ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE

Leanna Weissmann Gregory F. Zoeller

Lawrenceburg, Indiana Attorney General of Indiana

Henry A. Flores, Jr.

Deputy Attorney General

Indianapolis, Indiana

______________________________________________________________________________

In the

Indiana Supreme Court 

_________________________________

No. 58S00-1011-CR-634

ANDREW CONLEY, 

Appellant (Defendant below),

V.

STATE OF INDIANA,

Appellee (Plaintiff below),

_________________________________

Appeal from the Ohio Circuit Court, Cause No. 58C01-0912-MR-001

The Honorable James Humphrey, Judge

_________________________________

On Direct Appeal

_________________________________

July 31, 2012

David, Justice.

This case involves a seventeen-and-a-half-year-old who murdered his ten-year-old 

brother. Andrew Conley confessed to the crime and pleaded guilty to murdering his brother, 

Conner, while Conley was babysitting Conner. Following five days of sentencing testimony, 

including the testimony of twelve witnesses and one-hundred-and-fifty-five exhibits, the trial 

court judge sentenced Conley to life without parole. We hold that based on the age of Conley, 

the age of Conner, and the particularly heinous nature of the crime, a sentence of life without
2

parole was appropriate. We hold that on the facts of this case, the sentence of life without parole 

is constitutional.

Facts and Procedural History

The undisputed facts are as follows. On Saturday, November 28, 2009, Conley was 

seventeen-and-a-half-year-old when he murdered his ten-year-old brother, Conner. The murder 

took place between 8:30 p.m. and 10:00 p.m. His mother and adoptive father were at work that 

evening until the early morning hours. As was not uncommon, Conley was responsible for 

watching Conner that evening. Conley’s mother told him he would have to find a babysitter for 

Conner if he wished to go out with his friends. 

Conley wanted to go out that evening, so Conley drove Conner to their grandmother’s 

house in Rising Sun, Indiana, but she was not home. He next asked his uncle to watch Conner

but was told no. After they returned home, Conley and Conner began wrestling. 

At some point, Conley got behind his brother and choked him in a headlock with his arm 

until Conner passed out. Conner was bleeding from the nose and mouth. Conner was still 

breathing. Conley drug Conner into the kitchen, retrieved a pair of gloves, and continued to 

choke Conner from the front, around his throat. Conley choked Conner for approximately 

twenty minutes total. 

Conley next got a plastic bag from a drawer in the kitchen and placed it over Conner’s 

head. Conley used black electrical tape to secure the bag by wrapping the tape around Conner’s 

head. Conner was still alive. In fact, Conner’s last words were “Andrew stop.” 

Conley then drug Conner’s body to the steps that lead to the basement, drug him down 

the steps by his feet, across the floor, and outside the home. Conley slammed Conner’s head on 

the concrete multiple times to ensure Conner was dead and then placed his body in the trunk of 

his car. Conley cleaned himself up and put on new clothes. He put the bloody clothes in his 

closet and hid the bloody gloves in a chair. 

Conley next drove to his girlfriend’s house. While there they watched a movie, and he

gave her a “promise ring.” Conley’s girlfriend testified at the sentencing hearing that Conley 
3

was “[h]appier than I’d seen him in a long time.” Conley spent two hours at his girlfriend’s 

house, while Conner’s body remained in the trunk of the car. After leaving his girlfriend’s 

house, Conley drove to an area behind the Rising Sun Middle School. Conley decided to drag 

Conner’s body into the woods and covered the body with sticks and vegetation. 

Conley returned home during the early morning hours on Sunday the 29th when no one 

was home. He cleaned up the blood in the house. When his father returned home around 2:30 

a.m., Conley was acting normal. Conley said that Conner was at his grandmother’s house and 

Conley also asked his father for some condoms. 

Conley’s mother arrived home around 5:45 a.m., and Conley and his mother had 

popcorn, watched a movie together, and cracked jokes back and forth. His mother fell asleep. 

On two occasions that early morning, Conley went into his father’s bedroom and stood over him 

with a knife. Conley said he had the intent to kill his father, but he decided not to. 

Later that same Sunday, Conley watched football with his father. Following football, 

Conley left home and drove to the park in Rising Sun where Conner’s body had been discarded, 

but he never went to the actual location. Instead, Conley spoke to two friends and told him that

he had killed Conner. Thereafter, around 8:00 p.m., Conley drove his car to the Rising Sun 

Police Department and voluntarily reported he “accidentally killed his brother” or that he 

“believed” he had killed his brother. 

The police contacted Conley’s parents, and after consulting with his parents and waiving 

his right to counsel, Conley confessed to intentionally killing his ten-year-old brother. Conley 

was charged with murder and ultimately pleaded guilty, without a plea agreement. The penalty 

phase of the trial was conducted from September 15 to 21. Following the sentencing hearing, the 

trial court sentenced Conley to life imprisonment without the possibility of parole. 

We are confronted with four issues raised by Conley. The first issue is whether the trial 

court erred in allowing the testimony of Dr. James Daum. Dr. Daum’s testimony did not provide 

an opinion that Conley had any psychopathy, but instead his testimony suggested Conley had 

traits of a person with such a diagnosis. The second issue is whether the trial court properly 

weighed the aggravating and mitigating factors in this case. The third issue raised on appeal is 
4

whether Conley’s sentence was appropriate under Indiana Appellate Rule 7(B). Finally, we 

address an issue that was first raised at oral argument,

1

in which we had the parties amend their 

briefs to address whether the imposition of a life-without-parole sentence on a person under the 

age of eighteen who has been convicted of murder violated either the United States or Indiana 

Constitution. 

I. Testimony of Dr. James Daum

A sentence of life without parole (LWOP) is subject to the same statutory standards and 

requirements as the death penalty. Krempetz v. State, 872 N.E.2d 605, 613 (Ind. 2007). Before 

a life-without-parole sentence can be imposed, the State is required to prove beyond a reasonable 

doubt at least one aggravating circumstance. Ind. Code § 35-50-2-9 (2008). The trial court must 

determine if the State has proven the existence of an alleged aggravator beyond a reasonable 

doubt, but also that the mitigating circumstances are outweighed by the aggravating 

circumstances. Id. § 35-50-2-9(l). The penalty phase of an LWOP trial requires introduction of 

evidence with the burden on the State to prove its case beyond a reasonable doubt. Dumas v. 

State, 803 N.E.2d 1113, 1121 (Ind. 2004). The admission or exclusion of evidence rests within 

the sound discretion of the trial court, and we review for an abuse of discretion. Goodner v. 

State, 685 N.E.2d 1058, 1060 (Ind. 1997). An abuse of discretion occurs when the trial court’s 

decision is clearly against the logic and effect of the facts and circumstances before it. Smith v. 

State, 754 N.E.2d 502, 504 (Ind. 2001). The trial court’s decision will not be disturbed absent a 

requisite showing of abuse. Goodner, 685 N.E.2d at 1060.

In the defendant’s presentation to the court, Dr. Connor testified that he diagnosed 

Conley as having schizoaffective disorder, the bipolar type, and a sleep disorder. Dr. James 

Daum was called by the State in rebuttal during the penalty phase of the trial to rebut the 

testimony of defendant’s expert, Dr. Connor, that Conley did not “fit the psychotic personality.” 

In preparation for his testimony, Dr. Daum reviewed statements by Conley, Conley’s parents, 

Conley’s girlfriend, and police reports. Dr. Daum also reviewed cell phone records, all of the 

statements Conley made to the police, and reports submitted by the three psychologists who 

 

1 We thank Indiana University-South Bend for its hospitality in hosting us. We also acknowledge the 

advocacy of Deputy Attorney General Henry Flores Jr., and Appellant’s counsel Leanna Weissmann, who 

drove from Lawrenceburg, Indiana to participate. The Supreme Court thanks you. 
5

evaluated Conley, two of which were appointed by the court, and one retained by the defendant. 

Dr. Daum testified Conley had evidence of psychopathy. The trial court ruled Dr. Daum was not 

able to testify as to his opinion whether Conley was a psychopathic personality. The specific 

line of questioning is as follows:

QUESTION: And are psychopathic personalities difficult to rehabilitate?

WATSON: Objection. Objection, Your Honor. I believe it’s improper for any of 

these folks to render opinion on rehabilitation. That’s unnecessary speculation, 

Your Honor, that my client (indiscernible)

COURT: Okay. That objection is sustained. And I will also note – I do not 

believe that this witness has rendered an opinion of psychopathy. I believe this 

witness has only testified regarding characteristic thus far. Okay? Objection is 

sustained.

