                    IN THE COURT OF APPEALS OF IOWA

                                   No. 13-1650
                            Filed December 24, 2014


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

SAMMY LEMORRIS CLAYTON,
     Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Des Moines County, Mary Ann

Brown, Judge.



      Defendant appeals from the denial of his motion to correct an illegal

sentence. AFFIRMED.



      Mark C. Smith, State Appellate Defender, and Patricia Reynolds, Assistant

Appellate Defender, for appellant.

      Thomas J. Miller, Attorney General, Bridget A. Chambers, Assistant

Attorney General, Patrick Jackson, County Attorney, and Tyron Rogers,

Assistant County Attorney, for appellee.



      Considered by Danilson, C.J., and Doyle and Tabor, JJ.
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DANILSON, C.J.

       Sammy Clayton appeals from the district court’s denial of his motion to

correct an illegal sentence. In his motion, Clayton maintained that the sentence

he received was grossly disproportionate to the underlying crime. The district

court denied the motion without a hearing. On appeal, Clayton maintains he

should be afforded an evidentiary hearing in order to develop his cruel and

unusual challenge to his sentence. We review constitutional claims de novo.

State v. Oliver, 812 N.W.2d 636, 639 (Iowa 2012).

       In Miller v. Alabama, 132 S. Ct. 2455, 2460 (2012), the United States

Supreme Court held that mandatory life without parole for those under the age of

eighteen at the time of their crimes is “cruel and unusual” and imposed a

requirement of individualized sentencing in such cases. In a string of recent

cruel and unusual punishment cases, our supreme court has adopted “a more

stringent review than would be available under the Federal Constitution.” State

v. Bruegger, 773 N.W.2d 862, 883–86 (Iowa 2009); see also State v. Null, 836

N.W.2d 41, 74–75 (Iowa 2013) (extending Miller to require individualized

sentencing for juvenile offenders when a lengthy sentence is the result of

aggregate sentences). Thus far, the court has only extended the requirement of

individualized sentencing to juveniles in various instances. Because Clayton was

twenty-seven years old at the time of the crime, there is no categorical rule

requiring the district court to afford Clayton an individualized sentencing hearing.

       In State v. Oliver, 812 N.W.2d 636, 651 (Iowa 2012), our supreme court

clarified that defendants are entitled to bring an as-applied challenge, now known

as a gross disproportionality challenge, to their sentences.         The threshold
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question is whether the defendant’s sentence leads to an inference of gross

disproportionality to the underlying crime. See id. at 650. “If the sentence does

not create an inference of gross disproportionality, then no further analysis is

necessary.” Id. The court “examines the unique combination of the features in

[the defendant’s] case as part of our threshold determination regarding the

inference of gross disproportionality.”      Id. at 651.     Here, Clayton’s motion to

correct   an   illegal   sentence    did   not   establish   an    inference    of   gross

disproportionality between the underlying crime and the sentence. Without more,

we cannot say the district court should have afforded him a hearing on his claim.1

We affirm the district court’s denial of Clayton’s motion to correct an illegal

sentence.

       AFFIRMED.

       Doyle, J., concurs; Tabor, J., concurs specially.




1
  The defendant would have us rule that the district court must provide a hearing for any
defendant who claims a disproportionate sentence. In the interest of judicial efficiency,
we cannot find that a mere claim of disproportionality is sufficient to require an expanded
hearing on the matter. At a minimum, the motion should allege why the sentencing
hearing was insufficient or inadequate to set forth defendant’s individual facts or the
legal issue raised.
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TABOR, J. (concurring specially)

       Like the majority, I am not prepared to remand this matter to the district

court for an evidentiary hearing where the defense and the State would present

evidence as to the constitutionality of Iowa Code sections 707.3 and 902.12(1) as

applied to Clayton.2 Such an individualized assessment to determine whether a

sentence is grossly disproportionate to the crime is necessary only in the

“relatively rare case” where a mandatory sentence appears to be “off the charts”

under all the facts and circumstances. See State v. Bruegger, 773 N.W.2d 862,

884–85 (Iowa 2009).

       I write separately to emphasize our supreme court has yet to provide

concrete guidance regarding what factors might introduce a high risk of gross

disproportionality so as to entitle a defendant to an evidentiary hearing. The

court remanded for such an individualized assessment in Bruegger because that

case involved “an unusual combination of features that converge[d] to generate a

high risk of potential gross disproportionality—namely, a broadly framed crime,

the permissible use of preteen juvenile adjudications as prior convictions to

enhance the crime, and a dramatic sentence enhancement for repeat offenders.”

