               IN THE SUPREME COURT OF IOWA
                              No. 09–0993

                        Filed December 17, 2010


JULIO BONILLA,

      Appellant,

vs.

STATE OF IOWA,

      Appellee.



      Appeal from the Iowa District Court for Polk County, Carla T.

Schemmel, Judge.



      Defendant claims sentence of life in prison without parole for a

juvenile nonhomicide offense violates the prohibition on cruel and

unusual punishment. SENTENCE VACATED AND CASE REMANDED

FOR RESENTENCING CONSISTENT WITH THIS OPINION.



      Mark C. Smith, State Appellate Defender, and Theresa R. Wilson,

Assistant State Appellate Defender, for appellant.



      Thomas J. Miller, Attorney General, Thomas W. Andrews, Assistant

Attorney General, John Sarcone, County Attorney, and Nan Horvat,

Assistant County Attorney, for appellee.
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STREIT, Justice.

       Julio Bonilla was convicted of kidnapping in the first degree in

adult court for an offense committed at the age of sixteen. 1                     He was

sentenced to mandatory life in prison without the possibility of parole

pursuant to the Iowa Code.            Under the recent United States Supreme

Court decision Graham v. Florida, ___ U.S. ___, ____, 130 S. Ct. 2011,

2033–34, 176 L. Ed. 2d 825, 848–50 (2010), this sentence constitutes

cruel and unusual punishment in violation of the Eighth Amendment of

the Federal Constitution. The clauses of Iowa Code sections 902.1 and

906.5 (2003) that make Bonilla ineligible for parole are unconstitutional

as applied to Bonilla.         These clauses are also severable.               Therefore,

Bonilla’s sentence must be adjusted to life in prison with the possibility

of parole.

       I. Background Facts and Prior Proceedings.

       In 2005, Julio Bonilla was convicted of kidnapping in the first

degree, a class “A” felony, in violation of Iowa Code sections 710.1 and

710.2.       Bonilla was sentenced to life imprisonment without parole

        1Throughout this opinion, we proceed based on the trial court’s finding of fact

that Bonilla was sixteen at the time of his crime. The State suggests Bonilla may not
have been sixteen at the time of his crime, arguing his precise birth date was never
“verified” because Bonilla was born in El Salvador and Bonilla is “mature-looking.”
After a bench trial, the district court entered findings of fact, including finding that
Bonilla was sixteen years of age at the time of the incident. At trial, Bonilla testified he
was sixteen at the time of the crime. The State did not present any evidence to the
contrary and concedes “all parties proceeded on the assumption” that Bonilla’s age was
correct.
       The State has not pointed to any evidence it could present beyond speculation.
Although the State’s conclusory speculation does not raise a material issue of fact to
support an evidentiary hearing revisiting the district court’s factual findings, because
the constitutional challenge to Bonilla’s sentence was first raised on appeal, the district
court may determine on remand whether further hearing on this issue is required. Cf.
Kyle v. State, 322 N.W.2d 299, 302–03 (Iowa 1982) (finding in a postconviction relief
action that defendant’s affidavit asserting decision to plead guilty was not voluntary,
despite previous colloquy to the contrary, raised material issue of fact necessitating an
evidentiary hearing).
                                     3

because under Iowa Code section 902.1, class “A” felonies are punishable

by a mandatory life sentence without the possibility of parole. Bonilla

was sixteen years old at the time of the offense.

      Bonilla filed an application for postconviction relief, which was

denied by the district court. Bonilla appealed this denial but does not

raise any of the issues that were before the district court.        Instead,

Bonilla raises, for the first time, the argument that his sentence of life in

prison without parole violates his constitutional right against cruel and

unusual punishment.

      II. Scope of Review.

      We review constitutional claims de novo. Formaro v. Polk County,

773 N.W.2d 834, 838 (Iowa 2009).         This court may correct an illegal

sentence at any time.      Iowa R. Crim. P. 2.24(5)(a).     A claim that a

sentence is unconstitutional because it constitutes cruel and unusual

punishment is a claim of an illegal sentence and may therefore be raised

at any time.    Veal v. State, 779 N.W.2d 63, 64 (Iowa 2010); State v.

