                   IN THE COURT OF APPEALS OF IOWA

                                      No. 14-1549
                                  Filed July 27, 2016


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

MERRILL LEE HOWARD,
     Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Scott County, Thomas G. Reidel,

Judge.



      Howard appeals the district court’s imposition of a fifty percent minimum

sentence at his resentencing.       SENTENCE VACATED, CASE REMANDED

WITH DIRECTIONS.



      Mark C. Smith, State Appellate Defender, Vidhya K. Reddy, Assistant

Appellate Defender, and Anagha Dixit, Student Legal Intern, for appellant.

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

Attorney General, for appellee.



      Heard by Danilson, C.J., and Vaitheswaran and McDonald, JJ.
                                          2


VAITHESWARAN, Judge.

       When Merrill Howard was sixteen years old, he participated in a drive-by

shooting that resulted in the death of a young girl. Howard pled guilty to second-

degree murder and was sentenced to a prison term not exceeding fifty years,

with a mandatory minimum term of eighty-five percent.1

       The Iowa Supreme Court subsequently concluded “all mandatory

minimum sentences of imprisonment for youthful offenders are unconstitutional

under the cruel and unusual punishment clause in article I, section 17 of our

constitution.” State v. Lyle, 854 N.W.2d 378, 400 (Iowa 2014). The court applied

its decision “to all juveniles currently serving a mandatory minimum sentence of

imprisonment” and “require[d] all juvenile offenders . . . in prison under a

mandatory minimum sentence to be returned to court for resentencing.” Id. at

403.

       Howard returned to court for resentencing.          Following a hearing, the

district court resentenced him to “a term not to exceed 50 years . . . with the

possibility of parole after [he] ha[d] served 25 years.”

       On appeal, Howard argues (1) “the Iowa Constitution categorically bans

the imposition of any minimum term of incarceration upon a juvenile offender,” (2)

“Iowa Code section 901.5(14) does not allow the court to suspend only a portion

of the mandatory minimum sentence (rather than the entirety thereof), such that

the 50% mandatory minimum imposed by the court is illegal,” (3) “the district

court abused its sentencing discretion in that it erroneously believed the


1
  Iowa Code section 902.12 (2015) was subsequently amended, retroactively reducing
the mandatory minimum term for second-degree murder to seventy percent.
                                             3


statutorily prescribed minimum was 85% rather than 70%,” and (4) “the district

court abused its sentencing discretion or, alternatively, violated constitutional

prohibitions on cruel and unusual punishment, when it failed to properly apply the

Miller, Null, and Lyle line of cases.”2

       I. As noted, the Iowa Supreme Court in Lyle struck down mandatory

minimum terms of incarceration for juvenile offenders. Id. However, the court

limited the holding as follows:

       [O]ur holding focuses exclusively on a statutory schema that
       requires a district court to impose a sentence containing a minimum
       period of time a juvenile must serve before becoming eligible for
       parole . . . we do not consider the situation in which a district court
       imposes a sentence that denies the juvenile the opportunity for
       parole in the absence of a statute requiring such a result.

Id. at 401 n.7.    Howard acknowledges the court “did not consider or decide

whether imposition of a minimum sentence, in the absence of a statute

mandatorily requiring such minimum, would be unconstitutional.” But he argues

the   Lyle   court’s   reasons    for     holding   mandatory   minimum   sentences

unconstitutional apply with equal force to “the discretionary imposition of a

minimum sentence upon a juvenile offender.”

       This court has declined to extend the reach of Lyle to discretionary

minimum sentences imposed on juvenile offenders. See State v. Davis, No. 14-

2156, 2016 WL 146528, at *4 (Iowa Ct. App. Jan. 13, 2016) (“The Iowa Supreme

Court did not hold in Lyle that district courts are prohibited in all cases from

imposing minimum sentences for juvenile offenders.”); State v. Propps, No. 15-

0235, 2015 WL 9451072, at *2 (Iowa Ct. App. Dec. 23, 2015) (“[A]t the end of the

2
 See Miller v. Alabama, 132 S. Ct. 2455 (2012); State v. Null, 836 N.W.2d 41 (Iowa
2013); Lyle, 854 N.W.2d at 378.
                                           4

day, the [Lyle] court limited its holding to prison sentences with mandatory

minimum terms.”); State v. Marshall-Limoges, No. 14-1610, 2015 WL 4936265,

at *1 (Iowa Ct. App. Aug. 19, 2015) (noting that “Lyle [wa]s inapplicable” where

“none of the sentences . . . involve[d] mandatory minimum terms of

incarceration”).   As we stated, “It is appropriate for our court to defer to the

supreme court on whether to extend the holding[] of . . . Lyle to cases where

juvenile offenders do not face any mandatory minimum sentences.” State v.

Means, No. 14-1376, 2015 WL 6509741, at *9 (Iowa Ct. App. Oct. 28, 2015). We

see no reason to deviate from these pronouncements.

       II. As noted, the district court sentenced Howard to a prison term not

exceeding fifty years, with the possibility of parole after serving twenty-five years.

Howard contends the twenty-five-year prong of the sentence is illegal. He relies

on section 901.5(14), which states:

       [I]f the defendant . . . 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 . . . .[3]

In his view, this provision does not authorize a district court “to select a particular

minimum term less than the statutorily prescribed minimum.”

