Roderick Vandrell Lewis v. State of Indiana

FILED
Dec 21 2018, 9:12 am
CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court
ATTORNEYS FOR APPELLANT ATTORNEYS FOR APPELLEE
Stephen T. Owens Curtis T. Hill, Jr.
Public Defender of Indiana Attorney General of Indiana
Anne C. Kaiser James B. Martin
Deputy Public Defender Deputy Attorney General
Indianapolis, Indiana
Katherine Province
Deputy Public Defender
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Roderick Vandrell Lewis, December 21, 2018
Appellant-Defendant, Court of Appeals Case No.
18A-PC-767
v. Appeal from the Allen Superior
Court
State of Indiana, The Honorable Frances C. Gull,
Appellee-Plaintiff Judge
Trial Court Cause No.
02D05-1305-PC-84
Altice, Judge.
Case Summary
Court of Appeals of Indiana | Opinion 18A-PC-767 | December 21, 2018 Page 1 of 27
[1] “Judge I’m going to defer to Mr. Lewis if he has any comments. I don’t have
anything to add.” Sentencing Transcript at 23-24. This is the sum total of trial
counsel’s participation at Lewis’s sentencing hearing, at which Lewis was being
sentenced for two counts of felony murder and faced a maximum sentence of
130 years in prison. The trial court found no mitigating circumstances – none
being asserted by the defense – and sentenced Lewis to the maximum aggregate
sentence of 130 years in prison.1
[2] On direct appeal, appellate counsel presented only a sufficiency challenge,
which this court rejected. Appellate counsel felt constrained by trial counsel’s
failure to argue any mitigating circumstances at sentencing. Had trial counsel
made an adequate record at sentencing, appellate counsel would have
challenged the sentence as inappropriate under Ind. Appellate Rule 7(B).
Appellate counsel, however, chose not to raise this issue to avoid hindering
Lewis’s future pursuit of post-conviction relief based on trial counsel
ineffectiveness.
[3] After this court affirmed his convictions on direct appeal, Lewis sought post-
conviction relief. He challenged the effectiveness of both trial and appellate
counsel related to sentencing. The post-conviction court denied relief, and
Lewis now appeals.
1
The sentencing range for murder is forty-five to sixty-five years, with the advisory sentence being fifty-five
years. Ind. Code § 35-50-2-3(a).
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[4] We agree with Lewis that trial counsel’s performance at sentencing was clearly
deficient. After a thorough review of the record and applicable case law,
however, we conclude that no prejudice resulted from the deficient
performance. In other words, there is not a reasonable probability that Lewis’s
sentence would have been different if counsel had proffered the mitigating
circumstances raised at the post-conviction hearing. Further, with regard to
appellate counsel, we conclude that counsel was not ineffective.
[5] We affirm.
Facts & Procedural History2
[6] The underlying facts supporting Lewis’s convictions were set out in detail on
direct appeal, and we draw from those. On June 29, 1999, Christopher Hale
had a discussion with sixteen-year-old Richard Rogers, who operated a drug
house in Fort Wayne with fourteen-year-old Sidney Wilson. Rogers invited
Hale to visit the drug house, but Hale declined due to problems he was having
with Wilson. Rogers indicated that he would talk with Wilson and quash it.
[7] Later that evening, Hale, Lewis, and Kajuanta Mays agreed on a plan to rob
Wilson and Rogers of their drugs and money. First, they verified that Wilson
and Rogers were alone by sending Angela Lawson to the house to buy drugs.
2
Oral argument was held at the Walker Career Center at Warren Central High School in Indianapolis on
December 4, 2018. We thank the staff for our warm welcome and the students for their professionalism and
attentiveness throughout the argument. We also wish to recognize the exceptional briefing and argument
provided by counsel for Lewis and the State.
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As planned, Hale then went into the drug house followed later by Lewis and
Mays, so that it would appear they were all there by happenstance. They all
smoked and drank with Wilson and Rogers inside the house. Lewis was armed
with a .38 special revolver, and Hale, who Lewis described as a violent person,
was armed with a nine-millimeter firearm.
[8] Hale went upstairs to use the restroom and as he returned down the stairs, he
stated “die bitch” and shot Wilson five times, including in his chest, abdomen,
and back. Trial Transcript at 97. Rogers and Lewis both reached for a shotgun
that was in the room, and Hale then turned out the lights and ordered Rogers to
sit down. Hale told Lewis to kill Rogers, which Lewis refused to do. Lewis
handed his revolver to Mays and stated, “if you want it ... you do it.” Trial
Transcript at 304. Mays proceeded to brutally shoot Rogers multiple times,
including several times in the head from a distance of six to eighteen inches.
Lewis, Hale, and Mays collected the victims’ drugs and money and ran to a
nearby house, where they split up the proceeds of the robbery. Mays had taken
the shotgun from the drug house also. Eventually, with Lawson’s help, they
arranged for a ride to a hotel. The men then hung out in the hotel room with
Lawson and sat around laughing and talking about the shootings. At some
point that night, Lewis engaged in sex or oral sex with Lawson at the hotel.
