              IN THE SUPREME COURT OF IOWA
                               No. 11–1214

                         Filed August 16, 2013


STATE OF IOWA,

      Appellee,

vs.

DESIRAE MONIQUE PEARSON,

      Appellant.


      On review from the Iowa Court of Appeals.



      Appeal from the Iowa District Court for Des Moines County,

Cynthia H. Danielson, Judge.



      A juvenile challenges her sentence as cruel and unusual under the

State and Federal Constitutions. DECISION OF COURT OF APPEALS

VACATED; DISTRICT COURT SENTENCE VACATED AND CASE

REMANDED.



      Mark C. Smith, State Appellate Defender, and N. Nan Jennisch

and David Arthur Adams, Assistant Appellate Defenders, for appellant.



      Thomas J. Miller, Attorney General, Elisabeth S. Reynoldson,

Assistant Attorney General, Patrick C. Jackson, County Attorney, and

Tyron T. Rogers, Assistant County Attorney, for appellee.
                                      2

APPEL, Justice.

      Seventeen-year-old Desirae Pearson was convicted by a jury of two

counts of first-degree robbery and two counts of first-degree burglary for

her actions at two separate homes on Thanksgiving night in 2010. The

district court sentenced her to serve concurrent sentences for the

convictions arising from each transaction—one count of first-degree

robbery and one count of first-degree burglary—but ordered those two

sentences be served consecutively.        Because each first-degree robbery

conviction carries a sentence of twenty-five years imprisonment subject
to a seventy percent mandatory minimum, Pearson received a fifty-year

sentence and will be ineligible for parole until she serves thirty-five years.

Pearson argues her sentence is cruel and unusual as applied to her

under the Eighth Amendment to the United States Constitution and

article I, section 17 of the Iowa Constitution. For the reasons expressed

below, we vacate Pearson’s sentence and remand the case to the district

court for further proceedings.

      I. Background Facts and Prior Proceedings.

      Pearson was born in August 1993. According to her presentence

investigation report, when she was six or seven years old, Pearson was

hit by a car and hospitalized for several days.         Though subsequent

neurological and psychiatric testing did not reveal any particularized

concerns, Pearson’s parents believed they saw changes in her behavior

following the accident, especially with regard to anger management.

      Prior to her arrest in the present matter, Pearson arguably had a

penchant for simple misdemeanor theft and engaging in physical

altercations.   In 2002, she entered into an informal adjustment
                                           3

agreement following an allegation of fifth-degree theft.1 In 2003, she was

alleged to have engaged in assault and fifth-degree theft, but her case

was held open for further review.              In 2004, she was alleged to have

engaged in an assault, but she was warned and her case was dismissed.

In 2006, she received a warning after allegedly engaging in disorderly

conduct. She also entered into a second informal adjustment agreement

following an allegation of fifth-degree theft. In 2007, she was adjudicated

delinquent for disorderly conduct following a fight with a fellow classmate

at school.      In 2008, she entered into her third informal adjustment
agreement following an allegation of assault. Finally, in 2009, she was

alleged to have engaged in disorderly conduct, again by fighting, but she

was warned and her case was dismissed. Importantly, though Pearson

has been the subject of frequent law enforcement intervention, prior to

her arrest in the present matter she had only been adjudicated

delinquent one time and had never been the subject of an adult criminal

proceeding.

       At the time of her arrest, Pearson lived with her parents, her two

sisters, and her two young nephews. She has two older brothers and two

older stepsiblings who lived outside the home. Her father’s police record

contained two convictions for operating while intoxicated. Her mother’s

record was clean. Pearson’s parents perceived her as one who “is angry

and fights,” but indicated she is a “smart girl” they would like to see

remain at home to finish high school and have a career.                      Pearson’s

parents perceived that Pearson has a discipline problem. They resorted

to grounding her as a method of punishment.

       1Under   Iowa Code section 714.2(5), theft of property not exceeding $200 in value
is fifth-degree theft. It is classified as a simple misdemeanor. Iowa Code § 714.2(5)
(2001).
                                      4

      Prior to her arrest, Pearson was in eleventh grade at the local

alternative high school. The presentence investigation report indicated

Pearson spent much of her free time “running around with her friends.”

She indicated that many of her friends were negative influences, and she

claimed they were a significant reason she got into trouble.       While

Pearson did not acknowledge having a drug problem, she admitted to

smoking marijuana daily as well as taking prescription drugs during the

year prior to her arrest. Though she does not believe she has an alcohol

problem, she admitted to consuming alcohol on the day of her arrest. A
predisposition report in a previous juvenile court matter indicated,

however, that in 2008 evaluators at the University of Iowa hospitals

diagnosed Pearson with mild to moderate child-onset conduct disorder,

alcohol abuse, cannabis abuse, mathematic disorder, and a reading

disorder.

      On November 25, 2010, Pearson and her boyfriend, Devon

Lukinich, armed themselves with BB guns that looked like handguns

and went on a robbery spree in Burlington and West Burlington. At the

time, Pearson was seventeen years and three months old. Lukinich was

also approximately seventeen years old.        Pearson and Lukinich wore

bandanas to conceal their faces and gloves to guard against leaving

fingerprints. Pearson also wore a parka with a fur-lined hood pulled over

her head.

      Around 9:15 p.m., Pearson and Lukinich were allegedly involved in

an altercation with a Burlington resident that led to a 911 call. Though

Pearson and Lukinich had fled the scene by the time police arrived, the

resident relayed information about Pearson’s vehicle to police, who then
put out the description of the vehicle to officers in the area.
                                           5

       Around 9:45 p.m., Pearson and Lukinich knocked on the door of

Zachary Moore. When Moore opened the door, Pearson pointed her BB

gun at Moore and told him that he was being robbed.                   Lukinich then

informed Moore that Pearson was not joking and that he would shoot

him if Pearson would not. Lukinich told Moore he was looking for the

“weed money” as well as two individuals. Moore testified he laid on the

floor while the pair took his laptop, television, iPod, a handheld

videogame game system, a small global positioning device (GPS), and

some cash.
       After reconnecting his landline telephone, which had been

disconnected by Pearson and Lukinich when they rummaged through his

apartment, Moore called the police. When police arrived, Moore found

his cell phone with the battery disconnected on his front step. Moore

testified he believed Lukinich was in control of the robbery because

Lukinich checked the other rooms of Moore’s home while Pearson sat on

the couch, was the one who unhooked the television, and was the only

one who spoke after they entered the apartment.

       Pearson and Lukinich returned home to unload their loot.2                   The

pair lived in the basement of a house owned by Lukinich’s mother’s

boyfriend. Pearson and Lukinich then went to a McDonald’s, where they

purchased strawberry milk shakes.

       Later that night, Pearson and Lukinich entered the home of Joan

Wright, an eighty-one-year-old woman, and her son, Ronald Wright. At

the time, Joan was in bed and Ronald was in the basement. Lukinich

climbed through a kitchen window and opened a door for Pearson.

       2Police  later recovered Moore’s iPod and laptop in the basement but as of the
time of the trial they had not recovered his television. No mention was made at trial as
to the recovery of the portable gaming system or the GPS.
                                         6

Pearson took cash out of a purse that was sitting on the kitchen table.

The pair also took three pill bottles containing prescription medication.

Lukinich then went into an unoccupied bedroom, while Pearson stood in

the hallway just outside the doorway. After hearing noises and seeing

the shadows of people she did not recognize, Joan got out of bed to

investigate. She saw Lukinich in her son’s bedroom, holding Ronald’s

two shotguns in their cases.       Lukinich told Joan to go back to her

bedroom, and Pearson told Joan to do as she was told. Lukinich and

Pearson then opened their jackets, revealing the BB guns. When Joan
yelled to her son that they were being robbed, Lukinich pushed her

backward into a doorframe. The force of the blow fractured her shoulder.

