                    IN THE COURT OF APPEALS OF IOWA

                             No. 3-1105 / 13-0460
                             Filed February 5, 2014


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

GUNNER WAYNE MCCURDY,
     Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Cherokee County, Carl J.

Petersen, Judge.



      Gunner McCurdy appeals the special sentence imposed pursuant to Iowa

Code section 903B.1 (2011) subjecting him to lifetime supervision. AFFIRMED.



      Mark C. Smith, State Appellate Defender, and Melinda J. Nye, Assistant

Appellate Defender, for appellant.

      Thomas J. Miller, Attorney General, Bridget A. Chambers, Assistant

Attorney General, and Ryan Kolpin, County Attorney, for appellee.



      Heard by Vogel, P.J., and Tabor and McDonald, JJ.
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VOGEL, P.J.

      Gunner McCurdy appeals the special sentence imposed pursuant to Iowa

Code section 903B.1 (2011) subjecting him to lifetime supervision as if on parole,

claiming it violates the United States and Iowa Constitutions’ prohibition against

cruel and unusual punishment. Because we conclude the special sentence does

not constitute cruel and unusual punishment under either the Eighth Amendment

of the United States Constitution or article I, section 17 of the Iowa Constitution,

we affirm McCurdy’s sentence.

I. Factual and Procedural Background

      On June 1, 2011, McCurdy met K.M. at a teen dance. They became

boyfriend and girlfriend. A few days later, they engaged in sexual intercourse, to

which K.M. verbally consented. At the time, K.M. was fifteen and McCurdy was

twenty years old.

      The relationship lasted approximately three days.           The next week,

McCurdy reported to the police he had seen K.M. shoplifting.            The police

interviewed K.M. She denied the shoplifting but told officers she engaged in

consensual sexual intercourse with McCurdy and that she did not think it was

illegal to have done so.     Her written statement of the events of that night

concluded: “We were happy. And we both consented.”

      The State charged McCurdy by trial information with one count of third

degree sexual abuse in violation of Iowa Code sections 709.1 and 709.4(2)(c)(4),

which, as relevant to this appeal, carries a penalty under section 903B.1. On

February 18, 2013, McCurdy pled guilty to the charge, and the district court

sentenced McCurdy to an indeterminate term up to ten years, suspended, and
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placed McCurdy on probation for five years. As required by section 903B.1, the

court imposed a special sentence placing McCurdy under the supervision of the

department of corrections as if he were on parole for the rest of his life. McCurdy

appeals the special sentence, asserting that, as applied to the specific facts of

his case, the sentence constitutes cruel and unusual punishment in violation of

article I, section 17 of the Iowa Constitution and the Eighth Amendment of the

United States Constitution.

II. Standard of Review

        We review constitutional challenges to an allegedly illegal sentence de

novo.    State v. Ragland, 836 N.W.2d 107, 113 (Iowa 2013).           “Statutes are

cloaked with a presumption of constitutionality. The challenger bears a heavy

burden, because it must prove the unconstitutionality beyond a reasonable

doubt.” State v. Tripp, 776 N.W.2d 855, 857 (Iowa 2010).

III. Whether the Special Sentence Constitutes Cruel and Unusual
Punishment

        McCurdy challenges the special sentence imposed pursuant to Iowa Code

section 903B.1, claiming it is grossly disproportional to his crime.1 In evaluating

whether a sentence is cruel and unusual, the United States Supreme Court has

developed a three-part test. The threshold inquiry is whether the severity of the

sentence is grossly disproportional to the gravity of the crime. Solem v. Helm,

463 U.S. 277, 291–92 (1983); State v. Oliver, 812 N.W.2d 636, 649 (Iowa 2012).

If the threshold inquiry is satisfied, we then proceed to an intrajurisdictional


1
 McCurdy is making an as-applied cruel and unusual challenge to his sentence, which
can be done under both the Iowa and United States Constitutions. See State v. Oliver,
812 N.W.2d 636, 648–49 (Iowa 2012).
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analysis “comparing the challenged sentence to sentences for other crimes

within the jurisdiction.” State v. Bruegger, 773 N.W.2d 862, 873 (Iowa 2009).

The third step is then an interjurisdictional analysis, in which we compare

sentences in other jurisdictions to the same or similar crimes. Id. Though the

cruel and unusual punishment review is more stringent under the Iowa

Constitution, the same analysis applies. Oliver, 812 N.W.2d at 649.

