               IN THE SUPREME COURT OF IOWA
                                  No. 15–0235

                           Filed May 25, 2017

                       Amended August 21, 2017


STATE OF IOWA,

      Appellee,

vs.

SAYVON ANDRE PROPPS,

      Appellant.



      On review from the Iowa Court of Appeals.



      Certiorari to the Iowa District Court for Polk County, Richard G.

Blane II, Judge.



      A juvenile challenges his sentence as unconstitutional under the

Iowa Constitution.    DECISION OF COURT OF APPEALS VACATED;

WRIT ANNULLED.



      Amy Pellegrin (until withdrawal) and Gregory T. Racette of Hopkins

& Huebner, P.C., Des Moines, for appellant.



      Thomas J. Miller, Attorney General, and Louis Sloven, Assistant

Attorney General, for appellee.
                                      2

ZAGER, Justice.

      A juvenile was sentenced to four consecutive, indeterminate

sentences of ten years in prison for four counts of willful injury causing

serious injury.       No mandatory minimum sentence was imposed.

However, because the crime of willful injury causing serious injury is a

forcible felony, the sentencing judge was unable to consider a deferred

judgment or probation as a sentencing option.             The juvenile now

challenges, by means of a motion to correct an illegal sentence, the

forcible felony sentencing statute under the Iowa Constitution.             He

argues   that   the    mandatory    nature   of   the   prison   sentence   is

unconstitutional given the Iowa Constitution and our precedents in the

area of juvenile sentencing. For the reasons set forth below, we find that

Iowa Code section 907.3 is not unconstitutional under the Iowa

Constitution as applied to juvenile offenders. We vacate the decision of

the court of appeals and affirm the judgment of the district court.

      I. Background Facts and Proceedings.

      On February 27, 2011, Derek Carr was standing outside his home

when Troy Lee Mure Jr. drove up in a vehicle in which Sayvon Propps

was a passenger. Propps exited the vehicle, fired four shots into Carr,

and got back in the vehicle.       Mure immediately drove away from the

scene. Carr was hit in his back, buttocks, and leg. He was transported

to the hospital where he remained hospitalized for three weeks before he

was discharged. Propps was seventeen years of age at the time of the

crime.

      On April 20, the State charged Propps with attempted murder in

violation of Iowa Code section 707.11 (2011). Propps entered into a plea

agreement with the State whereby he agreed to plead guilty to four

counts of the lesser charge of willful injury causing serious injury. The
                                          3

State then amended the trial information to charge Propps with four

counts of willful injury causing serious injury in violation of Iowa Code

section 708.4(1).      Because willful injury causing serious injury is a

forcible felony, probation is not an option under Iowa law. See Iowa Code

§ 702.11(1); id. § 907.3. 1

       Pursuant to the plea agreement, the district court sentenced

Propps to indeterminate sentences not to exceed ten years on each of the

four counts.     The district court ordered each of the sentences to run

consecutively to the others for a maximum sentence of forty years. There

were no mandatory minimum sentences of incarceration associated with

any charge, and no individualized sentencing hearing was conducted.

       On July 31, 2014, Propps filed a motion to correct an illegal

sentence. Propps argued that, based on recent federal and state caselaw,

the sentence imposed constituted cruel and unusual punishment under

the Iowa Constitution.        Further, Propps argued that the district court

was required to conduct an individualized sentencing hearing even

though his sentence contained no mandatory minimum period of

incarceration. Propps takes this position due to the evolution of our law

surrounding the sentencing of juveniles. The State resisted the motion,

claiming that Propps did not receive an illegal sentence in this case. The

district court denied the motion, reasoning,

       As the State points out, the crime—Willful Injury—to which
       the Defendant pled and was sentenced, does not implicate a
       mandatory minimum sentence.        Since the Defendant is
       eligible for parole and may be released at any time, the
       sentences, whether consecutive or concurrent, are not cruel

       1In
         pertinent part, section 901.5 provides the standards for when a district court
may impose a deferred judgment, deferred sentence, or suspended sentence. Iowa Code
§ 901.5. However, in the case of a forcible felony, the section does not apply. Id.
§ 907.3.
                                        4
      and unusual, do not violate the federal or state
      constitutions, are therefore not illegal and Defendant is not
      entitled to a correction of his sentence or resentencing.

Propps appealed the decision of the district court, and we transferred the

case to the court of appeals.

      On appeal, Propps argued that “all juveniles, especially those who

have been sentenced to a lengthy term of years, must undergo an

individualized sentencing hearing regardless of whether or not the

sentence    has   a    mandatory    term    of   years.”        He    asserted   that

individualized    sentencing      applied   because,       as    with    mandatory

minimums, the district court had no choice but to sentence him to a

term of imprisonment. The court of appeals affirmed the district court’s

denial of Propps’s motion to correct an illegal sentence. Propps appealed,

and we granted further review.

      II. Jurisdictional Argument.

      The State raises the issue of whether we have jurisdiction to hear

this appeal. Since the district court ruling is on a motion to correct an

illegal sentence, the State argues that Propps cannot appeal the denial of

his motion to correct an illegal sentence because the ruling denying such

a motion is not a “final judgment of sentence” under Iowa Code section

814.6(1).    We       requested   supplemental     briefing      to   address    this

preliminary issue.

      Subject-matter jurisdiction over a claim is conferred either
constitutionally or statutorily. De Stefano v. Apts. Downtown, Inc., 879

N.W.2d 155, 164 (Iowa 2016). Iowa Rule of Appellate Procedure 6.103(1)

provides that “[a]ll final orders and judgments of the district court

involving the merits or materially affecting the final decision may be

appealed to the supreme court, except as provided in this rule, rule
                                          5

6.105, and Iowa Code sections 814.5 and 814.6.”                      Iowa R. App.

P. 6.103(1). 2

       Iowa Code section 814.6 contains the standards for subject-matter

jurisdiction for the review of a criminal defendant’s appeal. Iowa Code

§ 814.6. Pertinent to this case, a criminal defendant has the “right of

appeal” from “[a] final judgment of sentence.” Id. A previous version of

the statute provided that “[a]n appeal can only be taken from the final

judgment, and within sixty days thereafter.” Iowa Code § 793.2 (1954).

The statute was thereafter amended to include the clarifying language

“judgment of sentence.”        Iowa Code § 814.6 (1983) (emphasis added).

This language continues today. See Iowa Code § 814.6(1)(a) (2017).

       This is consistent with the general rule that the “[f]inal judgment in

a criminal case means sentence.” Daughenbaugh v. State, 805 N.W.2d

591, 595 (Iowa 2011) (quoting Burton v. Stewart, 549 U.S. 147, 156, 127

S. Ct. 793, 798 (2007)); see also State v. Loye, 670 N.W.2d 141, 146

(Iowa 2003). “In criminal cases, as well as civil, the judgment is final for

the purpose of appeal ‘when it terminates the litigation between the

parties on the merits’ and ‘leaves nothing to be done but to enforce by

execution what has been determined.’ ” State v. Aumann, 236 N.W.2d

320, 321–22 (Iowa 1975) (quoting State v. Klinger, 259 Iowa 381, 383,

144 N.W.2d 150, 151 (1966)). In contrast, “decisions, opinions, findings,

or verdicts do not constitute a judgment or decree.”               Iowa W. Racing

Ass’n v. Iowa Racing & Gaming Comm’n, 578 N.W.2d 663, 664 (Iowa




       2Iowa  Code section 814.5 provides the rules for the right of appeal when the
State is the appellant or applicant. Iowa Code § 814.5. Rule 6.105 provides the rules
for appeals tried as small claims actions. Iowa R. App. P. 6.105. Neither section is
pertinent to our analysis of this case, and we confine our discussion to section 814.6.
                                     6

1998) (quoting Wilson v. Corbin, 241 Iowa 226, 228, 40 N.W.2d 472, 474

(1950)).