Lukinich decided to take one of Ronald’s shotguns, and the pair left the

home. Police responded to the Wrights’ home around 11:44 p.m.

        Just   moments    after   they       left   the   Wrights’    home,   police

apprehended Pearson and Lukinich in their car. At the time, Pearson

was driving. After securing warrants to search the vehicle, police found

pill bottles bearing the names of Joan and Ronald.                   They recovered

Ronald’s shotgun and cash matching the amount stolen from Moore and

Joan.     They also discovered two BB guns, BBs, two bandanas, a

stocking, and two pairs of gloves. When the officers first viewed the BB

guns in the trunk of the vehicle, the officers thought the weapons were

real handguns.     One of the BB guns bore a strong resemblance to a

Glock model 30 handgun and the other to a Taurus PT 1911 handgun.

        On May 4, 2011, a jury found Pearson guilty of first-degree robbery

and first-degree burglary for her actions at Moore’s house. The jury also
                                              7

found her guilty of first-degree robbery and first-degree burglary for her

actions at the Wrights’ house.3

         Roughly two weeks later, Pearson wrote a letter to the district court

in which she admitted the facts of each crime in substantially the same

way they were presented at trial. According to Pearson, she took some

pills, “chilled” at home for a while, and went to her family’s house. She

and Lukinich then shoplifted two stores before Lukinich suggested they

go to an elderly woman’s home, presumably for the purpose of

committing a theft. While they were hiding in the bushes outside the
woman’s home, Pearson wrote, Lukinich saw someone in Pearson’s car.

Pearson stated they yelled at the man and started shooting at his house.

They got into the car and, as they pulled away, a man came out of a

house with a gun. Lukinich leaned out the window and continued firing

shots.

         According to Pearson, Lukinich then suggested going to another

house where marijuana was located.                 Pearson indicated that Lukinich

told her to knock on the door, that she told the person who answered the

door (Moore) “to get down,” and that Lukinich stated he would shoot the

man if she would not.            Pearson admitted to taking cash and a laptop

while looking for marijuana. She stated Lukinich stole the television and

the iPod. She then admitted to dropping the stolen items off at home

before going to McDonald’s to get strawberry milk shakes.

         After driving around for some time, the pair stopped to check out

another house (the Wrights’).              Pearson wrote that Lukinich climbed

through a window and unlocked the door for her, that they took some

pills and cash from the kitchen, and that although she told Lukinich

         3The   jury found Lukinich guilty of the same crimes.
                                    8

they should leave, he started to look through another room.       Pearson

recounted how Joan confronted them, how Lukinich told Joan to go back

to bed, how she repeated Lukinich’s statement to Joan, and how

Lukinich showed Joan his weapon. Pearson stated she started to leave

before hearing stumbling and observed Lukinich behind her.        Pearson

then noted their car was stopped moments later by police.

      After expressing remorse for her actions, the victims, and her

family, Pearson admitted that she deserved punishment for her conduct,

but requested that she receive a lesser sentence than the maximum she
was facing. She wrote, “I always thought that going to prison could not

happen to me because I would never do anything serious enough for it to

happen.” Pearson continued, “I know now it can happen to anyone if you

don’t think before you act, if you are under the influence, and if you

think you won’t get caught.”

      In mid-July, Pearson wrote a second letter to the district court. In

this letter, Pearson stated she was “not the person who committed those

crimes” because at the time she “was influenced and on drugs.” Pearson

asked for “a second chance to live [her] life other than behind bars.” She

also expressed remorse for the victims and asked for “another

punishment instead of spending 25 years in prison.”

      Pearson and Lukinich appeared for sentencing on July 22. Ronald

Wright gave an impact statement in which he stated his mother spent

two months in rehab following surgery. He also expressed his opinion

that Pearson and Lukinich should receive at least half of their potential

total sentence.    A victim coordinator read Joan Wright’s impact

statement aloud. Joan’s statement informed the district court that her
injuries sustained during the robbery required the implantation of a

metal plate in her shoulder, secured by twenty to twenty-five screws and
                                            9

pins.4    Joan’s statement reiterated that she spent two months in the

hospital and a nursing home following surgery and indicated she still

experienced pain in her arm.               Joan stated that she suffered from

worsening vision problems because she missed an eye appointment

following her shoulder surgery, that she was still frightened to be left

alone at home, and that she missed taking flowers to her mother’s grave

on Christmas because she was in the nursing home.                            The victim

coordinator read a similar statement from Moore, who indicated that he

was still negatively affected by the events of the robbery and that he
believed Pearson and Lukinich should receive life sentences.

         The State asked the district court to order concurrent sentences

for Pearson for the robbery and burglary at Moore’s home and concurrent

sentences for the robbery and burglary at the Wrights’ home. The State

further requested that the sentences stemming from each transaction

run consecutively to result in a total of fifty years.

         Pearson’s attorney acknowledged the mandatory minimums and

argued Pearson should be sentenced to concurrent sentences totaling

twenty-five years. Pearson’s attorney cited the United States Supreme

Court’s statements that juveniles are less deserving of the most severe

punishments due to their lessened culpability and that juveniles “must

have some meaningful opportunity to obtain release based upon

demonstrated maturity and rehabilitation.”               Pearson’s attorney argued

that if Pearson was released on parole after serving 17.5 years, the

mandatory minimum of a twenty-five-year sentence, she would be more

likely to be able to contribute to society in a meaningful way than she


       4At trial, Joan’s surgeon testified that Joan would not regain full strength or full

mobility in her shoulder.
                                      10

could if released in her fifties. When the district court asked Pearson for

her statement, she replied that she did not have anything to say other

than what she included in her written statement to the court.

      In sentencing Pearson to fifty years, the district court found that

while her file reflected a troubled family life, a troubled history, the lack

of a support structure, and negative influences, these circumstances did

not justify her criminal actions.     The court considered Joan’s serious

injuries and the fact that the victims did not feel safe in their homes.

The court emphasized Pearson and Lukinich had “thrown their futures
away,” stating, “It’s a tragedy in terms of your futures. There is no doubt

that it’s a waste of your lives, but it’s the unalterable choice that you

have made.”

      The district court continued,

      I understand the argument that as young people you may
      not have had wisdom and the ability to distinguish what the
      result of your actions were going to be, but it doesn’t
      diminish in any way the results of your actions.

The district court then observed Pearson had prior experience with the

court system, stating, “[T]he court system has been trying for years to

provide Miss Pearson with the support, the education, the training, the
life skills necessary to turn her life around. She hasn’t done so.”

      The district court found Pearson had committed a series of bad

choices. The court recognized that Pearson was one month shy of her

eighteenth birthday at the time of sentencing and that her record

indicated five curfew violations as well as a number of other matters

processed by the juvenile court system. It further noted that she had

been expelled from the traditional school system in ninth grade, that she
worked at McDonald’s, and that she had parents and siblings in the

area. The district court found that Pearson had a recurring issue with
                                    11

assaults since the age of fourteen and that she and her family had been

provided with numerous services to address and resolve underlying

issues. The court expressed its belief that Pearson and others who wrote

statements in her favor wanted to blame her friends, alcohol use, drug

use, a bad family relationship, and poor parenting, but that “the bottom

line is that you are responsible for your actions and you’re responsible

for your choices.” The court continued, “What is clear is that you knew

what you were doing, you understood the impact that it was going to

have on your victims, and you did it.”
      The district court interpreted Pearson’s second letter requesting a

punishment other than a twenty-five-year sentence as asking for an

alternative form of punishment to a prison sentence, to which it stated,

“That’s not the reality here. There is no alternative. The only question

before the court today is whether the four sentences will run

concurrently or consecutively.” The court found Pearson’s second letter

signified Pearson did “not understand the significance of the crime that

[she had] committed and the impact,” based on the fact she had been

repeatedly informed each conviction carried a twenty-five-year sentence.

