                    IN THE COURT OF APPEALS OF IOWA

                                 No. 16-0824
                             Filed August 2, 2017


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

JOHN WALTER MULDER,
     Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Sioux County, Steven J.

Andreasen, Judge.



      John Mulder appeals the order resentencing him for a crime he committed

as a juvenile. AFFIRMED.



      Jared R. Weber, Orange City, for appellant.

      Thomas J. Miller, Attorney General, and Tyler J. Buller, Assistant Attorney

General, for appellee.




      Considered by Vaitheswaran, P.J., and Doyle and Bower, JJ.
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DOYLE, Judge.

       John Mulder was fourteen years old when he shot and killed Jean Homan

while she was asleep in her bedroom.           A jury convicted him of first-degree

murder, and he was sentenced to life in prison without the possibility of parole.

Three decades later, Governor Brandstad commuted the sentences of juvenile

offenders to life in prison with parole eligibility after sixty years. Mulder moved for

resentencing, and after holding an individualized sentencing hearing, the district

court imposed a sentence of life in prison with parole eligibility in forty-two years.

       On appeal, Mulder contends the requirement that he serve forty-two years

of his sentence before parole eligibility violates the Iowa Constitution because it

“is the equivalent of a life sentence with no parole [and] no meaningful or realistic

opportunity for release.”    He makes the blanket argument that any minimum

period of incarceration violates the Iowa Constitution’s prohibition against cruel

and unusual punishment. Our supreme court recently rejected this claim in State

v. Roby, ___ N.W.2d ___, ___, 2017 WL 2610616, at *10 (Iowa 2017), holding

the Iowa Constitution does not prohibit imposing mandatory minimum terms of

incarceration on juveniles. We likewise reject Mulder’s claim.

       Mulder also contends the district court’s sentence is illegal because the

court failed to consider and weigh the mitigating factors set forth in State v. Lyle,

854 N.W.2d 378, 404 n.10 (Iowa 2014).1 These factors include:


1
  Mulder also argues the court considered evidence that was improperly introduced at
the resentencing hearing. He concedes his trial counsel made no objection to the
introduction of the evidence he complains of and argues his counsel rendered ineffective
assistance in that regard. We reject his claims outright. Although he claims that one of
the victim impact statements improperly included several quotes from a confidential
psychology report, he cites no authority supporting his argument that this information
was improper.
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       (1) the age of the offender and the features of youthful behavior,
       such as “immaturity, impetuosity, and failure to appreciate risks and
       consequences”; (2) the particular “family and home environment”
       that surround the youth; (3) the circumstances of the particular
       crime and all circumstances relating to youth that may have played
       a role in the commission of the crime; (4) the challenges for
       youthful offenders in navigating through the criminal process; and
       (5) the possibility of rehabilitation and the capacity for change.

Lyle, 854 N.W.2d at 404 n.10 (citations omitted).

       In resentencing Mulder, the district court noted it was required to give

specific consideration to several factors because of Mulder’s status as a juvenile

offender:

       The first factor is the prior pronouncement that sentencing a
       juvenile to life in prison without the possibility of parole should be
       rare and uncommon.
              Second, the court must recognize that “children are
       constitutionally different from adults.” This is a consideration of a
       juvenile’s lack of maturity, underdeveloped sense of responsibility,
       vulnerability to peer pressure, and the less fixed nature of a
       juvenile’s character and how that impacts the ability to be
       rehabilitated.
              The court must also take into account any information in the
       record regarding the defendant’s family and home environment
       such as any information concerning abuse, parental neglect,
       personal or family drug or alcohol abuse, prior exposure to
       violence, lack of parental supervision, lack of an adequate
       education, and a juvenile susceptibility to psychological or
       emotional damage.
              The court must also and does consider the circumstances of
       the offense itself, the extent of the defendant’s participation and the


        Mulder also complains the court permitted multiple victim impact statements from
individuals who were not immediate family members of Jean Homan. He claims only
immediate family members may provide victim impact statements, citing the portion of
Iowa Code section 915.10(3) that defines a victim as also including “the immediate
family members of a victim who died or was rendered incompetent as a result of the
offense or who was under eighteen years of age at the time of the offense.” However,
the first part of this section defines a victim as “a person who has suffered physical,
emotional, or financial harm as the result of a public offense or a delinquent act, other
than a simple misdemeanor, committed in this state.” See Iowa Code § 915.10(3).
Because nothing in chapter 915 limits victim impact statements to immediate family
members, we reject his argument.
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       conduct, and the way any familial or peer pressures may have
       affected him.
               As noted before, the court must also consider that juveniles
       are more capable of change than are adults. Their actions are less
       likely to be evidence of irretrievably depraved character.

The court stated it had “considered all of those factors in determining a sentence

in this matter.”

       Before pronouncing sentence, the district court noted it gave particular

consideration to several factors in the record “that would weigh in favor of

[Mulder] having the immediate eligibility for parole.” Specifically, the court cited

Mulder’s behavior during his thirty-seven years of incarceration, noting the

absence of violent incidents, “relatively little or no violations or reports of

misconduct” during the past fifteen years, and a favorable employment record

that included being placed in “trust type of positions within the department of

corrections” and “speak[ing] to youth about the consequences of criminal

behavior.” The court considered Mulder’s family and home environment, noting

that it “played a role in his development as a youth.” It further noted the lack of

rehabilitative services Mulder received prior to committing the murder, classifying

his prior delinquent acts as “going towards his youth and those factors of his

youth.” Finally, the court determined that “some of those psychological red flags

that existed when he was younger and at the time of this crime appear to have

diminished.” The court then turned its attention to the factors it considered that

weighed against immediate parole eligibility, which included: (1) the nature, facts,

and circumstances of the crime; (2) the impact the crime had on Homan’s family;

and (3) Mulder’s attempt to escape from prison by digging a tunnel, which was

not a crime of opportunity but was “planned out over a course of time” and
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occurred when Mulder was thirty-seven years old. The record shows the court

appropriately considered the Lyle factors.

       The court resentenced Mulder to life in prison with parole eligibility in forty-

two years.    Although Mulder complains that the record “does not support a

determination that [he] is incapable of rehabilitation for a minimum of 42 years,”

we are unable to conclude on the record before us that the district court abused

its discretion in imposing this sentence. See Roby, ___ N.W.2d at ___, 2017 WL

2610616, at *5-6 (noting we review a sentence for an abuse of discretion where

the district court “follows the sentencing procedure we have identified and a

statute authorizes the sentence ultimately imposed” while clarifying that this

standard “is not forgiving of a deficiency in the constitutional right to a reasoned

sentencing decision based on a proper hearing”). Accordingly, we affirm.

       AFFIRMED.
