                     IN THE COURT OF APPEALS OF IOWA

                                   No. 13-1754
                            Filed December 24, 2014

MCKINLEY DUDLEY JR.,
     Applicant-Appellant,
vs.

STATE OF IOWA,
     Respondent-Appellee.
________________________________________________________________

      Appeal from the Iowa District Court for Cerro Gordo County, Gregg R.

Rosenbladt, Judge.



      McKinley Dudley Jr. appeals the district court’s ruling denying his

application for postconviction relief. AFFIRMED.



      Sarah A. Reindl of Reindl Law Firm, Mason City, for appellant.

      Thomas J. Miller, Attorney General, Benjamin Parrott, Assistant Attorney

General, and Carlyle D. Dalen, County Attorney, for appellee.



      Heard by Mullins, P.J., and Bower and McDonald, JJ.
                                             2



BOWER, J.

       McKinley Dudley Jr. appeals the district court’s denial of his application for

postconviction     relief   (PCR)    for   his   convictions    of   (1)   possession     of

methamphetamine, third or subsequent offense, a class “D” felony as a habitual

offender, and (2) possession of methamphetamine, third or subsequent offense,

a class “D” felony as a habitual offender. See Iowa Code §§ 124.204.4(m),

.206(4), .401(5), 902.8, .9(3) (2009).           He claims his trial counsel rendered

ineffective assistance by allowing the case to go beyond the speedy-trial

deadline, failing to investigate witnesses, and failing to pursue an Alford plea. He

further claims the sentences imposed constitute cruel and unusual punishment. 1

We affirm.

I. Background Facts and Proceedings

       The background facts leading to Dudley’s convictions are set out in this

court’s ruling resolving his direct appeal:

               A reasonable fact finder considering the evidence presented
       at trial could find the following: At about 1:00 a.m. on September
       18, 2010, Mason City Police Officer Joshua Eernisse was in a
       marked patrol car and wearing his uniform. While he and student
       intern Dustin Hodson were investigating another call, they observed
       the defendant, McKinley Dudley Jr., riding a bicycle without a
       headlight.
               Officer Eernisse parked his vehicle in a parking lot, got out,
       and asked Dudley to come over to the patrol car as he intended to
       inform Dudley it was against city ordinance to ride a bicycle without
       a headlight. Dudley turned his bicycle and started to ride toward
       the officer. Officer Eernisse asked Dudley to stop and talk. Dudley
       approached the officer but continued riding. Officer Eernisse


1
  Dudley relies on the United States Constitution for this claim and does not cite to article
I, section 17 of the Iowa Constitution. We note that even if Dudley had based his claim
on the Iowa Constitution, under the circumstances of this case, the resolution would be
the same.
                                           3



         stated, “police, stop,” and when Dudley continued to ride, the officer
         yelled “stop.” Officer Eernisse grabbed Dudley’s arm. Dudley kept
         riding. Officer Eernisse tackled Dudley off the bike and in doing so
         suffered an abrasion to his right knee. Officer Eernisse then placed
         Dudley in handcuffs and searched him, finding marijuana and
         methamphetamine.

State v. Dudley, No. 11-0413, 2012 WL 170738, at *1 (Iowa Ct. App. Jan. 19,

2012).

         In addition to the drug charges, the State charged Dudley with interference

with official acts and public intoxication. Counsel was appointed, and in October

2010, Dudley entered a plea of not guilty. At the end of November 2010, counsel

informed the court Dudley wanted to enter a guilty plea pursuant to the State’s

plea offer.    But at the December 13, 2010 guilty plea hearing, after much

preliminary discussion, Dudley did not provide a factual basis for the guilty pleas,

and the court reset the case for trial. Subsequently, Dudley filed a pro se motion

to dismiss, claiming his speedy-trial rights had been violated. The motion was

denied.

