                    IN THE COURT OF APPEALS OF IOWA

                                   No. 13-1837
                              Filed August 13, 2014


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

ROBERT S. WINFREY,
     Defendant-Appellant.
________________________________________________________________


       Appeal from the Iowa District Court for Polk County, Douglas F. Staskal,

Judge.

       Following the district court’s grant of Robert Winfrey’s motion to correct his

illegal sentence of life imprisonment without the possibility of parole mandated by

the 1971 Code of Iowa upon his first-degree-murder conviction, a crime he

committed as a juvenile, Winfrey appeals, asserting his new sentence is

functionally unconstitutional. AFFIRMED.



       Gary Dickey of Dickey & Campbell Law Firm, P.L.C., Des Moines, for

appellant.

       Thomas J. Miller, Attorney General, Darrel Mullins, Assistant Attorney

General, John P. Sarcone, County Attorney, and Jaki M. Livingston, Assistant

County Attorney, for appellee.



       Considered by Vaitheswaran, P.J., and Doyle and Tabor, JJ. McDonald,

J. takes no part.
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DOYLE, J.

       Convicted of first-degree murder, a crime he committed as a juvenile,

Robert Winfrey was sentenced to life imprisonment without the possibility of

parole as mandated by the 1971 Code of Iowa. Following the district court’s

grant of his motion to correct his illegal sentence, Winfrey was resentenced to life

imprisonment with the possibility of parole. He now appeals, asserting his new

sentence is functionally unconstitutional.     He also asserts his resentencing

counsel provided ineffective assistance. Upon our review, we affirm.

       I. Background Facts and Proceedings.

       Winfrey was convicted following a jury trial of the crime of first-degree

murder in September 1972. See Iowa Code §§ 690.1, .2 (1971); see also State

v. Winfrey, 221 N.W.2d 269, 270 (Iowa 1974). He committed the crime when he

was seventeen-years-and-nine-months old. See Winfrey, 221 N.W.2d at 270. At

the time of his sentence, the mandatory punishment for a first-degree-murder

conviction was “imprisonment for life at hard labor in the penitentiary,” see Iowa

Code § 690.2 (1971), and Winfrey was so sentenced. Because his sentence

was for life, Winfrey was not eligible for parole. See Iowa Code § 247.5 (1971)

(“The board of parole shall, except as to prisoners serving life terms, . . . have

power to parole persons convicted . . . .”).

       The Iowa Supreme Court affirmed Winfrey’s conviction on direct appeal,

and more detailed background facts of that case can be found in its opinion. See
                                          3

Winfrey, 221 N.W.2d at 270-71.1 Relevant here, the court summarized testimony

given at an evidentiary hearing concerning Winfrey’s background as follows:

               Winfrey . . . had completed ten years of school and had been
       in special classes for slow learners. Since age [twelve] he had lost
       time from school during periods he was in Eldora or jail. . . .
               Pursuant to court order Winfrey was examined by . . . a
       psychiatrist. . . . [The psychiatrist] testified [Winfrey] does not have
       a typical mental disorder and that tests indicated Winfrey was in the
       low average range of intelligence with an I.Q. score range of
       approximately [eighty-five to ninety]. He opined Winfrey was “some
       place in the fourteen to fifteen year old range of mental age” and
       capable of understanding a statement of rights allegedly read to
       him but depending upon how the statement was presented to
       him. . . . [The psychiatrist further testified:]
               Because of his experience, there is no doubt that Mr.
               Winfrey knows what happens to you if you are found
               guilty of something in a court of law. . . . It is still my
               opinion that Mr. Winfrey was competent and able to
               make decisions at the time of his apprehension. This
               would, however, depend upon the circumstances and
               explanations given to him.

Id. at 271-72.

       In June 2012, the United States Supreme Court decided Miller v.

Alabama, 132 S. Ct. 2455, 2469-75 (2012). There, the Court determined

       the Eighth Amendment prohibited “a sentencing scheme that
       mandates life in prison without possibility of parole for juvenile
       offenders.” The Court found that defendants who committed
       homicide crimes as juveniles and faced a sentence of life without
       parole were entitled to a sentencing hearing that would permit the
       sentencing court to consider the individual characteristics of the
       defendant and the individual circumstances of the crime as
       mitigating factors for a lesser sentence.

