              IN THE SUPREME COURT OF IOWA
                              No. 12–1758

                          Filed August 16, 2013


STATE OF IOWA,

      Appellant,

vs.

JEFFREY K. RAGLAND,

      Appellee.



      Appeal from the Iowa District Court for Pottawattamie County,

Timothy O’Grady, Judge.



      The State appeals the district court’s refusal to sentence defendant

in accordance with the Governor’s commutation order. AFFIRMED.



      Thomas J. Miller, Attorney General, Thomas S. Tauber, Assistant

Attorney General, Matthew D. Wilber, County Attorney, and Margaret J.

Popp-Reyes, Assistant County Attorney, for appellant.



      Jon M. Kinnamon of Kinnamon, Kinnamon, Russo, Meyer &

Keegan, Cedar Rapids, for appellee.
                                           2

CADY, Chief Justice.

       In this appeal, we must decide if the district court erred in

resentencing a defendant who was convicted as a juvenile of first-degree

murder and mandatorily sentenced to life without parole after he claimed

his sentence violated the constitutional prohibition against cruel and

unusual punishment and after the Governor of Iowa commuted the

sentence to sixty years without parole. We conclude the district court

properly resentenced the defendant. We affirm the sentence imposed by

the district court.
       I. Background Facts and Proceedings.

       Jeffrey Ragland was seventeen years old in 1986 when he and two

friends attacked another group of boys in a grocery store parking lot in

Council Bluffs.       Ragland instigated the fight by making aggressive

comments, while the boys in the other group attempted to avoid a

conflict. Moments before the confrontation turned tragic, Ragland yelled

either “Let’s do it” or “We’re gonna fight.” One of the boys with Ragland

then promptly swung a tire iron he was carrying and struck one of the

boys in the other group, Timothy Sieff, in the head.                 Sieff fell to the

ground and subsequently died from the blow.

       Ragland was charged with first-degree murder for Sieff’s death and

was prosecuted as an adult. Following a jury trial, he was found guilty of

first-degree murder under the felony-murder doctrine. The district court

then sentenced Ragland to a term of life in prison without parole. The

sentence was mandatory under Iowa law.                    See Iowa Code § 902.1

(2013).1

       1The version of the Code in effect at the time of the homicide was the 1987 Code.
However, no relevant, substantive changes have been made, and for purposes of this
opinion, we will refer to the 2013 Code unless otherwise indicated.
                                          3

        Ragland has been incarcerated in the state penal system since his

conviction.     Now forty-four years old, he has pursued numerous

postconviction relief actions in state and federal court during his

imprisonment, including an application to correct his sentence. In 2012,

we responded to this application by directing the district court to

consider whether the mandatory life sentence without parole Ragland

was serving constituted cruel and unusual punishment under the State

and Federal Constitutions. We remanded the case to the district court to

conduct a hearing on the question.2 State v. Ragland, 812 N.W.2d 654,
659 (Iowa 2012).

        On June 25, 2012, shortly after our directive for the district court

to consider the constitutionality of Ragland’s sentence, but prior to the

hearing, the United States Supreme Court decided Miller v. Alabama, 567

U.S. ___, 132 S. Ct. 2455, 183 L. Ed. 2d 407 (2012). The Court held the

Eighth Amendment prohibited “a sentencing scheme that mandates life

in prison without possibility of parole for juvenile offenders.” Id. at ___,

132 S. Ct. at 2469, 183 L. Ed. 2d at 424.                 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.             See id. at ___, 132

S. Ct. at 2475, 183 L. Ed. 2d at 418.


        2In Veal v. State, we determined a challenge to a sentence of life without the

possibility of parole is a challenge to an illegal sentence and thus not subject to the
three-year statute of limitations for postconviction relief actions. 779 N.W.2d 63, 65
(Iowa 2010). In State v. Bruegger, we held a defendant may now mount an as-applied
challenge to his or her sentence as cruel and unusual. 773 N.W.2d 862, 884 (Iowa
2009).
                                    4

      The district court scheduled a hearing on the application for

resentencing filed by Ragland for August 28. On July 26, however, the

Governor of Iowa commuted Ragland’s sentence, as well as the sentences

of thirty-seven other inmates in Iowa’s prison system who, like Ragland,

had received statutorily mandated sentences of life without parole for

crimes committed as juveniles.      For all thirty-eight defendants, the

Governor commuted the sentences to life with no possibility for parole for

sixty years and directed that no credit be given for earned time. The full

text of the commutation provides:

      WHEREAS, in the recent case of Miller v. Alabama the United
          States Supreme Court ruled that states cannot
          mandate life sentences without the possibility of parole
          for murderers who committed their crimes before the
          age of eighteen; and
      WHEREAS, now after the Court’s ruling, up to 38 dangerous
          juvenile murderers will seek resentencing and more
          lenient sentences; and
      WHEREAS, it is a serious violation of federalism for the
          federal supreme court to throw out long-standing Iowa
          sentences; and
      WHEREAS, the Eighth Amendment to the United States
          Constitution     prohibits    “cruel    and     unusual
          punishments,” which allows the Court to ensure the
          method of punishment does not violate constitutional
          rights, but does not allow them to substitute their own
          judgment for that of the duly-elected legislature on
          issues of proportionality and public safety; and
      WHEREAS, in the Miller v. Alabama opinion the Court used
          “evolving standards of decency that mark the progress
          of a maturing society” to justify their decision, but
          ignored the fact that first degree murder itself violates
          the most fundamental right of a free society—the right
          to live; and
      WHEREAS, unlike elected and accountable Iowa legislators,
          the Supreme Court has not had the opportunity to
          hear from the friends and family members of the
          victims of first degree murderers, nor do they live in
          the Iowa communities affected by their ruling; and
      WHEREAS, first degree murder is an intentional and
          premeditated crime and those who are found guilty are
                                         5
                dangerous and should be kept off the streets and out
                of our communities; and
          WHEREAS, the penalty for second degree murder, a lesser
              offense, is fifty years in prison; and
          WHEREAS, an appropriate sentence for first degree murder
              is life in prison, evidenced by the fact that when the
              General Assembly changed criminal penalties for other
              crimes committed before the age of eighteen the
              sentence for first degree murder was not changed; and
          WHEREAS, after the decision in Miller v. Alabama, the
              decision about whether a juvenile first degree
              murderer will be released, or remain in prison, is
              taken away from the legislature, and given to judges, it
              is imperative that action is taken to ensure our public
              safety.
          KNOW YE, that by virtue of the authority vested in me by the
              laws of the Constitution of the State of Iowa, I, Terry E.
              Branstad, Governor of the State of Iowa, do hereby
              COMMUTE the sentence of Jeffrey K. Ragland
              #0803013, who after being found guilty of the crime of
              Murder in the First Degree in violation of Iowa Code
              section 707.2 from events occurring on or about
              August 16, 1986 was transferred by order of the
              Pottawattamie County Court to the custody of the Iowa
              Department of Corrections for a term of imprisonment
              of life without opportunity for parole, to a term of life
              with no possibility for parole or work release for sixty
              (60) actual years, with no credit for earned time.

          At the hearing before the district court on August 28, Ragland

argued he should still be resentenced under Miller.             He claimed the
commutation of his sentence by the Governor was unconstitutional

because it failed to follow the individualized considerations mandated by

Miller.