Later, Lewis had his uncle bury the revolver that had been used to kill Rogers.
[9] The crime remained unsolved for quite some time, and Lewis lived in Arizona
and Indiana over the next several years. He continued to be involved in drugs
and crimes as a gang member until at least 2007. Between 2002 and 2006,
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Lewis committed five misdemeanors (resisting law enforcement, driving
without a license, and disorderly conduct (Indiana 2002); assault and unlawful
imprisonment (Arizona 2005)) and three felonies (possession of cocaine
(Indiana 2002), theft (Arizona 2004), and burglary (Arizona 2006)). Lewis
violated probation more than once, and he was released to parole in Arizona in
March 2011.
[10] In the meantime, investigators in Fort Wayne eventually identified Lewis as a
suspect in the 1999 double murder. They located him in an out-of-state prison
and interviewed him on May 21, 2009. Lewis gave a statement detailing his
involvement with Hale and Mays in the robbery turned murder.3
[11] On February 25, 2011, the State charged Lewis with two counts of felony
murder and two counts of robbery. He was arrested in Indiana on June 27,
2011. Jeffrey Raff, an experienced criminal defense attorney, represented Lewis
throughout the trial proceedings. Lewis rejected plea offers from the State –
contrary to Raff’s recommendations – because Lewis could not grasp the
concept of felony murder and believed he was not guilty of murdering Wilson
and Rogers because he did not shoot either of them.
[12] The case proceeded to a jury trial on November 29-30, 2011. The jury found
him guilty as charged. At the beginning of the sentencing hearing on January 5,
3
Lewis had previously admitted his involvement in the crime during an interview with a Fort Wayne Police
Detective in 2002, but no charges were filed at the time.
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2012, Lewis made clear his dissatisfaction with Attorney Raff and his lack of
desire to consult with Attorney Raff about sentencing issues. Thereafter,
Attorney Raff presented no witnesses, made no argument on Lewis’s behalf,
and made no sentencing recommendation. He simply allowed Lewis to make
his own statement, which spanned about six pages of the transcript. The State,
on the other hand, presented a number of witnesses, asserted several
aggravating circumstances, and asked the court to impose aggravated,
consecutive sentences. At the conclusion of the sentencing hearing, the trial
court imposed maximum sixty-five-year sentences for the felony murder
convictions and ordered them to be served consecutively. 4 The trial court noted
several aggravating circumstances (criminal history, gang membership, and the
senseless, horrific nature of the offenses) and found no mitigating
circumstances. In support of consecutive sentences, the trial court indicated
that there were two victims and that Lewis had an aggravated criminal record.
[13] Lewis pursued a direct appeal with new counsel, Stanley Campbell. Attorney
Campbell challenged the sufficiency of the evidence. We affirmed the
convictions in a memorandum decision. See Lewis v. State, No. 02A03-1201-
CR-18 (Ind. Ct. App. Aug. 31, 2012), trans. denied. We noted that all
participants in a robbery that results in killing by one robber are deemed equally
guilty of murder, regardless of which participant actually killed the victim.
Based on the evidence presented at trial, we determined the “jury could have
4
Judgments of conviction were not entered on the robbery counts.
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reasonably inferred … that Lewis possessed the requisite intent to participate in
the robberies, that he was an accomplice to the robberies and murders, and that
the killings of Rogers and Wilson were probable and natural consequences of
the actions of Lewis, Hale, and Mays.” Slip op. at 7.
[14] On May 6, 2013, Lewis filed a pro se petition for post-conviction relief, which
was amended by post-conviction counsel on October 31, 2016. An evidentiary
hearing was held on July 7, 2017. Lewis argued that Attorney Raff failed to
advocate on Lewis’s behalf at sentencing, which resulted in Lewis receiving a
de facto life sentence. Lewis argued that there were several available mitigating
circumstances that should have been asserted at sentencing. Specifically, Lewis
was eighteen when he committed the crimes, he acted as an accomplice, he has
mental health issues, and he had a difficult upbringing. Additionally, Lewis
claimed that Attorney Campbell was ineffective for failing to challenge the
sentence as inappropriate on direct appeal.
[15] At the post-conviction hearing, Lewis called Attorney Raff and clinical
psychologist Dr. James Cates as witnesses. He also testified on his own behalf
and introduced several exhibits, including the affidavit of Attorney Campbell.
The State acknowledged that Attorney Raff “basically did not do any advocacy
at the sentencing hearing” but argued that “what Mr. Raff could have come up
with would have had limited mitigating value and would probably not have
made a difference in the outcome.” Post-Conviction Transcript at 4.
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[16] The post-conviction court denied relief on March 15, 2018, with a lengthy
order. The trial court made the following findings of fact regarding the
evidence presented at the post-conviction hearing:
8. Attorney Raff did nothing at sentencing, other than to
announce that Petitioner might speak on his own behalf.
Attorney Raff testified at the post-conviction hearing, in relevant
part, as follows. In preparation for Petitioner’s sentencing, he
would have reviewed Petitioner’s criminal history, had personal
contact with him, and reviewed the pre-sentence investigation
report. He believed that no mitigators were available in this case.