      The district court also expressed concern the judicial system was

providing “repeated opportunities to young offenders to avoid the

ramifications of their actions.” The court continued, “I think people truly

believe that anything you do prior to turning 18 is gone on your 18th

birthday, and that’s not the case.” The court concluded granting four

concurrent sentences on four class “B” forcible felonies “would imply that

a criminal defendant can only receive one sentence regardless of the

number or seriousness of their crime,” which would “continue to send
the wrong message to any other individuals considering committing

criminal acts.”
                                     12

       In addition, the district court acknowledged the Supreme Court’s

statements about juveniles with regard to their “immature decision-

making and their ability to change and rehabilitate.” The district court

indicated its belief that juveniles should have “the opportunity to do

those things, and the benefit of having some meaningful opportunity to

ultimately be released.”

       Finally, after the court recognized that a potential release date is

often a motivating factor to an inmate, it stated the primary purpose of

Pearson’s sentencing was protection of the public, not rehabilitation.
The court stated, “I don’t believe that the focus here today should be on

the rehabilitation of the defendants, but rather the protection of society

in these particular cases.” The district court explained,

             The question of whether Miss Pearson will be able to
       contribute to society in any meaningful way is not really the
       issue that the Court finds determinative, particularly in the
       face of the fact that Miss Pearson has previously received
       any number of rehabilitation attempts in the past to set her
       on the correct path without success.

       After sentencing Pearson, the district court concluded by saying it

did not take the sentencing of juveniles to lengthy prison terms lightly. It

also   expressed   its   hope   Pearson   would   take   advantage   of   the

rehabilitative and educational programs offered in prison so that she

could ultimately return to the community at the appropriate time.

       Pearson appealed, and we transferred her case to the court of

appeals. The court of appeals upheld Pearson’s sentence. The court of

appeals determined Pearson’s actions fell “squarely within the well-

defined parameters” of the robbery statute. The court of appeals agreed

with the findings of the district court that Pearson was nearly an adult
when she committed her crimes, that she had a history of assaultive

behavior, and that she had failed to take advantage of rehabilitative
                                     13

opportunities. The court acknowledged Pearson would have to spend the

majority of her life in prison, but held her sentence was not

disproportionate to her crimes, finding the district court had properly

considered Pearson’s age.

      We granted further review.

      II. Standard of Review.

      A challenge to a sentence as illegal may be brought at any time.

State v. Bruegger, 773 N.W.2d 862, 869 (Iowa 2009).              We review

constitutional challenges to illegal sentences de novo. Id.
      III. Discussion.

      A. Positions of the Parties.        Pearson argues her sentence is

unconstitutional as applied to her under the Eighth Amendment to the

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

Constitution. Pearson notes that she was only seventeen years old at the

time of the crimes and that under the district court’s sentence, she is not

eligible for parole until she is almost fifty-three years old. She argues the

district court was not interested in rehabilitation, but rather solely in

incapacitation. Pearson argues that she never took the lead in any of the

robberies and that she took only minimal actions secondary to those of

Lukinich, who threatened to shoot Moore, who was more active in

looking for items to steal in the homes of Moore and the Wrights, and

who pushed Joan Wright to the ground. She also cites her relationship

with Lukinich and her obvious immaturity.

      Pearson also argues a seventy percent mandatory minimum for

first-degree robbery is not in line with other offenses subject to seventy

percent mandatory minimums as applied to her.              She asserts the
aggregated seventy percent mandatory minimums lead to punishment far

harsher than that imposed in other jurisdictions for similar crimes.
                                   14

      The State responds that the thirty-five-year minimum sentence is

not grossly disproportional under the test outlined by the United States

Supreme Court in Rummel v. Estelle, 445 U.S. 263, 100 S. Ct. 1133, 63

L. Ed. 2d 382 (1980), Solem v. Helm, 463 U.S. 277, 103 S. Ct. 3001, 77

L. Ed. 2d 637 (1983), and Ewing v. California, 538 U.S. 11, 123 S. Ct.

1179, 155 L. Ed. 2d 108 (2003) (plurality opinion). The State argues that

even if Pearson’s case warrants an as-applied review, this court should

defer to the legislature because the legislature is the “clearest and most

reliable objective evidence of how our society views a particular
punishment today.” The State asserts Pearson’s sentence is not grossly

disproportionate to her crime because of the nature of the crimes which

caused the victims fear and pain. The State points to Pearson’s history

with the juvenile justice system as support for the proposition that her

sentence fits her crime. The State then turns to intrajurisdictional and

interjurisdictional analyses, concluding Pearson has failed to establish

either prong. The State further argues that to the extent Pearson has

raised a claim under the Iowa Constitution, she fails to demonstrate her

case is a “rare” case warranting an as-applied review. See Bruegger, 773

N.W.2d at 884.

      B. Analysis.   At the outset, we consider the applicability of the

United States Supreme Court’s approach in Miller v. Alabama, 567 U.S.

___, 132 S. Ct. 2455, 183 L. Ed. 2d 407 (2012), to Pearson’s sentencing.

In State v. Null, 836 N.W.2d 41 (Iowa 2013), also decided today, we

explored in detail the contours of Miller, as well as the Supreme Court’s

decisions in Roper v. Simmons, 543 U.S. 551, 125 S. Ct. 1183, 161 L. Ed.

2d 1 (2005), and Graham v. Florida, 560 U.S. 48, 130 S. Ct. 2011, 176 L.
Ed. 2d 825 (2010). We need not repeat the analysis here. In Null, we

reversed a juvenile’s sentence and remanded the case to the district
                                    15

court for reconsideration in light of Miller.    836 N.W.2d at 86.      On

remand, we emphasized the district court must recognize 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. at 74 (quoting Miller, 567 U.S. at ___, 132 S. Ct. at 2464,

183 L. Ed. 2d at 418). We emphasized that if the district court believes

an exception to this general rule applies, the district court should make

specific findings. Id. In making such findings, we required the district

court to “go beyond a mere recitation of the nature of the crime, which
the Supreme Court has cautioned cannot overwhelm the analysis in the

context of juvenile sentencing.” Id. at 74–75 (citing Graham, 560 U.S. at

___, 130 S. Ct. at 2032, 176 L. Ed. 2d at 847, and Roper, 543 U.S. at

572–73, 125 S. Ct. at 1197, 161 L. Ed. 2d at 24). We stated the typical

characteristics of youth, such as immaturity, impetuosity, and poor risk

assessment, are to be regarded as mitigating instead of aggravating

factors. Id. (citing Miller, 567 U.S. at ___, 132 S. Ct. at 2467–69, 183 L.

Ed. 2d at 422–24).

      In addition, we emphasized the district court must recognize 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.” ’ ” Id. (quoting Graham, 560 U.S. at ___, 130 S. Ct.

at 2026, 176 L. Ed. 2d at 841).       We noted that while some juvenile

offenders might be irreparably lost, it is very difficult to identify those

falling into that category and that even trained psychologists have

difficulty making this type of prediction. Id.; accord Graham, 560 U.S. at

___, ___, 130 S. Ct. at 2026, 2029, 176 L. Ed. 2d at 841, 844; Roper, 543
U.S. at 573, 125 S. Ct. at 1197, 161 L. Ed. 2d at 24.             “Because

‘incorrigibility is inconsistent with youth,’ care should be taken to avoid
                                     16

‘an irrevocable judgment about [an offender’s] value and place in

society.’ ” Null, 836 N.W.2d at 75 (quoting Miller, 567 U.S. at ___, 132

S. Ct. at 2467, 183 L. Ed. 2d at 422). Finally, in Null, a case involving a

homicide, we indicated a very long prison sentence of more than fifty-two

years without the possibility of parole should be “rare or uncommon.” Id.