          Several persons testified at the resentencing hearing that they

believed Ragland’s sentence should be lessened. John Nelson Sr., owner

of a business called SilverStone Group, testified he had hired one of

Ragland’s      codefendants,    Robert   Lamkins,   following    the   incident.

Lamkins worked in Nelson’s office, and Nelson helped Lamkins pay for
college. Nelson considered Lamkins a successful rehabilitation. Nelson
                                    6

testified he would gladly hire Ragland upon release from prison. Patrick

Hanafan, Mayor of Council Bluffs, also voiced testimony supportive of

Ragland’s release from prison.

      Ragland’s brother, Ronald Ragland Jr., testified that a support

network would be in place for Ragland upon Ragland’s release, as well as

living arrangements and a vehicle. Additionally, he testified that he has

developed a friendship with the victim’s older brother, Ben.

      Ragland’s companions during the fateful fight in 1986, Matt Gill

and Robert Lamkins, sent letters to County Attorney Matt Wilber. Gill’s
letter is particularly poignant. Gill wrote that he was “solely responsible

for the death of Timothy Sieff.” He expressed remorse for causing Sieff’s

death and stated that he pled guilty to second-degree murder and served

just three years in prison. He continued:

      As I understand it, part of the rationale for [charging
      Ragland with first-degree murder] from the prosecutor at the
      time is that Jeff Ragland was painted as the “Ring Leader”
      and the prosecutor believed that the fight would not have
      happened if it were not for Jeff being there. At times they
      made it sound like the rest of us that were there that night
      were somehow victims of being in the wrong place at the
      wrong time and had the bad luck of being with Jeff Ragland
      who was just out looking for a fight. This is just absolutely
      not true. Jeff was not a “Ring Leader” who somehow caused
      us to be willing and ready to get into a fight that we would
      have otherwise never engaged in. The time and place in
      which we grew up coupled with the fact that we were young,
      impulsive 17 year olds with poor judgment are the reasons
      we were willing to engage in a fight, not because we were
      unlucky enough to be with Jeff Ragland. In fact, looking
      back on it now it is glaringly obvious that it was Jeff who
      was unlucky to be with me that night, not the other way
      around. Jeff had only been with us for less than 30 minutes
      that night, yet he is still in prison 26 years later because of
      the terrible decisions I made.

      Gill closed by conveying gratitude for the second chance he
received. He also expressed hope that Ragland would receive a similar

opportunity for rehabilitation. “Keeping Jeff Ragland in prison will . . .
                                           7

not bring back Timothy Sieff or undo what was done on that terrible

night in 1986,” Gill wrote.        “How can it be that I, the person who is

actually directly responsible for Timothy Sieff’s death was given a second

chance and am allowed to live freely in society, but Jeff Ragland is not?”

       After considering the testimony provided at the hearing, the district

court found the Governor exceeded his authority by commuting the

sentence because the commutation circumvented the individualized

sentencing required under Miller and deprived Ragland of a meaningful

opportunity to demonstrate his maturity and rehabilitation. The district
court resentenced Ragland to life in prison with the possibility of parole

after twenty-five years.3 Consequently, the new sentence imposed by the

district court made Ragland immediately eligible for parole.

       The State sought discretionary review, which we granted.                     On

review, the State argues that the Governor was authorized to commute

the sentence and the district court was required to accept the commuted

sentence as the launching point for the application for resentencing.

Thus, the State argues Ragland was no longer serving a life sentence

without parole at the time of resentencing, and the individualized

sentencing     considerations      of   Miller,   accordingly,     were    no   longer

applicable to him.       As a result, the State contends resentencing was

improper because the sentence that Ragland was serving was no longer

illegal.   Ragland argues the Governor had no authority to use his


       3The  district court also found the legislature had amended section 902.1 in 2011
to require that juveniles be eligible for parole after twenty-five years. 2011 Iowa Acts
ch. 131, § 147 (codified at Iowa Code § 902.1(2)(a) (Supp. 2011)). Thus, the district
court reasoned, “The Commutation of Sentence to Ragland exceeds the Governor’s
authority.” Consequently, the district court refused to give effect to the commutation
order and held that Ragland’s December 15, 1986 sentence violated the Eighth
Amendment to the United States Constitution and article I, section 17 of the Iowa
Constitution.
                                            8

commutation powers to circumvent the constitutional requirements of

Miller that entitled him to be resentenced by the court under a process

that would consider and account for the individualized attributes of

youth in mitigation of punishment. Ragland, however, did not challenge

the new sentence imposed by the district court.

       II. Scope of Review.

       A challenge to an illegal sentence is reviewed for correction of legal

errors. State v. Valin, 724 N.W.2d 440, 444 (Iowa 2006); see also Iowa R.

App. P. 6.907. When, as here, the defendant mounts a constitutional
challenge to an allegedly illegal sentence, the standard of review is

de novo.      State v. Oliver, 812 N.W.2d 636, 639 (Iowa 2012); State v.

Bruegger, 773 N.W.2d 862, 869 (Iowa 2009).

       Ragland      challenges      his    sentence      under     both    the    Eighth

Amendment to the United States Constitution4 and article I, section 17 of

the Iowa Constitution.5           Ragland does not suggest application of a

standard under article I, section 17 other than the standard employed by

the United States Supreme Court under the Eighth Amendment.

Accordingly, we use the federal substantive standard of cruel and

unusual punishment but reserve the right to apply the standard in a

more stringent fashion than federal precedent.                    See Bruegger, 773

N.W.2d at 883.




       4The  Eighth Amendment reads, “Excessive bail shall not be required, nor
excessive fines imposed, nor cruel and unusual punishments inflicted.” U.S. Const.
amend. VIII.
       5Article  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.” Iowa Const. art. I, § 17.
                                      9

        III. Discussion.

        The State argues Miller does not apply to Ragland because the

Governor commuted the sentence to a term less than life without parole.

Ragland argues both his original sentence and his sentence, as

commuted, are unconstitutional.       Ragland’s argument is built on the

premise that Miller applies retroactively on collateral review of other

mandatory life-without-parole sentences for defendants who committed a

homicide as a juvenile. Thus, we must first determine if Miller applies

retroactively.
        A. Retroactive Application of Miller. We recognize an absence

of definite authority addressing whether Miller applies retroactively to

cases on collateral review.    Yet, we primarily focus our inquiry on the

Miller decision itself because equal justice requires that when a new

substantive rule is applied to a defendant in the case announcing the

new rule, the rule must “be applied retroactively to all who are similarly

situated.” Teague v. Lane, 489 U.S. 288, 300, 109 S. Ct. 1060, 1070,

103 L. Ed. 2d 334, 349 (1989).         Thus, it is important to carefully

scrutinize the Miller decision when considering whether it applies

retroactively because a new rule announced by the Supreme Court does

not become retroactive by subsequent decisions of other courts, but by

the action taken by the Supreme Court in the case announcing the new

rule.   Tyler v. Cain, 533 U.S. 656, 663, 121 S. Ct. 2478, 2482, 150

L. Ed. 2d 632, 642 (2001).

        The competing arguments over the retroactivity of Miller essentially

narrow the inquiry to whether the decision merely established a new

penalty-phase procedure for courts to follow before imposing a life
sentence without parole for crimes committed by juveniles or whether the

decision established either a substantive rule of law or one that
                                     10

implicates fundamental fairness and accuracy of the criminal proceeding.

