                   IN THE COURT OF APPEALS OF IOWA

                                  No. 15-0175
                              Filed June 15, 2016


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

CHRISTOPHER RYAN LEE ROBY,
     Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Black Hawk County, Stephen C.

Clarke, Judge.




      Christopher Roby appeals the district court’s re-imposition of the

mandatory minimum sentence. AFFIRMED.



      John C. Audlehelm of Audlehelm Law Office, Des Moines, for appellant.

      Thomas J. Miller, Attorney General, and Kyle P. Hanson, Assistant

Attorney General, for appellee.



      Considered by Danilson, C.J., and Vaitheswaran and Tabor, JJ.
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VAITHESWARAN, Judge.

       A jury found Christopher Roby guilty of second and third-degree sexual

abuse in connection with sexual acts he performed as a juvenile. The district

court sentenced him to a prison term not exceeding twenty-five years on the

second-degree-sexual-abuse charge, with a statutorily-prescribed mandatory

minimum sentence of seventeen-and-a-half years.       The sentence was to run

concurrently with a prison term not exceeding ten years on the third-degree-

sexual-abuse charge.

       The Iowa Supreme Court subsequently concluded “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.” State v. Lyle, 854 N.W.2d 378, 400 (Iowa 2014). The court applied

its decision “to all juveniles currently serving a mandatory minimum sentence of

imprisonment” and “require[d] all juvenile offenders . . . in prison under a

mandatory minimum sentence to be returned to court for resentencing.” Id. at

403. The court specified the procedure as follows:

       [T]he district court shall conduct a hearing in the presence of the
       defendant and decide, after considering all the relevant factors and
       facts of the case, whether or not the seventy percent mandatory
       minimum period of incarceration without parole is warranted as a
       term of sentencing in the case. If the mandatory minimum
       sentence is not warranted, the district court shall resentence the
       defendant by imposing a condition that the defendant be eligible for
       parole. If the mandatory minimum period of incarceration is
       warranted, the district court shall impose the sentence provided for
       under the statute, as previously imposed.

Id. at 404 n.10. Additionally, the court stated:

       The factors to be used by the district court to make this
       determination on resentencing include: (1) the age of the offender
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       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.

       Roby moved for resentencing under Lyle. Following a hearing, the district

court considered the Lyle factors and re-imposed the minimum period of

incarceration originally imposed. Roby appealed.

       Roby contends the Iowa Constitution (1) “preclude[s] the imposition of

mandatory minimums of any length on juvenile offenders” and (2) the district

court “fail[ed] to properly consider and weigh the [Lyle] factors as mitigating

factors.”

I.     Minimum Sentence

       Lyle did not foreclose the imposition of all minimum sentences on

juveniles.   The holding was limited to the imposition of statutory mandatory

minimum sentences without consideration of individualized sentencing factors.

The court specifically stated:

       Because our holding focuses exclusively on a statutory schema
       that requires a district court to impose a sentence containing a
       minimum period of time a juvenile must serve before becoming
       eligible for parole and that denies a district court the discretion to
       impose a lesser sentence, we do not consider the situation in which
       a district court imposes a sentence that denies the juvenile the
       opportunity for parole in the absence of a statute requiring such a
       result.

Id. at 401 n.7. The court also stated:

       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
                                         4


       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.

Id. at 403. In light of this language, this court has rejected challenges to all

minimum sentences. See State v. Davis, No. 14-2156, 2016 WL 146528, at *4

(Iowa Ct. App. Jan. 13, 2016) (“The Iowa Supreme Court did not hold in Lyle that

district courts are prohibited in all cases from imposing minimum sentences for

juvenile offenders.”); State v. Propps, No. 15-0235, 2015 WL 9451072, at *2

(Iowa Ct. App. Dec. 23, 2015) (“[A]t the end of the day, the [Lyle] court limited its

holding to prison sentences with mandatory minimum terms.”); State v. Marshall-

Limoges, 14-1610, 2015 WL 4936265, at *1 (Iowa Ct. App. Aug. 19, 2015)