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

Examinations were conducted by Court appointed experts, Dr. Don Olive and Dr. 

George Parker, following Defendant[’]s filing of an insanity plea. Defendant was 

also examined by Dr. Edward Conner, defense expert and State’s expert, Dr. 

James Daum did not examine the Defendant but reviewed other records and 

reports. Dr. Olive concluded that Defendant was suffering from a major 

depressive order of at least moderate severity; personality disorder, either antisocial personality or borderline personality disorder. Dr. Connor’s diagnosis is 

that Defendant is suffering from schizoaffective disorder – bipolar type. Dr. 

Parker diagnosed Defendant with depression with psychotic features. Dr. Daum 

indicated that Defendant exhibited some characteristics of a psychopath. Dr. 

Daum, however, was not able to render a specific diagnosis because he did not 

personally examine the Defendant. All experts agree that Defendant, Andrew 

Conley, understood the wrongfulness of his actions and is criminally responsible. 

As to Conley’s mental state at the time of the offense, Dr. Connor stated “his 

executive functioning was not suspended and he was able to make rational 

decisions.” 

In Bivins v. State, 642 N.E.2d 928, 955–956 (Ind. 1994), this court held only evidence

relevant to the charged statutory aggravators can be admitted and considered in capital cases so 

as to avoid disproportionate sentences in violation of Article 1, Section 16 of the Indiana 

Constitution. When a sentence of life without parole is sought, courts must limit the aggravating 

circumstances eligible for consideration to those specified in statute. Cooper v. State, 854 

N.E.2d 831, 840 (Ind. 2006). The only evidence relevant to the court is evidence of aggravating 

and mitigating circumstances. Bivins, 642 N.E.2d at 957. We disagree with defense counsel’s 
6

characterization that the State used Dr. Daum’s testimony to speak of Conley’s future 

dangerousness in violation of Bivins. Dr. Daum testified only on rebuttal, for the purpose of 

rebutting the defense expert Dr. Connor, that defendant did not “fit the psychotic personality.” 

In fact, the trial court expressly stated on objection, “Counsel, I’m taking this as rebuttal of Dr. 

Connor. . . . Not this witness rendering his own opinion as to psychopathy.” Dr. Daum’s 

testimony was based on Conley’s proferred mitigating circumstance of his mental health. 

In addition to challenging the substance of the testimony, defense counsel also challenges 

the relevance of Dr. Daum’s testimony. Relevant evidence is “evidence having any tendency to 

make the existence of any fact that is of consequence to the determination of the action more 

probable or less probable than it would be without the evidence.” Ind. Evidence Rule 401. 

Again, Dr. Daum’s testimony was offered to rebut the testimony of Dr. Connor that Conley did 

not “fit the psychotic personality.” Rebuttal evidence “is limited to that which tends to explain, 

contradict, or disprove evidence offered by the adverse party.” Schwestak v. State, 674 N.E.2d 

962, 964 (Ind. 1996) (quoting Isaacs v. State, 659 N.E.2d 1036, 1041 (Ind. 1995)). Defense 

counsel couches its argument as if Dr. Daum proffered an opinion on Conley’s psychopathy. Dr. 

Daum did no such thing. Dr. Daum’s testimony was limited to explaining and contradicting 

evidence offered by Conley relating to his mental health. We certainly can find no abuse of 

discretion on the trial court’s behalf in allowing this testimony. 

Finally, we recognize that Dr. Daum’s testimony was given before the trial court and not 

a jury. We presume the trial judge is aware of and knows the law and considers only evidence 

properly before him or her in reaching a decision. Emerson v. State, 695 N.E.2d 912, 917 (Ind. 

1998). The risk of prejudice is quelled when the evidence is solely before the trial court. Id. In 

this case, the trial court never mentioned Dr. Daum’s testimony as a basis for repudiating any of 

Conley’s proffered mitigators. Furthermore, the trial court recognized that it was not permitted 

to consider any aggravator other than the victim’s age. Dr. Daum did not offer an opinion on 

Conley’s psychopathy, or future dangerousness, and the trial court did not find such to be the 

case. We hold the trial court exercised proper discretion in permitting Dr. Daum’s limited 

testimony. 
7

II. Weighing the Aggravating and Mitigating Factors

Defense counsel next argues the trial court improperly weighed the aggravating and 

mitigating factors. When imposing a sentence of life without parole, the trial court’s sentencing 

statement 

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

(ii) must include the specific facts and reasons which lead the court to find the 

existence of each such circumstance, 

(iii) must articulate that the mitigating and aggravating circumstances have 

been evaluated and balanced in determination of the sentence, and 

(iv) must set forth the trial court’s personal conclusion that the sentence is 

appropriate punishment for this offender and this crime. 

Krempetz v. State, 872 N.E.2d 605, 613–14 (Ind. 2007) (quoting Dumas v. State, 803 N.E.2d 

1113, 1122–23 (Ind. 2004)). Additionally, before the trial court may impose a sentence of life 

without parole, “it must find that the State has proven the existence of an alleged aggravator 

beyond a reasonable doubt and must find that ‘any mitigating circumstances that exist are 

outweighed by the aggravating circumstance or circumstances.’” Id. (citing I.C. § 35-50-2-

9(l)(2)). This Court gives “great deference to a [trial] court’s determination of the proper weight 

to assign to aggravating and mitigating circumstances.” Id. This Court will “set aside the court’s 

weighing only upon the showing of a manifest abuse of discretion.” Id. The determination that a 

circumstance is mitigating is within the trial court’s discretion, and the trial court is not obligated 

to explain its reasoning. Dunlop v. State, 724 N.E.2d 592, 597 (Ind. 2000). The trial court is not 

required to give the same weight as the defendant would give to the proferred mitigating 

circumstances. Id. 

One permissible aggravating factor is the age of the victim. Indiana Code § 35-50-2-

9(b)(12). An aggravating factor is the murder victim being less than twelve years of age. In this 

case, the State alleged as its aggravating factor Conner’s young age when he was murdered. 

Conley does not deny that Conner was only ten years old when he died. The legislature’s 

decision to include age as an aggravator reflects the legislature’s policies of both increased 

protection of young children and a harsher punishment for those who prey on them. Stevens v. 
8

State, 691 N.E.2d 412, 432–33 (Ind. 1997). Because the State has proven beyond a reasonable 

doubt one aggravating factor, and because only one aggravating factor is necessary, we now turn 

to the second prong, the issue of mitigators. 

Conley raised a number of mitigating factors. I.C. § 35-50-2-9(c). The trial court 

weighed five mitigating factors. The trial court gave some weight to four of the mitigators. The 

trial court gave no weight to two of the mitigators. 

Conley was seventeen-and-a-half-years-old when he murdered Connor. This is a 

mitigating factor. Indiana Code § 35-50-2-9(c)(7). The trial court gave this “some” weight, but 

found that he functioned in the normal range of intelligence and had an above average verbal IQ 

of 118. We find no abuse of discretion in the weight assigned to this mitigating circumstance. 

Conley was nearly eighteen years of age and functioned at a normal intelligence level. 

Conley had no criminal history. This is a mitigating factor. I.C. § 35-50-9-2(c)(1). 

Again, the trial court gave this “some” weight but noted Conley admitted to smoking marijuana 

and drinking alcohol. We believe the trial court properly weighed this factor. See Krempetz, 

872 N.E.2d 605 (Ind. 2007); Losch v. State, 834 N.E.2d 1012, 1013 (Ind. 2005). In Losch, the 

trial court noted the defendant’s lack of any adult criminal convictions would be a substantial 

mitigating factor, but were properly given only minimal weight when it was taken into account 

that the defendant continuously used marijuana since age thirteen and stole money from his 

family. 834 N.E.2d at 1014. Similarly, in Krempetz, the defendant had no adult convictions, but 

that was discounted because of defendant’s drug use and stealing. 872 N.E.2d at 614. Again, we 

find no abuse of discretion in the weight assigned by the trial court. Conley’s lack of criminal 

history was offset by his actual criminal behavior of smoking marijuana and drinking alcohol.