See Teague, 489 U.S. at 307–10, 109 S. Ct. at 1073–75, 103 L. Ed. 2d at

353–56 (discussing two situations in which new constitutional rules will

be given retroactive application). Normally, procedural changes do not

apply retroactively, while substantive rules of law and watershed rules of

criminal procedure have retroactive application. See Perez v. State, 816

N.W.2d 354, 358 (Iowa 2012).

      In Miller, the Court held that mandatory sentences of life without

parole are unconstitutional for juveniles prosecuted as adults. 567 U.S.
at ___, 132 S. Ct. at 2469, 183 L. Ed. 2d at 424. The decision is rooted

in the Eighth Amendment and built primarily on the Court’s prior

jurisprudence in Graham v. Florida, 560 U.S. 48, 130 S. Ct. 2011, 176

L. Ed. 2d 825 (2010); Roper v. Simmons, 543 U.S. 551, 125 S. Ct. 1183,

161 L. Ed. 2d 1 (2005); and Thompson v. Oklahoma, 487 U.S. 815, 108

S. Ct. 2687, 101 L. Ed. 2d 702 (1988). See Miller, 567 U.S. at ___, 132

S. Ct. at 2463, 183 L. Ed. 2d at 417–18. These decisions identified “two

strands of precedent” reflecting a need for “proportionate punishment.”

Id. at ___, 132 S. Ct. at 2463, 183 L. Ed. 2d at 417.

      The first strand of cases involved “categorical bans on sentencing

practices based on mismatches between culpability of a class of offenders

and the severity of a penalty.” Id.; see also Graham, 560 U.S. at ___, 130

S. Ct. at 2034, 176 L. Ed. 2d at 850 (“The Constitution prohibits the

imposition of a life without parole sentence on a juvenile offender who

did not commit homicide.”); Kennedy v. Louisiana, 554 U.S. 407, 446,

128 S. Ct. 2641, 2664, 171 L. Ed. 2d 525, 555 (2008) (holding the Eighth

Amendment forbids imposition of the death penalty for crimes in which
the offender did not kill the victim or intend the victim to die); Roper, 543

U.S. at 578, 125 S. Ct. at 1200, 161 L. Ed. 2d at 29 (“The Eighth and
                                       11

Fourteenth Amendments forbid imposition of the death penalty on

offenders who were under the age of 18 when their crimes were

committed.”); Atkins v. Virginia, 536 U.S. 304, 321, 122 S. Ct. 2242,

2252, 153 L. Ed. 2d 335, 350 (2002) (“[W]e . . . conclude . . . the

Constitution ‘places a substantive restriction on the State’s power to take

the life’ of a mentally retarded offender.” (quoting Ford v. Wainwright, 477

U.S. 399, 405, 106 S. Ct. 2595, 2599, 91 L. Ed. 2d 335, 344 (1986)));

Thompson, 487 U.S. at 838, 108 S. Ct. at 2700, 101 L. Ed. 2d at 720

(“[T]he Eighth and Fourteenth Amendments prohibit the execution of a
person who was under 16 years of age at the time of his or her offense.”).

      The    second     strand   of   cases   prohibited   mandatory   capital

punishment by “requiring that sentencing authorities consider the

characteristics of a defendant and the details of his offense before

sentencing him to death.” Miller, 567 U.S. at ___, 132 S. Ct. at 2463–64,

183 L. Ed. 2d at 418; see also Lockett v. Ohio, 438 U.S. 586, 604, 98

S. Ct. 2954, 2964–65, 57 L. Ed. 2d 973, 990 (1978) (“[W]e conclude that

the Eighth and Fourteenth Amendments require that the sentencer, in all

but the rarest kind of capital case, not be precluded from considering, as

a mitigating factor, any aspect of a defendant’s character or record and

any of the circumstances of the offense that the defendant proffers as a

basis for a sentence less than death.” (Footnote omitted.)); Woodson v.

North Carolina, 428 U.S. 280, 304, 96 S. Ct. 2978, 2991, 49 L. Ed. 2d

944, 961 (1976) (“[W]e believe that in capital cases the fundamental

respect for humanity underlying the Eighth Amendment requires

consideration of the character and record of the individual offender and

the circumstances of the particular offense as a constitutionally
indispensable part of the process of inflicting the penalty of death.”

(Citation omitted.)).
                                                12

       To implement its substantive constitutional prohibition against

mandatory life-without-parole sentences, Miller requires courts to

establish a procedure providing for an individualized sentencing hearing

tailored to the unique attributes of juveniles when prosecuted as adults

for homicide and facing a sentence of life without parole.6 See 567 U.S.

at ___, 132 S. Ct. at 2471, 183 L. Ed. 2d at 426. While Graham flatly

prohibits    the    imposition       of     a   life-without-parole    sentence     for    a

nonhomicide crime committed by a juvenile in order to afford the juvenile

a meaningful opportunity to gain release in the future based on maturity
and rehabilitation, 560 U.S. at ___, 130 S. Ct. at 2030, 176 L. Ed. 2d at

846,    Miller   prohibits     mandatory             life-without-parole   sentences      for

juveniles, but would seemingly permit life-without-parole sentences that

are not mandated by statute if the sentencing court has the power to

consider the attributes of youth in the mitigation of punishment, see 567

U.S. at ___, 132 S. Ct. at 2469, 183 L. Ed. 2d at 423–24.

       From a broad perspective, Miller does mandate a new procedure.

Yet, the procedural rule for a hearing is the result of a substantive

change      in   the   law    that        prohibits     mandatory     life-without-parole

sentencing. Thus, the case bars states from imposing a certain type of

punishment on certain people. See Schriro v. Summerlin, 542 U.S. 348,

352, 124 S. Ct. 2519, 2522, 159 L. Ed. 2d 442, 448 (2004) (recognizing

        6In Miller, the Court described the factors that the sentencing court must

consider at the hearing, including: (1) the “chronological age” of the youth and the
features of youth, including “immaturity, impetuosity, and failure to appreciate risks
and consequences”; (2) the “family and home environment” that surrounded the youth;
(3) “the circumstances of the homicide offense, including the extent of [the youth’s]
participation in the conduct and the way familial and peer pressures may have affected
[the youth]”; (4) the “incompetencies associated with youth—for example, [the youth’s]
inability to deal with police officers or prosecutors (including on a plea agreement) or
[the youth’s] incapacity to assist [the youth’s] own attorneys”; and (5) “the possibility of
rehabilitation.” Miller, 567 U.S. at ___, 132 S. Ct. at 2468, 183 L. Ed. 2d at 423.
                                     13

rules placing certain groups beyond the power of the state to punish are

given retroactive application).   “Such rules apply retroactively because

they ‘necessarily carry a significant risk that a defendant’ . . . faces a

punishment that the law cannot impose upon him.” See id. at 352, 124

S. Ct. at 2522–23, 159 L. Ed. 2d at 448 (quoting Bousley v. United States,

523 U.S. 614, 620, 118 S. Ct. 1604, 1610, 140 L. Ed. 2d 828, 838–39

(1998)).