         Following trial, the jury returned verdicts finding Dudley guilty of both drug

offenses, guilty of the interference-with-official acts charge, and not guilty of

public intoxication. Dudley stipulated to prior drug-related convictions and prior

felony convictions. On the drug offenses challenged in this appeal, the court

sentenced Dudley to an indeterminate fifteen-year term for possession of

methamphetamine enhanced as a habitual offender and an indeterminate fifteen-
                                           4



year term for possession of marijuana enhanced as a habitual offender; the

sentences were to run concurrently.2

       A.    Direct Appeal.       Dudley appealed his convictions, claiming the

evidence was insufficient to sustain his conviction for interference with official

acts. We agreed, vacated the corresponding judgment, and remanded.3 Dudley

filed a pro se brief challenging the sentencing enhancements, claiming he was

improperly convicted of felonies where he possessed small amounts of marijuana

(a teaspoon) and methamphetamine (1/100th of a teaspoon) that would only

sustain misdemeanor convictions. Noting Dudley’s convictions are subject to

enhanced sentences under both Iowa Code chapters 124 and 902, we rejected

his challenge:

              “The legislature classifies a violation of section 124.401(5)
       as either a misdemeanor or felony based on a defendant’s prior
       drug-related convictions. Iowa Code § 124.401(5). If the defendant
       has no prior drug-related convictions, a violation of section
       124.401(5) is a serious misdemeanor. Id. If the defendant has one
       prior drug-related conviction, a violation of section 124.401(5) is an
       aggravated misdemeanor. Id. If the defendant has two prior drug-
       related convictions, a violation of section 124.401(5) is a class “D”
       felony. Id. Because [the defendant] had two prior drug-related


2
  The trial information listed four prior controlled substance convictions—January 1998,
April 2002, October 2006, and April 2008. During the PCR proceedings, Dudley claimed
the possession of marijuana, third offense, was enhanced from an aggravated
misdemeanor based on an uncounseled simple misdemeanor possession of drug
paraphernalia prior offense. Dudley also claimed the prior offenses for the possession of
methamphetamine, third offense, were “two possession of marijuana convictions and
one possession of drug paraphernalia conviction.”
        The trial information listed seven prior felony convictions—May 1984 (second-
degree burglary), January 1992 (second-degree burglary), August 1998 (forgery),
August 1999 (second-degree theft), July 17, 2002 (operating while intoxicated on
10/27/2001, third offense), July 25, 2002 (operating while intoxicated on 2/4/2002, third
offense), and October 2009 (operating while intoxicated on 3/5/2009, third or subsequent
offense).
3
  Additionally, Dudley challenged the restitution ordered for attorney fees. We vacated
the order and remanded for the entry of a new restitution order.
                                           5



       convictions, section 124.401(5) classified his violation as a class
       “D” felony . . . .
              Under the same sentencing scheme, a habitual offender
       shall be confined no more than fifteen years. Id. § 902.9(3). A
       habitual offender includes any person convicted of a class “D”
       felony who has twice before been convicted of a felony. Id.
       § 902.8.”

Dudley, 2012 WL 170738, at *6 (quoting State v. Maxwell, 743 N.W.2d 185, 190–

91 (Iowa 2008)). We concluded “Dudley’s offenses were classified as class ‘D’

felonies pursuant to section 124.401(5) based on his prior drug-related

convictions, as well being a habitual offender under section 902.9(3).” Id.

       Dudley’s second pro se challenge claimed trial counsel was ineffective in

failing to allege a violation of his speedy-trial rights. This court disagreed, ruling:

“But when Dudley indicated on November 30, 2010, that he planned to plead

guilty, and asked for the case to be set for further proceedings to enter a guilty

plea, he effectively waived his right to trial and his right to a speedy trial.” Id.; see

State v. Warmuth, 532 N.W.2d 163, 166 (Iowa Ct. App. 1995) (stating where the

court determines the guilty plea cannot be accepted, a new ninety-day period for

speedy trial commences from the date the court declines the plea).                   We

concluded, therefore, Dudley’s ninety-day period for speedy trial began anew on

December 13, 2010, his January 5, 2011 trial did not violate his speedy-trial

rights, and defense counsel had no duty to move to dismiss on this ground.

Dudley, 2012 WL 170738, at *7.

