                    IN THE COURT OF APPEALS OF IOWA

                                   No. 14-1376
                             Filed October 28, 2015

STATE OF IOWA,
     Plaintiff-Appellee,

vs.

JASON JON MEANS,
     Defendant-Appellant.
________________________________________________________________

      Appeal from the Iowa District Court for Scott County, Joel W. Barrows,

Judge.



      An offender, who as a juvenile committed first-degree kidnapping, second-

degree murder, and several other felonies, appeals the district court order

rejecting his motion to correct his prison sentence of life with the possibility of

parole and ninety-five years with the possibility of parole. AFFIRMED.



      Mark C. Smith, State Appellate Defender, and Nan Jennisch, Assistant

Appellate Defender, for appellant.

      Thomas J. Miller, Attorney General, Kevin Cmelik and Mary A. Triick,

Assistant Attorneys General, Michael J. Walton, County Attorney, and Kimberly

Shepherd, Assistant County Attorney, for appellee.



      Heard by Potterfield, P.J., and Doyle and Tabor, JJ.
                                           2



TABOR, Judge.

       Jason Means was seventeen years old in 1993 when he committed

second-degree murder, first-degree robbery, first-degree kidnapping, criminal

gang participation, conspiracy to commit robbery, and possession of an offensive

weapon. For those crimes Means, after a successful motion to correct illegal

sentence, currently faces a term of life in prison with the possibility of parole and

a concurrent term of ninety-five years with the possibility of parole.1 For the

second time, Means’s challenge to the constitutionality of his sentence is before

our court. Although he is not subject to any mandatory minimum terms before

being eligible for parole, Means nevertheless contends he deserves an

individualized sentencing hearing under article I, section 17 of the Iowa

Constitution. He also argues the district court should have addressed his claim

that the lengthy sentence was grossly disproportionate to his crimes under state

constitutional principles.

       Because recent precedents from the United States Supreme Court and

the Iowa Supreme Court require individualized sentencing hearings only for

juvenile offenders who face mandatory minimum terms, we affirm the district

court’s ruling declining to resentence Means. On his second claim, we find no

need to remand for additional fact-finding. The record is adequate to decide



1
  On appeal, the parties disagree whether the original sentencing court imposed the
term-of-years sentence to run consecutively or concurrently with Means’s life sentence.
In the district court, the State took the position that all of the sentences were to run
consecutively. But at oral argument, the State asserted the Iowa Department of
Corrections (DOC) is treating the life sentence as concurrent to the term-of-years
sentence. We find Means should receive the ameliorative benefit of the State’s
concession and conclude the life sentence is concurrent to the term of ninety-five years.
                                       3



Means is unable to meet the threshold showing that the gravity of his violent

felonies compared to the severity of his sentence raises an inference of gross

disproportionality.

I. Background Facts, Proceedings, and Case Law Developments

        Seventeen-year-old Michelle Jensen died from a single shotgun blast to

the back of her head during the early morning hours of August 29, 1993. Her

murder followed a party at the home of Anthony Hoeck. Before the party, Hoeck

hatched a plan with Jason Means and Justin Voelkers to use Jensen’s car to rob

a convenience store.    They intended to use the robbery proceeds to start a

cocaine-selling business.

        When Jensen refused to give up her car keys at the party, Means

threatened her with a gun. Means and Voelkers then accompanied Jensen to

her car, saying they were going to drive her home. Instead they drove to a rural

area.   When Jensen started to walk away, Means told Voelkers: “Go do it.”

Voelkers shot Jensen in the back of the head from four to six feet away, probably

as she was kneeling, according to the medical examiner’s testimony. Means

served as the getaway driver, and they left quickly after Voelkers shot Jensen.

When Means and Voelkers returned to Hoeck’s home, they were laughing and

excited. Means hid the shotgun shells under a mattress. Means joined others

driving Jensen’s car back to the body to steal her money. But after seeing the

flashing lights of law enforcement at the crime scene, they retreated. They also

decided not to rob the convenience store because it was “too busy.”
                                            4



       Although he was a juvenile at the time of the kidnapping and murder, the

State charged Means as an adult. During his 1994 trial, the jury watched a

videotape of a police interview in which Means made several incriminating

statements. The jury convicted Means of six counts: second-degree murder,

first-degree robbery, first-degree kidnapping, criminal gang participation,

conspiracy to commit robbery, and possession of an offensive weapon.                  The

district court imposed a sentence of life without the possibility of parole for the

class “A” felony offense of first-degree kidnapping. The court then ordered the

remaining felony terms to run consecutive to each other for a total of ninety-five

years.2 At that time none of the sentences, other than the life term, carried

mandatory minimum periods of confinement.3               This court affirmed Means’s

convictions on appeal. State v. Means, 547 N.W.2d 615, 621-25 (Iowa Ct. App.