      More specifically, the cases used by the Court in Miller to support

its holding have been applied retroactively on both direct and collateral
review.    See In re Sparks, 657 F.3d 258, 261–62 (5th Cir. 2011)

(indicating Graham was made retroactive on collateral review by the

Supreme Court as a matter of logical necessity under Tyler); see also

Tyler, 533 U.S. at 669, 121 S. Ct. at 2486, 150 L. Ed. 2d at 646–47

(O’Connor, J., concurring) (describing the syllogistic relationship between

Teague’s exception to nonretroactivity for rules placing certain conduct

beyond the power of the state to proscribe and subsequent cases that fit

into Teague’s exception); Penry v. Lynaugh, 492 U.S. 302, 330, 109 S. Ct.

2934, 2953, 106 L. Ed. 2d 256, 285 (1989) (“[T]he first exception set

forth in Teague should be understood to cover not only rules forbidding

criminal punishment of certain primary conduct but also rules

prohibiting a certain category of punishment for a class of defendants

because of their status or offense.”), abrogated on other grounds by

Atkins, 536 U.S. at 321, 122 S. Ct. at 2252, 153 L. Ed. 2d at 350. We

joined this discourse three years ago when we held Graham applied

retroactively.   Bonilla v. State, 791 N.W.2d 697, 700–01 (Iowa 2010).

This practical observation of the treatment of the underlying authority of
Miller is instructive.   If a substantial portion of the authority used in
                                    14

Miller has been applied retroactively, Miller should logically receive the

same treatment.

      The procedural posture of the Miller decision further supports

retroactive application. Miller involved the companion case of Jackson v.

Hobbs. See Miller, 567 U.S. at ___, 132 S. Ct. at 2461–62, 183 L. Ed. 2d

at 415–16. Miller was a direct appeal, but Jackson involved a petition for

habeas corpus brought after the conviction had been affirmed on direct

appeal. See id. Nevertheless, the Supreme Court specifically held the

new rule applied not only to the defendant in Miller, but also to the
defendant in Jackson on collateral review. See id. at ___, 132 S. Ct. at

2475, 183 L. Ed. 2d at 430. The Court directed that the defendant in

Jackson be given an individualized hearing. See id. There would have

been no reason for the Court to direct such an outcome if it did not view

the Miller rule as applying retroactively to cases on collateral review. We

also recognize that the dissent in Miller suggested the majority’s decision

would invalidate other cases across the nation. See id. at ___, 132 S. Ct.

at 2479–80, 183 L. Ed. 2d at 433 (Roberts, C.J., dissenting). Again, the

dissent would not have raised this concern if the Court did not believe its

holding applied to cases on collateral review.

      Some courts in other jurisdictions agree that Miller applies

retroactively to defendants whose direct appeals have been exhausted.

See People v. Williams, 982 N.E.2d 181, 196–97 (Ill. App. Ct. 2012); State

v. Simmons, 99 So. 3d 28 (La. 2012); Jones v. State, ___ So. 3d ___, ___,

2013 WL 3756564, at *5 (Miss. 2013). A panel for the Eighth Circuit

permitted a prisoner to raise a second or successive challenges to his

sentence based on Miller, reasoning the prisoner successfully made out a
prima facie case that Miller articulated “a new rule of constitutional law,

made retroactive to cases on collateral review by the Supreme Court, that
                                    15

was previously unavailable.” See Johnson v. United States, 720 F.3d 720,

720 (8th Cir. 2013) (per curiam); see also 28 U.S.C. § 2255(h)(2) (2006 &

Supp. III 2010) (permitting prisoners to file second or successive

challenges to their sentences when their sentence is in violation of “a new

rule of constitutional law, made retroactive to cases on collateral review

by the Supreme Court, that was previously unavailable”).              Other

jurisdictions have held Miller applies retroactively in a temporal sense at

least to cases currently on direct appeal, without further considering

whether Miller applies retroactively to all defendants. Commonwealth v.
Lofton, 57 A.3d 1270, 1276 & n.2 (Pa. 2012) (holding Miller created a new

rule and applies to all cases pending on direct appeal); People v. Banks,

___ P.3d ___, ___, 2012 WL 4459101, at *20 (Colo. App. 2012) (same). In

contrast, other jurisdictions have held Miller does not recognize a new

substantive rule of law under the Eighth Amendment but simply requires

a new procedure; accordingly, those courts have held Miller is not

retroactive. See, e.g., In re Morgan, 713 F.3d 1365, 1367–68 (11th Cir.

2013); Craig v. Cain, No. 12–30035, 2013 WL 69128, at *2 (5th Cir.

Jan. 4, 2013) (unpublished opinion); Geter v. State, 115 So. 3d 375, 385

(Fla. Dist. Ct. App. 2012); People v. Carp, 828 N.W.2d 685, 715 (Mich. Ct.

App. 2012).

      On balance, we think the best analysis of the issue is found in an

article by Dean Erwin Chemerinsky. He stated:

      There is a strong argument that Miller should apply
      retroactively: It says that it is beyond the authority of the
      criminal law to impose a mandatory sentence of life without
      parole. It would be terribly unfair to have individuals
      imprisoned for life without any chance of parole based on the
      accident of the timing of the trial.
              ....
                                     16
             . . . [T]he Miller Court did more than change
       procedures; it held that the government cannot
       constitutionally impose a punishment. As a substantive
       change in the law which puts matters outside the scope of
       the government’s power, the holding should apply
       retroactively.

Erwin Chemerinsky, Chemerinsky: Juvenile Life-Without-Parole Case

Means Courts Must Look at Mandatory Sentences, A.B.A. J. Law News

Now,    (Aug.   8,   2012,    8:30   AM),     http://www.abajournal.com/

news/article/Chemerinsky_juvenile_life-without-parole_case_means_

courts_must_look_at_sen/.

       Accordingly, we hold Miller applies retroactively. We next consider

whether Ragland’s sentence, as commuted by the Governor, rendered

Miller inapplicable to Ragland.

       B. Effect of Commutation.          Ragland primarily argues he is

entitled to the constitutional benefits of Miller because the Governor was

not authorized to commute his sentence so as to avoid Miller’s

application.    The State responds by claiming the district court

unconstitutionally intruded on the authority of the Governor by refusing

to give effect to the commutation.

       It is a fundamental principle that one branch of government is not
permitted to intrude upon the powers of another branch of government.

This principle is inscribed in article III, section 1 of our Iowa

Constitution. Yet, we have also recognized that the separation of powers

doctrine is not drawn with “rigid boundaries.” Klouda v. Sixth Judicial

Dist. Dep’t of Corr. Servs., 642 N.W.2d 255, 260 (Iowa 2002). “Instead,

some acts can be properly entrusted to more than one branch of

government, and some functions inevitably intersect.”     State v. Hoegh,
632 N.W.2d 885, 889 (Iowa 2001).          This observation underscores an

often overlooked, but important, principle of good governance, which is
                                      17

that “harmonious cooperation among the three branches of government

is fundamental to our system of government.”          Webster Cnty. Bd. of

Supervisors v. Flattery, 268 N.W.2d 869, 874 (Iowa 1978). The construct

of the separation of powers doctrine reveals that two branches of

government can both be properly exercising their powers while working

in the same arena.

      Our constitution grants the Governor broad authority concerning

commutations and pardons. Article IV, section 16 specifically provides

that “[t]he governor shall have power to grant reprieves, commutations
and pardons, after conviction, for all offences except treason and cases of

impeachment, subject to such regulations as may be provided by law.”

