                    IN THE COURT OF APPEALS OF IOWA

                                    No. 16-0950
                                Filed July 19, 2017


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

SHAWN ERIC PATTISON,
     Defendant-Appellant.
________________________________________________________________

       Appeal from the Iowa District Court for Palo Alto County, David A. Lester,

Judge.



       An habitual drug offender challenges his fifteen-year sentence as

unconstitutional. AFFIRMED.



       Jack Bjornstad of Jack Bjornstad Law Office, Okoboji, for appellant.

       Thomas J. Miller, Attorney General, and Kevin Cmelik and Zachary C.

Miller, Assistant Attorneys General, for appellee.



       Considered by Vaitheswaran, P.J., and Tabor and Mullins, JJ.
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TABOR, Judge.

       The constitutionality of Shawn Pattison’s prison sentence depends upon

which of two scenarios accurately describes his situation. Pattison paints himself

as a drug user, not a drug dealer, who received an indeterminate fifteen-year

prison sentence without eligibility for parole for three years for possessing a

single rock of methamphetamine. He contends his sentence violates the due

process and cruel and unusual punishment clauses of the state constitution. The

State poses a different question: Does it offend the Iowa Constitution to punish a

three-time felony offender for possessing a small amount of methamphetamine?

Adopting the State’s comprehensive formulation of the issue, we find no

constitutional violation and affirm Pattison’s sentence.

   I. Facts and Prior Proceedings

       Pattison received his first adult criminal conviction in 1999, according to

the presentence investigation report prepared for this case.     Relevant to the

sentencing issue on appeal, in 2002, Pattison was convicted of eluding, a class

“D” felony. In 2004, Pattison was convicted of methamphetamine possession,

second offense. In 2007, Pattison was convicted of possession of marijuana,

third offense. In 2009, Pattison was convicted of burglary in the third degree,

also a class “D” felony.

       In September 2015, a deputy with the Palo Alto Sheriff’s Office went to

Pattison’s home to execute an arrest warrant. When the deputy stopped Pattison

outside his residence, “[h]e kept putting his hands in his pockets.”        When

searching Pattison’s pocket incident to the arrest, the deputy found a baggie

containing a rock of methamphetamine, which weighed .41 grams. The State
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charged Pattison with possession of a controlled substance, third or subsequent

offense, a class “D” felony, in violation of Iowa Code section 124.401(5) (2015).

The State also alleged Pattison was an habitual felon in violation of Iowa Code

section 902.9.    A jury convicted Pattison on the possession charge, and he

admitted having the prior felony convictions.         The district court sentenced

Pattison to an indeterminate fifteen-year term of incarceration under Iowa Code

section 902.9(1)(c), with a “mandatory minimum term” of three years under

section 902.8.

       On appeal, Pattison challenges only the constitutionality of his sentence.1

    II. Preservation of Error and Standard of Review

       Pattison may contest the legality of his sentence at any time. See State v.

Bruegger, 773 N.W.2d 862, 869 (Iowa 2009) (recognizing certain constitutional

challenges fall under Iowa Rule of Criminal Procedure 2.24(5)(a)). We review

constitutional questions de novo.        See id.     As courts, we give a strong

presumption of constitutionality to legislative determinations concerning terms of

imprisonment. See State v. Lara, 580 N.W.2d 783, 785 (Iowa 1998). “We will

not declare a statute constitutionally bad unless it is clearly, palpably, and without

doubt violative of a constitutional right.” State v. Kramer, 235 N.W.2d 114, 117

(Iowa 1975).




1
 Pattison asked our supreme court to retain this appeal under Iowa Rule of Appellate
Procedure 6.1101(2), alleging it presents an issue of first impression. But the supreme
court transferred the case to us for resolution.
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   III. Constitutional Challenges

           A. Due Process of Law

       Pattison first contends his prison sentence violates the substantive due

process protection in the Iowa Constitution. At issue is the following clause: “[N]o

person shall be deprived of life, liberty, or property, without due process of law.”

