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Newton v. State

Court of Appeals of Indiana

September 6, 2017

Larry W. Newton, Jr., Appellant-Defendant,
v.
State of Indiana, Appellee-Plaintiff

         Appeal from the Delaware Circuit Court The Honorable Linda Ralu Wolf, Judge Trial Court Cause No. 18D01-9410-CF-46

          ATTORNEYS FOR APPELLANT Stephen T. Owens Public Defender of Indiana Joanna L. Green Deputy Public Defender Indianapolis, Indiana.

          ATTORNEYS FOR APPELLEE Curtis T. Hill, Jr. Attorney General of Indiana Jodi Kathryn Stein Ellen Hope Meilaender Deputy Attorney General Indianapolis, Indiana.

          MAY, JUDGE.

         [¶1] In 1994, seventeen-year-old Larry W. Newton, Jr. ("Newton") murdered nineteen-year-old Christopher Coyle ("Coyle"). Newton pled guilty to the murder and, per the terms of a plea agreement, the trial court sentenced Newton to life without the possibility of parole ("LWOP"). Newton now appeals the denial of his successive petition for post-conviction relief. Newton raises several arguments on appeal, which we consolidate and restate as:

(1) Whether Newton's sentence of LWOP violates the Eighth Amendment's prohibition against cruel and unusual punishment; and
(2) Whether Newton waived his right to challenge his sentence under the Eighth Amendment when he entered into a plea bargain agreeing to serve LWOP.

         [¶2] We affirm.[1]

         Facts and Procedural History

         [¶3] On September 23, 1994, Newton and a fellow member of the "Fly Gang, " (Plea Hr'g Tr. at 78), [2] Duane Turner ("Duane"), attended a party on the Ball State University campus. Duane was kicked out of the party. The following night, Newton, Duane, and other members of the gang were gathered in a graveyard discussing the previous night's events. Newton decided he "felt like killing somebody" in retaliation for Duane being kicked out of the party, (id. at 80), and said he was "hyped and wanted to get revenge." (Id.) Newton borrowed a handgun from another gang member, Scott Turner ("Scott"). Duane agreed to participate in Newton's idea, and their friend Chad Wright ("Wright") agreed to drive them.

         [¶4] In the early morning hours of Sunday, September 25, 1994, Wright drove Newton and Duane to Ball State's campus. Newton and Duane spotted Coyle, a Ball State student whom they did not know, walking alone near the university's campus. Newton and Duane ran up to Coyle and forced Coyle into Wright's car. Once Coyle was in the car, Newton and Duane attempted to rob him, but he had no money. They took Coyle to an alley where Newton shot Coyle in the back of the head, killing him.[3] Police found Coyle's body at approximately 2:46 A.M. on Sunday, September 25, 1994, in the alley where he was shot.

         [¶5] After the murder, Newton and the others retreated to a friend's house where Scott was staying. Newton was "smiling" and told Scott he "shot someone." (Id. at 82.) Newton returned the gun to Scott and requested he destroy it. Scott attempted to destroy the gun by throwing the grips out of a car window, throwing some parts of the gun into the White River, and putting the remainder of the gun in the Prairie Creek Reservoir. A few days later, Newton confessed to the murder.

         [¶6] On October 19, 1994, the State charged Newton under Cause Number 18D01-9410-CF-46 with murder, a felony, [4] Class B felony criminal confinement, [5] Class A felony conspiracy to commit robbery resulting in serious bodily injury, [6] and Class A felony attempted robbery resulting in seriously bodily injury.[7] The State requested the court impose the death penalty based on the facts Newton intentionally killed Coyle: (1) "while committing or attempting to commit robbery against [Coyle], " and (2) "while committing or attempting to commit criminal gang activity by intentionally actively participating in a criminal gang." (CR-151 App. Vol. 1 at 46.)

