A man convicted as a teen of murdering his 10-year-old brother will get a new sentencing hearing after the Indiana Court of Appeals found his representation “wholly deficient” at his first sentencing hearing that led to his sentence to life without parole.
The case involves Andrew Conley, who at 17 killed his 10-year-old brother, Conner, in November 2009. Conley turned himself in, telling Rising Sun police that a wrestling match between brothers led to Conley strangling his brother. He told law enforcement that he was not angry and he loved his brother, “but he could not stop himself from strangling Conner.”
After putting the body in the trunk of his car and spending two hours at his girlfriend’s house, Conley disposed of his brother’s body in a wooded area. His parents, who worked overnight, were asleep the next morning, and Conley admitted that he stood over his father with a knife and considered killing him, though he couldn’t explain why he felt that way.
Conley also told police that he had made multiple suicide attempts, had previously had homicidal thoughts and had believed something was “wrong” with him for several years. The state eventually charged Conley with murder as an adult, and he was appointed counsel.
Conley pleaded guilty in September 2010 and proceeded to a five-day sentencing hearing two days later.
Both the state and the defense presented testimony from mental health experts, who diagnosed Conley with severe mental illness. Among those was defense witness Dr. Edward Connor, a clinical psychologist who said Conley was in a dissociative state during the murder. Also, Dr. George Parker, a neuropsychologist, testified for the defense that Conley suffered from “major depression with psychotic features,” including hearing voices, and that the teen was “under the influence of extreme mental or emotional disturbance at the time the murder was committed.”
Among the mitigators presented was Conley’s age, his lack of a juvenile criminal history and his mental health. The Ohio Circuit Court, however, did not give “significant” weight to his mental disturbance or defect, finding instead that the only aggravator – the fact that Conner was 10 – “far outweigh[ed]” the mitigators. Conley was then sentenced to life without parole.
The Indiana Supreme Court upheld Conley’s sentence, so he next filed a pro se petition for post-conviction relief in 2013. His petition was amended by counsel in 2018, raising claims of ineffective assistance of trial and appellate counsel, challenging his guilty plea and raising various constitutional arguments.
Conley’s trial lawyer testified at the PCR hearing that the five-day sentencing hearing was not what he and co-counsel had expected. The lawyer also recalled that an investigator had alerted the defense to physical and emotional abuse, but defense counsel did not request further investigation. Conley was represented at the trial court by Lawrenceburg attorneys Gary Sorge and John Watson.
Also at the PCR hearing, Parker, the neuropsychologist, testified that the U.S. Supreme Court’s decisions in Roper v. Simmons and Graham v. Florida, marked the first time the court “agreed that (neuroscience) was both clear and pertinent in a criminal setting … .” Also, Connor testified that he sent a rough draft of his report on Conley — which included a discussion of whether a child services investigation was warranted — to the defense, but never heard back.
The post-conviction court denied the petition in December 2019, then denied Conley’s motion to correct error, prompting the instant appeal in Andrew Conley v. State of Indiana, 19A-PC-3085.
The case attracted the attention of the Indiana Public Defender Council, which participated in the case as an amicus. The council argued that LWOP sentencing for juveniles should be abolished under the Indiana Constitution, adding that its argument should not be barred by res judicata and that the Court of Appeals should consider its arguments even though they were not raised in the post-conviction court. The COA, however, declined that request.
The court likewise rejected Conley’s argument that his counsel was deficient by not advising him to proceed to trial on a defense of guilty but mentally ill, focusing instead on his claims that his trial counsel did not fully investigate and present the substantial mitigating evidence available at the time of sentencing, and that his counsel failed to properly challenge the state’s expert witnesses and prepare the defense’s expert witnesses.
Looking first to the issue of mitigators, Judge Elizabeth Tavitas wrote for the unanimous appellate panel that defense counsel “fail(ed) to raise and advance the ongoing jurisprudential shift toward imposing constitutional limits on sentences assessed to juvenile offenders.”
“At the time of Conley’s sentencing, the United States Supreme Court had issued several opinions limiting sentences that could be imposed on juvenile offenders,” Tavitas wrote, referencing Roper and Graham, among others. “… Likewise Indiana has long recognized the doctrine that juveniles are to be treated differently than adults.
“… Despite this precedent, defense counsel inexcusably failed to mention Roper, Graham, or the juvenile brain science regarding the fundamental differences between juveniles and adults outlined in those opinions to the trial court during sentencing,” Tavitas continued.
Finding that omission “wholly deficient,” the COA also found that defense counsel “missed opportunities to zealously present evidence and challenge the State’s evidence regarding Conley’s mental health.” That included not utilizing an investigator to look into issues of abuse.
What’s more, Tavitas said, the sentencing hearing began just two days after Conley pleaded guilty, “and defense counsel seemed unprepared for the State’s extensive presentation and failed to grasp the importance of an LWOP sentencing hearing.” The defense also failed to properly challenge a pathologist’s testimony regarding sexual abuse against Conner, she wrote.
But most importantly, the panel held, “defense counsel failed to adequately challenge the State’s experts regarding Conley’s mental health.” There was evidence at the PCR hearing that the testimony from the state’s expert was improper and was not expressly cross-examined.
That deficient performance was prejudicial, Tavitas continued, finding that “(a) reasonable probability exists that, but for defense counsel’s errors, the proceedings at the trial level would have resulted in the imposition of less than the maximum LWOP sentence especially in light of the substantial mitigating factors: Conley’s age, the fact that Conley did not have a juvenile or criminal record, and Conley’s undisputed significant, severe mental health issues.”
“Accordingly,” Tavitas wrote. “we conclude that the PC Court clearly erred by rejected Conley’s ineffective assistant of trial counsel claim.”
However, the COA upheld the post-conviction court’s rejection of Conley’s challenges to his guilty plea, his appellate counsel — who was now-COA Judge Leanna Weissmann — and his claims that newly discovered evidence rendered his sentence improper. It also declined to revise his sentence under Indiana Appellate Rule 7(B).
But based on trial counsel’s ineffectiveness, Conley’s case was remanded for a new sentencing hearing.