Iowa Const. art. IV, § 16.

      A commutation, the action taken by the Governor in this case, is

“[t]he executive’s substitution in a particular case of a less severe

punishment for a more severe one that has already been judicially

imposed on the defendant.” Black’s Law Dictionary 318 (9th ed. 2009);

see also People v. Mata, 842 N.E.2d 686, 691 (Ill. 2005) (“[I]t is axiomatic

from the plain language of this constitutional provision that the Governor

cannot   use   the      commutation   power   to   increase   a   defendant’s

punishment.” (Emphasis added.)); Lee v. Murphy, 63 Va. (22 Gratt.) 789,

798 (1872) (“A commutation is the substitution of a less for a greater

punishment . . . .”).     The power to commute sentences includes the

power to impose “conditions which do not in themselves offend the

Constitution, but which are not specifically provided for by statute.”

Schick v. Reed, 419 U.S. 256, 264, 95 S. Ct. 379, 384, 42 L. Ed. 2d 430,

437 (1974).    Yet, the power to commute a sentence is not without
limitation and does not foreclose legal challenges. See Arthur v. Craig, 48
                                              18

Iowa 264, 268 (1878); see also Iowa Const. art. IV, § 16 (stating the

power to commute is subject to regulations provided by law).

      Nevertheless, we do not believe it is necessary to traipse into this

constitutional thicket.         If possible, we should avoid constitutional

confrontation    between        two     branches    of   government.      See,    e.g.,

Schwarzkopf v. Sac Cnty. Bd. of Supervisors, 341 N.W.2d 1, 6 (Iowa 1983)

(“We must, of course, guard against overextension of legislative powers;

we must also, however,                avoid    our own infringement upon the

constitutional powers of the legislature in our efforts to protect our
own.”).

      Even if we accept that the Governor had the authority to exercise

the power to commute under the circumstances of this case, the

question   remains        whether       the    commuted    sentence     amounts     to

mandatory life without parole. If so, Miller applied, and the district court

was required to resentence Ragland after providing the individualized

sentencing hearing.

      Miller    applies    to    life   sentences    without   parole    that    were

mandatorily imposed. Thus, we must consider if Ragland is serving a life

sentence without parole and if his sentence was mandatory.                  We first

consider the mandatory nature of the sentence.

      Murder in the first degree is a class “A” felony in Iowa. Iowa Code

§ 707.2(6). The only sentence provided by our legislature for a class “A”

felony is for the offender to be committed to the department of

corrections “for the rest of the defendant’s life.” Id. § 902.1(1). No other

sentencing option is available.           See id.   The sentencing court has no

power to defer the judgment, defer the sentence, suspend the sentence,
or reconsider the sentence. Id. Additionally, the defendant cannot “be

released on parole unless the governor commutes the sentence to a term
                                      19

of years.”     Id.   This sentencing scheme was in place when Ragland

received his sentence, just as it is today. Compare Iowa Code § 902.1

(1987), with id. § 902.1(1) (2013).

      Clearly, the original sentence imposed on Ragland by the district

court was a mandatory sentence.        The sentencing court had no other

option but to impose the one sentence provided by law. This result is

important in the analysis because it goes to the heart of Miller, which

states that “children are constitutionally different from adults for

purposes of sentencing,” and a mandatory life sentence without parole
imposed on juveniles means young offenders “die in prison even if [the

sentencing judge] would have thought that his youth and its attendant

characteristics . . . made a lesser sentence . . . more appropriate.” Miller,

567 U.S. at ___, 132 S. Ct. at 2460, 2464, 183 L. Ed. 2d at 414, 418.

Importantly, the mandatory penalty component totally precludes the

sentencing court from taking the critical aspects of youth into account in

the imposition of a sentence. Id. at ___, 132 S. Ct. at 2466, 183 L. Ed. 2d

at 420.

      The commutation by the Governor of Ragland’s sentence to a term

of years did not affect the mandatory nature of the sentence or cure the

absence of a process of individualized sentencing considerations

mandated under Miller. Miller protects youth at the time of sentencing.

See id. at ___, 132 S. Ct. at 2468, 183 L. Ed. 2d at 422–23 (explaining the

factors that must be considered by the sentencing court at the time of

sentencing).     Even with the commutation in 2012 by the Governor,
                                          20

Ragland has been deprived of the constitutional mandate that youths be

sentenced pursuant to the Miller factors.7

       Having concluded Ragland is serving a mandatory sentence, we

next analyze whether the sentence, as commuted, remains a life-without-

parole sentence targeted by Miller.              One question that has clearly

emerged following Miller is whether its mandates apply not only to

mandatory life sentences without parole, but also to the practical

equivalent of life-without-parole sentences.            This is an issue that has

been presented to us in various forms in other recent cases in which we
have attempted to develop the proper constitutional framework for the

sentencing of juvenile offenders as adults. See State v. Null, 836 N.W.2d

41, 45–77 (Iowa 2013); State v. Pearson, 836 N.W.2d 88, 89–98 (Iowa

2013).

       Ragland must serve sixty years of his sentence before he may be

considered for parole. While this sentence is not a life term, Ragland will

not be eligible for parole until he is seventy-eight years old.                  Under

standard mortality tables, his life expectancy is 78.6 years.                  Ragland

argues his sentence is the functional equivalent of life without parole.

The State responds that the dictates of Miller do not apply because




       7The  upshot of Miller was to render state statutes such as Iowa Code section
902.1 unconstitutional as applied to juvenile offenders tried as adults and convicted of
a class “A” felony because of the mandatory nature of the life-without-parole sentence
imposed by the statute. The Miller procedure cures the unconstitutional aspect of such
statutes as applied to juvenile offenders until amended by the legislature to establish a
different constitutional procedure. See Parker v. State, 119 So. 3d 987, 998 (Miss.
2013). The Iowa legislature amended section 902.1 in 2011 to make juveniles eligible
for parole after twenty-five years. See 2011 Iowa Acts ch. 131, § 147(2)(a). By its
terms, section 902.1(2)(a) does not apply to juveniles convicted of first-degree murder,
such as Ragland. Iowa Code § 902.1(2)(c). The impact of this amendment is not before
us in this case.
                                         21

Ragland has a chance of becoming eligible for parole during his natural

lifetime under the commuted sentence.

        The precise question we now consider is one not many other courts

have confronted. It is unique and comes before us due to the post-Miller

intervention of a commutation of the sentence from life without parole to

life without parole for sixty years.            Thus, we look to analogous

circumstances to help decide the question.

        Some courts in other states have observed in addressing the new

sentencing process following Miller that the mere possibility of parole for
a juvenile offender sentenced by the court to life without parole, provided

by the overall sentencing scheme through clemency or commutation,

does not mean the sentence avoids the mandates of Miller as a life

sentence with parole. See Parker v. State, 119 So. 3d 987, 997 (Miss.

2013) (holding a life sentence with an opportunity for “conditional

release” on parole at age sixty-five falls within Miller); Bear Cloud v. State,

294 P.3d 36, 45 (Wyo. 2013) (holding a life sentence that provides an

opportunity for parole only upon commutation of the sentence to a term

of years by the governor is practically identical to life imprisonment

without parole).      The mere possibility of commutation or clemency is

fundamentally distinct from the eligibility for parole and does not leave a

juvenile offender a meaningful opportunity to avoid a lifetime of

incarceration.   See Solem v. Helm, 463 U.S. 277, 300–01, 103 S. Ct.