          If the challenged sentence does not create an inference that it is grossly

disproportionate, then no further inquiry is necessary. Id. Thus, we must first

consider whether McCurdy’s mandatory sentence under section 903B.1 is

grossly disproportionate to his crime of third-degree sexual abuse. In doing so,

“we owe substantial deference to the penalties the legislature has established for

various crimes.” Id. We do so because “[l]egislative judgments are generally

regarded as the most reliable objective indicators of community standards for

purposes of determining whether a punishment is cruel and unusual.” Bruegger,

773 N.W.2d at 873. Furthermore, “it is rare that a sentence will be so grossly

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

further review.” Oliver, 812 N.W.2d at 650. However, unique features of a case

may “converge to generate a high risk of potential gross disproportionality.” Id.

          Here, McCurdy engaged in sexual intercourse with a fifteen-year-old girl

when he was twenty, thereby committing sexual abuse in the third degree.

McCurdy was then sentenced under Iowa Code section 903B.1 to the

supervision of the department of corrections for the rest of his life, though he may

be discharged if the parole board so chooses.          Specifically, section 903B.1

states:
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       A person convicted of a class “C” felony or greater offense under
       chapter 709, or a class “C” felony under section 728.12, shall also
       be sentenced, in addition to any other punishment provided by law,
       to a special sentence committing the person into the custody of the
       director of the Iowa department of corrections for the rest of the
       person’s life, with eligibility for parole as provided in chapter 906.
       The board of parole shall determine whether the person should be
       released on parole or placed in a work release program. The
       special sentence imposed under this section shall commence upon
       completion of the sentence imposed under any applicable criminal
       sentencing provisions for the underlying criminal offense and the
       person shall begin the sentence under supervision as if on parole
       or work release. The person shall be placed on the corrections
       continuum in chapter 901B, and the terms and conditions of the
       special sentence, including violations, shall be subject to the same
       set of procedures set out in chapters 901B, 905, 906, and chapter
       908, and rules adopted under those chapters for persons on parole
       or work release. The revocation of release shall not be for a period
       greater than two years upon any first revocation, and five years
       upon any second or subsequent revocation.

Iowa Code § 903B.1.

       McCurdy characterizes his relationship with K.M. as a “Romeo and Juliet”

type of relationship, even though this “Romeo and Juliet” relationship only

spanned a period of three days. Nonetheless, McCurdy asserts the consensual

nature of the act renders his conduct undeserving of the mandatory special

sentence. McCurdy contends his “relative youth,” with “lower impulse control and

logical reasoning,” should minimize his culpability and allow him to escape the

imposition of this special sentencing.

       This assertion is unpersuasive, as it fails to consider the other side of that

position—the relative youth of the victim. Our legislature has chosen to protect

the public from various forms and degrees of sexual offenses through this special

sentence. As the Kansas supreme court has found, this protection is not just for

physical but also psychological harm. See State v. Mossman, 281 P.3d 153, 160
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(Kan. 2012) (“An adult, such as Mossman, who comes in contact with a minor,

even a seemingly mature minor, is expected to protect the child from the child’s

poor judgment, not take advantage of that poor judgment.”). Though in this case

the age difference between McCurdy and the victim is smaller than in other

instances of statutory rape, it is nonetheless a serious crime that should not be

trivialized.   Our legislature has implemented this statutory scheme to protect

victims like K.M. from defendants like McCurdy, who are significantly older and

more experienced, and also to protect the public so McCurdy cannot continue to

perpetrate these crimes.

        Additionally, the special sentence imposed subjects McCurdy to the

supervision of the department of corrections, as if on parole, for the rest of his

life, and the board of parole may discharge the supervision. See Iowa Code

§§ 903B.1, 906.15.      Thus, if McCurdy avoids similar conduct and otherwise

complies with the terms of his parole, he may avoid lifetime supervision by the

department of corrections. Furthermore, “[p]arole is a lenient form of punishment

that monitors a person’s activities to ensure the person is complying with the law.

The imposition of lifetime parole is not tantamount to a sentence of life

imprisonment.” Tripp, 776 N.W.2d at 858. Given this appropriate sentence, it

does not satisfy the threshold inquiry of whether the punishment is cruel and

unusual, and we need not reach the other two prongs of the Solem test.

Therefore, this minimally restrictive punishment, imposed after McCurdy

statutorily raped a fifteen-year-old girl, does not violate either the United States

Constitution or the Iowa Constitution.
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      For these reasons, McCurdy’s special sentence imposed pursuant to Iowa

Code section 903B.1 is not cruel and unusual, and we affirm the district court.

      AFFIRMED.
