               IN THE SUPREME COURT OF IOWA
                               No. 11–1228

                         Filed February 14, 2014


STATE OF IOWA,

      Appellee,

vs.

ANTHONY ALLEN HOECK,

      Appellant.


      On review from the Iowa Court of Appeals.



      Appeal from the Iowa District Court for Scott County, Gary D.

McKenrick, Judge.



      An applicant seeks further review of a court of appeals decision

affirming the constitutionality of the applicant’s sentence of life in prison

with immediate parole eligibility. DECISION OF COURT OF APPEALS

AND    JUDGMENT        OF   DISTRICT      COURT      IS   CONDITIONALLY

AFFIRMED; CASE REMANDED WITH DIRECTIONS.



      Mark C. Smith, State Appellate Defender, and Robert P. Ranschau,

Assistant Appellate Defender, for appellant.

      Anthony A. Hoeck, Fort Madison, pro se.



      Thomas J. Miller, Attorney General, Richard J. Bennett Sr.,

Assistant Attorney General, Michael J. Walton, County Attorney, for
appellee.
                                           2

WIGGINS, Justice.

       We must decide the constitutionality of the applicant’s sentence on

his conviction for first-degree kidnapping. The applicant was a juvenile

at the time of the kidnapping.           He was originally sentenced to life in

prison without parole for the kidnapping. The jury also found him guilty

of murder in the second degree, robbery in the first degree, conspiracy,

possession of an offensive weapon, and criminal gang participation. The

court imposed consecutive sentences on these convictions.                           The

combined sentences on these charges amounted to a possible total of
ninety-five years in prison.

       In 2011, after the United States Supreme Court decided Graham v.

Florida, 560 U.S. 48, 130 S. Ct. 2011, 176 L. Ed. 2d 825 (2010), the

applicant filed a motion to correct an illegal sentence on the kidnapping

conviction.      The applicant only raised the constitutionality of his

sentence under the Eighth Amendment to the United States Constitution

in his motion.1 He claimed the sentence was illegal under the Federal

Constitution because the sentence imposed life in prison without the

possibility of parole.      Finding the sentence illegal under the Federal

Constitution, the district court corrected the applicant’s sentence on the

kidnapping conviction to life in prison with immediate parole eligibility.

On    appeal,    the    applicant     continues     to   claim     his   sentence     is

unconstitutional under the United States Constitution. For the first time




       1In  his motion, the applicant cited Veal v. State, 779 N.W.2d 63 (Iowa 2010), and
State v. Bruegger, 773 N.W.2d 862 (Iowa 2009), for the proposition that an illegal
sentence could be raised at any time. He did not cite Veal or Bruegger for the
proposition that a sentence of life in prison without the possibility of parole for a
juvenile violated the Iowa Constitution. The Eighth Amendment states, “Excessive bail
shall not be required, nor excessive fines imposed, nor cruel and unusual punishments
inflicted.” U.S. Const. amend. VIII.
                                      3

on appeal, however, he also claims his sentence is unconstitutional

under the Iowa Constitution.

      In his pro se supplemental brief filed in his appeal, the applicant

raised several additional issues. These include the district court’s failure

to have him present at the sentence correction hearing, its failure to

articulate reasons for imposing consecutive sentences at the original

sentencing, and its failure to advise the applicant of his right of

allocution at the original sentencing.

      We transferred his appeal to the court of appeals.      The court of
appeals affirmed the applicant’s conviction and sentence as corrected.

On further review, we find the applicant’s sentence is constitutional

under the Federal Constitution because he is immediately eligible for

parole. We do not reach the applicant’s claim that his sentence is illegal

under the Iowa Constitution. Instead, if the applicant timely amends his

application to correct an illegal sentence under the Iowa Constitution, we

remand this case to the district court to decide the claims he made under

our state constitution. We will let the court of appeals decision stand as

our final decision as to all other issues raised by the applicant.

Therefore, we conditionally affirm the decision of the court of appeals and

the judgment of the district court.