       The State acknowledges “that Iowa Code section 901.5(14) does not

permit imposition of a minimum term of confinement as determined by the court”

but “parts company . . . with Howard over the reason and the result.” According

to the State, “the Code does not permit retroactive application of an ameliorative


3
  The provision was in effect at the time of Howard’s resentencing hearing but not at the
time of his conviction or original sentencing.
                                             5


sentencing provision in the absence of a specific direction to do so. . . .

Accordingly, section 901.5(14) did not apply to Howard because his conviction

was final long before section 901.5(14) was passed.”

         The question of whether section 901.5(14) applies retroactively was

identified by the majority in Lyle. The majority noted, “The State argues, and Lyle

does not disagree, that the statute does not apply retroactively. See Iowa Code

§ 4.13(1)(c) (2013).”      Lyle, 854 N.W.2d at 388 n.4.             A dissenting opinion

addressed the retroactivity question head on, stating:

         Two years after Lyle’s conviction, the legislature prospectively
         granted sentencing courts discretion to waive mandatory minimums
         if the defendant was under age eighteen at the time he committed
         the crime. Significantly, however, the legislature chose not to make
         this amendment retroactive. See Iowa Code § 4.5 (2013) (“A
         statute is presumed to be prospective in its operation unless
         expressly made retrospective.”).

Id. at 406 n.12 (Waterman, J., dissenting) (citation omitted). This portion of the

dissenting opinion was unassailed.

         As in Lyle, Howard does not take issue with the State’s retroactivity

analysis but simply presumes section 905.1(14) applied on resentencing. In light

of this posture and Justice Waterman’s clear pronouncement that the statute only

applies prospectively, we assume without deciding that the statute does not

apply retroactively.4 See State v. Posey, No. 15-0170, 2015 WL 6508494, at *1


4
    A partial concurrence and dissent in State v. Louisell, 865 N.W.2d 590, 604 (Iowa
2015), suggested a juvenile sentencing statute applicable to Class “A” felonies should
apply to resentencing hearings. (Mansfield, J., concurring in part and dissenting in part).
But, as Justice Mansfield explained, that statute expressly made the provision
retroactive.
        This court has applied section 901.5(14) where an original sentencing occurred
after the effective date of the statute. See State v. Howell, No. 14-1411, 2015 WL
4468951, at *3 (Iowa Ct. App. July 22, 2015) (noting provision applied to sentencing
after effective date of statute, stating, “The record in this case provides no indication the
                                           6


n.1 (Iowa Ct. App. Oct. 28, 2015) (declining to consider retroactivity issue where

“at no point in his briefs” did the defendant argue “that section 901.5(14) should

be made retroactive and applied to him”). Under this premise, the State asserts

“the remedy is to remand for imposition of a 50-year sentence with immediate

parole eligibility,” the same remedy proposed by Howard. Both the State and

Howard rely on the supreme court’s opinion in Louisell, 865 N.W.2d at 590. See

also Lyle, 854 N.W.2d at 404 n.10 (“If the mandatory minimum sentence is not

warranted, the district court shall resentence the defendant by imposing a

condition that the defendant be eligible for parole. If the mandatory minimum

period of incarceration is warranted, the district court shall impose the sentence

provided for under the statute, as previously imposed.”).

       In Louisell, the juvenile defendant was convicted of first-degree murder

and was sentenced to life in prison without parole, the only sentence authorized

at the time of the offense. 865 N.W.2d at 593-94. After that sentence was held

unconstitutional for juveniles, the district court resentenced the defendant to life

with eligibility for parole after twenty-five years. Id. at 595. The Iowa Supreme

Court concluded this sentence—prescribed by Iowa Code section 902.1(2)(a)—

was unconstitutional under Lyle. Id. at 600. The court further concluded “[T]he

district court did not have discretion under the remaining sentencing framework

to decide Louisell’s eligibility for parole commenced after serving a specific term

of twenty-five years in prison.” Id. at 601. The court did not remand the case for

district court was aware of new subsection 901.5(14)” and vacating sentence); State v.
Edwards, No. 13-1649, 2014 WL 3930467, at *1 n.2 (Iowa Ct. App. Aug. 13, 2014)
(noting “[n]either party nor the court addressed or applied this new code section to this
case, though it was applicable at the time of sentencing” and finding it unnecessary to
address this issue as a separate error).
                                            7


resentencing. The court “vacate[d] this aspect of the sentence and remand[ed]

for entry of a sentence of life in prison with eligibility for parole.” Id.

       Here, although the district court did not have the benefit of Louisell at the

time of resentencing, we agree the disposition is controlling. While we could

envision arguments in support of a contrary disposition, those arguments have

not been made here, and “[u]nder Iowa law, the only issues reviewable are those

presented by the parties.” Mueller v. St. Ansgar State Bank, 465 N.W.2d 659,

660 (Iowa 1991); see also State v. Seering, 701 N.W.2d 655, 661 (Iowa 2005)

(“In the absence of an argument on these allegations, we deem them waived.”).

We vacate Howard’s sentence and remand solely for entry of an amended and

substituted sentencing order imposing an indeterminate fifty year prison sentence

with no minimum term and immediate eligibility for parole.                In light of our

disposition, we find it unnecessary to address Howard’s remaining two

arguments.

       SENTENCE VACATED, CASE REMANDED WITH DIRECTIONS.