Iowa Const. art. I, § 9.

       Pattison acknowledges the substantial deference the judicial branch

affords the legislative branch when it comes to prescribing punishments. See,

e.g., Bruegger, 773 N.W.2d at 872-73. But he asserts the habitual offender

statute at section 902.9(1)(c), requiring incarceration, violates due process when

applied to a drug user like he claims to be who should be “treated leniently with

emphasis on treatment.”

       In evaluating Pattison’s due process challenge, the parties agree we look

for a “reasonable fit” between the government interest and the means used to

advance that interest. See State v. Kingery, 774 N.W.2d 309, 315 (Iowa 2009).

The government interest at stake is deterring and punishing crimes committed by

incorrigible offenders. See State v. Maxwell, 743 N.W.2d 185, 191 (Iowa 2008).

The means used to achieve that interest is a longer sentence and a defined

period of incarceration before eligibility for parole.   See State v. Oliver, 812

N.W.2d 636, 646 (Iowa 2012) (recognizing recidivism as a legitimate basis for

increased punishment).

       Where previous, more lenient punishments—including probationary

periods—have not convinced repeat felons to stay out of trouble, the legislature

may logically believe a more extended separation from the community would
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make a greater impression on the offenders while, at the same time, would

protect the public for a longer stretch of time. While Pattison’s drug offenses

appear to involve personal possession rather than dealing, it is the persistent

nature of his lawbreaking that has subjected him to the habitual offender statute.

We cannot say the enhanced punishment adopted by the legislature for this kind

of case “is clearly and palpably unreasonable and bears no rational relationship

to the legislative purpose of regulating certain repeated criminal conduct.”

Kramer, 235 N.W.2d at 117.

           B. Cruel and Unusual Punishment

       Pattison also argues his sentence runs afoul of article I, section 17 of the

Iowa Constitution, which provides: “Excessive bail shall not be required;

excessive fines shall not be imposed, and cruel and unusual punishment shall

not be inflicted.”

       Cruel-and-unusual-punishment challenges can be raised in two ways:

through a categorical approach—questioning the general sentencing practice—or

by a gross-disproportionality comparison of a particular defendant’s sentence

with the seriousness of the crime at hand. See Oliver, 812 N.W.2d at 640.

Pattison presents arguments under both theories.

       Under the categorical approach, the challenge to a particular sentence

may be concerned with “either the characteristics of the crime or the criminal.”

Id. at 641. The analysis proceeds in two steps: first, we consider “objective

indicia of society’s standards” to decide if a national consensus exists as to the

sentencing practice; and second, we exercise our independent judgment to

consider the culpability of the offenders in light of their characteristics, their
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crimes, and the severity of the punishment in question. See State v. Lyle, 854

N.W.2d 378, 386 (Iowa 2014).

       Here, Pattison focuses on the characteristics of drug users. He contends

Iowa legislative enactments show objective indicia of the societal standard that

drug users should receive lighter sentences as part of a “lenient rehabilitation-

oriented approach.” See Iowa Code ch. 124. In his view, the Iowa legislature

intended probation and treatment for drug users, as distinguished from drug

dealers. Pattison urges us to use our “independent judgment,” to hold “a fifteen-

year sentence for possession of a rock of methamphetamine violates article I,

section 17.”

       Pattison’s argument minimizes the “habitual” aspect of the habitual

offender statutes.2 As the State argues,

       Under Iowa Code section 124.401(5), a person who violates
       chapter 124 and has two prior drug convictions is guilty of a class
       “D” felony. And under Iowa Code section 902.9(1)(c), a person
       who has previously been convicted of two felonies is punishable by
       a fifteen-year sentence. Thus, to receive a fifteen-year sentence
       for possessing methamphetamine, a person must have at least two
       prior drug convictions and two prior felony convictions.

