                    IN THE COURT OF APPEALS OF IOWA

                                  No. 15-0192
                              Filed March 9, 2016


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

JAMAR RONOD WISE,
     Defendant-Appellant.
________________________________________________________________

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

Judge.



       A defendant convicted of first-degree robbery as a juvenile challenges the

district court’s decision to reimpose the mandatory minimum sentence.

SENTENCE VACATED AND REMANDED FOR RESENTENCING.



       Mark C. Smith, State Appellate Defender, for appellant.

       Thomas J. Miller, Attorney General, and Kevin Cmelik and Kelli Huser,

Assistant Attorneys General, for appellee.



       Considered by Potterfield, P.J., and Doyle and Tabor, JJ. Bower, J., takes

no part.
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TABOR, Judge.

       Jamar Wise was sixteen years old when he robbed a Waterloo motel clerk

at gunpoint on January 26, 2009. Wise pleaded guilty to first-degree robbery in

return for the State’s reduction of another pending robbery charge to first-degree

theft. Wise received indeterminate sentences of twenty-five and ten years, to be

served concurrently, with a mandatory minimum term of seventeen-and-one-half

years without parole on the robbery conviction. After our supreme court issued

State v. Lyle, 854 N.W.2d 378 (Iowa 2014), Wise sought resentencing on the

robbery conviction.      Following a hearing in January 2015, the district court

reissued the same sentence. Wise challenges the resentencing decision.

       Wise contends the district court impermissibly relied on an unproven

offense when it again imposed the mandatory minimum term. Specifically, the

court considered Wise’s plea bargain to avoid a second armed-robbery charge.

We agree Wise is entitled to another resentencing hearing.                Accordingly, we

vacate Wise’s sentence and remand with directions.

I.     Facts and Prior Proceedings

       On April 15, 2011, Wise entered Alford pleas1 to two offenses. The first

offense involved an armed hold-up by three suspects at a Waterloo Kwik Stop on

November 6, 2008. Investigators eventually connected Wise to the hold-up by

identifying his DNA on a baseball cap left behind at the convenience store. In a



1
 A defendant may “voluntarily, knowingly, and understandingly consent to the imposition
of a prison sentence even if he is unwilling or unable to admit his participation in the acts
constituting the crime.” North Carolina v. Alford, 400 U.S. 25, 37 (1970).
                                             3



trial information filed July 13, 2009, the State charged Wise with robbery in the

first degree in connection with the convenience store incident. The State later

amended the charge to theft in the first degree. The second offense involved an

armed hold-up by two suspects at the Motel 6 on Waterloo’s Logan Avenue on

January 26, 2009. The motel clerk was struck in the head with a handgun before

the assailants left with the cash. In another trial information filed July 13, 2009,

the State charged Wise with robbery in the first degree in connection with the

motel incident. Wise agreed to plead guilty to that forcible felony in return for the

State’s charging concession on the other crime.2                   The parties jointly

recommended concurrent sentences.

         On the same day, the district court imposed concurrent sentences of ten

years for the theft conviction and twenty-five years for the robbery conviction.

The robbery sentence carried a seventy-percent mandatory minimum term—the

equivalent of seventeen and one-half years.

         On September 25, 2014, Wise filed a motion to correct illegal sentence

based on our supreme court’s cruel-and-unusual-punishment holding in Lyle.

See Lyle, 854 N.W.2d at 402 (holding statutory sentencing scheme mandating

minimum terms of incarceration for juveniles violated article 1, section 17 of the

Iowa Constitution).      The district court set a hearing and ordered an updated

presentence investigation (PSI) report.

         At the January 5, 2015 hearing, the prosecutor asserted: “[T]his is a

resentencing on a robbery first degree, and under Lyle, the only question


2
    At the time of the plea and sentencing hearing, Wise had only completed tenth grade.
                                         4



available for the court is whether the mandatory minimums should apply.” The

prosecutor discussed Wise’s history of juvenile offenses, including charges of

robbery, burglary, and false imprisonment stemming from a home invasion on

December 8, 2008—an incident occurring between the convenience store hold-

up and the motel robbery.          During the home invasion, according to the

prosecutor, Wise “duct taped two girls together.”          Wise was adjudicated

delinquent for those offenses on March 16, 2009, and ordered to the state

training school. The State argued the mandatory minimum was “appropriate”

because Wise posed a “danger to the community”—in part because he used a

handgun in all three events. The State also noted the updated PSI showed Wise

had never been employed, had prior alcohol and drug issues, and had eight

disciplinary reports while in prison.

