                    IN THE COURT OF APPEALS OF IOWA

                                   No. 15-0617
                               Filed April 27, 2016


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

J.D. WILBERT LOUIS TUECKE,
      Defendant-Appellant.
________________________________________________________________


       Appeal from the Iowa District Court for Clayton County, John J.

Bauercamper, Judge.




       A defendant convicted of two counts of second-degree sexual abuse as a

juvenile with an intellectual disability challenges the district court’s decision to

reimpose the “mandatory” minimum sentence term of service as part of his

sentence. AFFIRMED.




       Scott J. Nelson, Dubuque, for appellant.

       Thomas J. Miller, Attorney General, and Tyler P. Buller, Assistant Attorney

General, for appellee.




       Considered by Vaitheswaran, P.J., and Doyle and Mullins, JJ.
                                           2


DOYLE, Judge.

       A defendant diagnosed with a mild intellectual disability was convicted of

two counts of second-degree sexual abuse for acts committed when he was a

juvenile. He filed a motion to correct his sentences in 2015, and following a

resentencing hearing, the district court elected to reimpose his prior sentences,

including the statutory requirement that he serve at least seventy percent of the

maximum term of his sentences. He now appeals the constitutionality of those

sentences, based upon his intellectual disability and age at the time the crimes

were committed. We affirm.

       I. Background Facts and Proceedings.

       J.D. Tuecke was born in April 1990. In May 2008, he was charged by trial

information in district court with two counts of second-degree sexual abuse, in

violation of Iowa Code section 709.3(2) (2007), class “B” felonies.           The trial

information alleged that during the summer of 2007, Tuecke sexually abused two

children under the age of twelve.

       Tuecke was seventeen-years old when he committed the alleged acts,

and he requested jurisdiction be transferred to the juvenile court. Thereafter, a

juvenile-court officer filed a report to the district court, noting, among other things,

that Tuecke had a learning disability and had been provided special education

services via an individualized education plan. Additionally, the report stated:

              During the investigation of the matter . . . , the Public
       Defender’s Office and Assistant County Attorney . . . provided
       information regarding a possible manner of handling this case. The
       proposal would allow for the Transfer of Jurisdiction of the case
       involving J.D. Tuecke, specifically, two counts of [second-degree
       sexual abuse], to the juvenile court. The juvenile court would then
       immediately recommend waiver of jurisdiction to the criminal
                                        3


      division of the district court. This proposal would allow the court
      many sentencing options which are not available in the current filing
      due to the mandatory sentencing.

The juvenile-court officer recommended the court proceed in the suggested

manner, and Tuecke, represented by counsel, agreed to the plan.           Tuecke

subsequently pled guilty in district court to two counts of second-degree sexual

abuse; he received a deferred judgment and was placed on probation. See also

Iowa Code §§ 901.5(1) (permitting the sentencing court to defer judgment and

sentence if authorized by section 907.3), 907.3(1) (permitting the sentencing

court to defer judgment and sentence with the defendant’s consent unless certain

facts exist, not present here), 907.5 (requiring the sentencing court to first

determine which sentencing “option, if available, will provide maximum

opportunity for the rehabilitation of the defendant and protection of the

community from further offenses by the defendant and others” after considering

“the age of the defendant; the defendant’s prior record of convictions and prior

record of deferments of judgment if any; the defendant’s employment

circumstances; the defendant’s family circumstances; the nature of the offense

committed; and such other factors as are appropriate”); but see id. § 902.12(3)

(requiring a person serving a sentence for a conviction of second-degree sexual

abuse under section 709.3 to serve “at least seven-tenths of the maximum term

of the person’s sentence”).

      In August 2009, Tuecke was now over the age of eighteen, and Tuecke’s

probation officer reported Tuecke had violated the terms of his probation.

Tuecke was also charged with second-degree burglary.            Although Tuecke

admitted the violations, the court allowed him to remain on probation but modified
                                          4


its terms to require that Tuecke (1) reside at a residential treatment facility for a

year or until he obtained maximum benefits from available programming, (2)

successfully complete the sex-offender-treatment program (SOTP), and (3) have

no contact with his victims.       Tuecke also pled guilty to the second-degree-

burglary charge, and he received a ten-year suspended sentence with placement

at the residential treatment facility.

       In August 2010, Tuecke’s probation officer filed another report of violation

alleging numerous probation violations. His probation officer noted that Tuecke’s

negative behaviors were escalating and that it appeared Tuecke was “a threat to

the community safety and a high risk to sexually re-offend.”           Tuecke had

destroyed facility property, evidencing Tuecke was “capable of acting in a

physically aggressive manner,” and he seemed “either unwilling or unable to

curtail and control [his] defiant thinking and behavior that could ultimately lead to

another hands-on victim.” Tuecke had breached the terms of his SOTP contract

in numerous respects, such as possessing pornographic materials, performing

sex acts on another resident in the facility, and making sexually-inappropriate

comments.

       A hearing on the alleged probation violations was subsequently held.

