                    IN THE COURT OF APPEALS OF IOWA

                                  No. 17-1541
                              Filed August 1, 2018


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

JOSEPH EUGENE SHADE,
     Defendant-Appellant.
________________________________________________________________


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

(waiver/plea) and Carla T. Schemmel (sentencing), Judges.



      Defendant challenges his sentence for robbery in the first degree.

AFFIRMED IN PART, VACATED IN PART, AND REMANDED.



      Mark C. Smith, State Appellate Defender, and Bradley M. Bender, Assistant

Appellate Defender, for appellant.

      Thomas J. Miller, Attorney General, and Tyler J. Buller, Assistant Attorney

General, for appellee.



      Considered by Danilson, C.J., and Mullins and McDonald, JJ.
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MCDONALD, Judge.

       Joseph Shade was convicted of robbery in the first degree, in violation of

Iowa Code section 711.2 (2016). At the time of the offense, Shade was sixteen

years old.    The district court sentenced Shade to an indeterminate term of

incarceration not to exceed twenty-five years with no mandatory minimum. In this

appeal, Shade challenges his sentence. He contends he was entitled to a Miller

hearing at the time of sentencing. See State v. Lyle, 854 N.W.2d 378, 402 n.8

(Iowa 2014); State v. Ragland, 836 N.W.2d 107, 115 n.6 (Iowa 2013) (listing

required sentencing factors identified in Miller v. Alabama, 567 U.S. 460, 477

(2012)).     He also contends his counsel provided constitutionally-deficient

representation at the time of sentencing. Finally, he contends the district court

imposed an illegal surcharge.

       By way of background, in December 2016, Shade accompanied another

man to meet Jessica Valles Rivera at a local elementary school for the purported

purpose of purchasing a smart phone from Rivera. According to Shade, he served

as a look out while the other man approached the car, pulled out a handgun, and

pointed it at Rivera and her husband while demanding money. The man then fled

with a wallet, forty dollars, and the phone. Rivera’s children were in the car at the

time of the robbery. According to the victim, Shade was the person who wielded

the gun.

       In January 2017, Shade was charged with the robbery of Rivera and her

husband as well as two additional armed robberies in unrelated incidents. At the

time Shade was charged with the Rivera robbery, he was already subject to a
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juvenile-court consent decree for the armed robbery of a taxi driver in a different

incident. As part of a plea agreement, Shade pleaded guilty to one count of

robbery in the first degree arising out of the robbery of Rivera, and the State agreed

to dismiss the other two counts. The parties were free to argue at the time of

sentencing. After hearing argument and recommendations from both sides, the

district court sentenced Shade to an indeterminate term of incarceration not to

exceed twenty-five years without any mandatory minimum. The court reasoned,

                For the sentence consideration, the Court determines that the
       sentence set forth herein will provide maximum opportunity for
       rehabilitation of the defendant and protection of the community from
       further offenses.
                Pursuant to the Iowa Code, the Court has considered the
       following factors: The defendant’s age, the defendant’s prior record
       of convictions and deferment of judgments, if any, the defendant’s
       family circumstances, the nature of the offense committed.
       ....
                . . . I want you know this is a difficult case. You are young, but
       you have been committing violent crimes.
                I do, however, consider your safety, and I am not convinced
       that you would be any safer in the public than you would be in prison,
       number one; number two, there are programs available in prison for
       you to take advantage of, but that’s up to you. And if you don’t take
       advantage of them, you may find yourself repeating and repeating in
       the system.
                You are a bright young man. You had troubles in your life,
       and you went down the wrong way. This is not the end. It will be
       difficult. You’re going to have to be a man. I hope you can be
       successful in prison and get out and become a good and productive
       citizen of this country. And I do sincerely wish you the best.

       In his first challenge to his sentence, Shade contends the district court

abused its discretion in sentencing him without holding a Miller hearing or the

substantial equivalent of a Miller hearing. “We review for an ‘abuse of discretion,’

our most deferential standard, ‘if the sentence is within the statutory limits.’ We

review for ‘correction of errors at law,’ an intermediate standard, ‘when the
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defendant challenges the legality of a sentence on nonconstitutional grounds.’”