Bruegger, 773 N.W.2d 862, 871–72 (Iowa 2009).

      III. Merits.

      Bonilla filed a postconviction relief action. Because he complains

his sentence is illegal, however, the claim “is not a postconviction relief

action.”   Veal, 779 N.W.2d at 65.        In Veal, the district court had

dismissed the case under the statute of limitations. Id. at 64. This court

remanded for consideration on the merits and ordered the district court

to “treat her application for postconviction relief as a challenge to an

illegal sentence.”   Id. at 65; see also Iowa R. Crim. P. 2.24(5)(a).    We

remanded to provide the district court the first opportunity to assess

whether, under the facts of the case, Veal’s sentence of life in prison

without parole as a juvenile for a homicide offense constituted cruel and
                                         4

unusual punishment. Veal, 779 N.W.2d at 65. Bonilla’s postconviction

action must also be construed as a motion to correct an illegal sentence.

Id. Here, however, there is no need to remand to the district court for

consideration of the legal issue because the United States Supreme

Court has already addressed the category of juveniles into which Bonilla

falls: juveniles who have committed a nonhomicide offense for which they

have been sentenced to life in prison without parole. See Graham, ___

U.S. at ___, 130 S. Ct. at 2033–34, 176 L. Ed. 2d at 848–50.

        A. Cruel and Unusual Punishment. Bonilla argues his sentence

of   life   in   prison   without   parole   constitutes   cruel   and   unusual

punishment under the United States and Iowa Constitutions. He argues

that because he was a juvenile at the time of his offense and did not

commit homicide, the United States and Iowa Constitutions prohibit a

sentence of life in prison without parole.

        The Eighth Amendment to the Federal Constitution states:

“Excessive bail shall not be required, nor excessive fines imposed, nor

cruel and unusual punishments inflicted.”            U.S. Const. amend. VIII.

Article I, section 17 of the Iowa Constitution states, “Excessive bail shall

not be required; excessive fines shall not be imposed, and cruel and

unusual punishment shall not be inflicted.” Iowa Const. art. I, § 17.

        In Graham, the United States Supreme Court held the United

States Constitution “prohibits the imposition of a life without parole

sentence on a juvenile offender who did not commit homicide.” ___ U.S.

at ___, 130 S. Ct. at 2034, 176 L. Ed. 2d at 850. The Court explained, “A

life without parole sentence improperly denies the juvenile offender a

chance to demonstrate growth and maturity.” Id. at ___, 130 S. Ct. at

2029, 176 L. Ed. 2d at 845.
                                         5

       Graham adopted a categorical rule prohibiting the imposition of a

life-without-parole sentence for juvenile nonhomicide offenders.                The

Court explained that a categorical rule “is necessary to prevent the

possibility that life without parole sentences will be imposed on juvenile

nonhomicide offenders who are not sufficiently culpable to merit that

punishment.” Id. at ___, 130 S. Ct. at 2030, 176 L. Ed. 2d at 845. The

court further held a state must provide “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.

       Bonilla’s claim falls squarely within the United States Supreme

Court’s decision in Graham. Bonilla was convicted of the nonhomicide

crime of kidnapping in the first degree, a class “A” felony. Bonilla was

sentenced to life in prison without parole pursuant to Iowa Code section

902.1, which provides that an individual convicted of a class “A” felony

will be sentenced to life and “shall not be released on parole unless the

governor commutes the sentence to a term of years.” 2 Graham applies

retroactively to Bonilla because it is a new rule of substantive law

clarifying the Eighth Amendment prohibition on cruel and unusual

punishment. See Schriro v. Summerlin, 542 U.S. 348, 351–52, 124 S. Ct.
2519, 2522–23, 159 L. Ed. 2d 442, 448 (2004) (“Such rules apply

retroactively because they ‘necessarily carry a significant risk that a

defendant . . .’ faces a punishment that the law cannot impose upon

him.” (quoting Bousley v. United States, 523 U.S. 614, 620, 118 S. Ct.

1604, 1610, 140 L. Ed. 2d 828, 838–39 (1998))); Goosman v. State, 764

N.W.2d 539, 544 (Iowa 2009).