Ultimately, the court determined Tuecke’s deferred judgment should be revoked,

and it imposed the judgment it previously deferred, sentencing Tuecke to serve a

minimum term of confinement of seventeen-and-one-half years on the two

counts, to be served concurrently, and to be served consecutively with the term

imposed upon his second-degree burglary conviction.
                                         5

      In January 2015, following the Iowa Supreme Court’s decision in State v.

Lyle, 854 N.W.2d 378 (Iowa 2014), Tuecke filed a motion to correct his illegal

sentence. In Lyle, the court determined “all mandatory minimum sentences of

imprisonment for youthful offenders are unconstitutional under the cruel and

unusual punishment clause in article I, section 17 of [the Iowa] constitution.” 854

N.W.2d at 401. Because Tuecke was a youthful offender when he committed his

two acts of sexual abuse in 2007, Tuecke requested he be resentenced.

      The State stipulated that under Lyle Tuecke must be resentenced, and the

court set the matter for hearing and directed that a new presentence investigation

report (PSI) be prepared.      The “Psychological Report” section of the PSI,

completed in March 2015, noted Tuecke had three psychiatric diagnoses: mild

recurrent major depressive disorder, mild intellectual disability, and pedophilia.

His intellectual functioning was described as follows:

               Mr. Tuecke was given the [Wechsler Adult Intelligence Scale
      test] . . . and scored a 67. [The Iowa Department of Corrections
      (DOC)] is currently converting psychiatric diagnoses to the new
      DSM-5 codes from DSM-IV-TR. The DSM-5 criteria for Intellectual
      Disability now requires evidence of both intellectual and adaptive
      deficits. Mr. Tuecke no longer meets the criteria for this diagnosis
      as he lacks adaptive deficits.        To further corroborate this
      conclusion, his [Test of Adult Basic Education] reading level
      improved from 3.8 (equivalent grade level) [in January 2011] to 6.3
      [in August 2011], a span of six months. His reading was tested a
      third time [in January 2014] at 7.0. He is a high school graduate.
      The [Saint Louis University Mental Status Exam] administered [in
      June 2013] showed no evidence of dementia. This exam also
      revealed that [Tuecke] has a basic command of math, knowledge
      acquisition and recall, concrete reasoning, and auditory memory.
      These demonstrated skills, when considered together, also point
      towards the absence of an intellectual disability.

The PSI also provided details of the numerous disciplinary reports Tuecke had

received since incarcerated in 2010.
                                             6


       At the resentencing hearing, the court set aside Tuecke’s prior judgment

and prison sentence, and it adjudged him guilty of the two counts of second-

degree sexual abuse. The court resentenced Tuecke on each count to a term of

imprisonment not to exceed twenty-five years, to be served concurrently, and it

ordered those sentences to run consecutively to his second-degree-burglary

sentence. The court ordered Tuecke to “serve a minimum of [seventy percent] of

the sentence before coming eligible for parole,” and it imposed a special life

sentence requiring he be committed to the custody of the DOC for the rest of his

life, as provided by section 903B.1.1 Thereafter, the court filed a written order

consistent with its oral pronouncement at sentencing.

       Tuecke now appeals.

       II. Discussion.

       On appeal, Tuecke argues the seventy-percent mandatory minimum

sentence imposed is disproportionate and constitutes cruel and unusual

punishment in violation of the United States Constitution and the Iowa

Constitution.2    He also argues the district court abused its discretion in


1
  Though Tuecke received two sentences for his second-degree-sexual-abuse
convictions, the sentences were ordered to be served concurrently, so we at times refer
to his sentences in the singular.
2
  Tuecke’s argument heading in his brief only references the Iowa Constitution.
However, his argument and conclusion cite both the Iowa and United States
Constitutions. He does not expressly suggest we interpret the Iowa Constitution
differently than the Federal Constitution, but his argument centers upon Lyle, wherein
the majority “follow[ed] the federal analytical framework in deciding [Lyle], but ultimately
use[d its] judgment in giving meaning to [Iowa’s] prohibition against cruel and unusual
punishment in reaching [its] conclusion.” See 854 N.W.2d at 401-03. This is relevant
because, as the dissenters in Lyle point out, the holding in Lyle under the Iowa
Constitution goes beyond the United States Supreme Court’s holdings interpreting the
similar Federal Cruel and Unusual Punishment Clause. See id. at 405 (Waterman, J.,
dissenting) (“By holding Lyle’s seven-year mandatory minimum sentence for his violent
felony is cruel and unusual punishment and unconstitutional under article I, section 17 of
                                           7


sentencing him to the mandatory-minimum term. As a general rule, we review a

district court’s sentencing decisions for an abuse of discretion.        See State v.

Formaro, 638 N.W.2d 720, 724-25 (Iowa 2002). However, when a defendant

challenges the constitutionality of a sentence, our review is de novo. See State

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

       A. Cruel and Unusual Punishment.

       1. Applicable Juvenile-Sentencing Jurisprudence.

       Both the U.S. Constitution and the Iowa Constitution prohibit the infliction

of cruel and unusual punishment. See U.S. Const. amend. VIII; Iowa Const. art.