He made no inquiries about Petitioner’s mental health history,
and was not aware that Petitioner had attempted suicide at the
Allen County Jail…. He did not ask Petitioner about his
upbringing or his family members, did not speak to his relatives
or friends, and did not have him examined by a mental health
professional. He did not prepare Petitioner to make a statement
at sentencing, and explained that Petitioner did not take his
advice well. He would have asked whether any family members
wanted to speak or write on Petitioner’s behalf. Petitioner had a
very poor character and very bad criminal history. He expected
that Petitioner would receive consecutive sentences, one for each
victim, of at least 55 years each. He could not identify any
mitigators that he could argue with a straight face. He saw no
indication that Petitioner had mental health issues, but rather “he
just had a pretty extensive history of being a gangster basically.”
Young age could be a mitigator, but Petitioner was in his late 20s
by the time of his sentencing, and “his criminal history negated
any mitigator he might arguably have had because of his youth at
the time of the offense.” He suspected that a defendant’s status
as an accomplice had no weight as a mitigator. As to a
defendant’s difficult upbringing, Attorney Raff testified:
I was not of the school of thought that said that my client
was not well treated when he was five or six, therefore that
explains to some extent his robbing these people with a
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gun. I think there’s got to be some realistic relationship
between the upbringing and the conduct.
Attorney Raff saw no nexus between any possible mitigating
factor and anything in Petitioner’s conduct and speech.
9. Attorney Campbell stated by affidavit, in relevant part, that
his ability to challenge Petitioner’s sentence was hindered by trial
counsel’s (Raff’s) failure to present evidence and argument in
favor of a mitigated sentence; Attorney Campbell would have
challenged the sentence as inappropriate under Indiana Appellate
Rule 7(B) if Attorney Raff had made a record at sentencing
regarding Petitioner’s mental health issues and troubled family
background; the sufficiency of evidence argument was not a
strong issue, and the Appellate Rule 7(B) challenge would have
been a stronger issue, particularly if a record had been developed
at sentencing.
10. Psychologist James A. Cates, Ph.D., testified at the post-
conviction hearing, in relevant part, as follows. He interviewed
Petitioner in 2016 and administered several psychological tests
…. He learned that Petitioner’s mother was a drug abuser, she
had abusive men in the home, and she was diagnosed with
bipolar disorder; that Petitioner was physically abused by his
mother and her boyfriends; and that his housing situation was
unstable. Dr. Cates diagnosed Petitioner with “bipolar II
disorder” and noted that he also exhibited antisocial personality
traits. Dr. Cates was the first clinician who formally diagnosed
Petitioner with bipolar disorder…. “Bipolar II” is a slightly less
severe degree of bipolar disorder than “bipolar I,” not involving
any reported full manic episodes. Bipolar disorder is not always
apparent, and indeed people with that disorder “can go through
periods where their mood is absolutely stable.” Dr. Cates
believed that, at the time of the murder, Petitioner was likely
already experiencing distorted logic and decision-making from
bipolar disorder. The effect of bipolar disorder upon Petitioner’s
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behavior around the time of the crime would depend on whether
he was in a depressed phase or a hypomanic/manic phase, but
there were several possibilities:
[Y]ou could potentially see increased impulsivity, you
could see increased disruption in his thought processes, his
ability to think through the consequences of actions. You
could see … auditory/visual hallucinations, you could see
delusions, all those are potential.
Petitioner had had a substance abuse problem, which could have
resulted from efforts at self-medication for bipolar disorder.
Consistent with the diagnosis of bipolar disorder, Petitioner’s
medical records from the Arizona Department of Corrections
indicated that he was prescribed mood-stabilizing drugs. At the
time of the crime, Petitioner’s “maturity level was probably much
younger than his chronological age would suggest.” Numerous
children who live in traumatized situations do not evidence a
conduct disorder. Up to the age of 18, around the time of the
offense, Petitioner had displayed no conduct disorder. During
the time when Petitioner was admittedly a gang member, from
the ages of 13 to 26, he would have been more likely to derive his
values from the gang, rather than anything in society that might
have been opposed to the gang’s values.
11. Relatives of Petitioner stated by affidavit, in relevant part,
that his mother was addicted to drugs; his father was mostly
absent and did not help to raise him; he had an unstable home
life; he and his mother were physically abused by the mother’s
boyfriends; at the age of nine, he witnessed one boyfriend
stabbing another; he began using and selling drugs at an early
age; members of his family suffer from mental illnesses including
bipolar disorder, schizophrenia, depression, and substance abuse
disorder; his mother has been diagnosed with bipolar disorder
and is deemed “seriously mentally ill” by the State of Arizona;
and he tried to commit suicide in his late teens.
