                    IN THE COURT OF APPEALS OF IOWA

                                   No. 19-0137
                               Filed March 4, 2020


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

TREVION DUPRI SMITH-TOLES,
     Defendant-Appellant.
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      Appeal from the Iowa District Court for Pottawattamie County, Jeffrey L.

Larson, Judge.



      Trevion Smith-Toles appeals the sentence imposed upon his conviction of

first-degree robbery. AFFIRMED.




      Martha J. Lucey, State Appellate Defender, and Nan Jennisch, Assistant

Appellate Defender, for appellant.

      Thomas J. Miller, Attorney General, and Zachary Miller, Assistant Attorney

General, for appellee.



      Considered by Vaitheswaran, P.J., and Mullins and Ahlers, JJ.
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MULLINS, Judge.

      Trevion Smith-Toles was sixteen years of age when he and three other

individuals engaged in conduct resulting in Smith-Toles being charged with first-

degree robbery. Following Smith-Toles’s guilty plea, the matter proceeded to

sentencing and consideration of juvenile sentencing factors. See, e.g., Miller v.

Alabama, 567 U.S. 460, 477–78 (2012); State v. Lyle, 854 N.W.2d 378, 404 n.10

(Iowa 2014).

      At the hearing, the court received conflicting recommendations from both

witnesses and counsel as to whether Smith-Toles should be incarcerated or

released to engage in community-based rehabilitation services. It also received

an abundance of evidence specific to Smith-Toles concerning the mitigating

features of his youth, his home and family environment, the circumstances of the

crime and how youth may have played a role in its commission, the challenges he

would face in going through the criminal process, and his prospects for

rehabilitation. Smith-Toles’s statement of allocution and his counsel’s arguments

also included mitigating information.

      In imposing sentence, the court was torn, noting “prison is not a great option

for you because of your young age and all of the mitigating circumstances that the

attorneys talked about.” The court proceeded to Smith-Toles’s poor track record

and the need for protection of the community, both of which the court indicated

weighed against placing Smith-Toles on probation. The court noted residential

correctional facilities would not be a workable option for rehabilitation given the

level of supervision Smith-Toles required, which the facilities could not provide.

Ultimately, the court sentenced Smith-Toles to a term of imprisonment not to
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exceed twenty-five years. As to its option of imposing a mandatory minimum of

seventy percent of the sentence prior to parole or work release eligibility, 1 the court

declined to impose the minimum given Smith-Toles’s young age.

       Smith-Toles     appeals,     arguing    the   court    improperly    considered

characteristics of youth as aggravating, rather than mitigating, factors in imposing

sentence.2 Specifically, he maintains the factors cited by the court in its decision

to send him to prison “were immaturity, impetuosity, and failure to appreciate risks

and consequences,” which “cannot be used to justify a harsher sentence.”

       We agree that considering the features of youth as aggravating

circumstances in sentencing would amount to an abuse of discretion. See, e.g.,

Lyle, 854 N.W.2d at 402 n.8; State v. Pearson, 836 N.W.2d 88, 97 (Iowa 2013).

Here, however, to put it simply, we agree with the State that the court considered

the features of Smith-Toles’s youth as mitigating circumstances. The reasons for

the court’s decision to send Smith-Toles to prison were protection of the

community, his need for rehabilitation, and his poor prospects for rehabilitation

without going to prison. While Smith-Toles attempts to put words in the district




1 Iowa Code section 902.12(1)(e) (2018) requires denial of parole or work release
for individuals convicted of first-degree robbery until they have served seventy
percent of their maximum prison sentence. While the court can impose a minimum
term, the mandatory nature is unconstitutional as to juvenile offenders. See Lyle,
854 N.W.2d at 404.
2 As the State points out, recent legislation, effective July 1, 2019, limits our ability

to consider appeals of convictions when a defendant has pled guilty. See 2019
Iowa Acts ch. 140, § 28(a)(3) (codified at Iowa Code § 814.6(1)(a)(3) (2019)).
However, the State filed its brief before our supreme court decided whether the
legislation is retroactive. The court recently ruled the new legislation does “not
apply to a direct appeal from a judgment and sentence entered before July 1,
2019.” State v. Macke, 933 N.W.2d 226, 228 (Iowa 2019).
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court’s mouth, we conclude the court considered the features of his youth as

mitigating, not aggravating, and we find no abuse of discretion.

       Finding no abuse of discretion, we affirm the sentence imposed upon Smith-

Toles’s conviction of first-degree robbery.

       AFFIRMED.
