                    IN THE COURT OF APPEALS OF IOWA

                                   No. 14-1670
                               Filed June 15, 2016


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

JARROD DALE MAJORS,
     Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Taylor County, David L.

Christensen, Judge.



      Jarrod Majors appeals from the sentence imposed on resentencing.

AFFIRMED.




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

Assistant Appellate Defender, for appellant.

      Thomas J. Miller, Attorney General, and Louis S. Sloven, Assistant

Attorney General, for appellee.



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


DANILSON, Chief Judge.

      Jarrod Majors appeals from the sentence imposed following an

individualized resentencing hearing. We find no abuse of discretion and affirm.

I. Background Facts and Proceedings.

      In July 2002, as a result of a home invasion, Majors was charged with

eleven counts: two counts of attempted murder, one count of first-degree

burglary while in possession of a firearm, three counts of assault while

participating in first-degree burglary while in possession of a firearm in a

weapons-free zone, three counts of going armed with intent, and two counts of

criminal trespass. He was seventeen years old at the time of the offenses. In

November 2002, he entered a plea of guilty to one count of attempted murder

and agreed not to appeal.      In exchange, the State agreed to dismiss the

remaining ten counts. However, Majors appealed, and the State proceeded with

the remaining ten counts.

      On May 13, 2003, Majors agreed to plead guilty to a lesser-included

offense of second-degree burglary, to dismiss the appeal of his sentence for his

conviction of attempted murder, and to agree the sentence for burglary would be

served consecutive to his sentence for attempted murder. The State agreed to

dismiss the remaining nine counts.     Majors waived time for sentencing and

requested immediate sentencing.      The district court sentenced Majors to an

indeterminate term in prison not to exceed ten years on the second-degree

burglary conviction, which was to run consecutively to the twenty-five-year,

attempted-murder sentence.
                                          3


       On May 9, 2014, after having filed several additional motions and two

applications for postconviction relief,1 Majors filed a motion to correct an illegal

sentence.   He asserted that because he was a juvenile at the time of the

commission of the offenses, the imposition of an automatic mandatory minimum

sentence was illegal. A resentencing hearing was held. The parties stipulated

that based on the recent rulings of the Iowa Supreme Court, Majors’ motion

should be granted to the extent that the prior automatic imposition of the

sentencing provision under Iowa Code section 902.12 (2001) constitutes an

illegal sentence. As a result, the parties agreed that Majors was entitled to an

individualized resentencing hearing.

       The district court than heard and received evidence from the parties, a

victim-impact   statement    from   one       of   the   victims,   and     the   parties’

recommendations as to what sentences should be imposed.                   The court took

Majors’ resentencing under advisement and considered whether the mandatory-

minimum sentence pursuant to section 902.12 is subject to his resentencing or if

such a mandatory sentence is unconstitutional under the cruel and unusual

punishment clause of the Iowa Constitution, article 1, section 17.

       On September 26, 2014, the district court issued a lengthy and

comprehensive ruling. We quote some of the court’s conclusions. The district

court noted the Iowa Supreme Court’s recent decisions, the factors to consider in

juvenile sentencing, and that a lengthy term of incarceration without the




1
 See Majors v. State, No. 12-1090, 2013 WL 2637599, at *2 (Iowa Ct. App. June 12,
2013).
                                        4


possibility of parole is to be the exception. The court then considered the factors

in Majors’ case:

              At the time of the commission of these offenses, the
      defendant was only fifteen days from his eighteenth birthday. In the
      appellate opinions finding mandatory minimum sentences
      unconstitutional when applied to juvenile offenders, the Iowa
      Supreme Court emphasizes that juveniles’ immaturity reduces their
      culpability because they are subject to impulsive behavior and peer
      pressure, and they have not adequately developed the ability to
      comprehend the full nature and consequences of their actions.
      Given this stance, logic would dictate that as juveniles get older the
      juveniles become more mature, become less subject to impulsive
      behavior and peer pressure, and they are better able to
      comprehend the full nature and consequences of their actions.
      Therefore, juveniles who have almost reached the age of [eighteen]
      would be substantially mature, minimally subject to impulsive
      behavior and peer pressure, and largely able to comprehend the
      full nature and consequences of their actions. If this logic is applied
      to the facts of this case, the defendant was only fifteen days from
      reaching the age of eighteen, the age at which a person becomes
      fully accountable for the person’s criminal acts.
              In assessing whether the defendant’s actions were the result
      of youth or a criminal nature, because this is a resentencing
      hearing instead of an original sentencing hearing, the court has the
      benefit of knowing the defendant’s behavior during his eleven years
      of incarceration. The report provided by his counselor lists fifty-five
      prison rule violations spread out relatively evenly over the length of
      his period of incarceration. Instead of depicting a person who has
      decreased his impulsivity and gained maturity and understanding of
      consequences, the defendant’s behavioral record in prison paints a
      picture of a person who does not recognize societal rules, now or
      eleven years ago. This record is indicative of a person who had
      developed his adult behaviors and attitudes by the time he
      committed his crimes. While juveniles are more capable of change
      than adults, the defendant’s actions over the past eleven years
      have shown that he is the exceptional juvenile who formed his long-
      term attitudes and behaviors before reaching the age of majority,
      and those negative attitudes and behaviors persist to this date.

