                   IN THE COURT OF APPEALS OF IOWA

                                   No. 14-0559
                            Filed December 10, 2014

STATE OF IOWA,
     Plaintiff-Appellee,

vs.

CALEB ELIJAH THOMAS RYUN,
     Defendant-Appellant.
________________________________________________________________

      Appeal from the Iowa District Court for Polk County, Karen A. Romano,

Judge.



      A defendant challenges the constitutionality of his mandatory minimum

sentence for second-degree robbery. AFFIRMED.



      Nicholas A. Bailey of Bailey Law Firm, P.L.L.C., Altoona, for appellant.

      Thomas J. Miller, Attorney General, Heather R. Quick, Assistant Attorney

General, John P. Sarcone, County Attorney, and Nan Horvat and Olu Salami,

Assistant County Attorneys, for appellee.



      Considered by Danilson, C.J., and Doyle and Tabor, JJ.
                                           2



TABOR, J.

       Caleb Ryun appeals his sentence for robbery in the second degree. He

argues the statutory requirement he serve seven years of his indeterminate ten-

year prison sentence is cruel and unusual under the Eighth Amendment of the

United States Constitution and article I, section 17 of the Iowa Constitution.

Because we conclude the mandatory minimum sentence was not grossly

disproportionate to his conduct in threatening the owners of a pharmacy and

stealing painkillers, we affirm.

       Ryun faced charges for two robberies committed in July and September of

2013 at the same Medicap Pharmacy on the north side of Des Moines. After

negotiations with the State, he entered a guilty plea to one of the two counts on

February 10, 2014. On March 26, 2014, the district court sentenced Ryun to a

mandatory term not to exceed ten years, under Iowa Code sections 711.3 and

902.9(4) (2013). Under Iowa Code section 902.12(5), Ryun is required to serve

a minimum seven-tenths of his maximum sentence before being eligible for work

release or parole.     Ryun now appeals his sentence claiming the mandatory

minimum is cruel and unusual.1

       Ryun’s cruel-and-unusual-punishment claim is an illegal sentencing

challenge he may raise at any time, though he did address his constitutional



1
  Ryan also alleges a due process violation in the introduction of his argument. Because
he does not fully develop the due process claim, we find it waived on appeal. See Baker
v. City of Iowa City, 750 N.W.2d 93, 102–03 (Iowa 2008) (holding a conclusory
statement without argument or supporting authority waives an issue); see also State v.
Fiedler, 152 N.W.2d 236, 239 (Iowa 1967) (“[W]here a defendant on appeal cites no
authority in support of errors claimed, we are under no compulsion to entertain the
assignment.”).
                                          3



claims to the sentencing court. See State v. Bruegger, 773 N.W.2d 862, 871–72

(Iowa 2009). Because Ryun is challenging the constitutionality of his sentence,

our review is de novo. Id. at 869.

       The Eighth Amendment declares “[e]xcessive bail shall not be required,

nor excessive fines imposed, nor cruel and unusual punishments inflicted.” U.S.

Const. amend VIII. Our state constitution contains a similar protection. See Iowa

Const. art. I, § 17. (“Excessive bail shall not be required; excessive fines shall not

be imposed, and cruel and unusual punishment shall not be inflicted.”). These

provisions “embrace[] the bedrock rule of law that punishment should fit the

crime” and also recognize “even guilty people are entitled to protection from

overreaching punishment meted out by the state.” Bruegger, 773 N.W.2d at 872.

       Cruel-and-unusual-punishment challenges fall into two categories: a

categorical approach—questioning the general sentencing practice—and a gross

disproportionality comparison of a particular defendant’s sentence with the

seriousness of the particular crime. See State v. Oliver, 812 N.W.2d 636, 640

(Iowa 2012) (citing Graham v. Florida, 560 U.S. 48, 60 (2010)). Ryun’s appeal

falls into the latter category.2 Because Ryun challenges his sentence under the

Iowa Constitution, “we will apply our more stringent gross-disproportionality

review to the facts of his case.” See id. at 650.