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12. Petitioner testified at the post-conviction hearing, in relevant
part, as follows. He and Attorney Raff never discussed a plan or
evidence for sentencing. Attorney Raff never asked him about
his mental health history or his family and personal background,
and did not discuss having anyone speak on his behalf at
sentencing. He told the probation officer who prepared his pre-
sentence investigation report (PSI) that he did not have mental
health issues (although he had been diagnosed with bipolar
disorder) because he was nervous and scared. However, if
Attorney Raff had asked him about his mental health, of course
he would have told him about the previous treatment. Attorney
Raff did not prepare him to speak at sentencing, and he did not
meet with him between the time he was convicted and the time
he was sentenced. He was admitted twice to Parkview
Behavioral Health in 2002, and was first told that he had bipolar
disorder while in the Arizona Department of Correction in 2004
or 2005. He attempted suicide in the Allen County Jail in 2002.
Appendix Vol. III at 30-34 (citations to record omitted).
[17] In its conclusions, the post-conviction court addressed each of the potential
mitigating circumstances and determined that Attorney Raff erred in certain
regards. Regardless, the court concluded that Lewis was not prejudiced by the
alleged deficient performance because “[e]ven if Attorney Raff had done
everything that Petitioner now wishes he had done, there would have been little
or (more likely) no effect on the sentence.” Id. at 41. The post-conviction
court’s conclusions will be set out more fully below, but it ultimately concluded,
based on lack of prejudice, that Lewis did not receive ineffective assistance of
trial or appellate counsel. Additionally, the post-conviction court rejected
Lewis’s argument, based on U.S. v. Cronic, 466 U.S. 648 (1984), that he did not
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have to establish prejudice. Lewis now appeals the denial of his petition for
post-conviction relief.
Standard of Review
[18] In a post-conviction proceeding, the petitioner bears the burden of establishing
grounds for relief by a preponderance of the evidence. Bethea v. State, 983
N.E.2d 1134, 1138 (Ind. 2013). “When appealing the denial of post-conviction
relief, the petitioner stands in the position of one appealing from a negative
judgment.” Id. (quoting Fisher v. State, 810 N.E.2d 674, 679 (Ind. 2004)). In
order to prevail, the petitioner must demonstrate that the evidence as a whole
leads unerringly and unmistakably to a conclusion opposite that reached by the
post-conviction court. Id. Although we do not defer to a post-conviction
court’s legal conclusions, we will reverse its findings and judgment only upon a
showing of clear error, i.e., “that which leaves us with a definite and firm
conviction that a mistake has been made.” Id. (quoting Ben–Yisrayl v. State, 729
N.E.2d 102, 106 (Ind. 2000)).
[19] A petitioner will prevail on a claim of ineffective assistance of counsel upon a
showing that counsel’s performance fell below an objective standard of
reasonableness and that the deficient performance prejudiced the petitioner. Id.To satisfy the first element, the petitioner must demonstrate deficient
performance, which is “representation that fell below an objective standard of
reasonableness, committing errors so serious that the defendant did not have
the ‘counsel’ guaranteed by the Sixth Amendment.” Id. (quoting McCary v.
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State, 761 N.E.2d 389, 392 (Ind. 2002)). The second element requires a
showing of prejudice, which is “a reasonable probability that, but for counsel’s
errors, the result of the proceeding would have been different.” Id. at 1139. “A
reasonable probability is one that is sufficient to undermine confidence in the
outcome.” Kubsch v. State, 934 N.E.2d 1138, 1147 (Ind. 2010) (quoting
Strickland v. Washington, 466 U.S. 668, 694 (1984)). Because a petitioner must
prove both deficient performance and prejudice to prevail on a claim of
ineffective assistance of counsel, the failure to prove either element defeats such
a claim. See Young v. State, 746 N.E.2d 920, 927 (Ind. 2001).
Trial Counsel’s Effectiveness
[20] Undoubtedly, Attorney Raff was deficient in his representation of Lewis at the
sentencing hearing. Lewis faced a maximum sentence of 130 years, essentially
a life sentence. Although present, Attorney Raff did nothing for his client at
sentencing aside from indicate that Lewis would speak on his own behalf at the
conclusion of the hearing. Lewis argues that at a minimum Attorney Raff
should have proffered several mitigating circumstances and argued against
maximum, consecutive sentences.5 See McCarty v. State, 802 N.E.2d 959, 969
5
In sum, Lewis asserts that “[i]nstead of humanizing Lewis and presenting evidence of his difficult
upbringing, his youth, and his mental illness and substance addiction, [Attorney] Raff displayed rancor
toward [Lewis].” Appellant’s Brief at 28. Lewis continues: “[Raff’s] comments during closing argument that
his client was a disgusting and bad person with a disgusting lifestyle, coupled with his silence at sentencing,
betrayed his duty of loyalty to his client and left the jury and sentencing court with a horrible impression of
Lewis.” Id. Moreover, Lewis observes that it was the trial court’s duty to determine the weight of proffered
mitigating circumstances, making Attorney Raff’s decision to unilaterally remove available mitigators from
consideration improper. “While Raff had the discretion to weed out weaker arguments from stronger ones,
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(Ind. Ct. App. 2004) (concluding, in a multiple-felony case, that “[c]ounsel’s
failure to investigate and present to the court numerous potentially mitigating
circumstances constituted deficient performance”), trans. denied. Although we
agree that trial counsel was deficient, our review leaves us with the firm
conviction that Lewis was not prejudiced by counsel’s deficient performance.