      The final sentencing order in this case was entered on August 16,

2011. Propps brought a motion to correct an illegal sentence on July 31,

2014, and the district court denied the motion on January 13, 2015. In

the ruling denying Propps’s motion, the district court neither disturbed

the underlying sentence nor entered a new judgment of sentence.        An

appeal as of right under Iowa Code section 814.6(1)(a) on the grounds of

appealing a “final judgment of sentence” was improper in this case. The

final judgment of sentence occurred three years prior.     However, this

does not resolve the jurisdictional issue here.

      A criminal defendant may challenge an illegal sentence at any time

under Iowa Rule of Criminal Procedure 2.24. Iowa R. Crim. P. 2.24(5)(a);

see also State v. Bruegger, 773 N.W.2d 862, 869 (Iowa 2009).            A

defendant may appeal the denial of a motion to correct an illegal

sentence by applying for discretionary review under either Iowa Code

section 814.6(2)(e) or Iowa Rule of Appellate Procedure 6.106. Iowa Code

§ 814.6(2)(e) (allowing discretionary review of “[a]n order raising a

question of law important to the judiciary and the profession”); Iowa R.

App. P. 6.106 (“An application for discretionary review may be filed to

review certain orders specified by statute which are not subject to appeal

as a matter of right.”).   A defendant may also appeal the denial of a

motion to correct an illegal sentence by petition for writ of certiorari

under Iowa Rule of Appellate Procedure 6.107.          Iowa R. App. P.

6.107(1)(a) (“Any party claiming a district court judge . . . exceeded the

judge’s jurisdiction or otherwise acted illegally may commence an original

certiorari action in the supreme court by filing a petition for writ of

certiorari.”). Because section 814.6(1)(a) does not apply to a defendant’s
                                     7

motion to correct an illegal sentence, one of these actions would have

been the proper method for bringing such a challenge.

      However, a “court has inherent power to determine whether it has

jurisdiction over the subject matter of the proceedings before it.” Klinge

v. Bentien, 725 N.W.2d 13, 15 (Iowa 2006) (quoting Tigges v. City of

Ames, 356 N.W.2d 503, 512 (Iowa 1984)).           Discretionary review is

available under section 814.6 to orders “raising a question of law

important to the judiciary and the profession.” Iowa Code § 814.6(2)(e).

Additionally, if a case is initiated by a notice of appeal, but another form

of review is proper, we may choose to proceed as though the proper form

of review was requested by the defendant rather than dismiss the action.

Iowa R. App. P. 6.108.     Accordingly, we will treat Propps’s notice of

appeal and accompanying briefs as a petition for writ of certiorari, as we

conclude that appeals from a motion to correct an illegal sentence are

most appropriately fashioned in this manner. We grant the petition for

writ of certiorari.

      III. Standard of Review.

      An unconstitutional sentence is an illegal sentence, and therefore

may be corrected at any time. State v. Lyle, 854 N.W.2d 378, 382 (Iowa

2014); see also Iowa R. Crim. P. 2.24(5)(a). While we ordinarily review

challenges to illegal sentences for correction of legal errors, our standard

of review for an allegation of an unconstitutional sentence is de novo.

Lyle, 854 N.W.2d at 382.

      IV. Analysis.

      A. Indeterminate Sentencing and           Parole.     A determinate

sentence imposes a specific number of years of imprisonment on a

defendant, while an indeterminate sentence is one in which the

legislature has set a range of the minimum and maximum amount of
                                      8

years deemed appropriate for the crime. See, e.g., 6 Wayne R. LaFave et

al., Criminal Procedure § 26.1(c) (2016).        Indeterminate sentences are

parole eligible, while determinate sentences are not. Id. In this case, the

district court sentenced Propps to four indeterminate sentences with no

mandatory minimum sentence, making Propps immediately eligible for

parole.

      Once an incarcerated individual is eligible for parole, the Iowa

Board of Parole is required to hold yearly file reviews.                Iowa Code

§ 906.5(1)(a);   see   also   Iowa   Board     of     Parole,    FAQ/Information,

http://www.bop.state.ia.us/BoardFaq          (last    visited    Mar.   20,    2017)

(stating the board of parole is required to hold yearly reviews for every

eligible offender) [hereinafter Iowa Board of Parole, FAQ/Information].

      When the board of parole reviews a file, it may choose to give the

offender work release, deny release, or set up an interview. Iowa Code

§ 906.3, .5. If the board sets up an interview, it uses the interview to

determine whether the individual offender should be released to the

community under parole supervision for the remainder of the sentence.

Id. When making the decision to release an inmate on parole, the board

considers a number of factors, including
      a. Previous criminal record;
      b. Nature and circumstances of the offense;
      c. Recidivism record;
      d. Convictions or behavior indicating a propensity for
      violence;
      e. Participation in institutional              programs,     including
      academic and vocational training;
      f. Psychiatric and psychological evaluations;
      g. Length of time served;
      h. Evidence of serious or habitual institutional misconduct;
      i. Success or failure while on probation;
      j. Prior parole or work release history;
                                     9
      k. Prior refusal to accept parole or work release;
      l. History of drug or alcohol use;
      m. A parole plan formulated by the inmate;
      n. General attitude and behavior while incarcerated;
      o. Risk assessment.

Iowa Admin. Code r. 205—8.10.

      This is consistent with the provisions of Iowa Code section

906.5(3), which provides that

      the board shall consider all pertinent information regarding
      the person, including the circumstances of the person’s
      offense, any presentence report which is available, the
      previous social history and criminal record of the person, the
      person’s conduct, work, and attitude in prison, and the
      reports of physical and mental examinations that have been
      made.

Iowa Code § 906.5(3).

      B. Cruel and Unusual Punishment and Juvenile Sentencing.

Both the United States Constitution and the Iowa Constitution prohibit

cruel and unusual punishment. U.S. Const. amend. VIII; Iowa Const.

art. I, § 17. In recent years, both the United States Supreme Court and

this court have addressed whether certain juvenile sentencing practices

violate the prohibition against cruel and unusual punishment.

      The Eighth Amendment right to be free from cruel and unusual

punishment “flows from the basic ‘precept of justice that punishment for

crime should be graduated and proportioned’ to both the offender and

the offense.”   Miller v. Alabama, 567 U.S. 460, 469, 132 S. Ct. 2455,

2463, (2012) (quoting Roper v. Simmons, 543 U.S. 551, 560, 125 S. Ct.

1183, 1190, (2005)).    Proportionality is key in an Eighth Amendment

analysis, and we view proportionality according to “the evolving

standards of decency that mark the progress of a maturing society.” Id.

(quoting Estelle v. Gamble, 429 U.S. 97, 102, 97 S. Ct. 285, 290 (1976)).
                                   10

      In 2005, the Supreme Court held in Roper that the sentence of

capital punishment when imposed         upon a juvenile      violates the

prohibition on cruel and unusual punishment contained in the Eighth

Amendment. 543 U.S. at 560, 126 S. Ct. 1190. In 2010, the Supreme

Court held in Graham v. Florida that the Eighth Amendment prohibits

the imposition of a sentence of life without the possibility of parole for

juveniles convicted of nonhomicide offenses. 560 U.S. 48, 74, 130 S. Ct.