The court also took an in-depth examination of the facts of the crimes committed:

      [T]he defendant thoroughly planned these crimes, demonstrated
      the patience to wait for the right opportunity and took measures to
      avoid detection, identification, and apprehension. Jamie Peckham
      told how his family attended an activity every Wednesday evening,
                                         5


      and afterward he would drop his wife off at their house and then
      drive their two children around for a while so they would fall asleep.
      The defendant lived across the street from his victims, and it was
      not a coincidence that the defendant entered their home and
      concealed himself in the upstairs bedroom on the same night of the
      week that he had observed this routine taking place. The
      defendant had the foresight to bring duct tape to bind Holly
      Peckham. He wore a mask to conceal his face and gloves to
      ensure that he left no fingerprints. The defendant devised a home-
      made silencer by taping a plastic bottle over the end of the barrel of
      a rifle. He took measures to avoid apprehension, arming himself
      with a loaded rifle, which had a chambered round, and a machete.
      These facts indicate that the defendant did not act impulsively or as
      the result of any peer pressure, but instead acted carefully and
      deliberately, planning the timing and method of his crimes very
      carefully. These facts also indicate that the defendant fully
      understood the nature and potential consequences of his acts. He
      sought to avoid those consequences by concealing his identity and
      trying to ensure he would escape apprehension by arming himself
      with two separate weapons.

      Ultimately, the court concluded:

             All of these facts demonstrate that the defendant did not act
      under an impulse or peer pressure, and that he had fully
      considered the nature, risks, and potential consequences of his
      actions. The defendant cannot use his juvenile status at the time
      he committed these crimes to shield him from full responsibility for
      those crimes. “At the same time, it bears emphasis that while youth
      is a mitigating factor in sentencing, it is not an excuse.” [State v.]
      Null, 836 N.W.2d [41,] 75 [(Iowa 2013)].
             After comprehensive consideration of all of the relevant
      factors, for the reasons set forth above, it is the conclusion of the
      court that the defendant is the exceptional case in which sentences
      providing for the maximum period of incarceration, including a
      mandatory minimum sentencing provision, are appropriate.

      The court then entered judgment. On his conviction for burglary in the

second degree, the court ordered Majors to be sentenced to an indeterminate

term of imprisonment not to exceed ten years and pay a fine of $1000, as well as

the statutory surcharges and court costs. The court suspended the imposition of

the fine and surcharge. On his conviction of attempted murder, the court ordered
                                          6


Majors to be sentenced to an indeterminate term of imprisonment not to exceed

twenty-five years, ruling Majors must serve at least seventy percent of the

maximum term of the sentence before he is eligible for parole. The court also

ordered that the sentences were to be served consecutively, for a total term of

incarceration not to exceed thirty-five years.

       Majors appeals, contending the district court abused its discretion in

resentencing him.

II. Scope and Standard of Review.

       Where the claim raised by an appellant is that the district court failed to

consider any of the required factors or considered any of the required mitigating

factors to be aggravating, then the sentence imposed has been the product of a

defective sentencing proceeding, which is unconstitutional. See State v. Lyle,

854 N.W.2d 378, 402-04 (Iowa 2014); see also State v. Seats, 865 N.W.2d 545,

553 (Iowa 2015) (stating “we have begun to decide cases involving constitutional

attacks on the validity of a sentence” and “[w]hen a defendant attacks the

constitutionality of a sentence, our review is de novo”).

       However, where the appellant attacks the legality of the sentence on

nonconstitutional grounds, our review is for errors at law. Seats, 865 N.W.2d at

553. If the claim is that the district court has granted an individualized hearing,

imposed a sentence within the statutory limits, and considered all the required

factors but the appellant disagrees with the sentence imposed nonetheless, then

our review is for an abuse of discretion. See id. at 552-53 (noting “a district court

did not abuse its discretion if the evidence supports the sentence”).
                                                 7


III. Discussion.

         A flurry of sentencing cases have been handed down in the last few years

by the United States Supreme Court and our supreme court. A summary of

these cases alleging cruel and unusual sentences has been well documented in

our case of State v. Tuecke, No. 15-0617, 2016 WL 1681524, at *3-8 (Iowa Ct.

