                       IN THE COURT OF APPEALS OF IOWA

                                   No. 15-0954
                               Filed June 15, 2016


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

SY ROEUTH,
     Defendant-Appellant.
________________________________________________________________


       Appeal from the Iowa District Court for Polk County, Richard G. Blane II,

Judge.



       Sy Roeuth appeals the district court’s denial of his motion to correct an

illegal sentence.      FIRST-DEGREE MURDER SENTENCE VACATED AND

CASE REMANDED FOR RESENTENCING.




       Jeremy B.A. Feitelson of Feitelson Law, L.L.C., West Des Moines, for

appellant.

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

Attorney General, for appellee.



       Considered by Danilson, C.J., and Vaitheswaran and Bower, JJ. Blane,

S.J., takes no part.
                                          2


VAITHESWARAN, Judge.

       A jury found Sy Roeuth guilty of first-degree robbery, willful injury, and

first-degree murder.    The district court sentenced Roeuth to prison terms of

twenty-five years, a term not exceeding ten years, and life in prison respectively.

       Seventeen years later, Roeuth filed a motion to correct an illegal sentence

alleging he was born in 1979 and “was a juvenile at the time of the crime,”

triggering application of recent juvenile sentencing precedent.         See State v.

Pearson, 836 N.W.2d 88, 96 (Iowa 2013) (holding “article I, section 17 require[d]

an individualized sentencing hearing where . . . a juvenile offender receive[d] a

minimum of thirty-five years imprisonment without the possibility of parole”); State

v. Null, 836 N.W.2d 41, 76 (Iowa 2013) (holding a 52.5 year sentence for a

juvenile based on the aggregation of mandatory minimum sentences for second-

degree murder and first-degree robbery was unconstitutional without an

individualized sentencing hearing). See also State v. Sweet, ___ N.W.2d ___,

___, 2016 WL 3023726, at *29 (Iowa 2016) (holding “a sentence of life without

the possibility of parole for a juvenile offender violates article I, section 17 of the

Iowa Constitution”); State v. Lyle, 854 N.W.2d 378, 402 (Iowa 2014) (holding “a

mandatory minimum sentencing schema . . . violates article I, section 17 of the

Iowa Constitution when applied in cases involving conduct committed by youthful

offenders”).1

       The State resisted the motion, asserting “[t]he record [was] replete with

evidence” that Roeuth was born in 1978 rather than 1979 and, accordingly, was


1
 Sweet was decided after briefing in this case. Lyle was decided after Roeuth filed his
motion for correction of illegal sentence.
                                            3


eighteen years old at the time of the offense. The district court scheduled a

hearing “to determine whether [Roeuth] c[ould] establish his true and correct date

of birth as different from what the court records reflect.” The court stated “[i]f so,

[he] may be entitled to a resentencing hearing.”

         At the hearing, Roeuth testified his parents brought him to this country as

a baby and he was a naturalized citizen of the United States. At the time of the

offenses, he represented himself as eighteen to gain employment and buy

cigarettes.    He testified he did not understand the importance of stating his

correct age.

         Upon learning he was subject to a detainer for deportation, Roeuth

realized the significance of his age, and attempted to determine his correct

birthdate. Because his parents had died and documentation they may have had

was lost, Roueth contacted the Immigration and Naturalization Service.               He

received a “Memorandum of Creation of Record of Lawful Permanent Residence”

from the United States Department of Justice, Immigration and Naturalization

Service.      The document identified him by name,2 set forth his Des Moines

address, and listed his date of birth as 1979 rather than 1978. The document

was approved in 1981 and served as “temporary evidence of lawful admission for

permanent residence.” The document was admitted without objection.

         Roeuth    also   obtained   correspondence       from   the   Social   Security

Administration confirming that his attorney correctly identified his date of birth as

being in 1979. This correspondence was admitted without objection.



2
    The name was spelled “Reouth” rather than “Roeuth.”
                                        4


      Following the hearing, the district court denied the motion to correct illegal

sentence. The court found Roeuth failed to establish “by a preponderance of the

evidence that his birthdate [was in] . . . 1979,” determined it was in 1978 and,

concluded Roeuth committed the offense when he was eighteen, rendering the

juvenile sentencing precedent inapplicable.

      On appeal, Roeuth contends he “met his burden of showing by the

preponderance of the evidence that he was a minor when the incident took

place.” The State concedes “[f]acts relied on in imposing sentence must be

proven by a preponderance of the evidence.”           This standard requires “a

probability assessment of more likely than not.” Backstrom v. Iowa Dist. Court,

508 N.W.2d 705, 711 (Iowa 1993) (Carter, J., dissenting). See also State v.

Kollasch, No. 09-0305, 2009 WL 4842498, at *4 (Iowa Ct. App. Dec. 17, 2009)

(“A preponderance is such proof as leads the trier of fact to find that it is more

probable than not, or more likely than not, that a contested fact exists.” (quoting

32A C.J.S. Evidence § 1627, at 713-14 (2008))).

      Assuming without deciding Roeuth had the burden to establish his age,3

we conclude he satisfied this burden.       He provided documentation from two

federal agencies charged with maintaining birthdate records.        Those records

unequivocally established that Roeuth was born in 1979. True, the Immigration

and Naturalization document contained a misspelling of his name.           But, the

Social Security Administration, which had access to his social security number in

addition to his name, confirmed the birthdate.


3
 See Ross Pearson, Note, What’s My Age Again? The Immigrant Age Problem in the
Criminal Justice System, 98 Minn. L. Rev. 745, 757-58 (2013).
                                            5


       It matters little that all involved in the trial cited a different birthdate or that

Roeuth misrepresented his birthdate. Because Roeuth was of sufficient age to

be tried as an adult whether he was seventeen or eighteen4 and age was not an

element of the charged crimes, this fact never had to be proven. His age only

became an issue after the Iowa Supreme Court held certain juvenile sentences

unconstitutional. At this juncture, Roueth raised the question of his true age and

proved by a preponderance of the evidence that he was seventeen years old at

the time of the offenses.

       This brings us to the disposition. Roueth was sentenced to life in prison for

first-degree murder. See Iowa Code § 902.1 (1996) (“[A] person convicted of a

class ‘A’ felony,” which includes first-degree murder, “shall not be released on

parole unless the governor commutes the sentence to a term of years”). Sweet

held that this statutory life-without-parole sentence was unconstitutional as

applied to juvenile offenders. 2016 WL 3023726, at *29. Based on Sweet, we

reverse the sentence imposed by the district court and remand “for resentencing

consistent with this opinion,” which we surmise is life in prison with immediate

eligibility for parole.5 Id.

       FIRST-DEGREE            MURDER      SENTENCE         VACATED        AND     CASE

REMANDED FOR RESENTENCING.



4
  See Iowa Code § 232.8(1)(c). See also Pearson, What’s My Age Again, 98 Minn. L.
Rev. at 752-753.
5
  Roueth does not challenge his remaining sentences. At the time of the offenses,
persons convicted of first-degree robbery were required to serve 100% of their
sentences. See Iowa Code § 902.12 (1996). However, this sentence was reduced to
seventy percent in 2003 and was made retroactive in 2004. The willful injury sentence
did not carry a mandatory minimum period of incarceration.