2011, 2030 (2010). Finally, in 2012, the Supreme Court held in Miller

that mandatory sentences of life without the possibility of parole when

imposed on juveniles violate the Eighth Amendment. 567 U.S. at 489–

90, 132 S. Ct. at 2475.      Miller requires a sentencing court to make

individualized sentencing decisions that take into consideration an

offender’s age and age-related characteristics before imposing “the

harshest possible penalty for juveniles” of a life sentence without the

possibility of parole. Id.

      Following the Miller decision, Governor Branstad commuted the

sentences of all juveniles in Iowa serving mandatory life-without-parole

sentences to sentences of sixty years without parole and with no credit

for earned time. See State v. Ragland, 836 N.W.2d 107, 110 (Iowa 2013).

We then heard a trio of cases that considered both the Miller case and

the cruel and unusual punishment clause of the Iowa Constitution.

      In Ragland, we held that Miller applied retroactively. Id. at 117.

We then went on to hold that the governor’s commutation had the same

effect as a life sentence without the possibility of parole, and therefore

the Miller requirement of individualized sentencing applied. Id. at 119,

122. In determining that Miller applied to the commuted sentences, we

noted that
                                      11
         the original sentence imposed on Ragland by the district
         court was a mandatory sentence. The sentencing court had
         no other option but to impose the one sentence provided by
         law. This result is important in the analysis because it goes
         to the heart of Miller, which states that “children are
         constitutionally different from adults for purposes of
         sentencing,” and a mandatory life sentence without parole
         imposed on juveniles means young offenders “die in prison
         even if [the sentencing judge] would have thought that his
         youth and its attendant characteristics . . . made a lesser
         sentence . . . more appropriate.” Importantly, the mandatory
         penalty component totally precludes the sentencing court
         from taking the critical aspects of youth into account in the
         imposition of a sentence.

Id. at 119 (quoting Miller, 567 U.S. at 465, 470–72, 132 S. Ct. at 2460,

2464). The commutation did not cure the absence of an individualized

sentencing hearing because “Miller protects youth at the time of

sentencing.” Id.

         In State v. Null, we considered the cruel and unusual punishment

clause of the Iowa Constitution. 836 N.W.2d 41, 70 (Iowa 2013); see also

Iowa Const. art. I, § 17. We held that a lengthy term-of-years sentence—

in this case a 52.5 year sentence—triggered the protections of a Miller

individualized sentencing hearing. Null, 836 N.W.2d at 71. We reasoned

that “geriatric release” after a lengthy term-of-years sentence does not

provide a juvenile a meaningful opportunity to demonstrate their

maturity and rehabilitation. Id. Similarly, in State v. Pearson, we held

that a minimum sentence of thirty-five years triggered a Miller

individualized sentencing hearing. 836 N.W.2d 88, 96 (Iowa 2013).

         After the Ragland—Null—Pearson trio, we went on to consider

juvenile sentencing under the Iowa Constitution in a number of other

cases.     In Lyle, we held that all mandatory minimum sentences of

imprisonment for juveniles are unconstitutional under article I, section

17 of the Iowa Constitution. 854 N.W.2d at 400. We also summarized

the background of change in the area of juvenile sentencing reform and
                                    12

touched on the topic of parole briefly. Id. at 399–400. We noted that the

United States Supreme Court has recognized that the opportunity for

parole lessens the severity of a sentence. Id. at 399; see also Rummel v.

Estelle, 445 U.S. 263, 280–81, 100 S. Ct. 1133, 1142–43 (1980)

(recognizing the opportunity for parole, “however slim,” mollifies the

severity of the sentence). We ultimately concluded that the “heart of the

constitutional infirmity with the punishment imposed in Miller was its

mandatory imposition, not the length of the sentence.” Lyle, 854 N.W.2d

at 401. We confirmed that the Iowa Constitution applied to mandatory

sentences of prison without the opportunity for parole, regardless of the

length of the sentence. Id.

      [I]f mandatory sentencing for the most serious crimes that
      impose the most serious punishment of life in prison without
      parole violates article I, section 17, so would mandatory
      sentences for less serious crimes imposing the less serious
      punishment of a minimum period of time in prison without
      parole.

Id.

      In State v. Louisell, we addressed the question of whether Louisell

truly had a “meaningful opportunity for parole” during resentencing or

whether her eligibility for parole was simply illusory. 865 N.W.2d 590,

601 (Iowa 2015). Louisell argued that, even with a sentence of life with

the possibility of parole, her parole eligibility was illusory because only

one of Iowa’s thirty-eight juvenile offenders originally sentenced to life

without parole had actually been granted parole by the time of her

resentencing. Id. This single inmate was granted parole on conditional

release to hospice care for cancer treatment, and the parole board

specifically reserved the right to reconsider its decision if her health

improved. Id. We declined to address the question of whether Louisell

had been wrongfully denied parole. Id. at 602. However, we did take the
                                            13

opportunity to “reaffirm that under both the United States Constitution

and the Iowa Constitution, juveniles convicted of crimes must be afforded

a ‘meaningful opportunity to obtain release based on demonstrated

maturity and rehabilitation’—if a sentencing judge, exercising discretion,

determines parole should be available.” Id. (quoting Graham, 560 U.S. at

75, 130 S. Ct. at 2030). We also noted that the factors utilized by the

parole board to determine parole eligibility do not “account for the

mitigating        attributes   of   youth   that      are    constitutionally    required

sentencing considerations.” Id.

      In State v. Seats, we expanded on our previous cases to clarify the

factors a district court should consider when faced with a case in which

it had the discretion to sentence a juvenile to life in prison without the

possibility of parole. 865 N.W.2d 545, 556–57 (Iowa 2015). Finally, we

recently categorically banned the imposition of life-without-parole

sentences for juveniles in State v. Sweet, 879 N.W.2d 811, 839 (Iowa

2016). We noted that part of the justification for the categorical ban on

juvenile life-without-parole sentences is that the Miller individualized

sentencing hearing is insufficient in that context since “we are asking the

sentencer to do the impossible, namely, to determine whether the

offender     is    ‘irretrievably   corrupt’     at   a     time   when   even    trained

professionals with years of clinical experience would not attempt to make

such a determination.” Id. at 837. We found that it was the parole board

that was best situated to discern which offenders are irreparably corrupt

and which have benefited from opportunities for maturation and

rehabilitation. Id. at 839.

      C. Application to the Present Case. Propps argues that Iowa’s

forcible felony sentencing provision is unconstitutional because it does

not allow the sentencing judge the option of probation and therefore,
                                             14

mandates a prison sentence, however short, for juveniles. See Iowa Code

§ 907.3      (2011). 3       Although      the    sentencing      statute   allows   for

indeterminate sentences, Propps argues that the sentencing structure

does not allow the sentencing judge to “consider the mitigating factors of

the offender, specifically a juvenile offender, upon conviction of this

crime.”