2
  Ryun does not raise a categorical challenge to the mandatory minimum provision.
Because he was an adult when he committed his offense, his situation is not controlled
by State v. Lyle, 854 N.W.2d 378, 403 (Iowa 2014) (“[O]ur holding today has no
application to sentencing laws affecting adult offenders. Lines are drawn in our law by
necessity and are incorporated into the jurisprudence we have developed to usher the
Iowa Constitution through time. This case does not move any of the lines that currently
exist in the sentencing of adult offenders.”).
                                          4



       To determine whether Ryun’s sentence is grossly disproportionate to his

crime we apply the three-step test developed in Solem v. Helm, 463 U.S. 277,

290–92 (1983) (outlining the objective criteria to consider as “(i) the gravity of the

offense and the harshness of the penalty; (ii) the sentences imposed on other

criminals in the same jurisdiction; and (iii) the sentences imposed for commission

of the same crime in other jurisdictions”).     The first criteria acts as an initial

barrier that is difficult to cross. See Bruegger, 773 N.W.2d at 873 (noting “it is a

rare case in which a threshold comparison of the crime committed and the

sentence imposed leads to an inference of gross disproportionality”). Only if a

challenge survives this threshold test do we progress to the second and third

Solem prongs. Id.

       During our proportionality review, we are mindful of four principles. Oliver,

812 N.W.2d at 650.           First, we accord great deference to legislative

determinations of punishment and realize a sentence need not adhere to strict

proportionality to remain constitutional.     See Bruegger, 773 N.W.2d at 872

(opining that “a reviewing court is not authorized to generally blue pencil criminal

sentences to advance judicial perceptions of fairness”); see also Ewing v.

California, 538 U.S. 11, 28 (2003) (emphasizing a reviewing court does not “sit

as a ‘superlegislature’ to second-guess policy choices”). Second, although we

impose a more rigorous review under the Iowa Constitution than under its federal

counterpart, it remains rare that a sentence is so grossly disproportionate to the

offense that it satisfies the threshold inquiry under Solem. Oliver, 812 N.W.2d at

650 (citing Iowa cases in which defendants failed to meet this preliminary
                                            5



standard). Third, we regard a recidivist offender as more culpable and, therefore,

more deserving of a longer sentence than a first-time offender. Id. Fourth, the

unique features of a case may “‘converge to generate a high risk of potential

gross disproportionality.’” Id. at 651 (quoting Bruegger, 773 N .W.2d at 884).

       Keeping these principles in mind, we turn to the instant facts and consider

whether Ryun’s seven-year mandatory minimum sentence was grossly

disproportionate to his robbery offense under article I, section 17 of the Iowa

Constitution.

       The State charged Ryun with two counts of robbery in the second degree,

in violation of Iowa Code sections 711.13 and 711.3.4 On the morning of trial,

Ryun entered a plea of guilty to count one of the two-count trial information. At

the hearing, Ryun admitted that on July 17, 2013, he donned a sweatshirt and

sunglasses to conceal his identity and entered the Medicap Pharmacy to obtain

Oxycodone. Once inside, he threatened the pharmacy employee and placed her

in fear of immediate serious injury to further his intention to commit a theft.

According to the minutes of evidence, Ryun handed the employee a note which

said, “Oxycodone 15s 30s quickly & quietly no one gets hurt.” Ryun told the




3
  Iowa Code section 711.1 provides:
        A person commits a robbery when, having the intent to commit a theft, the
        person does any of the following acts to assist or further the commission
        of the intended theft or the person’s escape from the scene thereof with
        or without the stolen property: 1. Commits an assault upon another. 2.
        Threatens another with or purposely puts another in fear of immediate
        serious injury. 3. Threatens to commit immediately any forcible felony.
4
   Iowa Code section 711.3 provides that all robbery which is not robbery in the first
degree is robbery in the second degree. Robbery in the first degree requires the
perpetrator to be armed with a dangerous weapon or purposely inflict or attempt to inflict
serious injury. Iowa Code § 711.2.
                                         6



plea-taking court he received Oxycodone without a prescription and without

paying for it. He then returned to a car driven by his mother, “who knew what

was going on,” and they drove home.5

       On appeal, Ryun contends his case involves “unique circumstances,”

which “converged to form a high risk of disproportionality.” In particular, he cites

his age of twenty-two years and his lack of a criminal record “save a prior

deferred judgment” for theft in the fifth degree. He also claims he robbed the

pharmacy “to feed his drug addiction.” Ryun emphasizes after his arrest he

obtained a substance abuse evaluation and completed a twenty-eight day in-

patient treatment program.

