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Lewis v. State

Court of Appeals of Indiana

December 21, 2018

Roderick Vandrell Lewis, Appellant-Defendant,
v.
State of Indiana, Appellee-Plaintiff

          Appeal from the Allen Superior Court The Honorable Frances C. Gull, Judge Trial Court Cause No. 02D05-1305-PC-84

          ATTORNEYS FOR APPELLANT Stephen T. Owens Public Defender of Indiana Anne C. Kaiser Deputy Public Defender Katherine Province Deputy Public Defender Indianapolis, Indiana

          ATTORNEYS FOR APPELLEE Curtis T. Hill, Jr. Attorney General of Indiana James B. Martin Deputy Attorney General Indianapolis, Indiana

          ALTICE, JUDGE.

         Case Summary

         [¶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.

         [¶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 History[2]

         [¶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. 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, 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, 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 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.

         [¶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 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 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 ...

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