1996). Means did not seek further review or apply for postconviction relief.

       During Means’s incarceration, the law evolved in Iowa and federal courts

regarding the sentencing of juvenile offenders under cruel-and-unusual-

punishment standards4 and regarding illegal sentences. In Roper v. Simmons,

543 U.S. 551, 578 (2005), the Court invalidated the death penalty for all juvenile




2
  These felonies carried indeterminate terms of fifty years (for second-degree murder);
twenty-five years (for first-degree robbery), five years (for criminal gang participation);
ten years (for conspiracy to commit robbery) and five years (for possession of an
offensive weapon).
3
  In 1996, the legislature enacted Iowa Code section 902.12, setting mandatory minimum
sentences for certain felonies.
4
   Article I, section 17 of the Iowa Constitution provides, “Excessive bail shall not be
required; excessive fines shall not be imposed, and cruel and unusual punishment shall
not be inflicted.” The Eighth Amendment provides, “Excessive bail shall not be required,
nor excessive fines imposed, nor cruel and unusual punishments inflicted.”
                                           5



offenders under the age of eighteen. In 2009 the Iowa Supreme Court ruled a

defendant’s cruel-and-unusual-punishment challenge under the federal and state

constitutions is a claim the sentence is illegal because it calls into question the

court’s power to impose a particular sentence. State v. Bruegger, 773 N.W.2d

862, 871, 884 (Iowa 2009) (recognizing, under the Iowa constitution, the concept

embraced in Roper—that juveniles have less culpability than adults—has broad

application outside the death penalty context).    Under Iowa Rule of Criminal

Procedure 2.24(5)(a), a “court may correct an illegal sentence at any time,” and a

“claim that a sentence is illegal goes to the underlying power of the court to

impose a sentence, not simply to its legal validity.” Veal v. State, 779 N.W.2d 63,

65 (Iowa 2010).

       In 2010 the United States Supreme Court announced a “categorical rule”

that a sentence of life imprisonment without the possibility of parole for

nonhomicide offenses committed by juveniles violated the Eighth Amendment’s

prohibition against cruel and unusual punishment. Graham v. Florida, 560 U.S.

48, 74 (2010). Graham required the states to impose a sentence that provides

some meaningful opportunity for the juvenile’s release based on demonstrated

maturity and rehabilitation and also determined the States, in the first instance,

would create the means and mechanisms for compliance.            Id. (“The Eighth

Amendment does not foreclose the possibility that persons convicted of

nonhomicide crimes committed before adulthood will remain behind bars for life.

It does forbid States from making the judgment at the outset that those offenders

never will be fit to reenter society.”).
                                         6



      First Motion to Correct Illegal Sentence.      After Graham was decided,

Means filed a motion to correct illegal sentence, challenging the constitutionality

of his kidnapping sentence. The State resisted, pointing to Means’s homicide

offense of second-degree murder. Means was present at the hearing in July

2010. Defense counsel asked the court to order “a chance, as Graham states,

for a reasonable opportunity for parole.” The district court entered its September

2010 ruling without another hearing and without bringing Means back to court.

The court found (1) Graham applied retroactively and (2) Means’s crime of first-

degree kidnapping was “a nonhomicide offense.” Recognizing the Graham court

“reasoned the punishment of life in prison without parole for nonhomicide

offenses is too severe given the diminished culpability of juveniles,” the district

court granted Means’s motion. The court concluded Iowa’s statutory scheme for

first-degree kidnapping constituted cruel and unusual punishment under both the

federal and state constitutions.     In fashioning a constitutionally permissible

sentence, the court severed the statutory prohibition against parole for class “A”

felonies from the life sentence. The court directed that Means would be “subject

to parole consideration under Chapter 906 of the Iowa Code.”          Means was

immediately eligible for parole on all sentences, and he did not appeal.

