David, J.
Seventeen-year-old Andrew Conley was sentenced to life in prison without parole (LWOP) for the brutal murder of his ten-year old brother. We affirmed his sentence on direct appeal. At issue now is whether trial counsel’s failure to present evidence of Conley’s age and juvenile brain development, to call or examine certain witnesses and expert witnesses, to challenge the State’s mental health experts, and failure to conduct further investigation constituted ineffective assistance of counsel at sentencing. We hold Conley did not receive ineffective assistance of counsel and affirm the post-conviction court.
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Conley alleges that he received ineffective assistance of trial counsel at sentencing. That is, he raises several evidentiary issues, and argues counsel was deficient in the handling of records, lay witnesses, and expert witnesses. Although not raised by Conley, our Court of Appeals sua sponte found that counsel was ineffective for not presenting evidence of juvenile brain development under United States Supreme Court precedent and found that there was cumulative prejudice necessitating a new sentencing hearing. For the reasons discussed herein, we hold that Conley did not receive ineffective assistance of counsel at sentencing and accordingly, we affirm the post-conviction court in full.
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Our Court of Appeals reversed the post-conviction court on a ground Conley did not raise on appeal. It found counsel was deficient for not presenting evidence of juvenile brain development and juveniles’ lesser moral culpability, as discussed in U.S. Supreme Court precedent, Roper v. Simmons, 543 U.S. 551 (2005), and Graham v. Florida, 560 U.S. 48 (2010). We agree with the State that an appellate court’s role is an impartial adjudicator, not an advocate. See, e.g., Thomas v. State, 965 N.E.2d 70, 77 n.2 (Ind. Ct. App. 2012) (stating that an appellate court should not “make up its own arguments” when a “party has not adequately presented them” because this causes the court to become “an advocate rather than an adjudicator”) (internal citations and quotations omitted). Nevertheless, we will address this issue briefly.
It is true that counsel did not raise any brain development cases during sentencing. But we note that Roper and Graham’s ultimate holdings are not directly applicable to Conley’s case. For example, Roper held that it is unlawful to impose the death penalty for a crime that was committed while the offender was under the age of eighteen. 543 U.S. at 575–78. And Graham held that a juvenile LWOP sentence is unlawful for a conviction other than homicide. 560 U.S. at 82. Here, Conley did not receive the death penalty, and he was convicted of homicide. Therefore, neither Roper nor Graham’s holdings clearly apply to or otherwise conflict with the facts here.
Instead, counsel made arguments based on Conley’s age and character, focusing on mitigators specific to Conley rather than evidence about juvenile brain development in general. While counsel could have brought this line of cases regarding juvenile brain development to the court’s attention, we do not find the failure to do so falls below the prevailing professional norms because neither Roper nor Graham’s ultimate holdings clearly apply to Conley’s case.
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Of course, juvenile LWOP sentences are not the default, but the exception. Moreover, this Court has recognized that juveniles have diminished culpability and greater prospects for reform, and we have given juvenile offenders relief where appropriate. See, e.g., State v. Stidham, 157 N.E.3d 1185 (Ind. 2020) (revising a 138-year sentence to 88 years for a seventeen-year-old convicted of stabbing a man 47 times and throwing his body in a river); Wilson, 157 N.E.3d at 1163 (revising a 181-year sentence to 100 years for a sixteen-year-old convicted of two murders, a robbery, and a criminal gang enhancement); Taylor v. State, 86 N.E.3d 157 (Ind. 2017) (revising an LWOP sentence to 80 years for a sixteen-year-old convicted of shooting and killing another juvenile); Brown v. State, 10 N.E.3d 1 (Ind. 2014) (revising a 150-year sentence to 80 years for a sixteen-year-old convicted of two counts of murder and one count of burglary). Yet, we consider Conley I to be an important guidepost for juvenile LWOP cases where, even considering the notable differences between juveniles and adults, the juvenile’s crimes are so reprehensible and heinous that an LWOP sentence would be appropriate.
Conley also argues that counsel was ineffective for failing to call or failing to effectively examine witnesses who knew him well and could provide helpful mitigation evidence. However, it is not clear if or how such evidence would have helped Conley. As the post-conviction court found, many of the witnesses called to testify at the post-conviction hearing had also been called at the sentencing hearing; the bulk of the testimony from the witnesses on post-conviction was about how shocked they were that Conley killed his brother. The post-conviction court further found not only that Conley failed to elicit anything new and helpful, but also that some of the new testimony would have harmed him. For instance, Ashley Palaima, a witness called at the post-conviction hearing but not at the sentencing hearing, acknowledged on cross-examination that she could not think of a more serious or worse crime than what Conley did to his brother Conner.
