                   IN THE COURT OF APPEALS OF IOWA

                                  No. 16-0017
                             Filed February 8, 2017


CHAVEZ MARTEZ-NASH,
    Applicant-Appellant,

vs.

STATE OF IOWA,
     Respondent-Appellee.
________________________________________________________________


      Appeal from the Iowa District Court for Polk County, Eliza J. Ovrom,

Judge.



      Chavez Martez-Nash appeals from the denial of his postconviction-relief

application. AFFIRMED.




      Blake D. Lubinus of Lubinus Law Firm, P.L.L.C., Des Moines, for

appellant.

      Thomas J. Miller, Attorney General, and Timothy M. Hau, Assistant

Attorney General, for appellee.




      Considered by Danilson, C.J., and Mullins and Bower, JJ.
                                         2


MULLINS, Judge.

       Chavez Martez-Nash appeals from the denial of his postconviction-relief

(PCR) application. On appeal, Martez-Nash argues the district court erred in

(1) finding his trial counsel did not render ineffective assistance and

(2) determining his sentence was not unconstitutional. We affirm.

       I.     Background Facts and Proceedings

       In 2012, the State charged Martez-Nash with murder in the first degree

and criminal gang participation. He was seventeen years old at the time of the

crime. Martez-Nash entered a plea agreement whereby he waived his right to

speedy trial and pled guilty to four lesser charges: (1) willful injury causing

serious injury, a class “C” felony; (2) intimidation with a dangerous weapon, a

class “C” felony; (3) reckless use of a firearm, a class “C” felony; and (4) criminal

gang participation, a class “D” felony. Prior to entering the guilty plea, Martez-

Nash discussed the plea agreement with his trial counsel. Counsel told Martez-

Nash when he may become eligible for release—estimating that he may be in

prison for two years and nine months—but did not make any guarantees as to a

particular date when his sentence would be discharged.

       The district court accepted Martez-Nash’s guilty plea.          Martez-Nash

requested immediate sentencing, and the district court sentenced him to the

maximum term for each count to run consecutively, totaling thirty-five years.

There was no mandatory minimum period of incarceration before Martez-Nash

would be eligible for parole.

       Martez-Nash did not appeal his plea or sentence but instead filed this

PCR application after he learned it was unlikely he would be released from prison
                                         3


after two years and nine months. He claimed he accepted the guilty plea based

on his attorney’s representations as to when he would be released from prison.

Martez-Nash also claimed his sentence was unconstitutional.

       The district court denied all of Martez-Nash’s PCR claims. Martez-Nash

timely appeals.

       II.    Scope and Standard of Review

       The denial of a PCR application is generally reviewed for correction of

errors at law. See Castro v. State, 795 N.W.2d 789, 792 (Iowa 2011). However,

PCR applications that raise an ineffective-assistance-of-counsel claim are

reviewed de novo. See id. Claims of illegal sentences are ordinarily reviewed for

the correction of errors at law, but “[w]hen, as here, the [applicant] mounts a

constitutional challenge to an allegedly illegal sentence, the standard of review is

de novo.” State v. Ragland, 836 N.W.2d 107, 113 (Iowa 2013).

       III.   Analysis

              A.     Ineffective Assistance of Counsel

       Martez-Nash first claims his counsel rendered ineffective assistance by

allegedly misinforming him about when his sentence would be discharged and in

failing to challenge the constitutionality of his sentence. To prove his ineffective-

assistance-of-counsel    claim,   Martez-Nash     is   required   to   prove   by   a

preponderance of evidence that “(1) his trial counsel failed to perform an

essential duty, and (2) this failure resulted in prejudice.” See State v. Shaw, 709

N.W.2d 128, 133 (Iowa 2006); accord Strickland v. Washington, 466 U.S. 688,

687 (1984). Failure to prove either element is fatal to the appellant’s claim. See

King v. State, 797 N.W.2d 565, 571 (Iowa 2011) (“The applicant must prove both
                                        4

elements by a preponderance of the evidence.”); State v. Graves, 668 N.W.2d

860, 869 (Iowa 2003) (“A defendant’s inability to prove either element is fatal.”).