I, § 17 (“Excessive bail shall not be required; excessive fines shall not be

imposed, and cruel and unusual punishment shall not be inflicted.”). Underlying

the constitutions’ prohibition is the venerable adage “that punishment should fit

the crime.” State v. Bruegger, 773 N.W.2d 862, 872 (Iowa 2009). “[T]he right to

be free from cruel and unusual punishment flows from the basic ‘precept of

justice that punishment for crime should be graduated and proportioned to

offense.’”   State v. Null, 836 N.W.2d 41, 57 (Iowa 2013) (citation omitted).

However, the right’s meaning and interpretation is “not static” but rather ever

evolving. See Lyle, 854 N.W.2d at 384. Thus, constitutional challenges alleging

cruel and unusual punishment must be considered under the current, prevailing


the Iowa Constitution, rather than under the Eighth Amendment, the majority evades
review by the United States Supreme Court.”); id. at 408 (Zager, J., dissenting) (“The
majority expands article I, section 17 of the Iowa Constitution to a point supported by
neither our own caselaw nor by any caselaw of the United States Supreme Court.
Neither does such an expansive interpretation find support in the caselaw of any other
appellate court in the nation. Contrary to the majority’s reasoning, the United States
Supreme Court’s interpretation of the Federal Constitution does not support this
expansive interpretation.”). Because Tuecke asks that we follow the court’s reasoning in
Lyle, we only address his claims under the Iowa Constitution.
                                          8


“standards of whether a punishment is ‘excessive’ or ‘cruel and unusual,’”

drawing “meaning from the evolving standards of decency that mark the progress

of a maturing society.” Id.

       “Until recently, there were two general classifications of cruel and unusual

sentences.” Id. at 385 (citing Graham v. Florida, 560 U.S. 48, 60 (2010)). The

first category of claims required a determination of whether a particular

defendant’s sentence, considering all of the circumstances of the case, is

unconstitutionally excessive or grossly disproportionate to the seriousness of the

particular crime.    See id.    The second category of claims “contemplated

categorical bars to imposition of the death penalty irrespective of idiosyncratic

facts.” Id. However, the claims in this category generally fell under two separate

subsets: challenges based upon the nature of the crime by itself, and challenges

based upon “characteristics of the offender.”            Id.   The Iowa Supreme Court

differentiated the two subsets by way of example:

       For instance, no offender can be sentenced to death—regardless of
       their personal characteristics—if only convicted of a nonhomicide
       offense and they did not intend to cause the death of another.
       [Kennedy v. Louisiana, 554 U.S. 407, 438 (2008)]. Additionally, a
       death penalty cannot be imposed, irrespective of the crime, on an
       intellectually disabled criminal offender, [Atkins v. Virginia, 536 U.S.
       304, 350 (2002)], or a juvenile offender, [Roper v. Simmons, 543
       U.S. 551, 578 (2005)].

Id.

       The United States Supreme Court introduced a third category of

challenges in Graham, 560 U.S. at 70-74, “blend[ing] its two prior subsets of

categorical challenges—consideration          of   the     nature   of   the   crime   and

consideration of the culpability of the offender.” Lyle, 854 N.W.2d at 385. In that
                                          9


case, the sentence at issue—life in prison without parole—followed a juvenile

offender’s conviction for committing a nonhomicide offense. See id. (discussing

Graham, 560 U.S. at 71). The Court concluded the sentence constituted cruel

and unusual punishment, given “the limited culpability of juvenile nonhomicide

offenders,” the severity of the sentence, and its determination that “penological

theory is not adequate to justify life without parole for juvenile nonhomicide

offenders.”   Graham, 560 U.S. at 74-75.        The Court noted states were not

“required to guarantee eventual freedom to a juvenile offender convicted of a

nonhomicide crime,” but it concluded the prohibition of cruel and unusual

punishment under the Federal Constitution did require states to “give defendants

like Graham some meaningful opportunity to obtain release based on

demonstrated maturity and rehabilitation,” prohibiting the states “from making the

judgment at the outset that those offenders never will be fit to reenter society.”

Id. at 75. Stated another way, under the Eighth Amendment, juveniles convicted

of nonhomicide offenses must have the possibility to be released during their

lifetimes. See id. “[E]ven if [a defendant] spends the next half century attempting

to atone for his crimes and learn from his mistakes,” the Eighth Amendment

mandates that that defendant be given a “chance to later demonstrate that he is

fit to rejoin society based solely on a nonhomicide crime that he committed while

he was a child in the eyes of the law.” Id. at 79.

