                IN THE SUPREME COURT OF IOWA
                               No. 14–1789

                         Filed February 17, 2017


STATE OF IOWA,

      Appellee,

vs.

SHANNON ELIZABETH LEE BREEDEN,

      Appellant.



      On review from the Iowa Court of Appeals.



      Appeal from the Iowa District Court for Scott County, Marlita A.

Greve, Judge.



      A juvenile convicted of attempted murder seeks further review of a

court of appeals decision affirming the district court’s restitution order.

DECISION OF COURT OF APPEALS AND JUDGMENT AND SENTENCE

OF DISTRICT COURT AFFIRMED.



      Mark C. Smith, State Appellate Defender, Joseph A. Fraioli,

Assistant Appellate Defender (until withdrawal), then Nan Jennisch,

Assistant Appellate Defender, for appellant.



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

Attorney General, Michael Walton, County Attorney, and Julie Walton,

Assistant County Attorney, for appellee.
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PER CURIAM.

        After pleading guilty in 2003 to attempted murder in a homicide

case,   the   defendant    received    a       twenty-five-year   prison     sentence,

including a mandatory minimum term of incarceration, and was ordered

to pay $150,000 in mandatory restitution to the victim’s estate. See Iowa

Code § 707.11; id. § 902.12(2); id. § 910.3B(1) (2001).                 The defendant

was sixteen years old at the time of the offense. In 2014, the defendant

was resentenced and received immediate parole eligibility because the

mandatory     minimum       period     of       incarceration     had     been   ruled

unconstitutional. See State v. Lyle, 854 N.W.2d 378, 404 (Iowa 2014).

The district court left the $150,000 restitution in place, however.

        The defendant appeals her resentencing, challenging only the

$150,000 in restitution to the victim’s estate.            We are thus asked to

decide whether Iowa Code section 901.5(14), enacted in 2013, gave the

district court discretion to impose something less than $150,000 in

restitution   and,   if   not,    whether        this   mandatory       restitution   is

unconstitutional either on its face or as applied to this defendant. Most

of these questions have been answered today in State v. Richardson, ___

N.W.2d ___ (Iowa 2016).          For the reasons set forth in Richardson, we

conclude that section 901.5(14) does not apply to restitution and that the

$150,000 mandatory restitution in homicide cases is not facially

unconstitutional. In addition, as discussed below, we conclude on this

record that the $150,000 mandatory restitution is not unconstitutional

as applied to this defendant.

        I. Background Facts and Proceedings.

        According to the minutes of testimony, on the morning of May 27,

2002, the Davenport Police Department received a 911 call from an

individual named Shannon claiming that her boyfriend, Jonathan, had
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witnessed a murder. Police reported to a homeless encampment near the

Mississippi River to investigate Shannon’s call.    Upon arrival, officers

spoke with the caller, defendant Shannon Breeden, and her boyfriend

Jonathan Hillman.      Breeden was sixteen years old at the time and

Hillman was twenty-eight.

      The couple led police to a dead body near the homeless camp that

was later identified as that of Paula Heiser.    Initially, the couple told

police officers they had seen another man fighting with Heiser and

identified this man as responsible for Heiser’s death. Police arrested the

man and took Breeden and Hillman to the police station for further

witness statements.

      At the police station, the couple’s story began to change.

Eventually, Breeden told police it was Hillman who had assaulted Paula

Heiser the night before. Breeden added that at some point during the

assault, Hillman urged her to join in.      Breeden confessed to police

officers that she had taken part in the assault before the couple

ultimately left Heiser for dead.

      Breeden was charged with first-degree murder and willful injury as

a result of Heiser’s death. See Iowa Code § 707.2; id. § 708.4(1) (2001).

Before trial, Breeden was offered a plea deal that would allow her to

plead guilty to the lesser included offense of attempted murder, a class

“B” felony in violation of Iowa Code section 707.11, in exchange for her

testimony against Hillman. Breeden accepted the offer and pled guilty to

attempted murder.

      On February 28, 2003, Breeden was sentenced to a term of

incarceration not to exceed twenty-five years. Because Breeden had been

convicted of a forcible felony, Iowa law at that time required her to serve

a mandatory minimum of eighty-five percent of the term.            See id.
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§ 902.12; id. § 903A.2(1)(b). At the time of sentencing, Breeden was also

ordered to pay $150,000 in restitution to Heiser’s estate pursuant to

Iowa Code section 910.3B.

        In September 2013, Breeden filed a motion to correct an illegal

sentence based on recent developments in juvenile sentencing law. The

district court held a hearing on Breeden’s motion on September 23,

2014.    The district court began by vacating Breeden’s 2003 sentence

because it contained a mandatory minimum term of incarceration. The

district court then immediately conducted a new sentencing hearing.

        Breeden testified that at the time of the murder, she was sixteen

years old and homeless, and had only attended school through the ninth

grade. Breeden described her relationship with Hillman at the time as

“abusive and controlling.”   Breeden testified that after entering prison,

she had had several “unhealthy” relationships and was responsible for

one prison assault. Breeden also had completed various education and

treatment programs and maintained employment while in prison.

        The sentencing court made a record based on Breeden’s age at the

time of the offense and other Miller/Ragland factors.       See State v.

