DeBRULER, Justice.
This is an appeal from the denial of post-conviction relief. Appellant Thomas N. Scehi-ro sought and was granted leave by this Court to file a successive petition for post-conviction relief. We granted permission to file with respect to two questions, one of which was:
Whether Schiro is entitled to reversal of his death sentence in light of Martinez: Chavez v. State, 534 N.E.2d 731, modified, 539 N.E.2d 4 (Ind.1989).
On remand, Judge Heather M. Mollo entered judgment denying post-conviction relief. Such judgment is reversed and the cause is remanded with instructions to grant postcon-viction relief setting aside the sentence of death and imposing in lieu thereof a term of sixty years, the maximum term provided for the offense of felony murder.
Appellant Schiro strangled Laura Luebbe-husen in her house in Evansville, Indiana in 1981. He worked in her neighborhood and was an inmate of a halfway house for those facing release from prison. He gained entrance to her home by feigning the need to use her telephone. He was then under the influence of drugs and alcohol. He gained her confidence by discussing personal sexual matters, drank some more alcoholic beverages, and the two engaged in some form of sexual touching. At one point they left together to buy more alcoholic beverages. Upon their return, appellant attacked her, raped her, struck her on the head with a vodka bottle and an iron object, and finally strangled her to death. He then dragged [1358]*1358her into another room and sexually assaulted the corpse. Schiro drove Luebbehusen's car to the vicinity of the halfway house and there persuaded the night watchman to falsify the sign-in sheet to show that he had not been absent from the half-way house during the time of the killing. Although undoubtedly acting with an awareness that he could not avoid becoming a prime suspect in the murder, Schiro did turn himself in to the director of the halfway house, confessing the killing.
In 1981, Schiro was charged with both the intentional murder and felony murder of Laura Luebbehusen, ie., killing her while raping her or attempting to do so. The venue of the trial was changed from Vander-burgh County to Brown County. Later in 1981, in a trial by jury, wherein the plea by appellant was insanity, appellant Schiro was convicted on the felony murder charge. The verdict form for the intentional murder was left blank by the jury.
Pursuant to Ind.Code Ann. § 35-50-2-9(b)(1) (West Supp.1996), the prosecution sought the death penalty by alleging the B(1) aggravator, namely that appellant had intentionally killed Laura Luebbehusen during the commission of the crime of rape. Following the jury sentencing hearing, the jury, after deliberating for one hour, returned a unanimous recommendation that the death penalty not be imposed. Two weeks later, after the judge sentencing hearing, the trial judge, Judge Rosen, sentenced appellant to death.
In 1983, the felony murder conviction and the sentence of death were affirmed in Schi-ro's first and direct appeal. This case has been considered on three previous occasions by this Court and onee by the Supreme Court of the United States. Schiro's direct appeal is Schiro v. State, 451 N.E.2d 1047 (Ind.1983). In that appeal, Schiro made the following elaim:
In this last sub-paragraph of Issue II, Schiro urges this Court to overturn the death penalty. The main basis for his contention is that the trial court rejected the jury's recommendation that no death penalty be imposed. Schiro believes this Court should impose a stricter standard of review in situations where the trial court and jury disagree about the imposition of a sentence of death.
Schiro, 451 N.E.2d at 1058. A majority of this Court resolved this claim against Schiro, concluding:
We will not engage in a different standard of review where jury and trial court disagree.
Id. A majority of this Court concluded that the sentence of death was appropriate.
In 1989, at a time following an affir-mance of the denial of Schiro's second petition for post-conviction relief, this Court decided Martinez Chaves v. State, requiring an express judicial response to a jury recommendation against death. Martinez Chaves v. State, 534 N.E.2d 731 (Ind.1989), modified, 539 N.E.2d 4 (Ind.1989). That approach was retained as an appellate requirement only in Roark v. State, 644 N.E.2d 565 (Ind.1994). There we said:
During appellate review of a death sentence where the jury has recommended against death, two separate and distinct issues are always presented for our consideration: (1) whether the trial court sentencing statement demonstrates due consideration of the jury recommendation; and (i) whether this Court, upon independent reconsideration of a jury recommendation against death, nevertheless concludes that the death penalty is appropriate.
Roark, 644 N.E.2d at 571, citations omitted. It was the absence of just such a form of closer appellate serutiny for cases like his wherein the jury recommends against death, but the judge nevertheless imposes death, that Schiro specifically claimed as an impingement in his first and direct appeal. In Chaves and Roark, this Court granted that which it had specifically denied to Schiro in 1983. Therefore, we conclude that Schiro is now entitled to that which he sought: appellate review of his sentence of death by application of the Chaves/Roark approach.