       B.    Postconviction Proceedings.            In June 2012 Dudley filed an

application for postconviction relief, claiming trial counsel was ineffective in

allowing the case to go beyond the speedy-trial deadline, in failing to investigate
                                             6



witnesses, and in failing to pursue an Alford plea.4 Dudley also claimed the trial

court was without authority to impose sentencing enhancements in each count

and without authority to impose the habitual offender sentencing enhancement,

contending his conviction for possession of drug paraphernalia, a simple

misdemeanor, should not be used for purposes of enhancing the charge.

       Finally, Dudley claimed the sentencing enhancements elevating each

charge to a class “D” felony and the following enhancement of each count to

habitual offender status constituted cruel and unusual punishment.                      He

acknowledged the court in State v. Allen ruled the Iowa Constitution, like the

Federal Constitution, does “not bar use of prior uncounseled misdemeanor

convictions for later enhancement where the prior conviction did not itself result

in a term of incarceration.” 690 N.W.2d 684, 692 (Iowa 2005) (“Sometimes the

past does catch up to you.”). Dudley claimed, however, a cruel and unusual

analysis, implicating “different rights of the defendant” and tailored to the

individual defendant, is sufficiently different to compel a different result.           He

claimed the sentences are categorically unconstitutional, stating:

       The court, in using its own judgment to weigh the gravity of the
       offense and the punishment, should find that a fifteen-year prison
       sentence for possession of half a teaspoon of marijuana and a
       fifteen-year prison sentence for possession of 1/100 of a teaspoon
       of methamphetamine, even considering that this sentence includes
       at least two prior violations of Iowa Code chapter 124 and two prior
       felony convictions, are so disproportionate to the punishments that


4
  Dudley’s additional claims were: (1) he should have been assigned a different trial
attorney due to a “conflict of interests” and his lack of trust of trial counsel; and (2)
counsel was ineffective by failing to disclose the drug tests results to him, by introducing
black and white photos of Dudley’s injuries instead of color photos, and by failing to
adequately explain the maximum penalties applicable to the charges. These claims
were discussed and rejected by the PCR court and are not before us on appeal.
                                         7



       they constitute     cruel   and   unusual    punishment     and   are
       unconstitutional.

       At the hearing on Dudley’s application, two of the witnesses Dudley

claimed counsel should have investigated testified, as did Dudley and Dudley’s

trial counsel. In ruling, the postconviction court discussed the prior proceedings:

              The transcripts reveal, additionally, that Mr. Dudley was on
       notice that the drug charges he was facing were elevated to
       habitual offender status. In reviewing the plea agreement, at the
       aborted plea change hearing on December 13, 2010, the court
       reviewed with Mr. Dudley the proposed plea agreement, which
       included that the State would not pursue the “habitual offender”
       enhancement. Additionally, just prior to trial, a record was made on
       January 5, 2011, at which time [Dudley] stipulated to his prior felony
       convictions.
              ....
              The court further notes, at the time of sentencing, the
       sentences for both drug charges (based on the enhancements and
       the habitual offender status) were ordered to run concurrently by
       the court. Mr. Dudley was not sentenced to the maximum possible
       sentence permitted by law, as theoretically, the two counts could
       have been run consecutively for a total of 30 years.

The PCR court denied relief on all claims, and this appeal followed.

II. Scope and Standards of Review

       Dudley’s claim his trial counsel rendered ineffective assistance is reviewed

de novo. See Ennenga v. State, 812 N.W.2d 696, 701 (Iowa 2012). To establish

an ineffective-assistance-of-counsel claim, Dudley must demonstrate, by a

preponderance of the evidence, trial counsel failed to perform an essential duty

and the failure prejudiced him. See Strickland v. Washington, 466 U.S. 668, 687

(1984). We employ a strong presumption counsel performed reasonably and

competently. State v. Cook, 565 N.W.2d 611, 613–14 (Iowa 1997).
                                         8



      Dudley’s sentencing challenge based on the Eighth Amendment to the

United States Constitution is also reviewed de novo. See State v. Bruegger, 773

N.W.2d 862, 872 (Iowa 2009).