       Propps seeks to expand Lyle to cases such as his, even though he

has no mandatory minimum period of incarceration and he is

immediately eligible for parole.              We decline to do so.          Completely

eliminating the mandatory imposition of a prison term, even when the

term is indeterminate and the individual is immediately eligible for

parole, would not serve the proportionality concept we have addressed in

our previous juvenile sentencing cases.               In those cases, we sought to

eliminate the mandatory nature of mandatory minimums and sentences

that were the functional equivalent of life without parole because those

sentences       did   not    offer   juveniles    a   “meaningful     opportunity”   to

demonstrate their rehabilitation before the parole board. See, e.g., Lyle,

854 N.W.2d at 402–03; Null, 836 N.W.2d at 75; Pearson, 836 N.W.2d at

97; Ragland, 836 N.W.2d at 121.                   Our goal was not to excuse the


       3In   2013, the legislature adopted the following provision:
               14. Notwithstanding any provision in section 907.3 or any other
       provision of law prescribing a mandatory minimum sentence for the
       offense, if the defendant, other than a child being prosecuted as a
       youthful offender, is guilty of a public offense other than a class “A”
       felony, and was under the age of eighteen at the time the offense was
       committed, the court may suspend the sentence in whole or in part,
       including any mandatory minimum sentence, or with the consent of the
       defendant, defer judgment or sentence, and place the defendant on
       probation upon such conditions as the court may require.
Iowa Acts ch. 42, § 14 (codified at Iowa Code § 901.5(14) (2014)). Propps does not argue
that this provision applies to his resentencing.
                                     15

behavior of juveniles, but rather to impose punishment in a way that was

consistent with the lesser culpability and greater capacity for change of

juvenile offenders. Lyle, 854 N.W.2d at 398, 402–03; Null, 836 N.W.2d at

75 (“[W]hile youth is a mitigating factor in sentencing, it is not an

excuse.”).    We were concerned that offering “geriatric release” or the

geriatric opportunity for parole was not consistent with the concept of

proportionality. Null, 836 N.W.2d at 71.

      This is in stark contrast to the situation presented here. In this

case, Propps was immediately eligible for parole and able to demonstrate

by his own actions his maturation and rehabilitation. When a one-size-

fits-all mandatory minimum is imposed, an arbitrary amount of time

spent in prison dictates when a juvenile will be released.     See, e.g.,

Ragland, 836 N.W.2d at 122.          In contrast, when an indeterminate

sentence is given that contains no mandatory minimum sentence and

allows a juvenile to be immediately eligible for parole, the juvenile

defendant’s behavior in prison dictates when parole will be available—

with the potential for immediate parole if rehabilitation, maturity, and

reform have been demonstrated. See, e.g., Louisell, 865 N.W.2d at 601.

      It is true that immediate eligibility for parole is not the same as

immediately coming before the parole board for review. See Iowa Code

§ 906.5(1).    We require the board of parole to review the status of

individuals eligible for parole on an annual basis. Id. However, in our

juvenile sentencing cases, we have never required that release on parole

be immediate. See, e.g., Louisell, 865 N.W.2d at 602 (establishing that

the opportunity for parole need only be realistic and meaningful).    We

have instead required that juvenile defendants must be given a realistic

and    meaningful      opportunity    to   demonstrate   maturity    and

rehabilitation—if a sentencing judge, exercising discretion, determines
                                    16

parole should be available. Id. at 601. Propps’s immediate eligibility for

parole, upon the parameters outlined in section 906.5, is both realistic

and meaningful.

      The analysis undertaken by the parole board for parole eligibility is

an individualized analysis that considers the juvenile’s past, in addition

to current psychiatric and psychological evaluations, the time already

served on the sentence, any reports of misconduct or good behavior, and

the inmate’s attitude and behavior while incarcerated.     See Iowa Code

§ 906.5(3). We noted in Louisell that the factors utilized by the parole

board to determine parole eligibility may not “account for the mitigating

attributes of youth that are constitutionally required sentencing

considerations.” 865 N.W.2d at 602. However, more recently, we noted

that the Miller individualized sentencing hearings are insufficient in the

context of life-without-parole sentencing.     Sweet, 879 N.W.2d at 837

(“[W]e are asking the sentencer to do the impossible, namely, to

determine whether the offender is ‘irretrievably corrupt’ at a time when

even trained professionals with years of clinical experience would not

attempt to make such a determination.”).        In our most recent case,

Sweet, we found that the parole board was best situated to discern which

juvenile homicide offenders have benefited from opportunities for

maturation and rehabilitation.   Id. at 839.    The parole board has the

benefit of seeing the individual offender’s actual behavior, rather than

having to attempt to predict chances at maturity and rehabilitation

based on speculation.

      Further, allowing a sentencing judge to grant a suspended

sentence for a forcible felony may not further the purpose of

rehabilitation.   While juveniles may be more prone to reform and

rehabilitation because of their age and the attendant characteristics of
                                   17

youth, they must also understand the severity of their actions. See Lyle,

854 N.W.2d at 398–99. Harm to a victim is not lessened because of the

young age of an offender, and “[t]he constitutional analysis is not about

excusing juvenile behavior, but imposing punishment in a way that is

consistent with our understanding of humanity today.”         Id. at 398.

Allowing a sentence of merely probation for forcible felonies may excuse

the criminal behavior of the juvenile offender and disproportionately

weigh this equation to only consider the age and culpability of the

offender without the harm he or she caused to a victim.       Because an

indeterminate sentence allows for immediate eligibility for parole, a

juvenile is able to demonstrate to the parole board whether he or she

appreciated the harm done and utilized the options available for reform.

If rehabilitation has not yet occurred, the parole board may make the

decision to continue incarceration until the juvenile has demonstrated

through his or her own actions the ability to appreciate the severity of

the crime. This is consistent with the approach of our prior holdings in

the area of juvenile sentencing, because it allows for a realistic and

meaningful opportunity for parole upon the juvenile’s demonstration of

maturity and rehabilitation.   We find that there is no constitutional

infirmity in Iowa Code section 907.3. This provision does not violate the

Iowa Constitution under a cruel and unusual punishment analysis.

      D. Gross Disproportionality.        Having determined that the

sentence for willful injury survives a categorical challenge, we now turn

to Propps’s claim that the sentence is unconstitutional as applied to him,

which we analyze for gross disproportionality. See, e.g., State v. Oliver,

812 N.W.2d 636, 647 (Iowa 2012). In his brief in support of his motion

to correct an illegal sentence, Propps did not specifically distinguish

between the argument that his sentence was grossly disproportionate as
                                         18

applied to him and the argument that the sentencing structure was

categorically unconstitutional. The district court decided the case on a

categorical    basis   and   did   not    address   the   question     of   gross

disproportionality.     On appeal, Propps argued his sentence was

unconstitutional as applied to him, and the court of appeals considered

and rejected the argument.

      While we generally do not decide cases based on grounds not

raised in the district court, in Bruegger we allowed a defendant to

continue with an as-applied challenge when his brief did not clearly

distinguish between a categorical or as-applied attack on his sentence.

773 N.W.2d at 884. Because Propps’s brief was likewise unclear, we will

continue with the analysis under an as-applied framework.

      When we determine whether a sentence is grossly disproportionate

to an offender’s crime, we utilize a three-step analysis.            Oliver, 812

N.W.2d at 647. The first step in this analysis is a threshold question,

and if the first step is not satisfied, we need not proceed to steps two and

three. Id. Our first step is to determine whether Propps’s sentence leads

to the inference that it was grossly disproportionate.               Id.    “This

preliminary test involves a balancing of the gravity of the crime against

the severity of the sentence.” Id. (quoting Bruegger, 773 N.W.2d at 873).

Step two requires an intrajurisdictional analysis in which we “compar[e]

the challenged sentence to sentences for other crimes within the

jurisdiction.” Id. Step three requires an interjurisdictional analysis, and

we “compar[e] sentences in other jurisdictions for the same or similar

crimes.” Id.

