                    IN THE COURT OF APPEALS OF IOWA

                                   No. 14-0257
                              Filed March 25, 2015

STATE OF IOWA,
     Plaintiff-Appellee,

vs.

RICHARD OSMOND MCLACHLAN JR.,
     Defendant-Appellant.
________________________________________________________________

       Appeal from the Iowa District Court for Polk County, Rebecca Goodgame

Ebinger, Judge.



       A defendant who committed his drug offense as a juvenile challenges the

constitutionality of the one-third minimum sentence provided in Iowa Code

section 124.413. SENTENCE VACATED AND CASE REMANDED.



       William Bushell of Bushell Law Firm, Des Moines, for appellant.

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

General, John P. Sarcone, County Attorney, and Mark Taylor, Assistant County

Attorney, for appellee.



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

       The question on appeal is whether the prohibition on statutorily mandated

minimum sentences for juveniles under article I, section 17 of the Iowa

Constitution announced by our supreme court in State v. Lyle, 854 N.W.2d 378

(Iowa 2014), applies to the minimum one-third period of confinement before

parole eligibility in Iowa Code section 124.413 (2013), where the sentencing

court had discretion to defer judgment or suspend the sentence.               Richard

McLachlan received the mandatory minimum term for a felony drug offense he

committed at the age of seventeen and now argues his sentence is

unconstitutional. Reading the broad holding of Lyle, we agree and remand his

case for resentencing.

       Although McLachlan raises a purely legal issue, we nevertheless set the

stage with a brief factual and procedural history. In February 2011, the State

filed a delinquency petition alleging McLachlan committed possession of more

than five grams of crack cocaine, conspiracy to deliver the drug, and a tax stamp

violation. In July 2011, McLachlan entered an Alford plea1 to possession of crack

cocaine with intent to deliver, in violation of Iowa Code section 124.401(1)(c)(3),

a class “C” felony, and received a deferred judgment under Iowa Code section

907.3(1)(a).

       McLachlan violated the terms of his probation, and the district court

imposed judgment and sentenced McLachlan to a term of incarceration not to

exceed ten years as provided by Iowa Code section 902.9(1)(d). Because the


1
 An Alford plea allows a defendant to consent to the imposition of a sentence without
admitting participation in the crime. North Carolina v. Alford, 400 U.S. 25, 37 (1970).
                                          3



court did not afford McLachlan the right of allocution before imposing sentence,

we remanded for resentencing.       State v. McLachlan, No. 12-2040, 2013 WL

5498059, at *3-4 (Iowa Ct. App. Oct. 2, 2013).

       Resentencing occurred on February 4, 2014. At the resentencing hearing,

McLachlan’s counsel discussed the scientific studies showing “the brain doesn’t

fully develop until later in life.” Counsel told the court: “the epiphany can happen

in a moment,” and argued his client was “on the road to rehabilitation.”

McLachlan gave an allocution, outlining the progress he had made while in

prison and asking for concurrent terms.

       The district court again imposed an indeterminate ten-year sentence for

the violation of section 124.401(1)(c)(3). The court ran the sentence consecutive

to another indeterminate ten-year sentence McLachlan already was serving for

possession of marijuana with intent to deliver in FECR258620. The district court

found mitigating circumstances did not exist and required McLachlan to serve a

mandatory one-third of his sentence before being eligible for parole as required

by Iowa Code section 124.413.

       McLachlan now challenges his mandatory minimum term as cruel and

unusual under article I, section 17 of the Iowa Constitution. Although challenges

to illegal sentences are ordinarily reviewed for correction of legal errors, we

review an allegedly unconstitutional sentence de novo. Lyle, 854 N.W.2d at 382.

       On appeal, McLachlan contends the sentencing court “applied a statutory

mandated sentencing scheme to a juvenile without considering or having the

chance to consider the mitigating factors inherently associated with youth.” He
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cites language from Lyle declaring “all mandatory minimum sentences of

imprisonment for youthful offenders are unconstitutional.” See id. at 400.