       Danilson, C.J., concurs specially; McDonald, J., dissents.
                                        8


DANILSON, C.J. (specially concurring)

       I concur specially to explain my support for the majority opinion and

respond in part to the dissent. First, I do not concur in the result because of any

“agreement” between the parties on appeal, although I agree with the majority

that they propose the same resolution for differing reasons. I would acknowledge

the State suggested we could remand for resentencing if we did not find State v.

Louisell, 865 N.W.2d 590 (Iowa 2015), controlling. And upon questioning during

oral arguments, the State agreed we could bypass the elephant in the room by

simply concluding the court considered an impermissible factor, i.e., that the

mandatory minimum eighty-five percent remained a sentencing option when it

clearly was not. However, the State did not find the latter option appealing, and I

find Louisell controlling.   Although the issue of whether Iowa Code section

901.5(14) is retroactive could be the subject of debate, I find the majority

opinion’s resolution of the issue best supported by the statutory and case law as

it presently exists.

       I agree with the majority opinion because the trial court concluded it was

not reasonable to impose the mandatory-minimum seventy percent after

considering the Miller factors, which are required considerations after State v.

Lyle, 854 N.W.2d 378, 402 (Iowa 2014). But, similar to the facts in Louisell, 865

N.W.2d at 601, the district court erred by limiting Howard’s eligibility for parole

until he served at least twenty-five years. In Louisell, our supreme court could

have sent the case back for resentencing as urged by the dissent in that case.

Instead, the court concluded it was reasonable under the facts before it for

Louisell to be immediately eligible for parole, and simply vacated the sentencing
                                            9


order and remanded for a new sentencing order granting immediate eligibility for

parole. Louisell, 865 N.W.2d at 601. If the Louisell decision had resulted in the

defendant being sent back for resentencing, the district court would have had two

sentencing options, life without parole or life with immediate eligibility for parole—

at least until our supreme court rendered its decision in State v. Sweet.5

Similarly, there are reasons to support a sentence absent a mandatory-minimum

term in this case in light of Howard’s dysfunctional childhood and intellectual

capabilities.   Accordingly, remanding this action for yet another resentencing

hearing is a waste of judicial resources.         Instead, I concur in following the

principles recited in Louisell, as is our responsibility.




5
 In Sweet, ___ N.W.2d ___, ___, 2016 WL 3023726, at *28-29 (Iowa 2016), the Iowa
Supreme Court concluded any life sentence imposed upon a juvenile is cruel and
unusual unless the defendant is granted immediate eligibility for parole.
                                         10


MCDONALD, Judge. (dissenting)

       I concur in the conclusion the district court erred in imposing Howard’s

sentence. The district court failed to comply with State v. Lyle, 854 N.W.2d 378

(Iowa 2014). Specifically, the district court did not consider each of the Lyle

factors and considered some factors to be aggravating rather than mitigating.

See Lyle, 854 N.W.2d at 402 n.8 (providing factors are mitigating). But see State

v. Sweet, 879 N.W.2d 811, 837 (Iowa 2016) (concluding the factors are without

value and cannot be applied in “any principled way”). The district court erred

when it sentenced the defendant based on the assumption the defendant was

subject to an 85% minimum sentence. The district court erred in concluding Iowa

Code section 901.5(14) (2015) gave it the authority to impose a determinate term

of incarceration prior to parole eligibility. Any of these reasons, standing alone, is

ground for vacating the defendant’s sentence and remanding this matter for

resentencing. The majority does not do this. Instead, the majority remands with

direction to enter a sentence making the defendant immediately eligible for

parole. I dissent from the majority’s disposition of this case.

                                          I.

       While Howard was trying to kill several people during a drive-by shooting,

he instead killed an innocent bystander, a nine-year-old girl who happened to be

in Davenport with her family for a wedding. It was a tragic event but not an

unpredictable one.    At the time of the murder, Howard was only sixteen years

old, but he was already a prodigious criminal.         At the time of the original

sentencing hearing, the presentence investigation report showed Howard had

been reprimanded or adjudicated delinquent for numerous offenses, including:
                                        11


robbery in the first degree; three counts of robbery in the second degree, arising

out of different incidents; assault while participating in a felony; carrying a

concealed weapon; willful injury; disorderly conduct; harassment; and trespass.

In addition, he had failed to appear at an adjudicatory hearing on one occasion

and had absconded from the Clarinda Correctional Facility on another occasion.

The district court sentenced Howard to an indeterminate term of incarceration not

to exceed fifty years. See Iowa Code § 707.3 (2001). At the time of sentencing,

the defendant was required to serve the entire term without parole eligibility

subject to a fifteen-percent reduction in his sentence for earned time. See Iowa

Code §§ 902.12 and 903A.2. Subsequent to the imposition of sentence, Iowa

Code section 902.12 was amended to provide ameliorative relief for offenders.

Pursuant to the amendment, the defendant’s sentence was changed to an

indeterminate term of incarceration not to exceed fifty years with a seventy

percent minimum prior to becoming eligible for parole.

