                    IN THE COURT OF APPEALS OF IOWA

                                  No. 14-2153
                            Filed February 10, 2016


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

DESIRAE MONIQUE PEARSON,
     Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Des Moines County, Cynthia H.

Danielson, Judge.



      Desirae Pearson appeals the sentence imposed on four class “B” felony

convictions for offenses she committed when she was under the age of eighteen.

AFFIRMED.



      Mark C. Smith, State Appellate Defender, and Nan Jennisch, Assistant

Appellate Defender, for appellant.

      Thomas J. Miller, Attorney General, and Jean C. Pettinger, Assistant

Attorney General, for appellee.



      Considered by Vogel, P.J., Potterfield, J., and Scott, S.J.*

      *Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2015).
                                           2


SCOTT, Senior Judge.

       Desirae Pearson appeals the sentence imposed on four class “B” felony

convictions for offenses she committed when she was under the age of eighteen.

She contends the trial court failed to exercise its discretion in imposing the

sentence. We review Pearson’s sentence for correction of errors at law but will

not reverse absent an abuse of discretion or defect in the sentencing procedure.

See State v. Formaro, 638 N.W.2d 720, 724 (Iowa 2002).

       I.     BACKGROUND FACTS AND PROCEEDINGS.

       Pearson’s convictions stem from two separate home invasions committed

on November 25, 2010, when she was seventeen years old. She was convicted

by a jury of one count of first-degree burglary and one count of first-degree

robbery for each home invasion, and was sentenced to serve an indeterminate

term of incarceration of no more than twenty-five years for each conviction. The

burglary and robbery sentences for each home invasion were ordered to run

concurrently to each other but consecutively to the sentences from the other

home invasion. Additionally, Pearson was required to serve at least seventy-

percent of her sentence on each robbery conviction—a total of thirty-five years—

before she could be eligible for parole.

       Pearson appealed, and this court upheld her sentence. State v. Pearson,

No. 11-1214, 2012 WL 3194101, at *4-5 (Iowa Ct. App. Aug. 8, 2012). On further

review, our supreme court held Pearson’s sentence of thirty-five years without

the possibility of parole for the crimes involved here violates the Iowa

Constitution’s prohibition on cruel and unusual punishment. State v. Pearson,

836 N.W.2d 88, 89 (Iowa 2013). Accordingly, it vacated Pearson’s sentence and
                                           3

remanded for resentencing.1 Id. After a December 2014 resentencing hearing,

the district court imposed the original sentence but with immediate parole

eligibility. It is from this resentencing order that Pearson appeals.

       II.    ANALYSIS.

       Pearson first contends the district court erred in failing to resentence her

under Iowa Code section 901.5(14) (2013), which permits the court to suspend,

in whole or in part, a sentence imposed on a public offense committed by a

person under the age of eighteen that is not a class “A” felony. If the court had

the discretion to suspend Pearson’s sentence in whole or in part but erroneously

believed it had no discretion, the failure to exercise its discretion would require

remand for resentencing. See State v. Lee, 561 N.W.2d 353, 354 (Iowa 1997).

The State offers two grounds for rejecting Pearson’s argument. First, it alleges

the provisions of section 901.5(14) do not apply to Pearson because it became

effective after she was originally sentenced in July 2011. In the alternative, the

State claims the trial court considered and rejected the options set forth in

section 901.5(14).


