                    IN THE COURT OF APPEALS OF IOWA

                                   No. 14-2156
                             Filed January 13, 2016


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

DURIUS ANTWAN DAVIS,
     Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Black Hawk County, Todd A. Geer,

Judge.



      Durius Davis appeals the district court’s decision at resentencing to

reimpose his original sentence for second-degree robbery.           SENTENCE

VACATED AND REMANDED FOR RESENTENCING.



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

Appellate Defender, for appellant.

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

General, for appellee.



      Considered by Potterfield, P.J., and Doyle and Tabor, JJ.
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POTTERFIELD, Presiding Judge.

       Durius Davis appeals the district court’s decision at resentencing to

reimpose his original sentence for second-degree robbery. Davis makes three

arguments. First, he argues the district court failed to apply the Miller factors,

which must be taken into consideration before sentencing a juvenile to a

minimum term of imprisonment. Second, he argues the district court improperly

considered the fact that his plea deal reduced his criminal charge from first-

degree robbery to second-degree robbery. Third, he argues the district court

failed to apply the new juvenile-sentencing scheme under Iowa Code section

901.5(14) (2013) that allows for reduced penalties in all juvenile cases except for

those involving class “A” felonies. We agree the district court failed to apply the

factors first set forth in Miller v. Alabama, 132 S.Ct. 2455, 2468 (2012), which

have been adopted in Iowa by our supreme court. See State v. Lyle, 854 N.W.2d

378, 404 n.10 (Iowa 2014). We therefore vacate Davis’s sentence and remand

this matter for resentencing before a different judge.

   I. Background Facts and Proceedings

       On July 9, 2009, the State filed a trial information charging Davis with first-

degree robbery, a class “B” felony, in violation of Iowa Code sections 711.1 and

711.2 (2009). Davis was sixteen years old at the time of the offense. Instead of

proceeding to trial on the first-degree robbery charge, Davis chose to plead guilty

to the lesser-included offense of second-degree robbery, a class “C” felony, in

violation of Iowa Code sections 711.1 and 711.3. The guilty plea, entered on

January 5, 2011, was presented as an Alford plea, which allows a criminal

defendant to plead guilty without admitting guilt. See North Carolina v. Alford,
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400 U.S. 25, 37-39 (1970). Davis was sentenced the same day to a term of

imprisonment not to exceed ten years, with a mandatory minimum sentence of

seven years, along with a suspended fine of $1000.

       A point of contention at sentencing was whether Davis’ sentence on the

robbery charge would run concurrently or consecutively with another sentence he

was already serving on an unrelated willful injury charge.         In explaining its

decision to impose concurrent, rather than consecutive, sentences, the district

court stated in relevant part:

               THE COURT: [The prosecutor] also makes a really good
       point of the fact that you can’t consider this in isolation, this
       robbery. You have to consider it in the context of other criminal
       activity that you were involved with at the time. And I’m very
       familiar with the willful injury case. We tried that case.
               ....
               But I also take a look at the period of your life, how young
       you were when these things occurred. I also consider the sentence
       that if I don’t run these consecutively that you’re still going to be
       ordered to serve here in this case. There is a ten-year sentence
       with a 70 percent minimum that is applicable. I know there is a five-
       year minimum sentence applicable for the willful injury that I’ve
       already imposed upon you. The question I need to resolve here is
       whether it’s necessary for your rehabilitation and for the protection
       of the community and the other factors that I consider in
       determining an appropriate sentence, whether it’s necessary that
       those be stacked one on top of another. And I am determining,
       although it is a very close case, I’m determining that they’re going
       to run concurrently, and primarily because I am hopeful that you’re
       going to get the point, that you’re going to use the time that you’re
       going to spend in prison . . . to decide that, you know, this isn’t how
       I want to live the rest of my life.

As the court noted, running the sentences concurrently did not change the fact

that Davis would have to serve the seven-year mandatory minimum applicable to

his sentence for second-degree robbery.
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       Then, in the years following the imposition of Davis’s sentence, a series of

court cases called into question the legality of mandatory minimum sentences for

juvenile offenders.   First, in 2012, the United States Supreme Court decided

Miller, 132 S.Ct. at 2475, in which it held that the Eighth Amendment’s prohibition

of cruel and unusual punishment forbids mandatory sentences of life in prison

without parole for juvenile offenders. Miller was followed in this state by a trilogy

of Iowa Supreme Court decisions issued on the same date in 2013: State v. Null,

836 N.W.2d 14, 70-71 (Iowa 2013), which held that the reasoning of Miller would

apply not just to mandatory life sentences without parole but also to

circumstances in which a juvenile offender’s lengthy mandatory minimum

sentences effectively amounted to a lifetime or near-lifetime sentence without

parole; State v. Pearson, 836 N.W.2d 88, 96 (Iowa 2013), which held that the

reasoning of Miller would similarly apply to a combined thirty-five year minimum

sentence without parole; and State v. Ragland, 836 N.W.2d 107, 117 (Iowa

2013), which held that the rule contemplated by Miller would apply retroactively.