       Subsequent to Howard’s conviction, the supreme court created a new

“sentencing schema” for juvenile offenders. In Lyle, the supreme court held the

Iowa Constitution forbade the imposition of mandatory minimum sentences on

juveniles. See 854 N.W.2d at 400. The supreme court rejected the conclusion

that imposition of a minimum term of incarceration on juvenile offenders is per se

unconstitutional.   See id. at 403 (“Some juveniles will deserve mandatory

minimum imprisonment, but others may not.”), 404 (“On remand, judges will do

what they have taken an oath to do. They will apply the law fairly and impartially,

without fear.   They will sentence those juvenile offenders to the maximum

sentence if warranted and to a lesser sentence providing for parole if
                                        12

warranted.”).   The Lyle court concluded the sentencing court may impose a

statutorily authorized minimum term of incarceration so long as the sentencing

court makes an individualized determination of the sentence upon consideration

of certain factors. See id. at 404 n.10 (citing Miller v. Alabama, 132 S. Ct. 2455,

2469 (2012)). The supreme court held its decision was retroactive, requiring “all

juvenile offenders who are in prison under a mandatory minimum sentence to be

returned to court for resentencing.” See id. at 403.

      Howard was one of the offenders returned to the district court for

resentencing pursuant to Lyle. Prior to Howard’s resentencing, the legislature

provided additional sentencing relief to persons convicted of an offense where

the person was less than eighteen years of age at the time of the offense.

      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.

2013 Iowa Acts, ch. 42, § 14 (codified at Iowa Code § 901.5(14)).               At

resentencing, the parties and the district court agreed the ameliorative statute

was applicable to Howard. The prosecutor stated “under the newer Code section

901.5(14), the legislature has given the Court wide latitude to consider any and

all possibilities concerning defendants who committed their crimes when they

were under the age of 18.” Defense counsel stated, “I do agree with the State

that the statute does allow the court to impose whatever sentence the Court
                                          13


wants to, anywhere from deferred judgment to probation to a lighter sentence to

the mandatory minimum.” The district court also concluded that it had authority

under the new statute, stating, “The Court has also considered the broad latitude

afforded the Court under Iowa Code section 901.5(14).”              Pursuant to the

ameliorative statute, the district court ordered the defendant to an indeterminate

term of incarceration with a minimum term of twenty-five years prior to parole

eligibility. This is the sentence at issue in this appeal.

                                           II.

       I part ways with the majority for several reasons. First, I disagree with the

majority’s assumption that section 901.5(14) was not applicable at Howard’s

resentencing and would not be applicable if this matter were remanded for

resentencing.    Second, I disagree with the majority’s decision to act as the

sentencing court. Third, to the extent the majority holds Louisell is controlling

here, I disagree. Fourth, to the extent the majority holds this court is bound by

the parties’ purported agreed-upon disposition of this case, I disagree.          My

disagreement on this last point raises a fundamental issue regarding the nature

of the judicial power. The Iowa Constitution vests the judicial power in the courts

of this State, and it is not subject to arrogation by agreement of the parties.

                                          A.

       The majority does not answer the question of whether the district court

erred in applying section 901.5(14) at the time of resentencing. Instead, the

majority “assume[s] without deciding” the statute is not retroactive. (Ante at 5.) It

seems odd to not decide the issue. First, in the typical case, we only assume the

answer to an issue when other issues in the same case are dispositive, e.g.,
                                          14

when resolving a case on harmless error or Stickland prejudice grounds. In this

case, whether or not section 901.5(14) applied at the time of resentencing is one

of the, if not the, central issues in this case. Not only is the issue a central one in

this case, the majority’s opinion turns on the State’s agreement as to the

disposition of this case, which was contingent on the resolution of whether

section 901.5(14) applied at resentencing, but this is the issue the majority

opinion does not decide. Second, the majority opinion decides to not decide

because Howard “does not take issue with the State’s retroactivity analysis.” It

seems to me he does. An entire division of Howard’s brief addresses section

901.5(14). Regardless, perhaps Howard does not take issue with the State’s

retroactivity analysis because it was raised in the State’s brief and he chose not

to file a reply brief. Perhaps he thought the argument frivolous and not worthy of

response. In any event, the entire enterprise is speculative. Finally, the majority

concludes it need not decide the issue because of the “posture” of this case and

Justice Waterman’s “clear pronouncement” in a dissenting opinion in Lyle that

section 901.5(14) is not retroactive. It is unclear why Justice Waterman’s clear

pronouncement of his views in a dissenting opinion in some other case obviates

the need to decide the questions presented in this appeal.

       On the merits, this is not a case of “retroactivity.”         The concept of

retroactivity is implicated where a defendant claims his otherwise legal sentence

should be corrected or modified because of some change in the law. Howard’s

claim is not one of retroactivity, i.e., that he should be resentenced because the

legislature provided ameliorative relief in section 901.5(14). Instead, Howard’s

claim is that his sentence is void for other reasons and that he is entitled to be
                                         15


resentenced in accord with ameliorative sentencing provisions in effect at the

time of his resentencing. This is a meaningful distinction. Howard’s sentence

was vacated as if it never existed. Thus, the resentencing hearing conducted in

this case was a plenary sentencing hearing because no legal sentence has ever

been “imposed.” See Sweet, 879 N.W.2d at 834 (stating the court’s juvenile

sentencing jurisprudence is “broadly substantive and not narrowly procedural”).

The plain language of the code makes the statute applicable at a plenary

resentencing hearing. See Iowa Code § 4.13(2) (“If the penalty, forfeiture, or

punishment for any offense is reduced by a reenactment, revision, or amendment

of a statute, the penalty, forfeiture, or punishment if not already imposed shall be

imposed according to the statute as amended.” (emphasis added)); State v.