Thus, “[w]e can resolve ineffective-assistance-of-counsel claims under either

prong” without having to resolve the other. State v. Ambrose, 861 N.W.2d 550,

556 (Iowa 2015); see also Dempsey v. State, 860 N.W.2d 860, 868 (Iowa 2015)

(“If we conclude a claimant has failed to establish either of these elements, we

need not address the remaining element.”).

      To meet his burden under the prejudice prong, Martez-Nash is required to

show, “there is a reasonable probability that, but for counsel’s unprofessional

errors, the result of the proceeding would have been different.” Strickland, 466

U.S. at 694. Martez-Nash’s claim involves a guilty plea, and thus, he is required

to show “a reasonable probability that, but for counsel’s errors, [Martez-Nash]

would not have pleaded guilty and would have insisted on going to trial.” Straw,

709 N.W.2d at 138. Martez-Nash concedes he does not want to disturb the

guilty plea and proceed to trial, “[h]e merely wants the benefit of the bargain he

made with the State.” Martez-Nash has failed to show there is a reasonable

probability he would have proceeded to trial had his trial attorney not allegedly

misinformed him about the length of his sentence. See id.

      Additionally, the remedy Martez-Nash seeks here is unavailable to him.

Martez-Nash seeks to vacate his sentence “so that his discharge can be reset to

two years and nine months from the date of his sentencing,” or, in the alternative,

have this matter remanded so that he can receive a full hearing regarding

mitigating circumstances, such as his age.        “[S]entences imposed without

statutory authorization are illegal and void.” State v. Louisell, 865 N.W.2d 590,
                                        5


597 (Iowa 2015). “[L]egislative determinations of punishment are entitled to great

deference.” State v. Bruegger, 773 N.W.2d 862, 872–73 (Iowa 2009). “[T]he

sentencing process is not the sole province of the judiciary.      The legislature

possesses the inherent power to prescribe punishment for crime and the

sentencing authority of the courts is subject to that power.” State v. Iowa Dist.

Ct., 308 N.W.2d 27, 30 (Iowa 1981). The sentencing court cannot invade the

province of the legislature and executive branches. See State v. Remmers, 259

N.W.2d 779, 785 (Iowa 1977). A criminal sentence is null if the “sentencing court

departs—upward or downward—from the legislatively authorized sentence for a

given offense.” State v. Draper, 457 N.W.2d 600, 605 (Iowa 1990); see also

State v. Ohnmacht, 342 N.W.2d 838, 842 (Iowa 1983). The sentencing court is

authorized to set the maximum length the prisoner will serve, within the bounds

of the law, but it is the province of the parole board to determine the minimum

term of the defendant’s incarceration. See Iowa Code §§ 902.3, .9, 906.3 (2016);

see also Remmers, 259 N.W.2d at 783–85 (“In sentencing defendant . . . the trial

court was limited to selecting the maximum term of incarceration. . . .        The

ultimate determination of the length of sentence this defendant will actually serve

within the maximum rests with the parole board.”).       The court cannot order

Martez-Nash be sentenced to the determinate term as he requests nor can it

order a specific time for parole. See Remmers, 259 N.W.2d at 785.

      Thus, on our de novo review, we determine Martez-Nash has failed to

prove his trial attorney’s conduct prejudiced him. We need not decide whether

Martez-Nash’s trial counsel’s conduct breached an essential duty. We affirm the
                                          6


district court’s dismissal of Martez-Nash’s claim for ineffective assistance of

counsel.

              B.     Illegal Sentence

       Next, Martez-Nash claims his sentence was unconstitutional under both

the federal and state constitutions, citing State v. Lyle, 854 N.W.2d 378 (Iowa

2014), and subsequent cases.