State v. Roby, 897 N.W.2d 127, 137 (Iowa 2017) (quoting State v. Seats, 865

N.W.2d 545, 552–53 (Iowa 2015)). “A discretionary sentencing ruling . . . may be

[an abuse of discretion] if a sentencing court fails to consider a relevant factor that

should have received significant weight, gives significant weight to an improper or

irrelevant factor, or considers only appropriate factors but nevertheless commits a

clear error of judgment by arriving at a sentence that lies outside the limited range

of choice dictated by the facts of the case.” Id. at 138 (second alteration in original)

(quoting People v. Hyatt, 891 N.W.2d 549, 576 (Mich. 2016)). Still, sentences

within statutory limits are “cloaked with a strong presumption in [their] favor.” See

State v. Washington, 832 N.W.2d 650, 660 (Iowa 2013) (quoting State v. Formaro,

638 N.W.2d 720, 724 (Iowa 2002)).

       We reject Shade’s contention that the district court was required to conduct

a Miller hearing or the substantial equivalent of Miller hearing. Iowa Code section

907.5 sets forth a number of statutory sentencing considerations. These include

“the nature of the offense, the attending circumstances, defendant’s age,

character, propensities, and chances of his reform.” See State v. Evans, 672

N.W.2d 328, 331 (Iowa 2003) (citing State v. Laffey, 600 N.W.2d 57, 62 (Iowa

1999)).   In addition, our supreme court has created a separate sentencing

procedure for cases involving juvenile offenders subject to minimum sentences. In

those cases, the district court must conduct a Miller hearing in which it considers

the chronological age of the youth and features of youth, the family and home

environment, the circumstances of the offense, the incompetencies associated
                                         5

with youth, and the possibility of rehabilitation. See Lyle, 854 N.W.2d at 402 n.8;

Ragland, 836 N.W.2d at 115 n.6 (Iowa 2013) (listing required sentencing factors

identified in Miller, 567 U.S. at 477). The supreme court has explicitly declined to

expand these hearing requirements to cases not involving minimum sentences.

See State v. Propps, 897 N.W.2d 91, 101 (Iowa 2017). The supreme court

reasoned the rationale underlying Miller, Ragland, Lyle, and their progeny is not

implicated where the defendant is not subject to a minimum sentence. See id.

(“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. 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.”

(citations omitted)). More recently, the supreme court concluded the district court

was not required to conduct a Miller hearing where the juvenile defendant could

have been subject to a minimum sentence but where the district court declined to

impose a minimum sentence. See State v. Crooks, 911 N.W.2d 153, 173 (Iowa

2018) (holding the district court was not required to conduct a Miller hearing where

the defendant was subject to a minimum sentence but the district court declined to

consider imposing the same).       Here, the district court declined to impose a

minimum sentence and instead made the defendant immediately eligible for

parole. Under Propps and Crooks, a Miller hearing or the substantial equivalent

of a Miller hearing was not required. See Propps, 897 N.W.2d at 104 (“[W]e decline
                                         6


to extend the requirement of a Miller individualized sentencing hearing to juvenile

defendants who are not subject to a mandatory minimum period of incarceration.”);

Crooks, 911 N.W.2d at 173.

       In his next claim, Shade alleges his sentencing counsel provided

constitutionally-deficient representation at the time of sentencing.     We review

ineffective-assistance claims de novo. State v. Straw, 709 N.W.2d 128, 133 (Iowa

2006). To establish a claim of ineffective assistance of counsel, a defendant must

show “(1) his trial counsel failed to perform an essential duty, and (2) this failure

resulted in prejudice.” Id. (citing Strickland v. Washington, 466 U.S. 668, 687–88

(1984)). The defendant must prove both elements by a preponderance of the

evidence. See State v. Madsen, 813 N.W.2d 714, 723 (Iowa 2012). “Prejudice

exists if ‘there is a reasonable probability that, but for counsel’s unprofessional

errors, the result of the proceeding would have been different.’” Id. at 727 (quoting

State v. Graves, 668 N.W.2d 860, 882 (Iowa 2003)).

       Shade has not proved his sentencing counsel’s performance was so

deficient that it breached an essential duty. First, Shade contends his counsel

should have called witnesses at sentencing. However, Shade does not identify

the witnesses or the substance of their testimony. Shade’s second claim is that

counsel was not zealous because he failed to argue the Lyle/Miller factors at

sentencing. As noted above, Shade was not entitled to a Miller hearing. Thus, his

counsel could not have breached a duty in failing to argue the factors. Beyond

that consideration, however, counsel strongly argued Shade’s youth was a

mitigating factor. Counsel repeatedly referenced Shade’s age, youth, potential for
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rehabilitation, and “the lack of the development in the mind of a young man at this

age and their impulsive behavior.” Finally, Shade contends his counsel advocated

for an illegal sentence. Counsel sought a placement for Shade in Fort Des Moines,

a residential facility, but Shade did not qualify for the facility because of his age.