The next proffered mitigator was Conley’s mental or emotional health. I.C. § 35-50-2-

9(c)(2). The trial court gave limited weight to Conley’s mental or emotional disturbance when 

he carried out the murder. The trial court must consider several factors in determining what 

weight to give to evidence of mental illness. Krempetz, 872 N.E.2d at 615. The trial court must 

consider “(1) the extent of the defendant’s inability to control his or her behavior due to the 

disorder or impairment; (2) overall limitations on functioning; (3) the duration of the mental 

illness; and (4) the extent of any nexus between the disorder or impairment and the commission 
9

of the crime.” Id. (citing Archer v. State, 689 N.E.2d 678, 685 (Ind. 1997)). In this case, all 

three doctors who testified confirmed that Conley “understood the wrongfulness of his actions 

and is criminally responsible.” The trial court noted inconsistencies in Conley’s statements. 

Conley told some doctors he suffered from hallucinations but denied that to another. Conley told 

Dr. Parker he used gloves during the murder because he could not handle touching Conner and 

placed a bag over Conner’s head to avoid looking at him. Conley told police he used gloves and 

the bag to lessen fingerprints and blood. 

Conley’s story was also inconsistent when he told Dr. Parker that no one knew of his 

suicide attempts, but Conley told Dr. Olive his parents knew. The trial court also noted Conley’s 

mother testified that Conley’s cuts in a claimed suicide attempt were superficial, and no 

electrical breakers tripped in another alleged suicide attempt of placing a space heater in a 

bathtub. In another example, Conley denied to all three doctors to ever being sexually molested, 

but the week before trial Conley told Dr. Conner he had been. We find no abuse of discretion in 

the trial court’s weighing of this factor. 

Conley also argues no weight was given to his lack of capacity to appreciate the 

criminality of conduct. In fact, the trial court found just the opposite, that Conley indeed did 

have the capacity to appreciate the criminality of his conduct, and thus gave no weight to the 

mitigator. The trial court relied, in part, on the testimony of defense expert Dr. Conner, who 

concluded that “at the time of the crime his executive functioning was not suspended and he was 

able to make rational decisions.” Krempetz is on point in giving minimal weight to defendant’s 

mental condition when (1) there was no evidence defendant had an inferior intellect, (2) 

defendant was able to fully function on a daily basis, (3) defendant accepted full and complete 

responsibility for his commission of the offense of murder by entering a plea of guilty, (4) 

defendant self medicated with marijuana, and (5) the doctor testified that defendant was 

manipulative and deceptive. 872 N.E.2d at 615. Again, we find no abuse of discretion. 

Finally, the statute provides for “other circumstances appropriate for consideration.” I.C.

§ 35-50-2-9(c)(8). The trial court next gave “some” weight to Conley’s cooperation with 

authorities, reasoning the crime would be easily discovered regardless of Conley’s confession. 
10

However, the trial court gave no weight to Conley’s remorse as a mitigating factor, finding it to 

be “superficial given the horrendous nature of the crime.” 

Judge Humphrey gave a detailed appraisal of each mitigating circumstance as he weighed 

them against the sole aggravator of Conner’s youth. We find the trial court was within its sound 

discretion in ultimately concluding that the aggravating factor outweighed the mitigating factors. 

We find the trial court’s sentencing statement, spanning thirty pages, was detailed and explained 

its rationale for awarding weight, or affording no weight, to each and every mitigating 

circumstance proffered by Conley. Again, the standard of review is a manifest abuse of 

discretion. Covington v. State, 842 N.E.2d 345, 348 (Ind. 2006). We find no abuse of discretion 

by the trial court. 

It is also appropriate to discuss the Supreme Court’s recent decision, Miller v. Alabama, 

132 S.Ct. 2455 (2012). The Supreme Court held that “mandatory life without parole for those 

under the age of 18 at the time of their crimes violates the Eighth Amendment’s prohibition on 

‘cruel and unusual punishments.’” Miller 132 S.Ct. at 2460. The Court’s opinion discusses “two 

strands of precedent reflecting our concern with proportionate punishment.” Id. at 2463. The 

first strand of precedent the Supreme Court refers to is the Graham and Roper line of cases, 

respectively providing that the Eighth Amendment bars capital punishment for juveniles, and 

prohibits a sentence of life without the possibility of parole for juveniles who committed 

nonhomicide offenses. Id. at 2458. The most fundamental take away from Graham was that 

“youth matters in determining the appropriateness of a lifetime of incarceration without the 

possibility of parole.” Id. This strand, the Supreme Court writes, is focused on the sentencer 

taking into account youth. “By removing youth from the balance—by subjecting a juvenile to 

the same life-without-parole sentence applicable to an adult—these laws prohibit a sentencing 

authority from assessing whether the law’s harshest term of imprisonment proportionately 

punishes a juvenile offender.” Id. at 2466. 

The second strand of precedent references the body of law that has held mandatory death 

sentences violate the Eighth Amendment. In these cases, the Supreme Court noted it was 

especially important that the sentencer have the opportunity to consider the “mitigating qualities 

of youth.” Miller, 132 S.Ct. at 2467 (quoting Johnson v. Texas, 509 U.S. 350, 367 (1993)). 
11

These two strands lead us to find that imposing a mandatory life-without-parole upon a juvenile 

precludes the sentencer from taking into account the defendant’s youth and various issues related 

to defendant’s youth, such as a “failure to appreciate risks and consequences.” Id. at 2468. The 

Supreme Court further wrote that they would require a sentencer “to take into account how 

children are different, and how those differences counsel against irrevocably sentencing them to 

a lifetime in prison.” Id. at 2469. We hold that Judge Humphrey did just that in the present case. 

Finally, we note the Supreme Court mentioned Indiana as being one of fifteen jurisdictions 

where life without parole for juveniles was discretionary, and therefore not unconstitutional in 

violation of the Eighth Amendment. Id. at 2472 n.10. 

III. Indiana Appellate Rule 7(B)

A sentence authorized by statute can be revised where it is inappropriate in light of the 

nature of the offense and the character of the offender. Ind. Appellate Rule 7(B). Appellate Rule 

7(B) analysis is not to determine “whether another sentence is more appropriate” but rather 

“whether the sentence imposed is inappropriate.” King v. State, 894 N.E.2d 265, 268 (Ind. Ct. 

App. 2008). It is not a matter of second guessing the trial court sentence. Sentence review under 

Appellate Rule 7(B) is very deferential to the trial court. Felder v. State, 870 N.E.2d 554, 559 

(Ind. Ct. App. 2007). The burden is on the defendant to persuade the appellate court that his 

sentence is inappropriate. Childress v. State, 848 N.E.2d 1073, 1080 (Ind. 2006). 

Therefore, when reviewing a sentence, our principal role is to “leaven the outliers” rather 

than necessarily achieve what is perceived as the “correct” result. Cardwell v. State, 895 N.E.2d 

1219, 1225 (Ind. 2008). We do not look to determine if the sentence was appropriate; instead we 

look to make sure the sentence was not inappropriate. King, 894 N.E.2d at 268. 

The nature of the offense is a crime of unimaginable horror and brutality. While 

babysitting his little brother, a nearly eighteen-year-old murdered his ten-year-old brother, with 

his bare hands. Conley was in a position of trust over his brother. He murdered his little brother 

in the very place Conner should have felt the safest. Conner was choked from behind until he

passed out, bleeding from the mouth and nose. Conner was still alive as Conley drug him into 

the kitchen, put on gloves, and for a second time choked Conner. The choking went on for 

approximately twenty minutes. Conner was still alive. Conley placed a bag over Conner’s head. 
12

Conner ultimately died due to this asphyxiation. Conley drug Conner’s body down a set of 

stairs, slamming the head on concrete to ensure Conner was dead. Conner’s dying words were 

“Andrew stop.”

This was a drawn out crime. Conner suffered unimaginable horror. Conley had 

opportunities to stop murdering his brother with his own hands. Conley had a number of 

opportunities to stop his actions and get medical help for Conner. Instead, he continued. This 

was not a nearly instantaneous death by a bullet. This was death by the hands of the person in 

charge of protecting Conner. The brutal nature of this crime does not move this Court to believe 

the sentence is inappropriate. 

Defendant claims he should be given leniency due to his alleged mental illness. 

Following five days of testimony and one-hundred-fifty-five exhibits, the trial court determined 

that Conley’s mental health was not as dire or disturbed as the defendant claimed. Instead, the 

evidence suggests a hardened character. Speaking with his parents following the murder of his 

brother, Conley went about a normal day, even asking his father for a condom. Conley seemed 

happy. This is in line with the doctors who testified at the trial. While Conley may have had 

some mental or emotional disturbance, he still retained the mental capacity to control his 

conduct. Conley visited with his girlfriend, even giving her a promise ring, while Conner lay 

dead in the trunk of the car. Conley watched football the following day. It was not until after 

Conley was told to go pick Conner up from his grandmother’s house, that the reality began to set 

in. Conley had no escape, no way of avoiding what he had done. The sentence of life without 

parole was appropriate in light of the defendant’s character and the nature of this offense. 

