                   IN THE COURT OF APPEALS OF IOWA

                                  No. 16-2169
                              Filed March 7, 2018


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

DAMON MARCELLE CALAWAY,
     Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Polk County, Jeanie K. Vaudt, Judge.



      A defendant appeals the sentence imposed following his resentencing

hearing. AFFIRMED.



      Erin M. Carr of Carr & Wright, P.L.C., Des Moines, for appellant.

      Thomas J. Miller, Attorney General, and Genevieve Reinkoester, Assistant

Attorney General, for appellee.



      Considered by Vogel, P.J., and Potterfield and Mullins, JJ.
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VOGEL, Presiding Judge.

      Damon Calaway appeals following his second resentencing hearing. He

asserts the court abused its discretion in imposing consecutive sentences and in

denying his request for the appointment of an expert at state expense to testify in

mitigation of punishment. We affirm the district court’s resentencing decision.

I. Background Facts and Proceedings.

      In January 1999, Calaway was convicted of first-degree murder and first-

degree kidnapping related to the 1996 death of Dawue Stigler. See State v.

Calaway, No. 99-0258, 2000 WL 278711, at *1 (Iowa Ct. App. Mar. 15, 2000). At

the time of the crime, Calaway was seventeen years old. Calaway was originally

sentenced to two consecutive life terms of imprisonment without the possibility of

parole. See Calaway v. State, No. 07-072, 2008 WL 5412262, at *1 (Iowa Ct. App.

Dec. 31, 2008).

      Following the United States Supreme Court’s decision in Miller v. Alabama,

567 U.S. 460, 489 (2012), which declared the mandatory imposition of life without

parole for juvenile offenders violates the Eighth Amendment’s prohibition of cruel

and unusual punishment, Iowa’s Governor commuted the sentences of all juvenile

offenders who had received a mandatory-life-without-parole sentence for a

homicide offense to life with no possibility of parole for sixty years. In September

2012, Calaway filed a motion to correct an illegal sentence arguing his original

sentence and the commuted sentence were unconstitutional. The district court

stayed the proceedings on Calaway’s motion while our supreme court addressed

identical issues in pending cases. See State v. Ragland, 836 N.W.2d 107, 122

(Iowa 2013) (declaring the Governor’s commutation did not correct the illegal
                                        3

sentence under Miller and juvenile offenders must still be given an individualized

sentencing hearing).

      In October 2015, Calaway filed an application to retain an expert witness at

state expense for his resentencing hearing. He asserted the expert would provide

testimony regarding his home life and background when he was a juvenile, and his

capacity for change in adulthood.        He estimated the expert would cost

approximately $15,000. The district court denied the motion, saying: “In this case,

defendant does not need an expert witness to testify regarding his home life and

background and capacity for change.” The court noted the supreme court had

already adopted standards through recent case law for the district court to apply

when resentencing Calaway and

      [t]he standards already incorporate the concepts that could serve as
      the basis of any expert testimony. . . . The concepts underlying the
      proposed expert testimony in this case are inherently included within
      the standards that have been carefully laid out by the United States
      and the Iowa Supreme Courts in their recent decisions. There is no
      need to hire an expert at public expense to testify to the concepts
      that have already been adopted by case law.

The court also noted that no presentence investigation (PSI) report had been

prepared in this case due to the prior sentence of life without the possibility of

parole. The court ordered a PSI to be prepared and contain information regarding

Calaway’s family, education, criminal history, and other relevant factors to be

considered. It also ordered the department of corrections (DOC) to expand its

existing report to include additional information regarding Calaway’s successes

and failures while incarcerated. In the event the PSI could not be timely completed

or if the DOC report was insufficient, the court authorized Calaway to retain an
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investigator to provide the necessary factual information and approved the

investigator’s expense up to $3000.

       The day before the March 2016 resentencing hearing, Calaway asked the

district court to reconsider its ruling denying his expert after reviewing the PSI and

the DOC’s report, but at the sentencing hearing, the district court denied the

motion, saying:

       I honestly don’t see what this individual could provide the court in
       terms of the court deciding what’s the most appropriate thing to do
       here regarding resentencing that would be over and above what is
       already in the files here regarding the status of Mr. Calaway vis-a-vis
       all the factors that the court has to apply.
               So I think the request is unreasonable, and I don’t think that it
       would add anything to the mix of information the court needs to
       consider in issuing a new sentence in this matter.

The court then proceeded to resentencing, hearing from defense counsel, the

prosecutor, and Calaway.       The court applied the sentencing considerations

outlined in the supreme court’s cases and determined this case was the “extreme,

rare, and uncommon” case where the presumption of life with the possibility of

parole had been rebutted. The court reaffirmed Calaway’s original sentence of

consecutive terms of life without the possibility of parole, denying Calaway’s

motion to correct an illegal sentence.

       Calaway filed a notice of appeal following that decision. While that decision

was pending on appeal, our supreme court issued a decision in State v. Sweet,

879 N.W.2d 811, 839 (Iowa 2016), which categorically banned the imposition of a

sentence of life without the possibility of parole for juvenile offenders under the

Iowa Constitution. Because Calaway’s sentence was once again unconstitutional

under Sweet, Calaway’s counsel, after conferring with the State, filed a “joint”
                                          5


motion to reverse and remand for further proceedings. The supreme court granted

the motion and remanded the matter for the district court to conduct a second

resentencing hearing.