      Here, the district court sentenced Pearson to consecutive terms

totaling thirty-five years imprisonment without the possibility of parole.

We think in light of the principles articulated in Miller and Null that it

should be relatively rare or uncommon that a juvenile be sentenced to a

lengthy prison term without the possibility of parole for offenses like

those involved in this case.       Otherwise, we would be ignoring the

teaching of the Roper–Graham–Miller line of cases that juveniles have less

culpability than adults, that the few youth who are irredeemable are

difficult to identify, and that juveniles have rehabilitation potential

exceeding that of adults.

      Though Miller involved sentences of life without parole for juvenile

homicide offenders, its reasoning applies equally to Pearson’s sentence of

thirty-five years without the possibility of parole for these offenses. 567
U.S. at ___, 132 S. Ct. at 2465, 183 L. Ed. 2d at 420 (concluding that

nothing Graham “said about children—about their distinctive (and

transitory) mental traits and environmental vulnerabilities—is crime-

specific”); accord Null, 836 N.W.2d at 65. Therefore, we think a minimum

of thirty-five years without the possibility of parole for the crimes involved

in this case violates the core teachings of Miller. We think the principles

in Miller as developed by the Supreme Court in its Eighth Amendment

jurisprudence are instructive on the resolution of this case. As in Null,
we independently apply article I, section 17 of the Iowa Constitution,
                                        17

adopt the principles underlying Miller, and apply them to the facts of this

case. See 836 N.W.2d at 70 & n.7; see also Bruegger, 773 N.W.2d at

883–84.

       We have no occasion to consider whether Miller’s principles must

be applied to all juvenile sentences. Instead, we need only decide that

article I, section 17 requires an individualized sentencing hearing where,

as here, a juvenile offender receives a minimum of thirty-five years

imprisonment without the possibility of parole for these offenses and is

effectively deprived of any chance of an earlier release and the possibility
of leading a more normal adult life.

       Nothing in Bruegger is to the contrary. In Bruegger, we considered

whether the sentence imposed upon an adult amounted to cruel and

unusual punishment. 773 N.W.2d at 878–88. While the adult sentence

was enhanced by juvenile adjudication, prevailing federal law, which

Bruegger did not contest, emphasized that such sentences should be

treated as adult sentences for adult crimes.           773 N.W.2d at 885–86.

Further, though we indicated an as-applied challenge brought by an

adult convicted of crime should be rare and described the circumstances

that made Bruegger’s case meet that demanding standard,5 but we did

not circumscribe or limit the types of as-applied challenges that may be

made under the Eighth Amendment or article I, section 17 of the Iowa

Constitution for adult convictions, let alone juvenile convictions, or

indicate the factors considered were applicable in every case or

exhaustive.    Id. at 884–85.     Certainly, nothing in Bruegger should be



       5In Bruegger, the particular circumstances were a broadly framed underlying

crime, Bruegger’s young age when he committed the prior offense, and a geometric
increase in penalty due to the enhancement resulting from the juvenile adjudication.
773 N.W.2d at 884–85.
                                     18

read as contrary to the principles of the Roper–Graham–Miller trilogy with

respect to sentences imposed as a result of juvenile convictions.

      We also note that the district court here did not have the benefit of

Miller or Null when it sentenced Pearson.        Our review of the district

court’s handling of Pearson’s sentencing convinces us the district court

did not consider the principles underlying Miller.        For example, the

district court indicated it understood the argument that Pearson, as a

young person, may lack the ability to appreciate the results of her

actions, but then stated that argument “doesn’t diminish in any way the
results of [her] actions.” It is true that Pearson’s youthfulness does not

lessen the results of her actions insofar as the impact they had on the

lives of the victims, yet under Miller and Null, a juvenile’s culpability is

lessened because the juvenile is cognitively underdeveloped relative to a

fully-developed adult. Miller, 560 U.S. at ___, ___, 132 S. Ct. at 2464–69,

2475, 183 L. Ed. 2d at 418–24, 430; Null, 836 N.W.2d at 74.              This

lessened culpability is a mitigating factor that the district court must

recognize and consider. Miller, 560 U.S. at ___, 132 S. Ct. at 2469, 183

L. Ed. 2d at 424; Null, 836 N.W.2d at 60.

      The district court declared, “[T]he bottom line is that you are

responsible for your actions and you’re responsible for your choices.”

The court further stated Pearson did “not understand the significance of

the crime that [she had] committed and the impact.” While it is true that

juveniles lack the maturity to fully understand the consequences of their

actions, under Miller and Null this too is a mitigating factor. Miller, 567

U.S. at ___, 132 S. Ct. at 2468–69, 183 L. Ed. 2d at 422–23; Null, 836

N.W.2d at 60. Again, the district court did not treat it as such.
      Finally, the district court stated, “I don’t believe that the focus here

today should be on the rehabilitation of the defendants, but rather the
                                        19

protection of society in these particular cases.”          Yet, under Miller,

Graham, and Null, rehabilitation is an important factor and to predict

that a juvenile cannot be rehabilitated is very difficult. Miller, 567 U.S. at

___, 132 S. Ct. at 2469, 183 L. Ed. 2d at 424; Graham, 560 U.S. at ___,

___, 130 S. Ct. at 2026, 2029, 176 L. Ed. 2d at 841, 844; Null, 836

N.W.2d at 67; see also Roper, 543 U.S. at 573, 125 S. Ct. at 1197, 161

L. Ed. 2d at 24. The district court should have considered rehabilitation

as a factor in sentencing Pearson.

      In sum, the district court emphasized the nature of the crimes to
the exclusion of the mitigating features of youth, which are required to be

considered under Miller and Null.            Accordingly, we vacate Pearson’s

sentence and remand the case to the district court for application of the

Miller standards as described in Null and this opinion.

      Based on this disposition, it is unnecessary for us to address other

arguments raised by Pearson in challenging her sentence.            We do not

consider,   for   instance,   whether    the    sentence   would   violate   the

proportionality concepts of Weems v. United States, 217 U.S. 349, 367,

30 S. Ct. 544, 549, 54 L. Ed. 793, 798–99 (1910), Solem, Ewing, or any

other proportionality test that might be applied in this case or any other

issue related to Pearson’s sentencing. These challenges are not ripe at

this time and must wait until after the district court has resentenced

Pearson.

      IV. Conclusion.

      For the above reasons, we vacate the sentence imposed by the

district court and remand the case to the district court for further

proceedings.
      DECISION OF COURT OF APPEALS VACATED; DISTRICT

COURT SENTENCE VACATED AND CASE REMANDED.
                                  20

      All justices concur except Cady, C.J., who concurs specially; and

Mansfield, Waterman, and Zager, JJ., who dissent. Zager, J., also writes

a separate dissent.
                                           21
                                                        #11–1214, State v. Pearson

CADY, Chief Justice (concurring specially).

      I concur with the majority opinion but write separately to

emphasize that, although the holding in this case is properly limited to

its facts, neither the Supreme Court’s opinion in Miller v. Alabama, 567

U.S. ___, 132 S. Ct. 2455, 183 L. Ed. 2d 407 (2012), nor our decisions

today in State v. Ragland, 836 N.W.2d 107 (Iowa 2013), and State v. Null,

836 N.W.2d 41 (Iowa 2013), express the full scope of the changing

landscape of juvenile justice. This landscape should be observed by all

judges and carefully considered when sentencing juvenile offenders as

adults.