       Thereafter, “the Court in [Miller v. Alabama, 132 S. Ct. 2455, 2469 (2012),]

held a statutory schema that mandates life imprisonment without the possibility of

parole cannot constitutionally be applied to a juvenile.” Lyle, 854 N.W.2d at 381;

see also Montgomery v. Louisiana, 136 S. Ct. 718, 725, 734 (2016) (finding its
                                         10

holding in Miller—“that a juvenile convicted of a homicide offense could not be

sentenced to life in prison without parole absent consideration of the juvenile’s

special circumstances in light of the principles and purposes of juvenile

sentencing”—applied retroactively).     The Iowa Supreme Court subsequently

determined the Miller rule was retroactive, and it “applied the reasoning in Miller”

in several cases that followed. See Lyle, 854 N.W.2d at 381 (discussing Null,

836 N.W.2d at 72; State v. Pearson, 836 N.W.2d 88, 96-97 (Iowa 2013); and

State v. Ragland, 836 N.W.2d 107, 117 (Iowa 2013)). Ultimately, the court held a

juvenile offender’s sentence that effectively deprived the offender “of a

meaningful opportunity for early release on parole during the offender’s lifetime

based on demonstrated maturity and rehabilitation” was cruel and unusual

punishment.3 Id. Summarizing its application of Miller to these cases, the court

noted it found “not just . . . a de facto life sentence or one ‘that is the practical

equivalent of a life sentence without parole’” to be cruel and unusual, it also

found a juvenile offender’s sentence of a “lengthy term-of-years” to be cruel and

unusual. Id. (citations omitted). Notably, in two of the cases, the sentences were

found unconstitutional under the Iowa Constitution. See Null, 836 N.W.2d at 76;

Pearson, 836 N.W.2d at 96-98; but see Ragland, 836 N.W.2d at 122 (finding

“sentence with parole [was] the practical equivalent of a life sentence without

parole” and amounted “to cruel and unusual punishment under the Eighth

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

Constitution”).

3
 Lyle, Null, Pearson, Ragland, and State v. Seats, a more recent cruel-and-unusual
punishment case, were each decided by a four-to-three vote. See Seats, 865 N.W.2d at
558.
                                       11

      A year after deciding Ragland, the court considered Lyle, premised upon a

juvenile offender’s cruel-and-unusual-punishment challenge to his sentence of

ten years in prison with a mandatory minimum term of seven years for a

nonhomicide offense. See 854 N.W.2d at 380-81. The court held:

              In the end, we conclude all mandatory minimum sentences
      of imprisonment for youthful offenders are unconstitutional under
      the cruel and unusual punishment clause in article I, section 17 of
      our constitution. Mandatory minimum sentences for juveniles are
      simply too punitive for what we know about juveniles. . . .
      Additionally, we think the jolt would be compounded once parents
      would further discover that their child must serve at least seventy
      percent of the term of the mandatory sentence before becoming
      eligible for parole. This shock would only intensify when it is
      remembered how some serious crimes can at times be committed
      by conduct that appears less serious when the result of juvenile
      behavior. This case could be an illustration.
              ....
              Ultimately, we hold a mandatory minimum sentencing
      schema, like the one contained in section 902.12, violates article I,
      section 17 of the Iowa Constitution when applied in cases involving
      conduct committed by youthful offenders. We agree categorical
      rules can be imperfect, “but one is necessary here.” [Graham, 560
      U.S. at 75]. We must comply with the spirit of Miller, Null, and
      Pearson, and to do so requires us to conclude their reasoning
      applies to even a short sentence that deprives the district court of
      discretion in crafting a punishment that serves the best interests of
      the child and of society. The keystone of our reasoning is that
      youth and its attendant circumstances and attributes make a broad
      statutory declaration denying courts this very discretion
      categorically repugnant to article I, section 17 of our constitution.

Id. at 400-03 (emphasis added) (footnote omitted).      Because the sentencing

court did not consider the newly established factors or requirements stated in

Miller or the court’s recent cases when it made its sentencing decision, the court

vacated Lyle’s sentence and remanded the case back to the sentencing court.

See id. at 401-02.    The court directed that the sentencing court determine
                                          12


whether “the minimum period of incarceration without parole is warranted under

the factors identified in Miller and further explained in Null.” Id. at 404 n.10.

       Yet, the Lyle majority clarified that although it was vacating the sentence

and remanding, it was not holding “that juvenile offenders cannot be sentenced

to imprisonment for their criminal acts” or that “juvenile offenders cannot be

sentenced to a minimum term of imprisonment.” Id. at 380-81. It qualified it was

“only hold[ing] juvenile offenders cannot be mandatorily sentenced under a

mandatory minimum sentencing scheme.” Id. at 381. The court also expressly

stated its holding did “not prohibit judges from sentencing juveniles to prison for

the length of time identified by the legislature for the crime committed” or “from

imposing a minimum time that youthful offenders must serve in prison before

being eligible for parole.” Id. at 403 (emphasis added). In a footnote, it further

explained:

                Under article I, section 17 of the Iowa Constitution, the
       portion of the statutory sentencing schema requiring a juvenile to
       serve seventy percent of the period of incarceration before parole
       eligibility may not be imposed without a prior determination by the
       district court that the minimum period of incarceration without
       parole is warranted under the factors identified in Miller and further
       explained in Null. The factors to be used by the district court to
       make this determination on resentencing include: (1) the age of the
       offender and the features of youthful behavior, such as “immaturity,
       impetuosity, and failure to appreciate risks and consequences”;
       (2) the particular “family and home environment” that surround the
       youth; (3) the circumstances of the particular crime and all
       circumstances relating to youth that may have played a role in the
       commission of the crime; (4) the challenges for youthful offenders
       in navigating through the criminal process; and (5) the possibility of
       rehabilitation and the capacity for change.