In this regard, we address each potential mitigating circumstance below.
Role as Accomplice
[21] Lewis contends that his role as an accomplice in the murders was both relevant
and mitigating. Our Supreme Court has observed:
While an accomplice may be found guilty of the crime largely
executed by his principal, it does not follow that the same penalty
is appropriate. Justice Frankfurter has written, “[T]here is no
greater inequality than the equal treatment of unequals.” Dennis
v. United States, 339 U.S. 162, 184, 70 S.Ct. 519, 526, 94 L.Ed.
734, 749 (1949) (dissenting opinion).
Martinez Chavez v. State, 534 N.E.2d 731, 735 (Ind. 1989); see also Brown v. State,
10 N.E.3d 1, 5 (Ind. 2014) (revising inappropriate sentence from 150 years to 80
years in part because defendant acted as an accomplice in murders).
[22] Although Lewis acted as an accomplice, the evidence establishes that his role in
the murders was substantial and that he was actively involved before, during,
and after the horrific murders of a fourteen-year old and sixteen-year old.
his silence communicated to the court that there were no possible mitigators and that his client deserved the
maximum sentence.” Appellant’s Reply Brief at 5.
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Before, Lewis planned the robbery of two young drug dealers with Hale and
Mays. He took his own gun to the robbery and was aware that Hale, a person
he knew to be violent, was armed with a gun. During the crime, as Wilson was
being shot, Lewis reached for the shotgun to keep it away from Rogers. Lewis
also handed his own gun to Mays, who was unarmed, and invited him to shoot
Rogers if he wished. Mays proceeded to shoot Rogers in the head multiple
times from a close distance. After, Lewis fled with his cohorts, taking the
shotgun with him. The three divided the drugs and money and then spent the
night in a hotel essentially celebrating and laughing about the evening’s events.
Considering the totality of his involvement, we agree with the trial court that
Lewis’s role as an accomplice was not deserving of mitigating weight.
Age
[23] The murders were committed shortly after Lewis turned eighteen years old. He
argues that his age, “while not legally excusing his behavior, was relevant to
contextualize his behavior during and after the crime occurred.” Appellant’s
Brief at 25.
[24] In addressing the appropriateness of a sixteen-year-old defendant’s 150-year
sentence in Brown, the Supreme Court stated:
We take this opportunity to reiterate what the United States
Supreme Court has expressed: Sentencing considerations for
youthful offenders – particularly for juveniles – are not
coextensive with those for adults. See Miller v. Alabama, [567]
U.S. [460], [480,] 132 S.Ct. 2455, 2469, 183 L.Ed.2d 407 (2012)
(requiring the sentencing judge to “take into account how
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children are different, and how those differences counsel against
irrevocably sentencing them to a lifetime in prison” (footnote
omitted)). Thus, both at initial sentencing and on appellate
review it is necessary to consider an offender’s youth and its
attendant characteristics.
Brown, 10 N.E.3d at 6-7.
[25] Though not identified as a statutory mitigating circumstance, it is well
established that a defendant’s youth may be a significant mitigating factor in
some circumstances. See Smith v. State, 872 N.E.2d 169, 178 (Ind. Ct. App.
2007), trans. denied.
Focusing on chronological age is a common shorthand for
measuring culpability, but for people in their teens and early
twenties it is frequently not the end of the inquiry. There are
both relatively old offenders who seem clueless and relatively
young ones who appear hardened and purposeful.
Ellis v. State, 736 N.E.2d 731, 736 (Ind. 2000).
[26] The record shows that Lewis was not a clueless eighteen-year-old. By his own
admission, he had been a gang member for several years before the crime. He
actively planned and participated in the robbery turned double murder and
seemed unaffected by the horrific results. Further, any diminished culpability
due to his age is overshadowed by his continued involvement in criminal
conduct and gang life for many years thereafter. Any weight given this
mitigator would be exceedingly minimal under the circumstances.
Difficult Childhood
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[27] With minimal investigation, Lewis argues that Attorney Raff would have
learned of additional mitigating evidence, including his difficult childhood. In
this regard, Lewis presented evidence at the post-conviction hearing that he was
raised by a drug-addicted mother who suffers from bipolar disorder and has
been deemed seriously mentally ill by the State of Arizona. Lewis was
physically abused by his mother’s boyfriends and, at the age of nine, he
witnessed one boyfriend stabbing another. Lewis began using and selling drugs
at an early age and eventually dropped out of school and took to the streets.
[28] Our Supreme Court has indicated 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.” Coleman v. State, 741
N.E.2d 697, 700 (Ind. 2000) (quoting Penry v. Lynaugh, 492 U.S. 302, 319
(1989)). Evidence of a difficult childhood, however, generally “warrants little,
if any, mitigating weight.” Id.Mental Health
[29] The final mitigating factor advanced by Lewis at the post-conviction hearing
was his mental illness. Specifically, Lewis had attempted suicide, was treated
with mood-stabilizing drugs while incarcerated in Arizona, and has suffered
from substance abuse and bipolar disorder. Dr. Cates opined that, at the time
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of the murders, Lewis may have been experiencing distorted logic and decision
making, and his maturity level was likely much younger than his actual age.