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

The constitutionality of statutes is reviewed de novo. State v. Moss-Dwyer, 686 N.E.2d 

109, 110 (Ind. 1997). Such review is “highly restrained” and “very deferential,” beginning “with 

[a] presumption of constitutional validity, and therefore the party challenging the statute labors 

under a heavy burden to show that the statute is unconstitutional.” Id. at 111–12. The United 

States Supreme Court has held it is cruel and unusual punishment for an individual under the age 

of eighteen to be sentenced to life without parole for a non-homicide crime. Graham v. Florida, 

130 S. Ct. 2011 (2010). As we mentioned above, the Supreme Court recently decided Miller v. 
13

Alabama, holding a mandatory sentencing scheme of life-without-parole for juveniles is 

unconstitutional under the Eighth Amendment.

2

 

In order to determine whether a punishment is cruel and unusual, the Supreme Court 

“look[s] beyond historical conceptions to the evolving standards of decency that mark the 

progress of a maturing society.” Graham, 130 S. Ct. at 2021 (internal quotations omitted). “The 

basic concept underlying the Eighth Amendment is nothing less than the dignity of man. While 

the State has the power to punish, the Amendment stands to assure that this power be exercised 

within the limits of civilized standards.” Trop v. Dulles, 356 U.S. 86, 100 (1958) (plurality 

opinion). The applicability of what is cruel and unusual punishment changes “as the basic mores 

of society change.” Kennedy v. Louisiana, 554 U.S. 407, 419 (2008). 

We first note that Conley was born on May 14, 1992, and he murdered his brother on 

November 28, 2009. He was seventeen years, six months, and two weeks old. He pleaded guilty 

on September 13, 2010, and was sentenced on October 15, 2010, at the age of eighteen years and 

five months. Our review of other states reveals that the overwhelming majority provide for the 

possibility of LWOP sentences to individuals under the age of eighteen.

3

 These decisions have 

been made by the legislature. The legislature has made a policy decision that this is what we 

want to do. The Eleventh Circuit has written, “the death penalty is not required to deter juveniles 

from committing murder because a life without parole sentence is deterrence enough, 

particularly for a juvenile.” Loggins v. Thomas 654 F.3d 1204, 1223 (11th Cir. 2011). In Roper 

v. Simmons, 543 U.S. 551 (2005), the United States Supreme Court held that it was cruel and 

unusual punishment to sentence an individual under the age of eighteen to death. However, 

Roper recognized that life without parole was still a viable sentence for juveniles, noting the 

LWOP sentence was a severe enough sanction to not need the death penalty for juveniles. 543 

U.S. at 572. The implication of Roper, then, is that a sentence of life without parole for a 

 

2 We held Oral Argument on November 14, 2011, at Indiana University South Bend. The Eighth

Amendment Constitutional issue had not been briefed by either party. We asked the parties to amend 

their briefs to address this issue. Briefing was completed February 28, 2012. 

3 Only Alaska, Colorado, Kansas, Kentucky, Maine, Montana, New Mexico, New York, Oregon, Texas, 

and West Virginia do not allow for LWOP sentences for those under the age of 18. National Conference 

of State Legislatures, Juvenile Life Without Parole (JLWOP), February 2010, (available at 

www.ncsl.org/documents/cj/jlwopchart.pdf) (last viewed June 27, 2012). 
14

juvenile convicted of homicide is constitutional. Loggins v. Thomas, 654 F. 3d 1204, 1222 (11th

Cir. 2011). Recent opinions have been handed down by Nebraska,4and Missouri5upholding as 

constitutional an LWOP sentence to a juvenile who commits murder under the United States

Constitution and their state constitutions. 

As other states have held, and we agree, defendant’s Roper and Graham analysis is 

flawed because “Roper expressly and Graham implicitly recognize that life without parole is not 

cruel and unusual punishment for a minor who is convicted of a homicide.” Missouri v. 

Andrews, 329 S.W.3d 369, 376–77 (Mo. 2010). As Justice Zel Fischer wrote, 

In Roper, the Court responded to the argument that the possibility of the death 

penalty was necessary to deter minors from committing homicides by noting that 

the punishment of life without parole is a severe enough sanction to serve as 

deterrence. 543 U.S. at 572, 125 S. Ct. 1183. In Graham, the Court recognized 

that a line existed “between homicide and other serious violent offenses against 

the individual.” 130 S. Ct. at 2027 (internal citations omitted). Defendants who 

commit nonhomicide offenses, therefore, are “categorically less deserving of the 

most serious forms of punishment than are murders.” Id. Even defendants who 

commit crimes that cause serious bodily harm to another individual cannot be 

compared to murders with regard to the severity and irrevocability of their crimes. 

Id. By illustrating the differences between all other juvenile criminals and 

murderers, the Court implies that it remains perfectly legitimate for a juvenile to 

receive a sentence of life without parole for committing murder. 130 S. Ct. at 

2027. The chief justice further notes that there is “nothing inherently 

unconstitutional about imposing sentences of life without parole on juvenile 

offenders.” 130 S. Ct. at 2041 (Roberts, C.J., concurring).

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

The Missouri opinion further notes that there are many cases prior to Roper and Graham

that hold a life without parole sentence for a juvenile homicide offender would not violate the 

Eighth Amendment, and the following post-Roper cases continue to hold a life without the 

possibility of parole sentence for a juvenile homicide offender continues to be constitutionally 

permissible: State v. Pierce, 225 P.3d 1146, 1147 (Ariz. Ct. App. 2010) (stating that in Roper, 

“[t]he [Supreme] Court expressly intimated that a natural life sentence for a juvenile who 

committed murder is not unconstitutionally cruel and unusual”); State v. Allen, 958 A.2d 1214, 

 

4

State v. Golka, 796 N.W.2d 198 (Neb. 2011).

5 Missouri v. Andrews, 329 S.W. 3d 369 (Mo. 2010).
15

1236 (Conn. 2008) (“The courts are in consensus, however, that the United States Supreme 

Court clearly has signaled that [a life without parole] sentence [for a juvenile offender] does not 

violate the [E]ighth [A]mendment.”); Wallace v. State, 956 A.2d 630, 641 (Del. 2008) 

(concluding that “the United States Supreme Court, in Roper, would not have recognized a 

sentence of life without parole as an acceptable alternative to death as a punishment for juveniles 

who commit intentional Murder in the First Degree, if such a sentence would violate the Eighth 

Amendment.”). And we further underscore our analysis of the Supreme Court’s recent decision 

in Miller v. Alabama and note it deals solely with the issue of mandatory sentencing schemes 

requiring life-without-parole for juveniles. In fact, as the Supreme Court specifically noted 

Indiana was one of fifteen states where life without parole was discretionary. As they wrote,

According to available data, only about 15% of all juvenile life-without-parole 

sentences come from those 15 jurisdictions, while 85% come from the 29 

mandatory ones. See Tr. Of Oral Arg. In No. 10-9646, p. 19; Human Rights 

Watch, State Distribution of Youth Offenders Serving Juvenile Life Without 

Parole (JLWOP), Oct. 2, 2009, online at http://www.hrw.org/news/2009/10/02/

state-distribution-juvenile-offenders-serving-juvenile-life-withut-parole (as visited 

June 21, 2012, and available in Clerk of Court’s case file). That figure indicates 

that when given the choice, sentencers impose life without parole on children 

relatively rarely. And contrary to The Chief Justice’s argument, see post, at 2462, 

n. 2, we have held that when judges and juries do not often choose to impose a 

sentence, it at least should not be mandatory. See Woodson v. North Carolina, 

428 U.S. 280, 295–296 (1976) (plurality opinion) (relying on the infrequency with 

which juries imposed the death penalty when given discretion to hold that its 

mandatory imposition violates the Eighth Amendment).

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

unconstitutional is not altered by Miller. 