      We now turn to the threshold inquiry to determine whether

Propps’s sentence leads to an inference of gross disproportionality to his

crime.   When we consider this first step, we have established a few
                                          19

general principles to guide our analysis.           Id. at 650.   First, we give

substantial deference to the legislature when it establishes punishments

for certain crimes.      Id.   Second, “it is rare that a sentence will be so

grossly disproportionate to the crime as to satisfy the threshold inquiry

and warrant further review.”        Id.    Third, a recidivist offender is more

culpable than a first-time offender and therefore more deserving of a

longer sentence.   Id.     Last, a case can have unique features that may

“converge to generate a high risk of potential gross disproportionality”

and so we must consider the unique facts of the case.                Id. (quoting

Bruegger, 773 N.W.2d at 884).

      In this case, Propps’s challenge to his sentence is not the rare

sentence that survives the first step of our analysis.              Propps was

sentenced to four indeterminate sentences not to exceed ten years each

for four counts of willful injury causing serious injury, and he was

immediately eligible for parole. The legislature has determined that there

are certain crimes that are so severe that a defendant should not be

eligible for a sentence of probation.          See Iowa Code § 907.3.    Forcible

felonies such as willful injury causing serious injury are among those

crimes the legislature has deemed severe. Id. § 702.11(1); id. § 708.4(1);

id. § 907.3.   We give deference to the legislature’s determination that

these crimes are more deserving of sentences of incarceration rather

than probation.    Additionally, the gravity of Propps’s crime was high.

Propps fired four shots at his victim and fled the scene.            His actions

required a lengthy hospital stay for Carr. In contrast, his sentence was

not severe.    Propps was sentenced to four indeterminate sentences,

making him immediately eligible for parole review.                The gravity of

Propps’s crime was high, and the severity of his sentence was low. See,

e.g., Oliver, 812 N.W.2d at 647. This was not the rare case that satisfies
                                    20

our threshold inquiry and requires us to continue to steps two and three

of the analysis. We hold that Propps’s sentence was not unconstitutional

under a gross disproportionality analysis.

      E. Miller Hearing.      Because we determine that the sentence

Propps received is not categorically unconstitutional, and thus there is

no constitutional infirmity with the statute, we decline to extend the

requirement of a Miller individualized sentencing hearing to juvenile

defendants who are not subject to a mandatory minimum period of

incarceration. Propps is therefore not entitled to a Miller individualized

sentencing hearing.      He has received a meaningful, reasonable, and

immediate opportunity for parole, which is all that is required under our

decision in Lyle and the United States and Iowa Constitutions.

      V. Conclusion.

      We hold that the forcible felony sentencing statute, Iowa Code

section 907.3, is not unconstitutional as applied to juvenile offenders.

Additionally, in considering a motion to correct an illegal sentence, the

district court is not required to conduct a Miller individualized sentencing

hearing. We therefore annul the writ.

      DECISION      OF     COURT    OF    APPEALS      VACATED;       WRIT

ANNULLED.

      Waterman and Mansfield, JJ., join this opinion. Cady, C.J., files a

concurring opinion in which Wiggins, J., joins.         Appel, J., files a

dissenting opinion in which Hecht, J., joins.
                                     21
                                                 #15–0235, State v. Propps
CADY, Chief Justice (concurring specially).

       I concur in the result reached by the majority.

       We have taken important steps in recent years to recognize

constitutional protections in the sentencing of juvenile offenders. While

the nature of some criminal acts committed by juveniles can be

indistinguishable to those of adults and can challenge faith in humanity

just the same, the scientific understanding of the human brain has

evolved to give greater shape to the constitutional prohibition against
cruel and unusual punishment. See State v. Null, 836 N.W.2d 41, 54

(Iowa 2013) (“[D]evelopments in social psychology and neuroscience have

reinforced traditional notions that juveniles and adults are, in fact, quite

different.”).   This constitutional standard now sees juveniles as less

culpable than adults and recognizes their significantly greater capacity

for rehabilitation. Id. at 74–75. Juveniles are less culpable because they

lack maturity and a sense of responsibility, are more prone to impulsive

behavior, and are more vulnerable to negative influences. See State v.

Lyle, 854 N.W.2d 378, 393, 398 (Iowa 2014) (“[T]he time when a

seventeen-year-old could seriously be considered to have adult-like
culpability has passed.”).    Personality traits of juveniles are less fixed

than adults, and this difference gives juvenile offenders a greater chance

for reform.     See id. at 400 (“Given the juvenile’s greater capacity for

growth and reform, it is likely a juvenile can rehabilitate faster if given

the appropriate opportunity.”). With this understanding, the penological

justifications for a fixed mandatory sentence of imprisonment collapse

and our constitution demands that we judge juveniles by a different

sentencing process than adults.
                                     22

      If the sentencing protections we have recognized for juvenile

offenders under our Iowa Constitution were derived solely from their

diminished culpability, my view would be more aligned with the dissent

in this case. But scientific evidence of lesser culpability is not the single

driving force behind our new protections. The constitutional protections

we have recognized do not target mandatory incarceration of juvenile

offenders, but mandatory incarceration of juvenile offenders with no

opportunity during the period of incarceration to show the greater

likelihood of rehabilitation and reform has occurred.        Id. at 403 (“A

statute that sends all juvenile offenders to prison for a minimum period of

time under all circumstances simply cannot satisfy the standards of

decency and fairness embedded in article I, section 17 of the Iowa

Constitution.” (Emphasis added.)). The cruel and unusual punishment

that is mandatory minimum sentencing of juveniles lies in the total

failure to account for the underdeveloped brain of a juvenile. It lies in

treating a juvenile like an adult. But the brain development of a juvenile

is a process tied to the passage of time, often years. See State v. Sweet,

879 N.W.2d 811, 838 (Iowa 2016) (“Social science suggests reliable

answers to these questions come only with the benefit of time and

completion of brain development.”). Thus, the constitutional protection

plays out within the process of parole, not probation. It plays out in our

constitutional standard of cruel and unusual punishment, not only

because of juveniles’ diminished culpability, but also because of

personality changes that accompany their maturity with adulthood. The

constitutional standard relies on time for this rehabilitation to occur. It

requires only an opportunity for these changes to be considered as

directed by the advancements of science.
                                   23

     Our constitutional standards need to grow along with our greater

understanding, but no further.

     Wiggins, J., joins this special concurrence.
                                   24

                                               #15–0235, State v. Propps

APPEL, Justice (dissenting).

      I respectfully dissent.

      Iowa Code sections 702.11 and 907.3 (2011) mandate that a

district court impose prison time for all persons convicted of forcible

felonies, thereby precluding the possibility that a juvenile might be

placed on probation.      The mandatory prison term is automatically

imposed on adults and juveniles alike.     The question in this case is

whether these automatic, one-size-fits-all statutes may be applied

equally to adults and to juveniles notwithstanding the observations of the

United States Supreme Court and this court that because of their

reduced moral culpability, children are “constitutionally different from

adults for sentencing purposes” and this constitutional difference is not

“crime-specific.” State v. Null, 836 N.W.2d 41, 65 (Iowa 2013) (quoting

Miller v. Alabama, 567 U.S. 460, 470–73, 132 S. Ct. 2455, 2464–65

(2012)).

     I. Recent Caselaw Related to the Application of the Cruel and
Unusual Punishment Clauses of the United States and Iowa
Constitutions to Juvenile Offenders.

      A. Overview of Recent United States Supreme Court Cases. In

a series of cases, the United States Supreme Court has considered the

application of the Cruel and Unusual Punishment Clause of the United

States Constitution to sentencing children convicted of crimes committed

while under the age of eighteen.    See Miller, 567 U.S. 460, 132 S. Ct.