(noting that “Lyle [wa]s inapplicable” where “none of the sentences . . . involve[d]

mandatory minimum terms of incarceration”); State v. Brown, No. 14-0055, 2015

WL 2393440, at *2 (Iowa Ct. App. May 20, 2015) (“We note Lyle does not

prohibit the court from imposing a minimum sentence; rather, the court must use

its discretion to consider youth and its attendant circumstances as a mitigating

factor.”). We see no reason to chart a different course here.

II.    Lyle Factors

       In choosing to impose the original sentence on resentencing, the district

court reasoned as follows:

              The victim in this case testified to multiple acts of abuse
       perpetrated by the defendant when the defendant was sixteen and
       seventeen years of age. The victim in this case was approximately
       four-and-a-half years younger than the defendant. The acts that
       resulted in the jury’s guilty verdicts were not merely based on the
       defendant’s immaturity, impetuosity, and failure to appreciate the
       risks and consequences. In this case this defendant had been
                                          5


       confronted at an earlier time about improper touching of this victim.
       Notwithstanding that, the defendant continued to sexually abuse his
       victim.
               While the defendant’s family and home environment were
       obviously not the best, the victim’s family attempted to step in and
       provide a home for him. It was during this time that the defendant
       took advantage of the child victim.
               The defendant’s participation in the conduct that resulted in
       his conviction was not the result of any familial or peer pressure. It
       was conduct freely chosen by the defendant with no care at all for
       the victim and less care for the victim’s family that was giving him a
       home.
               While the court may have been hopeful that a period of
       incarceration would have led the defendant to some remorse for his
       behavior, it is apparent that this is not the case. The documents
       submitted as Defendant’s Exhibit 1 show that in an evaluation
       conducted in May of 2005 at the Iowa Medication and Classification
       Center the defendant again denied any sexual contact ever
       occurring with the victim.       In a note entitled “Psychological
       Encounter” showing an encounter date of October 12, 2012, while
       explaining his sleep problems, it was reported, “He noted that he
       does not understand how his case has not been overturned
       because he was not in Iowa at the time of the crime.”
               The victim stance taken by the defendant does not bode well
       for rehabilitation. After ten years the defendant has yet to confront
       his own behavior or even begin to be able to empathize with the
       victim of his acts.
               The court, having considered the factors set out in State v.
       Lyle, including the possibility of rehabilitation and the capacity for
       change, concludes that the mandatory minimum sentence imposed
       in this case is appropriate. This defendant has shown no capacity
       to change the victim stance he has taken since his trial, and a
       removal of the mandatory minimum sentence imposed in this case
       would do nothing to further his rehabilitation or to protect the
       community.

Roby argues the district court “failed to properly consider and weigh the [Lyle]

factors as mitigating factors.”    Roby is correct that the Lyle factors “are all

mitigating factors.” Lyle, 854 N.W.2d at 402 n.8. At the same time, the option of

imposing the harshest sentence is still available if, in considering the Lyle factors,

the district court finds, the juvenile is “irreparably corrupt [and] beyond

rehabilitation” “notwithstanding the juvenile’s diminished responsibility and
                                         6


greater capacity for reform that ordinarily distinguishes juveniles from adults.”

See State v. Seats, 865 N.W.2d 545, 558 (Iowa 2015) (noting that, on

resentencing, the district court had the option of finding “this is the rare and

uncommon case requiring it to sentence [defendant] to life in prison without the

possibility of parole”). We read Seats as a caution to give juveniles the benefit of

virtually every doubt in resentencing juveniles pursuant to Lyle before imposing

the original, harsh sentence.