State v. Ragland, 836 N.W.2d 107, 110 (Iowa 2013) (discussing Miller) (internal

citations omitted).


       1
           The supreme court opinion, as it appears in the North Western Reporter,
erroneously indicates the murder occurred in 1970. Winfrey, 221 N.W.2d at 270.
District court records establish the murder actually occurred in 1972.
                                          4

        Following Miller, Winfrey filed a pro se motion to correct his illegal

sentence. However, in July 2012, Governor Terry Branstad commuted Winfrey’s

sentence, along with other similarly sentenced inmates, to a term of life with no

possibility of parole for sixty years and directed that no credit be given for earned

time.   See id. (discussing the commutations and providing the full text of

Ragland’s nearly identical commutation). Ragland was then pending before our

supreme court, and the district court entered a stay pending the outcome of that

case.

        Ragland was decided in August 2013.          Id. at 108.   There, the court

concluded the Governor’s commutation of Ragland’s life sentence to a life

sentence with the possibility of parole in sixty years was the functional equivalent

to life without parole, and it held that Miller applies to such sentences. Id. at 121-

22. The court explained:

        Ragland was originally sentenced without the benefit of an
        individualized sentencing hearing. The commutation lessened his
        sentence slightly, but without the court’s consideration of any
        mitigating factors as demanded by Miller. While such a review
        process might still permit a life-without-parole sentence to be
        imposed in a murder case, it might also result in a sentence far less
        than life without parole. Thus, Ragland was entitled to be
        sentenced with consideration of the factors identified in Miller.
        Additionally, he was entitled to be resentenced under the
        individualized process because Miller applies retroactively.

Id. at 122.

        Since Ragland, the Iowa Supreme Court has “applied the reasoning in

Miller to sentences that effectively deprived a juvenile offender of a meaningful

opportunity for early release on parole during the offender’s lifetime based on

demonstrated maturity and rehabilitation.” State v. Lyle, ___ N.W.2d ___, 2014
                                          5

WL 3537026, *2 (Iowa 2014) (citing State v. Null, 836 N.W.2d 41, 72 (2013)).

Further, the court has applied its reasoning “not just to a de facto life sentence or

one that is the practical equivalent of a life sentence without parole, . . . but also

to a lengthy term-of-years sentence.” Id. (internal quotation marks and citations

omitted). Most recently, the court held by majority that article I, section 17 of our

constitution “forbids a sentencing schema for juvenile offenders that deprives the

district court the discretion to consider youth and its attendant circumstances as

a mitigating factor and to impose a lighter punishment, including one that

suspends all or part of the sentence, including any mandatory minimum.” Id. at

*23. The majority in Lyle reiterated that its holding did “not prohibit judges from

sentencing juveniles to prison for the length of time identified by the legislature

for the crime committed” or “prohibit the legislature from imposing a minimum

time that youthful offenders must serve in prison before being eligible for parole.”

Id. Rather, it prohibited “the one-size-fits-all mandatory sentencing for juveniles.”

Id.

       After the court issued its decision in Ragland, the district court issued an

order setting Winfrey’s motion for a hearing, and it directed the preparation of a

presentence investigation report (PSI). At the hearing in October 2013, the court

determined Winfrey’s motion should be granted, and it proceeded to the matter of

resentencing Winfrey. The State requested the court sentence Winfrey to life

with the possibility of parole.   Neither Winfrey nor his counsel provided any

mitigating reasons, as contemplated in Miller and Ragland, to impose a lighter

punishment than that requested by the State.
                                           6


       The district court issued its initial ruling from the bench, imposing “the

sentence of life imprisonment” with “no restrictions on Mr. Winfrey’s eligibility for

parole.” The court concluded Winfrey’s eligibility for parole was “entirely up to

the parole board.” In determining Winfrey’s new sentence, the court explained in

great detail all the factors it considered and reasons it found to impose that

sentence. Relevant to the present appeal, the court stated:

       The court has considered the contents of the [PSI] and, of course,
       the comments of the victim’s daughter and on behalf of her family.
       The court has reviewed as best it can the original court file, which
       contains some documents that give some insight into the defendant
       and, of course, the court has considered the defendant’s own
       statements and has attempted to apply the factors that the court is
       required to apply in assessing an appropriate sentence in a case of
       an individual who was a juvenile offender when the offense
       occurred for which a sentence of life imprisonment was imposed.
               Legally the court finds itself concluding that it is in effect
       imposing a sentence under Iowa Code Section 690.2 of the 1971
       Code of Iowa, which provided for the life sentence for individuals
       convicted of first-degree murder. And the court agrees with the
       arguments of counsel for the State that that sentence itself is not
       what has been declared recently by our supreme courts, the federal
       supreme court as well as the state supreme court, to be
       unconstitutional. It is the aspect of the sentence that prevents any
       consideration of such a defendant for parole, which is not
       constitutional.
               So essentially the court is choosing between a sentence of
       life imprisonment with the opportunity for parole and a sentence of
       life imprisonment with no opportunity for parole. . . .
               ....
               So the court has considered all of these and given this
       matter a great deal of thought. The court could not impose a
       sentence of life imprisonment without parole eligibility under the
       cases without identifying Mr. Winfrey as a rare individual who
       essentially could be identified as a danger without any redeeming
       value, and I think we could argue about that. But I don’t think this is
       a case where I can identify to the satisfaction of a reviewing court
       something—and articulate something in particular that would justify
       that kind of sentence.
               At this point in time I think that it’s completely up to the board
       of parole to determine whether Mr. Winfrey and when Mr. Winfrey is
       rehabilitated and is capable of living in society without being a
                                         7


       danger to others. I certainly would not at this point in time
       recommend—for a lot of the reasons that I just said, I would not
       recommend parole until there’s been a fairly significant length of
       time of demonstrated commitment to education. Because coming
       out of prison after forty-one years without even a high school
       diploma is not a recipe for success. Obviously, someone who has
       spent forty-one years in prison . . . has learned a lot of ways to live
       and do things that are not acceptable in society, so I would caution
       any correctional professionals or parole boards to be very careful
       about granting a parole in this case.
              But having said all of that, again, on balance I think the
       sentence that is mandated in this case is life imprisonment with the
       opportunity for parole, and that’s the sentence that the court
       imposes.

The same day, the district court entered its written sentencing order adjudging

Winfrey guilty of first-degree murder, in violation of Iowa Code sections 690.1

and .2 (1971), and imposing a life sentence as provided by 690.2 (1971).

Additionally, the court struck down “the unconstitutional portion of Iowa Code

[sections] 902.9 and 902.3” (2013), and it sentenced Winfrey “to life with the

possibility of parole.”

       Winfrey now appeals.

       II. Scope and Standards of Review.

       “An unconstitutional sentence is an illegal sentence. Consequently, an

unconstitutional sentence may be corrected at any time.”            Lyle, 2014 WL

3537026 at *2 (citations omitted). We ordinarily review a challenge to an illegal

sentence for correction of legal errors. Ragland, 836 N.W.2d at 113; see also

Iowa R. App. P. 6.907.        However, when, as here, a defendant mounts a

constitutional challenge to an allegedly illegal sentence, our review is de novo.

See Null, 836 N.W.2d at 48. Ineffective-assistance-of-counsel claims are also

reviewed de novo. State v. Showens, 845 N.W.2d 436, 440 (Iowa 2014).
                                              8


       III. Discussion.

       On appeal, Winfrey makes two arguments.                 First, he argues his new

sentence is still the functional equivalent of a lifetime sentence without the

possibility of parole, which is unconstitutional under Miller and Ragland.

Secondly, and alternatively, Winfrey contends his most recent sentencing

counsel was ineffective for failing to provide “mitigation evidence of the kind

contemplated by Miller and Null” at his resentencing hearing. We address his

arguments in turn.

       A. Constitutional Claim.

       Winfrey asserts his new sentence is unconstitutional because, as his

argument goes, the sentence “has no statutory anchor whatsoever in the 1971

Code” and because there “is no mechanism” for the board of parole to consider

his new parole eligibility, given the existing rules. He points out that section

247.5 of the 1971 Code did not provide any authority to parole offenders serving

life terms.     Likewise, the current Code expressly prohibits parole eligibility to

class “A” felons unless “the governor commutes the sentence to a term of years.”