[30] Several factors bear on the weight, if any, that should be given to mental illness
at sentencing.
These factors include: (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 of the crime.
Weeks v. State, 697 N.E.2d 28, 30 (Ind. 1998). Here, Dr. Cates diagnosed Lewis
in 2016 with Bipolar II, a less-severe form of the disorder. There is no evidence
that Lewis was suffering from this disorder in 1999, which makes establishing a
nexus between the crime and Lewis’s mental state rather difficult. The extent
to which Lewis would have been unable to control his behavior due to the
disorder is similarly unclear, and his behavior before, during, and after the
murders suggests that he was in control of his faculties. The weight attributable
to this mitigator, if any, would have been extremely low under the
circumstances.
Consecutive Sentences
[31] Additionally, Lewis argues that Attorney Raff should have argued against
consecutive sentences in light of the available mitigating circumstances. Lewis
does not dispute that the aggravating circumstance of multiple victims generally
suffices to support consecutive sentences. Indeed, “when the perpetrator
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commits the same offense against two victims, enhanced and consecutive
sentences seem necessary to vindicate the fact that there were separate harms
and separate acts against more than one person.” Serino v. State, 798 N.E.2d
852, 857 (Ind. 2003).
[32] Lewis notes that consecutive sentences, however, are not always required where
there are multiple murder victims. For example, in Holsinger v. State, 750
N.E.2d 354 (Ind. 2001), the Court reversed a sentence of two consecutive
sentences of life in prison without parole after finding several sentencing errors.
The Court chose to resentence the defendant with an independent consideration
of the aggravating and mitigating factors. In mitigation, the Court observed
that the defendant was nineteen when he participated in the murders (and
robberies), he had a troubled childhood, his co-defendant was the
instigator/leader of the criminal episode, and he had no juvenile or criminal
history. Id. at 363-64. Despite finding that the “aggravating circumstances
outweighed the mitigating circumstances by a sufficient magnitude that the
maximum sentence of 65 years for murder should be imposed on each count”,
the Court ordered the sentences on the two murder counts to be served
concurrently. Id. at 365; see also Brown, 10 N.E.3d at 4-8 (revising inappropriate
sentence from 150 years to 80 years for two counts of murder and one count of
robbery where defendant was only 16 years old, was an accomplice/not the
mastermind, the murders were not particularly heinous, and defendant’s only
violent juvenile offense was a battery).
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[33] Although consecutive sentences are not always a given when there are multiple
murder victims, concurrent sentences are undoubtedly the exception. We
cannot agree with Lewis that the facts of this case lend themselves to making
concurrent sentences appropriate. As discussed above, although Lewis was
relatively young and acted as an accomplice, his culpability was great.
Moreover, unlike in Brown, these murders were particularly heinous. The
victims were fourteen and sixteen years old and were each shot multiple times
in senseless acts of violence. In fact, Lewis callously provided the murder
weapon to Mays for the purpose of killing Rogers if Mays wanted to. After
leaving the victims to die,6 the trio, along with Lawson, partied into the night
and laughed about their crimes. In addition to the nature and circumstances of
the murders, we find relevant Lewis’s substantial criminal behavior in the
subsequent years and his continued association with Hale and Mays.
Prejudice
[34] The post-conviction court determined that even if Attorney Raff had done
everything that Lewis now wishes he had done, “there would have been little or
(more likely) no effect on the sentence.” Appendix Vol. III at 41. The court
noted that consecutive sentences were supported by the aggravating
circumstance of multiple victims, the second of which was killed after Lewis
handed his gun to Mays. The court opined, “it is inconceivable that Attorney
6
The evidence at trial indicated that one of the victims was still alive for a period of time after being shot and
he moved around the house, leaving a trail of blood.
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Raff could have presented any evidence or argument that would have altered
the Court’s decision” regarding consecutive sentences. Id. The court
continued:
[I]t is at least conceivable that Attorney Raff could have obtained
an aggregate sentence of less than 130 years (but at least 110
years) for Petitioner by presenting mitigating evidence. In view
of the weakness of the available mitigating evidence, however,
there is no reasonable probability that Petitioner would have
received a sentence of less than 130 years. There would have
been no basis for an argument that Petitioner’s participation as
an accomplice was entitled to any mitigating weight. His age of
18 at the time of the offense would have lost all or most of the
limited significance it did possess in view of his age of 30 at the
time of sentencing. His difficult childhood would have
warranted “little, if any, mitigating weight”, particularly in view
of the lack of evidence connecting his bad childhood with his
later decision to take part in an armed robbery. His bipolar
disorder, also not shown to have any nexus with his crimes,
would likewise have deserved little weight, if any, as a mitigating
factor. Although the Court would have had discretion to give
some modest weight to these claimed mitigators, and accordingly
to impose an aggregate sentence slightly below the maximum
possible, there is no reasonable probability that the Court would
actually have done so under the circumstances of Petitioner’s
case. See Taylor v. State, 840 N.E.2d 324, 331 (Ind. 2006),
quoting Strickland, 466 U.S. at 687 (a “reasonable probability” is
a probability “sufficient to undermine confidence in the
outcome”). Petitioner’s defense therefore did not suffer prejudice
from Attorney Raff’s failure to present mitigating evidence and
argument at sentencing.