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

Alabama, 567 U.S. ___, ___, 132 S. Ct. 2455, 2468, 183 L. Ed. 2d 407,

423 (2012)).     The court determined that incarceration remained an

appropriate sentence for Breeden but did not impose a mandatory

amount of time to be served. The court thus resentenced Breeden to an

indeterminate twenty-five-year prison sentence with credit for time

served and immediate parole eligibility. The court further stated, “The

previous assessments for restitution of the $150,000 and those related

costs in that previous sentencing are incorporated here and imposed
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again against the defendant.”     Breeden did not raise any objection to

restitution at the resentencing hearing.

      Nonetheless, Breeden appealed, challenging only the $150,000

restitution awarded to the victim’s estate.           Breeden argued the

sentencing court had discretion under Iowa Code section 901.5(14)

(2014) to impose a lower amount of restitution and should have exercised

that discretion to reduce the award.         In addition, Breeden claimed

section 910.3B, to the extent it mandated a $150,000 restitution award,

violated article I, section 17 of the Iowa Constitution both on its face as it

pertains to all juvenile offenders and as applied to the particular

circumstances of her case.

      We transferred Breeden’s case to the court of appeals. That court

concluded Iowa Code section 901.5(14) does not authorize a lower

restitution amount because “sentence,” as used in the statute, does not

include restitution or fines.    The court also rejected Breeden’s facial

challenge to section 910.3B because “[n]either Miller nor Iowa’s Miller

progeny mention restitution or fines.”         Finally, the court rejected

Breeden’s as-applied challenge to her restitution order, reasoning that

the restitution was not constitutionally excessive because it bore a

reasonable relationship to the harm caused by the offense. We granted

Breeden’s application for further review.

      II. Standard of Review.

      “We review ‘the trial court’s application of pertinent sentencing

statutes for corrections of error at law.’ ”   State v. Calvin, 839 N.W.2d

181, 184 (Iowa 2013) (quoting State v. Hawk, 616 N.W.2d 527, 528 (Iowa

2000)). We review an allegedly unconstitutional sentence de novo. State

v. Lyle, 854 N.W.2d at 382.
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        III. Analysis.

        Our first issue is one of statutory interpretation. For the reasons

set forth in today’s Richardson decision, we conclude that Iowa Code

section 901.5(14) does not alter the application of section 910.3B(1) to

juvenile homicide offenders. See Richardson, ___ N.W.2d at ___. Thus,

minimum restitution of $150,000 under Iowa Code section 910.3B

remains statutorily mandated when “the offender is convicted of a felony

in which the act or acts committed by the offender caused the death of

another person.” Iowa Code § 910.3B(1). Breeden does not dispute the

factual predicate for imposing section 910.3B restitution has been met

here.

        Additionally, for reasons detailed in Richardson, we hold that this

mandatory minimum restitution for juvenile homicide offenders is not

facially invalid under article I, section 17 of the Iowa Constitution.
        This leaves Breeden’s as-applied challenge to the $150,000
restitution in her specific case.   We have discussed the framework for
analyzing such challenges in Richardson.           Like the defendant in
Richardson, Breeden argues her age at the time of the offense, history of
abuse, troubled upbringing, and abusive relationship with codefendant
Hillman are all “circumstances of the offense” which make the $150,000
restitution award disproportionate to the gravity of her offense.
Nonetheless, as in Richardson, the offense committed by Breeden in this
case was extremely serious in nature. Breeden admitted to police that
she joined in Hillman’s deadly assault on Heiser.         Breeden punched
Heiser in the face while Heiser was lying on the ground and pulled
Heiser’s head by the hair and “slammed” her face into the mud. Breeden
had cuts on her knuckles which she said were caused by punching
Heiser in the teeth.     By pleading guilty to attempted murder, Breeden
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also acknowledged acting with a specific intent to kill Heiser. Thus, even
considering Breeden’s age at the time of the offense and her family
history and background, we do not find the $150,000 restitution award
to be an excessive fine in violation of article I, section 17 of the Iowa
Constitution.
      As in Richardson, the defendant is not challenging her current
restitution payment plan. The record here does include a February 9,
2009 Department of Corrections plan indicating that Breeden has been
ordered to pay twenty percent of credits to her prison institutional
account to the county clerk of court for restitution. As of that date, she
had discharged $1061.71 of her $150,000 obligation.             We do not
consider    today   whether   Iowa   Code    section   910.3B    could   be
unconstitutional as applied to a juvenile homicide offender because of
her specific payment plan. On a related note, we are also not addressing
the possibility that a juvenile homicide offender could show a restitution
payment plan so deprives her of the opportunity for rehabilitation as to
undermine the guarantees of Miller, Lyle, Ragland, Pearson, and Null.
See Miller, 567 U.S. at __, 132 S. Ct. at 2470, 183 L. Ed. 2d at 423–24;
Lyle, 854 N.W.2d at 399–400; Ragland, 836 N.W.2d at 121; State v.
Pearson, 836 N.W.2d 88, 96 (Iowa 2013); State v. Null, 836 N.W.2d 41,
71–72 (Iowa 2013).
      IV. Conclusion.
      For the reasons stated above, we affirm the judgment and sentence
of the district court.
      DECISION OF COURT OF APPEALS AND JUDGMENT AND
SENTENCE OF DISTRICT COURT AFFIRMED.
      All justices concur except Appel, Wiggins, and Hecht, JJ., who
dissent.
      This opinion shall not be published.
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                                              #14–1789, State v. Breeden

APPEL, Justice (dissenting).

      I respectfully dissent from the court’s opinion for the reasons

stated in my dissent in State v. Richardson, ___ N.W.2d ___ (Iowa 2017)

(Appel, J., dissenting).

      Wiggins and Hecht, JJ., join this dissent.