From this record we know that the jury fully appreciated the details of Schiro's crime. The jurors deliberated at the guilt/innocence stage and returned a verdict of guilty of felony murder only, when intention[1359]*1359al murder was also charged and before them. At the guilt/innocence stage the jury concluded only that Schiro had caused the death while intending the rape of Laura Lubbehu-sen, and did not reach the conclusion that Schiro had intended to cause her death. The jury at the next stage, the sentencing stage, after further instructions and further deliberations, which deliberations lasted only sixty-one minutes, unanimously recommended that the death penalty not be imposed. For the purposes of determining the appropriate value to be placed upon the jury recommendation that the death penalty not be imposed for this murder, this record strongly supports the conclusion that after the prosecution exercised two separate, full, and fair opportunities to support its claim for the death penalty based upon the existence of the intent to kill, the jury unanimously found the claim unsubstantiated.
This sentence of death imposed by the trial judge rests exclusively upon the trial judge's contrary determination that Schiro had formed the specific intent to kill, the death aggravator element.
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DeBRULER, Justice.
This is an appeal from the denial of post-conviction relief. Appellant Thomas N. Scehi-ro sought and was granted leave by this Court to file a successive petition for post-conviction relief. We granted permission to file with respect to two questions, one of which was:
Whether Schiro is entitled to reversal of his death sentence in light of Martinez: Chavez v. State, 534 N.E.2d 731, modified, 539 N.E.2d 4 (Ind.1989).
On remand, Judge Heather M. Mollo entered judgment denying post-conviction relief. Such judgment is reversed and the cause is remanded with instructions to grant postcon-viction relief setting aside the sentence of death and imposing in lieu thereof a term of sixty years, the maximum term provided for the offense of felony murder.
Appellant Schiro strangled Laura Luebbe-husen in her house in Evansville, Indiana in 1981. He worked in her neighborhood and was an inmate of a halfway house for those facing release from prison. He gained entrance to her home by feigning the need to use her telephone. He was then under the influence of drugs and alcohol. He gained her confidence by discussing personal sexual matters, drank some more alcoholic beverages, and the two engaged in some form of sexual touching. At one point they left together to buy more alcoholic beverages. Upon their return, appellant attacked her, raped her, struck her on the head with a vodka bottle and an iron object, and finally strangled her to death. He then dragged [1358]*1358her into another room and sexually assaulted the corpse. Schiro drove Luebbehusen's car to the vicinity of the halfway house and there persuaded the night watchman to falsify the sign-in sheet to show that he had not been absent from the half-way house during the time of the killing. Although undoubtedly acting with an awareness that he could not avoid becoming a prime suspect in the murder, Schiro did turn himself in to the director of the halfway house, confessing the killing.
In 1981, Schiro was charged with both the intentional murder and felony murder of Laura Luebbehusen, ie., killing her while raping her or attempting to do so. The venue of the trial was changed from Vander-burgh County to Brown County. Later in 1981, in a trial by jury, wherein the plea by appellant was insanity, appellant Schiro was convicted on the felony murder charge. The verdict form for the intentional murder was left blank by the jury.
Pursuant to Ind.Code Ann. § 35-50-2-9(b)(1) (West Supp.1996), the prosecution sought the death penalty by alleging the B(1) aggravator, namely that appellant had intentionally killed Laura Luebbehusen during the commission of the crime of rape. Following the jury sentencing hearing, the jury, after deliberating for one hour, returned a unanimous recommendation that the death penalty not be imposed. Two weeks later, after the judge sentencing hearing, the trial judge, Judge Rosen, sentenced appellant to death.
In 1983, the felony murder conviction and the sentence of death were affirmed in Schi-ro's first and direct appeal. This case has been considered on three previous occasions by this Court and onee by the Supreme Court of the United States. Schiro's direct appeal is Schiro v. State, 451 N.E.2d 1047 (Ind.1983). In that appeal, Schiro made the following elaim:
In this last sub-paragraph of Issue II, Schiro urges this Court to overturn the death penalty. The main basis for his contention is that the trial court rejected the jury's recommendation that no death penalty be imposed. Schiro believes this Court should impose a stricter standard of review in situations where the trial court and jury disagree about the imposition of a sentence of death.
Schiro, 451 N.E.2d at 1058. A majority of this Court resolved this claim against Schiro, concluding:
We will not engage in a different standard of review where jury and trial court disagree.
Id. A majority of this Court concluded that the sentence of death was appropriate.