Id. at 404 n.10 (emphasis added) (internal citations omitted).
                                          13


       This tributary of the law has not been as crystal clear as a northeast Iowa

trout stream, and the Iowa Supreme Court further muddied the waters in 2015.

In State v. Louisell, the court “consider[ed] the nature and extent of a court’s

discretion in resentencing a juvenile offender convicted of a murder committed in

1987.” 865 N.W.2d 590, 592 (Iowa 2015). In that case, Louisell was convicted

of first-degree murder, a crime committed when she was seventeen years and

five months old, following a jury trial in 1988. See id. at 592-94. “[S]he was

sentenced to life imprisonment without parole, the only sentence authorized in

Iowa Code section 902.1 (1987) for that crime.” Id. at 593-94 (footnote omitted).

In 2011, after the Supreme Court decided Graham, Louisell filed a motion to

correct her sentence, asserting it was now illegal. See id. at 594. Following a

series of events, not relevant here, an individualized sentencing hearing was held

in district court to resentence Louisell.      See id.   The district court “carefully

considered the evidence in the record and thoroughly analyzed each of the Miller

factors.”   See id. at 595.      The court then determined Louisell should be

resentenced “to a definite term of twenty-five years with credit for time served,

thereby discharging her from prison immediately and releasing her to correctional

supervision, as if on parole, for no more than two years.” Id. However, in the

event it was determined the court lacked authority to impose this new, definite

term-of-years sentence, “the court imposed an alternative sentence of life in

prison with the possibility of parole after twenty-five years.”       Id.   The State

appealed and requested a stay of the resentencing order, and the supreme court

“granted the stay and retained the appeal to clarify the district court’s sentencing

authority in this evolving area of law.” Id.
                                        14


      On review, the supreme court found the district court lacked authority to

impose its first sentence—a definite term of twenty-five years—because the Iowa

Code, at that time, did not authorize “a term-of-years sentence for a defendant

convicted of first-degree murder, even if that defendant committed the crime as a

juvenile,” and it vacated that part of the sentencing court’s order. Id. at 598. It

then discussed its and the Supreme Court’s recent juvenile-sentencing

jurisprudence. See id. at 598-600. Because the existing statutory punishment—

prohibiting all offenders from being released on parole if convicted of a class “A”

felony—was unconstitutional following Miller, Ragland, Null, and Pearson, the

court found the sentencing court correctly severed that portion of the sentence in

resentencing Louisell. See id. at 599. The severance left the following statutory

subsection intact, that, “[n]otwithstanding subsection 1 [from which the initial

language was severed], a person convicted of a class ‘A’ felony, and who was

under the age of eighteen at the time the offense was committed shall be eligible

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

(discussing Iowa Code § 902.1(2)(a)(2011)).      However, the court also found,

under Lyle, the portion of the subsection that required serving a mandatory

minimum term of confinement violated the Iowa Constitution and also struck that

language from the statute. See id. at 600 (“Accordingly, Lyle requires that the

final clause of subsection 902.1(2)(a) providing for a mandatory minimum term of

confinement also be severed for purposes of sentencing Louisell.”).           After

severing the statute’s unconstitutional parts, it found what remained was that the

sentencing “court had discretion to impose a life sentence with eligibility for

parole.” Id. It then vacated the sentencing court’s alternative sentence and
                                          15

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

601.    Once again, the court emphasized in a footnote that Louisell only

addressed “the scope of the district court’s discretion to impose an individualized

sentence after considering the Miller factors.” Id. at 601 n.9. It expressly stated

it was not deciding “whether the sentence of life in prison with eligibility for parole

is in [Louisell’s] case disproportionate, illegal, or cruel and unusual under either

the Eighth Amendment or article I, section 17 of the Iowa Constitution.” Id.

       The same day it handed down its opinion in Louisell, the court also

decided Seats, 865 N.W.2d at 556. In that case, Seats was convicted of first-

degree murder, among other things, for a crime he committed when he was a

juvenile, and he challenged his conviction of life without the possibility of parole

following the Supreme Court’s decision in Graham. Seats, 865 N.W.2d at 547-

49. After a series of events not relevant here, a sentencing hearing was held.

See id. at 550-51.      Thereafter, the sentencing court, having considered the

applicable statutory factors and the factors set forth in Miller, determined a

sentence of life without parole was warranted for Seats.           See id. at 551-52.

“Ultimately, the [sentencing] court granted Seats’s motion to correct the illegal

sentence ‘[t]o the extent the previous sentence was imposed without

individualized consideration of the circumstances’” and it “‘otherwise denied the

motion and upheld Seats’s sentence of life with parole eligibility after sixty years

as commuted by the governor.” Id. at 552 (second alteration in original). The

sentencing court “addressed Seats’s personal characteristics and potential for

reform, using his childhood circumstances, the negative family influences in his
                                         16


life, and his lack of a stable support system as a factor against him” and the

nature of his crime. Id.