       In Lyle, the Iowa Supreme Court held “all mandatory minimum sentences

of imprisonment for youthful offenders are unconstitutional under the cruel and

unusual punishment clause in article I, section 17 of [the Iowa] constitution.” 854

N.W.2d at 400. But, the Lyle court made clear:

       [T]he specific constitutional challenge raised on appeal and
       addressed in this opinion concerns the statutory imposition of a
       minimum period of incarceration without parole equal to seventy
       percent of the mandatory sentence. The holding in this case does
       not address the mandatory sentence of incarceration imposed
       under the statutory sentencing schema or any other issues relating
       to the sentencing schema.

Id. at 404 n.10. Additionally, the supreme court stated its holding “does not

prohibit judges from sentencing juveniles to prison for the length of time identified

by the legislature for the crime committed, nor does it prohibit the legislature from

imposing a minimum time that youthful offenders must serve in prison before

being eligible for parole.” Id. at 403.

       Two of the charges to which Martez-Nash pled guilty—willful injury

causing serious injury, in violation of Iowa Code section 708.4, and intimidation

with a dangerous weapon, in violation of section 708.6—are forcible felonies

under section 702.11(1) and are therefore ineligible for probation.       See Iowa

Code § 907.3 (“Pursuant to section 901.5, the trial court may, upon a plea of
                                         7


guilty, a verdict of guilty, or a special verdict upon which a judgment of conviction

may be rendered, exercise any of the options contained in this section. However

this section does not apply to a forcible felony . . . .”). Martez-Nash argues his

ineligibility for probation creates a mandatory period of incarceration and thus his

sentence is unconstitutional under Lyle’s holding.       Additionally, Martez-Nash

argues the district court erred in failing to give him an individualized hearing to

make specific findings with regard to his age. See Lyle, 854 N.W.2d at 403

(requiring that district courts, when the sentence contains a mandatory minimum,

“carefully consider all of the circumstances of each case to craft an appropriate

sentence and give each juvenile the individual sentencing attention they deserve

and the constitution demands”)

       Martez-Nash’s sentences did not have mandatory minimums.                 “Our

appellate courts have declined to extend the individualized sentencing

requirement for juveniles to sentences without mandatory minimum terms.” State

v. Hudson, No. 14-1974, 2016 WL 530801, at *2 (Iowa Ct. App. Feb. 10, 2016).

A juvenile offender is not entitled to parole and “[t]he State is not required to

make such a guarantee.” State v. Sweet, 879 N.W.2d 811, 839 (Iowa 2016).

Though two of the charges to which he pled guilty are ineligible for probation,

Martez-Nash’s sentences did not contain mandatory minimums; therefore, Lyle is

inapplicable and Martez-Nash’s sentences are not unconstitutional under that

holding. See State v. Means, No. 14-1367, 2015 WL 6509741, at *9–10 (Iowa

Ct. App. Oct. 28, 2015) (declining to extend the holdings of recent juvenile

sentencing decisions to cases in which juvenile offenders do not face any

mandatory minimum terms of incarceration); State v. Marshall-Limoges, No. 14-
                                           8


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

defendant’s request to extend the requirement to consider Miller factors to the

imposition of any prison sentence on a juvenile defendant). Nor was Martez-

Nash entitled to an individualized hearing on his age. See Means, 2015 WL

6509741, at *9; Marshall-Limoges, 2015 WL 4936265, at *1.1 Therefore, on de

novo review, we affirm the district court’s denial of Martez-Nash’s claim that his

sentence is illegal.

       IV.    Conclusion

       We affirm the district court’s denial of Martez-Nash’s PCR application.

       AFFIRMED.




1
  The sentencing court recited the serious nature of the charges, the facts of the case,
and the plea agreement as reasons for the sentence. See State v. Thacker, 862 N.W.2d
402, 408 (Iowa 2015) (holding, when the reasons for the sentence “are obvious in light of
the [district court’s] statement and the record before the court,” a “terse and succinct”
statement as to the court’s reasons for the sentence is sufficient).