Finally, on July 18, 2014, the Iowa Supreme Court decided State v. Lyle, 854

N.W.2d 378, 400-04 (Iowa 2014), which held that the Iowa Constitution’s

prohibition of cruel and unusual punishment requires individualized sentencing

for the application of statutory mandatory minimum sentences for juvenile

offenders. Six days after Lyle was decided, on July 24, 2014, Davis filed a

motion to correct an illegal sentence.

       Davis was resentenced on December 8, 2014.              No witnesses were

presented. An updated PSI was prepared and provided to the court and counsel.

After hearing statements from the Assistant County Attorney, from defense
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counsel, and from Davis himself, the district court had the following to say about

its decision to reimpose the original sentence:

               Well, Mr. Davis, I take my responsibilities in these
      proceedings, and we’re seeing a number of situations like yours in
      light of the appellate court cases which have recently come down,
      and I had one of these hearings just last week, and I eliminated the
      mandatory minimum sentence in that case for a youthful offender. I
      am familiar with the criteria we need to look at in making
      resentencing decisions, and I’ve reviewed all of that as it applies to
      you and your situation. And you really haven’t done near as well
      rehabilitating yourself as the individual that I resentenced last week.
               And, also, you bring with you a little bit different situation.
      That was a second-degree robbery also, but the underlying
      circumstances of the offense were more mitigating in his situation.
      Yours, yours are more aggravating. His was also pled down from a
      first degree robbery to a second-degree robbery. In your case,
      also, the danger that you posed at that time to the community was
      very great, particularly in light of the fact that you had the very
      serious willful injury, the shooting incident as well as another very
      violent offence with a robbery in the second degree.
               You bargained for the sentence, the opportunity to plead to a
      lesser charge, the robbery second, and you bargained for the ten-
      year sentence being run at the same time as the willful injury. I
      sentenced you on that case, and I provided that this run at the
      same time as the willful injury case. And one of the reasons that I
      did that was because of your age. I took that into consideration
      when I sentenced you the first time around. I took a lot of the same
      things then that I’m taking into consideration right now: prospects of
      you rehabilitation, your history, your character, your needs and the
      needs of society.
               I do recognize that you were a young individual at the time
      you committed this offense, but I take a look at your juvenile court
      history. You were under juvenile court supervision for a number of
      years, and there were a lot of good people spending a lot of time
      with you trying to get you to figure things out and trying to
      rehabilitate you and help you out and get you to understand that
      you don’t want to live your life that way. So it’s not like this was the
      first offense, your first brush with things, and it’s not like this was
      your first opportunity to have people work with you and try to get
      you to figure out how to be productive and law abiding and
      someone who’s not a danger to this community, and yet you chose
      to go a different direction.
               The disciplinary reports, also, that you’ve received while in
      jail and while in prison are significant, because you had every
      opportunity to demonstrate, and every incentive to demonstrate that
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         you’re capable of being able to comply with the rules and
         regulations. When you’re out and about in society, you have to do
         the same thing. You have to demonstrate that you’re capable of
         abiding by rules and regulations, and you’re not showing us here
         that you’re ready to do that.
                 There are some encouraging things that you’ve
         accomplished since you’ve been in prison. You’ve obtained your
         GED. You’re employed, you’re working, and you still have that job,
         so that tells me that you’re being responsible about the job that you
         were doing. And you’ve also completed some of the requirements
         of special services that have been afforded to you, so that works in
         your favor. And I’ve considered that. And I’ve considered your
         disability, also. I’m aware of that condition. I was aware of that a
         number of years ago, also, when I sentenced you.
                 Upon consideration of all those factors, I remain convinced
         that the sentence which was originally imposed is an appropriate
         sentence, notwithstanding the fact that you committed this offense
         while you were a juvenile, but for the reasons I have set forth here
         today, I continue to be convinced that the sentence originally
         imposed is an appropriate sentence, and your motion to have me
         not impose the 70 percent minimum on the ten-year sentence is
         accordingly overruled.