App. Apr. 27, 2016). We need not repeat it here.

         The posture of this case requires us to review a resentencing decision to

determine if, after an individualized sentencing hearing, the court properly

applied the Miller factors.2 Majors was a juvenile when he committed his crimes

and was granted such a hearing. Ultimately, the district court concluded this was

a rare case that necessitated the imposition of the mandatory-minimum seventy

percent for the offense of attempted murder.

         Majors asserts the district court abused its discretion in resentencing him,

giving too much weight to some factors and too little weight to others. Appellate

review for abuse of discretion “‘is not to second guess the decision made by the

district court, but to determine if it was unreasonable or based on untenable

grounds.’” Lyle, 854 N.W.2d at 412 (quoting State v. Formaro, 638 N.W.2d 720,

724-25 (Iowa 2002)).

         Recent precedent requires that a juvenile offender be given individualized

sentencing consideration. See Null, 836 N.W.2d at 52-56 (providing an overview

of juveniles, legal responsibility, and diminished culpability). An individualized

sentencing hearing requires the court to consider several factors:



2
    Miller v. Alabama, 132 S. Ct. 2455 (2012).
                                        8


      (1) the “chronological age” of the youth and the features of youth,
      including “immaturity, impetuosity, and failure to appreciate risks
      and consequences”; (2) the “family and home environment” that
      surrounded the youth; (3) “the circumstances of the . . . offense,
      including the extent of [the youth’s] participation in the conduct and
      the way familial and peer pressures may have affected [the youth]”;
      (4) the “incompetencies associated with youth—for example, [the
      youth’s] inability to deal with police officers or prosecutors
      (including on a plea agreement) or [the youth’s] incapacity to assist
      [the youth’s] own attorneys”; and (5) “the possibility of
      rehabilitation.”

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

      Additionally, our supreme court has stated that the purpose of an

individualized sentencing hearing is for the court to “undertake an analysis of

‘everything the United States Supreme Court said in Roper and Graham’ about

youth.” Null, 836 N.W.2d at 74 (citation omitted). The trial court “must recognize

that because children are constitutionally different from adults, they ordinarily

cannot be held to the same standard of culpability as adults in criminal

sentencing.” Id. The court must also recognize that “juveniles are more capable

of change than are adults and that as a result, their actions are less likely to be

evidence of irretrievably depraved character.” Id. at 75. “At the same time, it

bears emphasis that while youth is a mitigating factor in sentencing, it is not an

excuse.” Id.

      More recently, in Seats, the court explained further:

             In sentencing the juvenile offender, the court must take into
      account any information in the record regarding “the family and
      home environment that surrounds him—and from which he cannot
      usually extricate himself—no matter how brutal or dysfunctional.”
      In examining the “family and home environment,” the judge shall
      consider any information regarding childhood abuse, parental
      neglect, personal and family drug or alcohol abuse, prior exposure
      to violence, lack of parental supervision, lack of an adequate
      education, and the juvenile’s susceptibility to psychological or
                                           9


       emotional damage. The sentencing judge should consider these
       family and home environment vulnerabilities together with the
       juvenile’s lack of maturity, underdeveloped sense of responsibility,
       and vulnerability to peer pressure as mitigating, not aggravating,
       factors.
                ....
                Finally, the sentencing judge must take into consideration
       that “[j]uveniles are more capable of change than are adults” and
       that as a result, “their actions are less likely to be evidence of
       ‘irretrievably depraved character.’” . . . It is very difficult for a judge
       to distinguish between “‘the juvenile offender whose crime reflects
       unfortunate yet transient immaturity, and the rare juvenile offender
       whose crime reflects irreparable corruption.’”

865 N.W.2d at 556 (citations omitted). The court “must take into account any

information in the record regarding these factors. Id. (emphasis added).

       In addition, we are guided by the 2014 decision of Lyle, 854 N.W.2d at

402.   There, our supreme court noted that judges are not prohibited from

sentencing juveniles to prison for the length of time identified by the legislature

for the crime committed, and the legislature is not prohibited from imposing a

minimum time that youthful offenders must serve in prison before being eligible

for parole. Lyle, 854 N.W.2d at 402. But, the sentencing court is to “consider all

the circumstances of each case to craft an appropriate sentence and give each

juvenile the individual sentencing attention they deserve and our constitution

demands.”     Id.   The court identified the relevant sentencing factors to be

considered by the district court:

                Under article I, section 17 of the Iowa Constitution, the
       portion of the statutory sentencing schema requiring a juvenile to
       serve seventy percent of the period of incarceration before parole
       eligibility may not be imposed without a prior determination by the
       district court that the minimum period of incarceration without
       parole is warranted under the factors identified in Miller and further
       explained in Null.