      Second Motion to Correct Illegal Sentence. Less than thirty days later in

October 2010, Means filed a second motion, “challenging his current sentence

package as illegal.”   First, Means claimed he had a due process right to be

present at the prior resentencing.     Second, he argued the “life with parole

sentence” still violated Graham because that sentence did not offer “a meaningful
                                             7



opportunity for release.”      Third, Means alleged the “original consecutive

sentences” imposed in 1994 were illegal due to the court’s failure to “articulate

any reasons for imposing consecutive sentences.” Fourth and finally, Means

claimed the court denied his right to allocution at the 1994 sentencing hearing.

Means asked the court to vacate and correct the illegal sentences imposed, grant

his right to allocution, and “give him the opportunity to show demonstrated

maturity and rehabilitation” under Graham.

       Before the hearing on Means’s second motion, the Iowa Supreme Court

resolved a juvenile’s challenge to his sentence of mandatory life without the

possibility of parole for a first-degree kidnapping conviction. See Bonilla v. State,

791 N.W.2d 697, 698 (Iowa 2010). A unanimous court ruled: “Under Graham,

[the defendant’s] federal constitutional right to be free from cruel and unusual

punishment was violated when he was sentenced to life in prison without parole

for the nonhomicide crime.” Id at 701 (declining to address “the boundaries of

the Iowa Constitution’s prohibition on cruel and unusual punishment”).          After

concluding severance was available and appropriate, the court severed the

“without parole” language and ruled “the provisions of section 906.5 establishing

parole reviews will apply to Bonilla.” Id. at 702. The court vacated Bonilla’s

sentence and remanded to the district court for resentencing to “life in prison,

with the potential of parole.” Id. at 703.

       In March 2011 the district court held a hearing on Means’s second motion

to correct illegal sentence. Due to a miscommunication with the sheriff’s office,

Means was not present, and defense counsel did not object to his absence.
                                            8



Defense counsel stated the DOC had told both counsel and Means that “he will

not get a parole hearing ever.”         She contended, because the DOC is not

providing “any meaningful opportunity of parole,” the court’s first order “is

basically not in accordance with Graham.” While counsel recognized the district

court could sever the offending language, “without parole,” in absentia, she

asked for a resentencing hearing with Means present:

       Basically I would like a chance to resentence him, look at the entire
       sentence as a whole and also separately, and have the court
       resentence him in a way that is in compliance with Graham, and
       then also does allow him to have a meaningful chance of parole
       which is what Graham does.

       The prosecutor argued the Bonilla case “in essence confirmed” the district

court’s September 2010 ruling.        The prosecutor pointed out Means’s second

motion was filed within thirty days of the court’s first ruling, so “the fact that in that

thirty days” the DOC “had not yet put into place exactly how [Means’s parole]

was going to happen is understandable.”

       On March 4, 2011, the court ruled Means’s challenges to the 1994

sentencing proceeding were issues of sentencing procedure “and those issues

do not constitute an illegal sentence.” The court also rejected Means’s claim “he

was sentenced in absentia” by the court’s September 30, 2010 ruling, stating the

court had ruled in Means’s favor and the “correction of his sentence pursuant to

Graham could not and would not have been altered by” Means’s presence.

Finally, the court rejected Means’s claim his amended sentence remained

unconstitutional because the DOC has failed to apply the modified sentence,

noting “Bonilla further establishes” Means “is eligible for annual parole review” as
                                           9



directed by this court.    Thus, under Bonilla, the court’s “amended sentence

imposed September 30, 2010, is not illegal.” The court instructed Means to seek

administrative or postconviction relief if the parole board fails to follow Bonilla.

       Means appealed and this court affirmed. See State v. Means, No. 11-

0492, 2012 WL 3195975, at *3 (Iowa Ct. App. Aug. 8, 2012). Means sought

further review.

       While his request was pending, the United States Supreme Court held “a

sentencing scheme that mandates life in prison without possibility of parole for

juvenile offenders” who commit homicide offenses is unconstitutional under the

Eighth Amendment. See Miller v. Alabama, 132 S. Ct. 2455, 2469 (2012). The

Court found by “making youth (and all that accompanies it) irrelevant to

imposition of that harshest prison sentence, such a scheme poses too great a

risk of disproportionate punishment.”          Id.   The Court declined to find a

“categorical bar on life without parole for juveniles” but cautioned, “appropriate

occasions for sentencing juveniles to this harshest possible penalty will be

uncommon.” Id. The Court did not foreclose a district court’s “ability to make

that judgment in homicide cases” but required that court “to take into account

how children are different, and how those differences counsel against irrevocably

sentencing them to a lifetime in prison.” Id.