Davis now appeals.

   II. Standard of Review

         As a general rule, we review a district court’s sentencing decisions for an

abuse of discretion.     See State v. Formaro, 638 N.W.2d 720, 724–25 (Iowa

2002).     However, when the defendant challenges the constitutionality of a

sentence, our review is de novo. State v. Seats, 865 N.W.2d 545, 553 (Iowa

2015).

   III. Analysis

         The Iowa Supreme Court did not hold in Lyle that district courts are

prohibited in all cases from imposing minimum sentences for juvenile offenders.

It merely held that a district court must “at least consider a sentencing option

other than mandatory minimum imprisonment,” taking into account youth and its
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attendant circumstances as a mitigating factor. Lyle, 854 N.W.2d at 403–04.

The Lyle court was extremely specific about the procedures a district court must

follow on resentencing in a case just like the one now before us:

               To avoid any uncertainty about the parameters of the
       resentencing hearing and the role of the district court on
       resentencing, we reiterate that the specific constitutional challenge
       raised on appeal and addressed in this opinion concerns the
       statutory imposition of a minimum period of incarceration without
       parole equal to seventy percent of the mandatory sentence. The
       holding in this case does not address the mandatory sentence of
       incarceration imposed under the statutory sentencing schema or
       any other issues relating to the sentencing schema. Under article I,
       section 17 of the Iowa Constitution, the portion of the statutory
       sentencing schema requiring a juvenile to serve seventy percent of
       the period of incarceration before parole eligibility may not be
       imposed without a prior determination by the district court that the
       minimum period of incarceration without parole is warranted under
       the factors identified in Miller and further explained in Null. The
       factors to be used by the district court to make this determination
       on resentencing include: (1) the age of the offender and the
       features of youthful behavior, such as “immaturity, impetuosity, and
       failure to appreciate risks and consequences”; (2) the particular
       “family and home environment” that surround the youth; (3) the
       circumstances of the particular crime and all circumstances relating
       to youth that may have played a role in the commission of the
       crime; (4) the challenges for youthful offenders in navigating
       through the criminal process; and (5) the possibility of rehabilitation
       and the capacity for change. See Miller, 567 U.S. at       , 132 S. Ct.
       at 2468, 183 L. Ed. 2d at 424; Null, 836 N.W.2d at 74–75; see also
       Pearson, 836 N.W.2d at 95–96; Ragland, 836 N.W.2d at 115 n.6.
               In order to address the issue raised in this appeal, the district
       court shall conduct a hearing in the presence of the defendant and
       decide, after considering all the relevant factors and facts of the
       case, whether or not the seventy percent mandatory minimum
       period of incarceration without parole is warranted as a term of
       sentencing in the case. If the mandatory minimum sentence is not
       warranted, the district court shall resentence the defendant by
       imposing a condition that the defendant be eligible for parole. If the
       mandatory minimum period of incarceration is warranted, the
       district court shall impose the sentence provided for under the
       statute, as previously imposed.

Id. at 404 n.10.
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       Lyle serves as clear instruction both that a district court must consider at

least all of the enumerated factors prior to reimposing a minimum period of

incarceration upon a juvenile offender, and that the factors are to be considered

as mitigating factors only. See State v. Hajtic, No. 15-0404, 2015 WL 6508691,

at *2 (Iowa Ct. App. Oct. 28, 2015). Failure to consider even a single of the

factors merits reversal. Id. (“First, the district court failed to consider the fourth

factor (‘the challenges for youthful offenders in navigating through the criminal

process’) during the sentencing hearing. This was error and requires reversal.”).

So too does improper use of any of the enumerated factors as aggravating,

rather than mitigating, factors.    Id. (“Second, the district court impermissibly

treated at least one of the other factors as an aggravating circumstance rather

than a mitigating circumstance. . . . It is clear the court considered [the

defendant’s] advanced age as an aggravating factor.            Controlling case law

provides this was error.”).

       In this case, while the court’s assurance to Davis that it was “familiar with

the criteria we need to look at in making resentencing decisions, and [had]

reviewed all of that as it applies to [Davis] and [his] situation,” may have been

meant to convey that it had engaged in off-the-record contemplation of each of

the enumerated factors, such generality is not sufficient under Lyle. 854 N.W.2d

at 402 n.8. See also Null, 836 N.W.2d at 74 (explaining that Miller requires

“more than a generalized notion of taking age into consideration as a factor in

sentencing”). The district court did generally consider the fact that Davis was a

juvenile when the crime occurred as a mitigating factor, but that only goes to the
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first factor (“the age of the offender and the features of youthful behavior, such as

‘immaturity, impetuosity, and failure to appreciate risks and consequences’”).