       The State argues “McLachlan was not subjected to a mandatory minimum

sentence” and outlines how McLachlan’s sentence differed from the punishment

considered in Lyle.    Lyle was convicted of robbery in the second degree, a

forcible felony, and faced a mandatory prison term not to exceed ten years of

which he was required to serve seventy percent. Id. at 381 (citing Iowa Code

sections 711.3, 902.9(4), and 902.12(5)). By contrast, McLachlan’s conviction

under section 124.401(1)(c)(3) could be deferred and the indeterminate ten-year

sentence could be suspended under section 907.3.            In fact, as the State

emphasizes, McLachlan initially received a deferred judgment in this case. The

State also contends the district court had discretion under Iowa Code section

901.10 to reduce McLachlan’s sentence for his first offense under section

124.413 if it found mitigating circumstances.

       It is true, as the State suggests, that the sentencing scheme under section

124.413 is not as rigid as that imposed for forcible felonies under section 902.12.

But Lyle did not limit its reach to section 902.12 cases.        The Lyle majority

ultimately held “a mandatory minimum sentencing schema, like the one

contained in section 902.12, violates article I, section 17 of the Iowa Constitution

when applied in cases involving conduct committed by youthful offenders.” Id. at

402 (emphasis added).        The majority did not restrict its rationale to the

sentencing scheme in section 902.12. See id. Instead, the majority indicted all

“mandatory minimum sentencing,” as exhibited by this passage: “Mandatory
                                              5



minimum sentencing results in cruel and unusual punishment due to the

differences between children and adults. This rationale applies to all crimes, and

no principled basis exists to cabin the protection only for the most serious

crimes.” Id. The Lyle majority further reasoned that categorically denying courts

discretion to craft a punishment that serves the best interest of a child and

society was “repugnant to article I, section 17” regardless of the overall length of

the sentence. Id. at 402–03.

       The mandatory-minimum term required by section 124.413 only comes

into play after a sentencing court has exercised its discretion to incarcerate an

offender. Under section 902.12, a court has no discretion to defer judgment or

suspend a sentence. Iowa Code § 907.3. But this distinction is not sufficient to

overcome the Lyle majority’s strong objection to the legislature’s categorical

diminishing of the role of sentencing judges in considering the mitigating factors

associated with youth.2 Despite a sentencing court’s threshold discretion to defer

judgment or suspend a juvenile’s sentence for a felony drug crime, once the

sentencing court orders a juvenile to serve a prison term, section 124.413’s

mandatory minimum one-third period of confinement is like the one contained in

section 902.12. See Lyle, 854 N.W.2d at 402.



2
  Sentencing courts must consider several factors, including (1) “chronological age” and
features of youth, including “immaturity, impetuosity, and failure to appreciate risks and
consequences”; (2) the “family and home environment” that surrounded the youth; (3)
“the circumstances of the . . . offense, including the extent of [the youth’s] participation in
the conduct and the way familial and peer pressures may have affected [the youth]”; (4)
the “incompetencies associated with youth—for example, [the youth’s] inability to deal
with police officers or prosecutors (including on a plea agreement) or [the youth’s]
incapacity to assist [the youth’s] own attorneys”; and (5) “the possibility of rehabilitation.”
State v. Ragland, 836 N.W.2d 107, 115 n.6 (Iowa 2013); Lyle, 854 N.W.2d at 404 n.10.
                                              6



       Further, the discretion accorded sentencing courts by section 901.10 to

reduce the mandatory minimum sentence for a first time offender under section

124.413 if the courts identify mitigating circumstances, lacks specific focus on the

above-noted factors peculiar to juveniles. In Lyle, the supreme court was not

swayed by the legislature’s passage of section 901.5(14) which vested

“considerable discretion in district courts to depart from any part of a sentence,

including any mandatory minimum.” Id. at 403 & n.8. The Lyle court stated: “the

mere theoretical availability of unguided sentencing discretion, no matter how

explicitly codified, is not a panacea.” Id.

       Following that reasoning, we cannot conclude the discretion available to

the sentencing court in McLachlan’s case changed the bottom line that the

mandatory minimum one-third sentence provided in section 124.413 violated

article I, section 17 of the Iowa Constitution because he was a juvenile when he

committed his crime. The sentencing court was deprived of its opportunity “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.” Id. at 404.

       Because the district court did not consider the factors identified in Lyle, at

404 n.10, we vacate McLachlan’s sentence on the felony drug offense and

remand the case to the district court for resentencing.

       SENTENCE VACATED AND CASE REMANDED.