      An obvious correlation exists between the life-without-parole

context of Miller and Graham6 and sentences that effectively deprive

offenders of a meaningful opportunity for release in their lifetime.                   It

comes as no surprise, then, that our decisions today recognize de facto

life sentences very clearly exist.        See Ragland, 836 N.W.2d at 109–26;

Null, 836 N.W.2d at 45–87.             Yet, applying the teachings of Roper,7

Graham, and Miller only when mortality tables indicate the offender will

likely die in prison without ever having the opportunity for release based

on   demonstrated         maturity     inadequately       protects    the    juvenile’s
constitutional rights.

      Indeed, limiting the teachings and protections of these recent cases

to only the harshest penalties known to law is as illogical as it is unjust.

In Null, we thoroughly examined recent advances in neuroscience, which

illustrate the decreased culpability of the juvenile offender. See Null, 836

      6Graham    v. Florida, 560 U.S. 48, 130 S. Ct. 2011, 176 L. Ed. 2d 825 (2010).
      7Roper   v. Simmons, 543 U.S. 551, 125 S. Ct. 1183, 161 L. Ed. 2d 1 (2005).
                                    22

N.W.2d at 54–55. While this logic has been applied in the context of the

death penalty and life-without-parole sentences, it also applies, perhaps

more so, in the context of lesser penalties as well. After all, as the Court

declared in Miller, nothing that Graham “said about children—about their

distinctive   (and   transitory)   mental    traits   and    environmental

vulnerabilities—is crime-specific.” Miller, 567 U.S. at ___, 132 S. Ct. at

2465, 183 L. Ed. 2d at 420.

      Nor could it be. As the background of this case demonstrates, a

juvenile’s impetuosity can lead them to commit not only serious crimes,
but considerably pettier crimes as well. Although Desirae Pearson was a

participant of a senseless evening of crime—all while stopping in the

middle to enjoy a milk shake with her boyfriend—she also committed

theft in the fifth degree at several other times during her youth. Can we

honestly say, as a matter of law, that the transient immaturity of

Pearson’s youth played no part at all in the commission of these lesser

offenses, decreasing her culpability? The answer, of course, is that we

cannot.

      Thus, the juvenile offender’s decreased culpability plays a role in

the commission of both grievous and petty crimes. Notably, even Chief

Justice Roberts’s dissenting opinion sensed Miller’s reasoning applies

well beyond the context of homicide and calls into question a number of

current practices, such as trying juveniles as adults and sentencing

juveniles according to mandatory minimums. See id. at ___, 132 S. Ct. at

2482, 183 L. Ed. 2d at 437–38 (Roberts, C.J., dissenting).       It may be

natural to assume the stakes are simply lower regarding the latter

category of crimes, but denying juveniles who commit lesser crimes the
protections afforded in Miller denies them their rights under the Eighth

Amendment and article I, section 17 of the Iowa Constitution no less
                                      23

than denying a juvenile who commits a considerably more serious crime

the very same protections.

        The court’s holding is limited to the bizarre facts of this case—both

Pearson’s senseless and violent, though nonhomicidal, crime spree and

the district court’s approach during sentencing.            After all, Pearson

somehow faced more time in prison without the possibility of parole than

all offenders except a juvenile convicted of first-degree murder. See Iowa

Code § 902.1(2) (Supp. 2011).       Consequently, Pearson’s constitutional

claim    prevails   under   even   the   narrowest   step    forward   in   our
jurisprudence.

        Thus, wisely, the decision today takes a modest, incremental step,

one with which I totally agree.      Yet, our understanding of adolescent

neuroscience and our approach to juvenile justice are rapidly evolving.

Children are indeed different for the purposes of criminal sentencing.

See Miller, 567 U.S. at ___, 132 S. Ct. at 2464, 183 L. Ed. 2d at 418

(majority opinion).    The full breadth of the protections articulated in

Roper, Graham, and Miller, as well as our own trilogy of cases we decide

today, may yet reach further towards justice. We leave that conclusion

for another day. In the meantime, these cases should be instructive to

all judges today that the Miller factors should be applied to all juveniles

sentenced as adults regardless of the crime. As the Attorney General’s

National Task Force on Children Exposed to Violence stated in a

thoughtful and detailed policy recommendation: “We should stop treating

juvenile offenders as if they were adults, prosecuting them as adults in

adult courts, incarcerating them as adults, and sentencing them to

harsh punishments that ignore their capacity to grow.” Office of Juvenile
Justice & Delinquency Prevention, U.S. Dep’t of Justice, Report of the

Attorney General’s National Task Force on Children Exposed to Violence
                                   24

§ 6.9, at 189 (2012).   In other words, applying the teachings of Miller

irrespective of the crime or sentence is simply the right thing to do,

whether or not required by our Constitution.
                                          25
                                                       #11–1214, State v. Pearson
MANSFIELD, Justice (dissenting).

       I respectfully dissent. The sentence in this case is a harsh one. Its

severity results from a combination of two things: (1) the general

assembly’s decision to require persons who commit first-degree robbery

to serve seventeen and one-half years in prison (or seventy percent of

their twenty-five-year sentence) before being eligible for parole; and

(2) the district court’s decision to “box car” (or run consecutively) the two

first-degree robbery sentences in this case.

       The severity of this sentence is only partly related to the

defendant’s age.        This sentence would have been harsh even if the

defendant had been legally an adult, rather than just seventeen years

and three months old, at the time she went on this crime spree with her

eighteen-year-old boyfriend.

       Needless to say, I am not a member of the general assembly, nor

am I the trial judge. I do not get to decide the proper sentence in this

case. In addition, the defendant has not argued that the district court

abused its sentencing discretion.8

       Thus, the only question before us is whether the sentence violates
the United States or Iowa Constitution because it is “cruel and unusual.”

For the reasons stated herein, I agree with the court of appeals that the

sentence     is   not   so   “grossly    disproportionate”       as   to   render     it



       8Another  serious issue, not raised by Pearson on appeal, but touched upon in
some of the correspondence with the district court, is that Pearson is African-American.
Twenty-five percent of Iowa’s prison population is African-American, as compared to
2.9% in the general population. Iowa Dep’t of Human Rights, Div. of Criminal &
Juvenile Justice Planning, Iowa Prison Population Forecast FY 2011–2021 (2011), at 29,
available at http://www.humanrights.iowa.gov/cjjp/images/pdf/Forecast2011.pdf .
This is due in large part to the number of African-Americans serving “70 percent”
sentences. Id. at 2.
                                   26

unconstitutional.   See State v. Oliver, 812 N.W.2d 636, 650–51 (Iowa

2012) (citation and internal quotation marks omitted).

      I. Some Key Facts.

      The majority has accurately described the facts of this case.

However, I would like to emphasize a few points.

      The guns wielded by Pearson and her boyfriend Lukinich during

the robberies appeared to be real handguns to the victims and initially to

the police. Only later when the police picked the guns up did they learn

the guns were CO2 powered BB guns.
      The first robbery victim described a terrifying scene. He opened

the door; Pearson pointed one of the guns at him and told him he was

being robbed. Lukinich then pointed his own gun at the victim and said,

“If she don’t shoot you, I will.” The victim was forced to lie down on the

floor while Pearson and Lukinich rummaged through the house and

grabbed numerous items.

      The main victim of the second robbery turned out to be an elderly

woman. While getting ready for bed, she heard noises in the night and

went downstairs with her walker. She was confronted by Pearson and

Lukinich, both wielding what appeared to be handguns. She yelled for

her son who lived with her. As soon as she called out, Lukinich pushed

her against the wall, causing her shoulder to fracture in several places.

Pearson and Lukinich then left the house with a shotgun, cash, and

prescription medicine they had taken.

      Both of these victims submitted written victim impact statements,

which were read by the victim coordinator at sentencing. The first victim

stated, “I truly believe that they [Pearson and Lukinich] should both
remain behind bars for the extent of my life and theirs.”     The second

victim asked that each of the defendants be imprisoned for fifty years.
                                          27

The State requested consecutive sentences for each defendant on the two

robberies.

