                    IN THE COURT OF APPEALS OF IOWA

                                 No. 15-0451
                             Filed June 15, 2016


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

ANTHONY ANGEL ZARATE,
     Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Black Hawk County, Todd A. Geer,

Judge.



      Anthony Zarate challenges the sentence imposed following a resentencing

hearing, contending the court did not apply all the proper sentencing factors

enunciated concerning youthful offenders. SENTENCE VACATED AND CASE

REMANDED.



      Michael B. Oliver of Oliver Gravett Law Firm, P.C., Windsor Heights, for

appellant.

      Thomas J. Miller, Attorney General, and Linda J. Hines, Assistant Attorney

General, for appellee.



      Considered by Danilson, C.J., and Mullins and McDonald, JJ.
                                         2


DANILSON, Chief Judge.

       Anthony Zarate challenges the sentence imposed following a resentencing

hearing, contending the court did not properly apply the principles recently

enunciated concerning youthful offenders.      Because the district court did not

consider all the relevant factors, it failed to properly exercise its discretion. We

therefore vacate his sentence and remand for further proceedings.

I. Background Facts and Proceedings.

       In 2011, Anthony Zarate was convicted of five counts of first-degree

robbery for offenses committed when he was seventeen years old.             He was

sentenced to concurrent terms not to exceed twenty-five years with a seventy

percent mandatory minimum. All but one of those convictions was set aside on

appeal. See State v. Zarate, No. 11-0530, 2012 WL 652449, at *11 (Iowa Ct.

App. Feb. 29, 2012).

       Zarate was serving a twenty-five-year sentence when, in January 2015, he

filed a motion to be resentenced under State v. Lyle, 854 N.W.2d 378 (Iowa

2014).1 An updated presentence investigation report (PSI) was prepared, and a

hearing was held on Zarate’s motion. At the resentencing hearing, the district

court judge discussed several factors in deciding an appropriate sentence for

Zarate, including the nature of the offense, the defendant’s age at the time of the

offense, the manner in which the offense was committed, and the prospects of

rehabilitation.   The court reaffirmed the twenty-five-year sentence with a


1
  In Lyle, 854 N.W.2d at 403, the Iowa Supreme Court found that all mandatory minimum
sentences imposed upon juveniles without consideration of individualized sentencing
factors were unconstitutional and required the case to be remanded for a resentencing
hearing.
                                         3


mandatory minimum previously imposed. Zarate now appeals, contending the

district court “failed to fully address all of the relevant factors and neglected

important considerations regarding Zarate’s age and circumstances at the time of

the offense.”

II. Scope and Standard of Review.

       Where the claim raised by an appellant is that the district court failed to

consider any of the required factors or considered any of the required mitigating

factors to be aggravating, then the sentence imposed has been the product of a

defective sentencing proceeding, which is unconstitutional. See State v. Lyle,

854 N.W.2d 378, 402-04 (Iowa 2014); see also State v. Seats, 865 N.W.2d 545,

553 (Iowa 2015) (stating “we have begun to decide cases involving constitutional

attacks on the validity of a sentence” and “[w]hen a defendant attacks the

constitutionality of a sentence, our review is de novo”).

       However, where the appellant attacks the legality of the sentence on

nonconstitutional grounds, our review is for errors at law. Seats, 865 N.W.2d at

553. If the claim is that the district court has imposed a sentence within the

statutory limits and considered all the required factors but the appellant

challenges with the sentence imposed nonetheless, then our review is for an

abuse of discretion. See id. at 552-53 (noting “a district court did not abuse its

discretion if the evidence supports the sentence”).

III. Discussion.

       A flurry of sentencing cases have been handed down in the last few years

by the United States Supreme Court and our supreme court. A summary of

these cases alleging cruel and unusual sentences has been well documented in
                                                 4

our case of State v. Tuecke, No. 15-0617, 2016 WL 1681524, at *3-8 (Iowa Ct.

App. Apr. 27, 2016). We need not repeat it here.

         The posture of this case requires us to review a resentencing decision to

determine if, after an individualized sentencing hearing, the court properly

applied the Miller factors.2 Zarate was a juvenile when he committed his crimes

and was granted such a hearing. Ultimately, the district court again imposed a

mandatory-minimum seventy percent for the offense of first-degree robbery.