       Seats appealed the sentence, and on further review, the supreme court

found the sentencing court “did not consider the factors a court must consider

before sentencing a juvenile to life in prison without the possibility of parole,” and

it vacated the sentence and remanded the case back to the district court. Id. at

557. In remanding, the court stated the “question the [sentencing] court must

answer at the time of sentencing is whether the juvenile is irreparably corrupt,

beyond rehabilitation, and thus unfit ever to reenter society, notwithstanding the

juvenile’s diminished responsibility and greater capacity for reform that ordinarily

distinguishes juveniles from adults.” Id. at 558.

       2. Applicable Intellectual Disability-Sentencing Jurisprudence.

       We add to the equation the Supreme Court’s 2002 decision in Atkins v.

Virginia, which explicitly considered “whether the death penalty should ever be

imposed on [an intellectually disabled] criminal.” 536 U.S. at 307. The Court

explained:

       Those [intellectually disabled] persons who meet the law’s
       requirements for criminal responsibility should be tried and
       punished when they commit crimes. Because of their disabilities in
       areas of reasoning, judgment, and control of their impulses,
       however, they do not act with the level of moral culpability that
       characterizes the most serious adult criminal conduct. Moreover,
       their impairments can jeopardize the reliability and fairness of
       capital proceedings against [so diagnosed] defendants.

Id. at 306-07. Comparing such offender’s “relative culpability” to the “penological

purposes served by the death penalty,” the court determined intellectually

disabled defendants “should be categorically excluded from execution.” Id. at
                                           17


317-18. Concerning retribution, the Court found that because “severity of the

appropriate punishment necessarily depends on the culpability of the

offender . . . an exclusion for the [intellectually disabled] is appropriate.” Id. at

319. Additionally, culpability was again key to the Court’s determination that

execution of the intellectually disabled did not serve the penological purpose of

deterrence, because “it is the same cognitive and behavioral impairments that

make these defendants less morally culpable.”           Id. at 320.    “Construing and

applying the Eighth Amendment in the light of our ‘evolving standards of

decency,’ [the Court] therefore conclude[d] that such punishment is excessive

and that the Constitution ‘places a substantive restriction on the State’s power to

take the life’ of an [intellectually disabled] offender.” Id. at 321 (citation omitted).

       Atkins has not been extended to include borderline intellectually disabled

offenders. But see Hall v. Florida, 134 S. Ct. 1986, 1990, 1992 (2014) (finding

“Florida law requir[ing] that, as a threshold matter, [a defendant] show an IQ test

score of 70 or below” to establish an intellectual disability was unconstitutional

because it “create[d] an unacceptable risk that persons with intellectual disability

will be executed”). Moreover, lower courts faced with Atkins-based challenges

by intellectually-disabled offenders have found Atkins only applies to those

offenders with death penalty sentences. See, e.g., United States v. Gibbs, 237

F. App’x 550, 568 (11th Cir. 2007) (finding Atkins was inapplicable in the context

of a sentence that did not involve the death penalty); Harris v. McAdory, 334 F.3d

665, 668 n.1 (7th Cir. 2003) (same); People v. Brown, 967 N.E.2d 1004, 1022 (Ill.

App. Ct. 2012) (same); Commonwealth v. Yasipour, 957 A.2d 734, 744 (Pa.

Super. Ct. 2008) (same).
                                         18


       3. Application of Jurisprudence to Tuecke.

       Tuecke argues that because he was a juvenile and diagnosed with an

intellectual disability at the time he committed the sexual offenses, the

“mandatory” minimum imposed as part of his new sentence is unconstitutional

under the logic and reasoning of Lyle. For the following reasons, we disagree.

       First and foremost, unlike all of the cases cited above, including Lyle,

Tuecke’s judgment was initially deferred, and no sentence was imposed upon

him.   See Iowa Code § 907.1(1).        The purpose of deferred judgments “is to

provide an opportunity for rehabilitation and to spare the defendant, particularly a

first offender, the burden of a criminal record.           Like probation, a deferred

judgment is a privilege, where the defendant is the primary beneficiary.” 22A

C.J.S. Criminal Law § 558 (footnote omitted). Additionally, the death penalty is

not at issue here, and thus, Atkins is inapplicable.

       Tuecke was given an opportunity for rehabilitation from the get-go; had he

complied with the conditions set by the court, no sentence would have been

imposed upon him.      See Iowa Code § 907.1(1).           The crux of the cruel-and-

unusual-punishment     cases    where     a   juvenile’s    sentence   was   deemed

unconstitutional is that the sentencing court had no discretion to consider

relevant mitigating factors, such as the offender’s age or possibility for

rehabilitation, in fashioning its sentence. See, e.g., Miller, 132 S. Ct. at 2460

(holding mandatory life without parole for juveniles was cruel and unusual

punishment); Graham, 560 U.S. at 82 (holding the United States “Constitution

prohibits the imposition of a life without parole sentence on a juvenile offender

who did not commit homicide”); Lyle, 854 N.W.2d at 381 (“Pursuant to Iowa
                                        19


statute, the sentence was mandatory, and [Lyle] was required to serve seventy

percent of the prison term before he could be eligible for parole.”); Null, 836

N.W.2d at 46 (“At Null’s sentencing hearing, the court stated that it had no

discretion in imposing the fifty-year sentence for second-degree murder or the

twenty-five-year sentence for first-degree robbery.”); Pearson, 836 N.W.2d at 89

(“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.”); Ragland, 836 N.W.2d at 110 (“The district court then

sentenced Ragland to a term of life in prison without parole. The sentence was

mandatory under Iowa law.”).