       The presentence investigation does not indicate that Pearson came

from a troubled family background. Into her high school years, she lived

at home with her parents, who had been married for the past twenty-

three years. Her father was disabled and stayed at home during the day;

her mother had been working for the same employer for the past twelve

and one-half years. According to Pearson’s juvenile court officer, “There

are no concerns of them trying to cover up their daughter’s negative
behaviors. They are very concerned for Desirae’s well being.”

       Pearson’s juvenile record dates back to elementary school.9 When

she was fourteen, Pearson was expelled from her local high school for a

serious assault on another female student. She received juvenile court

services and a year later was allowed to return to that school.                   The

following year, when Pearson was nearly sixteen, she was discharged

from juvenile court services.        She also began attending the alternative

high school, which she was still attending at the time of her and

Lukinich’s crime spree.        There are indications that Pearson regularly

used marijuana and possibly alcohol and prescription drugs.

       After Pearson was convicted of the two robberies (and two

burglaries) arising out of these home invasions, and while she was

awaiting sentencing, she wrote two letters to the judge. In the first letter,

she confessed her crimes and requested “a lesser sentence than what I

am facing.”     However, just before sentencing, Pearson sent the court


       9As noted by the majority, Pearson’s parents believed that her behavior changed
after she was hit by a car when she six or seven years old and hospitalized for several
days. However, the University of Iowa hospitals ran both neurological and psychiatric
exams that did not detect anything amiss.
                                      28

another, shorter letter in which she asked not to go to prison, i.e., “a

second chance to live life other than behind bars.”

       The district court certainly was aware of Pearson’s youth. In fact,

Pearson’s attorney briefed and argued Graham v. Florida, 560 U.S. 48,

130 S. Ct. 2011, 176 L. Ed. 2d 825 (2010). Miller v. Alabama, 567, U.S.

___, 132 S. Ct. 2455, 183 L. Ed. 2d 407 (2012), had not yet been decided.

He urged that juveniles are “less deserving of the most severe

punishments . . . more capable of change and less likely to show

evidence of irretrievably depraved character than adults.” He added that
a juvenile offender “must have some meaningful opportunity to obtain

release based upon demonstrated maturity and rehabilitation.”            He

concluded, “[T]he fact that juveniles tend to make immature decisions

should influence the Court to sentence Miss Pearson to the minimum

possible, which is still in my opinion a very large sentence of 25 years.”

       The district court commented on what it perceived to be Pearson’s

“troubled” family life and history, and “very negative influences” on her.

It noted that efforts by the juvenile court system to rehabilitate her had

apparently been unsuccessful. It also indicated that it did not believe

Graham was applicable because “we are not discussing a life sentence for

Miss   Pearson.”      Ultimately,    the   court   decided   to   make   the

robbery/burglary sentences for the second home invasion consecutive to

the robbery/burglary sentences for the first home invasion. The district

court commented, “I don’t believe that the focus here today should be on

the rehabilitation of the defendants, but rather the protection of society

in these particular cases.”      It also pointed out the seriousness of the

injuries to the second victim.
                                    29
      II. Because This Case Does Not Involve a Sentence of Life
Without Parole (LWOP) or Its Practical Equivalent, Graham and
Miller Do Not Apply.

      As I’ve already indicated, I carry no particular brief for the

sentence Pearson received in this case. Although it does not exceed what

the State and the two main victims requested, it is longer than I would

have imposed.    But the district court is surely right: It is not a life

sentence.

      Any fair reading of Graham and Miller requires us to acknowledge

this point. In Graham, the Court held that “for a juvenile offender who
did not commit homicide the Eighth Amendment forbids the sentence of

life without parole.” 560 U.S. at ___, 130 S. Ct. at 2030, 176 L. Ed. 2d at

845 (“This Court now holds . . . .”). The Court went on:

      A State is not required to guarantee eventual freedom to a
      juvenile offender convicted of a nonhomicide crime. What
      the State must do, however, is give defendants like Graham
      some meaningful opportunity to obtain release based on
      demonstrated maturity and rehabilitation.

Id. at ___, 130 S. Ct. at 2030, 176 L. Ed. 2d at 845–46. The Court made

clear that it was establishing a “categorical rule.” Id. at ____, 130 S. Ct.

at 2032, 176 L. Ed. 2d at 848. But of course, Pearson falls outside the

category. She will be eligible for parole when she is in her early fifties.
She has a “meaningful opportunity to obtain release based on

demonstrated maturity and rehabilitation.”      Id. at ___, 130 S. Ct. at

2030, 176 L. Ed. 2d at 846.

      In Miller, the Court decided that “the Eighth Amendment forbids a

sentencing scheme that mandates life in prison without possibility of

parole for juvenile offenders.” 567 U.S. at ___, 132 S. Ct. at 2469, 183 L.

Ed. 2d at 424 (“We therefore hold . . . .”).   The Court added that “[i]n
imposing a State’s harshest penalties, a sentencer misses too much if he
                                     30

treats every child as an adult.” Id. at ___, 132 S. Ct. at 2468, 183 L. Ed.

2d at 422–23.     “Mandatory life without parole for a juvenile precludes

consideration of his chronological age and its hallmark features . . . .” Id.

at ___, 132 S. Ct. at 2468, 183 L. Ed. 2d at 423. But Miller does not

cover Pearson’s circumstances either.      She did not receive “a State’s

harshest penalt[y],” nor was her penalty “mandatory.”

      In short, Graham and Miller have a lot to say about youth and

immaturity, much of which would be obvious anyway to an experienced

Iowa trial judge. But they have nothing to say about this case, because it
does not involve an actual or de facto life sentence. The observations

about juvenile offenders in Graham and Miller are there only to justify

restricting the most severe form of imprisonment—life without parole—

for these offenders.

      The majority here rewrites those cases.      Yet it does not manage

even to be consistent with today’s decision in State v. Null, 836 N.W.2d

41 (Iowa 2013). In Null, the majority found that a sentence of 52.5 years

before eligibility for parole fell under Graham and Miller because the mere

“prospect of geriatric release” was insufficient. 836 N.W.2d at 71. Here,

without adding much to what it said in Null, the court concludes that a

sentence of thirty-five years before eligibility for parole falls under

Graham and Miller.     Pearson would be eligible for parole when in her

early fifties, so the problem here is not “geriatric release,” but that

Pearson has been deprived of “the possibility of leading a more normal

adult life.”   Thus, we now have two standards for when Graham and

Miller apply. And for good measure, the majority fires a shot across the

bow: “We have no occasion to consider whether Miller’s principles must
be applied to all juvenile sentences.” The first question a trial judge or
                                           31

attorney might ask in the next juvenile offender case is, “Where does the

law stand?”