Id. at 884. Bruegger cannot be read to require an evidentiary hearing in every

case where an inmate moves to correct an illegal sentence—even when the

motion properly alleges gross disproportionality under the cruel and unusual

punishment clauses of the federal and state constitutions.



2
  Such as-applied claims are referred to as gross-proportionality challenges, as opposed
to facial or categorical challenges. See State v. Oliver, 812 N.W.2d 636, 639–40 (Iowa
2012).
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       Clayton filed a pro se motion to correct an illegal sentence under Iowa

Rule of Criminal Procedure 2.24(5). This rule allows for a cruel-and-unusual-

punishment claim to be raised at any time.        Id. at 872.   Because an illegal

sentence claim may be brought at any time under rule 2.24(5), the ordinary rules

of error preservation do not apply. Veal v. State, 779 N.W.2d 63, 65 (Iowa 2010).

       Clayton’s motion cited Bruegger and Solem v. Helm, 463 U.S. 277, 290–

92 (1983). He argued the specific circumstances of his case fail to meet Solem’s

gross proportionality standards. Clayton alleged mental illness and substance

abuse issues contributed to his behavior.       He contended he did not have a

violent criminal history. He also pointed out he was not the shooter and did not

intend that anyone be killed on “the night in question.”

       In ruling on the motion to correct illegal sentence, the district court

correctly found Clayton could not benefit from our supreme court’s recent case

law addressing categorical challenges of juvenile offenders who face mandatory

minimum sentences. See State v. Lyle, 854 N.W.2d 378, 403 (Iowa 2014). But

the district court did not go on to address Clayton’s proportionality challenge,

stating only: “There is nothing in the record that would indicate that the term of

incarceration, which was provided by statute, was in any way illegal. As a result,

there’s nothing that the Court can correct at this time concerning the sentence

imposed.”   While the majority properly affirms the district court’s bottom-line

denial of the motion to correct an illegal sentence, I believe our district courts

could benefit from additional guidance on when it may be necessary to grant an

evidentiary hearing in response to a motion to correct illegal sentence alleging

gross disproportionality.
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      Clayton was originally charged with first-degree murder for his role in the

killing of twenty-two-year-old Dexter Ivey during what was described at the plea

hearing as a drug robbery.     Clayton entered a guilty plea to second-degree

murder and received an indeterminate sentence of fifty years with a mandatory

minimum term of thirty-five years. At the sentencing hearing, the mother of Ivey’s

young daughter gave a victim impact statement. When offered the opportunity,

Clayton declined to speak in mitigation of punishment. At the sentencing hearing

and in the judgment entry, the district court correctly stated Clayton’s sentence

could not be suspended under the governing statute, but still gave reasons for

imposing the mandatory minimum term. The sentencing court noted Clayton was

not a youthful offender, “in that he is 28 years old.” The court also referred to

Clayton’s prior record of convictions and that he “has previously had the benefits

of probation and parole.” The court acknowledged Clayton had earned a GED,

but emphasized he lacked a favorable work history and had a history of abusing

alcohol. In his motion to correct illegal sentence, Clayton did not allege specific

inadequacies in his sentencing hearing.

      The majority holds that to entitle the defendant to an expanded hearing on

a claim of disproportionality, the motion to correct an illegal sentence must

allege—at a minimum—why the original sentencing hearing was insufficient to

set forth the defendant’s individual facts or support the legal issue raised. In my

view, a defendant’s entitlement to an individualized assessment hearing may not

be directly related to the record made at the original sentencing hearing. Instead,

I would hold that to obtain an individualized assessment hearing, the motion to

correct an illegal sentence must allege “unique factors” comparable to those in
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Bruegger that would present “a substantial risk that the mandatory sentence

could be grossly disproportionate as applied.” See Bruegger, 773 N.W.2d at

884. In his pro se motion, Clayton described several aspects of his life which he

believes mitigate against the severity of his punishment. But the motion did not

contend the penalty mandated by statute for second-degree murder posed a risk

for disproportional application under an uncommon set of circumstances.

Because Clayton’s motion did not highlight the kind of rare inference of gross

disproportionality identified in Bruegger, no individualized assessment hearing

was required.