That level of recidivism creates greater culpability and merits a more severe

sentence. When reviewing a statute increasing punishments for recidivist sex

offenders, our supreme court reasoned: “Enhancing punishment based on

recidivism fulfills the legitimate goals of incapacitation and deterrence.” Oliver,



2
  As the State points out, Pattison does not claim a national consensus exists against
enhanced sentences for recidivists. In fact, the national consensus appears to favor
punishing repeat offenders more severely than first-time offenders, as demonstrated by
recidivist statutes being enacted in all states and at the federal level. See, e.g., Parke v.
Raley, 506 U.S. 20, 26 (1992) (“Statutes that punish recidivists more severely than first
offenders have a long tradition in this country that dates back to colonial time.”).
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812 N.W.2d at 646 (holding statute did not constitute cruel and unusual

punishment under a categorical analysis). Those two goals—incapacitation and

deterrence—are also advanced by the recidivist statutes enhancing Pattison’s

punishment. See Dudley v. State, No. 13-1754, 2014 WL 7343432, at *7 (Iowa

Ct. App. Dec. 24, 2014). Because Pattison’s sentence serves legitimate goals

and is supported by a national consensus, we reject his claim that the

punishment is categorically cruel and unusual.

       Implicating the gross-disproportionality analysis, Pattison asserts: “It is

certainly cruel to sentence [him] to fifteen years for possession of a rock of

methamphetamine.”      Our supreme court has determined “review of criminal

sentences for ‘gross disproportionality’ under the Iowa Constitution should not be

a ‘toothless’ review” and adopted “a more stringent review than would be

available under the Federal Constitution.” Bruegger, 773 N.W.2d at 883. In

performing that “more stringent review,” we use the three-part test adopted in

Solem v. Helm, 463 U.S. 277, 292 (1983), and modified in Ewing v. California,

538 U.S. 11, 23-24 (2003). See Bruegger, 773 N.W.2d at 873.

       The first part of the test involves balancing the gravity of the crime against

the severity of the sentence. Id. It is “a relatively rare case” where this threshold

comparison of the crime committed and the sentence imposed leads to an

inference of gross disproportionality.   Id. at 873, 884.     And we perform the

balancing with “substantial deference” to the legislatively determined penalties.

Id. at 872-73.   Further, we may consider Pattison’s criminal history because

recidivist offenders are “more culpable and thus more deserving of a longer

sentence” than first-time offenders. Oliver, 812 N.W.2d at 650. Finally, we mull
                                         8


whether “an unusual combination of features” in Pattison’s case converge,

generating “a high risk of potential gross disproportionality.”      Bruegger, 773

N.W.2d at 884.

       Unlike Bruegger, Pattison’s sentence is not the rare case where unusual

circumstances unite to create a high risk of gross disproportionality. Pattison,

who was forty-five years old at the time of sentencing, has a long history of

criminality, including multiple drug convictions. His possession of .41 grams of

methamphetamine in September 2015 cannot be viewed in isolation from his

extensive adult criminal record—starting in 1999.

       Critical to our constitutional analysis is the preeminent role of the

legislature in fashioning criminal sentences. We must defer to the legislature’s

determination to punish a recidivist drug crime as a “D” felony when the

defendant has previously been convicted of two or more violations of our

controlled-substances chapter.       We also must defer to the legislature’s

determination that a conviction for multiple felonies warrants the habitual offender

enhancement. See Dudley, 2014 WL 7343432, at *8. In this light, we conclude

the severity of Pattison’s sentence is not grossly disproportionate to the gravity of

his methamphetamine possession—viewed as the latest example of his

recidivism.

       Because Pattison has failed to meet the threshold test, we may abort our

assessment of his gross-proportionality claim. See Oliver, 812 N.W.2d at 653

(“Since the penalty does not lead to an inference of gross disproportionality, we

need not proceed to steps two and three of the analysis.”).
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      To recap, sentencing a repeat drug offender and habitual felon to fifteen

years in prison with a mandatory three-year minimum does not violate either the

due process clause or the cruel and unusual punishment clause of the Iowa

Constitution. Accordingly, we reject Pattison’s illegal-sentence challenge.

      AFFIRMED.