Appendix Vol. III at 41-42 (some citations omitted).
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[35] “The dispositive question in determining whether a defendant is prejudiced by
counsel’s failure at sentencing to present mitigating evidence is what effect the
totality of the omitted mitigation evidence would have had on the sentence.”
McCarty, 802 N.E.2d at 967 (citing Coleman, 741 N.E.2d at 702). Thus, on
review, we determine whether there is a reasonable probability that the trial
court would have imposed a lesser sentence had it been fully informed of the
mitigating evidence. McCarty, 802 N.E.2d at 969.
[36] We agree with the post-conviction court that there is not a reasonable
probability that presentation of the omitted mitigating evidence would have
affected Lewis’s sentence. While Attorney Raff certainly should have proffered
the mitigators at sentencing, the meager weight of those simply could not
withstand the overwhelming weight of the aggravating circumstances. Without
recounting everything above, we observe that this was a senseless and horrific
crime, resulting in the death of two teenage boys, and Lewis, an active
participant at all stages, seemed to be unfazed by his involvement in the killings.
For at least the next eight years, Lewis continued his criminal behavior and was
convicted in both Arizona and Indiana of several felonies and misdemeanors. 7
Although Lewis gave a detailed statement to detectives, he never grasped that
he was culpable for the killings and his statement at sentencing was not
7
Lewis reported that his role in the Gangster Disciples, of which he was a member from age thirteen to age
twenty-six, was “selling drugs, robbing people, and beating people up.” Post-Conviction Exhibits at Petitioner’s
Exhibit B (PSI report).
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reflective of true remorse. The post-conviction court’s determination regarding
lack of prejudice was not clearly erroneous.
U.S. v. Cronic
[37] Lewis argues that this is a rare case in which prejudice is presumed due to trial
counsel’s effective abandonment of his client during a critical stage in the
proceedings. This argument is based on U.S. v. Cronic, 466 U.S. 648 (1984).
[38] In Cronic, the U.S. Supreme Court identified three situations implicating the
right to counsel that involved circumstances “so likely to prejudice the accused
that the cost of litigating their effect in a particular case is unjustified.” Id. at
658-659. First and “[m]ost obvious … is the complete denial of counsel” at a
critical stage of trial. Id. at 659. Secondly, the Court noted “if counsel entirely
fails to subject the prosecution’s case to meaningful adversarial testing, then
there has been a denial of Sixth Amendment rights that makes the adversary
process itself presumptively unreliable.” Id. Finally, the Court included cases
“where counsel is called upon to render assistance under circumstances where
competent counsel very likely could not”. Bell v. Cone, 535 U.S. 685, 696 (2002)
(citing Cronic, 466 U.S. at 659-662).
[39] Lewis argues that his claim fits within the second exception identified in Cronic
because counsel failed to subject the State’s case to meaningful adversarial
testing at the sentencing hearing. We do not agree that Lewis’s claim is
controlled by Cronic rather than Strickland.
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[40] The U.S. Supreme Court has emphasized the narrowness of Cronic’s exceptions.
The Court has relieved defendants of the obligation to make this
affirmative showing [of prejudice] in only a very narrow set of
cases in which the accused has effectively been denied counsel
altogether: These include the actual or constructive denial of
counsel, state interference with counsel’s assistance, or counsel
that labors under actual conflicts of interest.
Weaver v. Massachusetts, 137 S. Ct. 1899, 1915, 198 L. Ed. 2d 420 (2017); see also
Kimmelman v. Morrison, 477 U.S. 365, 382 n.6 (1986) (noting the “few contexts”
where prejudice is presumed are “where counsel is either totally absent or
prevented from assisting the accused during a critical stage of the proceeding”
and “where counsel is burdened by an actual conflict of interest”).
[41] Strickland and Cronic were issued the same day, and Strickland also addressed the
concept of presuming prejudice in certain contexts:
Actual or constructive denial of the assistance of counsel
altogether is legally presumed to result in prejudice. So are
various kinds of state interference with counsel’s assistance.
Prejudice in these circumstances is so likely that case-by-case
inquiry into prejudice is not worth the cost. Moreover, such
circumstances involve impairments of the Sixth Amendment
right that are easy to identify and, for that reason and because the
prosecution is directly responsible, easy for the government to
prevent.[8]
8
Similarly, in discussing the second exception in Cronic, the Court cited a case in which defense counsel was
precluded by a protective order from effectively cross examining a key prosecution witness. Cronic, 466 U.S.
at 659 (citing Davis v. Alaska, 415 U.S. 308 (1974)). Because this was a “constitutional error of the first
magnitude”, no showing of lack of prejudice could cure it. Id. (quoting Davis, 415 U.S. at 318). The Court
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One type of actual ineffectiveness claim warrants a similar,
though more limited, presumption of prejudice. [P]rejudice is
presumed when counsel is burdened by an actual conflict of
interest. Even so, the rule is not quite the per se rule of prejudice
that exists for the Sixth Amendment claims mentioned above.
