                    IN THE COURT OF APPEALS OF IOWA

                                   No. 14-0843
                              Filed March 25, 2015

STATE OF IOWA,
     Plaintiff-Appellee,

vs.

ETHAN JOSEPH WALZTONI,
     Defendant-Appellant.
________________________________________________________________

      Appeal from the Iowa District Court for Buchanan County, David F. Staudt,

Judge.



      An eighteen-year-old convicted of second-degree robbery challenges his

sentence as cruel and unusual. AFFIRMED.



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

Assistant Appellate Defender, for appellant.

      Thomas J. Miller, Attorney General, Linda J. Hines, Assistant Attorney

General, and Shawn Harden, County Attorney, for appellee.



      Considered by Vaitheswaran, P.J., and Tabor and Mullins, JJ.
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TABOR, J.

       Noting he is only “slightly above the age of majority,” Ethan Walztoni

challenges the mandatory minimum aspect of his sentence for second-degree

robbery as cruel and unusual under the Eighth Amendment of the Federal

Constitution and article 1, section 17 of the Iowa Constitution.        Because we

conclude the statutory requirement that he serve seven years of his ten-year

sentence is not grossly disproportionate to his role in an armed home invasion,

we affirm.

       Eighteen-year-old     Walztoni    and    two    accomplices     entered    the

Independence home of Adam Yarlott late in the night of February 2, 2014.

Wearing a mask, Walztoni found a rifle inside the home and pointed it at the

victim. Meanwhile, his accomplices held the victim down and struck the victim in

the head with a hammer. Walztoni participated in the crime because he needed

money for his rent and believed they could steal “weed” from the residents. The

State originally charged Walztoni with six felony offenses: (1) robbery in the first

degree, a class “B” felony; (2) burglary in the first degree, also a class “B” felony;

(3) intimidation with a dangerous weapon, a class “C” felony; (4) and (5) two

counts of going armed with intent, class “D” felonies, and (6) assault while

participating in a felony, a class “D” felony.     He reached a plea agreement,

reducing the charges to three lesser counts: (1) robbery in the second degree, a

class “C” felony, in violation of Iowa Code section 711.3 (2013), which carried a

mandatory minimum term of seven years under Iowa Code sections 902.9(d) and

902.12(5); (2) attempted burglary, a class “C” felony, in violation of Iowa Code
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section 713.4; and (3) assault while participating in a felony, a class “D” felony

under Iowa Code section 708.3, which carried a five-year mandatory minimum

based on the use of a dangerous weapon under Iowa Code section 902.7.

Under the agreement, the parties jointly recommended concurrent sentences.

      At a combined plea and sentencing hearing, the district court accepted the

plea agreement and imposed concurrent indeterminate terms of ten years, ten

years, and five years. The sentencing order noted the mandatory minimums of

seven years and five years. Walztoni filed a notice of appeal. In his appellate

brief, Walztoni challenges only the mandatory seventy-percent sentence for the

second-degree robbery conviction.

      Because Walztoni questions the constitutionality of his sentence, our

review is de novo. State v. Bruegger, 773 N.W.2d 862, 869 (Iowa 2009). He

may raise this illegal sentence challenge at any time. Id. at 871–72.

      Both the Eighth Amendment of the United States Constitution and article I,

section 17 of the Iowa Constitution prohibit the infliction of cruel and unusual

punishment. U.S. Const. amend VIII; 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.”).      Cruel-and-unusual-punishment

claims come in two varieties: a categorical approach, seeking to invalidate a

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)). Walztoni raises the second kind of challenge, arguing the
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seven-year mandatory minimum is cruel and unusual as applied to his specific

case.1 Because Walztoni invokes the Iowa Constitution, “we will apply our more

stringent gross-disproportionality review to the facts of his case.” See id. at 650.

       To determine whether Walztoni’s sentence is grossly disproportionate to

his crime we turn to the three-step test developed in Solem v. Helm, 463 U.S.

277, 290–92 (1983) (outlining the objective criteria as (1) the gravity of the

offense and the harshness of the penalty, (2) sentences imposed on other

criminals in the same jurisdiction, and (3) sentences imposed for the same crime

in other jurisdictions). The first factor poses a high burden for Walztoni. 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 defer to legislative determinations of punishment

and realize a sentence need not adhere to strict proportionality to be

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)



1
  Walztoni 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.”).
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(emphasizing a reviewing court does not “sit as a ‘superlegislature’ to second-

guess policy choices”). Second, although we impose a more rigorous review

under our state 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 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 Walztoni’s seven-year mandatory minimum sentence was grossly

disproportionate to his robbery offense under article 1, section 17 of the Iowa

Constitution. In support of his gross disproportionality claim, Walztoni points out

he “did not personally wield the hammer,” which could have seriously injured the

victim. He also underscores the fact that the gun he procured in the victim’s

home and pointed at the victim was not loaded. In addition, he asserts he has no

prior criminal history and took full responsibility for his offense during sentencing.

       Walztoni’s circumstances are not so unique as to “converge to form a high

risk of disproportionality.”   See Bruegger, 773 N.W.2d at 884.            Unlike the

situation in Bruegger, Walztoni’s actions were not “inadvertently caught by a

broadly written statute.” See Oliver, 812 N.W.2d at 651. Walztoni’s conduct—

entering into a home without permission for the purpose of committing theft,
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aiding and abetting an assault, and threatening an occupant with fear of

immediate serious injury—falls squarely within the elements of second-degree

robbery.

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

circumstances, including the mitigating factors identified by Walztoni, 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.

The sentencing court captured the gravity of the offense in its remarks

concerning the impact on the victim:

      [Y]ou put this man in great fear. I can’t imagine the horror that he
      went through to wake up in the middle of the night, have people
      inside his home, someone attacking him, hitting him with a
      hammer, someone point a gun at him; he didn’t know if it was
      loaded or not.

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

mandatory minimum sentence of seven years to be grossly disproportionate to

the offense of robbery in the second degree. Because the punishment does not

create an inference of gross disproportionality, we do not need to analyze the

second and third factors of Solem. Oliver, 812 N.W.2d at 653.

      AFFIRMED.