      I. Background Facts and Proceedings.

      On May 13, 1994, a jury convicted Anthony Hoeck of kidnapping

in the first degree, among other charges. For the kidnapping in the first-

degree conviction, the district court sentenced Hoeck to life in prison

without the possibility of parole. The district court also sentenced Hoeck

to a combined possible ninety-five years under the other counts.
      Hoeck appealed his original convictions. See State v. Hoeck, 547

N.W.2d 852, 855 (Iowa Ct. App. 1996). In that appeal, he challenged the
                                     4

district court’s decision to overrule his motion for change of venue, the

admission of evidence at trial, and the sufficiency of the evidence. Id. at

856.   Hoeck also raised an ineffective-assistance-of-counsel claim.     Id.

The court of appeals affirmed his convictions.     Id. at 863. Nine years

later, he filed an application for postconviction relief, which the court of

appeals determined was untimely.         Hoeck v. State, No. 09–0830, 791

N.W.2d 710, at *2 (Iowa Ct. App. Nov. 10, 2010) (unpublished opinion).

       His present appeal involves a motion to correct an illegal sentence

filed on May 24, 2011.    Hoeck alleged in his motion that pursuant to
Graham, his sentence of life in prison without parole for the kidnapping

charge was unconstitutional.     The district court granted the motion,

correcting the sentence for the kidnapping conviction to life in prison

with immediate parole eligibility. Hoeck was not present for the sentence

correction hearing. Thereafter, Hoeck filed a pro se motion asking the

court to vacate its order and resentence him with him present. The court

denied this motion.

       Hoeck filed a notice of appeal.         Hoeck also filed a pro se

supplemental brief. We transferred the case to the court of appeals. The

court of appeals affirmed the district court’s ruling. It held the corrected

sentence for kidnapping did not violate the United States Constitution. It

also held the district court was not required to vacate all of Hoeck’s

sentences on the nonkidnapping convictions when it corrected Hoeck’s

sentence on the kidnapping conviction. Rather, the district court could

sever the illegal sentence from the other legal sentences and correct only

the illegal sentence. Furthermore, the court of appeals held Hoeck did

not have to be present to correct an illegal sentence so long as the
disposition would not be aided by Hoeck’s presence and the modification

does not make the sentence more onerous. Finally, the court of appeals
                                     5

held the other issues raised by Hoeck were not preserved; thus, they

were not properly before the court. Hoeck filed for further review, which

we granted.

      II. Issues.

      When we accept a case on further review, “we have the discretion

to review all or some of the issues” the parties raised on appeal and in

the application for further review. State v. Clay, 824 N.W.2d 488, 494

(Iowa 2012).      We exercise our discretion to review only Hoeck’s

substantive claim that his sentence of life in prison with immediate
parole eligibility is categorically unconstitutional under the Federal

Constitution.    For the reasons stated later in this opinion, we will not

reach Hoeck’s claims that his sentence is unconstitutional under the

Iowa Constitution. We choose not to address the other issues raised by

Hoeck in this appeal and will allow the court of appeals decision on those

issues to stand as our final decision. See id. (recognizing the court of

appeals decision is our final decision on issues we choose not to review).

      III. Standard of Review.

      We normally review claims a sentence is illegal for correction of

errors at law.    State v. Davis, 544 N.W.2d 453, 455 (Iowa 1996).       A

defendant may challenge an illegal sentence at any time.          State v.

Pearson, 836 N.W.2d 88, 94 (Iowa 2013). A defendant’s claim a sentence

is unconstitutional because it is cruel and unusual punishment is a

claim the sentence is illegal. Bonilla v. State, 791 N.W.2d 697, 699 (Iowa

2010).   We review de novo a constitutional challenge to an illegal

sentence. Pearson, 836 N.W.2d at 94.

      IV. Analysis.
      A. Whether Hoeck’s Corrected Sentence Categorically Violates

the Eighth Amendment of the United States Constitution.                The
                                          6

Supreme Court has interpreted the Eighth Amendment of the United

States Constitution as it relates to juvenile sentencing in a trilogy of

cases.     First, in Roper v. Simmons, the Supreme Court recognized a

categorical rule prohibiting courts from imposing the death penalty

against persons who committed their crimes while under the age of

eighteen. 543 U.S. 551, 578, 125 S. Ct. 1183, 1200, 161 L. Ed. 2d 1, 28

(2005).     In the second case, Graham, the Supreme Court determined

courts could not impose life in prison without parole for a juvenile who

did not commit a homicide offense. 560 U.S. at 75, 130 S. Ct. at 2030,
176 L. Ed. 2d at 845–46.          Finally, in Miller v. Alabama, the Supreme

Court stated life in prison without parole was not appropriate for a

juvenile who committed a homicide offense unless the juvenile received

an individualized sentencing hearing to consider the characteristics of

the juvenile and the nature of the crime. 567 U.S. ___, ___, 132 S. Ct.