Louisell, 865 N.W.2d 590, 604 (Iowa 2015) (Mansfield, J., concurring in part and

dissenting in part) (concluding ameliorative sentencing statute enacted after

original sentencing should be applied at resentencing where the original

sentence was vacated as illegal and thus void); Lyle, 854 N.W.2d at 382 (“An

unconstitutional sentence is an illegal sentence.”).

                                         B.

       I also disagree with the majority’s decision to act as the sentencing court.

I begin with an assessment of the sentences that would have been available to

the district court following remand had the majority not remanded this matter with

instruction. The relevant sentencing statutes would have been section 707.3,

which provides that murder in the second degree is a class “B” felony punishable

by a term of incarceration not to exceed fifty years, section 902.12, which

imposes a seventy-percent minimum for murder in the second degree, and
                                         16


section 901.5(14), which provides ameliorative relief to offenders under the age

of eighteen at the time of the offense. Under section 901.5(14), the district court

would have had the discretion to impose a term of incarceration, including the

imposition of a seventy-percent minimum prior to the defendant becoming eligible

for parole. The statute would have allowed the district court to suspend “the

sentence in whole or in part,” defer judgment, or defer sentence and place the

defendant on probation. In suspending “the sentence,” the district court could

have suspended the “mandatory minimum sentence” in whole but not in part. In

other words, the sentencing court could not have selected a determinate

minimum term.        Even assuming section 901.5(14) would not have been

applicable following remand, Lyle does not prevent the imposition of a

discretionary     minimum    sentence    following   a   constitutionally   compliant

individualized sentencing hearing. Thus, at minimum, the district court would

have had the discretion to impose the seventy-percent minimum authorized

pursuant to section 902.12 or make the defendant immediately eligible for parole.

      The majority does not dispute the sentencing court would have had the

discretion to impose one of the several sentences set forth in the preceding

paragraph.      Nonetheless, the majority restricts the district court’s sentencing

discretion and instructs the district court to make the defendant immediately

eligible for parole. I disagree with this assertion of sentencing authority. This

court is a court for the correction of legal error. See Iowa Code § 602.5103

(providing the court of appeals “constitutes a court for correction of errors at

law”). It is not a sentencing court. See Louisell, 865 N.W.2d at 606 (Mansfield,

J., dissenting) (“The close question for me is not whether we can sentence
                                        17


Louisell on our own to life with parole. Clearly, we cannot do this. We are not a

sentencing court.”). The sentencing decision is better left to the district court,

which can exercise discretion based on evidence, argument, and the defendant’s

allocution. The majority denies the parties the right to present evidence and

argument. The majority denies the defendant the right to allocute. The majority

denies the defendant the opportunity to request a lesser punishment authorized

pursuant to section 901.5(14). Specifically, the defendant would have had the

opportunity to request a suspended sentence and immediately be released on

probation. That is meaningfully different than being made parole eligible. The

majority denies the victim’s family the right to participate in resentencing this

defendant. The majority denies the State the right to argue for imposition of a

discretionary minimum sentence. The majority leaves everyone potentially worse

off.

       Given the foregoing, why remand with instruction to impose this particular

sentence? The majority discusses Louisell.       Perhaps the majority concludes

Louisell controls the result in this case? Perhaps the majority concludes this

court is bound by the State’s purported concession that Louisell is dispositive and

requires remand with instruction?     The rationale is unclear.    I address each

possibility in turn.

                                        C.

       To the extent the majority concludes the disposition of this matter is

compelled by Louisell, I disagree. Louisell is inapplicable here. Louisell was

sentenced to life in prison without parole eligibility pursuant to Iowa Code section

902.1 (1987). Her sentence was vacated as illegal pursuant to the supreme
                                        18

court’s recent juvenile sentencing decisions.     Following a Miller resentencing

hearing, Louisell was resentenced to life in prison with parole eligibility after a

determinate term of twenty-five years. On appeal, the supreme court concluded

the new sentences were unconstitutional. The supreme court considered the

potential sentences that could have been imposed pursuant to an amended

version of Iowa Code section 902.1.          In analyzing each of the authorized

sentences, the supreme court severed from the amended section 902.1 each of

the alternatives it found unconstitutional. It then arrived at a sentence from what

remained after severing the unconstitutional provisions.

      This case is distinguishable. First and foremost, the statute at issue in

Louisell—the amended version of Iowa Code section 902.1(2), setting forth the

sentences applicable to a defendant convicted of murder in the first degree—is

not applicable to this case. The sentencing statutes at issue in this case are

sections 707.3, 901.5(14), and 902.12, none of which were addressed in Louisell.

The majority does not attempt to explain how Louisell dictates the result in this

case when Loiusell interpreted a statute not at issue in this case and when it is

not disputed the sentencing court in this case would have had the discretion to

choose among several lawful sentencing alternatives.        To the contrary, the

majority opinion acknowledges Louisell does not require the result in this case.

See ante at 7 (stating “[w]hile we could envision arguments in support of a

contrary disposition, those arguments have not been made here”). Further, the

majority in this case acknowledged in a recently filed case that Louisell does not

even compel remand with instruction where section 902.1 is at issue. See State

v. Roeuth, No. 15-0954, 2016 WL 3274211, at *2 (Iowa Ct. App. June 15, 2016)
                                           19


(“[W]e reverse the sentence imposed by the district court and remand for

resentencing consistent with this opinion.”). Finally, the majority opinion does not

even acknowledge that the supreme court has concluded Louisell is no longer

controlling with respect to disposition. In State v. Querrey, 871 N.W.2d 126, 126

(Iowa 2015), the supreme court held that the appropriate disposition in cases of

this type is to remand for resentencing.