2455; Graham v. Florida, 560 U.S. 48, 130 S. Ct. 2011 (2010); Roper v.

Simmons, 543 U.S. 551, 125 S. Ct. 1183 (2005).       In the now familiar

trilogy of Roper, Graham, and Miller, the United States Supreme Court

outlined a number of features of youth, concluding that children are
                                    25

“constitutionally different from adults for purposes of sentencing” and

that these differences were not “crime-specific.” Miller, 567 U.S. at 470–

73, 132 S. Ct. at 2464–65; see also Graham, 560 U.S. at 68, 130 S. Ct. at

2026; Roper, 543 U.S. at 572–73, 125 S. Ct. at 1197.

      The United States Supreme Court based its determination that

children are “constitutionally different from adults for purposes of

sentencing” because of the characteristics of youth. Miller, 567 U.S. at

470–72, 132 S. Ct. at 2464.      Among other things, the United States

Supreme Court noted that youth have less developed judgment, that

children do not manifest the same level of responsibility or maturity as

adults, that they are more susceptible to negative influences and outside

pressures—including    peer   pressure,   and   that   the   character   and

personality of a child are not developed to the same extent as an adult.

Miller, 567 U.S. at 470–72, 132 S. Ct. at 2464; Graham, 560 U.S. at 68,

130 S. Ct. at 2026; Roper, 543 U.S. at 569–70, 125 S. Ct. at 1195–96.

As a result, juvenile offenders generally have less moral culpability for

their crimes than adult offenders. Miller, 567 U.S. at 470–73, 132 S. Ct.

at 2464–65.    The United States Supreme Court emphasized that its

observations about the diminished culpability of youth were not “crime-

specific” but are generally applicable. Id. at 472–73, 132 S. Ct. at 2465.

      Applying the above principles, the United States Supreme Court

held that the Cruel and Unusual Punishment Clause of the United States

Constitution (1) categorically prohibited the imposition of the death

penalty on juvenile criminal offenders, Roper, 543 U.S. at 578–79, 125

S. Ct. at 1200; (2) categorically prohibited the imposition of life without

the possibility of parole to juveniles for nonhomicide offenses, Graham,

560 U.S. at 82, 130 S. Ct. at 2034; and (3) prohibited the imposition of

life imprisonment without the possibility of parole for homicide offenses
                                          26

unless a court determined, after an evidentiary hearing, that the juvenile

was one of those uncommon juveniles who demonstrated irretrievable

depravity, Miller, 567 U.S. at 489–90, 132 S. Ct. at 2475.

       In reaching these conclusions, the Roper–Graham–Miller trilogy

relied, at least in part, on neuroscientific developments, indicating a

willingness to consider the scientific developments in evaluating

constitutional issues. 4 Further, in Miller particularly, the Supreme Court

moved away from its reliance on societal consensus in evaluating claims

under the Cruel and Unusual Punishment Clause of the Eighth

Amendment and toward reliance on the Court’s own independent

judgment.       567 U.S. at 485–87, 132 S. Ct. at 2473; see John F.

Stinneford, Youth Matters: Miller v. Alabama and the Future of Juvenile

Sentencing, 11 Ohio St. J. Crim. L. 1, 4–5 (2013).                The United States

Supreme Court also cited international norms, noting, for instance, that

the United States was the only country in the world to give official

sanction to the juvenile death penalty.             Roper, 543 U.S. at 575, 125

S. Ct. at 1198. 5




       4For a summary of the scientific developments, see Elizabeth Scott, et al.,
Juvenile Sentencing Reform in a Constitutional Framework, 88 Temp. L. Rev. 675, 684–
87 (2016).
       5Aside  from sentencing, the United States Supreme Court has recognized the
differences between juveniles and adults in other criminal justice contexts. On two
occasions, the Supreme Court has barred the use of confessions obtained under
circumstances that would have led to a different result if the suspect were an adult.
Gallegos v. Colorado, 370 U.S. 49, 55, 82 S. Ct. 1209, 1213 (1962); Haley v. Ohio, 332
U.S. 596, 601, 68 S. Ct. 302, 304 (1948). Further, in J.D.B. v. North Carolina, the
Supreme Court held that a determination of whether a minor is in custody should take
into account the age of the suspect. 564 U.S. 261, 265, 131 S. Ct. 2394, 2399 (2011);
see generally Martin Guggenheim, Graham v. Florida and a Juvenile’s Right to Age-
Appropriate Sentencing, 47 Harv. C.R.-C.L. L. Rev. 457, 488–89 (2012) (noting that
J.D.B. “mark[ed] a return to special protections for youth that characterized the Court’s
confession suppression caselaw more than half a century ago”).
                                    27

      A fundamental question after Miller has been whether the

principles announced therein should be given a broad or narrow gloss.

Initially, the battle lines were drawn over the question of whether the

holding in Miller was merely procedural or substantive.       The question

was important, as procedural caselaw developments are generally not

given retroactive effect, while substantive changes are generally applied

retroactively.

      Some courts took a narrow view of Miller, suggesting that it was

only a procedural decision and therefore the decision was not retroactive.

The general notion espoused by these courts was that Miller required

only a hearing, but that the substance of the law changed little. See,

e.g., People v. Carp, 852 N.W.2d 801, 825 (Mich. 2014), vacated sub nom.

Davis v. Michigan, ___ U.S. ___, 136 S. Ct. 1356 (2016); Chambers v.

State, 831 N.W.2d 311, 328–31 (Minn. 2013), overruled by Jackson v.

State, 883 N.W.2d 272, 279 (Minn. 2016).        We joined other courts in

viewing Miller broadly as substantive in nature. See State v. Ragland,

836 N.W.2d 107, 117 (Iowa 2013); see also People v. Davis, 6 N.E.3d 709,

722 (Ill. 2014); Diatchenko v. Dist. Att’y, 1 N.E.3d 270, 281 (Mass. 2013).

      The United States Supreme Court settled this particular question

in Montgomery v. Louisiana, 577 U.S. ___, 136 S. Ct. 718 (2016).         In

Montgomery, the Supreme Court held that Miller was substantive and

should be given retroactive effect.    Id. at ___, 136 S. Ct. at 736.    In

particular, the Court in Montgomery emphasized that the decision in

Miller was not just a matter of process, but a matter of substance,

namely, that because of the distinctive characteristics and the lessened

culpability of youth, only in extremely rare cases could children be

subject to life sentences without the possibility of parole even in cases

involving homicide. Id. at ___, 136 S. Ct. at 733–34. The Montgomery
                                     28

Court suggested that states could meet the constitutional requirement of

Miller by simply enacting statutes that eliminated juvenile life sentences

without the possibility of parole. See id. at ___, 136 S. Ct. at 736.

      After Montgomery, however, the battle lines moved but the fight

continues. Some seek to find ways to limit the scope of Roper, Graham,

and Miller by asserting, for instance, that the principles apply only in the

death penalty or life-without-the-possibility-of-parole contexts and do not

apply to aggregate sentences that may add up to lengthy prison terms.