       Unlike the above-cited cases, the court in this case had discretion initially

when it granted Tuecke a deferred judgment, and it explained it elected to defer

judgment and sentence after it considered the plea agreement, Tuecke’s age,

and the nature of the offense. Instead of imposing judgment and sentence, it

directed that programming be provided to Tuecke for purposes of rehabilitation.

Then, after Tuecke—as an adult—violated his probation agreement in 2009, the

court again chose to defer Tuecke’s judgment and sentence, ordering Tuecke to

reside at a residential treatment facility. It did not revoke its deferred judgment

and impose a sentence until 2010, when Tuecke again violated his probation by

committing numerous rule infractions of the residential treatment facility and after

Tuecke had committed second-degree burglary. Clearly, the sentencing court

gave Tuecke several chances to establish his offenses were committed because

he lacked maturity and that he was rehabilitated. Tuecke chose not to abide by
                                       20


the court’s reasonable terms. Consequently, we do not believe, under the facts

of this case, that Tuecke’s 2010 sentence constituted cruel and unusual

punishment under the Iowa Constitution merely because the offenses were

committed when he was a juvenile.

      In any event, following Tuecke’s motion requesting resentencing under

Lyle, the court resentenced Tuecke in 2015. In its colloquy at the sentencing

hearing, the judge noted his detailed experience as a juvenile-court judge, as

well as his familiarity with Tuecke’s sexual-abuse convictions, having served as

the judge in all of the prior relevant proceedings. The court further explained it

had considered the factors set forth in Lyle in determining whether to re-impose

the seventy-percent “mandatory” minimum requirement as part of Tuecke’s new

sentence, and it determined the requirement should be re-imposed, stating:

      [S]ince day one, the court has imposed the least-restrictive criminal
      sanctions, the least-onerous criminal sanctions available to Mr.
      Tuecke with the hope that he would take advantage of those
      services.
             ....
             . . . The court used graduated sanctions and increased those
      sanctions only based upon his further violations and misconduct,
      that the court only imposed the sanction of prison and the
      mandatory minimum sentence as a last resort—after exhausting all
      of his other efforts and taking into account the services offered to
      him both by the justice system and his family during the interim.
             And by following that procedure of graduated sanctions, the
      court considered the difficulty youthful offenders have in these
      circumstances and their lack of maturity by not immediately
      imposing the most severe sanction available to the court and giving
      the defendant the benefit of those opportunities to change his
      behavior.
             For all of those reasons, the court believes the mandatory
      minimum seventy-percent requirement should be imposed and the
      consecutive sentence from the new later burglary charge are all
      appropriate.
                                            21

Lyle explicitly does not prohibit judges “from imposing a minimum time that

youthful offenders must serve in prison before being eligible for parole.”4 854

N.W.2d at 403.      It only requires the sentencing court first determine if “the

minimum period of incarceration without parole is warranted under the factors

identified in Miller and further explained in Null” before imposing the time. Id. at

404 n.10. There is no question the court did that here. Cf. State v. McLachlan,

No. 14-0257, 2015 WL 1332336, at *3 (Iowa Ct. App. Mar. 25, 2015). Thus,

though the word “mandatory” has been used, it is clear the court used its

discretion in considering and then imposing a minimum term of service, as

required under Lyle. Consequently, the district court’s sentences do not violate

the Iowa Constitution on its face.

       After the district court applies the principles of Miller to a defendant’s

sentence, and we find the sentence is appropriate under Lyle, we consider

whether the sentence in this case would be cruel and unusual because of gross

disproportionality. See Null, 836 N.W.2d at 76; Bruegger, 773 N.W.2d at 883.

Though    the   basic    principles   for   determining    whether    a   sentence     is

disproportionate under the Iowa Constitution are the same under the Federal

4
   The court’s explanation in Louisell, 865 N.W.2d at 600,—that, under Lyle, “all
mandatory minimum sentences for juveniles violate article I, section 17 of the Iowa
Constitution,”—appears to be at odds with the following paragraph Lyle:
                 It is important to be mindful that the holding in this case does not
        prohibit judges from sentencing juveniles to prison for the length of time
        identified by the legislature for the crime committed, nor does it prohibit
        the legislature from imposing a minimum time that youthful offenders
        must serve in prison before being eligible for parole. Article I, section 17
        only prohibits the one-size-fits-all mandatory sentencing for juveniles.
Lyle, 854 N.W.2d at 403. However, the court noted in Louisell that the only issue before
it was “the scope of the district court’s discretion to impose an individualized sentence
after considering the Miller factors.” Louisell, 865 N.W.2d at 601 n.10 (emphasis added).
Tuecke does not challenge the district court’s authority or the scope of its discretion
here, and we consequently do not address it further.
                                          22


Constitution, our review under our own constitution is more stringent than review

under the Federal Constitutional counterpart; our review must not be “toothless.”