At sentencing, defense counsel presented numerous lay witnesses, including Conley’s grandmother, his former Cub Scout leader, two of his teachers, his high school principal, and his former school counselor, who also owned a restaurant where Conley once worked Counsel also elicited testimony from lay witnesses called by the State, including Conley’s parents, his girlfriend, and two of his close friends. Conley fails to demonstrate how such additional evidence would have been helpful. The fact that counsel did not call every person Conley knew or present cumulative evidence regarding how his crime was out of character does not constitute deficient performance. See Moredock v. State, 540 N.E.2d 1230, 1232 (Ind. 1989) (observing that the decision not to call a witness whose testimony is cumulative does not constitute ineffective assistance of counsel). Conley also has not shown prejudice when the testimony offered at post-conviction contained information that either was not new or was not helpful to him. Therefore, Conley has failed to meet his burden to show that the result of the proceeding would have been different if counsel had called additional witnesses.
Conley argues that he received ineffective assistance of counsel when his counsel failed to call a defense pathologist to refute testimony from the State’s pathologist, Dr. Hawley. Dr. Hawley’s testimony included the facts that: (1) Conner had been sexually assaulted; and (2) Conner could have been alive when the plastic bag was placed over his head. During the post-conviction hearing, Conley presented evidence through pathologist, Dr. Nichols. Conley argues that Dr. Nichols was able to refute both of Dr. Hawley’s points and that trial counsel was ineffective for not presenting such evidence at sentencing.
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It cannot be said that counsel was deficient for failing to put on an expert witness who provides evidence about points which were not necessary or even considered by the trial court. Further, the postconviction court weighed the testimony of both experts, considered the record, and reaffirmed the testimony of Dr. Hawley. Moreover, our standard of review demands that we do not reweigh this type of evidence. See Taylor, 717 N.E.2d at 92. And there is certainly no prejudice where the trial court would have come to the same conclusions about the horrific nature of the crime regardless of whether Conner was alive when the bag was placed over his head.
With regard to the evidence that Conner was sexually assaulted, Dr. Nichols testified that evidence of anal dilation, without more, is not necessarily indicative of sexual assault. This evidence would serve to rebut testimony from Dr. Hawley that there had been a forced anal sexual act. However, again, it is not clear how such evidence would have been helpful to Conley or impacted the outcome where the State conceded at sentencing that there was no evidence of sexual assault and the court found the same. Indeed, the court did not even mention this information when discussing the nature of the crime at sentencing. Because the State conceded that there was no evidence on this issue, counsel was not ineffective for not putting on an opposing expert, and Conley cannot show prejudice where the court did not consider this evidence when determining his sentence.
Conley also faults counsel for not properly challenging the State’s mental health experts, Dr. Daum and Dr. Olive. He argues counsel was ineffective for not having Dr. Daum’s testimony excluded when Dr. Daum never examined Conley himself and based his opinions only on written records. Conley also argues that counsel failed to bring to the court’s attention the fact that there was a Seventh Circuit opinion wherein a Dr. Olive was “discredited.” However, Conley has shown neither deficient performance of counsel nor prejudice.
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Finally, Conley argues that counsel was ineffective for failing to complete a more thorough investigation through the defense investigator and for not requesting Conley’s jail records. Our Court of Appeals is critical of the fact that the investigator stated in a letter that this matter was “very complex” and “there are several matters that require further investigation.” Conley, 164 N.E.3d at 809-10 (quoting PCR Ex. Vol. 1, p. 101). It found this additional investigation was not completed.
Here, the investigator made this statement in his first letter outlining the scope of his completed work and indicating work he believed he still needed to complete, which he estimated was about ten to twelve more interviews. As indicated in subsequent letters, he then completed additional work by conducting at least ten interviews and gathering more records. Further, the investigator supplied an affidavit for the post-conviction proceedings outlining the work he performed during the case; it does not aver that he had work left undone. Thus, under our standard of review, counsel’s investigation does not fall below the prevailing professional norms because the record does not support the allegation that work remained incomplete after the investigator’s first letter. As such, counsel was not ineffective for failing to permit a more thorough investigation.
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Conley argues that his LWOP sentence should be revised under Appellate Rule 7(B). This Rule enables this Court to “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.”
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However, we already addressed the appropriateness of Conley’s LWOP sentence in Conley I, and therefore, Conley’s 7(B) arguments seeking sentence revision are barred by res judicata.
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Because Conley cannot overcome the “rigorous standard of review” for evaluating the post-conviction court’s determinations, Wilson, 157 N.E.3d at 1170, we cannot say that the evidence “leads unerringly and unmistakably to a decision opposite that reached by the postconviction court.” Timberlake, 753 N.E.2d at 597. Therefore, in light of the facts in the record, which we will not reweigh, Conley has not demonstrated that he received ineffective assistance of counsel. Moreover, Conley has not met his burden to show that counsel’s performance fell objectively below the prevailing professional norms or that he was prejudiced by any of counsel’s alleged errors. We affirm the post-conviction court.
Massa, Slaughter, and Goff, JJ., concur.
Rush, C.J., concurs in result.