In 1989, at a time following an affir-mance of the denial of Schiro's second petition for post-conviction relief, this Court decided Martinez Chaves v. State, requiring an express judicial response to a jury recommendation against death. Martinez Chaves v. State, 534 N.E.2d 731 (Ind.1989), modified, 539 N.E.2d 4 (Ind.1989). That approach was retained as an appellate requirement only in Roark v. State, 644 N.E.2d 565 (Ind.1994). There we said:
During appellate review of a death sentence where the jury has recommended against death, two separate and distinct issues are always presented for our consideration: (1) whether the trial court sentencing statement demonstrates due consideration of the jury recommendation; and (i) whether this Court, upon independent reconsideration of a jury recommendation against death, nevertheless concludes that the death penalty is appropriate.
Roark, 644 N.E.2d at 571, citations omitted. It was the absence of just such a form of closer appellate serutiny for cases like his wherein the jury recommends against death, but the judge nevertheless imposes death, that Schiro specifically claimed as an impingement in his first and direct appeal. In Chaves and Roark, this Court granted that which it had specifically denied to Schiro in 1983. Therefore, we conclude that Schiro is now entitled to that which he sought: appellate review of his sentence of death by application of the Chaves/Roark approach.
From this record we know that the jury fully appreciated the details of Schiro's crime. The jurors deliberated at the guilt/innocence stage and returned a verdict of guilty of felony murder only, when intention[1359]*1359al murder was also charged and before them. At the guilt/innocence stage the jury concluded only that Schiro had caused the death while intending the rape of Laura Lubbehu-sen, and did not reach the conclusion that Schiro had intended to cause her death. The jury at the next stage, the sentencing stage, after further instructions and further deliberations, which deliberations lasted only sixty-one minutes, unanimously recommended that the death penalty not be imposed. For the purposes of determining the appropriate value to be placed upon the jury recommendation that the death penalty not be imposed for this murder, this record strongly supports the conclusion that after the prosecution exercised two separate, full, and fair opportunities to support its claim for the death penalty based upon the existence of the intent to kill, the jury unanimously found the claim unsubstantiated.
This sentence of death imposed by the trial judge rests exclusively upon the trial judge's contrary determination that Schiro had formed the specific intent to kill, the death aggravator element. That contrary determination by the trial judge rests in no small measure upon the trial judge's inferences of evil intent and malingering on the part of Schiro from his out of the presence of the jury observations of Schiro during the course of the trial, inferences which the trial court used for override purposes without timely notice to the defense affording it an opportunity to refute such inferences. Moreover and unfortunately, that initial sentence of death was imposed by the trial judge through the use of legal standards inapplicable to capital cases, and this Court was required to remand for the application of correct legal standards. This initial faulty determination, in the very nature of this most difficult of adjudicatory processes, undoubtedly supplied inertia for the trial court's improved order on remand. Under this particular combination of ciream-stances leading up to the final decision of the trial court to impose death, contrary to the decision recommended by the jury, the pressure which the jury recommendation exerts against imposition of death rises to the very highest level.
In addition to the foregoing aspects of the trial, the conclusion that the jury recommendation should have maximum influence on review of the judge's decision to impose death is further supported by the evidence in mitigation. The judge and jury heard days of evidence regarding the following mitigating factors: (1) Schivro admitted his involvement in the offense and his admission expedited and assured his apprehension and conviction; (2) Schiro suffered from chronic substance and alcohol abuse and that disease manifested itself on the day of the crime; (3) Schiro was scarred as a youth by constant exposure to erotica and that exposure impacted his development; (4) Schiro suffered from a mental illness of longstanding duration and he and his family constantly sought treatment; (5) when able to stay away from alcohol and substance abuse, Schiro exhibited kind characteristics. Additionally, the jury heard evidence that Schiro was 20 years old at the time of the offense. These facts are well corroborated, however, they must be evaluated for review purposes in conjunction with the well corroborated evidence of Schiro's eriminal history, including a robbery conviction, cruelty, and dangerousness.
When the unanimous rejection by the jury of the predicate for imposition of the death penalty, with all such rejection imports, is placed in tandem with the evidence in mitigation, with all such evidence imports, and so considered, we conclude that it may not be said that the facts available in the record support the conclusion that the death penalty is appropriate. See Martines Chavee and Roark, supra.
Conclusion
The judgment of the post-conviction court is reversed. The cause is remanded to the post-conviction court with instructions to set aside the death penalty and to impose in lieu thereof a term of sixty years, the maximum term of years authorized by the Legislature under these circumstances.
DICKSON, SULLIVAN and SELBY, JJ., concur.
SHEPARD, C.J., dissents with separate opinion.