3001,    3015,   77    L. Ed. 2d   637,       656   (1983)    (distinguishing     the

constitutional   impact    of   parole    eligibility   and   the   possibility    of

commutation because “[p]arole is a regular part of the rehabilitative

process,” but a “[c]ommutation, on the other hand, is an ad hoc exercise
of executive clemency”).
                                      22

      Yet, an early split in authority has emerged among other courts

over the question of whether Graham applies to long sentences that are

less than life without parole.    In People v. Caballero, the California

Supreme Court held a 110-year-to-life sentence contravened the

mandate of Graham that the Eighth Amendment requires a “ ‘meaningful

opportunity to obtain release based on demonstrated maturity and

rehabilitation.’ ” 282 P.3d 291, 296 (Cal. 2012) (quoting Graham, 560

U.S. at ___, 130 S. Ct. at 2030, 176 L. Ed. 2d at 845–46).          The court

found the bar on life-without-parole sentences under Graham included
sentences for a term of years that amounted “to the functional equivalent

of a life without parole sentence.”      Id. at 295.   In People v. Rainer, a

Colorado court held a sentence for a term of years that does not offer the

possibility of parole until after life expectancy also violates the mandate

in Graham for a meaningful opportunity to obtain release. ___ P.3d ___,

___, 2013 WL 1490107, at *4 (Colo. App. 2013).

      On the other hand, in Bunch v. Smith, the Sixth Circuit Court of

Appeals held that Graham did not apply to a juvenile sentence to

consecutive terms totaling eighty-nine years. 685 F.3d 546, 550–51 (6th

Cir. 2012), cert. denied, 569 U.S. ___, 133 S. Ct. 1996 (2013). The Sixth

Circuit simply employed a strict reading of Graham and limited the

holding   in   Graham   to   scenarios     dealing   with   life-without-parole

sentences. See id.; see also State v. Kasic, 265 P.3d 410, 414–16 (Ariz.

Ct. App. 2011) (rejecting juvenile defendant’s argument that thirty-two

consecutive sentences, which in the aggregate exceeded the defendant’s

normal life expectancy, constituted a de facto life sentence); Henry v.

State, 82 So. 3d 1084, 1089 (Fla. Dist. Ct. App. 2012) (rejecting
defendant’s argument that nine sentences, which in the aggregate
                                     23

constituted 107 years of incarceration without the possibility of parole,

constituted a de facto life sentence).

      We acknowledge the Court denied certiorari in Bunch; however, the

Court in Bunch was confined to a very narrow standard of review. The

Antiterrorism and Effective Death Penalty Act of 1996 allowed the Court

to grant habeas corpus relief only if the state court decision on review

was contrary to clearly established federal law or was an unreasonable

application of federal law.       28 U.S.C. § 2254(d)(1) (2006).         The

acknowledged split of authority reveals that the argument made by the
defendant in Bunch for a virtual life sentence was not clearly established.

See Bunch, 685 F.3d at 552; see also Rainer, ___ P.3d at ___, 2013 WL

1490107, at *9–10 (reviewing and summarizing the split of authority over

the question of whether Graham should apply to sentences for a term of

years that are not materially distinguishable from life without parole).

Thus, the narrow standard of review would not have permitted the

United States Supreme Court to fully address the issues on certiorari.

      For all practical purposes, the same motivation behind the

mandates of Miller applies to the commuted sentence in this case or any

sentence that is the practical equivalent to life without parole. See Miller,

567 U.S. at ___, 132 S. Ct. at 2469, 183 L. Ed. 2d at 424 (recognizing

children’s diminished culpability and heightened capacity for change

make the harshest penalty appropriate in only certain and uncommon

instances). Graham requires a “meaningful opportunity to obtain release

based on demonstrated maturity and rehabilitation” during the offender’s

expected lifetime, and Miller requires an individualized consideration of

youth as a mitigating factor at a sentencing hearing if such a realistic,
meaningful opportunity will not be available. See Miller, 567 U.S. at ___,

132 S. Ct. at 2469, 183 L. Ed. 2d at 424; Graham, 560 U.S. at ___, 130
                                     24

S. Ct. at 2030, 176 L. Ed. 2d at 845–46. After all, “[l]ife without parole

‘forswears altogether the rehabilitative ideal.’ It reflects ‘an irrevocable

judgment about [an offender’s] value and place in society,’ at odds with a

child’s capacity for change.” Miller, 567 U.S. at ___, 132 S. Ct. at 2465,

183 L. Ed. 2d at 419–20 (quoting Graham, 560 U.S. at ___, 130 S. Ct. at

2030, 176 L. Ed. 2d at 845).

         Thus, the rationale of Miller, as well as Graham, reveals that the

unconstitutional imposition of a mandatory life-without-parole sentence

is not fixed by substituting it with a sentence with parole that is the
practical equivalent of a life sentence without parole. Oftentimes, it is

important that the spirit of the law not be lost in the application of the

law. This is one such time. The spirit of the constitutional mandates of

Miller and Graham instruct that much more is at stake in the sentencing

of juveniles than merely making sure that parole is possible. In light of

our increased understanding of the decision making of youths, the

sentencing process must be tailored to account in a meaningful way for

the attributes of juveniles that are distinct from adult conduct. At the

core of all of this also lies the profound sense of what a person loses by

beginning to serve a lifetime of incarceration as a youth.

         In the end, a government system that resolves disputes could

hardly call itself a system of justice with a rule that demands

individualized sentencing considerations common to all youths apply

only to those youths facing a sentence of life without parole and not to

those youths facing a sentence of life with no parole until age seventy-

eight.    Accordingly, we hold Miller applies to sentences that are the

functional equivalent of life without parole. The commuted sentence in
this case is the functional equivalent of a life sentence without parole.
                                     25

      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.
      Accordingly, Ragland’s commutation did not remove the case from

the mandates of Miller. The sentence served by Ragland, as commuted,

still amounts to cruel and unusual punishment under the Eighth

Amendment to the United States Constitution and article I, section 17 of

the Iowa Constitution.       Consequently, the district court properly

resentenced Ragland in light of Miller. Because the new sentence was

not challenged on appeal, we do not address it in any way except to

reiterate that Miller requires individualized resentencing.

      IV. Conclusion.

      We affirm the new sentence imposed by the district court following

the Governor’s commutation of the defendant’s sentence.

      AFFIRMED.

      All justices concur, but Wiggins, J., writes separately to concur

specially; Mansfield, J., joined by Waterman, J., writes separately to

concur specially; and Zager, J., writes separately to concur specially.
                                       26

                                               #12–1758, State v. Ragland

WIGGINS, Justice (concurring specially).

      I join in the majority opinion but write separately to point out some

observations concerning whether the Governor has the constitutional

authority to commute Ragland’s sentence.

      After the United States Supreme Court held that sentencing a

juvenile to mandatory life in prison without parole is unconstitutional, a

question emerged as to whether the Governor can commute such a

sentence. In this situation, is the Governor commuting a void sentence
or sentencing the defendant for the first time in violation of the

separation of powers doctrine?     See Collins v. State, 550 S.W.2d 643,

654–55 (Tenn. 1977) (Brock, J., dissenting); Stanley v. State, 490 S.W.2d

828, 833 (Tex. Crim. App. 1972) (Onion, P.J., dissenting); cf. Klouda v.