       To fully address the proportionality question, we consider the totality of the

circumstances, including the mitigating factors identified by Ryun, as well as

other “potential factors that tend to aggravate the gravity of the offense and

magnify the consequences on [the victim].” See Bruegger, 773 N.W.2d at 886.

       Looking first at the mitigating factors, we are not convinced Ryun’s

circumstances are so unique as to give rise to an inference of gross

disproportionality.   Initially, he was four years into his adulthood and had

completed two years of college when he committed the robberies. Three years

earlier, he received a deferred judgment for fifth-degree theft, but his deferred

judgment was revoked in November 2010, and he served two days in jail. Plus,

Ryun was a repeat offender, though under the plea agreement he pled to and



5
 The presentence investigation report indicated Ryun’s mother had an opiate addiction
and, according to the minutes of evidence, she confessed her participation in the
Medicap robberies.
                                             7



received a sentence for only one of two robbery counts. The minutes show Ryun

confessed to committing both robberies and at sentencing he admitted making “a

couple of bad decisions”—indicating he took responsibility for both crimes.

       Ryun was contrite at the sentencing hearing but also cited his addiction to

painkillers as a motivating factor in the robberies.          Defense counsel told the

sentencing court Ryun became addicted to pain medication after a high school

football injury. Ryun said in his allocution: “[W]hen you’re under the influence of

drugs, you feel like you’re going to die without them and it’s unbearable, I chose

the wrong path and there is no excuse for that.”

       We are sympathetic to Ryun’s struggles as an addict and recognize he

took a positive step in seeking in-patient treatment for his substance abuse

problem. But as Ryun himself recognized at the sentencing hearing, his conduct

in committing the robberies was a “foolish” and “outrageous” way to deal with his

drug dependence. Moreover, the record suggests Ryun’s motivation may not

have been limited to “feeding” his own addiction. While Ryun told the police he

was addicted to Oxycodone at the time of his arrest, he also revealed an

intention to sell the stolen drugs for thirty to forty dollars per pill.

       On the aggravating factor side of the equation, Ryun’s crime had a

significant impact on the pharmacy owners, who wrote a victim impact statement

for the sentencing court. The family had operated the pharmacy for thirty years,

but after being robbed twice within the span of a few months, they started to

question whether it was too much of a risk to continue staffing the business.

Family members were scared to go to work and suffered from anxiety.
                                          8



       The legislature has chosen a seven-year mandatory minimum sentence

as the appropriate punishment for robbery in the second degree.6              Section

902.12 applies to crimes where violence is directed at another person, such as

murder, attempted murder, sexual abuse, kidnapping, robbery, and vehicular

homicide. As our supreme court has said, “[o]ur role is not to determine what the

proper sentence for a crime should be. Instead, we are to review the sentence

mandated by the legislature to ensure that it is within the protections ensured by

the State and Federal Constitutions.” Oliver, 812 N.W.2d at 654.

       After considering the features of Ryun’s case, we do not find the

mandatory minimum sentence of seven years to be grossly disproportionate to

his crime.   Because the punishment does not create an inference of gross

disproportionality, we need not consider the second and third factors of Solem.

See id. at 653.

       AFFIRMED.




6
 The Iowa Supreme Court rejected disproportionality challenges to section 902.12, even
when it included a longer mandatory minimum term. See State v. Phillips, 610 N.W.2d
840, 844 (Iowa 2000); State v. Hoskins, 586 N.W.2d 707, 709 (Iowa 1998) (“[W]e do not
believe the ten-year sentence imposed upon a conviction of second-degree robbery, of
which [the appellant] is required to serve 100% [which could only be reduced by fifteen
percent for good conduct], leads to an inference of gross disproportionality.”).