         [¶7] Initially, Newton pled not guilty. In November 1994, Newton filed a petition alleging he was "mentally retarded" as defined by Indiana Code section 35-36-9-2 (1994) and requested the court dismiss the death penalty against him. Additionally, Newton filed notice of his intent to use the defense of mental disease or defect under Indiana Code section 35-41-3-6 (1984). Three court-appointed mental health experts and a neuropsychologist examined Newton. Based on their reports, in September 1995, the court determined Newton was "not a mentally retarded individual" under the statute, (CR-151 App. Vol. 4 at 773-76), and denied Newton's request to dismiss the death penalty allegation.

         [¶8] In October 1995, Newton's counsel negotiated a plea agreement with the State. The terms of the plea agreement provided Newton would plead guilty to murder and serve a sentence of LWOP therefor, in exchange for the State's dismissal of its request Newton receive the death penalty. The agreement further provided Newton's sentences for confinement, conspiracy to commit robbery, and attempted robbery would be determined by the trial court.

         [¶9] On October 16, 1995, the court held a hearing on Newton's change of plea. The court questioned Newton thoroughly to ensure his understanding of the plea agreement, noted it would order a presentence investigation report, and "only after receiving and reviewing that report" would the court "decide whether or not to accept the plea agreement." (Plea Hr'g Tr. at 40.)

         [¶10] On December 29, 1995, the court held a sentencing hearing. The court heard testimony from Newton's mother Peggy Newton, Scott, and Detective Paul Singleton of the Muncie Police Department. The court also heard statements from members of Coyle's family and Erica Miller, Coyle's girlfriend. The court heard counsels' arguments on mitigating and aggravating circumstances. The court made findings regarding mitigating and aggravating factors before sentencing Newton. The court accepted the plea agreement and, in accordance with that agreement, sentenced Newton to LWOP for Coyle's murder. The trial court sentenced Newton to forty-five years for Class A felony conspiracy to commit robbery and twenty years for Class B felony criminal confinement.[8]The court ordered those sentences served consecutive to each other and to the LWOP sentence. Newton did not, at that time, file a direct appeal from his sentencing.

         [¶11] In October 2001, Newton filed a petition for post-conviction relief alleging ineffective assistance of counsel and involuntary guilty plea. The post-conviction court held a hearing on July 18, 2002, and denied Newton relief on October 21, 2002. Newton did not appeal that decision.

         [¶12] On April 9, 2007, Newton filed a "Verified Petition for Permission to File a Belated Notice of Appeal, " (CR-151 App. Vol. 6 at 1134) ("First Belated Petition"), under Indiana Post-Conviction Rule 2 from the trial court's December 29, 1995, sentencing order. The trial court appointed counsel to represent Newton. On September 6, 2007, the court held a hearing on Newton's First Belated Petition, and on October 5, 2007, the court denied the petition. Newton did not perfect an appeal of the denial of that petition within thirty days as required by Indiana Appellate Rule 9(A)(1).

         [¶13] Then, on November 15, 2007, Newton filed a "Request for Permission to File a Belated Appeal, " (id. at 1182) ("Second Belated Petition"), from the court's October 5 denial of his First Belated Petition, stating "it was through inadvertence and mistake of this Public Defender that a Notice of Appeal was not filed in a timely manner." (Id.) The trial court initially granted Newton's Second Belated Petition, and on December 3, 2007, Newton filed that notice of appeal. But then, on December 10, 2007, the trial court sua sponte entered an order setting aside its order granting Newton's Second Belated Petition, finding it lacked authority under Post Conviction Rule 2 to grant the Second Belated Petition. Newton proceeded with appeal of the trial court's December 10 denial of his Second Belated Petition from the trial court's October 5 denial of First Belated Petition. Our Indiana Supreme Court affirmed the trial court's order setting aside its grant of Newton's Second Belated Petition. Newton v. State, 894 N.E.2d 192 (Ind. 2008).

         [¶14] On June 28, 2013, Newton filed, pro se, a petition for permission to file a Successive Verified Petition for Post-Conviction Relief in the Indiana Court of Appeals under Cause Number 18A02-1307-SP-580. (PC-2817 App. Vol. 2 at 32-33.) Newton claimed his LWOP sentence had become unconstitutional under the changed legal landscape regarding sentences of LWOP for juveniles, and thus his sentence should be modified. On July 22, 2013, our Court granted permission for Newton to file his successive petition for post-conviction relief.