III. Ineffective Assistance of Counsel

      A. Speedy Trial. Dudley claims trial counsel “was ineffective for allowing

the case to go beyond the ninety-day speedy trial deadline.” Dudley made a

similar claim on direct appeal; thus, his postconviction claim is barred by Iowa

Code section 822.8 (2011). See Holmes v. State, 775 N.W.2d 733, 735 (Iowa

Ct. App. 2009) (stating a defendant “cannot now relitigate issues decided

adversely to him on direct appeal”).

      To the extent Dudley is separately claiming counsel was ineffective for

requesting a guilty plea hearing because he had not consented to plead guilty,

the PCR court credited the testimony of defense counsel that she set the matter

for plea change because Dudley specifically indicated his intent to accept the

State’s plea offer and plead guilty. See Tim O’Neill Chevrolet, Inc. v. Forristall,

551 N.W.2d 611, 614 (Iowa 1996) (“The district court has a better opportunity

than we do to evaluate the credibility of witnesses. So we think factual disputes

depending heavily on such credibility are best resolved by the district court.”).

The PCR court also noted the transcript of the plea change/guilty plea hearing

shows Dudley confirming his intent to plead guilty, thus supporting defense

counsel’s testimony. We see no reason to disturb the PCR court’s credibility

determination. After our de novo review, we conclude this claim is without merit.
                                             9



         B. Failure to Investigate Defense Witnesses. Dudley claims counsel

should have contacted witnesses to help establish the methamphetamine found

in his coat was not his.5 He contends their testimony would have supported his

trial testimony (1) the jacket he was wearing when arrested had been loaned out

to others, and (2) he was unaware of the package of methamphetamine in the

jacket’s pocket.       He contends defense counsel’s failure to investigate the

witnesses constituted ineffective assistance.

         Dudley called two witnesses at the PCR hearing to support this challenge.

Melinda Kavars testified Dudley left his coat at her house and known users of

methamphetamine were “coming in and out.”              She also stated “it’s possible”

someone would have borrowed Dudley’s jacket and could have left a baggie with

methamphetamine residue in it. Annette Stevens testified she had known Dudley

for five years, he did not use methamphetamine, and he would not be carrying

the drug.

         In contrast, defense counsel testified she did not remember Dudley giving

her the names of the four specific witnesses he claims she should have called.

Importantly, she recounted that when she heard Dudley testify at trial “that some

woman had his jacket, I remember thinking I’ve never heard this before and I

don’t have any idea who that person supposedly is.” Counsel also stated: “I don’t

think he ever brought it up that it was Melinda Kavars because I would have

known who that was and I wouldn’t have been surprised when he testified about

it at trial.”


5
    Dudley made no argument concerning the marijuana found in his billfold.
                                         10



       The PCR court “did not find the testimony of Ms. Kavars and Ms. Stevens

to be either very credible or very relevant.” The court credited the testimony of

defense counsel and found Dudley did not tell defense counsel about the

witnesses.        We see no reason to disturb the PCR court’s credibility

determination. See Forristall, 551 N.W.2d at 614. Accordingly, we conclude

defense counsel was not ineffective for failing to investigate defense witnesses

who were unknown to her.

       C. Failure to Pursue an Alford Plea. Dudley claims trial counsel was

ineffective in failing to inform him about the possibility of entering an Alford plea.

An Alford plea allows a defendant to voluntarily and intelligently plead guilty even

if he is unwilling or unable to admit his participation in the acts constituting the

crime. See North Carolina v. Alford, 400 U.S. 25, 32-38 (1970).

       At the PCR hearing, defense counsel explained she did not actively

pursue the entry of an Alford plea after Dudley failed to supply a factual basis at

the time of his plea change hearing because she believed the State, through its

prosecutors, would not agree to an Alford plea, nor did she believe the court

would accept an Alford plea.

       In resolving the issue, the PCR court reviewed the transcript of the plea

change hearing and found “it is apparent that the State of Iowa was very firm in

its plea offer.    The State would not back down from recommending that the

sentence in this matter would run consecutively with the five-year OWl Third

sentence.” Noting a defendant cannot unilaterally force either the State or the

district court to accept an Alford plea, the PCR court concluded there is no
                                        11



indication in the record that the State was flexible and would “entertain the taking

of an Alford plea,” and “the evidence is simply not sufficient that an Alford plea

would have been a possible option.”

