                   IN THE COURT OF APPEALS OF IOWA

                                   No. 16-1575
                             Filed January 10, 2018


BRANDY BYRD,
    Applicant-Appellant,

vs.

STATE OF IOWA,
     Respondent-Appellee.
________________________________________________________________


      Appeal from the Iowa District Court for Linn County, Mary E. Chicchelly,

Judge.



      A defendant appeals the denial of an application for postconviction relief.

AFFIRMED.




      John W. Pilkington of Nidey, Erdahl, Tindal & Fischer, P.L.C., Marengo, for

appellant.

      Thomas J. Miller, Attorney General, and Benjamin Parrott, Assistant

Attorney General, for appellee State.




      Considered by Vaitheswaran, P.J., McDonald, J., and Goodhue, S.J.*

      *Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2018).
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GOODHUE, Senior Judge.

       Brandy Byrd’s application for postconviction relief (PCR) was denied by an

order entered August 31, 2016. Byrd appeals.

   I. Background Facts and Proceedings

       Byrd and her friend, David Keegan, lured a Pizza Hut delivery driver into an

apartment on January 6, 2002, where Byrd hit him in the head with a hammer and

Keegan slit his throat. The victim died and was robbed in the process. Byrd was

charged with first-degree murder and first-degree robbery, and on July 15, 2003,

she was convicted of both charges after a jury trial. Byrd was sentenced on

September 22, 2003, to a life sentence without the possibility of parole and ordered

to pay restitution to the victim’s estate in the amount of $250,000. Byrd appealed

her conviction, and her conviction was affirmed. State v. Byrd, No. 03-1578, 2004

WL 2387048, at *4 (Iowa Ct. App. Oct. 27, 2004). Procedendo was issued on

February 4, 2005.

       Byrd filed a PRC application on November 12, 2008. Although the legality

of the felony-murder instruction used in her trial was raised as a claim in the direct

appeal, between her trial and her first PCR action, the use of willful injury as a

predicate offense to felony murder had been determined to be reversible error

under many, if not most, circumstances. See State v. Heemstra, 721 N.W.2d 549,

558 (Iowa 2006). Under the ineffective-assistance-of-counsel rubric, and because

of Heemstra, Byrd raised the use of the felony-murder rule again in the PCR. Her

claims were denied by the district court, and she appealed.

       This court considered the appropriateness of the felony-murder rule as

applied to Byrd’s claim and again denied relief, noting that Heemstra only applied
                                           3


to willful injury as a predicate offense and not to robbery and, in any event,

Heemstra was not to be applied retroactively. Byrd v. State, No. 08-1930, 2012

WL 836391, at *1 (Iowa Ct. App. Mar. 14, 2012). In addition, in her appeal of the

previous PCR, Byrd challenged trial counsel’s failure to object to the court’s

imposition of a $250,000 restitution amount instead of the statutory minimum of

$150,000. Id. No record had been made explaining how the court arrived at the

amount set. Id. Because of the lack of any record, this court preserved the matter

for a possible future proceeding. Id. Otherwise, Byrd’s claims were denied. Id at

*2.

       Although Keegan was only seventeen and one-half at the time of the

murder, Byrd was twenty. Keegan was also convicted of first-degree murder and

robbery, and initially, both Keegan and Byrd were sentenced to life in prison

without the possibility of parole. Keegan was resentenced to life but became

eligible for parole because he was a juvenile at the time of the murder. See State

v. Lyle, 854 N.W.2d 378, 402 (Iowa 2014) (noting mandatory life without parole

had been determined to violate the cruel and unusual punishment prohibition of

both the Iowa and United States Constitutions when applied to minors). Because

she was not a juvenile, Byrd was not resentenced, and her sentence remained life

without parole.

       Byrd correctly asserts the jury could have found her guilty as an aider and

abettor rather than as principal. She then contends an aider and abettor cannot

receive greater punishment than a principal. She claims the jury should have

received a limiting instruction requiring it to find her guilty as a principal to justify

the sentence imposed. Byrd has again raised the amount of restitution as an issue.
                                          4


   II. Error Preservation

       The State contends that Byrd’s claims in her current application for

postconviction relief, which was filed on October 15, 2012, are statutorily barred.

An application for postconviction relief is to “be filed within three years from the

date of conviction or decision is final or, in the event of an appeal, from the date

the writ of procedendo is issued.” Iowa Code § 822.3 (2011). Byrd contends the

restitution issue was deferred in her previous PCR action to a “future proceeding.”

Whether a PCR court can reserve an issue for a subsequent PCR is problematic

since there is no apparent authority for it. See Iowa Code § 814.7. It would also

leave open the determination of the start date for the three-year statute of

limitations set out above. We will assume without so holding that an issue can be

reserved in a PCR proceeding for a subsequent proceeding.

