Saylor v. Indiana

• Decision Date: 21 May 2004
• Docket Number: No. 48S00-9712-PD-647.,48S00-9712-PD-647.
• Citation: 808 N.E.2d 646
• Parties: Benny SAYLOR, Appellant (Petitioner below), v. State of INDIANA, Appellee (Respondent below).
• Court: Indiana Supreme Court

808 N.E.2d 646

Benny SAYLOR, Appellant (Petitioner below), v. State of INDIANA, Appellee (Respondent below).

No. 48S00-9712-PD-647.

Supreme Court of Indiana.

May 21, 2004.

Susan K. Carpenter, Public Defender of Indiana, Thomas C. Hinesley, Deputy Public Defender, Emily Mills Hawk, Special

Assistant to the State Public Defender, Indianapolis, IN, Attorneys for Appellant.

Steve Carter, Attorney General of Indiana, Arthur Thaddeus Perry, Deputy Attorney General, Stephen R. Creason, Deputy Attorney General, Thomas D. Perkins, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.

On Petition for Rehearing

BOEHM, Justice.

In 1992, Benny Saylor was sentenced to death despite a unanimous jury recommendation to the contrary. In 2002, Indiana law was changed in an important respect by requiring a unanimous jury recommendation of death before the death penalty can be imposed. Appellate courts are to review and revise sentences that are inappropriate. We conclude that it is not appropriate to execute a person who was convicted and sentenced through a procedure that has now been substantially revised so the same trial today would no longer render the defendant eligible for the death penalty. At the time of Saylor's crime, life without parole could not be imposed under Indiana law. Accordingly, we revise Saylor's sentence to a term of one hundred years.

Factual and Procedural Background

The factual background surrounding Benny Saylor's conviction is set forth in other opinions of this Court. Saylor v. State, 765 N.E.2d 535 (Ind.2002); Saylor v. State, 686 N.E.2d 80 (Ind.1997). On June 18, 1992, Judy VanDuyn's body was found in her van parked in a cornfield after a night of heavy rainfall. Witnesses had observed Saylor's car in the parking lot of the laundromat where VanDuyn had gone to do her laundry. When the police arrived to question Saylor, they found blood on his arms and forehead, shoes matching the prints found at the crime scene, wet clothes, and a wet billfold. At a lineup, a farmer identified Saylor as the man he had seen in the van with VanDuyn. A jury convicted Saylor of murder, robbery and confinement.

The circumstances of Saylor's sentencing and changes in Indiana's death penalty statute raise the issue before us today. Although Indiana law now provides for the possibility of a sentence of life without parole, Saylor's crime was committed at a time when the only sentencing alternatives in a death penalty case were death or a term of years. Despite a unanimous recommendation against the death penalty, the trial judge nevertheless imposed death. Saylor is one of only three people in this state currently under a sentence of death despite a jury recommendation against it.¹ None of those have been executed. At the time of Saylor's trial and direct appeal Indiana law clearly authorized the judge to "override" a jury recommendation if the judge found the statutory aggravating circumstances to outweigh any mitigating circumstances. Minnick v. State, 544 N.E.2d 471, 482 (Ind.1989). Consistent with that authority, in 1997 this Court affirmed Saylor's sentence. Saylor, 686 N.E.2d at 89. In 2000, the United States Supreme Court decided Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), which held that a jury must determine beyond a reasonable doubt any fact necessary to enhance a sentence. In the 2002 session of the Indiana General Assembly, in response to Apprendi, and anticipating that that decision might apply to the death penalty despite the contrary holding in Walton v. Arizona, 497 U.S. 639, 110 S.Ct. 3047, 111 L.Ed.2d 511 (1990), legislation was introduced to cure the perceived "Apprendi problem" in the Indiana death penalty statute. In the meantime Saylor had been denied post-conviction relief, and on March 20, 2002, this Court affirmed the denial of relief. Saylor, 765 N.E.2d at 535. Six days later, on March 26, 2002, the General Assembly amended Indiana's death penalty statute to remove the express authority to impose death even if the jury recommended against it. Act of March 26, 2002, 2002 Ind. Acts 117; Ind.Code § 35-50-2-9(e) (2002). On June 24, 2002, the United States Supreme Court decided Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002), which overruled Walton and applied Apprendi to capital cases. The result is that under current Indiana law a jury recommendation against death would preclude imposition of the death penalty.

Saylor now seeks rehearing, citing the new statute as well as the logic of Apprendi.² He makes four claims: 1) his death sentence is unconstitutional in light of Apprendi and Ring, 2) the amendments to the death penalty statute should apply to him, 3) he was denied a fair trial because of undisclosed juror-witness relationships, and 4) his counsel failed to properly investigate the State's case. We resolve Saylor's claim on the basis of his first two issues, and deny rehearing on the remaining issues.