1
  The supreme court remanded Pearson’s case for individualized resentencing under the
standards set forth in Miller v. Alabama, 132 S. Ct. 2455, 2467-68 (2014) (applying to
juvenile offenders facing a sentence of life imprisonment without possibility of parole),
and State v. Null, 836 N.W.2d 41, 74-75 (Iowa 2013) (interpreting the Iowa Constitution
to extend the Miller holding to apply to juvenile offenders who face lengthy sentences as
a result of aggregate sentences), noting the district court did not have the benefit of
either holding when it originally sentenced Pearson. Pearson, 836 N.W.2d at 97. The
United States Supreme Court has recently confirmed the Miller holding applies
retroactively to cases on collateral review. Montgomery v. Louisiana, ___ U.S. ___, No.
14-280, 2016 WL 280758, at *11 (2016). After Pearson’s appeal was decided and
before her resentencing, our supreme court decided State v. Lyle, 854 N.W.2d 378, 400
(Iowa 2014), holding that all mandatory minimum sentences of imprisonment for youthful
offenders are unconstitutional under the Iowa Constitution. At the resentencing hearing,
the trial court acknowledged the applicability of Lyle and resentenced Pearson in
accordance with the holdings of Lyle, Miller, and Null.
                                         4


       The record shows the trial court believed it had the discretion to impose a

sentence under section 901.5(14). During the resentencing hearing, the court

noted “the legislature subsequently changed the legislation to also indicate that

the Court had the authority to ignore the mandatory minimum sentencing

requirements and to reach any sentence the Court felt appropriate with regard to

a juvenile offender.”   (Emphasis added.)     This statement reflects the court’s

understanding that section 901.5(14) allowed it to suspend Pearson’s sentence

in whole or in part.

       The record also shows the court properly exercised its discretion in

imposing Pearson’s sentence, including consecutive sentences. The court listed

its reasons for the sentence at length in what comprises eight pages of the

hearing transcript, noting Pearson was seventeen years and three months old at

the time the crimes were committed and therefore lacked maturity, a sense of

responsibility, and the ability to appreciate the consequences of her actions,

making her less culpable for her crimes. However, the court determined Pearson

was an active participant in the crimes and noted her lengthy history of

involvement with the juvenile court since the age of nine, concluding the crimes

she committed in November 2010 were not an isolated incident but were part of a

“a string of incidents that occurred over a lengthy period of time.” The court cited

the victim impact statements and found that at the time the crimes were

committed, Pearson “was resistant to any efforts and was going down the wrong

path” and the possibility of rehabilitation “was simply unrealistic.” Although the

court found Pearson had failed to show remorse for her crimes at the time of her

trial and sentencing, it noted Pearson’s attitude had since changed, concluding
                                           5


Pearson “does appear to have benefited from the structure and services

provided” in prison and “is on the road to rehabilitation.” However, the court

noted it was “hard to know whether this would be the case had she remained in

the community.”      The court then concluded that the correctional system’s

structured environment, programs, services, and specialized personnel afford

Pearson “the greatest opportunity to be fully rehabilitated in a much shorter time,”

which will ideally allow her to safely return to society.

       Pearson claims the court impermissibly relied on the victims’ injuries in

imposing its sentence, noting only one of the three victims had any physical

contact with the defendants during the home invasions and had reported no

injuries. In imposing its sentence, the court stated:

       The victims provided victim impact statements which were very
       moving as to the effect of having someone arrive at your door and
       pointing what appeared to be a firearm at them and told they would
       be shot if they refused to let them enter. The injuries to Mrs. Wright
       were particularly devastating to her and the Court had given that
       significant consideration and continues to do so.

The court made no claim all three victims received physical injuries; it simply

noted the mental or emotional impact of being robbed at gunpoint and cited the

injuries of one victim as “particularly devastating,” presumably because they were

the only physical injuries reported. Despite Pearson’s claim, the physical injuries

to the third victim was not the only reason the court gave for imposing

consecutive sentences.

       Pearson also complains the court failed to adequately consider her less

culpable than her codefendant. The trial court rejected this claim, noting that

Pearson and her codefendant were similar in age and susceptible to the urging of
                                          6


others. Therefore, the court concluded “it is difficult if not impossible to ultimately

determine who was the instigator of these crimes.”           The court was able to

determine, however, that Pearson was an active and equal participant in the

crime, knocking on the door of one of the victims, pointing a gun at him, and

telling him she was there to rob him and would shoot him if he did not let her

inside. We find no error.

       Because the court properly exercised its discretion in resentencing

Pearson, we affirm.

       AFFIRMED.
