                   IN THE COURT OF APPEALS OF IOWA

                                  No. 14-0945
                               Filed April 8, 2015


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

CHARLES E. WALKER JR.,
     Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Scott County, Stuart P. Werling,

Judge.



      Charles E. Walker Jr. appeals the denial of his motion to correct an illegal

sentence. AFFIRMED.




      Courtney T. Wilson of Gomez May L.L.P., Davenport, for appellant.

      Thomas J. Miller, Attorney General, Darrell Mullins, Assistant Attorney

General, and Alan R. Ostergren, County Attorney, for appellee.



      Considered by Danilson, C.J., and Potterfield and Bower, JJ.
                                          2


DANILSON, C.J.

       Charles E. Walker Jr. appeals the denial of his motion to correct an illegal

sentence.

       A defendant may challenge an illegal sentence at any time.             State v.

Bruegger, 773 N.W.2d 862, 869 (Iowa 2009). Our review of constitutional claims

is de novo. Id.

       On August 30, 1988, two criminal complaints were filed against Charles

Walker in Muscatine, Iowa.        On October 7, 1988, an order was entered

transferring this matter from the juvenile court to the district court. The State filed

a trial information with attached minutes of testimony on October 11, 1988,

charging Walker with Count I—first-degree kidnapping, Count II—willful injury,

Count III—first-degree sexual abuse, Count IV—first-degree burglary, and Count

V—attempted murder. According to the minutes of testimony, on July 5, 1988,

Walker entered the home of the victim uninvited between the hours of 8:00 to

9:00 p.m. He assaulted the victim by striking her, choking her multiple times with

an electric cord, forcing her to perform sexual acts upon him, and attempting to

have intercourse with her against her will.

       On November 4, 1988, defense counsel filed a motion to suspend

proceedings and application for psychological examination. Walker was fifteen

years old at the time of the offenses. The application was granted, and the

Mental Health Institute in Independence, Iowa, was ordered to evaluate Walker

to determine whether he was suffering from a mental disorder that prevented him

from appreciating the charge, understanding the proceedings, or assisting

effectively in his defense.
                                          3


       On December 23, 1988, a plea agreement was filed in the district court in

which the State agreed to dismiss the kidnapping and attempted murder charges

in exchange for Walker’s guilty pleas to the offenses of second-degree sexual

abuse, first-degree burglary, and willful injury, for which the State would

recommend consecutive sentences. The same day, the district court entered a

form order, checking the box indicating the court “accepts the plea and it will

embody in the judgment and sentence the disposition provided for in the plea

agreement or another disposition more favorable to the Defendant than that

provided for in the plea agreement.” A presentence investigation report was

prepared, which set out Walker’s social and mental health history, which we need

not reiterate here.   On January 27, 1989, a court calendar entry1 indicates

Walker was sentenced to serve consecutive terms of incarceration not to exceed

twenty-five years on the burglary charge, twenty-five years on the sexual abuse

charge, and ten years on the willful injury charge. There was no mandatory

minimum prison term imposed.2

       On September 3, 2013, Walker filed a pro se motion to correct an illegal

sentence, contending the consecutive sentences were disproportionate to the

crime, citing State v. Ragland, 836 N.W.2d 107 (Iowa 2013); State v. Null, 836

N.W.2d 41 (Iowa 2013); and State v. Pearson, 836 N.W.2d 88 (Iowa 2013).

       On May 7, 2014, after hearing arguments, the district court dismissed

Walker’s motion, stating:


1
   Nothing in the district court file indicates Walker’s sentencing was recorded or
transcribed.
2
  The State asserts Walker has always been eligible for parole and could discharge his
sentence in 2017.
                                         4