       After Miller was decided, the Iowa Supreme court issued a trilogy of

decisions involving juvenile sentencing. See State v. Ragland, 836 N.W.2d 107

(Iowa 2013); State v. Null, 836 N.W.2d 41 (Iowa 2013); State v. Pearson, 836

N.W.2d 88 (Iowa 2013). In Ragland, the juvenile offender had been convicted of
                                         10



first-degree murder, sentenced to life without parole, and the governor commuted

the sentence to life with no possibility of parole for sixty years. 836 N.W.2d at

110-111. The supreme court first applied Miller retroactively to the commuted

sentence. Id. at 117. Second, the court found “Miller applies to sentences that

are the functional equivalent of life without parole.” Id. at 121-22. Finally, the

court ruled the sentence, as commuted, still amounted to cruel and unusual

punishment under the federal and state constitutions. Id. at 122.

        In Null, the court addressed whether a mandatory minimum prison term of

more than fifty years triggered the protections to be afforded under Miller—

“namely, an individualized sentencing hearing to determine the issue of parole

eligibility.”   836 N.W.2d at 71.      The court concluded the sentence was

unconstitutional “independently under article I, section 17 of the Iowa

Constitution.” Id. at 70. In 2015 the supreme court described its Null ruling as

follows:

               In Null, we found when a judge sentences a juvenile to a
        mandatory minimum sentence, the judge must state his or her
        reasons on the record for imposing such a sentence. Likewise, if
        the sentencing judge believes the information in the record rebuts
        the presumption to sentence a juvenile to life in prison with the
        possibility of parole and the case is the rare and uncommon case
        requiring the judge to sentence the juvenile to life in prison without
        the possibility of parole, the judge must make specific findings of
        fact discussing why the record rebuts the presumption. In making
        such findings, the district court must go beyond a mere recitation of
        the nature of the crime, which the Supreme Court has cautioned
        cannot overwhelm the analysis in the context of juvenile
        sentencing.

State v. Seats, 865 N.W.2d 545, 557 (Iowa 2015) (internal citations and quotation

marks omitted).
                                          11



       The final case in the trilogy, Pearson, involved a juvenile offender

convicted of two counts of first-degree robbery and two counts of first-degree

burglary. 836 N.W.2d at 89. The district court sentenced her to fifty years in

prison with a seventy-percent mandatory minimum, making her ineligible for

parole until she served thirty-five years. Id. The Pearson court found the Iowa

Constitution “requires an individualized sentencing hearing where, as here, a

juvenile offender receives a minimum of thirty-five years imprisonment without

the possibility of parole . . . and is effectively deprived of any chance of an earlier

release and the possibility of leading a more normal adult life.” Id. at 96. The

court remanded for resentencing with the district court applying “the Miller

standards as described in Null and this opinion.” Id. at 97.

       Iowa Supreme Court’s Remand Order.            Eleven days after issuing the

trilogy of cases, on August 27, 2013, the supreme court granted Means’s

application for further review and vacated our court’s decision affirming the

district court’s ruling on Means’s second motion to correct illegal sentence. The

supreme court remanded the case for the district court “to reconsider the

defendant’s motions to correct illegal sentence” in light of Miller, Null, and

Pearson.

       A few months later, on February 14, 2014, the Iowa Supreme Court

conditionally affirmed the corrected sentence of Means’s codefendant Anthony

Hoeck. Considering only the Eighth Amendment issue raised on appeal, the

court held: “For a juvenile previously sentenced to life in prison without parole for

a nonhomicide crime, the appropriate remedy under Graham was to sever the
                                          12



parole ineligibility from the juvenile’s sentence and sentence the juvenile to life in

prison with the possibility of parole.” State v. Hoeck, 843 N.W.2d 67, 71 (Iowa

2014) (endorsing procedure followed in Bonilla, 791 N.W.2d at 701).              The

supreme court remanded the case to the district court to allow Hoeck to amend

his application to raise the state constitutional claim. Id. at 72.

       Before the district court held the remand hearing ordered for Means, the

Iowa Supreme Court also decided State v. Lyle, where the seventeen-year-old

offender challenged his second-degree robbery sentence of ten years with a

mandatory minimum of seven years, claiming “mandatory minimums cannot be

constitutionally applied to juveniles.” 854 N.W.2d 378, 381, 386 (Iowa 2014).