Review of Saylor's Sentence in Light of Changes in the Law

Saylor seeks rehearing of our decision affirming denial of post-conviction relief. He points to the changes in both federal constitutional jurisprudence and in our state's death penalty statute. For the reasons given below, we revise Saylor's sentence to a term of one hundred years.

Both parties address the issue in part as whether Ring is to be applied retroactively. In Daniels v. State, 561 N.E.2d 487, 489 (Ind.1990), we adopted for Indiana state law the federal retroactivity analysis outlined in Teague v. Lane, 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989). Teague deals with retroactivity on collateral review, and begins with the premise that the court should apply a "newly declared constitutional rule to criminal cases pending on direct review." Id. at 304, 109 S.Ct. 1060 (citations omitted). On collateral review the threshold question is whether the new rule is procedural or substantive. If it is procedural, it "is generally not applicable to those cases on collateral review, that is, those which have become final before the new rule was announced." Daniels, 561 N.E.2d at 489 (citing Teague, 489 U.S. at 288,109 S.Ct. 1060). Saylor's conviction and sentence became final in 1997 when this Court affirmed his direct appeal. This general rule has two exceptions: 1) rules which place "certain kinds of primary, private individual conduct beyond the power of the criminal law-making authority to proscribe," and 2) those which require the observance of "procedures that ... are `implicit in the concept of ordered liberty,' " and "without which the likelihood of an accurate conviction is seriously diminished." Id. at 490 (citing Teague, 489 U.S. at 307, 313,

109 S.Ct. 1060) (internal citations omitted).

The majority of courts to have considered the issue have held that Ring is an application of the procedural rule announced in Apprendi, and as such does not apply retroactively to cases on collateral review. Lambert v. McBride, 365 F.3d 557, 2004 U.S.App. LEXIS 6658 (7th Cir. 2004); Turner v. Crosby, 339 F.3d 1247 (11th Cir.2003); Cannon v. Mullin, 297 F.3d 989 (10th Cir.2002); State v. Lotter, 266 Neb. 245, 664 N.W.2d 892 (2003); Colwell v. State, 118 Nev. 807, 59 P.3d 463 (2002). Summerlin v. Stewart, 341 F.3d 1082 (9th Cir.2003) (en banc), cert granted sub nom, Schriro v. Summerlin,

___ U.S. ___, 124 S.Ct. 833, 157 L.Ed.2d 692, is the only case we have found that applies Ring retroactively. The United States Supreme Court granted certiorari in Summerlin on December 1, 2003. At this writing we have no definitive decision on the retroactive application of Ring under Teague. For the reasons given below we do not need to await resolution of this federal constitutional issue, and also do not address whether, even if there is no federal requirement that Ring be applied retroactively, Indiana may nevertheless choose to apply it to pre-Ring convictions as a matter of state law.

Article VII, Section 4 of the Indiana Constitution provides that "[t]he Supreme Court shall have, in all appeals of criminal cases, the power to ... review and revise the sentence imposed." Appellate Rule 7(B) implements that authority: "The Court may 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."

Sentencing decisions are highly case sensitive and are for the most part best left to the discretion of the trial court as long as the sentence comports with applicable statutes and is imposed in accordance with applicable procedural requirements. Nevertheless, the power to review and revise was expressly conferred by the 1970 amendment to the Indiana Constitution. In Serino v. State, 798 N.E.2d 852 (Ind.2003), this Court recently reviewed the history of Indiana appellate review of sentencing. In brief, the Indiana Constitution was amended in 1970 to recognize the desirability of encouraging consistency in sentencing in similar cases despite differences of time, place, and sentencing judge. In taking this approach, Indiana expressed a preference for the British tactic of appellate review of sentences, and did not pursue the much more severe restrictions on sentencing discretion imposed on federal courts at roughly the same time in our nation's history by the Federal Sentencing Guidelines. See generally Walker v. State, 747 N.E.2d 536, 537-38 (Ind.2001)

(addressing prior version of Indiana Appellate Rule 7(B)); Charles J. Ogletree, Jr., Commentary: The Death of Discretion? Reflections on the Federal Sentencing Guidelines, 101 Harv. L.Rev.1938, 1940-42, 1957-58 (1988); Joel M. Schumm, Survey: Criminal Law and Procedure: Recent Developments in Indiana Criminal Law and Procedure, 34 Ind. L.Rev. 645, 670-71 (2001).

We have long explained that review of a death sentence must be more intensive than that required for a...