                   IN THE COURT OF APPEALS OF IOWA

                                   No. 15-0404
                             Filed October 28, 2015

STATE OF IOWA,
     Plaintiff-Appellee,

vs.

ARIF HAJTIC,
      Defendant-Appellant.
________________________________________________________________

      Appeal from the Iowa District Court for Black Hawk County, Todd A. Geer,

Judge.



      The defendant appeals his sentence following resentencing pursuant to

State v. Lyle, 854 N.W.2d 378 (Iowa 2014).          SENTENCE VACATED AND

REMANDED FOR RESENTENCING.



      William L. Kutmus of Kutmus, Pennington & Hook, P.C., West Des

Moines, and Steven P. DeVolder of The DeVolder Law Firm, Norwalk, for

appellant.

      Thomas J. Miller, Attorney General, Kevin Cmelik and Jean C. Pettinger,

Assistant Attorneys General, Thomas J. Ferguson, County Attorney, and James

Katcher, Assistant County Attorney, for appellee.



      Considered by Vaitheswaran, P.J., and Potterfield and McDonald, JJ.
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MCDONALD, Judge.

       Article I, section 17, of the Iowa Constitution provides “cruel and unusual

punishment shall not be inflicted.” In 2014, the supreme court interpreted this

clause to categorically prohibit the imposition of a mandatory minimum sentence

on a youthful offender. See State v. Lyle, 854 N.W.2d 378, 400 (Iowa 2014).

The supreme court held that an individualized sentencing hearing is required “so

a judge can at least consider a sentencing option other than mandatory minimum

imprisonment.” Id. at 403. The supreme court held its decision was retroactive,

requiring “all juvenile offenders who are in prison under a mandatory minimum

sentence to be returned to court for resentencing. See id. In this appeal, Arif

Hajtic challenges the sentence imposed following his Lyle resentencing hearing.

       In 2002, then seventeen-year-old Hajtic and another robbed a

convenience store. Hajtic also burglarized several other businesses. In 2003,

following jury trial, Hajtic was convicted of robbery in the first degree, in violation

of Iowa Code section 711.2 (2001), and three counts of burglary in the third

degree, in violation of Iowa Code sections 713.1 and 713.6A.               Hajtic was

sentenced to an indeterminate term of incarceration not to exceed twenty-five

years for the robbery conviction and required to serve seventy percent of that

sentence before becoming eligible for parole. See Iowa Code § 902.12. He was

sentenced to an indeterminate term of incarceration not to exceed five years for

each of the burglary convictions. All of the sentences were ordered to be served

concurrently with each other.
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      Following Lyle, Hajtic filed a motion to correct an illegal sentence,

requesting the district court to vacate the minimum sentence for the robbery

conviction.   Following hearing on the matter, the district court denied the

defendant’s motion. The defendant timely filed this appeal. Where, as here, the

defendant challenges the constitutionality of a sentence, our review is de novo.

See State v. Seats, 865 N.W.2d 545, 553 (Iowa 2015); State v. Ragland, 836

N.W.2d 107, 113 (Iowa 2013).

      The Lyle court set forth in great detail the sentencing procedure to be

used in determining whether to impose a minimum sentence on a juvenile

offender:

              To avoid any uncertainty about the parameters of the
      resentencing hearing and the role of the district court on
      resentencing, we reiterate that the specific constitutional challenge
      raised on appeal and addressed in this opinion concerns the
      statutory imposition of a minimum period of incarceration without
      parole equal to seventy percent of the mandatory sentence. The
      holding in this case does not address the mandatory sentence of
      incarceration imposed under the statutory sentencing schema or
      any other issues relating to the sentencing schema. Under article I,
      section 17 of the Iowa Constitution, the portion of the statutory
      sentencing schema requiring a juvenile to serve seventy percent of
      the period of incarceration before parole eligibility may not be
      imposed without a prior determination by the district court that the
      minimum period of incarceration without parole is warranted under
      the factors identified in Miller and further explained in Null. The
      factors to be used by the district court to make this determination
      on resentencing include: (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. See Miller, 567 U.S. at ____, 132
      S. Ct. at 2468, 183 L. Ed. 2d at 424; Null, 836 N.W.2d at 74–75;
                                           4



       see also Pearson, 836 N.W.2d at 95–96; Ragland, 836 N.W.2d at
       115 n.6.
               In order to address the issue raised in this appeal, the district
       court shall conduct a hearing in the presence of the defendant and
       decide, after considering all the relevant factors and facts of the
       case, whether or not the seventy percent mandatory minimum
       period of incarceration without parole is warranted as a term of
       sentencing in the case. If the mandatory minimum sentence is not
       warranted, the district court shall resentence the defendant by
       imposing a condition that the defendant be eligible for parole. If the
       mandatory minimum period of incarceration is warranted, the
       district court shall impose the sentence provided for under the
       statute, as previously imposed.

854 N.W.2d at 404 n.10. The Lyle diktat is twofold. First, the sentencing court is

required to consider at least all of the enumerated factors. See id. (“The factors

to be used include . . . .”). Second, the sentencing court must consider each of

the factors as mitigating factors only. See id. at 403 n.8 (“Clearly, these are all

mitigating factors, and they cannot be used to justify a harsher sentence.”).

       In light of the foregoing mandates, on de novo review, we are compelled

to vacate the defendant’s sentence and remand this matter for resentencing due

to the district court’s failure to adhere to the Lyle sentencing procedure. First, the

district court failed to consider the fourth factor (“the challenges for youthful

offenders in navigating through the criminal process”) during the sentencing

hearing.   This was error and requires reversal.          Second, the district court

impermissibly treated at least one of the other factors as an aggravating

circumstance rather than a mitigating circumstance.