       Regardless of the outer limits of the majority’s rulings, it is clear

the court has now transformed Miller and Graham into a platform to

potentially overturn hundreds of non-LWOP prison sentences imposed on

juvenile offenders in Iowa. This would be unprecedented. While some

jurisdictions have concluded that Graham and Miller apply to “de facto”

life sentences where the defendant will not be eligible for parole until she

is at or approaching her life expectancy, no other appellate court has
adopted the majority’s reading of those cases. The Iowa Supreme Court

stands alone.10

       For example, recently the Illinois Court of Appeals was confronted

with a challenge to a lengthy prison sentence for a sixteen-year-old girl

who had aided and abetted her twenty-year-old boyfriend in murdering

an uncle who had molested her.              People v. Pacheco, 991 N.E.2d 896,

898–99, 2013 WL 3193670, at *1 (Ill. App. Ct. 2013).                   The mandatory

minimum was twenty years; the trial court sentenced the defendant to

thirty years in prison. Id. at 903–04, 907–08, 2013 WL 3193670, at *7,

*11.    The court had little difficulty in concluding that the Supreme

Court’s line of cases was inapplicable. Id. at 898–99, 906–07, 2013 WL

3193670, at *1, *10.11

       10In  addition to the discussion here, I refer the reader to the out-of-state cases
cited in part II of my dissent in Null.
       11The   court explained:
       [T]he Supreme Court in Roper [v. Simmons, 543 U.S. 551, 125 S. Ct.
       1183, 161 L. Ed. 2d 1 (2005)], Graham, and Miller was only concerned
       with the death penalty and life without the possibility of parole, which
       are the two most severe punishments allowed under the United States
       Constitution. We agree with the State “[i]t would be a great stretch to say
       that Graham meant to require legislatures and courts to treat youths and
       adults differently in every respect and every step of the criminal process.”
                                        32

      In People v. Perez, the California Court of Appeal recently rejected a

Graham/Miller challenge to consecutive mandatory minimum sentences

for forcible lewd acts committed when the defendant was sixteen years

old. 154 Cal. Rptr. 3d 114, 115, 118–21 (Ct. App. 2013).                  Under the

overall sentence, the defendant would not be eligible for parole for thirty

years, when he would be forty-seven years old.              Id. at 120.    Still, the

court had no difficulty upholding the sentence because “[t]he central

focus in the majority opinions [of the United States Supreme Court] was

the fact the offenders had been exposed to the ‘harshest’ available
sentence.” Id. at 120–21. As the court put it, “[T]his is not an LWOP

case. The state’s most severe penalties are not at stake here.”                   Id. at

121. The court added, “There is a bright line between LWOPs and long


______________________
      As we have covered this topic in a broad manner, we now look at
      defendant’s specific arguments.
          ....
          Defendant next argues the automatic imposition of any adult
      sentence on a juvenile defendant as a result of the automatic transfer
      statute violates the eighth amendment and the proportionate penalties
      clause. As stated earlier, when taken to its logical extreme, defendant’s
      argument would make any statute unconstitutional which imposes on a
      juvenile transferred to adult court the same mandatory minimum
      sentence applicable to an adult for the same offense. We disagree.
          Defendant reads Roper, Graham, and Miller too broadly.          The
      Supreme Court did not hold in Roper, Graham, or Miller the eighth
      amendment prohibits a juvenile defendant from being subject to the
      same mandatory minimum sentence as an adult, unless the mandatory
      minimum sentence was death or life in prison without the possibility of
      parole. Defendant was sentenced to neither of these. The minimum 20-
      year term defendant faced in this case does not compare with the death
      penalty or a mandatory term of life in prison without the possibility of
      parole. The sentencing range applicable to defendant in this case is not
      unconstitutional pursuant to Roper, Graham, and Miller, and the
      sentence defendant received violated neither the eighth amendment nor
      the proportionate penalties clause.
Pacheco, 991 N.E.2d at 906–07, 2013 WL 3193670, at *10–11.
                                            33

sentences with eligibility for parole if there is some meaningful life

expectancy left when the offender becomes eligible for parole.” Id. at 119.

       As the Colorado Court of Appeals recently stated:

              Lehmkuhl has cited no post-Graham decision, nor
       have we found one, that has determined that a sentence
       affording a defendant a chance to be paroled within his
       natural lifetime violates Graham’s requirement that
       defendants be given a meaningful opportunity to obtain
       release.

People v. Lehmkuhl, ___ P.3d ___, ___, 2013 WL 3584754, at *3 (Colo.

App. 2013).
       We can now look forward to a flurry of new proceedings as the

State, defense attorneys, and our own judicial system sort through the

unresolved issues raised by the majority opinion.                   For example, if a

sentence of thirty-five years without parole implicates Graham and Miller,

as my colleagues believe, then the current sentencing law governing

juveniles who commit class “A” nonhomicide felonies would appear to be

in constitutional jeopardy. That law was enacted by the legislature in

2011 in response to Graham. See 2011 Iowa Acts ch. 131, § 147 (codified

at Iowa Code § 902.1(2) (Supp. 2011)). It provides that any juvenile who

commits a Class “A” felony other than first-degree murder shall

automatically receive a life sentence but shall be eligible for parole “after

serving a minimum term of confinement of twenty-five years.”                            Id.

Certainly, a twenty-five year mandatory term of imprisonment would

prevent the offender from “living a more normal adult life.”                    If so, my

colleagues seemingly have doomed one of our legislature’s enactments.12


       12The   majority does not respond to the substance of this argument. Instead, in
Null, citing yet another law review article, the majority dismisses it as a “slippery-slope-
type argument.” I believe the implications of a judicial decision are a fair topic for
discussion.
                                           34

       We can get a good sense of how many new proceedings this

decision could generate by looking at data from the Division of Criminal

and Juvenile Justice Planning within the Iowa Department of Human

Rights.    According to these data, as of May 31, 2013, there were 425

inmates serving time in Iowa prisons for offenses committed before the

age of eighteen.      See Iowa Dep’t of Human Rights, Div. of Criminal &

Juvenile Justice Planning, Current Inmates Under 18 at Time of Offense

(May 31, 2013), available at http://www.humanrights.iowa.gov/cjjp/ima

ges/pdf/Prison_Population_Juveniles_05312013.pdf.                   Only thirty-six of
these individuals had committed Class “A” felonies. Id. Thus, the vast

majority of these individuals are serving prison terms of various lengths

but not LWOP terms.           Thanks to the current decision, they may now

have a ticket to court and a potential resentencing.13

       Of course, a court should not refrain from rendering a decision

because it may have far-reaching effects.               But before we kick start a

process that could overturn approximately 400 prison sentences, and

put ourselves at odds with every other state and federal appellate

interpretation of Graham and Miller, we owe it to the public to explain

clearly what we are doing and why the law requires it.                    The majority

opinion falls short.14



       13Some    of these persons may have received term-of-years sentences that amount
to de facto life sentences, as arguably occurred in Null, but I suspect that is not a large
group.
       14The  majority tries to defend itself from the charge that it has muddied the
waters by including a footnote in Null that muddies the waters even more. Thus, the
majority points out that Miller does not achieve “certainty” because it does not foreclose
LWOP. True enough, but irrelevant. The issue is not whether the law is “certain” in
some absolute sense; that is unattainable. The issue is whether my colleagues have
created more uncertainty by eliminating the bright-line rule in Miller that limits its
application to LWOP sentences.
                                     35

      The majority is unable to improve upon its scant reasoning in Null.

Again and again, Miller made clear that it was addressing life without

parole sentences, described variously as “the most serious penalties,”

“the most severe punishments,” “the harshest sentences,” the “most

severe penalties,” “the law’s harshest term of imprisonment,” “this

ultimate penalty for juveniles,” “this lengthiest possible incarceration,” “a

sentence of life (and death) in prison,” “a State’s harshest penalties,”

“that harshest prison sentence,” “this harshest possible penalty,” and

“the harshest possible penalty.” See 567 U.S. at ___, 132 S. Ct. at 2460,
2464–69, 2475, 183 L. Ed. 2d at 414, 418–22, 424, 430. My colleagues

simply ignore this limiting language, which the United States Supreme

Court was careful to use throughout its opinion.

      To be sure, the majority includes the same escape hatch as in

Null—namely, that it is applying the principles of Miller under article I,

section 17 of the Iowa Constitution. While this may protect the majority

from having its reasoning reviewed by the United States Supreme Court,

it fails to explain why all other state courts to apply the same principles

have reached a different conclusion.        As noted, one of the central

principles of Miller is that it applies only to the most severe penalties.

Miller did not constitutionalize every sentencing proceeding whereby a

juvenile is sent to prison.