                                           D.

      The secondary explanation for remand with instruction must be the

majority opinion’s unstated conclusion that this court is bound by the State’s

agreement with, or concession to, Howard’s argument that the appropriate

disposition of this case is “remand to the district court for entry of an

indeterminate fifty-year sentence with immediate eligibility for parole.” To the

extent the majority’s rationale for remanding with instruction is because the State

conceded the issue or the parties otherwise agreed to it, I disagree in several

respects.

      First, it is not clear the defendant and the State actually agree on the

disposition of this case.     The defendant raised several challenges to his

sentence, and the defendant did not request the same disposition for each

challenge.    The defendant actually asked this matter be remanded for

resentencing for two of the four claims he raised. The State did not request the

same disposition with respect to each of the defendant’s claims. The parties did

not even agree with respect to the defendant’s claim regarding section 901.5(14).

The State contends the statute is inapplicable. The State’s request for relief with

respect to this claim is contingent: if this court agrees section 901.5(14) is not
                                          20


retroactive, the remedy is remand for imposition of an indeterminate sentence not

to exceed fifty years with immediate parole eligibility; but if the court concludes

the statute is retroactive, the State argues, “then the remedy is to remand for

application of that statute.”    As noted above, the majority opinion does not

actually decide the “retroactivity” issue.     In the absence of a holding on that

issue, I do not see where the majority opinion finds the purported concession or

agreement.

       Second, even assuming the State conceded the issue or the parties

otherwise agreed Louisell requires remand with instruction that the defendant be

immediately eligible for parole, the State’s concession or the parties’ agreement

does not relieve this court of its obligation to administer the criminal laws in the

interest of justice as the legislature intended.

       The considered judgment of the law enforcement officers that
       reversible error has been committed is entitled to great weight, but
       our judicial obligations compel us to examine independently the
       errors confessed. The public interest that a result be reached
       which promotes a well-ordered society is foremost in every criminal
       proceeding. That interest is entrusted to our consideration and
       protection as well as that of the enforcing officers. Furthermore, our
       judgments are precedents, and the proper administration of the
       criminal law cannot be left merely to the stipulation of parties.

Young v. United States, 315 U.S. 257, 258-59 (1942) (citations omitted); see also

Sibron v. New York, 392 U.S. 40, 58-59 (1968) (“Confessions of error are, of

course, entitled to and given great weight, but they do not relieve this Court of the

performance of the judicial function.”). Like the United States Supreme Court,

our supreme court holds that appellate courts are not bound by concessions or

agreements relating to the administration of the criminal laws.        See State v.

Hennings, 791 N.W.2d 828, 838 (Iowa 2010) (“The State requests we vacate
                                        21


Hennings’ sentences and remand the case for resentencing to allow the district

court to state its reasons on the record. We, however, are not bound by the

State’s concession.”), overruled on other grounds by State v. Hill, 878 N.W.2d

269, 275 (Iowa 2016). Hennings is controlling authority on this point, but the

majority ignores Hennings.

      The soundness of the rule—that this court is not bound by the parties’

agreement regarding the administration of the criminal law—is demonstrated by

the following hypothetical.   Assume Howard had argued the only disposition

available in this case was remand with direction to suspend the sentence and

immediately place him on probation. This is an incorrect statement of the law.

What if the State nonetheless conceded to the argued-for disposition as a correct

statement of the law?     Would the majority conclude it was bound by this

concession and remand this matter with direction to suspend the sentence and

immediately place the defendant on probation?       If the majority would not be

bound by this hypothetical concession, why does it conclude it is bound by the

State’s purported agreement in this case?

      This is not a question of “waiver,” as the majority frames the issue, it is a

question of constitutional authority and duty. “The powers of the government of

Iowa shall be divided into three separate departments—the Legislative, the

Executive, and the Judicial: and no person charged with the exercise of powers

properly belonging to one of these departments shall exercise any function

appertaining to either of the others, except in cases hereinafter expressly

directed or permitted.” Iowa Const. art. III, § 1. The “doctrine is violated if one

branch of government purports to use powers that are clearly forbidden, or
                                        22

attempts to use powers granted by the constitution to another branch.” State v.

Wade, 757 N.W.2d 618, 627 (Iowa 2008).

      “The Judicial power shall be vested in a Supreme Court, District Courts,

and such other Courts, inferior to the Supreme Court, as the General Assembly

may, from time to time, establish.” Iowa Const. art. V, § 1. “Judicial power

vested in the courts by the Iowa Constitution is the power to decide and

pronounce a judgment and carry it into effect.” Klouda v. Sixth Judicial Dist.

Dep’t of Corr. Servs., 642 N.W.2d 255, 261 (Iowa 2002). A sentence is “[t]he

judgment formally pronounced by the court or judge upon the defendant after his

conviction in a criminal prosecution, imposing the punishment to be inflicted.”