      Proponents of a narrow reading of Roper, Graham, and Miller tend

to minimize the statement in Miller that children are “constitutionally

different” and the declaration that the principles enunciated in Roper and

Graham are not “crime-specific.” See, e.g., Graham, 560 U.S. at 124, 130

S. Ct. at 2058 (Alito, J., dissenting) (“Nothing in the Court’s opinion

affects the imposition of a sentence to a term of years without the

possibility of parole.”); United States v. Reingold, 731 F.3d 204, 214 (2d

Cir. 2013) (“Much less does a five-year sentence equate to one of ‘the

law’s most serious punishments’ so as to raise the constitutional

concerns identified in Miller v. Alabama about the mandatory application

of life without parole to all juveniles.” (quoting Miller, 567 U.S. at 482–83,

132 S. Ct. at 2471)); Silva v. McDonald, 891 F. Supp. 2d 1116, 1131

(C.D. Cal. 2012) (“Notwithstanding the holdings in Roper, Graham, or

Miller, this Court is not aware of any controlling Supreme Court

precedent which holds, or could be construed to hold, that the sentence

at issue here of 40-years-to-life with the possibility of parole, for a

juvenile . . . violates the Eighth Amendment.”).

      Proponents of a broad view believe the principles of Roper, Graham,

and Miller apply outside the factual confines of the cases. For instance,

in Casiano v. Commissioner of Correction, the Connecticut Supreme
                                    29

Court applied the Roper–Graham–Miller trilogy to a fifty-year sentence

without the possibility of parole, a term of years, even though Roper,

Graham, and Miller involved only death or life-without-the-possibility-of-

parole sentences. 115 A.3d 1031, 1045, 1048 (Conn. 2015). A number

of commentators have stressed the general applicability of the Roper,

Graham, and Miller principles to criminal justice settings involving

juveniles. See, e.g., Cara H. Drinan, The Miller Revolution, 101 Iowa L.

Rev. 1787, 1789 (2016) (characterizing Miller as “a revolutionary

decision” that “portends a tremendous shift in juvenile justice policy and

practice”);   Barry   C.   Feld,   Adolescent   Criminal   Responsibility,

Proportionality, and Sentencing Policy: Roper, Graham, Miller/Jackson,

and the Youth Discount, 31 Law & Ineq. 263, 317 n.287 (2013)

(“[Adolescents’] crimes may be the same as those of adults, but these

offenders simply are not adults and should not be sentenced as if they

were.” (quoting ABA, The State of Criminal Justice 329 (2007)); Martin

Guggenheim, Graham v. Florida and a Juvenile’s Right to Age-Appropriate

Sentencing, 47 Harv. C.R.-C.L. L. Rev. 457, 458 (2012) [hereinafter

Guggenheim] (arguing that, after Graham, “juveniles have a substantive

constitutional right to be sentenced as juveniles and that mandatory

sentencing schemes designed for adults may not be automatically

imposed on juveniles without courts first conducting a sentencing

hearing at which prosecutors must bear the burden of proving that the

juvenile deserves the sentence”); Elizabeth Scott et al., Juvenile

Sentencing Reform in a Constitutional Framework, 88 Temp. L. Rev. 675,

676 (2016) [hereinafter Scott] (“[M]any lawmakers have concluded that

the analysis and principles at the heart of the Supreme Court’s

constitutional framework have important implications for juvenile
                                         30

sentencing and parole regulation beyond the death penalty and [life

without the possibility of parole].”).

      Those viewing Miller as establishing broad principles of law draw

support from Chief Justice Roberts’ dissent in Miller. In his dissent, he

agreed with those who saw the larger application of Miller principles.

Miller, 567 U.S. at 499–503, 132 S. Ct. at 2481–82 (Roberts, C.J.,

dissenting).    According to Chief Justice Roberts, by emphasizing that

children are different, the majority in Miller announced a general

principle of reduced culpability that applies not only to the crimes at

issue in the cases but generally to the criminal conduct of young

offenders. Id.; see also Scott, 88 Temp. L. Rev. at 681. As will be seen

below, our cases agree with the Chief Justice’s assessment.

      B. Overview of Recent Iowa Supreme Court Cases.             We have

considered the reasoning of the United States Supreme Court in Roper,

Graham, and Miller in a series of juvenile cases in which challenges to

sentences were raised under the cruel and unusual punishment

provision of article I, section 17 of the Iowa Constitution. State v. Sweet,

879 N.W.2d 811 (Iowa 2016); State v. Seats, 865 N.W.2d 545 (Iowa

2016); State v. Lyle, 854 N.W.2d 378 (Iowa 2014); Ragland, 836 N.W.2d

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

These cases generally demonstrate a broad and consistent application of

the Roper–Graham–Miller principles under article I, section 17 of the Iowa

Constitution.

      We began our response to Roper, Graham, and Miller in Ragland,

836 N.W.2d 107. In Ragland, we held that a life-without-the-possibility-

of-parole sentence, even if commuted to a mandatory term of sixty years,

violated the Roper–Graham–Miller principles under article I, section 17 of

the Iowa Constitution. Id. at 122. In doing so, we explained that the
                                      31

substantive nature of the Miller holding limited the ability of the state to

impose life without the possibility of parole without an individualized

hearing. Id. at 114–17.

        In Null, we modestly extended the approach in Ragland to a case in

which a juvenile was sentenced to a mandatory term of 52.5 years. 836

N.W.2d at 45. In Null, we recognized that his 52.5-year sentence might

not technically be life without the possibility of parole, but emphasized

the application of the principles of Roper, Graham, and Miller. Id. at 72–

73. Specifically, we stated “the notions in Roper, Graham, and Miller that

‘children are different’ and that they are categorically less culpable than

adult offenders apply as fully in this case as in any other.” Id. at 71.

        We thus recognized that the teaching of Roper, Graham, and Miller

is not crime specific.     Id. at 72–73.   In Null, we held that the Roper–

Graham–Miller principles apply to lengthy prison terms imposed as a

result of consecutive sentencing. Id. at 74.

        Similarly, in Pearson, a seventeen-year-old offender convicted of

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

received a total cumulative sentence of fifty years and was not eligible for

parole for thirty-five years. 836 N.W.2d at 91, 93, 96. As in Null, we

noted that because “ ‘children are constitutionally different from adults,’

they ordinarily cannot be held to the same standard of culpability as

adults in criminal sentencing.” Id. at 95 (quoting Null, 836 N.W.2d at

74). We concluded the Roper–Graham–Miller principles applied and that

it should be “rare or uncommon” for children to receive a lengthy prison

term without the possibility of parole for the crimes committed in the

case.    Id. at 96.   We remanded the matter to the district court for

resentencing. Id. at 97.
                                    32

      In Lyle, a seventeen-year-old offender convicted of robbery in the

second degree was sentenced to a ten-year prison sentence with a

mandatory minimum of seven years. 854 N.W.2d at 381. We held that

the Roper–Graham–Miller principles applied, vacated the sentence, and

remanded the case to the district court for a Miller-type hearing. Id. at

404. We concluded,

      Miller is properly read to support a new sentencing
      framework that reconsiders mandatory sentencing for all
      children. Mandatory 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. at 402.

      We further stated 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.”    Id. at 398.    We noted that individualized

sentencing requires the sentencer to “look[] behind the label of the crime
into the details of the particular offense and the individual circumstances

of the child.” Id. at 400–01. We again noted that the principles of Roper,

Graham, and Miller are not crime specific. Id. at 399.

      Since Lyle, there have been two additional juvenile cruel and

unusual punishment cases under article I, section 17 of the Iowa

Constitution. In Seats, we emphasized that in the context of a Miller-type

hearing the district court was to consider the features of youth outlined

in Roper, Graham, and Miller as mitigating factors, and we required

specific factual findings before a juvenile was sentenced to a mandatory

term. 865 N.W.2d at 555–58. In Sweet, we held that life without the
                                    33

possibility of parole was categorically prohibited under article I, section

17 of the Iowa Constitution. 879 N.W.2d at 839.

