                    IN THE COURT OF APPEALS OF IOWA

                                   No. 15-0077
                              Filed March 23, 2016


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

DAUNTE DOMINIQUE BULLOCK,
     Defendant-Appellant.
________________________________________________________________

      Appeal from the Iowa District Court for Des Moines County, Mary Ann

Brown, Judge.



      A defendant appeals following his resentencing, claiming the district court

failed to consider all of the mitigating factors. AFFIRMED.



      Mark C. Smith, State Appellate Defender, and Stephan J. Japuntich,

Assistant Appellate Defender, for appellant.

      Thomas J. Miller, Attorney General, and Kevin Cmelik and Alexandra Link,

Assistant Attorneys General, for appellee.



      Considered by Vogel, P.J., and Vaitheswaran and Bower, JJ.
                                           2



VOGEL, Presiding Judge.

       Daunte Bullock appeals the sentence imposed by the district court

following a resentencing hearing held after the supreme court declared the

imposition of mandatory minimum sentences against youthful offenders

unconstitutional. See State v. Lyle, 854 N.W.2d 378, 402 (Iowa 2014) (“[W]e

hold a mandatory minimum sentencing schema . . . violates article I, section 17

of the Iowa Constitution when applied in cases involving conduct committed by

youthful offenders.”). Bullock was sixteen years old when he committed second-

degree sexual abuse and first-degree burglary, both class “B” felonies, and

following his conviction, he was initially sentenced to twenty-five years in prison

for each conviction, to be served consecutively.           In addition, a mandatory

minimum sentence was imposed on his conviction for second-degree sexual

abuse.1

I. Miller Factors.

       In this appeal, Bullock asserts the resentencing court did not fully apply

the factors articulated by the U.S. Supreme Court in Miller v. Alabama, 132 S. Ct.

2455, 2468 (2012), which the Lyle court held were the factors to consider when




1
  Bullock was also convicted of first-degree kidnapping in a separate case and initially
sentenced to life in prison without the possibility of parole. That sentence was modified
in 2011 to life in prison with the possibility of parole pursuant to the U.S. Supreme
Court’s ruling in Graham v. Florida, 560 U.S. 48, 82 (2010) (holding the imposition of a
sentence of life without the possibility of parole on juveniles for nonhomicide offenses
violates the Eighth Amendment). Bullock requested a second resentencing in the
kidnapping case in conjunction with the resentencing he requested in the sexual abuse
and burglary case. A joint hearing was held where the court addressed the sentences
imposed for both the sexual abuse and burglary convictions, and the kidnapping
conviction. However, on appeal, Bullock only challenges the court’s resentencing
decision on the sexual abuse and burglary convictions.
                                        3



resentencing a youthful offender. See Lyle, 854 N.W.2d at 404 n.10. These

factors include:

       (1) the age of the offender and the features of youthful behavior,
       such as “immaturity, impetuosity, and failure to appreciate risks and
       consequences”; (2) the particular “family and home environment”
       that surround the youth; (3) the circumstances of the particular
       crime and all circumstances relating to youth that may have played
       a role in the commission of the crime; (4) the challenges for
       youthful offenders in navigating through the criminal process; and
       (5) the possibility of rehabilitation and the capacity for change.

Id. (citing Miller, 132 S. Ct. at 2468). “When a sentence imposed by a district

court falls within the statutory parameters, we presume it is valid and only

overturn for an abuse of discretion or reliance on inappropriate factors.” State v.