2455, 2468–69, 183 L. Ed. 2d 407, 422–24 (2012).

         Hoeck’s corrected sentence is factually dissimilar from these cases.

Hoeck did not receive the death penalty; therefore, Roper is inapplicable.

Hoeck did not receive life without parole for a homicide offense; therefore,

Miller is inapplicable.2

         Hoeck’s original sentence on the kidnapping was factually similar

to Graham. Hoeck’s original sentence was a sentence of life in prison

without parole for a nonhomicide                offense.      This sentence was

categorically unconstitutional under Graham. See Graham, 560 U.S. at

74, 130 S. Ct. at 2030, 176 L. Ed. 2d at 845 (holding the Eighth

Amendment prohibits a sentence of life in prison without parole for a


         2Hoeck was convicted of murder in the second degree; however, he received a
term not to exceed fifty years for this crime. He does not challenge this sentence, and
even if he did challenge this sentence, it does not fit under the facts of Miller.
                                      7

juvenile who commits a nonhomicide offense).            The district court

recognized the unconstitutionality of Hoeck’s original sentence under

Graham. The district court corrected Hoeck’s unconstitutional sentence

by sentencing Hoeck to life in prison with immediate parole eligibility.

This made his corrected sentence constitutional under Graham for at

least two reasons.

       First, the corrected sentence is factually dissimilar from the

sentence in Graham.         Whereas the court in Graham sentenced the

defendant to life in prison without parole, id. at 57, 130 S. Ct. at 2020,
176 L. Ed. 2d at 834, Hoeck received life in prison with immediate parole

eligibility.    Second, the Graham rationale is inapplicable to Hoeck’s

corrected sentence. In Graham, the Supreme Court was concerned with

the ability of a juvenile to have a meaningful opportunity to obtain

release from jail if the juvenile demonstrated rehabilitation and maturity.

Id. at 75, 130 S. Ct. at 2030, 176 L. Ed. 2d at 845. Here, Hoeck has

immediate parole eligibility and has an immediate opportunity to obtain

release under the holding in Graham.

       Striking parole ineligibility to convert an unconstitutional sentence

to a constitutional one is an appropriate remedy. Bonilla, 791 N.W.2d at

701–02.        In Bonilla, we recognized that Graham did not specifically

explain how the states should adjust the sentences of juveniles convicted

of a nonhomicide crime and sentenced to life in prison without parole.

Id. at 701. Instead, the Supreme Court left it to the states to decide the

proper way for a state to comply with Graham. Id. We determined that

under our statutory scheme, it was appropriate to sever the invalid

portion of a sentence without disturbing the remainder of the sentence.
Id. at 702. For a juvenile previously sentenced to life in prison without

parole for a nonhomicide crime, the appropriate remedy under Graham
                                      8

was to sever the parole ineligibility from the juvenile’s sentence and

sentence the juvenile to life in prison with the possibility of parole. Id. at

703.    The district court correctly followed Bonilla when it corrected

Hoeck’s sentence.

       Therefore, we find Hoeck’s sentence as corrected by the district

court is constitutional under the Federal Constitution because he is now

eligible for immediate parole.

       B. Whether Hoeck’s Corrected Sentence Violates Article I,

Section 17 of the Iowa Constitution. On appeal, Hoeck raises claims
under the Iowa Constitution for the first time.          We acknowledge a

defendant can raise the claim that his or her sentence is an illegal

sentence at any time, even on a collateral attack.        Veal v. State, 779

N.W.2d 63, 65 (Iowa 2010). However, our reading of the briefs leaves us

with more questions than answers as to the specific claims Hoeck is

raising under the Iowa Constitution. Additionally, we are not convinced

the claims are fully briefed or the factual issues necessary to decide the

Iowa constitutional claims are developed. Consequently, it would be a

disservice to Hoeck, the State, and our system of justice to decide these

claims without a thorough vetting of the claims in the district court. As

one scholar noted:

              Another option is for a court to spot an issue that has
       not been briefed and, if the issue looks decisive, remand it
       for resolution in the first instance by the lower court. This is
       the most procedurally conservative approach to addressing a
       new issue and is the only one fully consistent with the usual
       rule that issues not raised below will not be considered on
       appeal. Remand protects the role of the district court, which
       may have useful light to shed on the issue.