        2Although Bonilla could theoretically receive a commutation from Iowa’s

governor, the Supreme Court of the United States rejected the “remote possibility” of
executive clemency in the cruel and unusual punishment analysis of Graham. ___ U.S.
at ___, 130 S. Ct. at 2027, 176 L. Ed. 2d at 842.
                                     6

      Under Graham, Bonilla’s federal constitutional right to be free from

cruel and unusual punishment was violated when he was sentenced to

life in prison without parole for the nonhomicide crime of kidnapping in

the first degree. Because Bonilla has successfully asserted a claim under

the United States Constitution, we need not address the boundaries of

the Iowa Constitution’s prohibition on cruel and unusual punishment.

      B. Remedy. Graham did not specify how the states should adjust

the sentences of juveniles previously sentenced to life in prison without

parole for a nonhomicide crime. Graham held “[i]t is for the State, in the

first instance, to explore the means and mechanisms for compliance.”

Graham, ___ U.S. at ___, 130 S. Ct. at 2030, 176 L. Ed. 2d at 846.

      Although Bonilla was sixteen at the time of his crime, he was tried

as an adult. Under Iowa Code section 702.11(1), kidnapping is a forcible

felony. The juvenile court does not have jurisdiction over juveniles who

are sixteen or seventeen at the time of their crime and are accused of

committing a forcible felony. See Iowa Code § 232.8(1)(c). Instead, the

sixteen or seventeen year old is tried in adult court. The juvenile may

then seek a waiver from adult court to the juvenile court for good cause.

Id.

      Bonilla was charged with kidnapping in the first degree. Because

kidnapping is a forcible felony, he was tried in adult court.            Id.

§§ 232.8(1)(c), 702.11. When a juvenile is convicted of a forcible felony in

adult court, the juvenile is sentenced pursuant to section 902.9.        Id.

§ 232.8(1)(c). Section 902.9 provides “[t]he maximum sentence for any

person convicted of a felony shall be that prescribed by statute or, if not

prescribed by statute” and a felony other than a class “A” felony, the

defendant shall be sentenced as described in section 902.9. Kidnapping
                                     7

in the first degree is a class “A” felony.     Id. § 710.2.   Section 902.1

provides the penalty for a class “A” felony:

            Upon a plea of guilty, a verdict of guilty, or a special
      verdict upon which a judgment of conviction of a class “A”
      felony may be rendered, the court shall enter a judgment of
      conviction and shall commit the defendant into the custody
      of the director of the Iowa department of corrections for the
      rest of the defendant’s life. Nothing in the Iowa corrections
      code pertaining to deferred judgment, deferred sentence,
      suspended sentence, or reconsideration of sentence applies
      to a class “A” felony, and a person convicted of a class “A”
      felony shall not be released on parole unless the governor
      commutes the sentence to a term of years.

Pursuant to section 902.1, Bonilla was sentenced to life in prison and

does not have the possibility of parole other than commutation by the

governor.   As described above, application of section 902.1 to Bonilla

violates the Federal Constitution.

      Iowa Code section 4.12 provides:

             If any provision of an Act or statute or the application
      thereof to any person or circumstance is held invalid, the
      invalidity does not affect other provisions or applications of
      the Act or statute which can be given effect without the
      invalid provision or application, and to this end the
      provisions of the Act or statute are severable.

“When parts of a statute or ordinance are constitutionally valid, but

other discrete and identifiable parts are infirm, we may sever the

offending portions from the enactment and leave the remainder intact.”

Am. Dog Owners Ass’n, Inc. v. City of Des Moines, 469 N.W.2d 416, 418

(Iowa 1991) (per curiam); see also State v. Aldrich, 231 N.W.2d 890, 895–

96 (Iowa 1975); State v. Blyth, 226 N.W.2d 250, 261–62 (Iowa 1975).

“Severance is appropriate if it does not substantially impair the

legislative purpose, if the enactment remains capable of fulfilling the

apparent legislative intent, and if the remaining portion of the enactment

can be given effect without the invalid provision.”      Am. Dog Owners
                                       8

Ass’n, 469 N.W.2d at 418. Similarly, where a portion of a defendant’s

sentence is improper or invalid, if possible, this court can sever the

sentence without disturbing the balance of the sentence.          State v.