Hopkins, 860 N.W.2d 550, 554 (Iowa 2015). Our review is de novo to the extent

Bullock claims his new sentence is unconstitutional in light of his claim the court

did not consider all of the Miller factors during the resentencing hearing. See

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

       In resentencing Bullock, the court recited the Miller factors and then

stated:

              There’s no question that when you committed both of these
       crimes, you were sixteen years of age. You were not an adult. You
       were a child.
              At that time, you had family here in the area. You had
       basically disregarded any parental supervision at that time and
       were acting out on your own. You tell me now that at least part of
       the problems that may have affected you were that you had been
       sexually abused as a small child and that had never been dealt
       with, and that is a circumstance I should take into consideration
       given the fact that the crimes involved were sexual-abuse type
       offenses.
              The next factor would be the circumstances surrounding the
       offense, and I want to come back to that last.
              Then number—the fourth factor, or the incompetencies of
       youth, about how you would have dealt with the whole set of
                                    4



circumstances, and in your case, I don’t know if that has as much
impact, because I don’t know whether confessions were
necessarily what would have led to the situation. Also, we don’t
have a guilty plea. Sometimes youngsters plead guilty maybe not
fully understanding the consequences. In both of your cases, you
had jury trial, and the juries found you guilty, and by the time you
had your second trial, I think you were twenty-two years old
because of the time that had gone by with that since the State
didn’t file the charge right after the events took place.
         And then also, the possibility of rehabilitation. Your first
thirteen years in prison showed almost no possibility for
rehabilitation. The fact that you had, I think, seventy-three
disciplinary violations considered to be major reports during your
fourteen years in prison would be a demonstration that you were
not looking at being rehabilitated, and I suppose that’s because
when you went into prison you thought, I’m not getting out of here,
what do I care, and that’s basically what you told me today.
         After you were resentenced in 2011, your behaviors got a
little bit better, because I look at that list of disciplinary infractions,
and you still had some. You were still not complying with all of the
rules after 2011, but the serious nature of them changed.
         Since you were resentenced, you had nine violations,
disciplinary actions, in the institution, but they were not the kind that
gave you lengthy detain, disciplinary detention, or great loss of
earned time. They were disruptive conduct, having unauthorized
money, theft of a DVD player; that was kind of a serious one, but
you still had some problems. That shows a lack of possibility of
rehabilitation, yet all of these classes that you’re now showing me
that you’ve done basically since that resentencing show that you
are working towards rehabilitation, so you’ve got some factors
going both ways on that.
         So if I were just to look at those factors, I think that you have
made some progress since 2011 when you suddenly realized you
might get out of prison before you die, and so you wanted to start
changing your ways, and you started taking advantage of some
opportunities, and that’s good, and that shows me that there is a
possibility for you to be rehabilitated.
         If you had asked me that when you were here in 2011 and I
removed the mandatory no possibility of parole, I wouldn’t have
thought you would have been rehabilitated because of the
problems you were having in prison, but at least there’s a hope for
that now based upon what you’ve done.
         But that brings us back to the circumstances surrounding the
offenses. These two cases were incredibly serious. They still are
incredibly serious.
                                    5



        It does trouble me that the Supreme Court in these rulings
that they have in talking about juveniles have seemed to take an
opinion that sometimes teenagers were involved in crimes because
of peer pressure or it was school-yard pranks, they said, that just
rose to the level of a forcible felony and required prison. They kind
of missed the boat with crimes like this. This crime was solely your
act, both of these crimes. You didn’t have any peer pressure
causing you to do this. No one enticed you to do it. As far as I can
tell, these victims were random victims that you just picked not
because of anything that they really had done to you personally,
and in taking into consideration the life sentence, the escalation of
your behaviors.
        ....
        I will tell you, Mr. Bullock, if I had been asked this question in
2011, there would have been no question about what I would have
done. I would have maintained the minimum sentence because of
your horrible performance in prison, but I take you at your word
today, that when you went to prison, you had to puff up to protect
yourself, or that you thought you were a lost cause because you
were never going to get out, so you didn’t care, and, consequently,
you misbehaved, and the fact that you now have some hope of
getting out has caused you to take advantage of some
opportunities, and you’re right, SOTP [Sex Offender Treatment
Program] is what you need to get into, and that’s how the
Department of Corrections and the Board of Parole will know when
you’re ready to get out of prison.
        If you can successfully complete SOTP, acknowledge
responsibility for your acts, acknowledge what brought you to do
those things to another person, and can learn the skills on how not
to do it again, then they’ll probably be comfortable recommending a
parole.
        If you can’t successfully complete that, then they’re probably
not going to recommend parole, and they’ll have the option to not
parole you given the fact you have a life sentence.
        But I believe that’s enough of a safety net for society;
consequently, I think that the mandatory or the required minimum
before you’re eligible for parole should be lifted, so that the DOC
can have the option of getting you into SOTP if they want to right
now. That will be the tale-tell. If you can succeed in that, then
maybe you are ready to be returned to society. If you can’t, maybe
you’re not.
        So the sentences in these cases will be—first of all, in
FECR001942, the sentence will remain as it was previously
imposed, except I will lift any minimum sentence to be served
before you’re eligible for parole . . . .
                                            6