      The concurrence in this case, while intended to bolster the

majority opinion, only exposes its flaws.      In a backhanded way, the

concurrence expresses the view that Miller applies to all “lesser crimes”—

not merely “lengthy” prison sentences or “consecutive mandatory

minimum” sentences. Thus, the concurrence says,

      [D]enying juveniles who commit lesser crimes the protections
      afforded in Miller, denies them their rights under the Eighth
      Amendment and article I, section 17 no less than denying a
                                           36
       juvenile who commits a considerably more serious crime the
       very same protections.

       But if “denying” Miller to a juvenile who commits a lesser crime

violates the Eighth Amendment and article I, section 17, then Miller must

apply to all juveniles who commit crimes. In any event, this novel and

even broader interpretation of Miller only adds to the uncertainty

engendered by the majority opinions in this case and Null. If the justices

joining the majority in these two decisions cannot agree on what they

stand for, how are the bench and bar to follow them?15

       Also, the concurrence speaks of our “rapidly evolving” approach to

juvenile justice and the “changing landscape of juvenile justice.” I agree

with these observations but draw a different conclusion from them.

Elected officials are better situated than a state supreme court to reflect

rapid developments and changing landscapes.                     Our court can only

resolve particular cases that are brought to us. When we decide a case,

we are limited to the record made by the parties before us; we do not

have the benefit of input from other Iowans.                And when we render a


       15The   concurrence says it would be “illogical” to limit Miller to the harshest
penalties and cites Chief Justice Roberts’s dissent in Miller for that point. But Chief
Justice Roberts was making that point by way of criticizing the Miller decision as
fundamentally wrong. See Miller, 567 U.S. at ___, 132 S. Ct. at 2482, 183 L. Ed. 2d at
437–38 (Roberts, C.J., dissenting).     The Miller majority clearly indicated that a
combination of two factors was necessary to render a punishment cruel and unusual: a
crime committed by a youth and a sentence of life without parole. A reading of the case
that focuses on youth alone rather than youth plus the harshest penalty is simply not
faithful to the Supreme Court’s opinion. That is why no other court has adopted it. In
the words of the California Court of Appeal:
       [N]o high court has articulated a rule that all minors who commit adult
       crimes and who would otherwise be sentenced as adults must have the
       opportunity for some discretionary reduction in their sentence by the
       trial court to account for their youth. Perez’s sentence, albeit long, still
       leaves plenty of time for him to be eligible for parole. It passes
       constitutional muster.
Perez, 154 Cal. Rptr. 3d at 121.
                                           37

constitutional decision, as here, that effectively freezes the status quo

until the next decision.16

        Appellate judges do not have a monopoly on understanding the

problems of youth. The average Iowan surely knows that juveniles are

generally less “culpable” than adults. And the complex juvenile justice

system that our elected representatives have enacted reflects this. See

Iowa Code ch. 232 (2013).

        Our duty as judges is to leave it to the legislature to determine

both crimes and the range of punishments; “culpability” is basically their
call.   We are authorized to step in only in the rare case, such as

mandatory LWOP for juvenile offenders, where the punishment is “cruel

and unusual.”
     III. The Defendant’s Sentence Is Not Unconstitutional Under
Bruegger/Oliver.

        This then leads to the question whether the sentence is

unconstitutional under the proportionality analysis set forth in State v.

Bruegger, 773 N.W.2d 862 (Iowa 2009), and Oliver 812 N.W.2d 636.

Pearson is not making a categorical challenge, only an as-applied one.17

This is a close call for me.

        16Afterindicating that Miller applies to lesser crimes, the concurrence seemingly
pulls back and says that the majority opinion “is limited to the bizarre facts of this
case.” I do not see any such fact-based limitation in the majority’s opinion. The
concurrence further describes the majority opinion as a “modest, incremental step.” I
do not believe those words fairly describe an opinion that significantly departs from
just-decided United States Supreme Court precedents and that may overturn many
existing prison sentences.
        17As   she puts it:
        There is no argument that individuals convicted of robbery in the first
        degree should not be sentenced to an indeterminate term of
        imprisonment not to exceed twenty-five years[,] that the court can run
        various sentences as concurrent or consecutive sentences or that, in
        most instances involving adult offenders, a mandatory minimum
        sentence of seventy percent is cruel or unusual. . . . As stated above,
                                         38

      We    first    must    decide    whether      the   sentence      is   “grossly

disproportionate” to the crimes.         If the sentence does not create an

inference of gross disproportionality, no further inquiry is necessary.

Oliver, 812 N.W.2d at 650.          “Our principal task at this stage is to

‘balanc[e] the gravity of the crime against the severity of the sentence.’ ”

Id. (quoting Bruegger, 773 N.W.2d at 873). “[I]t is rare that a sentence

will be so grossly disproportionate to the crime as to satisfy the threshold

inquiry and warrant further review.” Id.

      Although it is a close question, I am unable to reach the
conclusion that the sentence is so grossly disproportionate to the crimes

committed as to be unconstitutional under Oliver and Bruegger. Pearson

was an active participant in two separate home invasions with guns.

While the guns were BB guns, the victims did not know that and the

situation easily could have escalated into a deadly scenario. One person

suffered a significant injury. Although Pearson did not personally inflict

the injury, she was an active participant in both robberies—wielding a

gun, confronting the victims, and carrying off items from the homes.

Additionally, while Pearson was a juvenile at the time of the crimes, she

was close to legal adulthood at the age of seventeen years and three

months old.         Also, though the record indicates that Pearson had

problems with assaultive behavior and anger management as a juvenile,

these crimes were not anger-driven. In one of her letters to the court,

Pearson admitted that she and Lukinich shoplifted at two stores and


______________________
      defendant here asserts that the imposition of the seventy percent
      mandatory minimum sentence under section 902.12, particularly when
      applied in consecutive terms of imprisonment, is a violation of the cruel
      and unusual punishment prohibitions as that prohibition is applied to
      this defendant in this specific instance.
                                      39

unsuccessfully tried to break into one home before committing the two

robberies/burglaries here.

      I agree with the court of appeals: “Certainly arguments can be

made that the seventy percent mandatory minimum is longer than our

society finds acceptable . . . .” State v. Pearson, No. 11–1214, 2012 WL

3194101, at *4 n.3 (Iowa Ct. App. Aug. 8, 2012). I also agree with the

court of appeals: “but the prerogative to make such a change lies with

our legislature [i.e., society’s elected representatives].” Id.

      IV. Unresolved Questions.
      I do not address the separate question, not raised on appeal,

whether the consecutive sentences were an abuse of sentencing

discretion by the district court. See, e.g., State v. August, 589 N.W.2d

740, 745–46 (Iowa 1999) (finding no abuse of discretion in the imposition

of consecutive sentences). This is a serious question for me. I also do

not address any other matters not raised on appeal. I would simply hold

that the Eighth Amendment and article I, section 17 have not been

violated.

      Waterman and Zager, JJ., join this dissent.
                                    40
                                               #11–1214, State v. Pearson
ZAGER, Justice (dissenting).

      I join with Justice Mansfield’s well-reasoned dissent.       I write

separately to renew my objection to the application of Graham v. Florida,

560 U.S. 48, 130 S. Ct. 2011, 176 L. Ed. 2d (2010), and Miller v.

Alabama, 567 U.S. ___, 132 S. Ct. 2455, 183 L. Ed. 2d 407 (2012), to

lengthy term-of-years sentences, also sometimes described as de facto

sentences of life without parole. For the reasons set forth in my dissent

in State v. Null, 836 N.W.2d 41, 84–88 (Iowa 2013) (Zager, J., dissenting),

I believe neither Graham nor Miller apply to Pearson’s sentence, and I

would affirm the sentence imposed by the district court.
