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ATTORNEYS FOR APPELLANT Steve Carter Attorney General of Indiana Andrew A. Kobe Deputy Attorney General Indianapolis, Indiana

ATTORNEYS FOR APPELLEE Susan K. Carpenter Public Defender of Indiana Steven H. Schutte Joanna Green Deputy Public Defenders Indianapolis, Indiana

In the

Indiana Supreme Court
_________________________________ No. 82S00-0503-PD-78 STATE OF INDIANA, Appellant / Cross-Appellee (Respondent below), v. PAUL M. MCMANUS, Appellee / Cross-Appellant (Petitioner below). _________________________________ Appeal from the Vanderburgh Circuit Court, No. 82C01-0102-CF-192 The Honorable William J. Brune, Special Judge _________________________________ June 27, 2007 Shepard, Chief Justice. Having completed his direct appeal, Paul McManus sought post-conviction relief. The post-conviction court largely rejected his claims, except for his contention that he is mentally retarded. Persuaded by his retardation claim, the post-conviction court vacated the sentence of death and entered a sentence of life without parole. We direct judgment for the State.

Facts and Procedural History

In May 2002, a jury found Paul McManus guilty of murdering his wife and two daughters and recommended the death sentence. The trial court found that aggravating circumstances outweighed mitigators and sentenced McManus to death. McManus appealed, challenging

among other things his competency to stand trial. We affirmed. McManus v. State, 814 N.E.2d 253 (Ind. 2004), cert. denied, 126 S.Ct. 53 (2005).

McManus petitioned for post-conviction relief on August 22, 2005 and amended the petition on January 6, 2006. The State moved for summary judgment as to most of McManus' claims, which the court granted. McManus then sought and received a change of judge. On March 6, 2006, the first day of evidentiary hearings, Senior Judge Brune reversed the partial grant of summary judgment to the State.

McManus filed his witness and exhibit list on January 6, 2006, in accord with the case management schedule. Four days after the close of discovery, on February 10, McManus filed an amended witness and exhibit list adding Dr. Edmund Haskins. The State then requested reports from Dr. Haskins and Dr. Dennis Olvera, but McManus did not supply the reports until February 27. The State sought to exclude the testimonies and reports of Dr. Haskins and Dr. Olvera citing these delays, but the court denied the motion.

During the evidentiary hearings, several witnesses testified about McManus' psychological history and mental abilities. At the age of seven, McManus took his first IQ test, but the examiner did not record a score. The examiner did conclude, however, that McManus fell "within the lower limits of the low average range." (PC Hr'g Tr. at 595.) McManus received a full-scale IQ score of 81 at age 11, and the examiner characterized his score as "within a low average range." (Id. at 596.) Three years later, McManus scored a 72, but "it was the examiner's judgment that [McManus] wasn't giving adequate effort . . . [and that] the scores likely underestimated his potential intellectual ability." (Id. at 597.) McManus took his next IQ test after the murders (at age 30) and scored a 70, but the examiner thought the score was "suppressed slightly because of [McManus] being anxious and depressed at the time of testing."

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(Id. at 597-98; Trial Tr. at 1421.) McManus took his most recent IQ test in February 2006 (at age 34) and scored a 78. (PC Hr'g Tr. at 598.)

Dr. Olvera and his assistant performed two adaptive behavior assessments on McManus based on interviews with McManus' three employers, his mother, his sister, and his sister-in-law. (Petr.'s Ex. 11 at 1.) The Adaptive Behavior Assessment System II ("ABAS II") has three primary domains (Conceptual, Social, and Practical), and McManus did not fall within the mentally retarded range on any of these domains. (Id. at 4.) The ABAS II also has ten subdomains, and Dr. Olvera testified that McManus scored in the mental retardation range in "Functional Academics" and just outside the mental retardation range in "Community Use." (Id.) 1 Of the three domains tested by the Vineland-II Adaptive Behavior Scales ("VABS II") (Communication, Daily Living, and Socialization), McManus scored in the mental retardation range in "Communication" and both within and without the mental retardation range in "Socialization." (Id. at 2-3.) 2 These scores led Dr. Olvera to conclude that McManus had substantial impairments of adaptive behavior. (Id. at 5.)

Co-workers testified that McManus performed ably at his three jobs, often working 18-20 hours per day. (Trial Tr. at 615-16, 843-44, 956-57, 1019-20, 1037.) He successfully completed forklift training, including a written test, and operated a forklift thereafter. (PC Hr'g Tr. at 23839, 241.) Although McManus has always had learning disabilities, poor reading skills, and ADHD, necessitating special education during his school years, he did graduate high school. (Trial Tr. at 1213-14, 1363-64, 1679-81; PC Hr'g Tr. at 219, 271-72.)

Persuaded that McManus had a freestanding Atkins claim and that the preponderance of the evidence established that McManus was mentally retarded, Judge Brune granted McManus' petition in part, vacating the death sentence, and imposed a sentence of life without parole.

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McManus received a score of 2 in "Functional Academics" and 5 in "Community Use." Scores on the ABAS II have a mean of 10 and a standard deviation of 3. (Petr.'s Ex. 11 at 3-4.) A person is considered in the mental retardation range if they score lower than a 4. (See PC Hr'g Tr. at 602-03.) 2 McManus received scores of 21 and 21 in "Communication" from the two respondents on the VABS II. He received scores of 71 and 54 in "Socialization." VABS II scores have a mean of 100 and a standard deviation of 15. (Petr.'s Ex. 11 at 2-3.) Thus, a person is considered in the mental retardation range if they score lower than a 70. (See PC Hr'g Tr. at 604-05.)

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(App. at 522-605, 609-10.) The State appealed and McManus cross-appealed, presenting a total of five claims for our resolution.

I. Mental Retardation

Indiana statutes have provided a pre-trial means by which mentally retarded defendants can seek exemption from the death penalty since 1994, yet McManus waited until his postconviction proceedings in 2005 to raise a mental retardation claim. The post-conviction court considered McManus' mental retardation claim on the merits relying on the U.S. Supreme Court's decision in Atkins v. Virginia, 536 U.S. 304 (2002). We must determine first whether McManus' claim of retardation was preserved even though he failed to follow Indiana's existing statutory procedure, and if so, whether McManus meets the definition of mental retardation.

A. Preservation of the Claim

In 1994, before any constitutional mandate, Indiana declared that a request for the death penalty must be dismissed when a defendant establishes to the court's satisfaction that he is mentally retarded. See 1994 Ind. Acts 1851-52 (currently codified at Ind. Code Ann. ch. 35-36-9 (West 2006)). The act established pre-trial procedures requiring a defendant to file a petition alleging that he is mentally retarded at least twenty days prior to the omnibus date. Ind. Code Ann.

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