         Recent precedent requires that a juvenile offender be given individualized

sentencing consideration. See State v. Null, 836 N.W.2d 41, 52-56 (Iowa 2013)

(providing an overview of juveniles, legal responsibility, and diminished

culpability). An individualized sentencing hearing requires the court to consider

several factors:

         (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 . . . 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.”

State v. Ragland, 836 N.W.2d 107, 115 n.6 (Iowa 2013).

         Additionally, our supreme court has stated that the purpose of an

individualized sentencing hearing is for the court to “undertake an analysis of

‘everything the United States Supreme Court said in Roper and Graham’ about

youth.” Null, 836 N.W.2d at 74 (citation omitted). The trial court “must recognize

2
    Miller v. Alabama, 132 S. Ct. 2455 (2012).
                                           5


that because children are constitutionally different from adults, they ordinarily

cannot be held to the same standard of culpability as adults in criminal

sentencing.” Id. The court must also recognize that “juveniles are more capable

of change than are adults and that as a result, their actions are less likely to be

evidence of irretrievably depraved character.” Id. at 75. “At the same time, it

bears emphasis that while youth is a mitigating factor in sentencing, it is not an

excuse.” Id.

       More recently, in Seats, the court explained further:

                In sentencing the juvenile offender, the court must take into
       account any information in the record regarding “the family and
       home environment that surrounds him—and from which he cannot
       usually extricate himself—no matter how brutal or dysfunctional.”
       In examining the “family and home environment,” the judge shall
       consider any information regarding childhood abuse, parental
       neglect, personal and family drug or alcohol abuse, prior exposure
       to violence, lack of parental supervision, lack of an adequate
       education, and the juvenile’s susceptibility to psychological or
       emotional damage. The sentencing judge should consider these
       family and home environment vulnerabilities together with the
       juvenile’s lack of maturity, underdeveloped sense of responsibility,
       and vulnerability to peer pressure as mitigating, not aggravating,
       factors.
                ....
                Finally, the sentencing judge must take into consideration
       that “[j]uveniles are more capable of change than are adults” and
       that as a result, “their actions are less likely to be evidence of
       ‘irretrievably depraved character.’” . . . It is very difficult for a judge
       to distinguish between “‘the juvenile offender whose crime reflects
       unfortunate yet transient immaturity, and the rare juvenile offender
       whose crime reflects irreparable corruption.’”

865 N.W.2d at 556 (citations omitted).

       In addition, we are guided by the recent decision of Lyle, 854 N.W.2d at

402.   There our supreme court noted that judges are not prohibited from

sentencing juveniles to prison for the length of time identified by the legislature
                                         6


for the crime committed, and the legislature is not prohibited from imposing a

minimum time that youthful offenders must serve in prison before being eligible

for parole. Lyle, 854 N.W.2d at 402. But, the sentencing court is to “consider all

the circumstances of each case to craft an appropriate sentence and give each

juvenile the individual sentencing attention they deserve and our constitution

demands.” Id. The relevant sentencing factors were summarized:

                Under article I, section 17 of the Iowa Constitution, the
       portion of the statutory sentencing schema requiring a juvenile to
       serve seventy percent of the period of incarceration before parole
       eligibility may not be imposed without a prior determination by the
       district court that the minimum period of incarceration without
       parole is warranted under the factors identified in Miller and further
       explained in Null.

Id. at 404 n.10 (citations omitted) (emphasis added).

       The sole issue in this case is whether the district court properly applied the

factors enumerated in Lyle when it reaffirmed Zarate’s sentence.