Barry A. Miller, Sua Sponte Appellate Rulings: When Courts Deprive
Litigants of an Opportunity to Be Heard, 39 San Diego L. Rev. 1253, 1300

(2002) (footnotes omitted).
                                         9

      Accordingly, we will not reach Hoeck’s challenges to his corrected

sentence under the Iowa Constitution on this record. Therefore, we will

affirm his corrected sentence as not being an illegal sentence under the

United States Constitution.         However, we will remand this case to the

district court to allow Hoeck and the State to fully develop and argue

Hoeck’s claims under the Iowa Constitution if he desires to do so. See In

re R.E.K.F., 698 N.W.2d 147, 150–51 (Iowa 2005) (affirming a case

conditionally on the issues tried below, but remanding the case for

further proceedings under the Iowa Indian Child Welfare Act); State v.
Powell, 684 N.W.2d 235, 242 (Iowa 2004) (affirming a case conditionally

and remanding it to the district court to develop a factual record and to

determine if an actual conflict exists); In re Prop. Seized from Brown, 501

N.W.2d 472, 473 (Iowa 1993) (affirming on one issue and remanding it to

the district court to develop a factual record on whether the appellant’s

possession of the device is legal).

      V. Conclusion and Disposition.

      We find the district court’s sentence of life in prison with

immediate    parole   eligibility    does    not    violate    the    United    States

Constitution’s   categorical    prohibition        against    cruel   and      unusual

punishment. We do not reach Hoeck’s claim that his sentence is illegal

under the Iowa Constitution. If, within ninety days from the issuance of

procedendo, Hoeck amends his application to request correction of an

illegal sentence under the Iowa Constitution, we remand the case to the

district court for further proceedings on his state constitutional claims.

If he does not, the district court order will stand as the final judgment in

this case. If Hoeck does amend his application, the district court shall
hold further proceedings consistent with the amended application. We

will let the court of appeals decision stand as our final decision on all
                                     10

other issues raised by Hoeck. Accordingly, we affirm the decision of the

court of appeals and the judgment of the district court and affirm

Hoeck’s conviction and sentence. Finally, we do not retain jurisdiction.

We assess the costs against Hoeck.

      DECISION OF COURT OF APPEALS AND JUDGMENT OF

DISTRICT COURT IS CONDITIONALLY AFFIRMED; CASE REMANDED

WITH DIRECTIONS.

      All justices concur except Mansfield, Waterman, and Zager, JJ.,

who concur in part and dissent in part.
                                   11
                                                #11–1228, State v. Hoeck
MANSFIELD, Justice (concurring in part and dissenting in part).

      I agree that the sentence as corrected by the district court should

be affirmed. However, I would not make the affirmance conditional.

      Let’s recap what is before this court.       In 1994, Hoeck was

convicted of first-degree kidnapping, second-degree murder, first-degree

robbery, criminal gang participation, conspiracy, and a weapons offense

for his leading role in the brutal assault, abduction, and murder of a

seventeen-year-old girl.   See State v. Hoeck, 547 N.W.2d 852, 855–56

(Iowa Ct. App. 1996). Pursuant to Iowa law, Hoeck received a mandatory

life-without-parole sentence on the first-degree kidnapping conviction.

      Because Hoeck was seventeen years old when he committed these

crimes, he filed a postconviction relief proceeding to vacate his life-

without-parole sentence on the kidnapping charge after the United States

Supreme Court decided Graham v. Florida in 2010.          See Graham v.

Florida, 560 U.S. 48, 82, 130 S. Ct. 2011, 2034, 176 L. Ed. 2d 825, 845

(2010) (holding that a juvenile may not constitutionally be sentenced to

life without parole for a nonhomicide offense).       The district court,

applying our decision in Bonilla v. State, struck the “without parole”
portion of the kidnapping sentence and did not otherwise modify Hoeck’s

sentence.   See Bonilla v. State, 791 N.W.2d 697, 702 (Iowa 2010)

(deciding that the appropriate remedy in Iowa for correction of an life-

without-parole sentence in light of Graham was to eliminate the “without

parole” provision).

      As a result of the district court’s resentencing, Hoeck is now

currently eligible for parole.   No mandatory minimums apply to his

sentence.
                                    12

      Nevertheless, Hoeck appealed the district court’s ruling to this

court. On appeal, Hoeck argues that a juvenile offender cannot receive

even a life-with-parole sentence without consideration of individualized

factors relating to youth.   Hoeck raises this argument under both the

Federal and the Iowa Constitutions. Yet this argument clearly has no

traction under federal constitutional law, as the majority points out in

part IV(A) of its opinion.     Accordingly, Hoeck’s appellate argument

focuses on the Iowa Constitution.