       Yet if district courts only apply the Lyle factors in an ameliorative fashion,

they could never re-impose the original sentence, an option Lyle clearly affords

them. See State v. Murcia, No. 15-0588, 2016 WL 541076, at *1 n.1 (Iowa Ct.

App. Feb. 10, 2016) (“In effect, this obligation constricts a district court’s

discretion to re-impose the original sentence with the mandatory minimum prison

term.”). As demonstrated here, this may present district courts with a “logical

impossibility” when considering “the possibility of rehabilitation and the capacity

for change.” See State v. Davis, No. 14-2156, 2016 WL 146528, at *6 (Iowa Ct.

App. Jan. 13, 2016) (“To the extent that Lyle and other controlling case law

requires a judge to consider the abstract possibility of rehabilitation as a

mitigating factor without allowing for consideration of actual historical events, the

juvenile resentencing process established in Lyle would seem to require

optimism that may no longer be realistic or appropriate years after the initial

sentence was imposed.”).

       This court has addressed these difficulties by focusing on whether the

court used the Lyle factors to impose a “harsher” sentence on resentencing. See

State v. Chany, No. 15-0340, 2016 WL 1705160, at *2 (Iowa Ct. App. Apr. 27,
                                             7

2016) (citing Lyle, 854 N.W.2d at 420 n.8.). And, the court has focused on the

abuse-of-discretion standard and whether the court reasonably exercised its

discretion. See State v. Bullock, No. 15-0077, 2016 WL 1130311, at *3 (Iowa Ct.

App. Mar. 23, 2016); State v. Giles, No. 15-0021, 2015 WL 9450810, at *2 (Iowa

Ct. App. Dec. 23, 2015). But the court also has reversed resentencing decisions

where the district court considered the factors as aggravating circumstances.

See, e.g., Davis, 2016 WL 146528, at *5; State v. Hajtic, No. 15-0404, 2015 WL

6508691, at *2-3 (Iowa Ct. App. Oct. 28, 2015).

       Because each case is fact-specific, we do not pretend to reconcile these

disparate opinions. However, we believe where district courts consider all the

Lyle factors and conclude one or more of them are either inapplicable or

essentially neutral rather than aggravating, they may not run afoul of the Lyle

precepts. In addition, we believe the fifth factor—the possibility for rehabilitation

and the capacity for change—cannot be considered in a vacuum. By necessity,

this factor requires an examination of the circumstances surrounding the

commission of the crime and the defendant’s conduct following conviction, which

may reveal minimal prospects for rehabilitation.

       The district court did its best to navigate our appellate opinions. After

carefully considering each of the Lyle factors,1 the court re-imposed Roby’s


1
  A district court’s failure to consider all the Lyle factors requires reversal. See Hajtic,
2015 WL 6508691, at *2 (reversing and remanding for district court’s “fail[ure] to
consider the fourth factor . . . during the sentencing hearing). The district court’s order
did not reference the fourth Lyle factor—“the challenges for youthful offenders in
navigating through the criminal process.” Lyle, 854 N.W.2d at 404 n.10. However, the
resentencing record reveals that this factor was inapplicable because Roby was not
criminally charged for the crimes he committed as a juvenile until he reached the age of
eighteen. Accordingly, the district court did not err in omitting the factor from its
sentencing order.
                                             8

original sentence. The court determined that several of the Lyle factors were

inapplicable in Roby’s case. See Chany, 2016 WL 1705160, at *2 (“[T]he district

court went through the Lyle factors . . . and determined none of the factors would

lessen or mitigate [defendant’s] sentence.”).

       The court also concluded Roby showed minimal capacity for rehabilitation.