We now turn to the state constitutional analysis. The Indiana Constitution can provide 

more protections than the United States Constitution provides. Justice v. State, 552 N.E.2d 844, 

847 (Ind. Ct. App. 1990). Our Constitution provides in pertinent part “Cruel and unusual 

punishments shall not be inflicted. All penalties shall be proportioned to the nature of the 

offense.” Ind. Const. art. 1, § 16. “The penal code shall be founded on the principles of 

reformation, and not of vindictive justice.” Ind. Const. art. 1, § 18. Although the language is 

not the same as the United States Constitution, the protections are the same. 
16

“The constitutional prohibition against cruel and unusual punishments proscribes 

atrocious or obsolete punishments and is aimed at the kind and form of the punishment, rather 

than the duration or amount.” Dunlop v. State, 724 N.E.2d 592, 597 (Ind. 2000). The 

punishment will be deemed cruel and unusual under Article 1, Section 16 “if it makes no 

measurable contribution to acceptable goals of punishment, but rather constitutes only 

purposeless and needless imposition of pain and suffering.” Id. (internal citations and 

quotations omitted). “[L]ife imprisonment without parole does not constitute cruel and unusual 

punishment.” Id. 

Conley correctly points out that he is only the fourth juvenile sentenced to a life-withoutparole sentence, following Daniel Boyd,

6

sentenced in 1997 for killing a sixty-five-year-old man; 

Larry Newton,

7

sentenced for the 1994 murder of a Ball State student; and Greg Dickins,8

sentenced in 2001 after shooting a police officer. Life without parole is reserved for use in only 

the most heinous of crimes that so shock our conscience as a community. If retribution was the 

goal, as Conley has stated, life without parole would be far more frequently used in Indiana. We 

hold that life without parole is not an unconstitutional sentence under the Indiana constitution

under these circumstances. 

 

6 Conley cites Boyd as being one of three juveniles serving such a sentence. Conley cites no authority, 

and a search returns no appellate citation to a Daniel Boyd. Perhaps Boyd accepted a plea agreement in 

lieu of the prosecution dismissing the death penalty. A review of the Indiana Department of Correction 

Offender Date shows Boyd was born October 17, 1977, and was sentenced for murder to life without

parole on June 27, 1997. See Indiana Department of Correction Offender Data (available at 

www.in.gov/apps/indcorrection.ofs), (last visited June 27, 2012). Boyd was likely near the age of 

eighteen when the murder was committed. 

7 On September 24, 1994, Larry Newton and friends were drinking in a graveyard near Ball State’s 

campus. Newton decided he wanted to go to campus and rob someone and stated, “I’m hyped and I feel 

like killing somebody.” Once there, Newton and friends found a male returning from walking a female 

friend home. Newton shot the male in the back of the head. Turner v. State, 682 N.E.2d 491, 493–494 

(Ind. 1997); Newton v. State, 894 N.E.2d 192 (Ind. 2008). Newton’s date of birth is November 9, 1976,

and the crime occurred on September 24, 1994, making Newton seventeen and ten months of age at the 

time the crime occurred. See Indiana Department of Correction Offender Data (available at 

www.in.gov/apps/indcorrection/ofs), (last visited June 27, 2012). 

8

In 1997, a sixteen-year-old Dickens was riding his bike with a friend when the officer observed Dickens 

riding a potentially stolen bike. The officer approached them in his patrol car, and they fled to a home. 

The officer followed Dickens onto the porch, and Dickens shot the officer in the head, killing him. 

Dickens v. State, 754 N.E.2d 1, 3–4 (Ind. 2001). 
17

Conclusion

The heinous facts of this crime are difficult to comprehend. A seventeen-and-a-halfyear-old caring for his ten-year-old brother murdered the defenseless child with his bare hands. 

After disposing of the body, Conley acted as if nothing was out of the ordinary. He took steps to 

cover up the crime and hid his brother’s body in a park. The aggravating factor was clearly 

established and uncontroverted. The judge was within his discretion in weighing the mitigating 

factors in the manner in which he did. Ultimately, we find no abuse of discretion in Judge 

Humphrey’s analysis of those factors and ultimate sentence of life without parole. Also, the trial 

court did not abuse its discretion in admitting the testimony of Dr. Daum. Finally, the imposition 

of life without parole to a convicted murderer under the age of eighteen in Indiana is in line with 

the rest of the nation in holding such a sentence is constitutional. We affirm Conley’s sentence 

of life without parole. 

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

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

At the age of seventeen Andrew Conley murdered his ten-year-old brother. I agree with 

the majority that Dr. Daum’s testimony was properly admitted and I do not believe the trial court 

manifestly abused its discretion in weighing aggravating and mitigating circumstances in this 

case. However, I do not agree Conley should have been sentenced to die in prison. Therefore I 

respectfully dissent.

The United States Constitution prohibits “cruel and unusual punishment.” U.S. Const. 

amend. VIII. Such punishment is an excessive sanction violating the “basic ‘precept of justice 

that punishment for crime should be graduated and proportioned’ to both the offender and the 

offense.” Miller v. Alabama, No. 10-9646, slip op. at 6 (U.S. June 25, 2012) (quoting Roper v. 

Simmons, 543 U.S. 551, 560 (2005)). Whether a juvenile’s sentence of life without parole 

constitutes “cruel and unusual punishment” is an issue of national and international import as 

well as the subject of much scholarly literature. See generally, e.g., Miller, No. 10-9646; Connie 

de la Vega & Michelle Leighton, Sentencing Our Children to Die in Prison: Global Law and 

Practice, 42 U.S.F.L. Rev. 983 (2008). To determine whether a punishment violates the Eighth 

Amendment, courts must look beyond historical conceptions to “the evolving standards of 

decency that mark the progress of a maturing society.” Graham v. Florida, 130 S. Ct. 2011, 2021

(2010) (quoting Estelle v. Gamble, 429 U.S. 97, 102 (1976)).

9

 

 

9 Like the U.S. Constitution, the Indiana Constitution also prohibits cruel and unusual punishment. See

Ind. Const. art. 1, § 16 (“Cruel and unusual punishments shall not be inflicted.”). Protections afforded 

under Indiana’s Constitution are not necessarily coextensive with those provided by the Federal 

Constitution, and our analysis of many Constitutional issues frequently does not follow in lockstep with 

the federal analysis. See, e.g., Litchfield v. State, 824 N.E.2d 356, 359 (Ind. 2005) (applying different 

analysis for reasonableness of a police search); Collins v. Day, 644 N.E.2d 72, 75 (Ind. 1994) (identifying 

independent analyses for Indiana Privileges and Immunities and Federal Equal Protection clauses). 

“Punishment is cruel and unusual under Article 1, Section 16 if it makes no measurable contribution to 

acceptable goals of punishment, but rather constitutes only purposeless and needless imposition of pain 

and suffering.” Dunlop v. State, 724 N.E.2d 592, 597 (Ind. 2000) (internal quotations omitted). Further, 

“[t]he penal code shall be founded on the principles of reformation, and not of vindictive justice.” Ind. 

Const. art. 1, § 18. This Court has held that life imprisonment without parole is not per se cruel and 

unusual punishment. Dunlop, 724 N.E.2d at 597. But prior to this case we have never considered 

specifically whether life imprisonment without parole may be unconstitutional as applied to juveniles.
2

When examining a punishment for categorical compliance with the Eighth Amendment, 

the Supreme Court exercises its “own independent judgment whether the punishment in question 

violates the Constitution,” Graham, 130 S. Ct. at 2022, and considers “‘objective indicia of 

society’s standards, as expressed in legislative enactments and state practice’ to determine 

whether there is a national consensus against the sentencing practice at issue.” Id. (quoting

Roper, 543 U.S. at 563-64).

Employing this analysis, the Supreme Court has held death sentences for those under the 

age of eighteen violate the Eighth Amendment, Roper, 543 U.S. at 568, and has held life without 

parole sentences for juveniles committing crimes other than homicide to be similarly offensive, 

Graham, 130 S. Ct. at 2030.

10

 And the Supreme Court very recently held that sentencing 

schemes mandating life without parole for those under the age of 18 at the time of their crimes –

including homicide crimes – violate the Eighth Amendment, because a juvenile has “‘lessened 

culpability’ and greater ‘capacity for change,’” and because precedent requires “individualized 

sentencing for defendants facing the most serious penalties.” Miller, No. 10-9646, slip op. at 1-2 

(quoting Graham, 130 S. Ct. at 2026, 2030).11 Based on the reasoning advanced in these cases, 

Conley argues that any sentence of life without parole for all juvenile offenders is 

unconstitutional, even for those who commit homicide. 