      The State claims the lack of evidence in the record makes this challenge

“utterly speculative.” We agree. An Alford plea requires a factual basis in the

record and nothing in the record before us suggests Dudley would have

abandoned his claim the methamphetamine was not his.                 See State v.

Schminkey, 597 N.W.2d 785, 788 (Iowa 1999) (stating the factual basis

requirement exists for Alford pleas). Also, an Alford plea requires the agreement

of the State and the district court. See Iowa R. Crim. P. 2.8(2)(b). Upon our de

novo review, we find nothing in the record shows the State would have agreed to

an Alford plea or shows the district court would have accepted it.

      Accordingly, Dudley has failed to rebut the strong presumption that

counsel performed reasonably and competently. See Cook, 565 N.W.2d at 614;

see also Lopez v. State, No. 03-0590, 2004 WL 360481, at *2-3 (Iowa Ct. App.

Feb. 27, 2004) (rejecting ineffective-assistance claim based on defense

counsel’s failure to inform the defendant of the possibility of an Alford plea and

noting the alleged prejudice “is much too speculative”).

IV. Cruel and Unusual Punishment

      Dudley claims the court’s imposition of concurrent fifteen-year sentences

for his possession of only a small of amounts of drugs, “categorically and

individually constitutes cruel and unusual punishment” under the Eighth

Amendment to the United States Constitution.
                                        12



      The State responds Dudley did more than possess small quantities of

drugs—he repeatedly violated Iowa’s drug laws and repeatedly committed other

felonies. Thus, the recidivism statutes activated by Dudley’s repeated unlawful

actions led to the imposition of the indeterminate fifteen-year terms.      Those

statutes enhanced Dudley’s punishment because the legislature has determined

a defendant’s repeated violations of our laws supports a longer sentence than a

first-time offender. Thus, the State claims the question is whether it is cruel and

unusual to punish a three-time felony offender for possessing a small amount of

drugs. We agree with the State’s formulation of the issue.

      A.      Categorical Analysis.    “[C]ategorical challenges to a particular

sentence can be based on either the characteristics of the crime or the criminal.”

State v. Oliver, 812 N.W.2d 636, 641 (Iowa 2012). The Iowa Supreme Court

recently clarified the two-step inquiry courts use to analyze categorical

challenges:

      First, we consider objective indicia of society’s standards, as
      expressed in legislative enactments and state practice to determine
      whether there is a national consensus against the sentencing
      practice at issue. Second, we exercise our own independent
      judgment guided by the standards elaborated by controlling
      precedents and by [our] own understanding and interpretation of
      the [constitution’s] text, history, meaning, and purpose.

State v. Lyle, 854 N.W.2d 378, 386 (Iowa 2014) (citations and quotation marks

omitted).

      As the State points out, Dudley does not claim there is a national

consensus against enhanced sentences for recidivist offenders. Such a claim

would be nonsensical in light of the facts (1) there is a national consensus
                                          13



favoring punishing repeat offenders more severely than first-time offenders, and

(2) recidivist statutes have been enacted in all states and at the federal level.

See Parke v. Raley, 506 U.S. 20, 26-27 (1992) (“Statutes that punish recidivists

more severely than first offenders have a long tradition in this country that dates

back to colonial time.”).   As one example, the United States Supreme Court

rejected a “cruel and unusual” challenge and upheld a “three-strikes-law”

sentence of twenty-five years to life in prison for a recidivist felon’s theft of three

golf clubs in Ewing v. California, 538 U.S. 11, 25-30 (2003) (recognizing “States

have a valid interest in deterring and segregating habitual criminals”).

       We turn to the second step, whether the enhanced sentences for repeat

drug offenses and for repeat felonies “violates the Cruel and Unusual

Punishment Clause in light of its text, meaning, purpose, and history.” Lyle, 854

N.W.2d at 390.      We consider “whether the challenged sentencing practice

serves” any of four legitimate penological goals—retribution, deterrence,

incapacitation, and rehabilitation. Oliver, 812 N.W.2d at 646. We recognize,

however, different criminal punishments have different goals “and choosing

among them is within a legislature’s discretion.” Id.