       Despite the court’s extensive findings, Bullock claims the court failed to

consider several of the Miller factors, specifically, his age and features of youthful

behavior including a psychological evaluation done two years before the offenses

at issue2; his family and home environment including his abandonment by his

biological father, his lack of stable residence, and the substance abuse and

domestic violence perpetrated by his step-father; and his challenges in

navigating the criminal process. Upon our review of the record, we conclude the

court appropriately considered all of the Miller factors when resentencing Bullock.

The district court need not mention every factor Bullock asserted in mitigation of

his sentence. State v. Boltz, 542 N.W.2d 9, 11 (Iowa Ct. App. 1995) (“We do not

believe however, it is required to specifically acknowledge each claim of

mitigation urged by a defendant.        Furthermore, the failure to acknowledge a

particular sentencing circumstance does not necessarily mean it was not

considered.”). We find no abuse of discretion in the district court’s resentencing

decision.

II. Court-Appointed Attorney Fees.

       Bullock also claims the court erred in ordering him to pay his court-

appointed attorney fees in excess of what is permitted under the Iowa

Administrative Code rule 493-12.4 (1999) and also without considering his

reasonable ability to pay. The State asserts the law in effect when Bullock was




2
 We note neither party brought this psychological evaluation to the attention of the court
during resentencing.
                                           7



initially sentenced for this crime in 2000, as modified in 2002,3 permitted the

assessment of court-appointed attorney fees with no cap on the amount. In

addition, the State claims Bullock should file a petition for reconsideration under

Iowa Code section 910.7 (2015)4 to the extent he claims he is unable to afford

the restitution amount. “Our review of challenges to the illegality of a sentence is

for errors at law.” Tindell v. State, 629 N.W.2d 357, 359 (Iowa 2001).

       The crimes in question were committed in 1999. At that time criminal

defendants could be assessed court-appointed attorney fees as part of a

restitution order, to the extent the defendant had the ability to pay, pursuant to

Iowa Code section 910.2 (1999)—“In all criminal cases in which there is a plea of

guilty, verdict of guilty, or special verdict upon which a judgement of conviction is

rendered, the sentencing court shall order that restitution be made by each




3
  The initial judgment and sentence was imposed in August 2000, but a subsequent
appeal resulted in a remand for resentencing due to the district court’s error in merging
the sexual abuse and burglary convictions. State v. Bullock, 638 N.W.2d 728, 735 (Iowa
2002) (“We vacate the court’s sentence and remand for entry of a judgment of conviction
on both burglary in the first degree and sexual abuse in the second degree, and for
sentencing on both convictions.”). The initial sentence ordered Bullock to reimburse
$12,973.75 in court-appointed attorney fees. Following Bullock’s resentencing in April
2002, an additional $275.00 was imposed for a total assessment of $13,248.75 in court-
appointed attorney fees, as also shown in the November 19, 2002 supplemental order.
4
  This code provision provides, in part:
                1. At any time during the period of probation, parole, or
        incarceration, the offender or the office or individual who prepared the
        offender’s restitution plan may petition the court on any matter related to
        the plan of restitution or restitution plan of payment and the court shall
        grant a hearing if on the face of the petition it appears that a hearing is
        warranted.
                2. After a petition has been filed, the court, at any time prior to the
        expiration of the offender’s sentence, provided the required notice has
        been given pursuant to subsection 3, may modify the plan of restitution or
        the restitution plan of payment, or both, and may extend the period of
        time for the completion of restitution.
Iowa Code § 910.7.
                                         8