Sixth Judicial Dist. Dep’t of Corr. Servs., 642 N.W.2d 255, 263 (Iowa 2002)

(holding the statute granting administrative law judges, who are part of

the executive branch, the power to revoke probation violated article III,

section 1 of the Iowa Constitution).

      Another observation is that the Governor’s imposition of a sentence

might constitute a denial of due process—such as the right to present

evidence at the sentencing stage under article I, section 9 or the right to

be informed of accusations, the right to a jury trial, the right to

compulsory process, and the right to counsel under article I, section 10

of the Iowa Constitution. See Rose v. Hodges, 423 U.S. 19, 26–27, 96

S. Ct. 175, 179–80, 46 L. Ed. 2d 162, 168 (1975) (Brennan, J.,

dissenting) (“If respondents were ‘sentenced’ by the Governor, were they

denied due process when not afforded [the] opportunity [to present
evidence] . . . ?”); Collins, 550 S.W.2d at 655 (Brock, J., dissenting)

(arguing the commutation procedure deprived the defendant of the right
                                    27

to a jury trial under Tennessee common law); Whan v. State, 485 S.W.2d

275, 280 (Tex. Crim. App. 1972) (Onion, P.J., dissenting) (“To permit the

Governor . . . such authority, under the circumstances of this case,

would allow them to intervene and prevent a retrial and substitute their

idea of what punishment should be assessed rather than a jury . . . .”).

      My third observation is that a prisoner could also challenge a

commutation     that   required   the    prisoner   to   waive   his   or    her

constitutional, civil, fundamental, or human rights prospectively.           Cf.

State v. Baldon, 829 N.W.2d 785, 803 (Iowa 2013) (holding parolee’s
signature on parolee agreement did not establish prospective consent to

searches under article I, section 8 of the Iowa Constitution).

      My final observation is that the Governor’s action may have

violated article IV, section 16 of the Iowa Constitution. This provision

grants the Governor commutation power, subject to regulations provided

by law.   Iowa Const. art. IV, § 16.     The legislature has regulated the

Governor’s power to commute a person’s sentence by enacting certain

legislation regulating his power to commute.        The Code provides that

“[p]rior to the governor granting a reprieve, pardon, or commutation to an

offender convicted of a violent crime, the governor shall notify a

registered victim that the victim’s offender has applied for a reprieve,

pardon, or commutation.” Iowa Code § 915.19 (2013). The Code also

provides a specific procedure the Governor must follow to commute the

sentence of a person who receives a life sentence without the possibility

of parole. Id. § 902.2. This procedure involves referring the matter to

the Iowa Board of Parole before the Governor can commute.              Id.   The

record is devoid of any evidence showing the Governor followed any of
these legislative enactments.
                                  28

     However, we need not reach these important constitutional issues

today and leave them for another day.
                                     29
                                                #12–1758, State v. Ragland
MANSFIELD, Justice (concurring specially).

      The court decides this case on the ground that a mandatory life

sentence where the defendant will not be eligible for parole until he has

served sixty years in prison is the practical equivalent of mandatory life

without parole (LWOP) and thus violates Miller v. Alabama, 567 U.S. ___,

132 S. Ct. 2455, 183 L. Ed. 2d 407 (2012). I agree with that conclusion

and therefore join the court’s opinion. I write separately to respond to

the observations in Justice Wiggins’s special concurrence regarding the

Governor’s commutation authority.

      First, I do not believe the Governor lacked authority to commute

Ragland’s sentence after Miller had been decided. We have never said

that the Governor’s article IV, section 16 power to grant commutations

goes away when a sentence is subject to legal challenge based on a

United States Supreme Court decision. Section 16 states the Governor

“shall have power to grant reprieves, commutations and pardons, after

conviction.” If anything, this means that the Governor can commute a

sentence at any time, so long as it is “after conviction.”

      When the Governor issued his order of commutation, Ragland’s
LWOP sentence was still in place.         No judgment had set it aside.

Ragland could not have taken a copy of Miller, showed it to the warden,

and walked out of Anamosa State Penitentiary.           Miller was not self-

executing, and as the court observes, it was an open question whether

Miller was retroactive and applied to cases like Ragland’s or not.         I

happen to agree with the court that it was, but this is one matter that

needed to be addressed before Ragland’s LWOP sentence would be

invalidated.
                                     30

      Also, I do not believe the Governor’s reasons for granting

commutation are subject to judicial scrutiny. From the perspective of

the courts, it matters not whether the Governor’s motivation was to

preserve the legislature’s previous sentencing scheme as much as

possible, or to show leniency toward Ragland.

      Section 16 makes this clear. It provides that the Governor “shall

report to the general assembly . . . each case of reprieve, commutation, or

pardon granted, and the reasons therefor.” Iowa Const. art. IV, § 16. By

expressly providing that the Governor would provide his reasons to the
legislature, this tells me our framers intended that any check on the

Governor’s clemency authority would be in the political process. Article

III, section 16 provides an analogue. It states that when the Governor

vetoes legislation, he or she shall return it to the legislature “with his [or

her] objections.”   Generally speaking, the objections are for political

purposes, for the benefit of the legislature, not to enable judicial review.

The same is true with the reasons for commutation that are also

provided to the legislature under our constitution.

      Furthermore, there is precedent for what the Governor did here. In

1972, the United States Supreme Court decided Furman v. Georgia,

which invalidated the death penalty as imposed in a number of states.

See 408 U.S. 238, 92 S. Ct. 2726, 33 L. Ed. 2d 346 (1972).             Before

certain death row inmates in Nevada, Texas, and Tennessee could receive

a resentencing, however, their sentences were commuted to life in prison.

Bean v. Nevada, 410 F. Supp. 963, 964 (D. Nev. 1974) (upholding the

pardon board’s commutation of the petitioner’s sentence from death to

LWOP after Furman struck down death-sentence statutes similar to
Nevada’s), aff’d, 535 F.2d 542 (9th Cir. 1976); Collins v. State, 550

S.W.2d 643, 646, 650 (Tenn. 1977) (upholding, on rehearing, the
                                   31

governor’s commutation of the petitioners’ sentences from death to life

imprisonment after the state supreme court held the death-sentence

statute unconstitutional); Stanley v. State, 490 S.W.2d 828, 830 (Tex.

Crim. App. 1972) (upholding the governor’s commutation from death to

life imprisonment of an inmate’s sentence after his case was remanded

by the U.S. Supreme Court along with Furman). Life in prison was less

severe than the death penalty but more severe than some other

sentencing options that would have been available under a resentencing.

See Bean, 410 F. Supp. at 964 (noting that the petitioner had originally
been sentenced under a statute allowing for imprisonment “with or

without the possibility of parole” (internal citation and quotation marks

omitted)); Collins v. State, 550 S.W.2d 643, 646 (Tenn. 1977) (noting that

a jury would resentence on remand “with punishment to be fixed in each

case from twenty years to life imprisonment”); Stanley, 490 S.W.2d at

831–32 (Onion, J., dissenting) (noting that the defendant, in a new trial,

would have been subject to a “full range of alternative penalties”).