Black’s Law Dictionary (6th ed. 1990). “This is consistent with the definition of

judicial power: the power to decide and pronounce a judgment and carry it into

effect. Sentencing therefore falls within the realm of judicial power.” Klouda, 642

N.W.2d at 261; see Doe v. State, 688 N.W.2d 265, 271 (Iowa 2004)

(“Sentencing, of course, is a judicial function.”); State v. Johnson, 630 N.W.2d

583, 588 (Iowa 2001) (“Subject to the statutorily prescribed punishments for

criminal offenses, the actual sentencing of a defendant is an independent

function that is the sole province of the judiciary.”); State v. Longo, 608 N.W.2d

471, 475 (Iowa 2000) (“[S]entencing is the sole prerogative of the judge.”).

“Because sentencing falls within the realm of judicial power, any encroachment

on this power is a violation of the separation-of-powers doctrine.” Klouda, 642

N.W.2d at 261-62.

      The decision to be bound by the parties’ purported agreed-upon

disposition of this case is an abdication of the judicial power to the executive
                                        23


branch and the criminal defendant. It is the judicial branch’s exclusive power and

duty to interpret and apply the legislature’s sentencing schema to defendants in

the individual case. “A court should never abdicate this essential duty of the

judicial branch of government to counsel or the parties before the court.”

NevadaCare, Inc. v. Dep’t of Human Servs., 783 N.W.2d 459, 466 (Iowa 2010);

see Johnson, 630 N.W.2d at 590 (“When a court has discretion in sentencing, it

must exercise that discretion.”); Iowa Dist. Ct., 616 N.W.2d at 578 (“When a

minimum sentence is prescribed, however, the legislature ordinarily requires a

judicial determination of its applicability.”); State v. Ayers, 590 N.W.2d 25, 28

(Iowa 1999) (rejecting argument that sentence could be affirmed due to lack of

error preservation where the prosecutor and defendant invited error by

erroneously agreeing the sentencing court’s discretion was limited when “the

statute clearly gives the sentencing court discretion”). As set forth above, on

remand, the district court would have had the discretion to impose one of several

sentences.     The majority does not dispute this.    To nonetheless restrict the

sentencing discretion of the district court solely because the parties agreed to the

restriction is to cede judicial power to the litigants. The judicial power is not so

infirm as to prevent the maladministration of the criminal laws merely because

the parties stipulated to it.

       To the best of my knowledge, every court that has considered this issue

has rejected the notion that the judicial branch must cede its power and duty to

administer the criminal laws to the parties where the parties agree on the wrong

result. See, e.g., Sibron, 392 U.S. at 58 (“Confessions of error are, of course,

entitled to and given great weight, but they do not ‘relieve this Court of the
                                        24

performance of the judicial function.’”); United States v. Sanchez-Berrios, 424

F.3d 65, 81 (1st Cir. 2005) (“A concession by either party in a criminal case as to

a legal conclusion is not binding on an appellate court.”); United States v.

Vasquez, 85 F.3d 59, 60 (2d Cir. 1996) (“[W]e observe that the Government’s

concession that the section 924(c) conviction should be vacated does not

automatically govern an appellate court's disposition of an appeal.”); Gov’t of

Virgin Islands v. Josiah, 641 F.2d 1103, 1107 n.1 (3d Cir. 1981) (“[A] government

concession on a question of law is not binding on this court.”); United States v.

Rodriguez, 433 F.3d 411, 414 n.6 (4th Cir. 2006) (“At oral argument, the

Government conceded that Rodriguez is entitled to resentencing. . . .         This

concession does not end our inquiry, however, as we are not at liberty to vacate

and remand for resentencing on the Government’s concession of error alone.”);

United States v. Hope, 545 F.3d 293, 295 (5th Cir. 2008) (“We are not bound by

the Government’s concession of error and give the issue independent review.”);

United States v. Ramirez, 675 F.3d 634, 645 (7th Cir. 2011) (“[W]e reject the

government's confession of error in Ocampo’s appeal.”); United States v. Avery,

295 F.3d 1158, 1169 (10th Cir. 2002) (“A party’s concession of legal error,

however, cannot, standing alone, justify reversing a district court, nor can that

concession relieve this court of its obligation to evaluate the merits of the legal

issue presented on appeal.”); United States v. Linville, 228 F.3d 1330, 1331 n.2

(11th Cir. 2000) (“The Government concedes error.        We are not required to

accept such a concession when the law and record do not justify it.”); United

States v. Baldwin, 563 F.3d 490, 491 (D.C. Cir. 2009) (“We are not obligated to

accept the government’s confession of error . . . particularly when there is reason
                                          25

to doubt whether the government’s position is correct.”); Mattern v. State, 500

P.2d 228, 231 n.5 (Alaska 1972) (“In this jurisdiction, however, a confession of

error does not relieve the court of its appellate function.”); People v. Alvarado,

184 Cal. Rptr. 483, 492 (Cal. Ct. App. 1982) (“We reach this conclusion after

paying appropriate deference to the concession by the People through the

Attorney General’s representations that reversible error occurred. We believe we

are not bound by the concession.”); People v. Nave, 689 P.2d 645, 647 (Colo.

App. 1984) (“Since the existence of due process is a question of law, we are not

bound by the attorney general’s oral concession.”); State v. Warholic, 897 A.2d

569, 585 n.11 (Conn. 2006) (“Even if the State maintained its concession, we

would not be bound by it.”); Walls v. State, 560 A.2d 1038, 1052 (Del. 1989)

(“However, ‘[a] confession of error does not require the reversal of the judgment

of conviction in the trial court. Despite [the confession of error], . . . this Court

must make an independent determination that a reversible error was committed.’”