See Bruegger, 773 N.W.2d at 883. Nevertheless, it is “rare that a sentence will

be so grossly disproportionate to the crime as to satisfy the threshold inquiry and

warrant further review.”    State v. Oliver, 812 N.W.2d 636, 650 (Iowa 2012).

Additionally, “[i]f the sentence does not create an inference of gross

disproportionality, then ‘no further analysis is necessary.’” Id. (citation omitted).

       When reviewing a defendant’s sentence to determine whether it is “grossly

disproportionate” to the offense, we give substantial deference to the legislature

and its discretion to enact penalties for certain crimes. See id. Generally, the

punishments established by the legislature are “regarded as the most reliable

objective indicators of community standards for purposes of determining whether

a punishment is cruel and unusual.” Id. We also consider whether there is a

high risk of potential gross proportionality based upon the “unique features” of a

case. See id. at 651.

       Here, there is no doubt Tuecke’s age and intellect created a risk of

potential gross proportionality. Nevertheless, under the case’s unique facts, we

do not find the imposition of a minimum term of service to be grossly

disproportionate to Tuecke’s crimes. First, it is questionable whether Tuecke has

an intellectual disability, and if so, whether the “mild” disability would fall into the

Atkins classification of categorically-barred defendants.        Additionally, though

Tuecke was a juvenile, he was eighteen when he was charged with sexually

abusing two children under the age of twelve. He and his parents agreed to have

the case moved to district court because it provided the best possible options for
                                       23


Tuecke’s rehabilitation. Tuecke chose to enter into a plea agreement allowing

him to be granted a deferred judgment, wherein no sentence would have been

entered against him if he complied with the terms of his probation. After he

turned eighteen, he violated his probation.    The court gave Tuecke another

chance; yet, he again violated his probation. In fact, while in the residential

treatment facility, his behaviors seemed to escalate, and he has since incurred

numerous infractions in prison. Ultimately, the reasoning behind Lyle is that “our

collective sense of humanity preserved in our constitutional prohibition against

cruel and unusual punishment and stirred by what we all know about child

development demands some assurance that imprisonment is actually appropriate

and necessary.” 854 N.W.2d at 401. His probation violations and subsequent

infractions before the initial sentences were imposed evidence that imprisonment

is actually appropriate and necessary. Moreover, Tuecke does not have a life

sentence. While a seventeen-and-one-half-year sentence is lengthy, it is what

the legislature has determined to be appropriate. After reviewing Tuecke’s case

and comparing the gravity of his crime to the penalty mandated by the statute,

we do not find the minimum term of service imposed by the district court in

resentencing Tuecke leads to an inference of gross disproportionality. Since the

penalty does not lead to an inference of gross disproportionality, the sentence is

not cruel or unusual punishment, and we need not continue the analysis.

      B. Abuse of Discretion.

      Tuecke next argues the court abused its discretion when it determined the

seventy-percent time-served requirement be imposed as part of his sentences.

He argues the requirement is unreasonable, given the facts of the case. “An
                                        24


abuse of discretion will only be found when a court acts on grounds clearly

untenable or to an extent clearly unreasonable.” State v. Hopkins, 860 N.W.2d

550, 553 (Iowa 2015). “When a sentence imposed by a district court falls within

the statutory parameters, we presume it is valid and only overturn for an abuse of

discretion or reliance on inappropriate factors.” Id. at 554. Importantly, “we do

not decide the sentence we would have imposed, but whether the sentence

imposed was unreasonable.” Id. In exercising its discretion, the court should

“consider all pertinent matters in determining [the] proper sentence, including the

nature of the offense, the attending circumstances, defendant’s age, character

and propensities and chances of his reform.” Null, 836 N.W.2d at 87. Again, the

“punishment should fit both the crime and the individual,” though the court owes

a duty to the public as much as it owes to the offender in determining the

sentence. See id.

       Here, the district court considered all of the pertinent factors in

determining Tuecke’s sentences, including its decision to impose the minimum-

term-of-service requirement. It carefully weighed the aggravating and mitigating

circumstances in Tuecke’s case, including Tuecke’s failure to follow the terms of

his probation twice.    Tuecke’s behaviors evidenced he was a threat to the

community.    Upon our review, we find the imposition of a minimum term of

service as part of Tuecke’s corrected sentences was reasonable under all of

facts and circumstances of the case. Consequently, we conclude the sentencing

court did not abuse its discretion.
                                      25


      III. Conclusion.

      The district court’s decision to impose the minimum term of service

requirement as part of Tuecke’s corrected sentences did not constitute cruel and

unusual punishment under the Iowa Constitution. Additionally, the imposition of

a minimum term of service as part of Tuecke’s corrected sentences was

reasonable under all of the facts and circumstances of the case and not an

abuse of discretion. Accordingly, we affirm Tuecke’s sentences.

      AFFIRMED.