offender . . . to the extent that the offender is reasonably able to pay, for . . .

court-appointed attorney’s fees . . . .” Also in 1999, the legislature passed a law

requiring the State Public Defender to establish fee limitations for particular

categories of cases for services rendered by court-appointed attorneys to

indigents.   See Iowa Code § 13B.4(4)(a) (Supp. 1999).            The State Public

Defender established the limitations in Iowa Administrative Code rule 493-12.4

(1999). In 1999, the fee limitation for class “B” felonies was $3000. Iowa Admin.

Code r. 493-12.4 (1999).5 However, it was not until July 1, 2002, that these fee

limitations were applied to limit the amount that could be assessed against an

indigent defendant for restitution. See 2002 Iowa Acts ch. 1067, § 19 (“When

determining the amount of restitution for each case under section 910.3, the

expense of the public defender shall be calculated at the same hourly rate of

compensation specified under section 815.7. However, the expense of the public

defender shall not exceed the fee limitations established in section 13B.4.”)

(codified at Iowa Code § 815.14 (2003)); see also Iowa Code § 3.7.

       The court-appointed attorney fees were assessed as part of Bullock’s

restitution in the sentencing order filed April 8, 2002. Thus, the fee caps were not

applicable to Bullock at the time the crime was committed in 1999 or when the

initial sentence was modified in 2002.       The restitution amount imposed on

Bullock in 2002 was valid under the then-applicable law.

       Bullock was resentenced in 2014 after the supreme court declared the

imposition of mandatory minimums on youthful offenders unconstitutional under


5
 The attorney-fee limitations have been subsequently relocated to Iowa Administrative
Code r. 493-12.6.
                                            9



article I, section 17 of the Iowa Constitution.       See Lyle, 854 N.W.2d at 402.

However, the resentencing hearing was to address only whether the minimum

sentence should be imposed on Bullock. See id. at 404 n.10 (“To avoid any

uncertainty about the parameters of the resentencing hearing and the role of the

district court on resentencing, we reiterate that the 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. . . . In order to address the issue raised in

this appeal, the district court shall conduct a hearing in the presence of the

defendant and decide, after considering all the relevant factors and facts of the

case, whether or not the seventy percent mandatory minimum period of

incarceration without parole is warranted as a term of sentencing in the case.”).

No other aspect of Bullock’s sentence, including the requirement that he pay

restitution for court-appointed attorney fees, was up for reconsideration by the

district court.6

       Because it was legal when imposed and because it remained in effect

despite the resentencing hearing under Lyle, we affirm Bullock’s sentence

requiring him to pay $13,248.75 in court-appointed attorney fees. To the extent

Bullock claims he does not have the reasonable ability to pay the restitution

ordered in 2002, he can petition the district court for a hearing to review the plan


6
  We note Bullock did not challenge the restitution amount at the time of his resentencing
in 2014. However, we address the merits of his request in light of his claim that the
sentence imposed in 2002 was illegal because he believed it exceeded the then-
applicable fee limitations established in Iowa Administrative Code r. 493-12.4 (1999).
See Tindell, 629 N.W.2d at 359 (noting challenges to an illegal sentence can be made at
any time without needing to first raise the issue in district court).
                                      10



of restitution or the restitution plan of payment pursuant to Iowa Code section

910.7.

         AFFIRMED.