The Supreme Court has found even where a majority of jurisdictions may statutorily 

permit a particular sentence, “an examination of actual sentencing practices” may “disclose[] a 

consensus against its use.” Graham, 130 S. Ct. at 2023. In Miller, the Supreme Court identified 

Indiana as one of fifteen states permitting discretionary life without parole sentences for 

juveniles. And as the Miller Court noted, in jurisdictions where juvenile life without parole 

sentences are discretionary, such sentences are unusual. Miller, No. 10-9646, slip op. at 21-22 

n.10. (“[W]hen given the choice, sentencers impose life without parole on children relatively 

 

10 Roper concerned a seventeen-year-old sentenced to death for planning and executing a horrifying crime 

that included burglary, kidnapping, and murder. Roper, 543 U.S. at 556-57. Graham involved a sixteenyear-old sentenced to life without parole for first-degree felony armed burglary with assault or battery. 

Graham, 130 S. Ct. at 2018.

11 The defendants in Miller were fourteen-year-olds convicted of homicide. Both were sentenced to life

without parole under two different mandatory state sentencing statutes.
3

rarely.”). Of the 421 juveniles serving life without parole sentences in these states, 348 – 83% –

were confined in only four states: Arizona, California, Mississipi, and Oklahoma. See Nat’l 

Conference of State Legislatures, Juvenile Life Without Parole (JLWOP) (2010), 

http://www.ncsl.org/documents/cj/jlwopchart.pdf (table of U.S. jurisdictions listing juvenile life 

without parole sentences by jurisdiction and noting in which jurisdictions life without parole 

sentences are entirely discretionary). According to Federal Bureau of Investigation statistics, 

juveniles committed 45,429 murders between 1980 and 2009. See C. Puzzanchera & W. Kang, 

Easy Access to the FBI’s Supplementary Homicide Reports: 1980-2009 (2010), 

http://ojjdp.gov/ojstatbb/ezashr/ (national homicide database permitting selection of results by 

age of offender and year of incident). As of February 2010, 2,465 U.S. juveniles were serving 

life without parole for homicide offenses. See Nat’l Conference of State Legislatures, supra. 

These numbers, while not providing an exact comparison, tend to confirm that as a matter of 

overall proportion to the opportunities for its imposition, life without parole sentences for 

juveniles convicted of homicide crimes is quite infrequent – occurring in less than 6% of juvenile 

homicide prosecutions. Accord Graham, 130 S. Ct. at 2024-25 (analyzing statistics of juvenile 

life without parole sentences for non-homicide crimes and concluding that “in proportion to the 

opportunities for its imposition, life without parole sentences for juveniles convicted of 

nonhomicide crimes is as rare as other sentencing practices found to be cruel and unusual”). 

In cases holding certain punishments categorically unconstitutional as to juveniles, the 

Supreme Court has found confirmation for its judgment on these matters by reviewing accepted 

practice in the international community. Roper, 543 U.S. at 575. For many years the Court “has 

referred to the laws of other countries and to international authorities as instructive for its 

interpretation of the Eighth Amendment’s prohibition of ‘cruel and unusual punishments.’” Id.

And as it relates to juvenile life without parole sentences – even for homicide crimes – “[t]he 

United States is the only country in the world that does not comply with the norm against 

imposing life without possibility of parole sentences on offenders who are under the age of 18 at 

the time of the offense.” Brief for Amnesty International, et al. as Amici Curiae Supporting 

Petitioners, Miller v. Alabama, No. 10-9646 and Jackson v. Hobbs, No. 10-9647, 2012 WL 

174238, at *2. According to an article cited by the Supreme Court in Graham, 130 S. Ct. at 

2033, “Most governments have either never allowed, expressly prohibited, or will not practice 
4

[life without parole] sentencing on child offenders because it violates the principles of child 

development and protection established through national standards and international human 

rights law.” de la Vega & Leighton, supra, at 989. In fact, “[t]here are now at least 135 

countries that have expressly rejected the sentence via their domestic legal commitments, and 

185 countries that have done so in the U.N. General Assembly.” Id.

Further, it is notable that exposure of juveniles to life without parole sentences is 

frequently the result of the increased prevalence of statutes permitting or mandating transfer of 

juveniles into adult court. See Id. at 991-92. As the Supreme Court has recognized, “transfer 

laws show ‘that the States consider 15-year-olds to be old enough to be tried in criminal court for 

serious crimes (or too old to be dealt with effectively in juvenile court), but tell[] us nothing 

about the judgment these States have made regarding the appropriate punishment for such 

youthful offenders.’” Graham, 130 S. Ct. at 2025 (quoting Thompson v. Oklahoma, 487 U.S. 

815, 826 n.24 (1988) (plurality opinion) (emphasis in original). See also Miller, No. 10-9646, 

slip op. at 23. In Conley’s case, he was exposed to a life without parole sentence by virtue of 

Indiana Code section 31-30-1-4(a)(2) which provides: “The juvenile court does not have 

jurisdiction over an individual [at least 16 years of age] for an alleged violation of . . . IC 35-42-

1-1 (murder).” 

But the key in the Supreme Court’s Eighth Amendment analysis in juvenile cases is its 

“judicial exercise of independent judgment” which “requires consideration of the culpability of 

the offenders at issue in light of their crimes and characteristics, along with the severity of the 

punishment in question” together with a determination of whether the sentence at issue serves 

legitimate penological goals. Graham, 130 S. Ct. at 2026. With respect to juvenile offenders, 

these inquiries are underpinned by the Supreme Court’s repeated recognition that juveniles are 

less culpable than adults and therefore are less deserving of the most severe punishments. See

Id. 

The presumption that juveniles are generally less culpable than adults is based on 

extensive past and ongoing “‘developments in psychology and brain science [which] continue to 

show fundamental differences between juvenile and adult minds’” – for example, in “parts of the 
5

brain involved in behavior control.’” Miller, No. 10-9646, slip op. at 9 (quoting Graham, 130 S. 

Ct. at 2026). As the Supreme Court has observed, there are “three significant gaps between 

juveniles and adults.” Id. at 8. First, “[a]s compared to adults, juveniles have a ‘lack of maturity 

and an underdeveloped sense of responsibility.’” Graham, 130 S. Ct. at 2026 (quoting Roper, 

543 U.S. at 569). Second, “they ‘are more vulnerable or susceptible to negative influences and 

outside pressures, including peer pressure,’” id. (quoting Roper, 543 U.S. at 569), and “they have 

limited ‘control over their own environment’ and lack the ability to extricate themselves from 

horrific, crime-producing settings.” Miller, No. 10-9646, slip op. at 8 (quoting Roper, 543 U.S. 

at 569). Finally, “a child’s character is not as ‘well formed’ as an adult’s . . . and his actions 

[are] less likely to be ‘evidence of irretrievable depravity.’” Id. (quoting Roper, 543 U.S. at 

570). “These salient characteristics mean ‘it is difficult even for expert psychologists to 

differentiate between the juvenile offender whose crime reflects unfortunate yet transient 

immaturity, and the rare juvenile offender whose crime reflects irreparable corruption.’” 

Graham, 130 S. Ct. at 2026 (quoting Roper, 543 U.S. at 573). Even justices not finding 

categorical Eighth Amendment violations in these juvenile cases agree with this precept. See

Graham, 130 S. Ct. at 2039 (Roberts, C.J., concurring in the judgment) (“Roper’s conclusion that 

juveniles are typically less culpable than adults has pertinence beyond capital cases.”); Roper, 

543 U.S. at 599 (O’Connor, J., dissenting) (“It is beyond cavil that juveniles as a class are 

generally less mature, less responsible, and less fully formed than adults, and that these 

differences bear on juveniles’ comparative moral culpability.”). 

Using this backdrop, the Supreme Court has recognized that “life without parole is the 

‘second most severe penalty permitted by law,’” Graham, 130 S. Ct. at 1027 (quoting Harmelin 

v. Michigan, 501 U.S. 957, 1001 (1991) (Kennedy, J., concurring in part and concurring in the 

judgment)), and “the distinctive attributes of youth diminish the penological justifications for 

imposing the harshest sentences on juvenile offenders, even when they commit terrible crimes.” 

Miller, 10-9646, slip op. at 9. The Miller opinion highlighted how the goals of retribution, 

deterrence, incapacitation, and rehabilitation are not served by sentencing juveniles to life 

without parole. See id. at 9-10 (noting that retribution makes less sense the less culpable the 

offender; deterrence against juveniles has limited effect as the attributes of youth “make them 

less likely to consider potential punishment”; incapacitation of a juvenile is only justified where 
6

the juvenile is incorrigible, and “‘incorrigibility is inconsistent with youth’”; the sentence of life 

without parole “‘forswears altogether the rehabilitative ideal’” (quoting Graham, 130 S. Ct. at 

2029-30)). As the Court aptly put it in assessing life without parole for juvenile non-homicide 

crimes: “[T]his sentence ‘means denial of hope; it means that good behavior and character 

improvement are immaterial; it means that whatever the future might hold in store for the mind 

and the spirit of the [juvenile] convict, he will remain in prison for the rest of his days.’” 