       Defense counsel called Wise’s aunt and uncle to testify that he had the

support of family and church members if he should be paroled. In chronicling

Wise’s family dynamics, the PSI reported Wise “did not have any father figure in

his life.” His father was killed in an accident before Wise was born. Wise’s

mother had serious problems with substance abuse, resulting in Wise being

raised by his grandmother from age ten. Wise’s uncle addressed the efforts of

his seventy-seven-year-old mother, who attended the resentencing hearing,

stating: “Once she found out [Jamar] was getting in trouble, she sacrificed a lot of

things for him to make him a better person.” Wise’s uncle also testified he

advised Wise not to accept the State’s plea offer.
                                         5



       Defense counsel acknowledged Wise had experienced disciplinary

problems in the “pressure cooker” of being incarcerated, but pointed out Wise

had earned his GED and was employed in the prison bakery. Wise personally

addressed the court, admitting his behavior in prison was “not the best,” but he

asked for a chance to “get [his] life back on track.” The PSI included Wise’s

written version of the robbery offense: “Young. Not knowing what the outcome

would be. I didn’t think. Hanging around the wrong crowd and drugs.” Defense

counsel asked the court to lift the mandatory minimum so Wise could have the

opportunity to get out of prison before his mid-thirties, get back to school, start a

career, and “still be a productive member of the community.”

       In rejecting Wise’s request to jettison the mandatory minimum term, the

resentencing court employed the following reasoning:

       I’m sure you’re aware that the offenses that you committed with the
       home invasion and this robbery and also the first degree theft . . .
       [w]hich was originally another robbery case, those are all among
       the very most serious charges that an individual can commit. And
       I’m sure you’re aware, I hope you’ve thought about it anyway, that
       in committing those offenses, we have a human being, granted a
       young human being, committing extremely terrifying and violent
       offenses against fellow human beings. And we do consider the
       nature of the offenses you’ve committed, not only in this case, but
       also in your history.

The resentencing court continued to discuss Wise’s prior offenses:

              And another thing I take a look at when I consider risks to
       reoffend is whether they were all committed at the same time or
       whether there was time in between offenses and whether there was
       an offense pending when a new offense occurred, and you did
       have offenses pending against you when you committed the other
       two offenses, and that’s telling that someone may be out of control
       with very violent propensities, and we do have a need to protect the
       community.
                                          6



       The resentencing court then gave its own assessment of Wise’s plea deal:

               I also consider the extent to which you bargained for the
       sentence that you got, and you did, because you had two
       robberies, and you only ended up with one. And not only that, but
       [the original sentencing court] I assume pursuant to the agreement,
       ran the two concurrently with each other, at the same time, and
       potentially you were looking at two robberies being stacked one on
       top of another in light of the circumstances of the offenses. And I
       disagree with your uncle. I think you made a really good deal,
       because you were looking at a lot more time than you were
       ultimately sentenced to. And I look at the strength of those cases.
       Those cases obviously were—they were strong cases that the
       State was prepared to present against you.

The court mentioned Wise’s prison disciplinary sanctions, opining: “[Y]ou haven’t

been a model prisoner any means.” The court noted Wise’s family support and

opined he “didn’t have a real challenged background” when he committed the

offenses, telling him: “[Y]our upbringing wasn’t to blame. Choices that you were

making, people that you were hanging out with is partly to blame, and, also, you

are to blame.”    Before reimposing the original sentence, the court made a

passing reference to Wise’s age at the time he committed the offenses, noting

“that’s something that mitigates in your favor.”

       Wise filed a timely notice of appeal from the order overruling his motion to

correct an illegal sentence.

II.    Scope and Standards of Review

       Wise contends the sentencing proceedings should be reviewed for errors

at law. See Iowa R. App. P. 6.907. The State argues abuse of discretion is the

proper standard of review, citing State v. Formaro, 638 N.W.2d 720, 724 (Iowa

2002). We would introduce a third possibility into the mix: when a defendant is
                                          7



attacking a sentence on constitutional grounds, our review is de novo. See State

v. Seats, 865 N.W.2d 545, 553 (Iowa 2015).

       In the district court, Wise challenged the constitutionality of his mandatory

minimum sentence under Lyle.          But on appeal, he shifts his attention to

impermissible sentencing factors considered by the district court en route to

reimposing the constitutionally suspect sentence. Given the hybrid procedural

posture presented by Wise on appeal, we opt to review for errors at law. See

State v. Grandberry, 619 N.W.2d 399, 401 (Iowa 2000).