             It’s the ruling of the court that in this case the sentencing
      court did, in fact, give individualized attention to the sentence
      involved. The court had before it the option of sentencing the
      defendant to twenty-five, thirty-five, fifty, or sixty years, and in its
      discretion chose the maximum sentence. The fact that the
      defendant will have served the sentence in full and be released,
      without further violation, by the board of parole within two to three
      years is an indication to the court that it is not, in fact, a life
      sentence disproportionate to the crime committed. And in that
      regard, the court notes that having read the victim impact
      statements, the trial information, and the minutes of testimony, that
      the alleged offense in this case was very heinous. The court also
      would indicate that having read the original trial information, as part
      of the plea agreement an attempted murder charge was dismissed.
      The court is not taking into consideration any charges to which the
      defendant did not plead guilty, but that was part of the plea
      agreement, which—the benefit to which this defendant received by
      pleading guilty twenty-six years ago.
             Accordingly, it’s the ruling of the court that there is no illegal
      sentence to be corrected.

      Walker now appeals.       His challenge to his original sentence does not

focus on disproportionality.    Rather, he contends his sentence was illegal

because:

      Although we do not have access to a transcript to reflect what was
      considered by the court at the time of Walker’s sentencing all the
      way back in 1989, it is apparent that Walker, and every juvenile
      offender sentenced in adult court prior to Miller [v. Alabama, 132 S.
      Ct. 2448 (2012)], was deprived of the type of individualized
      sentencing hearing envisioned by its ruling, and recognized by the
      Iowa Supreme Court. Because the sentencing judge did not have
      access to Miller in 1989, it is unquestionable that consideration was
      not given to the factors set forth in Miller. Our Iowa Supreme Court
      has held that Miller applies retroactively. Therefore, Walker is
      entitled to be resentenced under an individualized process in the
      district court.

      In Miller, 132 S. Ct. at 2463, the United States Supreme Court held that a

mandatory life-without-parole sentence for juveniles violates the Eighth

Amendment of the United States Constitution.
                                          5

       In Pearson, the defendant challenged her seventy-percent mandatory

minimum sentence as cruel and unusual punishment under the Eighth

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

Constitution.   836 N.W.2d at 89.      Pearson, then seventeen years old, was

convicted of two counts of first-degree robbery and two counts of first-degree

burglary. Id. The district court sentenced her to serve concurrent sentences for

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

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

served consecutively. Id. Because each first-degree robbery conviction carried

a sentence of twenty-five years imprisonment subject to a seventy percent

mandatory minimum, Pearson received a fifty-year sentence and would not be

eligible for parole until she served thirty-five years. Id. Our supreme court ruled,

“[W]e think a minimum of thirty-five years without the possibility of parole for the

crimes involved in this case violates the core teachings of Miller.” Id. at 96.

       And in a case decided after the district court ruled in Walker’s case, State

v. Lyle, 854 N.W.2d 378, 382 (Iowa 2014), our supreme court examined whether

the seventy percent mandatory minimum of a ten-year sentence for second-

degree robbery was constitutional in light of Ragland, Pearson, and Null. The

supreme court “conclude[d] that the sentencing of juveniles according to

statutorily required mandatory minimums does not adequately serve the

legitimate penological objectives in light of the child’s categorically diminished

culpability.” Lyle, 854 N.W.2d at 398.

       But there was no mandatory minimum imposed in Walker’s case, and our

supreme court has observed “[t]here is nothing cruel and unusual about
                                          6


punishing a person committing two crimes more severely than a person

committing one crime, which is the effect of consecutive sentencing.” State v.

August, 589 N.W.2d 740, 744 (Iowa 1999).             Moreover, we reject Walker’s

argument made here that Walker was deprived of an individualized sentencing

determination. The district court here concluded the sentencing court “did, in

fact, give individualized attention to the sentence involved.” Walker has given us

no information to rule otherwise.3

       Agreeing with the district court that no illegal sentence was imposed, we

affirm the district court’s dismissal of Walker’s motion to correct an illegal

sentence.

       AFFIRMED.




3
  Walker only raised on appeal the cruel and unusual punishment claim, and cursorily
suggests that individualized sentencing hearings should be afforded all juveniles given
long sentences—a requirement not yet imposed by the Iowa Supreme Court.