Prejudice is presumed only if the defendant demonstrates that
counsel “actively represented conflicting interests” and that “an
actual conflict of interest adversely affected his lawyer’s
performance.”
Conflict of interest claims aside, actual ineffectiveness claims
alleging a deficiency in attorney performance are subject to a
general requirement that the defendant affirmatively prove
prejudice. The government is not responsible for, and hence not
able to prevent, attorney errors that will result in reversal of a
conviction or sentence.
Strickland, 466 U.S. at 692-93 (citations omitted).
[42] Moreover, since Cronic was decided in 1984, the U.S. Supreme Court has never
applied the second exception to relieve a convicted defendant of the need to
prove prejudice, nor has the Indiana Supreme Court.9 In Bell, the Court simply
spoke of “the possibility of presuming prejudice based on an attorney’s failure to
test the prosecutor’s case” where the attorney’s failure is complete. Bell, 535
observed: “Apart from circumstances of that magnitude, however, there is generally no basis for finding a
Sixth Amendment violation unless the accused can show how specific errors of counsel undermined the
reliability of the finding of guilt.” Id. at 659 n. 26.
9
We acknowledge that the Seventh Circuit has applied the second Cronic exception in cases similar to
Lewis’s. See Miller v. Martin, 481 F.3d 468, 472 (7th Cir. 2007); Patrasso v. Nelson, 121 F.3d 297, 303-05 (7th
Cir. 1997). These decisions, however, are not binding upon us. See Ind. Dep’t of Public Welfare v. Payne, 622
N.E.2d 461, 468 (Ind. 1993) (“Although U.S. Supreme Court decisions pertaining to federal questions are
binding on state courts, lower federal court decisions may be persuasive but have non-binding authority on
state courts.”).
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U.S. at 696-97 (emphasis supplied). Ultimately, the Court concluded in Bell:
“The aspects of counsel’s performance challenged by respondent – the failure to
adduce mitigating evidence and the waiver of closing argument – are plainly of
the same ilk as other specific attorney errors we have held subject to Strickland’s
performance and prejudice components.” Id. at 697-98.
[43] We are not persuaded that Lewis’s claim falls within one of the limited
circumstances of extreme magnitude that justify a presumption of
ineffectiveness under Cronic.10 The post-conviction court, therefore, correctly
determined that Lewis was required to establish prejudice under Strickland.
Appellate Counsel’s Effectiveness
[44] Briefly, Lewis also argues that his appellate counsel, Attorney Campbell, was
ineffective for failing to challenge his sentence as inappropriate on direct appeal.
Deficient performance will be found where the unraised issue on appeal was
“significant and obvious from the face of the record” and was “clearly stronger”
than the issue raised. Timberlake v. State, 753 N.E.2d 591, 606 (Ind. 2001). A
reviewing court, however, “should not find deficient performance when
counsel’s choice of some issues over others was reasonable in light of the facts
10
We note that Attorney Raff’s lack of advocacy at the sentencing hearing appears to have been, at least in
part, invited by Lewis, who expressed clear disdain for counsel. Lewis, a difficult, angry client, indicated at
the sentencing hearing, “I really don’t want to discuss nothin’ with Jeffrey Raff any further.” Sentencing
Transcript at 5. In preparing for the sentencing hearing, Attorney Raff determined (incorrectly) that there
were no mitigating circumstances that he could present to the trial court. He believed “the only hope [for
Lewis] was to make an expression of remorse”. Post-Conviction Transcript at 15. In this vein, Lewis gave a
lengthy statement at sentencing. The statement, however, veered off from any true expression of remorse.
Court of Appeals of Indiana | Opinion 18A-PC-767 | December 21, 2018 Page 26 of 27
of the case and the precedent available to counsel when that choice was made.”
Bieghler v. State, 690 N.E.2d 188, 194 (Ind. 1997). If deficient performance is
established, we then examine whether the issue that appellate counsel failed to
raise would have been clearly more likely to result in reversal or an order for a
new trial. Id.[45] Attorney Campbell acknowledged that the sufficiency argument presented on
direct appeal was not a strong issue and that a challenge to the sentence would
have been a stronger issue if the record had been properly developed at the
sentencing hearing. Attorney Campbell, however, felt that his hands were tied
by Attorney Raff’s failure to proffer any mitigating circumstances below. Had
Attorney Raff made a proper record, Attorney Campbell averred that he would
have challenged the 130-year sentence as inappropriate. Additionally, Attorney
Campbell believed that challenging the sentence on direct appeal with an
undeveloped record might hinder Lewis’s ability to pursue a post-conviction
claim of ineffective assistance of trial counsel. Attorney Campbell’s assessment
of the sentencing issue and determination not to raise it on direct appeal were
reasonable and did not constitute deficient performance.
[46] Judgment affirmed.
Riley, J. and Bradford, J., concur.
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