Wilson v. State

• Decision Date: 27 June 2019
• Docket Number: Court of Appeals Case No. 18A-PC-3041
• Citation: 128 N.E.3d 492
• Parties: Donnell WILSON, Appellant-Petitioner, v. STATE of Indiana, Appellee-Respondent
• Court: Indiana Appellate Court

128 N.E.3d 492

Donnell WILSON, Appellant-Petitioner,

v.STATE of Indiana, Appellee-Respondent

Court of Appeals Case No. 18A-PC-3041

Court of Appeals of Indiana.

Filed June 27, 2019

Attorney for Appellant: Stephen T. Owens, Public Defender of Indiana, Katherine Province, Anne C. Kaiser, Deputy Public Defenders, Indianapolis, Indiana

Attorneys for Appellee: Curtis T. Hill, Jr., Attorney General of Indiana, Monika Prekopa Talbot, Deputy Attorney General, Indianapolis, Indiana

Baker, Judge.

[1] Donnell Wilson grew up in an urban war zone and became a gang member at a young age. He was sixteen years old at the time he committed murder and other crimes. The trial court sentenced him to an aggregate sentence of 181 years, which is a de facto sentence of life without parole. Wilson's trial counsel presented no evidence at his sentencing hearing, and counsel's sentencing argument takes up only 2 pages of a transcript that spans over 700. The sentencing hearing did not include evidence regarding Wilson's youth and its attendant characteristics or Wilson's particular characteristics; as a result, it did not comply with relevant caselaw.

[2] On post-conviction, Wilson argued that he received the ineffective assistance of trial counsel. We agree. We therefore reverse and remand with instructions to vacate Wilson's sentences and to hold a new sentencing hearing that complies with Miller v. Alabama , 567 U.S. 460, 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012).

Facts¹

Wilson's Background

[3] Wilson, who was sixteen years old at the time he committed the crimes at issue in this appeal, grew up in Gary. He was the sixth of twelve children and was intelligent and a role model to his siblings and classmates. Glen Park, the neighborhood in which Wilson grew up, was an "urban war zone." PCR Ex. 8 p. 5. His mother did not allow her children to play outside and taught them to fall to the floor or go to the basement if they heard gunshots. Wilson was under threat of serious injury and death nearly every day. When he was seven or eight years old, he saw another child get shot in the head. On another occasion, he saw two friends get shot. His home was firebombed on one occasion and shot at multiple times; he was present when the home was firebombed. Wilson had been shot on at least two occasions.

[4] Growing up in such an area caused Wilson to develop a "war zone mentality" characterized by "hypervigilance," which is manifested as extreme sensitivity to potential threats and a high probability of responding to perceived threats with aggression. PCR Ex. 6 p. 7. As a result of his surroundings, Wilson developed post-traumatic stress disorder (PTSD) at a young age.

[5] As is common for individuals living in urban war zones, Wilson became affiliated with several gang groups, including the Get Fresh Boys and Tre 7. Glen Park and its gangs were rivals with the gangs of another Gary neighborhood.

The Crimes and Direct Appeal

[6] On March 17, 2013, Wilson was sixteen years old. The facts, as described by this Court in Wilson's direct appeal, are as follows:

In March 17, 2013, fifteen-year-old Pecolla Crawford was walking home with her brother Jonte Crawford, their cousin Jordan Hendrix, and Wilson, who was dating Pecolla at the time. Hendrix was in town visiting and staying with Pecolla and Jonte. While the group was walking, they encountered fifteen-year-old Derrick Thompson, at which point Jonte and Wilson began harassing and intimidating Thompson, flashing the guns they were carrying, and asking Thompson what part of town he was from. Wilson was carrying a silver .357 revolver and Jonte had a black handgun. Jonte then told Thompson to give him his phone and Wilson made a reference to Tre 7, a local gang, and grabbed Thompson's Dre Beats headphones off of his head. The two then left Thompson and continued walking with Pecolla and Jordan.

The group then encountered brothers Shaqwone Ham and Charles Wood. Jordan, who was friends with the brothers, exchanged greetings and continued walking with Pecolla. Pecolla then heard Jonte and Wilson begin to argue with the brothers. Wilson said, "Y'all looking for me? I'm in your hood." A couple seconds later, Wilson shot Wood in the head. As Ham attempted to run, Jonte shot him several times. Both Ham and Wood died as a result of their injuries. Shortly after the incident, police received calls from Thompson and a nearby resident who witnessed the shooting. Jonte and Wilson were subsequently arrested and Thompson's phone and headphones were recovered from Jonte at the police station.