      All the above cases emphasize several common themes drawn from

Roper, Graham, and Miller.     First, we have repeatedly stated that for

purposes of the cruel and unusual punishment provision of article I,

section 17, “children are different.” Pearson, 836 N.W.2d at 96; Null, 836

N.W.2d at 71.      Second, we have repeatedly emphasized that the

differences between children and adults are not “crime specific.” Lyle,

854 N.W.2d at 401; Null, 836 N.W.2d at 70.

      We have thus not limited Roper, Graham, and Miller to their

specific factual context of life without the possibility of parole, as some

have urged, but have instead applied the principles to mandatory prison

terms of sixty years, 52.5 years, thirty years, and seven years. Further,

we have emphasized that youth is a mitigating factor and that district

courts should engage in detailed fact-finding before coming to the

conclusion that adult sentences may be appropriate for juvenile

offenders.   Seats, 865 N.W.2d at 557–58; Null, 836 N.W.2d at 70.

Finally, we have repeatedly emphasized that the fact that a youth is

approaching eighteen years of age does not defeat application of the

Roper–Graham–Miller principles.    Sweet, 879 N.W.2d at 831; Null, 836

N.W.2d at 55.

     II. Application of Principles Under Article I, Section 17 of the
Iowa Constitution.

      In this case, the offender has been convicted of offenses involving a

forcible felony. The legislature has determined that these offenses tend

to be more serious than nonforcible offenses and, as a result, a

mandatory prison term is required for all offenders, including juvenile

offenders.
                                     34

      The problem, however, is that under these statutes, juveniles and

adults are treated the same. There is no recognition that juveniles are

“constitutionally different” from adults and there is no recognition that

this difference is not “crime specific.” Thus, two of the bedrock principles

of Roper, Graham, and Miller, as applied in our cases, are offended by the

undiscriminating nature of the statutes. See, e.g., Pearson, 836 N.W.2d

at 96; Null, 836 N.W.2d at 71–72.

      Further, the application of the statutes, in this and every case,

amounts to a de facto mandatory minimum prison term. Under these

statutes, a juvenile offender will serve what amounts to a mandatory

prison term of some length. Although formally eligible for parole from

day one, it is clear, as a practical matter, that no action will be taken

until the offender has been incarcerated for some period of time.           It

amounts to a de facto mandatory minimum sentence of undetermined

length.

      It is, of course, true that the offender is eligible for parole from day

one. But this is form over substance. We have crossed the form over

substance bridge before.     In Ragland, the argument was made that a

sixty-year mandatory prison term was not life without the possibility of

parole and thus was outside the Roper–Graham–Miller principles.          836

N.W.2d at 121.     We rejected the claim, noting that the reasoning in

Graham applies to life without the possibility of parole and to terms that

are its practical equivalent. Id.

      A mandatory minimum prison term of six months applied

indiscriminately to juveniles and adults would certainly violate Lyle

principles. An indefinite mandatory prison term applied to both juveniles

and adults suffers from the same kind of infirmity.               Under the

circumstances, we think the better approach is to allow a juvenile
                                      35

offender the opportunity to demonstrate why he or she should be treated

differently than an adult.

      Under the teaching of Roper, Graham, and Miller as implemented in

the Ragland–Null–Pearson–Lyle–Seats–Sweet line of cases, the features of

youth—namely, the impetuousness, the recklessness, the susceptibility

to peer pressure, the lack of judgment—are not crime specific. They are

applicable to all crimes.      In Lyle, we declared application of these

principles   prevents   the   legislature   from   categorically   imposing   a

mandatory minimum prison sentence that treats all juvenile offenders as

if they were adults and refuses to allow a court to recognize the

decreased culpability of youth. 854 N.W.2d at 402. Thus, in Lyle, we

held that a seven-year mandatory minimum sentence could not be

imposed without a hearing to consider the impact of the characteristics

of youth in lessening criminal culpability. Id.

      The defect of the statutes in this case is that they mandatorily

apply to all juveniles and adults.     They focus solely on the crime and

prohibit in all cases consideration of the diminished culpability of a

juvenile offender. See Guggenheim, 47 Harv. C.R.-C.L. L. Rev. at 490–91

(“When the only inquiry made by the sentencing court is to consult the

legislature’s mandatory punishment for the crime, without any further

inquiry into whether the punishment is appropriate for a juvenile, for no

other reason that it is appropriate for an adult, the Constitution requires

more.”). Juveniles generally have less culpability than adults, and if that

is true, they generally should receive lesser punishment for the same

crime.

      Further, there may well be circumstances, for instance, in which a

juvenile offender is convicted of aiding and abetting under circumstances

in which the offense occurred but was not intended by the juvenile, the
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juvenile had no direct involvement in the crime, and the Roper–Graham–

Miller factors weigh strongly in favor of diminished culpability.   As we

noted in Lyle, “A forcible felony can be the product of inane juvenile

schoolyard conduct just as it can be the product of the cold and

calculated adult conduct most people typically associate with a forcible

felony . . . .” 854 N.W.2d at 401.

      Could a mandatory prison term be automatically imposed on

Propps without an opportunity to show diminished culpability in a Miller-

type hearing? I think not. Under our cases, and particularly under Lyle,

a juvenile offender is entitled to a judicial determination that an

indefinite period of incarceration for the individual defendant is not so

disproportionate as to result in cruel and unusual punishment.

      I recognize there are alternative theories that could affirm the

district court in this case. For instance, it could be argued that the only

automatic or mandatory result of the statutes is a relatively short period

of confinement before a juvenile is considered for parole and that, in the

case of forcible felonies, such a relatively brief period of mandatory

imprisonment is constitutional as applied to all juvenile offenders. This

rationale has some appeal. Yet, the mandatory nature of incarceration is

much more appropriate for adults than for children with categorically

diminished culpability.    Further, some forcible felonies may be very

serious offenses, while others less so.   Finally, the difference between

incarceration for a few months and potential probation is substantial and

more than just a mere matter of calendar time. A prison term even for a

relatively short period of time is crossing of a major Rubicon for the

juvenile offender. A trip to the big house, no matter how brief, is not a

de minimis event.
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      Another possibility would be to short circuit the Miller procedure in

this case because of the unattractive nature of the facts so far developed.

At the age of seventeen, Propps shot a person four times. No one would

argue that the conduct of Propps amounted to inane schoolyard

misconduct. See Lyle, 854 N.W.2d at 401. These facts alone make him

a strong candidate for incarceration as reflected in the district court’s

imposition of four consecutive ten-year sentences.

      Yet, Propps is entitled to attempt to make his Miller case before the

district court.   We do not deprive criminal defendants of procedural

rights merely because of their perceived lack of merit.         Just as a

seemingly obviously guilty defendant is entitled to demand a fair trial, a

juvenile offender is entitled to attempt to show that his diminished

culpability recognized in Roper, Graham, and Miller requires that he or

she be treated differently than adults for sentencing purposes. In short,

we are confronted in this appeal with a question of law and procedure,

not a question focusing on the specific facts and circumstances of Propps

and his crimes.

      I would thus remand this case to the district court for further

proceedings.      Nothing in this opinion, of course, precludes an

appropriate prison sentence for Propps. What is precluded, under our

approach to the Roper–Graham–Miller principles, is a statutory scheme

imposing mandatory prison terms that categorically treat children the

same as adults without affording an opportunity to show the diminished

culpability of youth requires a different outcome.    I would decide this

case on this narrow, but important point.

      For the reasons stated above, I respectfully dissent.

      Hecht, J., joins this dissent.