       The Lyle court first discussed the upshot of Miller:

       Miller effectively created a new subset of categorically
       unconstitutional sentences: sentences in which the legislature has
       forbidden the sentencing court from considering important
       mitigating characteristics of an offender whose culpability is
       necessarily and categorically reduced as a matter of law, making
       the ultimate sentence categorically inappropriate. This new subset
       carries with it the advantage of simultaneously being more flexible
       and responsive to the demands of justice than outright prohibition
       of a particular penalty while also providing real and substantial
       protection for the offender’s right to be sentenced accurately
       according to their culpability and prospects for rehabilitation.

Id. at 386.

       Second, the Lyle court recognized the Iowa legislature signaled “its

independent concern with mandatory minimum prison sentences for juveniles by
                                         13



enacting” Iowa Code section 901.5(14),5 and abolishing “mandatory prison

sentencing for most crimes committed by juveniles.” Id. at 388.

       Third, the Lyle court determined the “sentencing of juveniles according to

statutorily required mandatory minimums does not adequately serve the

legitimate penological objectives in light of the child’s categorically diminished

culpability.” Id. at 398 (“[T]he Supreme Court has recognized that the denial of

even the opportunity to apply for parole for a portion of the entirety of the

applicable period of incarceration renders the sentence harsher.”).            While

recognizing the factors of rehabilitation and incapacitation can justify criminally

punishing juveniles, the Lyle court found mandatory minimums do not further

these objectives “in a way that adequately protects the rights of juveniles within

the context of the constitutional protection from the imposition of [a] cruel and

unusual punishment.” Id. at 399.

       As its bottom line, Lyle held a mandatory minimum sentencing scheme,

like section 902.12, violated article I, section 17 of the Iowa Constitution when

applied to juvenile offenders. Id. at 402. The Lyle court instructed sentencing

courts:




5
 The legislature enacted 2013 Iowa Acts chapter 42, section 14 (codified at Iowa Code
section 901.5(14) (2015)):
       Notwithstanding any provision in section 907.3 or any other provision of
       law prescribing a mandatory minimum sentence for the offense, if the
       defendant, other than a child being prosecuted as a youthful offender, is
       guilty of a public offense other than a class “A” felony, and was under the
       age of eighteen at the time the offense was committed, the court may
       suspend the sentence in whole or in part, including any mandatory
       minimum sentence, or with the consent of the defendant, defer judgment
       or sentence, and place the defendant on probation upon such conditions
       as the court may require.
                                         14



              It is important to be mindful that the holding in this case does
       not prohibit judges from sentencing juveniles to prison for the length
       of time identified by the legislature for the crime committed, nor
       does it prohibit the legislature from imposing a minimum time that
       youthful offenders must serve in prison before being eligible for
       parole. Article I, section 17 only prohibits the one-size-fits-all
       mandatory sentencing for juveniles.

Id. at 403.

       A few weeks after Lyle was decided, on August 8, 2014, the district court

convened the remand hearing, and Means attended.             The court mused “the

situation is somewhat confused by the fact the supreme court merely vacated the

court of appeals opinion.” The court and the parties agreed that Means’s revised

sentence of life with the possibility of parole “still stands.” The State informed the

court that Means “was reviewed for parole in September of 2013 and was

denied.” His next annual parole review was scheduled for September 2014.

       Defense counsel asked the court to consider a “reconfiguration” of

Means’s entire sentence. Counsel argued Means’s lengthy prison term was “in

essence a life sentence.” He claimed Lyle “opened some questions” about not

only mandatory minimums but about forcible felonies and mandatory prison

sentences.     Counsel contended as “long as we have mandatory prison

sentences, which we have here,” the district court should conduct a resentencing

hearing that takes into consideration the mitigating factors of youth. In response,

the State argued that Lyle limited its finding of cruel and unusual punishment to

mandatory minimum sentences imposed on juveniles during which there was no

opportunity for parole.
                                            15



       Ultimately, the district court agreed with the State, concluding Lyle’s

holding did not provide relief to Means, whose sentence did not require him to

serve any mandatory minimum term before he was eligible for parole.           The

district court observed that Means’s “arguments want me to go to a place that the

Iowa Supreme Court has not yet gone.” The court held that Lyle, Pearson, and

Null did not “mandate resentencing under these circumstances.”         The court

denied Means’s second motion to correct an illegal sentence, explaining as “the

law currently exists, this sentence is not an illegal sentence because Mr. Means

has the possibility of parole right now.”

       Means appealed, and our supreme court transferred the case to us.

II. Standard of Review

       We review claims concerning the constitutionality of sentences de novo.