       But then in the case of State v. Sweet, ___ N.W.2d ___, ___ , 2016 WL

3023726, at *29 (Iowa 2016), the supreme court adopted a categorical rule that

juvenile offenders may not be sentenced to life without the possibility of parole

under article 1, section 17 of the Iowa Constitution. In reaching this conclusion,

the supreme court decimated the use of the Miller factors, describing one factor

as “not . . . very helpful,” Sweet, 2016 WL 3023726 at *27, and another factor

“fraught with risks.” Id., 2016 WL 3023726 at *28. Ultimately, the court stated

the Miller factors cannot be applied in any principled way—at least as it pertains

to whether parole eligibility should be granted for a juvenile defendant facing a

life sentence.
                                        7

      Unfortunately, the principles in Lyle, requiring the application of the Miller

factors to determine if a mandatory-minimum sentence should be imposed upon

a juvenile offender serving or required to serve a term of years, were not

overruled in Sweet. Therein lies our dilemma. Do we follow the principles of

Lyle, or conclude the principles of Lyle have been completely eroded by the

decision in Sweet?

      We conclude the resolution of this question has been best answered in

Agostini v. Felton, 521 U.S. 203 (1997). In Agostini, the United States Supreme

Court stated,

             We do not acknowledge, and we do not hold, that other
      courts should conclude our more recent cases have, by implication,
      overruled an earlier precedent. We reaffirm that “[i]f a precedent of
      this Court has direct application in a case, yet appears to rest on
      reasons rejected in some other line of decisions, the Court of
      Appeals should follow the case which directly controls, leaving to
      this Court the prerogative of overruling its own decisions.”


521 U.S. at 237 (alteration in original) (citing Rodriguez de Quijas v. Shearson,

490 U.S. 477, 484 (1989)).

      Our supreme court has said much the same in stating,

             Yet it is the prerogative of this court to determine the law,
      and we think that generally the trial courts are under a duty to follow
      it as expressed by the courts of last resort, as they understand it,
      even though they may disagree. If our previous holdings are to be
      overruled, we should ordinarily prefer to do it ourselves.

State v. Eichler, 83 N.W.2d 576, 578 (Iowa 1957).

      Because Lyle, as well as State v. Pearson, 863 N.W.2d 88, 95-97 (Iowa

2013), a similar case involving a juvenile offender facing a mandatory-minimum
                                          8


sentence, have not been overruled and directly control the issue before us, we

remain bound by the principles of Lyle.

       Upon our review of the circumstances in this case, we note the court

stated it considered the serious nature of the offense—first-degree robbery using

a weapon and placing “other individuals in fear and in great danger”—that while

Zarate was a young person, he was “definitely old enough to know better.” The

court also observed, “I remember your case very well, and looking at the manner

and severity of the crime . . . it was very severe and very clearly a serious first-

degree robbery, and you were a primary factor in the commission of that

offense.” The court considered further that “there was a great deal of planning

that was involved in orchestrating the crime,” which included accumulating guns.

The court also discussed the “prospects of rehabilitation,” giving Zarate credit for

taking the positive steps of obtaining his high school equivalency diploma and

completing programming offered to him but also noting “disciplinary events” that

had occurred while imprisoned. The district court let the original sentence stand.

       While the factors discussed are certainly pertinent to the sentencing

decision, there is no indication the district court specifically addressed several of

the concerns noted in Ragland, Seats, and Lyle. For example, the court makes

no mention of Zarate’s family and home environment, which included growing up

in an area of California rife with crime and gang activity; Zarate’s own gang

involvement that began at age eleven; the essential absence of his father, who

was an undocumented immigrant with substance abuse issues; his mother’s

attempts to move her children to different environments; and Zarate’s early onset

of substance abuse. See Seats, 865 N.W.2d at 556; Ragland, 836 N.W.2d at
                                        9


115 n.6. Nor does the district court discuss “all circumstances relating to youth

that may have played a role in the commission of the crime,” or “the challenges

for youthful offenders in navigating through the criminal process.”      Lyle, 854

N.W.2d at 404 n.10. A failure to contemplate these pertinent factors requires that

we vacate. See State v. Hildebrand, 280 N.W.2d 393, 396 (Iowa 1979) (stating

that where a court is required to exercise discretion, “[a]ny such determination

has long been recognized as requiring an actual exercise of judgment upon the

part of the court” and “[t]o do so necessitates a consideration by the court of the

facts and circumstances which are necessary to make a sound, fair, and just

determination” (citation omitted)). We therefore vacate Zarate’s sentence and

remand for further proceedings.

      SENTENCE VACATED AND CASE REMANDED.