Presumably, in all three states, the purpose of the commutation was to

come as close as constitutionally possible to the original sentence. In

addition, the defendants opposed the commutations.       See, e.g., Bean,

410 F. Supp. at 964; Bowen v. State, 488 S.W.2d 373, 377 (Tenn. 1972)

(“[T]his commutation became effective without the consent of the

defendant . . .”).

      Still, in all three states, the commutations were upheld. See Bean,

410 F. Supp. at 965; Mears v. Nevada, 367 F. Supp. 84, 86 (D. Nev.

1973) (upholding the pardon board’s commutation of the petitioner’s

sentence from death to LWOP after Furman struck down death-sentence
statutes similar to Nevada’s); Collins, 550 S.W.2d at 650; Bowen, 488

S.W.2d 373, 376 (Tenn. 1972) (recognizing the governor’s ability to
                                    32

commute the petitioner’s sentence from death to ninety-nine years

imprisonment in response to the Furman line of cases); Stanley, 490

S.W.2d at 830; Whan v. State, 485 S.W.2d 275, 277 (Tex. Crim. App.

1972) (upholding the Governor’s commutation of the appellant’s sentence

from death to life imprisonment, which the governor issued while the

case was pending in state court on remand from the United States

Supreme Court); see also Hartfield v. Quarterman, 603 F. Supp. 2d 943,

950 (S.D. Tex. 2009) (stating that the governor may commute a

defendant’s sentence while the case is on remand, as long as “there [is]
no final judgment by the Court of Criminal Appeals reversing [the]

conviction.”); People ex rel. Madigan v. Snyder, 804 N.E.2d 546, 558–60

(Ill. 2004) (upholding the Illinois governor’s authority to commute a death

sentence to life regardless of the pendency of a resentencing hearing);

People v. Brown, 792 N.E.2d 788, 789–90 (Ill. 2002) (acknowledging the

governor’s ability to commute a sentence while the defendant’s case

awaited rehearing on appeal because the “defendant remained under an

existing sentence”). To my knowledge, no court has held that a Governor

lacks authority to commute an inmate’s sentence where that specific

sentence has not previously been vacated by a court.

      Additionally, I do not see anything in the Governor’s commutation

order requiring a waiver of “constitutional, civil, fundamental, or human

rights.”   In any event, we said earlier this term: “[W]e have held the

governor may impose conditions on the defendant in exchange for his

clemency as long as the conditions themselves are not illegal, immoral,

or impossible to be performed.” Lowery v. State, 822 N.W.2d 739, 741

(Iowa 2012) (stating also that “[i]n Iowa, the governor’s constitutional
clemency power may be exercised with broad discretion”). We then cited

Arthur v. Craig, which long ago upheld the Governor’s authority to issue
                                           33

a conditional pardon that allowed the inmate to be summarily arrested

and reincarcerated, without judicial review, if he violated any of the

conditions. See 48 Iowa 264, 267–69 (1878).8

       Nor am I aware of any legislation that would have limited the

Governor’s authority here. Iowa Code section 902.2 provides a procedure

by which inmates serving life terms or the director of the department of

corrections may apply for commutations, but does not appear to limit the

Governor’s authority to grant commutations. See Makowski v. Governor,

829 N.W.2d 291, 296 (Mich. Ct. App. 2012) (discussing a similar
provision in Michigan and concluding that it “in no way limit[s] the

Governor’s absolute discretion with regard to commutation decisions”).

Likewise, I read section 915.19, requiring the Governor to notify

registered victims before he or she grants an application for commutation

to an offender convicted of a violent crime, as potentially giving rights to

victims, not the offender. See Iowa Code § 915.19(1) (2013). There is no

indication that a victim had registered here.                 Also of note is section

914.1,   which       provides,    “The    power    of   the    governor   under   the

Constitution of the State of Iowa to grant a . . . commutation of sentence

. . . shall not be impaired.” Id. § 914.1.

       One final note. Neither Ragland nor the State claims the district

court’s resentencing of Ragland to life with eligibility for parole after

twenty-five years was improper if the sixty-years-without-parole sentence

cannot stand. The district court imposed that sentence because it was

the legislature’s post-Graham v. Florida9 fix for class “A” felonies

       8See   also Lowery, 822 N.W.2d at 742–43 (resolving the question of how a
prisoner whose sentence had been commuted would accumulate earned time credit by
interpreting the commutation order, rather than deciding the matter through statutory
interpretation).
       9560   U.S. 48, 130 S. Ct. 2011, 176 L. Ed. 2d 825 (2010).
                                   34

committed by juveniles other than first-degree murder. See 2011 Iowa

Acts ch. 131, § 147 (codified at Iowa Code § 902.1(2)(a)).   For now, I

would simply emphasize that we are not approving, or disapproving, this

life sentence with a twenty-five-year minimum in other cases affected by

Miller. Because no one has challenged the district court’s new sentence

for Ragland, it should stand in this case without serving as a precedent

elsewhere.

      For the foregoing reasons, I join in the court’s opinion but also

write separately.
      Waterman, J., joins this special concurrence.
                                        35
                                               #12–1758, State v. Ragland
ZAGER, Justice (concurring specially).

      I join the majority opinion in affirming the resentencing ordered by

the district court. However, I write separately because I disagree with the

majority’s conclusion that a commuted prison sentence of life without

parole for sixty years is the functional equivalent or de facto life without

parole (LWOP). I also disagree with the majority’s holding that Graham v.

Florida, 560 U.S. 48, 130 S. Ct. 2011, 176 L. Ed. 2d 825 (2010), and

Miller v. Alabama, 567 U.S. ___, 132 S. Ct. 2455, 183 L. Ed. 2d 407

(2012), apply to a term-of-years sentence, as I note in my dissent in State

v. Null, 836 N.W.2d 41, 84–88 (Iowa 2013). Accordingly, I would affirm

the district court for other reasons.

      I agree with this court’s remand for resentencing under a cruel and

unusual punishment analysis due to Ragland’s original sentence of

LWOP for a homicide committed while he was a juvenile. See State v.

Ragland, 812 N.W.2d 654, 659 (Iowa 2012). Under the circumstances

and under Graham then Miller, the district court properly performed an

individualized assessment of Ragland, taking into consideration the

appropriate factors, including age and other circumstances surrounding
the crime.

      Prior to the evidentiary hearing, however, Governor Branstad

issued his commutation of sentence to Ragland and numerous other

juvenile offenders who were serving LWOP sentences. I agree that the

Governor has the constitutional authority to commute sentences to life

without parole for a term of years, as he did here. However, as noted by

Justice Wiggins in his concurring opinion, the commutation power is not

without limitation.
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      I believe the Governor exceeded his constitutional authority when

he attempted to remove Ragland’s ability to earn good time credit against

this commuted sentence, as authorized by statute.          See Iowa Code

§ 903A.2 (2013). Awarding earned good time credit would have allowed

for the possibility of Ragland’s release after forty-two and one-half years,

which I would not consider to be the functional equivalent of LWOP.

Under these circumstances, and for the reasons set forth in Justice

Wiggins’s concurring opinion, the district court was correct in refusing to

give effect to the Governor’s attempt to commute Ragland’s sentence.
The district court was correct in then applying Miller in this case, and I

would affirm Ragland’s sentence.
