                    IN THE COURT OF APPEALS OF IOWA

                                  No. 14-2171
                              Filed March 9, 2016


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

DEMARCUS RAY MCLEMORE,
     Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Black Hawk County, James C.

Bauch, Judge.



      Demarcus Ray McLemore challenges the legality of the sentence imposed

following resentencing on his second-degree-murder conviction. AFFIRMED.



      Lisa A. Allison of Allison Law Firm, L.L.C., Des Moines, for appellant.

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

General, for appellee.



      Considered by Vaitheswaran, P.J., and Doyle and Mullins, JJ.
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DOYLE, Judge.

       Demarcus Ray McLemore challenges the sentence imposed on his

conviction for second-degree murder, an offense he committed when he was

seventeen years old. After pleading guilty to the 1998 crime, McLemore was

sentenced to a term of not more than fifty years in prison and was ordered to

serve a mandatory minimum of eight-five percent of his sentence before

becoming eligible for parole. In 2014, McLemore was resentenced pursuant to

Miller v. Alabama and its progeny,1 which require that juvenile offenders receive

individualized sentencing hearing before a lengthy, mandatory-minimum

sentence is imposed. The district court imposed a sentence of no more than fifty

years in prison and required that McLemore serve seventy percent of his

sentence before becoming eligible for parole.

       On appeal, McLemore contends his sentence is illegal and violates the

Iowa Constitution’s prohibition on cruel and unusual punishment because under

the law at the time of his resentencing, a person under the age of eighteen who

commits first-degree murder is eligible for parole after twenty-five years, see

Iowa Code § 902.1(2)(a) (2013) (stating a person convicted of a class “A” felony

who was under the age of eighteen at the time of the offense shall be eligible for

parole after twenty-five years), while a person under the age of eighteen who

1
   See Miller v. Alabama, 132 S. Ct. 2455, 2469 (2012) (holding a sentence of mandatory
life imprisonment without the possibility of parole is unconstitutional under the Eighth
Amendment when applied to a juvenile offender); State v. Lyle, 854 N.W.2d 378, 400
(Iowa 2014) (reaching the same conclusion as Miller after analyzing under the Iowa
Constitution); State v. Null, 836 N.W.2d 41, 72 (Iowa 2013) (applying Miller to cases
involving a lengthy term-of-years sentence); State v. Pearson, 836 N.W.2d 88, 96 (Iowa
2013) (holding a sentence of thirty-five years without the possibility parole on two counts
of burglary and two counts of robbery violates Miller principles); State v. Ragland, 836
N.W.2d 107, 121-22 (Iowa 2013) (applying the Miller holding to sentences that are the
functional equivalent of life without parole).
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commits second-degree murder may be required to serve thirty-five years in

prison before being eligible for parole, see Iowa Code §§ 707.3 (setting the

maximum sentence for a person who commits second-degree murder at not

more than fifty years in prison), 902.12(1) (requiring a person convicted of

second-degree murder to serve at least seven-tenths of the maximum term

before being eligible for parole). Following McLemore’s appeal, our supreme

court severed the statutory provisions that prescribed a mandatory minimum

sentence for juvenile offenders who commit first-degree murder. See State v.

Louisell, 865 N.W.2d 590, 599-600 (Iowa 2015). In his reply brief, McLemore

concedes the Louisell ruling remedies the defect that he alleged rendered his

sentence unconstitutional.

       McLemore raised only the “cruel and unusual punishment” claim in his

initial appeal brief. Rather than address that argument, the State analyzes the

propriety of McLemore’s sentence under the Miller factors.            See Lyle, 854

N.W.2d at 404 n.10 (listing the factors). In his reply brief, McLemore raises an

alternative ground of error: he complains that in determining the likelihood he can

be rehabilitated, the district court reviewed the “actual data” contained in his

prison record and presentence-investigation report concerning his conduct over

the past fifteen years rather than predicting how McLemore might fare based on

the record available at the time of his initial sentencing in 1999.

       We do not typically consider arguments raised for the first time in a reply

brief. See State v. Terry, 569 N.W.2d 364, 369 (Iowa 1997). McLemore claims it

is permissible as a response to an issue the State raised for the first time in its

appeal brief, citing State v. Carroll, 767 N.W.2d 638, 644-45 (Iowa 2009).
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However, the facts of Carroll are distinct from the facts before us, rendering its

holding inapplicable here. In Carroll, the defendant raised ineffective-assistance

claims relating to an allegedly illegal search and the sufficiency of the State’s

evidence. 767 N.W.2d at 644. The State argued that the defendant’s guilty plea

waived any challenge to constitutional infirmities that occurred before he entered

his plea. See id. The supreme court held that under those circumstances, the

defendant could raise a challenge to the adequacy of counsel’s representation

based on what the defendant alleged to be an involuntary and unintelligent guilty

plea for the first time in his reply brief as a response to the State’s waiver

argument.    See id. at 644-45.      Here, McLemore was not responding to the

State’s attack on a claim properly before us. The State’s briefing of a separate

issue, wholly unrelated to the claim McLemore raised in his initial brief, did not

open the door for McLemore to raise a new claim for the first time in his reply

brief after his initial argument was vitiated by the Louisell holding.

       Finding no merit on any claim properly before us, we affirm.

       AFFIRMED.