In part, the court based its decision on Roby’s failure to exhibit remorse while in

prison. In our view, a defendant’s progress or lack of progress in prison is a

prime indicator of the prospects for rehabilitation and was an appropriate

consideration in deciding whether to re-impose the original sentence. See State

v. Tuecke, No. 15-0617, 2016 WL 1681524, at *12 (Iowa Ct. App. Apr. 27, 2016)

(approving district court’s consideration of [defendant’s] failure to follow the terms

of his probation twice). Significantly, Roby was disciplined for sexual misconduct

in prison based on “[i]nappropriate touching [of] female staff.”             This conduct

occurred well after his conviction and sentence. There hardly can be a clearer

indication that Roby was not rehabilitated. Accordingly, this factor did not weigh

in favor of reducing his original sentence.

       We conclude the district court did not abuse its discretion in applying the

Lyle factors.2 Accordingly, we affirm the re-sentencing decision.

       AFFIRMED.

       Tabor, J., concurs; Danilson, C.J., concurs specially.


2
  We would suggest the district court recite each Lyle factor at least in summary fashion,
state whether each factor was considered, and then address each factor to determine if
it mitigates the defendant’s conduct and, if so, how, or if it does not mitigate the conduct,
why not. Such a record would allow appellate review of the record to ascertain if the
court used proper discretion or abused its discretion as it relates to the Lyle factors. A
generalized discussion of the mitigating factors is insufficient. See Davis, No. 14-2156,
2016 WL 146528 at *7.
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DANILSON, Chief Judge (specially concurring)

         I specially concur to address the recent case of State v. Sweet, ___

N.W.2d ___, ___ , 2016 WL 3023726, at *29 (Iowa 2016), and the question of

whether the Miller factors3 remain applicable to this case. In Sweet, the supreme

court adopted a categorical rule that juvenile offenders may not be sentenced to

life without the possibility of parole under article 1, section 17 of the Iowa

Constitution. In reaching this conclusion, the supreme court decimated the use

of the Miller factors, describing one factor as “not . . . very helpful,” Sweet, 2016

WL 3023726 at *27, and another factor “fraught with risks.”                Id. at *28.

Ultimately, the court stated the Miller factors cannot be applied in any principled

way—at least as it pertains to whether parole eligibility should be granted for a

juvenile defendant facing a life sentence.

         Unfortunately, the principles in Lyle, requiring the application of the Miller

factors to determine if a mandatory minimum sentence should be imposed upon

a juvenile offender serving or required to serve a term of years, were not

overruled in Sweet. Therein lies our dilemma. Do we follow the principles of

Lyle, or conclude the principles of Lyle have been completely eroded by the

decision in Sweet?

         The resolution of this question has been best answered in Agostini v.

Felton, 521 U.S. 203 (1997).          In Agostini, the United States Supreme Court

stated,

                We do not acknowledge, and we do not hold, that other
         courts should conclude our more recent cases have, by implication,

3
    Miller v. Alabama, 132 S. Ct. 2455, 2475 (2012).
                                         10


       overruled an earlier precedent. We reaffirm that “[i]f a precedent of
       this Court has direct application in a case, yet appears to rest on
       reasons rejected in some other line of decisions, the Court of
       Appeals should follow the case which directly controls, leaving to
       this Court the prerogative of overruling its own decisions.”

521 U.S. at 237 (alteration in original) (citing Rodriguez de Quijas v. Shearson,

490 U.S. 477, 484 (1989)).

       Our supreme court has said much the same in stating,

              Yet it is the prerogative of this court to determine the law,
       and we think that generally the trial courts are under a duty to follow
       it as expressed by the courts of last resort, as they understand it,
       even though they may disagree. If our previous holdings are to be
       overruled, we should ordinarily prefer to do it ourselves.

State v. Eichler, 83 N.W.2d 576, 578 (Iowa 1957).

       Because Lyle, as well as State v. Pearson, 863 N.W.2d 88, 95-97 (Iowa

2013)—a similar case involving a juvenile offender facing a mandatory-minimum

sentence—have not been overruled and directly control the issue before us, we

remain bound by the principles of Lyle. Accordingly, the majority was correct to

apply the Miller factors in this case, and I agree with resolution reached by the

majority.