Maghee, 573 N.W.2d 1, 7 (Iowa 1997).

      Severance is appropriate here. The last clause of the last sentence

of section 902.1, stating “a person convicted of a class “A” felony shall

not be released on parole unless the governor commutes the sentence to

a term of years,” is unconstitutional as applied to Bonilla.     This last

clause can be severed from the remainder of section 902.1. The statute,

as it applies to Bonilla, will read:

            Upon a plea of guilty, a verdict of guilty, or a special
      verdict upon which a judgment of conviction of a class “A”
      felony may be rendered, the court shall enter a judgment of
      conviction and shall commit the defendant into the custody
      of the director of the Iowa department of corrections for the
      rest of the defendant’s life. Nothing in the Iowa corrections
      code pertaining to deferred judgment, deferred sentence,
      suspended sentence, or reconsideration of sentence applies
      to a class “A” felony, and a person convicted of a class “A”
      felony shall not be released on parole unless the governor
      commutes the sentence to a term of years.

Therefore, Bonilla continues to serve a life sentence but must be subject

to the possibility of parole.
      Iowa Code section 906.5 provides the mechanism by which the

parole board considers parole case reviews. Section 906.5(1) establishes

annual case reviews for inmates. Inmates convicted of a class “A” felony,

however, are exempted from the annual case review.             Iowa Code

§ 906.5(1). This exemption from consideration for parole, as applied to

Bonilla, is unconstitutional. The clause “other than a class ‘A’ felon” can
                                           9

be severed from section 906.5. Therefore, the provisions of section 906.5

establishing parole reviews will apply to Bonilla. 3

       We remand to the district court for resentencing consistent with

this opinion.

       IV. Conclusion.

       Bonilla was convicted of the nonhomicide crime of kidnapping in

the first degree.        Because he was a juvenile at the time of the

nonhomicide offense, the mandatory sentence of life in prison without

the possibility of parole violated the Eighth Amendment of the United

States Constitution under Graham, ___ U.S. at ___, 130 S. Ct. at 2033–

34, 176 L. Ed. 2d at 848–50. We find the clauses of Iowa Code sections

902.1 and 906.5 prohibiting parole are unconstitutional as applied to

Bonilla and severable.        Therefore, Bonilla shall be sentenced to life in

prison, with the potential of parole.

       3Section906.5 also prohibits parole review until inmates have served the
mandatory minimum sentence for their crime as established by statute. Because
kidnapping in the first degree carries a life sentence without parole, there is no
mandatory minimum sentence established by statute.
        There is, however, a mandatory minimum sentence for kidnapping in the second
degree. See Iowa Code §§ 710.3, 902.9, 902.12. In 2003 (when the offense took place),
a defendant was required to serve eighty-five percent of the sentence for kidnapping in
the second degree. See Iowa Code §§ 902.12, 903A.2; see also State v. Ceaser, 585
N.W.2d 192, 196 n.1 (Iowa 1998) (noting the rule in section 902.12 requiring a
defendant to serve one hundred percent of the sentence is modified by section 903A.2
allowing a fifteen percent reduction of sentence for good conduct time, therefore
resulting in required service of eighty-five percent), overruled on other grounds by
Bruegger, 773 N.W.2d at 871–72. Section 902.12 now requires those convicted of
kidnapping in the second-degree to serve seven-tenths of the maximum sentence of
twenty-five years, or seventeen-and-one-half years.       Therefore, had Bonilla been
convicted in adult court of kidnapping in the second degree, he would not be eligible for
parole for a substantial portion of his sentence.
        By striking the unconstitutional statutory provisions which prevent Bonilla from
ever receiving consideration for parole, Bonilla will become eligible for an annual case
review immediately. He will therefore be eligible for a parole case review before an
individual convicted of second degree kidnapping. When a portion of a statute is
unconstitutional, we sever the offending portions from the enactment and leave the
remainder intact. Am. Dog Owners Ass’n, 469 N.W.2d at 418. We leave to the
legislature whether and how to correct this apparent inconsistency.
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    SENTENCE    VACATED   AND    CASE   REMANDED   FOR

RESENTENCING CONSISTENT WITH THIS OPINION.