(alterations in original)); Rose v. United States, 629 A.2d 526, 533 (D.C. 1993)

(“[A]s this court put it long ago, we cannot set aside the conviction ‘on confession

of error alone’; the ‘public interest prevents shifting the responsibility for reversal

from the appellate court to the prosecuting official.’”); Perry v. State, 808 So. 2d

268, 268 (Fla. Dist. Ct. App. 2002) (“A confession of error, however, is not

binding upon an appellate court . . . and it is the practice of Florida appellate

courts not to accept erroneous concessions by the state.”); State v. Solomon,

111 P.3d 12, 21 (Haw. 2005) (“[A] confession of error by the prosecution is not

binding upon an appellate court, nor may a conviction be reversed on the

strength of the prosecutor’s official action alone.”); People v. Horrell, 919 N.E.2d
                                        26


952, 956 (Ill. 2009) (“Even if the State conceded before the appellate court that

defendant’s sentence of probation must be vacated, we, as a reviewing court, are

not bound by a party’s concession.”); Myers v. State, 116 N.E.2d 839, 839 (Ind.

1954) (“The attorney general has filed a brief in which he confesses error and

admits that the judgment should be reversed. It is nevertheless the duty and

responsibility of this court to examine the record and determine whether the law,

as applied to the facts in the case, requires reversal of the judgment of

conviction.”); Hennings, 791 N.W.2d at 838 (“We, however, are not bound by the

State’s concession.”), overruled on other grounds by Hill, 878 N.W.2d at 275;

Commonwealth v. Poirier, 935 N.E.2d 1273, 1275 (Mass. 2010) (“Confessions of

error are, of course, entitled to and given great weight, but they do not ‘relieve

this Court of the performance of the judicial function.’” (quoting Sibron, 392 U.S.

at 58)); People v. Inman, 220 N.W.2d 165, 168 (Mich. Ct. App. 1974) (“We

initially note that we are not bound by the prosecutor’s confession of error.”);

State v. Warren, 419 N.W.2d 795, 799 (Minn. 1988) (“The State’s concession,

however, is based on a misconception of how factual basis may be determined

and, therefore, we decline to be bound by it. We see no reason why we may not

see what is in plain sight simply because the State has chosen not to.”); State v.

Hardin, 429 S.W.3d 417, 421 n.4 (Mo. 2014) (“[T]his Court is not bound by the

Attorney General’s confession of error.”); State v. Fair Lawn Serv. Ctr., 120 A.2d

233, 234 (N.J. 1956) (“However, a confession of error relating to the jurisdiction

of the subject matter is not binding on this court.”) State v. Martinez, 979 P.2d

718, 726 (N.M. 1999) (“[A]ppellate courts in New Mexico are not bound by the

Attorney General’s concession of an issue in a criminal appeal.”); People v.
                                        27

Lewis, 260 N.E.2d 538, 540 (N.Y. 1970) (“Confessions of error are, of course,

entitled to and given great weight, but they do not ‘relieve this Court of the

performance of the judicial function.” (quoting Sibron, 392 U.S. at 58)); State v.

Stephens, 69 S.E. 11, 11-12 (N.C. 1910) (“The Attorney General . . . admits . . .

that the prisoner is entitled to a new trial.   While the opinion of the State’s

attorney has much weight with us, it is our practice to examine the record

carefully ourselves before setting aside a conviction for crime, and directing

another trial.”); Casey v. State, 440 P.2d 208, 209 (Okla. Crim. App. 1968)

(“When the Attorney General confesses error, this Court will carefully examine

the record for fundamental error.”); State v. Bea, 864 P.2d 854, 856 (Or. 1993)

(“We need not accept that concession concerning a legal conclusion, however,

and in this case decline to do so.”); State v. Ely, 48 S.W.3d 710, 716 n.3 (Tenn.

2001) (“Finally, despite the State’s concession of this issue, this Court is not

bound by such concession.”); Piland v. State, 453 S.W.3d 473, 476 (Tex. Ct.

App. 2014) (“A confession of error by the State is not conclusive when reviewing

an appeal, and, in the absence of reversible error, we are not to make our ruling

based on the State’s request to reverse.”); Bennett v. Commonwealth, 731

S.E.2d 40, 44 (Va. Ct. App. 2012) (“However, ‘[w]e have no obligation to accept

concessions of error, and, to be sure, we would never do so if the issue were a

pure question of law.’”); State v. Green, 9 P.2d 62, 62 (Wash. 1932) (“It therefore

seems necessary in a case like this, notwithstanding the respondent’s confession

of error, for us to determine whether in fact error was committed.”); State v.

McGill, 736 S.E.2d 85, 89 (W. Va. 2012) (“While the Court is under no obligation

to accept the State’s confession of error, our analysis which follows finds it to be
                                        28

appropriate in this case.”); State v. Gomaz, 414 N.W.2d 626, 629 (Wis. 1987)

(“As such, the State’s retraction of its position as to whether the defendant was

entitled to an instruction on imperfect self-defense is a concession regarding a

question of law which this court is not bound to accept.”). The majority opinion

stands alone in reaching a contrary conclusion.

                                        III.

      I disagree with the decision to limit the district court’s sentencing authority

by remanding this matter with instruction to impose a specific sentence. No legal

authority compels this result. The parties cannot compel this result. I dissent.
