaven the outliers,” but also to “identify some guiding principles for 

trial courts and those charged with improvement of the sentencing 

statutes”. Id. at 1225. Today we lack such “guiding principles”. Our 

prevailing criteria for identifying and remedying an “inappropriate” 

sentence are not susceptible to clear judicial standards. 

Without a consistent framework for applying 7(B), I would avoid the 

discretionary review of sentences like Wilson’s altogether. Although

reviewing and revising trial courts’ lawful sentencing decisions are clearly 

within our constitutional power, exercising this power is not mandatory

but discretionary. As our rule says, “[t]he Court may revise a sentence”.

App. R. 7(B) (emphasis added). To be clear, I am not referring to unlawful 

sentences. If a criminal sentence is unlawful, then of course the aggrieved 

defendant should receive all the relief available under law. And our 

appellate courts stand ready to provide such relief. But where, as here, the 

trial court’s sentence was lawful, providing relief under 7(B) amounts to 

substituting our view of an appropriate sentence for that of the trial judge.

Before undertaking the costly process of reconsidering sentencing 

decisions, I would first provide meaningful “guiding principles” for lower 

courts. Cardwell, 895 N.E.2d at 1225.

For these reasons, I would hold that Wilson’s appellate counsel was not 

ineffective and affirm the trial court’s judgment denying post-conviction 

relief.