                    IN THE COURT OF APPEALS OF IOWA

                                  No. 16-0055
                             Filed August 17, 2016


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

KENNETH OWEN BARRY,
     Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Polk County, Karen A. Romano,

Judge.




      Kenneth Barry appeals the denial of his motion to correct an illegal

sentence. AFFIRMED.




      Kevin Hobbs, West Des Moines, for appellant.

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

General, for appellee.




      Considered by Vogel, P.J., and Doyle and Bower, JJ.
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DOYLE, Judge.

       Kenneth Barry appeals the denial of his motion to correct an illegal

sentence, which he brought pursuant to State v. Lyle, 854 N.W.2d 378, 403

(Iowa 2014).1 Barry, a minor at the time he committed the offenses for which he

was sentenced, argues his sentence is illegal because it contains a mandatory

minimum term. He asserts Lyle requires his resentencing.

       Barry was charged with two counts of robbery in the second degree and

one count of conspiracy to commit robbery. Barry was sixteen years and eight

months old at the time he committed the criminal offenses. Pursuant to a plea

agreement, Barry pled guilty to all three counts and was sentenced to a period of

imprisonment not to exceed ten years for each count, with the robbery counts

running concurrent to each other but consecutive to the conspiracy count, for a

total period of imprisonment not to exceed twenty years. He was required to

serve a minimum sentence of seven years on the robbery counts. See Iowa

Code § 902.12(1) (2013) (requiring those convicted of certain felonies to serve a

minimum of seven-tenths of the maximum sentence). More than a year after

sentencing, Barry moved to correct his sentence, alleging Lyle required the court

to reconsider imposing the mandatory minimum sentence.                The district court

denied the motion, and Barry now appeals.




1
 In Lyle, the Iowa Supreme Court held that
       article I, section 17 of the Iowa Constitution forbids a mandatory minimum
       sentencing schema for juvenile offenders that deprives the district court of
       the discretion to consider youth and its attendant circumstances as a
       mitigating factor and to impose a lighter punishment by eliminating the
       minimum period of incarceration without parole.
854 N.W.2d at 404.
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       Barry’s argument is premised on a faulty foundation. The fact that his

sentence imposes a mandatory minimum period of time he must serve before

being eligible for parole does not make his sentence illegal per se.          As our

supreme court noted, the Lyle holding “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.” Lyle,

854 N.W.2d at 403. The section 902.12 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 [sentencing] court that the minimum
       period of incarceration without parole is warranted under the factors
       identified in Miller [v. Alabama, 132 S. Ct. 2455, 2468 (2012),] and
       further explained in [State v. Null, 836 N.W.2d 41, 74-75 (Iowa
       2013)].

Id. at 404 n.10. The factors to be used by a court sentencing a juvenile 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. (citing Miller, 132 S. Ct. at 2468; Null, 836 N.W.2d at 74-75; and State v.

Pearson, 836 N.W.2d 88, 95-96 (Iowa 2013); State v. Ragland, 836 N.W.2d 107,

115 n.6 (Iowa 2013)). If the court finds the mandatory minimum sentence is

warranted, the sentencing court may impose the sentence provided for under the

statute. See id. That is what occurred here.
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         At the sentencing hearing, the court detailed the reasons for the sentence

it imposed upon Barry. It considered that Barry was a “young person,”2 and that

he had committed the crimes when he was sixteen years old.                     The court

discussed at length the nature of the offenses and role of other accomplices,

Barry’s level of responsibility, his cooperation with law enforcement, his attempts

at and prospects for future rehabilitation, his history in juvenile court, his ability to

understand his behavior, his difficulties at the State Training School, the impact

of the offenses on the victims, and the plea agreement.                It summarized its

reasons in the written sentencing order, in which the court indicated it considered

Barry’s age, the nature of the offenses committed, the plea agreement, and

“other factors as follows”:

                [Barry] was sixteen years of age at the time these offenses
         were committed. The court has conducted an individualized
         sentencing hearing and has considered all factors required
         pursuant to [Miller, Null, Pearson, Ragland,] Roper v. Simmons,
         543 U.S. 551 (2005), and Graham v. Florida, 560 U.S. 48 (2010).
                This court’s specific findings set forth on the record are
         incorporated herein as though fully set forth. In summary, the court
         recognizes the United States Supreme Court and the Iowa
         Supreme Court [have determined] that children are different, they
         have less developed judgment, [they] are susceptible to peer
         pressure, and their character is not fully formed.           [Barry]’s
         diminished culpability is a factor in this criminal sentencing. The
         appellate courts require this court to recognize that a juvenile is
         more capable of change than an adult and that a juvenile’s actions
         are less likely to be evidence of irretrievable depraved character. A
         lengthy prison sentence without a meaningful opportunity for parole
         should be a rare or uncommon occurrence.                  The typical
         characteristics of youth—immaturity, impetuosity, and poor risk
         assessment—are to be considered mitigating, not aggravating,
         factors. However, the court still considers the protection of public
         safety in its determination. The appellate cases on juvenile
         sentencing do not guarantee a youth a specific length of sentence
         or even eventual release, only that he be given a meaningful

2
    Barry was two days shy of being eighteen years old at the time of sentencing.
                                          5


       opportunity to demonstrate rehabilitation and fitness to return to
       society.
              In considering the facts and circumstances of this case, the
       court finds that [Barry] had prior contact with juvenile authorities,
       spent time in a youth shelter, and was provided an opportunity for
       substance abuse treatment and probation through the juvenile
       court. [Barry]’s behavior while under the supervision of the juvenile
       court did not improve but deteriorated. While [Barry]’s youth,
       immaturity, underdeveloped judgment, and vulnerability to peer
       pressure are taken into account, the court finds that return to the
       community at this time is not appropriate. The court has also
       considered the seriousness of the offenses, the use of a weapon,
       and the impact on the victims.

After considering all appropriate sentencing factors to be applied to a juvenile

offender, the court concluded that imposition of the mandatory minimum

sentence was warranted.

       In denying Barry’s motion to correct an illegal sentence, the district court

pointed out:

               At [Barry]’s sentencing hearing, the court discussed at length
       on the record and/or in the sentencing order each of the five factors
       set forth in Lyle. The transcript of the sentencing hearing reflects a
       lengthy discussion of [Barry]’s age and features of youthful
       behavior; his particular upbringing and services through the juvenile
       court; the circumstances of the crime and his role (bringing the gun
       into the situation), including his truthfulness with authorities and his
       testimony at the trial of a co-defendant; and the possibility of
       rehabilitation and capacity for change. There was no specific
       discussion of his challenges in navigating the criminal process, but
       it is clear he was always represented by counsel, who worked
       diligently to negotiate a plea deal for him. The court referenced the
       presentence investigation and all of the attachments thereto, which
       included records of [Barry]’s family history, treatment services,
       evaluations, and juvenile court records. The court did consider all
       of the factors set forth in Lyle and the earlier juvenile sentencing
       cases.

We agree with the district court that it did not impose an illegal sentence.

       Barry makes no assertion the sentencing process was deficient in any

way. Instead, because he was sentenced before Lyle was filed, he argues he is
                                          6

entitled to an automatic resentencing as Lyle “appears to require” the

resentencing of all juveniles serving mandatory minimum sentences at the time

Lyle was filed.   Indeed, Lyle states that its holding “will require all juvenile

offenders who are in prison under a mandatory minimum sentence to be returned

to court for resentencing.” 854 N.W.2d at 403. However, we believe Barry reads

Lyle too broadly, and we wholeheartedly agree with the district court’s response

to Barry’s argument:

       Although Lyle appears to require resentencing of all juvenile
       offenders with a mandatory minimum sentence, the supreme court
       surely meant all juvenile offenders who have not had an
       individualized sentencing hearing where the five Lyle factors were
       considered. Here, if a new sentencing hearing is held, the court will
       be considering the exact same factors that it already considered on
       June 23, 2014, as those are the same factors now set forth in Lyle.
       To “re-do” a sentencing hearing which is not constitutionally
       defective serves no purpose.

We affirm the district court’s denial of Barry’s motion to correct his sentence.

       AFFIRMED.