         [¶15] Newton filed his successive petition in the trial court on September 11, 2013. The State filed its answer on September 17, 2013. Indiana Deputy Public Defender Joanna Green entered her appearance on Newton's behalf on September 19, 2013, and she notified the court of her inability to investigate Newton's case at that time due to her caseload. Newton requested the court stay all proceedings until counsel was ready to proceed. The court granted Newton's request to stay the proceedings.

         [¶16] On February 1, 2016, Newton, via counsel, filed an amended successive petition for post-conviction relief. The court held a hearing on Newton's petition on July 7, 2016. At the hearing, Newton's counsel argued Newton "has matured and shown moral growth" while in prison, (Tr. at 4), and offered evidence of Newton's extensive participation in a Shakespeare for Offenders program during his time in prison. On December 7, 2016, the trial court denied Newton's successive request for post-conviction relief.

         Discussion and Decision

         [¶17] "The petitioner in a post-conviction proceeding bears the burden of establishing grounds for relief by a preponderance of the evidence." Humphrey v. State, 73 N.E.3d 677, 681 (Ind. 2017). "When appealing the denial of post-conviction relief, the petitioner stands in the position of one appealing from a negative judgment." Id. To prevail on appeal from the denial of post-conviction relief, the petitioner must show the evidence leads "unerringly and unmistakably to a conclusion opposite that reached by the post-conviction court." Id. We do not defer to the post-conviction court's legal conclusions, but "a post-conviction court's findings and judgment will be reversed only upon a showing of clear error-that which leaves us with a definite and firm conviction that a mistake has been made." Id. at 682.

         [¶18] Post-conviction proceedings do not afford defendants the opportunity for a "super-appeal." Conner v. State, 711 N.E.2d 1238, 1244 (Ind. 1999), reh'g denied, cert. denied sub nom Conner v. Indiana, 531 U.S. 829 (2000). "Rather, post-conviction proceedings provide defendants the opportunity to raise issues that were not known at the time of the original trial or that were not available to the defendant on direct appeal." Id. They are not a substitute for direct appeals, but "provide a narrow remedy for subsequent collateral challenges to convictions." Id. All grounds for relief available to a petitioner must be raised in his original petition. Ind. Post-Conviction R. 1(8). "Claims that could have been, but were not, raised in earlier proceedings and otherwise were not properly preserved are procedurally defaulted; we do not authorize the filing of successive petitions raising forfeited claims." Matheney v. State, 834 N.E.2d 658, 662 (Ind. 2005). "Claims that have already been decided adversely are barred from re-litigation in successive post-conviction proceedings by the doctrine of res judicata." Id.

         I. Waiver of Eighth Amendment Claim

         [¶19] We begin with the post-conviction court's finding, and the State's argument, that Newton waived his right to challenge the constitutionality of his LWOP sentence when he voluntarily entered a plea agreement that required he serve a sentence of LWOP. Newton claims he could not have waived a right "that was unknown or unavailable to him at the time he pled guilty."[9] (Appellant's Br. at 17.)

         [¶20] Newton agreed to plead guilty and serve a sentence of LWOP in exchange for the State agreeing to dismiss its request for the death penalty. In challenging the validity of this plea agreement, Newton argues, because subsequent statutory revision and case law rendered the death penalty an illegal sentence for juvenile offenders, he did not receive any benefit from his plea bargain. Compare Ind. Code § 35-50-2-3(b)(1) (1995) with Ind. Code § 35-50-2-3(b)(1) (2002) (changing the statutorily-required age from sixteen to eighteen for death sentence to be available as punishment); see also Roper v. Simmons, 543 U.S. 551, 125 S.Ct. 1183 (2005) (rendering death penalty unconstitutional punishment for juveniles). We are unpersuaded by Newton's argument.