       In Oliver, the Iowa Supreme Court reviewed a statute increasing

punishments for recidivist sex offenders and ruled: “Enhancing punishment

based on recidivism fulfills the legitimate goals of incapacitation and deterrence.”

Id. (ruling the statute did not constitute cruel and unusual punishment under a

categorical analysis). Those two goals—incapacitation and deterrence—are also

advanced by the recidivist statutes enhancing Dudley’s punishment, i.e., Iowa
                                          14



Code section 124.401(5) (making one who violates the controlled substances

chapter and has two prior drug convictions guilty of a class “D” felony) and Iowa

Code section 902.9(3) (punishing a felon previously convicted of two felonies

with a maximum fifteen-year sentence).

       We turn to the goal of retribution, which is the “restoration of the moral

imbalance caused by the offense.” Id. (citation and quotation marks omitted). To

be subject to the maximum sentence of fifteen years after being found in

possession of marijuana or methamphetamine, Dudley had, at a minimum, at

least two prior drug convictions and two prior felony convictions. See Iowa Code

§§ 124.401(5), 902.9(3).     As such, the longer sentences imposed in those

circumstances restores the moral imbalance caused by the repeated nature of

the drug offenses and the separate felonies. See Oliver, 812 N.W.2d at 650 (“[A]

recidivist offender is more culpable and thus more deserving of a longer

sentence than a first-time offender.”).

       As in Oliver, because Dudley’s sentence serves at least three legitimate

goals and is supported by a national consensus, we conclude his sentence is not

categorically cruel and unusual. See Parke, 506 U.S. at 27 (stating “we have

repeatedly upheld recidivism statutes against contentions that they violate

constitutional strictures dealing with . . . cruel and unusual punishment”).

       B. Constitutional Challenge to Dudley’s Individual Sentences. We

consider Dudley’s “individual” claim as a gross disproportionality challenge. See

Oliver, 812 N.W.2d at 640 (explaining a defendant may make a gross

disproportionality claim regarding his or her individual sentence).       Using this
                                         15



standard, Dudley contends the penalty mandated by the statutes is so grossly

disproportionate to the crimes he committed that following the statutes in his

individual situation would violate the constitution. See id. at 647.

       The Iowa Supreme Court has instructed: “The first step in this analysis,

sometimes referred to as the threshold test, requires a reviewing court to

determine whether a defendant’s sentence leads to an inference of gross

disproportionality.” Id. “[O]nly if the threshold test is satisfied” does the court

proceed to additional analysis. Id. “This preliminary test involves a balancing of

the gravity of the crime against the severity of the sentence.” Bruegger, 773

N.W.2d at 873 (recognizing a “life sentence for a parking ticket could run afoul of

cruel and unusual punishment as being grossly disproportionate to the crime”).

       Dudley faces an uphill battle because his sentence for a term of years

“might be so lengthy as to violate the Cruel and Unusual Punishment Clause,

[but] such an occurrence outside the context of capital punishment has been

exceedingly rare.”    Id. (citations and quotation marks omitted).     Further, the

general theory of case precedent is “that a sentence for a term of years within the

bounds authorized by statute is not likely to be ‘grossly disproportionate’ under

the Cruel and Unusual Punishment Clause.” Id.

       When conducting the threshold test’s balancing process, courts consider

several general principles. Oliver, 812 N.W.2d at 650. First, “we owe substantial

deference to the penalties the legislature has established for various crimes.” Id.

This deferential standard recognizes judgments of the legislature are regarded, in

general, “as the most reliable objective indicators of community standards for
                                         16



purposes of determining whether a punishment is cruel and unusual.” Bruegger,

773 N.W.2d at 873. Second, we recognize “it is rare that a sentence will be so

grossly disproportionate to the crime as to satisfy the threshold inquiry and

warrant” additional review.     Oliver, 812 N.W.2d at 650.       Third, “a recidivist

offender is more culpable and thus more deserving of a longer sentence than a

first-time offender.” Id. Accordingly, in this court’s determination of the gravity of

Dudley’s crime, we consider his criminal history. See id. (citing Ewing, 538 U.S.

at 29 (“In weighing the gravity of Ewing’s offense, we must place on the scales

not only his current felony, but also his long history of felony recidivism.”)).