Id. at 404 n.10 (citations omitted) (emphasis added).
                                         10

       But then in the case of State v. Sweet, ___ N.W.2d ___, ___ , 2016 WL

3023726, at *29 (Iowa 2016), the supreme court adopted a categorical rule that

juvenile offenders may not be sentenced to life without the possibility of parole

under article 1, section 17 of the Iowa Constitution. In reaching this conclusion,

the supreme court decimated the use of the Miller factors, describing one factor

as “not . . . very helpful,” Sweet, 2016 WL 3023726 at *27, and another factor

“fraught with risks.” Id., 2016 WL 3023726 at *28. Ultimately, the court stated

the Miller factors cannot be applied in any principled way—at least as it pertains

to whether parole eligibility should be granted for a juvenile defendant facing a

life sentence.

       Unfortunately, the principles in Lyle, requiring the application of the Miller

factors to determine if a mandatory-minimum sentence should be imposed upon

a juvenile offender serving or required to serve a term of years, were not

overruled in Sweet. Therein lies our dilemma. Do we follow the principles of

Lyle, or conclude the principles of Lyle have been completely eroded by the

decision in Sweet?

       We conclude the resolution of this question has been best answered in

Agostini v. Felton, 521 U.S. 203 (1997). In Agostini, the United States Supreme

Court stated,

              We do not acknowledge, and we do not hold, that other
       courts should conclude our more recent cases have, by implication,
       overruled an earlier precedent. We reaffirm that “[i]f a precedent of
       this Court has direct application in a case, yet appears to rest on
       reasons rejected in some other line of decisions, the Court of
       Appeals should follow the case which directly controls, leaving to
       this Court the prerogative of overruling its own decisions.”
                                          11

521 U.S. at 237 (alteration in original) (citing Rodriguez de Quijas v. Shearson,

490 U.S. 477, 484 (1989)).

      Our supreme court has said much the same in stating,

             Yet it is the prerogative of this court to determine the law,
      and we think that generally the trial courts are under a duty to follow
      it as expressed by the courts of last resort, as they understand it,
      even though they may disagree. If our previous holdings are to be
      overruled, we should ordinarily prefer to do it ourselves.

State v. Eichler, 83 N.W.2d 576, 578 (Iowa 1957).

      Because Lyle, as well as State v. Pearson, 863 N.W.2d 88, 95-97 (Iowa

2013), a similar case involving a juvenile offender facing a mandatory-minimum

sentence, have not been overruled and directly control the issue before us, we

remain bound by the principles of Lyle.

      Here, the district court noted eight factors that it considered in reaching its

sentencing decision:

      In considering the appropriate sentences to be imposed in this
      case, the court has considered the following factors: (1) the
      defendant’s prior record of convictions; (2) the defendant’s
      employment circumstances, including the defendant’s economic
      circumstances; (3) the defendant’s family circumstances; (4) the
      plea agreement; (5) the nature of offenses, including whether a
      weapon or force was used and the effect on the victims; (6) the
      maximum opportunity for rehabilitation of the defendant; (7) the
      protection of the community and society; and (8) the age of the
      defendant.    In determining the appropriate sentences to be
      imposed the court considered the mitigating and aggravating
      circumstances, to the extent such circumstances exist, in relation to
      each of these factors.

      The court then discussed each of those eight factors. After considering

those factors, the court specifically found that Majors was the “exceptional case

in which sentences providing for the maximum period of incarceration, including

a mandatory minimum sentencing provision, are appropriate.” The district court
                                           12


did provide an individualized sentencing hearing, imposed a sentence within the

allowable statutory framework, and carefully considered the factors stated in Null

and Lyle to the extent the record reflected information on each factor.3 We

cannot say the sentences imposed were unreasonable or based upon untenable

grounds. We find no abuse of discretion. We affirm.

       AFFIRMED.




3
  We acknowledge the district court stated the older the juvenile—the more intelligent
and mature they can expected to be. The court in Sweet found this fact “not a very
helpful factor” in determining if a juvenile facing a life sentence should be afforded
immediate parole eligibility. Although the child’s age may not serve as a proper basis to
determine maturity, the court gave consideration to the child’s age as it was required to
do, and we decline to be hyper-technical to say the court abused its discretion.