Graham, 130 S. Ct. at 2027 (quoting Naovarath v. State, 779 P.2d 944, 944 (Nev. 1989)). 

The Miller Court limited its holding of unconstitutionality to mandatory juvenile life 

without parole sentences, stating, “[b]ecause that holding is sufficient to decide these cases, we 

do not consider Jackson’s and Miller’s alternative argument that the Eighth Amendment requires 

a categorical bar on life without parole for juveniles, or at least for those 14 and younger.” 

Miller, 10-9646, slip op. at 17. The thrust behind the Miller holding is that juvenile sentencing 

decisions must be individualized because, given the diminished culpability of juvenile offenders, 

there is a greater risk that a life without parole sentence will violate the Eighth Amendment. A 

sentencing court therefore must consider youth and its attendant characteristics – “and how those 

differences counsel against irrevocably sentencing [children] to a lifetime in prison.” Id.

Conley was not sentenced under a mandatory scheme like those held unconstitutional in 

Miller. But the Miller decision does not preclude a conclusion that Conley’s sentence is 

unconstitutional. It is the consideration of those very things that a mandatory scheme prohibits –

such as the juvenile defendant’s abuse by his stepfather, his regular use of drugs and alcohol, and 

his four suicide attempts, see id., at 4 – that may lead to a conclusion that a particular sentence, 

when applied to a particular youth, violates the Eighth Amendment. As the Court stated:

Most fundamentally, Graham insists that youth matters in 

determining the appropriateness of a lifetime of incarceration 

without the possibility of parole. In the circumstances there, 

juvenile status precluded a life without parole sentence, even 

though an adult could receive it for a similar crime. And in other 

contexts as well, the characteristics of youth, and the way they 

weaken rationales for punishment, can render a life-without-parole 

sentence disproportionate. “An offender’s age,” we made clear in 

Graham, “is relevant to the Eighth Amendment,” and so “criminal 
7

procedure laws that fail to take defendants’ youthfulness into 

account at all would be flawed.” The Chief Justice, concurring in 

the judgment, made a similar point. Although rejecting a 

categorical bar on life-without-parole sentences for juveniles, he 

acknowledged “Roper’s conclusion that juveniles are typically less 

culpable than adults,” and accordingly wrote that “an offender’s 

juvenile status can play a central role” in considering a sentence’s 

proportionality. 

Miller, 10-9646, slip op. at 10-11 (quoting Graham, 130 S. Ct. at 2031; 130 S. Ct. at 2039 

(Roberts, C.J., concurring in the judgment)). 

In his concurrence in Graham, the Chief Justice applied a “narrow proportionality” 

review to determine if a life without parole sentence as to Graham in particular violated the 

Eighth Amendment. The Chief Justice recognized the purpose of such a review is not to 

“second-guess” the decisions of legislatures or trial courts, as “the Eighth Amendment does not 

require strict proportionality between the crime and the sentence.” Graham, 130 S. Ct. at 2037

(Roberts, C.J., concurring in the judgment) (quoting Ewing v. California, 538 U.S. 11, 23 

(2003)). Rather, it “forbids only extreme sentences that are grossly disproportionate to the

crime.” Id. (quoting Ewing, 538 U.S. at 23). Still, the Chief Justice concluded that based on the 

juvenile defendant’s lack of prior criminal convictions,12 the “difficult circumstances of his 

upbringing” (which included his parents’ drug addiction in his early years, his diagnosis with 

attention deficit hyperactivity disorder, and his use at a young age of alcohol, tobacco, and 

marijuana) and his youth (sixteen at the time of the crime), the sentence of life without parole 

was likely a grossly disproportionate punishment for his crime of first-degree felony armed 

burglary with assault or battery. Id. at 2040 (Roberts, C.J., concurring in the judgment). Chief 

Justice Roberts therefore concurred in the Court’s judgment that Graham’s sentence was 

unconstitutional. Id. at 2042 (Roberts, C.J., concurring in the judgment). 

As the majority here correctly recognizes, Roper, Graham, and Miller are certainly 

distinguishable from this case. And though Miller’s holding does not apply here, its admonition 

 

12 Although this was Graham’s first conviction, he had acknowledged committing “two or three” other 

robberies, and was at the time of this conviction also found guilty of a separate home invasion robbery 

and possessing a firearm. Graham, 130 S. Ct. at 2019. Further, Graham began drinking alcohol and 

using tobacco at age 9 and he smoked marijuana at age 13. Id. at 2018. 
8

does: “[G]iven all we have said in Roper, Graham, and this decision about children’s diminished 

culpability and heightened capacity for change, we think appropriate occasions for sentencing 

juveniles to this harshest possible penalty will be uncommon.” Miller, 10-9646, slip op. at 17 

(emphasis added). Ultimately I would find it unnecessary to decide this case on Constitutional 

grounds and would instead exercise this Court’s review and revise authority under Appellate 

Rule 7(B) to reduce Conley’s sentence to a term of years.

I agree that the trial court did not manifestly abuse its sentencing discretion in this case. 13 

Nonetheless, “[a]lthough a trial court may have acted within its lawful discretion in determining 

a sentence, Article VII, Sections 4 and 6 of the Indiana constitution ‘authorize[] independent 

appellate review and revision of a sentence imposed by the trial court.’” Anglemyer v. State, 

868 N.E.2d 482, 491 (Ind. 2007) (quoting Childress v. State, 848 N.E.2d 1073, 1080 (Ind. 

2006)). This authority is implemented through Indiana Appellate Rule 7(B), which allows a 

court on appeal to “revise a sentence authorized by statute if, after due consideration of the trial 

court’s decision, the Court finds that the sentence is inappropriate in light of the nature of the 

offense and the character of the offender.” Though we have long recognized that the maximum 

sentence permitted by law should be reserved for the very worst offenders, Bacher v. State, 686 

N.E.2d 791, 802 (Ind. 1997), the purpose of appellate review of sentences is “not to achieve a 

perceived ‘correct’ result in each case,” but rather to “leaven the outliers.” Cardwell v. State, 

895 N.E.2d 1219, 1225 (Ind. 2008).14 Appellate courts are not limited to the statutory mitigators 

and aggravators when considering a Rule 7(B) claim, but may look to other evidence in the 

record. See Roney v. State, 872 N.E.2d 192, 206 (Ind. Ct. App. 2007), trans. denied.

 

13 The Supreme Court in Miller made a point of requiring a juvenile’s sentence “to take into account how 

children are different, and how those differences counsel against irrevocably sentencing them to a lifetime 

in prison.” Miller, No. 10-9646, slip op. at 17 (emphasis added). It is not yet clear how this language 

might apply on appellate Eighth Amendment review of a particular juvenile’s sentence. Nevertheless, it 

seems clear to me that our “manifest abuse of discretion” standard for review of a trial court’s weighing 

of aggravators and mitigators is no substitute for an Eighth Amendment proportionality analysis.

14 According to the U.S. Department of Justice, less than one quarter of state homicide convictions in the 

year 2006 resulted in life without parole sentences. See Seth Rosenmerkel, et al., U.S. Dep’t of Justice 

Bureau of Justice Statistics, Felony Sentences in State Courts, 2006 – Statistical Tables at 7 (Table 1.4) 

(2010), http://bjs.ojp.usdoj.gov/content/pub/pdf/fssc06st.pdf. In fact, the median sentence in 2006 for 

homicide crimes – including those by adult offenders – was twenty-two years. See Id. at 6 (Table 1.3).
9

As to the nature of the offense, there is no question this was a brutal crime. Conley 

strangled his younger brother, asphyxiated him by covering his head with a plastic bag, placed 

him in the trunk of his car, then went to see his girlfriend. But this is not the entire inquiry under 

Rule 7(B). 

When considering Conley’s character, the majority focuses on Conley’s behavior during 

the crime and the next day. I would note in this regard that on the day after the murder – before 

anyone but two of his best friends knew of what happened – Conley drove himself to the police 

station where he told police he killed his brother. He waived his Constitutional rights15 and 

cooperated with police. Conley is very clearly distraught by what he did and cannot understand 

why he did it. Tr. at 617-18, 704. He even asked the psychologists assessing him after his arrest 

to help him get the death penalty for his crime. Tr. at 617, 704.