       As to the other issues raised, Byrd claims she received illegal sentences.

An illegal sentence can be raised at any time. See Iowa R. Crim. P. 2.24(5)(a);

State v. Parker, 747 N.W.2d 196, 203 (Iowa 2008). “An illegal sentence is void

which permits an appellate court to correct on appeal without the necessity for the

defendant to preserve error or by making a proper objection in the district court.”

Parker, 747 N.W.2d at 212. Therefore, Byrd contends the three-year statute of

limitation is not applicable as to her remaining claims because she is contending

she received illegal sentences.



   III. Standard of Review

       Ordinarily district court rulings addressing the PCR statute of limitations are

reviewed for errors of law. Harrington v. State, 659 N.W.2d 509, 519 (Iowa 2003).
                                           5


To the extent Byrd has raised constitutional issues, the review is de novo if

constitutional issues exist. See State v. Bruegger, 773 N.W.2d 862, 869 (Iowa

2009).

   IV. Restitution Amount

         Byrd maintains that counsel was ineffective in failing to request the

sentencing court to explain why the statutory minimum of $150,000 was not

imposed instead of the $250,000. See Iowa Code § 910.3B. There is a statutory

minimum in assessing restitution in the event a death results from a felonious

criminal act, but no maximum has been set and there is no statutory requirement

that restitution be set at the minimum amount. Id.

         A restitution order is not excessive if it bears a reasonable relationship to

the damage caused by the offender’s criminal act. State v. Bonstetter, 637 N.W.2d

161, 165 (Iowa 2001). When the criminal act results in the death of the victim, the

seriousness of the crime is unmatched in the broad spectrum of crimes. State v.

Izzolena, 609 N.W.2d 541, 550 (Iowa 2000). By all accounts, this was a senseless,

gruesome, unprovoked murder of an unarmed, unsuspecting, and totally innocent

victim when providing a service to the perpetrators. We cannot find the restitution

order does not have a reasonable relationship to the crime committed.




   V. Claims of an Illegal Sentence

         A challenge of an illegal sentence does not permit a challenge to a sentence

that is illegally imposed because of a procedural error. Tindal v. State, 629 N.W.2d

357, 359 (Iowa 2001).       A claim of an illegal sentence does not permit a re-
                                          6


examination of the error occurring during the trial proceeding prior to the imposition

of the sentence. Bruegger, 773 N.W.2d at 871-72. Failure to properly object to an

instruction, right or wrong, allows it to be the law of the case. See State v.

Hepperle, 530 N.W.2d 735, 740 (Iowa 1995).

       To the extent Byrd attacks the court’s instructions as to the aiding-and-

abetting instruction or the failure to give a limiting instruction, they are attacks on

procedural errors and not on the legality of the sentence. They do not raise a

constitutional issue and are barred by the three-year statute of limitations.

   VI. Claim that an Aider and Abettor Cannot Receive a Sentence Greater
       than the Principal

       Byrd also attacks the instructions based on her assertion that an aider and

abettor cannot receive punishment in excess of the principal. Byrd’s only support

for her assertion is based on a Maryland case that has since been overruled. See

State v. Ward, 369 A.2d 1041, 1051-52 (Md. 1978), overruled by Lewis v. State,

404 A.2d 1073 (Md. 1979) (“Henceforth, as long as the evidence in the accessory’s

trial is sufficient to demonstrate that a felony has been committed, the fact that the

principal has not been convicted will furnish no defense to the accessory.”).

Furthermore, the Iowa law is clearly to the contrary.         Evidence of a plea or

conviction of an accomplice is not even admissible to prove guilt of the accused or

the lack thereof. State v. Johnson, 534 N.W.2d 118, 126 (Iowa 1995). Iowa

statutorily provides those who aid and abet the commission of a public offense

“shall be charged, tried and punished as principals.” Iowa Code § 703.1.

       Keegan was resentenced because he was a juvenile when the offense was

committed and sentencing a juvenile to life in prison without the possibility of parole
                                        7

violates the constitutional prohibitions against cruel and unusual punishment. See

Lyle, 854 N.W.2d at 402. The prohibition has no application to adult offenders. Id.

at 403. It is apparent that adults and juveniles involved in the same crime may

receive disparate sentences. The order of the district court granting the motion to

dismiss is affirmed.

       AFFIRMED.

       Vaitheswaran, P.J., concurs; McDonald, J., concurs specially.
                                      8


MCDONALD, Judge (concurring specially)

      I concur in the judgment. However, I would conclude the specific claims

asserted here are barred by Iowa Code sections 822.3 and 822.8 (2011).