       On December 19, 2016, at the second resentencing hearing, the parties

confirmed for the court that the only constitutional sentence that could be imposed

was life with the possibility of parole. Thus, the only discretion the court had was

whether to run the two sentences consecutive or concurrent. See Sweet, 879

N.W.2d at 839 (holding the Iowa Constitution categorically banned the imposition

of a sentence of life without the possibility of parole for juvenile offenders); State

v. Louisell, 865 N.W.2d 590, 603 (Iowa 2015) (“The district court did not have

authority to sentence [a juvenile offender] to a determinate term of . . . years in

prison for murder in the first degree. Although the district court did have authority

upon consideration of the Miller factors to resentence [a juvenile offender] to life in

prison with eligibility for parole, the court did not have authority at the time of

resentencing to order commencement of [the juvenile offender’s] eligibility for

parole to begin after serving [a term of] years in prison.”). After again hearing from

defense counsel and the prosecutor and giving Calaway a chance to speak, the

court ordered the two life-with-the-possibility-of-parole sentences to be served

consecutively. The court noted the consecutive sentences were ordered “based

upon the separate and serious nature of the offenses” and also incorporated five

pages of the court’s previous analysis of the Miller factors it had articulated in its

first resentencing order.

       Calaway again appeals the sentence imposed.
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II. Scope and Standard of Review.

       When a sentence is within the statutory framework, it is cloaked with a

strong presumption in its favor, and we review the court’s decision for an abuse of

discretion or the consideration of impermissible factors. State v. Formaro, 638

N.W.2d 720, 724 (Iowa 2002).

III. Consecutive Sentences.

       The sentencing court is required to state on the record the reasons for

imposing a particular sentence and that includes the requirement to articulate the

reasons for imposing consecutive, rather than concurrent, sentences. See State

v. Hill, 878 N.W.2d 269, 275 (Iowa 2016). Calaway asserts the district court’s

incorporation of the first resentencing order did not satisfy this requirement to state

its reasons for imposing consecutive sentences. He asserts the court was not

considering the issue of consecutive sentences at the first resentencing when the

reasons were articulated, and therefore, those reasons cannot apply to the second

resentencing hearing. We disagree.

       In requiring district courts to articulate the reasons for imposing consecutive

sentences, the supreme court specifically acknowledged and accepted that the

sentencing court “may rely on the same reasons for imposing a sentence of

incarceration” to also support imposing consecutive sentences. Id. It was not an

abuse of discretion for the court to reference and incorporate its extensive prior

reasons rather than repeating them. In addition, the court added an additional

reason for imposing consecutive sentences: “the separate and serious nature of

the offenses.” We find no abuse of discretion in the district court’s imposition of

consecutive sentences in this case.
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IV. Mitigation Expert.

       Calaway also asserts the court abused its discretion in denying his request

for an expert witness at state expense to investigate and testify regarding the

application of the Miller factors at his March 2016 resentencing hearing. “Our

review of rulings on such an application is for abuse of discretion.”        State v.

Leutfaimany, 585 N.W.2d 200, 207 (Iowa 1998).

       As an initial matter, the State asserts Calaway did not preserve error on this

claim because he did not renew his request for an expert after the case was

remanded by the supreme court for a second resentencing hearing held in

December 2016.1 Calaway claims error was preserved because this appeal is just

“an extension” of the prior appeal that was “started but halted” by the prior remand

order. The State notes Calaway could have requested the supreme court “retain

jurisdiction over the appeal to decide issues collateral to the illegality of his

sentence,” and when he failed to do that, it resulted in a waiver of the issue in the

previous proceedings.

       Bypassing the State’s error preservation concerns,2 we conclude the court

did not abuse its discretion in denying Calaway’s earlier application for an expert

witness. “An indigent criminal defendant is not entitled to appointment of expert

services at state expense unless there is a finding that the services are necessary

in the interest of justice.” Id. at 208; see also Iowa R. Crim. P. 2.20(4). Calaway




1
  On our review of the December 2016 resentencing transcript, we find no mention of an
expert witness nor any assertion the record before the district court was somehow
incomplete.
2
  See State v. Taylor, 596 N.W.2d 55, 56 (Iowa 1999) (bypassing an error-preservation
problem and proceeding to the merits of the appeal).
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“bears the burden to demonstrate a reasonable need for the appointment of an

expert.” See Leutfaimany, 585 N.W.2d at 208.

       In denying the initial request for an expert, the district court noted the recent

case law from the supreme court thoroughly explained the factors the court was to

apply in the individualize sentencing hearing, and thus, the court found “[t]here is

no need to hire an expert at public expense to testify to the concepts that have

already been adopted by case law.” In addition, after ordering the preparation of

the PSI and an updated DOC report, the court granted Calaway the ability to retain

a private investigator to provide necessary factual information that counsel

believed was not adequately contained within the PSI or the DOC report. There is

no indication Calaway took advantage of this authorization, nor does Calaway

explain how the expert he intended to hire would have offered information that a

private investigator could not have uncovered.

       The PSI report and the supplemental DOC report were prepared in advance

of the resentencing hearing, but Calaway waited until one day before resentencing

was to take place to ask the court to reconsider its denial of his request for the

expert. In denying the motion to reconsider, the court again stated the proposed

expert could not offer any information that was not already contained in the court

file regarding the factors it was to apply. Because the expert, in the district court’s

opinion, would not add any new information, the court considered the request

unreasonable.

       The district court understood the law it was to apply and understood the

information the record already contained. We conclude the district court did not
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abuse its discretion in determining Calaway failed establish the necessity of his

expert witness.3 We affirm the district court’s resentencing order.

       AFFIRMED.




3
  While we conclude the court did not abuse its discretion in this case in denying the
request for an expert witness at state expense, we acknowledge our supreme court has
discussed the usefulness of expert testimony in juvenile sentencing hearings. See State
v. Roby, 897 N.W.2d 127, 145–48 (Iowa 2017).