See Iowa Code § 902.1(1) (2013).2                 He also cites the board of parole’s

administrative rules, which dictate how the board interviews inmates for parole

determinations, see id. § 904A.4(2), exempting class “A” felons from parole

eligibility and consideration. See Iowa Admin. Code r. 205-8.2 (“The board shall

not grant parole to an inmate serving a mandatory minimum sentence. . . .

Mandatory sentences are as follows: (a) A life sentence imposed for conviction of



       2
           “Murder in the first degree is a class ‘A’ felony.” Iowa Code § 707.2.
                                           9


a [c]lass ‘A’ felony pursuant to Iowa Code section 902.1.”).3 However, given the

recent case-law precedent, to the extent these provisions restrict the board of

parole from considering Winfrey’s parole eligibility; those provisions too are

clearly unconstitutional under Miller and Ragland. See Ragland, 836 N.W.2d at

121-22.

       We agree with the State that the proper way to address any constitutional

infirmity here is severance. See Bonilla v. State, 791 N.W.2d 697, 702 (Iowa

2010) (“When parts of a statute or ordinance are constitutionally valid, but other

discrete and identifiable parts are infirm, we may sever the offending portions

from the enactment and leave the remainder intact.”). Severing the offending

portions, those that do not permit the parole board from considering Winfrey for

parole eligibility, leaves Winfrey serving a life sentence with the possibility of

parole. See id.

       Furthermore, we agree with the State that the existing administrative rules

afford the board flexibility to consider Winfrey’s new parole eligibility without

requiring resentencing at this point.       The board’s rules specifically provide

options for waiver and variance of their existing rules, allowing the board to

“suspend[] in whole or in part the requirements or provisions of a rule as applied

to an identified person on the basis of the particular circumstances of that

person,” such as complying with the Iowa Constitution. See Iowa Admin. Code r.

205-16.1.    Furthermore, the board may grant a waiver from a rule if “the

requested waiver is consistent with applicable statutes, constitutional provisions,

       3
         Winfrey also notes Iowa Administrative Code rule 205-8.6(4) provides that
Class “A” felons “serving a sentence more than [twenty-five years] are excepted from the
annual review requirement of 8.6(3).”
                                        10

or other provisions of the law.” See Iowa Admin. Code r. 205-16.3 (emphasis

added). Should the board not take it upon itself to consider Winfrey’s new parole

eligibility, Winfrey can file a petition for waiver for parole consideration under

chapter 16 of the parole board’s rules.      See Iowa Admin. Code r. 205-16.6

(setting for the content necessary for filing a petition for waiver). We further

agree that until and unless a petition for waiver by Winfrey for parole

consideration is denied by the parole board, the matter is not ripe for our review.

See State v. Tripp, 776 N.W.2d 855, 859 (Iowa 2010) (finding issue involving

“administrative decisions that have yet to be made” not ripe for adjudication).

Accordingly, we affirm his new sentence.

      B. Ineffective-Assistance Claim.

      Additionally, Winfrey contends his resentencing counsel was ineffective for

failing to provide “mitigation evidence of the kind contemplated by Miller and Null”

at his resentencing hearing. To prevail, he must show trial counsel (1) breached

an essential duty and (2) prejudice resulted. Strickland v. Washington, 466 U.S.

668, 687 (1984).      Ordinarily, we preserve ineffective-assistance-of-counsel

claims for postconviction-relief actions, permitting the development of a proper

record.   Null, 836 N.W.2d at 48.     This also “allows the attorney charged to

respond to a defendant’s claims.” State v. Brubaker, 805 N.W.2d 164, 170 (Iowa

2011); see also State v. Coil, 264 N.W.2d 293, 296 (Iowa 1978) (“Even a lawyer

is entitled to his day in court, especially when his professional reputation is

impugned.”).   The record does not provide sufficient details about Winfrey’s

attorney’s failure to present mitigation evidence at the resentencing, such as the

mitigation evidence submitted at Winfrey’s suppression-of-evidence hearing.
                                        11

See Winfrey, 221 N.W.2d at 270-71. Accordingly, we preserve this claim for

possible postconviction-relief proceedings.

      IV. Conclusion.

      Because we agree with the State that Winfrey’s new sentence is not

unconstitutional and Winfrey has an avenue to pursue consideration of his parole

eligibility, we affirm his sentence.   We preserve his ineffective-assistance-of-

counsel claim for possible postconviction-relief proceedings.

      AFFIRMED.