         [¶21] In Stites v. State, our Indiana Supreme Court held "a defendant may not enter a plea agreement calling for an illegal sentence, benefit from that sentence, and then later complain that it was an illegal sentence." 829 N.E.2d 527, 529 (Ind. 2005), reh'g denied. Newton claims the Stites rationale does not apply to him because he "did not receive a significant benefit" through his plea bargain by "avoiding . . . a sentence he would have been ineligible for seven years later." (Appellant's Br. at 17.) However, since Stites, we have made clear a petitioner receives the benefit of a plea agreement at the time the agreement was entered, and cannot later challenge the sentence as illegal, despite later case law that would have rendered the sentence illegal. See Fowler v. State, 977 N.E.2d 464, 468 (Ind.Ct.App. 2012), aff'd on reh'g, 981 N.E.2d 623 (Ind.Ct.App. 2013), trans. denied.

         [¶22] In Fowler, the State charged Fowler with felony unlawful possession of a firearm by a serious violent felon along with a host of other charges. Id. at 465-66. Fowler entered into a plea agreement wherein he agreed to plead guilty to the unlawful possession of a firearm charge and a habitual offender enhancement, and in exchange, the State dismissed the other charges and Fowler's sentence was capped at thirty-five years. Id. at 466. The trial court ultimately sentenced Fowler to thirty years: fifteen for the firearm charge and fifteen for the habitual offender enhancement. Id. Subsequently, our Indiana Supreme Court held "a defendant convicted of unlawful possession of a firearm by a serious violent felon may not have his or her sentence enhanced under the general habitual offender statute by proof of the same felony used to establish that the defendant was a 'serious violent felon.'" Mills v. State, 868 N.E.2d 446, 450 (Ind. 2007). Fowler then filed a petition for post-conviction relief asserting his sentence was illegal. That petition was denied.

         [¶23] In our opinion affirming the denial of Fowler's petition for post-conviction relief, we cited Stites and held that, even if Fowler's sentence would have been illegal under the Mills rule, Fowler forfeited the right to challenge it by entering into his plea agreement. Id. at 466-467. In so holding, "we decline[d] Fowler's invitation to measure Fowler's 'benefit' at a time after he entered into the plea agreement, " id. at 467, because at the time he entered into the agreement, "he faced as many as fifty-six years and he bargained for a maximum of thirty-five." Id. In support of our position, we cited the general principle of contract law that "all applicable law in force when the agreement is made impliedly forms a part of the agreement without any statement to that effect." Id. at 468 (citing Ethyl Corp. v. Forcum-Lannon Assocs., Inc., 433 N.E.2d 1214, 1220 (Ind.Ct.App. 1982)) (emphasis added). We thus concluded that, because Fowler received a benefit at the time he entered into the plea bargain, he could not later challenge the sentence as illegal. Id.

         [¶24] The same principle applies here. At the time Newton entered into the plea agreement, Newton could have been sentenced to death. See Ind. Code § 35-50-2-3(b)(1) (1994). Newton received a very significant benefit because the State dismissed its request for the death penalty. Put differently, Newton gained the certainty, at that time, of knowing he would not be put to death. Although this plea bargain would have been illusory under the subsequent version of section 35-50-2-3, this fact is of no consequence because Newton received the benefit of his bargain at the time he entered into the plea agreement. See Fowler, 977 N.E.2d at 468 ("As Fowler received a benefit at the time he entered into his plea bargain, he may not now challenge the sentence as illegal.").

         [¶25] Nonetheless, we acknowledge "Newton's sentence has never received appellate scrutiny, " see Newton, 894 N.E.2d at 195 (Rucker, J., dissenting), and "the appellate rules and legal neglect have conspired" against Newton obtaining such review. Id. at 193 (Shepard, C.J., concurring). Given the important interest at stake here-the possibility that Newton's sentence of LWOP violates the Eighth Amendment's prohibition of cruel and unusual punishment-we choose to exercise our appellate discretion and address the merits of the issue. See In re D.J. v. Indiana Dep't of Child Servs., 68 N.E.3d 574, 579 (Ind. 2017) (reviewing courts have discretionary authority over the appellate ...


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