David, J.
A jury found defendant guilty of murdering his 17-year-old girlfriend and recommended a sentence of life without parole. The trial court entered judgment accordingly. In a direct appeal, defendant now challenges his sentence arguing that: 1) the trial court committed fundamental error because it should have sua sponte determined that he had an intellectual disability, precluding a life without parole sentence, even though his trial counsel withdrew the petition to determine whether he had said disability; 2) his sentence is unconstitutionally disproportionate pursuant to Article 1, Section 16 of the Indiana Constitution; and 3) his sentence is inappropriate pursuant to Indiana Appellate Rule 7(B). …
In November 2013, Michael Shoun was dating Tiana Alter, who was 17 years old at that time. Shoun was approximately 8-9 years older than Alter and had been dating her since she was 13. … Shoun was supposed to be residing in a work release facility as part of his sentence for a class C felony being a habitual traffic offender conviction; however, Shoun was a fugitive from the facility and was staying in Alter’s room at his sister’s home.
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When police arrived at the home, they found Shoun in the basement throwing and breaking things. … After multiple officers arrived and drew their weapons, Shoun eventually complied and allowed himself to be handcuffed. He told one of the officers “she’s dead.”
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An autopsy revealed that parts of Alter’s internal organs had been separated from their normal positions and entangled with her intestines. … Shoun inflicted so many cut and stab wounds to Alter’s body that the forensic pathologist who completed her autopsy was unable to accurately count them. …
The State charged Shoun with Alter’s murder. Shortly after being appointed, Shoun’s counsel requested a competency evaluation. Because the first two competency evaluations were in conflict about whether Shoun was competent, a third evaluation was ordered. It revealed that Shoun was competent. The State amended its charging information to request a sentence of life without parole (LWOP). It alleged two aggravating circumstances in support of LWOP: 1) that Shoun was in the custody of the Department of Correction at the time of the murder; and 2) that Shoun mutilated Alter while she was alive.
Shoun filed a petition alleging that he suffers from an intellectual disability that makes him ineligible for a LWOP sentence. However, Shoun ultimately withdrew this petition, as Shoun’s trial counsel believed this petition would not be successful. … Because Shoun withdrew his petition, the trial court cancelled the hearing on his petition and made no findings regarding the existence of an intellectual disability under the statute.
The case proceeded to a bifurcated jury trial. During the first phase, the jury found Shoun guilty of murder, a felony. … The jury also found that the statutory aggravating circumstances outweighed the mitigating circumstances. The jury recommended a sentence of LWOP be imposed. … Shoun appeals only his LWOP sentence.
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1. Intellectual Disability
Here, Shoun acknowledges that his trial counsel filed a motion for a hearing under the Disability Chapter, but that counsel ultimately withdrew that motion prior to hearing. He further acknowledges that the issue is, therefore, waived for appellate review, but nevertheless, requests that this Court apply the fundamental error exception to find that the trial court should have sua sponte determined that he is an individual with an intellectual disability and thus, ineligible for LWOP.
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Looking at the incomplete record on this issue, and with Shoun’s own trial counsel conceding there was not enough evidence to prove Shoun’s intellectual disability pursuant to the Disability Chapter, it cannot be said that the trial court committed fundamental error when it did not find on its own that Shoun had an intellectual disability.
2. Proportionality of Shoun’s Sentence
Article 1, Section 16 of the Indiana Constitution provides in part: “All penalties shall be proportioned to the nature of the offense.” …
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… He argues that despite his failure to comply with the statutory procedure for determining whether he has an intellectual disability, the legislative intent behind the Disability Chapter is that someone with a disability who commits murder should not face the death penalty or LWOP. …
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In this case, the nature of the current offense is particularly severe. …
Shoun’s LWOP penalty is not only based upon his status as a prior offender, but is also independently supported by the nature of his crime. … the nature of the offense here is so severe that it cannot be said that the LWOP penalty is disproportionate.
3. Appellate Rule 7(B)
Finally, Shoun argues that his sentence is inappropriate in light of the nature of the offense and his character pursuant to Indiana Appellate Rule 7(B). …
Shoun does not dispute the severe nature of the crime and focuses his argument on his character—that is, his alleged intellectual disability as evidenced by his low IQ and his “compromised psychological state.” He also urges this Court to consider that he was under the influence of drugs at the time of the offense and evidence that he was acting bizarre prior to and after the crime. Finally, he notes that he was abused as a child. …
However, Shoun’s arguments that his character makes his LWOP sentence inappropriate are not persuasive. … Looking at the severe nature of the current offense and Shoun’s character, which evidences disregard for the law, LWOP is not inappropriate.
Conclusion
… Accordingly, we affirm the trial court’s LWOP sentence.
Rush, C.J., Rucker, Massa and Slaughter, J.J., concur.