See Bruegger, 773 N.W.2d at 869.

III. Analysis

       A.       Application of Miller to Original or to Corrected Sentence

       Means claims the “rule contemplated by Miller applies retroactively to his

original sentence” where he received a term of life in prison and an additional

ninety-five years “without the benefit of an individualized sentencing procedure.”

Means argues severing the parole ineligibility did “not cure the illegality of the

original sentence” because “even with the corrected sentence,” he has been

deprived of the constitutional mandate that youths be sentenced” by a court

“considering the Miller factors.” Means asserts the district court “erroneously

believed its review on remand was limited to the corrected sentence.” Finally,
                                         16



Means urges us not to follow Bonilla, 791 N.W.2d at 702–03, which held that

striking the invalid portion of the unconstitutional sentence met federal

constitutional standards.

       The State contends the focus has shifted away from Means’s original

sentence. The State points out that under Graham, his sentence of life without

parole for first-degree kidnapping was “unconstitutional irrespective of the

procedures by which it was imposed.” To comply with Graham, the district court

struck the unconstitutional provision in the same manner later approved in

Bonilla—leaving Means immediately eligible for parole. Once that was done,

Means was not entitled to an individualized sentencing hearing, according to the

State, because a resentencing hearing where the court must consider the Miller

factors is required only when parole eligibility is at issue. See Null, 836 N.W.2d

at 70-71 (stating “protections to be afforded under Miller” are “an individualized

sentencing hearing to determine the issue of parole eligibility”).        The State

concludes “all claims related to the original sentence are at this point moot.”

       In his reply brief, Means asserts the supreme court’s remand order

“created a unique procedural posture” whereby all issues raised in his two

motions to correct illegal sentence were “resurrected and reconsidered by the

district court.”

       It is true that the remand order directed the district court to reconsider the

defendant’s motions to correct illegal sentence. But Means, as the moving party,

had the right to narrow the issue for the district court. At the remand hearing,

defense counsel agreed with the district court and the prosecutor that the
                                          17



question to be decided was the constitutionality of the corrected sentence, the

sentence providing Means with immediate parole eligibility. Defense counsel did

not pursue a challenge to the original sentence, instead stating: “[W]hat we’re

asking in this case, what we’re asking for is that the court consider the sentence

as it is, as it stands, we’re asking that the court consider . . . a reconfiguration of

life with the possibility of parole.” (Emphasis added.) The court asked a follow-

up question, seeking to clarify its understanding that Means was “asking for

reconsideration with respect to all of the existing sentences.” Defense counsel

agreed, reiterating the existing sentences were life with the possibility of parole

and ninety-five years. Having framed the issue in that manner in the district

court, it would violate the principles of fairness undergirding our error

preservation requirements to fault the district court for “failing to rule correctly on

an issue it was never given the opportunity to consider.” See DeVoss v. State,

648 N.W.2d 56, 60 (Iowa 2002).

       Normally sentencing issues stand as an exception to the rules of error

preservation, and illegal sentences receive an even wider berth. See State v.

Lathrop, 781 N.W.2d 288, 292-93 (Iowa 2010).             But this case involves an

affirmative decision by Means, who asked the remand court to reconsider his

already-corrected sentence.      Parties cannot “predicate error upon the court’s

doing the very thing they requested the court to do.” See State v. Beckwith, 53

N.W.2d 867, 869 (Iowa 1952) (declining to consider claim on appeal when

defendant urged court not to grant mistrial after one juror was held in contempt);

see also State v. Eckrich, 670 N.W.2d 647, 649 (Iowa Ct. App. 2003) (finding
                                        18



defendant did not preserve double jeopardy claim where he made a tactical

choice to withdraw his motion for adjudication of law points regarding multiple

prosecutions to proceed with favorable sentencing).

         But even setting aside Means’s error-preservation problem, we do not

believe the supreme court’s remand order intended to or actually could reinstate

a life-without-parole sentence deemed unconstitutional by Graham. Accordingly,

the district court appropriately assessed the constitutionality of the corrected

sentence. In making that assessment, the district court logically read Miller, Lyle,

Null, and Pearson as applying only to “a situation involving mandatory minimums,

and we don’t have that here.” The court decided it was “bound to apply the

supreme court law as it exists,” explaining to defense counsel: “The supreme

court may go to the place where you want them to go, but that law does not yet

exist.    As the law currently exists, this sentence is not an illegal sentence

because Mr. Means has the possibility of parole right now.”