Conley’s upbringing was punctuated by his mother’s four marriages and the consequent 

changes in her living arrangements. See Depo. of Bridget Conley at 59-67.16 Conley’s 

interviews with psychologists after the crime indicated he had attempted suicide at least five 

times. Tr. at 521, 790. There was evidence of neglect by his mother, Tr. at 834-35, and that one 

of his stepfathers had anally raped him at age seven or eight. Tr. at 622.17 Even so, prior to 

committing this crime Conley had no convictions or juvenile adjudications of any kind. He was 

 

15 Because Conley was a minor, Conley’s mother (also the victim’s mother) was required to consent to 

this waiver, which she did. Tr. at 1022. She has not seen Conley since she became aware of the murder. 

See Depo. of Bridget Conley at 67. 

16 After the crime, Conley’s mother Bridget relocated outside of Indiana and was unavailable for trial. 

The parties agreed to conduct a deposition of Bridget Conley in lieu of her trial testimony. A video of the 

deposition was played on the record for the trial court at the sentencing hearing, and a copy of the 

transcript of the deposition was admitted as Exhibit 498A. See Tr. at 576-81; Depo. of Bridget Conley at 

5. Because the actual recording was not transcribed directly into the record, I refer to the Deposition 

Transcript in lieu of the Sentencing Hearing Transcript.

17 Conley’s counsel found out about the rape because Conley had confided about it to a friend before 

these events. The friend informed Conley’s counsel, who informed Dr. Conner, the consulting 

psychiatrist. When later asked by Dr. Connor why he hadn’t initially disclosed the molestation, Conley 

responded that “[h]e felt like . . . it was nasty, it was no one’s business, it didn’t really have anything to do 

with [these events].” Tr. at 626. In fact, when Dr. Connor asked Conley whether the molestation could 

be connected to what Conley did to his brother, Conley replied “I don’t see how it could be. They are two 

very different things.” Tr. at 623. Dr. Connor found that these responses – and the fact that Conley had 

not initially tried to use the molestation to his advantage – made Conley’s descriptions of this and other 

events of his childhood “more credible” rather than less so. See Tr. at 623-24.
10

by all accounts a model student and had a “great” relationship with his mother and brother. See

Tr. at 821 (testimony of Conley’s high school principal); Depo. of Bridget Conley at 6. See also

Tr. at 861 (testimony of Marsha Louden noting that the brothers seemed to have a “good 

relationship” and that Conley consistently made “sure Conner’s needs were met”); Tr. at 845 

(testimony of Conley’s maternal grandmother that “He’s always been a good boy,” and “He’s 

my best grandchild”). According to Conley’s mother, he received As and Bs “without even 

trying” but she knew he had the ability to get all As if he applied himself. Depo. of Bridget 

Conley at 7. See also Tr. at 678, 827 (testimony of long-time teachers of Conley’s). He had 

aspirations of going to college, and his best friend’s mother had taken him to make campus visits 

before beginning his senior year of high school. Tr. at 858-59; Appellant’s App. at 535. 

Then, abruptly about two weeks before killing his brother, Conley revealed to his mother 

that he wanted to kill himself and had tried to electrocute himself in the family bathtub. Depo. of 

Bridget Conley at 8, 13. He showed his mother that he had also cut himself all over his chest, 

arms, stomach and legs. See Depo. of Bridget Conley at 12. See also Tr. at 790 (testimony of 

Dr. Parker describing Conley’s “cutting behavior” and multiple “serious attempts” at suicide). 

He then told his mother – out of the blue – that he wanted to quit high school, get his GED, and 

join the National Guard. Depo. of Bridget Conley at 14. Conley’s mother interpreted his selfdestructive behavior as manipulation to get her to agree to let him quit school. Depo. of Bridget 

Conley at 16. But Conley’s mother stated she “didn’t mind” that he wanted to quit school during 

his senior year, and the next day she took him to withdraw from school, giving her written 

consent for him to do so. Depo. of Bridget Conley at 14, 19; Appellant’s App. at 529. Conley’s 

mother also started searching for a therapist for him. Conley’s mother stated that had she any 

knowledge that he would be a danger to others, she would have “had him committed right 

away.” Depo. of Bridget Conley at 51. But when Conley later expressed interest in returning to 

school, his mother told him that if he went back to school, the school counselor would commit 

him to the psychiatric ward. Tr. at 857 (testimony of Marsha Louden). 

As the trial court noted in its sentencing order, “All [diagnosing medical experts] agree 

that the Defendant suffered from a mental disease at the time of the murder.” Tr. at 1026. Their 

specific diagnoses varied, but included significant similarities. See, e.g., Tr. at 606 (Dr. 
11

Connor’s diagnosis of schizoaffective disorder bipolar type); Tr. at 780-81 (Dr. Parker’s 

diagnosis of depression with psychotic features, with possible bipolar disorder); Tr. at 524 (Dr. 

Olive’s diagnosis of major depressive disorder with symptoms of mixed personality disorder). 

And Dr. Connor opined that Conley had suffered from mental illness since his pre-adolescent 

years. Specifically, he found that Conley had an “ongoing and untreated . . . mental health 

condition” from which he had suffered since approximately age eleven or twelve. Tr. at 615. 

Dr. Connor further testified that Conley’s mental illness affected his “ability to control [his 

actions] as compared to . . . a person who has no mental health diagnosis.” Tr. at 616. Conley’s 

youth, combined with his mental illness, made him even less culpable than the average juvenile. 

Cf. Graham, 130 S. Ct. at 2027 (relying in part on the “twice diminished moral culpability” of a 

juvenile who did not intend to kill as compared to an adult murderer in finding life without 

parole categorically unconstitutional for juveniles convicted of non-homicide crimes). 

This Court has recognized that even though evidence of a difficult childhood may not 

always warrant mitigating weight, “[i]t is of course true that ‘evidence about the defendant’s 

background and character is relevant because of the belief, long held by this society, that 

defendants who commit criminal acts that are attributable to a disadvantaged background, or to 

emotional and mental problems, may be less culpable than defendants who have no such 

excuse.’” Richie v. State, 875 N.E.2d 706, 725 (Ind. 2007) (quoting Penry v. Lynaugh, 492 U.S. 

302, 319 (1989)).

18

 And we have previously considered a defendant’s mental illness in deciding 

to reduce a sentence. See, e.g., Reid v. State, 876 N.E.2d 1114, 1117 (Ind. 2007) (citing twentytwo-year-old defendant’s “history of mental health problems” in reducing his fifty year sentence 

for conspiracy to commit murder to the advisory sentence of thirty years); Walton v. State, 650 

N.E.2d 1134, 1137 (Ind. 1995) (reducing by half the sentence of a high school junior with 

diverging mental illness diagnoses for the brutal murders of his adoptive parents). Cf. Carter v. 

State, 711 N.E.2d 835, 843 (Ind. 1999) (reducing the murder sentence of a juvenile with a 

behavioral disorder and some childhood abuse from sixty to fifty years under the precursor to 

Rule 7(B)). 

 

18 And as noted above, the Rule 7(B) analysis is not limited to statutory mitigators.
12

Finally, Conley was only seventeen at the time of this crime, and I find, as has the 

Supreme Court, that his age is relevant to the assessment of his character. There is no question 

that juveniles have developmental issues that reduce their culpability for crimes. In this case, it 

seems clear that Conley “was still a teenager with a developing brain and impulse control issues 

made worse by his mental illness.” Amended Br. of Appellant at 28.

I disagree with the majority’s characterization of Conley’s “hardened character.” Slip op. 

at 12. While many juveniles may commit crimes that “reflect[] unfortunate yet transient 

immaturity,” only “the rare juvenile” is capable of committing a crime that “reflects irreparable 

corruption.” See Roper, 543 U.S. at 573. I cannot conclude at this time that Andrew Conley is 

one of those rare juveniles.19 For this reason I would revise his sentence to the maximum term of 

sixty-five years. 

Sullivan, J., concurs.

 

19 As the majority notes, we know the details of the crimes committed by two of the three other Indiana 

juveniles sentenced to life without parole. One stalked an unsuspecting college student and shot him in 

the head because “I’m hyped and I feel like killing somebody.” See slip op. at 16 n.7. The other shot a 

police officer in the head after the officer observed him riding a potentially stolen bicycle. Id. at 16 n.8.