       When considering the first factor (the age of the offender and the features

of youthful behavior), the district court stated:

             I do think the age you were at the time you committed the
       offense of first degree robbery is significant. You were just 30 days
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       shy of your 18th birthday, and if you would have committed this
       offense just one month later, we wouldn’t be here right now, you
       wouldn't be afforded the opportunity that you have under Lyle to
       have us revisit your sentencing. And, obviously, someone who is
       just one month shy of 18 ought to have a little better judgment and
       emotional stability and maturity than someone who committed such
       an offense, say, at 15 or 16 years of age. So I consider that.

It is clear the court considered Hajtic’s advanced age as an aggravating factor.

Controlling case law provides this was error. See State v. Pearson, 836 N.W.2d

88, 97 (Iowa 2013) (holding consideration of age as an aggravating factor to be

reversible error).

       The second factor to be considered is the juvenile’s particular family and

home environment. In considering this factor, the district court stated:

              I also take a look at special circumstances in your
       background at the time you committed the offenses. You had at
       that time a supportive family. You talked about that in your
       presentence investigation report originally that you felt that you
       should be entitled to a suspended sentence, and you have the
       support of your family, and they would help you out if you did not
       need to go to prison. And your family is still here. Your family was
       supporting you then, your family is supporting you now. It would be
       an important special circumstance perhaps in your favor if you
       came from a very challenged background, a very disadvantaged
       background, if you did not have guidance and support of family who
       could help you make appropriate decisions and who would give you
       good background, but you had all that. You had good support from
       your family, and so I can’t conclude that as a result of a very
       disadvantaged background you were much more likely being a
       youthful person to commit this type of offense. I just can’t make
       that conclusion.

The district court’s statements do not appear to acknowledge Hajtic’s actual

background. The court made no mention of the potentially negative family and

home environment with an abusive, alcoholic stepfather who abandoned the

family. There was no mention of Hajtic’s background as a refugee from war-torn
                                            6



Bosnia, then Croatia.        Although Hajtic’s mother and siblings likely are a

supportive family, the court did not consider the whole picture.

         The third factor required to be considered is the circumstances of the

particular crime and all circumstances relating to youth that may have played a

role in the commission of the crime.            The court considered some of the

circumstances of the particular crime when it observed, “[Y]ou made a conscious

decision to make repeat felonies over a two-day period of time, and ultimately

you committed a very, very serious offense against another human being.” And

again:

         You were engaged in a crime spree at the time you committed this
         offense. Just one day before you committed this offense, you
         burglarized two other places. Two separate incidents. You had
         ample time to reflect on that after committing the first one and
         decide that perhaps this is bad judgment, perhaps I shouldn't
         engage in this sort of activity, you’re directly violating the rights and
         security of other people when you burglarize, and yet you chose to
         do the same thing in a different location on the same day. And then
         you had an evening to reflect further on whether engaging in
         serious criminal behavior, felony criminal behavior is something you
         really ought to be doing, and after sleeping on it, what did you do
         the next day? You decided to burglarize another place, and then
         you decided to commit an armed robbery. There was plenty of
         opportunity for you to digest what you were doing, think twice about
         what you were doing and choose a wiser course of action. You did
         not do that. You committed a very serious crime against another
         fellow human being.

As with the first factor, the district court considered the offense conduct as an

aggravating factor rather than a mitigating factor. Controlling case law requires

the district court to consider this factor solely as a mitigating factor.            See

Pearson, 836 N.W.2d at 97 (“It is true . . . youthfulness does not lessen the

results of [a juvenile’s] actions insofar as the impact they had on the lives of the
                                             7



victims, yet under Miller and Null, a juvenile’s culpability is lessened because the

juvenile is cognitively underdeveloped relative to a fully-developed adult.”);

(“While it is true that juveniles lack the maturity to fully understand the

consequences of their actions, under Miller and Null this too is a mitigating

factor.”). Here, the district court here “did not treat it as such,” id., and this

constitutes reversible error.

       We do address a final issue. Hajtic contends the court considered an

improper factor in resentencing—Hajtic’s lack of remorse demonstrated by

making the State prove its case at trial instead of accepting responsibility and

pleading guilty.   A sentence must be vacated and the matter remanded for

resentencing when the record shows the sentencing court relied on an

impermissible factor in imposing sentence. See State v. Carrillo, 597 N.W.2d

497, 501 (Iowa 1999).       One improper factor is a defendant’s exercise of his

constitutional right to require the State to prove his guilt at trial rather than plead

guilty. See State v. Nichols, 247 N.W.2d 249, 255-56 (Iowa 1976). Here the

State clearly argued the defendant should receive a more severe sentence

simply for putting the State to its proof:

               This defendant, as I had previously pointed out, didn’t take
       responsibility, went through a whole trial in this matter, didn’t simply
       plead guilty to committing this offense, put the state and the victims
       to the test of proving his guilt, didn’t accept that judgment as a final
       word. He appealed his conviction. He lost his—or, lost his appeal
       as well and now is back before the court to try to have his sentence
       reduced. This is not somebody that is really taking responsibility for
       any of his actions.

The record is ambiguous as to whether the district court relied on the State’s

recommendation at the time of sentencing.          If it did so, this was improper.
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However, we need not reach the issue because the defendant’s sentence must

be vacated on other grounds.

      Because the district court did not consider the required Lyle factors and

because the district court considered some of the Lyle factors as aggravating

rather than mitigating circumstances, we are compelled to vacate the defendant’s

sentence and remand this matter for resentencing before a different judge.

      SENTENCE VACATED AND REMANDED FOR RESENTENCING.