         Like the district court, our court is bound by supreme court precedent.

See State v. Beck, 854 N.W.2d 56, 64 (Iowa Ct. App. 2014). Our supreme court

has found, under the federal constitution, a sentence of life without parole for a

nonhomicide offense can be corrected by following the procedure in Bonilla.

Hoeck, 843 N.W.2d at 71. But Hoeck did not resolve the issue of the corrected

sentence’s legality under the Iowa Constitution. See id. at 72. Three justices

signed onto a partial dissent in Hoeck, contending the supreme court should

have answered “no” to this question: “Does the Iowa Constitution categorically

prohibit the general assembly from making a life sentence the designated
                                          19



punishment to a heinous crime when that crime is committed by a seventeen-

year-old even when there is no mandatory minimum the defendant must serve

before becoming eligible for parole?” Id. at 73-74 (Mansfield, J., concurring in

part and dissenting in part). The dissenters asserted: “We owe it to the citizens

of this state to clarify the limits and scope” of Null and Pearson. Id. at 74.

       It is appropriate for our court to defer to the supreme court on whether to

extend the holdings of Null, Pearson, and Lyle to cases where juvenile offenders

do not face any mandatory minimum sentences. See State v. Marshall-Limoges,

No. 14-1610, 2015 WL 4936265, at *1 (Iowa Ct. App. Aug. 19, 2015) (rejecting

request this court extend requirement to consider Miller factors to the imposition

of any prison sentence on a juvenile defendant); cf. Luana Sav. Bank v. Pro-Build

Holdings, Inc., 856 N.W.2d 892, 893 (Iowa 2014) (noting our court appropriately

deferred to supreme court on whether to extend the doctrine of an implied

warranty of workmanlike construction). Accordingly, applying existing law, we

affirm the district court’s denial of Means’s request for a resentencing hearing.

       B.     Mandatory Sentences of Imprisonment

       In a slightly different argument, Means seeks to extend “the rationale

underlying Miller and the Null-Lyle line of cases” to a sentencing scheme that

“automatically imprisons juveniles” for forcible felony offenses. See Iowa Code

§§ 232.8(1)(c), 702.11 (1993). Means reasons the heart of the constitutional

infirmity in Miller was the mandatory imposition of the sentence, not necessarily

its length. Means argues “Miller is properly read to support a new sentencing

framework that reconsiders mandatory sentencing for all children” and suggests
                                        20



“[s]ome juveniles will deserve imprisonment, but others may not.” Means asks us

to vacate his corrected sentence as illegal under the Iowa Constitution and

remand for a resentencing hearing on all his convictions, a hearing that follows

Miller’s individualized sentencing process.

      Current case law does not require a district court to consider the Miller

factors before imposing any sentence of incarceration upon a juvenile offender.

For the same reasons as articulated above, we do not see it as the role of our

court to extend the Null and Lyle line of cases in that manner.

      C.     Due Process Right to Be Present at Resentencing

       Means also argues we should vacate his corrected sentence on due

process grounds because “his presence was required when his sentence was

corrected.” Means first raised this issue in his second motion to correct illegal

sentence, the district court denied relief, and this court affirmed. Means, 2012

WL 3195975, at *3 (holding claim was not properly raised in a collateral motion

and should have been raised on direct appeal).

      The supreme court vacated our ruling and remanded. But on remand,

Means did not ask the district court to reevaluate this issue; thus, error has not

been preserved. See Meier v. Senecaut, 641 N.W.2d 532, 537 (Iowa 2002)

(requiring issue to be raised and decided by the district court before it can be

reviewed on appeal). Even if we assume the issue was preserved, it has no

merit. A similar claim by Means’s partner in crime was rejected by the supreme

court. See Hoeck, 843 N.W.2d at 69 (letting stand, as its final decision, the court

of appeals decision concluding Hoeck did not have to be present for the court to
                                        21



correct his illegal sentence so long as the disposition would not be aided by his

presence and the court’s modification did not make the sentence more onerous).

       D.     Gross Disproportionality

       Means also raises a gross-proportionality challenge to his sentence under

the Iowa Constitution. He claims even with the possibility of parole his sentence

is “exceedingly lengthy and harsh”—potentially “off the charts.” Means seeks a

remand for a hearing on this issue.

       The State contends we can reject this claim without a remand. The State

argues ordering Means to serve an indeterminate prison term “until such time as

the parole board determines his release is warranted and safe” does not

constitute a grossly disproportionate sentence.