      Hoeck develops this state constitutional argument in twenty pages
of his brief. See Appellant’s Br. at 31–51. The gist of Hoeck’s argument

is that a district court must be given discretion to consider the factors of

youth before sentencing a juvenile to life with parole, even if there is no

mandatory minimum.       “When defendant was originally sentenced the

district court was not given any discretion to consider any mitigating

factors that may have warranted a lesser sentence.”         Id. at 50.   In

Hoeck’s view, regardless of parole eligibility, a life sentence violates the

Iowa Constitution unless the district court can consider the youth factors

before determining whether to impose that sentence.

      This is a categorical argument. True, the defendant cites to State

v. Bruegger, 773 N.W.2d 862 (Iowa 2009), but he does not do so to raise

an as-applied disproportionality challenge.    Hoeck does not claim that

his existing sentence, under which he is presently eligible for parole for

the serious crimes he committed in 1993, is grossly disproportionate.

Rather, Hoeck cites Bruegger (1) to assert that we have applied the Iowa

Constitution more stringently than the United States Constitution, (2) for

the proposition that a challenge to an illegal sentence can be raised at
any time, and (3) for the principle that we will vacate and remand rather

than allow a sentence that is or may be illegal to stand. For the last of
                                           13

these three points, Hoeck also cites Veal v. State, 779 N.W.2d 63, 65

(Iowa 2010).3

       Thus, we have before us a straightforward question: Does the Iowa

Constitution categorically prohibit the general assembly from making a

life sentence the designated punishment for a heinous crime when that

crime is committed by a seventeen-year-old, even if there is no

mandatory minimum the defendant must serve before becoming eligible

for parole?

       I think the answer is clearly no. In my view, the general assembly,
expressing the will of the people of this state, may require juveniles who

commit first-degree kidnapping to serve life in prison, so long as parole is

available.     But more importantly, I think we ought to answer the

question. We owe it to the citizens of this state to clarify the limits and

scope of State v. Null and State v. Pearson when presented to us in a case

that meets our prior error preservation requirements. See State v. Null,

836 N.W.2d 41, 70–71, 77 (Iowa 2013) (applying the Iowa Constitution

and reversing a sentence that requires a juvenile to serve at least 52.5

years before being eligible for parole); State v. Pearson, 836 N.W.2d 88,

96, 98 (Iowa 2013) (applying the Iowa Constitution and reversing a

sentence that requires a juvenile to serve at least thirty-five years before

being eligible for parole).



       3We   transferred the case to the court of appeals, which rejected Hoeck’s
categorical argument without undertaking a separate analysis under the United States
and the Iowa Constitutions. The court of appeals also rejected Hoeck’s pro se appellate
arguments relating to other matters—correctly in my view. My colleagues would allow
the court of appeals’ decision to stand on these matters, and I concur in that approach.
        Hoeck’s further review application to our court reiterated that his life-with-
parole sentence violated both the United States and Iowa Constitutions because “the
district court was not given any discretion to consider any mitigating factors” related to
youth.
                                    14

      Other trial judges in our state have done the same thing that this

trial judge did: When a person comes before the court who received a

mandatory life-without-parole sentence for a crime committed as a

juvenile, they are resentencing the person to life with parole.     If this

procedure doesn’t meet state constitutional requirements, we ought to

tell them. Notably, the Massachusetts Supreme Judicial Court recently

had no difficulty in drawing lines for its trial judges under the

Massachusetts Constitution. See Diatchenko v. Dist. Att’y, 1 N.E.3d 270,

285–86, 466 Mass. 665, 672–73 (Mass. 2013). It went beyond Miller v.
Alabama, 567 U.S. ___, 132 S. Ct. 2455, 183 L. Ed. 2d 407 (2012), in

holding that even discretionary life without parole for a juvenile who

commits first-degree murder violated the Massachusetts Constitution.

Diatchenko, 1 N.E.3d at 284–85, 466 Mass. at 671. However, it held that

mandatory life with parole was a suitable remedy for both federal and

state constitutional claims. Id. at 285–86, 466 Mass. at 672–73.

      In this case, the State understood what Hoeck was claiming on

appeal. Its attorney opened his argument to us as follows:

      May it please the Court. It is the State’s position that the
      defendant’s life sentence for first degree kidnapping was
      corrected in the district court at the hearing in July of 2011.
      Applying Graham and Bonilla, he obtained what the Supreme
      Court—the U.S. Supreme Court says you have to have. In a
      non-homicide juvenile situation, you have to have a
      meaningful opportunity for release on parole. Miller, we
      submit, does not apply here, nor is there any basis similar to
      Null or Pearson to apply the Miller sentencing factors here
      because he indeed has a meaningful opportunity for parole
      ....