III.   Analysis

       On appeal, Wise notes the resentencing court recognized that his young

age at the time of the offense “mitigated in his favor” but still declined to lift the

seventeen-and-one-half-year mandatory minimum term of incarceration without

parole.   In considering whether the mandatory minimum was constitutionally

warranted, the district court was charged with considering, at a minimum, the

following five mitigating factors:

       (1) the age of the offender and the features of youthful behavior,
       such as “immaturity, impetuosity, and failure to appreciate risks and
       consequences”; (2) the particular “family and home environment”
       that surround the youth; (3) the circumstances of the particular
       crime and all circumstances relating to youth that may have played
       a role in the commission of the crime; (4) the challenges for
       youthful offenders in navigating through the criminal process; and
       (5) the possibility of rehabilitation and the capacity for change.

Lyle, 854 N.W.2d at 404 n.10 (citing Alabama v. Miller, 132 S. Ct. 2455, 2468

(2012) and State v. Null, 836 N.W.2d 41, 74–75 (Iowa 2013)). The January 2015

record does not reveal a detailed discussion of these mitigating factors of youth.

Our appellate courts have remanded for resentencing when the district court has
                                          8



failed to apply any of these factors in mitigation of the mandatory punishment.

See, e.g., State v. Pearson, 836 N.W.2d 88, 97 (Iowa 2013) (faulting district court

for focusing on protection of society rather than rehabilitation of youthful

defendant); State v. Davis, No. 14-2156, 2016 WL 146528, at *4 (Iowa Ct. App.

Jan. 13, 2016) (holding district court failed to explicitly consider several mitigating

factors); State v. Hajtic, No. 15-0404, 2015 WL 6508691, at *2-3 (Iowa Ct. App.

Oct. 28, 2015) (observing district court considered circumstances of crime as an

aggravating rather than mitigating factor).

       But Wise does not advance an argument concerning the Miller/Lyle factors

on appeal. Instead, he raises a more generalized complaint—that the district

court relied on an improper factor at the resentencing hearing. Wise points to

case law prohibiting a sentencing court from considering an unproven or

unprosecuted offense.      See State v. Gonzalez, 582 N.W.2d 515, 516 (Iowa

1998). In support of his argument, Wise flags three references in the district

court’s statement of reasons for reimposing the mandatory minimum. First, the

court told Wise: “[Y]ou did have offenses pending against you when you

committed the other two offenses.” Second, the court stated: “I consider the

extent to which you bargained for the sentence you got, and you did, because

you had two robberies, and you only ended up with one.” Third, the court added:

“I look at the strength of those cases. Those cases obviously were—they were

strong cases that the State was prepared to present against you.” Wise argues it

was improper for the court to consider the robbery charge, which the State
                                           9



amended to first-degree theft, because “there is neither an admission nor facts

before the court showing Wise’s commission” of the convenience store robbery.

       The State suggests the first disputed reference was to Wise’s juvenile

delinquency offenses adjudicated in March 2009 and listed in the PSI. The State

asserts: “Wise’s criminal history was a proper consideration for the district court.”

That assertion would be true in an original sentencing hearing. But here the

resentencing court’s only role was to decide if the mitigating factors of youth

justified removing the mandatory minimum term. See Lyle, 854 N.W.2d at 403

n.8 (“Clearly, these are all mitigating factors, and they cannot be used to justify a

harsher sentence.”). The court’s consideration of pending or prior adjudications

to justify a harsher sentence was error.

       In defense of the court’s consideration of the robbery charge connected to

the convenience store, the State cites State v. Thompson, 275 N.W.2d 370, 372

(Iowa 1979), for the proposition:

              A sentencing court may, within statutory limits, impose a
       severe sentence for a lower crime on the ground that the accused
       actually committed a higher crime on the occasion involved if the
       facts before the court show the accused committed the higher
       crime or the defendant admits it . . . . This is part of making the
       punishment fit the crime.” The State then pulls facts from the
       minutes of testimony in the convenience store case to justify the
       resentencing court’s reliance on the second robbery charge.

       The State’s argument fails for two reasons. First, “[i]nformation contained

in the minutes of testimony is not a permissible sentencing consideration if

unproven.” See State v. Lovell, 857 N.W.2d 241, 243 (Iowa 2014). Second, the

question before the resentencing court was not strictly whether the punishment fit

the crime, but whether the mandatory minimum term of punishment was cruel
                                           10



and unusual when applied to a defendant who was sixteen years old when he

committed the crime. See Lyle, 854 N.W.2d at 404 n.10 (“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.”).

       Wise is correct that the district court relied on improper factors at the

resentencing hearing. We are compelled to vacate Wise’s sentence and remand

this matter for resentencing before a different judge, who must follow the explicit

and detailed resentencing procedures outlined in Lyle.

       SENTENCE VACATED AND REMANDED FOR RESENTENCING.