       When the sentencing practice at issue does not violate any categorical

bar, an offender may challenge his or her particular sentence as grossly

disproportionate punishment. State v. Oliver, 812 N.W.2d 636, 640 (Iowa 2012).

The Oliver court discussed the method for analyzing such a challenge:

       The first step in this analysis, sometimes referred to as the
       threshold test, requires a reviewing court to determine whether a
       defendant’s sentence leads to an inference of gross
       disproportionality. This preliminary test involves a balancing of the
       gravity of the crime against the severity of the sentence. If, and
       only if, the threshold test is satisfied, a court then proceeds to
       [additional] steps.

Id. at 647 (citations and quotation marks omitted). Also, Iowa courts engage in a

more stringent review of the facts of the case than would be available under the

federal constitution. Id. at 650.
                                        22



       In addressing the threshold question, whether Means’s sentence leads to

an inference of gross disproportionality, our primary job is “to balance the gravity

of the crime against the severity of the sentence.” Bruegger, 773 N.W.2d at 873.

In the balancing process, we consider several general principles. First, “we owe

substantial deference to the penalties the legislature has established for various

crimes.” Oliver, 812 N.W.2d at 650. Second, “it is rare that a sentence will be so

grossly disproportionate to the crime as to satisfy the threshold inquiry and

warrant further review.” Id. Third, “a recidivist offender is more culpable and

thus more deserving of a longer sentence than a first-time offender.” Id. And

finally, the unique circumstances of a case can “converge to generate a high risk

of potential gross disproportionality.” Bruegger, 773 N.W.2d at 884.

       Critical to our analysis is the gravity of Means’s crimes—second-degree

murder, first-degree robbery, first-degree kidnapping, criminal gang participation,

conspiracy to commit robbery, and possession of an offensive weapon. These

offenses are among the most heinous acts identified in our criminal code. Means

and his fellow gang members planned a robbery, and committed kidnapping and

murder to launch a criminal drug enterprise. Their victim was a fellow teenager,

who was driven to a remote location and shot execution-style after refusing to

turn over her car keys. Means and his compatriots were giddy after the killing,

and would have returned to steal the victim’s cash if not for the fact law

enforcement had already arrived at the scene.          Means’s conduct was not

“inadvertently caught by a broadly written statute,” a factor triggering the court’s

concern in Bruegger.     See Oliver, 812 N.W.2d at 651 (citing Bruegger, 773
                                          23



N.W.2d at 884). Rather, Means’s purposeful, violent, and unremorseful actions

fell squarely within the forcible felony statutes under which he was convicted.

       On the other side of the fulcrum is the severity of Means’s sentence. His

maximum sentence is undeniably lengthy—life with the possibility of parole, as

well as a term of ninety-five years, also with the possibility of parole. But it is not

the most severe sentence possible, even for juvenile offenders. As we noted

earlier, the State has conceded his life term and his term-of-years sentence are

to be served concurrently. He is immediately eligible for parole, and the record

shows the parole board has already reviewed his case.

       The Bruegger court found a remand was necessary to gather evidence

concerning the circumstances of the prior offense used for enhancement

purposes, and to allow the State to present evidence of the impact of the current

crime on the victim and her family, of the defendant’s lack of remorse, of his

inability to respond to rehabilitative services, and of the need to incapacitate the

defendant. 773 N.W.2d at 886. In contrast, the record in this case is adequate

to resolve the issue. No enhancing offenses were used in the determination of

Means’s sentence. And the original trial record contains evidence concerning the

impact of the crime on the victim’s family.        In his victim impact statement,

Michelle Jensen’s father wrote:

       The loss of our daughter was devastating. The thought of having to
       live without her has affected us to the point that we can’t even
       function as a family anymore. I walked around in a cloud for
       months. I didn’t care about anything at all for some time. We will
       never be able to talk to her, or see her, or congratulate her at her
       high school graduation. We didn’t even get to celebrate her 18th
       birthday with her.
                                          24



In her victim impact statement, Jensen’s mother wrote: “To live without Michelle

is living hell . . . . My life may as well [have] ended Aug. 29 with her.”

       This case does not present the “rare” circumstance where the defendant’s

sentence is so grossly disproportionate to the crime as to warrant additional

scrutiny. See Oliver, 812 N.W.2d at 650. Because Means has not met the

threshold test, no further analysis is necessary.

       AFFIRMED.