       The district court failed to mention explicitly the second factor (“the

particular ‘family and home environment’ that surround the youth”), except to

acknowledge his learning disability resulting from a childhood accident.         The

updated PSI provided to the court included relevant information that could have

been considered as mitigating. Davis’s father, who had thirteen children, was

largely absent from his life. In his father’s absence, Davis was raised by his

mother and a brother.     His mother had four children besides Davis and had

multiple personal issues—arrests for forgery and drug possession, a history of

crack cocaine abuse, and mental health problems—that put all five children in

danger of abuse. The brother who primarily cared for Davis had arrests for drug

possession and delivery, domestic abuse, interference with official acts, and

driving while barred. The district court made no mention of Davis’s negative

family and home environment. Nor was this information raised by either counsel

at the resentencing.

       The district court also failed to properly consider the third factor (“the

circumstances of the particular crime and all circumstances relating to youth that

may have played a role in the commission of the crime”). The court merely

stated that the circumstances of Davis’s robbery were “more aggravating” than

those of another juvenile offender’s robbery. It failed to address what part, if any,

Davis’s youth played in his commission of the crime. For example, although the

robbery was committed by three individuals, the court did not consider that Davis

participated as a result of his youthful susceptibility to peer pressure despite case
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law suggesting that peer pressure is precisely the type of youthful circumstance

that should be taken into account. See Lyle, 854 N.W.2d at 402 n.8 (citing an

alternate phrasing of the third factor from Ragland, which explicitly listed “the way

familial and peer pressures may have affected [the youth]” as a necessary

consideration); Null, 836 N.W.2d at 61 (discussing the United States Supreme

Court’s statement that youth “are more vulnerable or susceptible to negative

influences and outside pressures, including peer pressure”).

         The district court considered the fourth factor (“the challenges for youthful

offenders in navigating through the criminal process”) by describing Davis’s

lengthy experience in juvenile court and the services provided to him there. The

court also described Davis’s past experience in the juvenile justice system in

suggesting that Davis failed to successfully navigate himself out of the criminal

justice system at an earlier point. But nowhere did it acknowledge as a mitigating

factor that Davis’s youthfulness may have affected his experience with the

criminal justice system, except to discuss the context in which the robbery

occurred, which included another violent crime committed in the same time

frame.

         Finally, while we make no judgement as to the sufficiency of the district

court’s consideration of the fifth factor (“the possibility of rehabilitation and the

capacity for change”) given that our findings regarding the second, third, and

fourth factors already require reversal, we do feel compelled to highlight the

potential catch-22 that a district court faces at a resentencing hearing such as

this one.     When a district court resentences a criminal defendant after the

passage of time has revealed a negative response to an opportunity for
                                          11


rehabilitation, it seems a logical impossibility to both accurately describe what

has actually transpired and also address the young defendant as a juvenile with

an unknown but mitigating capacity for change.              Here, the district court

considered the possibility of rehabilitation as a mitigating factor at Davis’s original

sentencing hearing.     Then, at resentencing, the district court went into some

detail regarding Davis’s prospects of rehabilitation based upon what had actually

occurred to date.     It noted his positive accomplishments while in prison—

obtaining a GED and remaining employed—as mitigating factors. However, it

also seems to have viewed negative aspects of Davis’s rehabilitative efforts since

sentencing—reports of disciplinary problems while in jail and prison—as

aggravating factors militating against a more lenient sentence. To the extent that

Lyle and other controlling case law requires a judge to consider the abstract

possibility of rehabilitation as a mitigating factor without allowing for consideration

of actual historical events, the juvenile resentencing process established in Lyle

would seem to require optimism that may no longer be realistic or appropriate

years after the initial sentence was imposed.

       On our de novo review, we find the district court failed to consider all of

the mitigating factors enumerated in Lyle. The explicit and detailed resentencing

procedures of Lyle do not allow a district court to satisfy its duties on

resentencing with only a generalized discussion of the mitigating factors of the

circumstances of the crime and the effects of immaturity on the defendant’s

actions. We are thus compelled to vacate Davis’s sentence and remand this

matter for resentencing before a different judge.
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      Having already determined that Davis’s sentence must be vacated and

remanded to the district court for resentencing, we need not address Davis’s

remaining arguments.

      SENTENCE VACATED AND REMANDED FOR RESENTENCING.