(Emphasis added.)

      But even assume for a moment that Hoeck’s position is unclear. I
do not think we get to both (1) affirm his sentence and (2) order the case

below to continue so Hoeck can keep challenging that same sentence.
                                     15

Our options are rather to affirm Hoeck’s sentence, reverse outright

because the sentence is invalid, or reverse and remand for further

proceedings because Hoeck has shown the sentence may be invalid. In

Veal, for example, we reversed the dismissal of the postconviction relief

proceeding and remanded for further proceedings. See Veal, 779 N.W.2d

at 65 (“[T]he judgment of the district court is reversed, and the matter

remanded to the district court for further proceedings.”).                The

requirement that we fish or cut bait on appeal by either affirming the

district court order in its entirety or reversing it at least in part, but not
doing both at once, is an important, historic limitation on our appellate

power.   It forces appellate courts to adhere to their proper role as

decisonmakers, instead of acting as generalized case supervisors.

      It is true that we have “conditionally affirmed” district court rulings

at times in the past. See, e.g., Frontier Leasing Corp. v. Links Eng’g, LLC,

781 N.W.2d 772, 776 (Iowa 2010); WSH Props., L.L.C. v. Daniels, 761

N.W.2d 45, 52 (Iowa 2008); In re R.E.K.F., 698 N.W.2d 147, 151 (Iowa

2005); State v. Powell, 684 N.W.2d 235, 241–42 (Iowa 2004).            Those

cases are all different from the present situation. In every one of those

cases, we rendered a decision on all issues before us, but we could not

determine the final outcome of the case without more information. So, to

minimize the possible need for a future appeal, we conditionally affirmed.

We made clear what additional information was needed below, and what

the alternative outcomes would be—i.e., an affirmance or something else

depending on what the information showed.

      In re R.E.K.F. is a good example of this. It was a termination of

parental rights proceeding. In re R.E.K.F., 698 N.W.2d at 148. We ruled
that the state had failed to give the required notice to the correct Indian

tribe. Id. at 150. However, rather than reversing the order terminating
                                     16

parental rights, we conditionally affirmed it, explaining that the

termination order would stand if the tribe failed to respond or determined

the child was not eligible for tribal membership. Id. at 151.

      Several things about In re R.E.K.F. should be noted. We decided

the entire appeal. Id. Unlike here, we did not leave a door open for new

arguments. Indeed, the very purpose of the conditional affirmance was

to close that door. Presumably, we ordered a conditional affirmance in In

re R.E.K.F. because of the time urgency associated with parental rights

cases. See id. That way, if it turned out the tribe had no interest in the
proceeding, the termination order could stand without further delay. Id.

(“If the Seneca Nation fails to respond within the appropriate timeframe

or replies and determines Ruby is not eligible for tribal membership, the

juvenile court’s original order of termination will stand.”).

      Here, by contrast, we are purporting to affirm the final judgment in

Hoeck’s postconviction relief proceeding while letting the case go back so

Hoeck can expand upon his challenges to his sentence.            The only

contingency is whether Hoeck will expand on what he previously filed,

something he will surely do. What happens next is totally undetermined,

except for the fact that the case will continue. This is really a reversal,

therefore.   Yet my colleagues are apparently reluctant to call it that,

perhaps because it just doesn’t sit right with them, and perhaps because

they would also have to say what Hoeck has raised that merits reversal.

      There is no reason to extend the heretofore limited concept of

“conditional affirmance.” We don’t have a child that needs permanency.

We aren’t saving ourselves another appeal. Hoeck won’t suffer prejudice

if we simply affirm because we have previously held that a challenge to
an illegal sentence is not subject to the three-year time bar.
                                      17

        I realize the normal practice is to require arguments to be raised

for the first time in the district court. There are good reasons for that

practice. But we changed that law with respect to illegal sentences, and

we now have a purely legal issue under the Iowa Constitution that has

been briefed to us, in far more detail than this court normally requires

for challenges under the Iowa Constitution. The district court is going to

wonder why we didn’t decide it.

        For the foregoing reasons, I concur in part and dissent in part.

        Waterman and Zager, JJ., join this concurrence in part, dissent in
part.