Ham and Wood were members of the Dolla Boys gang, which was a subset of the larger Bottom Side gang. Wilson was part of several interrelated gangs including the Get Fresh Boys, Tre 7, and Glen Park Affiliated, all of which were at odds with the Bottom Side gangs. Wilson had posted several gang related comments on his Twitter account including, "up for da bottom," referring to people from Bottom Side, "Tre 7 got da mac," "Yea ima freshboy but im riding thru da bottom," and "Claim da bottom u get whacked." On March 12, 2013, Wilson tweeted "[If I] see a dolla he betta duck," and on the day of the murders, he tweeted, "GlenPark or get shot!!!"

Wilson v. State , 30 N.E.3d 1264, 1266 (Ind. Ct. App. 2015) (internal citations and footnote omitted), trans. denied . The State charged Wilson with two counts of murder, Class B felony armed robbery, and Class D felony conspiracy to commit criminal gang activity, also seeking criminal gang activity sentence enhancements for the murder and robbery charges.

[7] Wilson's jury trial began on June 30, 2014. The State sought to introduce Wilson's tweets and Wilson objected; the trial court overruled the objection and admitted the evidence. At the close of the trial, the jury found Wilson guilty as charged, including the criminal gang activity sentence enhancement. The trial court sentenced Wilson to consecutive terms of 60 years for one murder conviction, 55 years for the second murder conviction, 6 years for armed robbery, and 2 years for conspiracy to commit criminal gang activity, with an additional 60 years added pursuant to the criminal gang activity sentence enhancement, for an aggregate sentence of 183 years imprisonment.

[8] Wilson appealed, arguing that (1) the trial court erred by admitting the tweets into evidence; (2) Wilson's conviction for conspiracy to commit criminal gang activity should be vacated because it violated the prohibition against double jeopardy; and (3) the trial court erred by excluding Wilson from a portion of trial because of an outburst. This Court found in favor of Wilson on the second issue, vacating his conspiracy conviction based on double jeopardy principles and remanding to the trial court for a sentence reduction. This Court ruled against Wilson on the other two issues. The end result of the direct appeal was an aggregate sentence of 181 years imprisonment. Our Supreme Court denied Wilson's petition to transfer.

Post-Conviction Relief

[9] On August 11, 2016, Wilson filed a pro se petition for post-conviction relief; it was later amended by counsel on February 10, 2017, and again on August 18, 2017. Wilson argued that his sentence is unconstitutional pursuant to United States Supreme Court precedent; that the criminal gang enhancement is unconstitutional as applied to him; and that he was denied the effective assistance of trial and appellate counsel.

[10] The post-conviction court held an evidentiary hearing on March 6-8, 2018. Trial and appellate counsel each testified at the hearing. Trial counsel stated that he met with Wilson five to eight times, spending forty-five to ninety minutes with him each time. Wilson rejected a plea offer that would have resulted in an aggregate sentence of 100 years imprisonment. Trial counsel believed that trial would be an uphill battle based on eyewitness testimony and Wilson's tweets; counsel also knew that if convicted, Wilson would receive consecutive sentences for each murder conviction because that trial judge typically sentenced defendants in that manner. Counsel spoke with Wilson's family but no one told him that Wilson had any mental health issues; therefore, counsel did not consider hiring a mental health expert. Wilson's presentence investigation report stated that Wilson did not have any mental health issues.

[11] Appellate counsel testified that at the time of Wilson's direct appeal, he was not familiar with Miller v. Alabama , 567 U.S. 460, 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012), and that he did not consider challenging the constitutionality of Wilson's sentence. He considered raising an abuse of discretion argument regarding the sentence but decided against it because the trial court mentioned Wilson's young age many times during sentencing. Counsel admitted that he should have raised an argument that the sentence was inappropriate pursuant to Indiana Appellate Rule 7(B).

[12] As part of the post-conviction proceedings, forensic psychologist Dr. Charles Ewing conducted a psychological evaluation of Wilson in August 2017. In his opinion, Wilson should have had a competency evaluation before going to trial because of his prior mental health history² and the fact that he had only completed the eighth grade at the age of sixteen. Dr. Ewing diagnosed Wilson with PTSD, concluding that he had been suffering from PTSD since he was a young child. Dr. Ewing testified that Wilson's life experiences left him not fully capable of appreciating the consequences of his behavior and that Wilson was immature for his age, impulsive, poorly educated, unsocialized, and mildly paranoid. In Dr. Ewing's opinion, Wilson's chances of recidivism were high until he reached the age of twenty-five, but after that age, Wilson was a good candidate for rehabilitation.

[13] Developmental psychologist Dr. James Garbarino testified that at the time of the murders, Wilson was in a state of hypervigilance. Wilson told Dr. Garbarino that the victims had not pulled...