Fourth and finally, we consider whether unique features of Dudley’s case

converge, generating “a high risk of potential gross disproportionality.” Bruegger,

773 N.W.2d at 884.

       Upon our de novo review, we conclude Dudley has failed to establish any

of the four threshold factors. As to the first factor, on direct appeal this court

considered and rejected Dudley’s claim his criminal charges were improperly

enhanced under Iowa’s statutes because he possessed only small amounts of

drugs. Here, we give deference to the legislature’s determination our community

standards objectively include punishing a defendant’s recidivist drug crime as a

“D” felony when the defendant has previously been convicted of two or more

violations of our controlled substances chapter. We give similar deference to the

legislature’s determination our community standards objectively include the

habitual offender enhancement for Dudley’s conviction of multiple felonies.
                                         17



      Turning to the second factor, Dudley has failed to prove his case is the

rare case with such exceptional circumstances that this factor has been met. He

again emphasizes the small amounts he possessed; we are not persuaded. See

Harmelin v. Michigan, 501 U.S. 957, 1002 (1991) (Kennedy, J., concurring)

(“Possession, use, and distribution of illegal drugs represents one of the greatest

problems affecting the health and welfare of our population.”).         A similar de

minimus claim has been rejected by the United States Supreme Court:

              In this case, however, we need not decide whether Texas
      could impose a life sentence upon Rummel merely for obtaining
      $120.75 by false pretenses. Had Rummel only committed that
      crime . . . he could have been imprisoned for no more than 10
      years. In fact, at the time that he obtained the $120.75 by false
      pretenses, he already had committed and had been imprisoned for
      two other felonies, crimes that Texas and other states felt were
      serious enough to warrant significant terms of imprisonment even in
      the absence of prior offenses. Thus the interest of the State of
      Texas here is not simply that of making criminal the unlawful
      acquisition of another person’s property; it is in addition the interest,
      expressed in all recidivist statutes, in dealing in a harsher manner
      with those who by repeated criminal acts have shown that they are
      simply incapable of conforming to the norms of society as
      established by its criminal law. By conceding the validity of
      recidivist statutes generally, Rummel himself concedes that the
      State of Texas, or any other state, has a valid interest in so dealing
      with that class of persons.

Rummel v. Estelle, 445 U.S. 263, 276 (1980).

      Third, the gravity here is enhanced by Dudley’s lengthy criminal record—

four prior drug crimes and seven prior felonies. Dudley’s recidivism supports

enhanced punishments, and Dudley’s punishment is not, as a matter of fact,

overly severe.6 First, the court did not run the sentences consecutively. Second,



6
 Dudley does not challenge the three-year mandatory minimum set out in Iowa Code
section 902.8 (minimum sentence for an habitual offender).
                                        18



Dudley is eligible to reduce his fifteen-year sentence by more than fifty percent

through the accumulation and application of “earned time.”        See Iowa Code

section 903A.2. Third, Dudley would be eligible for parole when and if the parole

board determines “there is a reasonable probability [he] can be released without

detriment to the community or to [himself].” Iowa Code § 906.4; see Rummel,

445 U.S. at 281 (ruling the opportunity for parole, “however slim,” reduces the

severity of a defendant’s life sentence and refusing to strike down the recidivism-

enhanced sentence based on three underlying felonies where the third felony

was obtaining $120.75 by false pretenses).

      Finally, Dudley has not persuaded us there are “unique features”

converging to generate “a high risk of potential gross disproportionality.” In sum,

Dudley has failed to satisfy the threshold test, and we need not conduct further

analysis of his claim based on gross proportionality. See Oliver, 812 N.W.2d at

653 (“Since the penalty does not lead to an inference of gross disproportionality,

we need not proceed to steps two and three of the analysis.”).

      In conclusion, because we find no merit to any claim Dudley presents in

his appeal of the PCR court’s decision, we affirm.

      AFFIRMED.