Shade argues, “By requesting imposition of placement at the residential treatment

facility, trial counsel was essentially requesting the district court impose an illegal

sentence.”    However, Shade misrepresents his counsel’s position.            Shade’s

counsel stated his position that Shade be held in custody until the time that he

qualified for that program. Shade’s counsel also identified a different residential

facility for Shade. There was no breach of duty for any of these claims.

       In addition, we conclude Shade failed to prove prejudice. Shade does not

even allege he suffered Strickland prejudice. Rather, he contends his counsel’s

performance constituted structural error. “Structural errors are not merely errors

in a legal proceeding, but errors ‘affecting the framework within which the trial

proceeds.’” Lado v. State, 804 N.W.2d 248, 252 (Iowa 2011) (quoting Arizona v.

Fulminante, 499 U.S. 279, 310 (1991)).

       We have recognized structural error occurs when: (1) counsel is
       completely denied, actually or constructively, at a crucial stage of the
       proceeding; (2) where counsel does not place the prosecution’s case
       against meaningful adversarial testing; or (3) where surrounding
       circumstances justify a presumption of ineffectiveness, such as
       where counsel has an actual conflict of interest in jointly representing
       multiple defendants.

Id. (citing State v. Feregrino, 756 N.W.2d 700, 707 (Iowa 2008)).

       Shade asserts without explanation “counsel’s failure to present mitigating

evidence bearing on Shade’s youth and for counsel arguing for a sentence
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recommendation that was not available [sic] should be considered structural error.”

We disagree. Counsel advocated for Shade at sentencing, even arguing four of

the five Miller factors, although not referring to them as such. The record also

reflects counsel made arguments in favor of an alternate residential facility or a

period of custody until Shade met the age qualifications at Fort Des Moines. In

sum, Shade’s counsel made an impassioned argument for leniency that ultimately

failed. Shade has failed to make a showing of structural error. See Harkless v.

State, No. 16-2082, 2017 WL 6513966, at *2 (Iowa Ct. App. Dec. 20, 2017) (“We

are unable to find counsel’s performance so objectively lacking as to cause a

structural error.”); Rickey v. State, No. 16-1212, 2017 WL 2461560, at *3 (Iowa Ct.

App. June 7, 2017) (“Unlike Lado, in which counsel took no action at all, Rickey

was not completely denied counsel, actually or constructively, at any point in the

proceeding.”); Allard v. State, No. 11-1641, 2013 WL 1227352, at *3 (Iowa Ct. App.

Mar. 27, 2013) (“Perhaps Allard would have liked a more zealous advocate, but he

was not constructively without counsel.”).

       Finally, Shade contends the district court imposed an illegal sentence when

it ordered Shade to pay the law-enforcement-initiative surcharge.         The State

concedes this point. We agree with Shade and the State that the law-enforcement-

initiative surcharge is not authorized by statute for the specified offense. See Iowa

Code § 911.3. We vacate the law-enforcement surcharge and remand for entry of

a corrected sentencing order. See State v. Phipps, No. 17-0544, 2018 WL 540438,
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at *1 (Iowa Ct. App. Jan. 24, 2018) (remanding for entry of a corrected sentencing

order).1

     AFFIRMED IN PART, VACATED IN PART, AND REMANDED WITH
DIRECTIONS.




1
As we noted in State v. McLachlan,
      [s]ome may question why a revised sentencing order is necessary if an
      appellate court has finally resolved the issue. We recognize that final
      sentencing orders are relied upon by many people, agencies, and
      organizations, including the Iowa Department of Corrections, the Iowa
      Board of Parole, probation and parole personnel, law enforcement
      agencies, other government agencies, the business community, and
      others. It is unrealistic and administratively unwieldy for a copy of an
      appellate opinion to be sent to or appended to any prior sentencing order
      that was altered by an appellate opinion. A revised sentencing order
      provides a final, complete memorialization of the sentence imposed and
      that must be enforced.

880 N.W.2d 513, 517 n.5 (Iowa Ct. App. 2016), as corrected May 10, 2016.
