                  IN THE SUPREME COURT OF IOWA
                              No. 15–0829

                         Filed October 27, 2017


STATE OF IOWA,

      Appellee,

vs.

KHASIF RASHEED WHITE,

      Appellant.



      On review from the Iowa Court of Appeals.



      Appeal from the Iowa District Court for Polk County, Jeffrey D.

Farrell, Judge.



      Appellant challenges imposition of minimum term of incarceration

without eligibility for parole following a resentencing hearing. DECISION

OF COURT OF APPEALS VACATED; DISTRICT COURT JUDGMENT

REVERSED AND REMANDED.



      Jane M. White of Jane White Law Office, Des Moines, for appellant.



      Thomas J. Miller, Attorney General, Timothy M. Hau, Assistant

Attorney General, John Sarcone, County Attorney, and James Ward,

Assistant County Attorney, for appellee.
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CADY, Chief Justice.

      In this case, we must decide if the hearing conducted by the

district court to determine if a juvenile offender should be sentenced to a

minimum term of incarceration without eligibility for parole complied

with constitutional safeguards. We conclude it did not. We vacate the

decision of the court of appeals, reverse the sentence of the district court,

and remand for resentencing.

      I. Background Facts and Proceedings.

      Khasif White was convicted and sentenced for three separate

crimes of robbery in the second degree. The crimes were committed over

a period of seven months, while White was seventeen years old. The first

crime occurred on August 1, 2009.         White shoplifted a bottle of liquor

from a grocery store and assaulted a store employee who attempted to

detain him. The second crime occurred on September 12, 2009. White

shoplifted merchandise from a clothing store and assaulted a store

employee who attempted to detain him. The third crime occurred five

months later on February 20, 2010. White assaulted another person and

attempted to take money from him. On each occasion, White was aided

in his crimes by other individuals.

      White was sentenced for his crimes on July 27, 2010. The court

imposed a ten-year term of incarceration for each offense and imposed a

statutory seven-year mandatory minimum period of incarceration

without parole pursuant to Iowa Code section 902.12(5) (2009).           The

court ordered the three sentences to be served concurrently.

      Four years later, the statutory period of incarceration before

eligibility for parole for juveniles was found to be unconstitutional

without an individualized assessment by the district court. See State v.

Lyle, 854 N.W.2d 378, 400–04 (Iowa 2014).         On April 30, 2015, White
                                     3

appeared for resentencing to allow the district court to consider if he

should serve the seven-year period of incarceration before becoming

eligible for parole. White testified at the hearing, as did his mother. The

State introduced a summary of White’s record of disciplinary actions

while in prison.

      The district court concluded White should serve the seven-year

period of incarceration before eligibility for parole. It primarily relied on

two factors.   First, it found that White’s repeated arrests for criminal

behavior as a juvenile revealed he had gained an understanding of the

risks and consequences of his actions.           It reasoned this greater

understanding made him more mature and less impetuous. Second, it

found White’s prison record showed he had not grown more amenable to

rehabilitation while in prison.

      White appealed and raised two claims of error.           First, White

claimed the district court failed to properly consider all relevant

sentencing factors, including his family and home environment. He also

claimed the district court improperly considered the circumstances of his

three arrests as an aggravating factor, instead of as a mitigating factor.

He further argued the district court misused his prison record in

considering his capacity for rehabilitation.

      Second, White claimed the district court had no authority to

impose a minimum period of incarceration without parole under Iowa

Code section 902.12 (2015). He claims the statute is unconstitutional as

applied to juveniles.

      We transferred the case to the court of appeals. It rejected both

claims of error. It concluded the district court properly considered the

relevant sentencing factors. It also concluded the resentencing hearing
                                     4

cured the constitutional infirmity of the mandatory minimum sentencing

under section 902.12. White sought, and we granted, further review.

      II. Standard of Review.

      Our standard of review from a decision by the district court to

impose a period of incarceration without parole on a juvenile is for an

abuse of discretion. State v. Roby, 897 N.W.2d 127, 137–38 (Iowa 2017).

      III. Application of Sentencing Factors.

      We recently elaborated on the role of the district court in

considering the eligibility of the juvenile offender for parole and how the

primary factors relevant to the decision are to be considered at the

sentencing hearing.   Id. at 143–48.     In particular, we emphasized the

important role of expert testimony when applying the relevant factors.

Id. at 145–48. The same scientific evidence responsible for revealing the

constitutional infirmity of mandatory minimum sentencing statutes for

juveniles must continue to inform judges in performing their difficult job

of applying the relevant factors to decide if juveniles should be ineligible

for parole for a minimum period of their incarceration. This testimony

can help to explain juvenile behavior in the context of the relevant factors

and give new understanding of the factors. It may even caution judges

against using past attitudes and reasoning about juvenile crimes when

applying the factors. Under this approach, actual sentencing outcomes

will become better aligned with the purpose and goal of eliminating overly

harsh sentences for juveniles.

      In this case, the critical conclusions drawn by the district court at

the sentencing hearing were not grounded in science but rather based on

generalized attitudes of criminal behavior that may or may not be correct

as applied to juveniles. Juvenile sentencing is now driven in large part

by the development of brain science, and more evidence was needed for
                                     5

the district court to properly conclude White was more mature and less

impetuous because his three arrests gave him a greater appreciation of

the risks and consequences of his actions. Likewise, more evidence was

needed to conclude White’s discipline record in prison made him less

amenable to rehabilitation.

      We recognize the district court in this case did not have the benefit

of Roby at the time of the resentencing hearing. Had the decision been

available, we are confident the district court would have followed a more

rigorous and careful analysis of the relevant sentencing factors.

Nevertheless, an abuse of discretion occurred and White is entitled to be

resentenced under the approach identified in Roby.

      IV. Sentencing Authority of the District Court.

      We reject the claim by White that the district court had no

authority to resentence him under Iowa Code section 902.12. In Lyle, we

found the statute unconstitutional under the cruel and unusual

punishment clause of the Iowa Constitution, but only because the period

of incarceration without parole was imposed without an individualized

hearing. Lyle, 854 N.W.2d at 402–03. Thus, Lyle did not declare the

entire statute unconstitutional, but merely wrote into the statute the

requirement of an individualized assessment hearing.

      V. Conclusion.

      We conclude White is entitled to be resentenced in light of Roby.

Accordingly, we reverse the resentencing order of the district court and

remand the case for resentencing.

      DECISION OF COURT OF APPEALS VACATED; DISTRICT

COURT JUDGMENT REVERSED AND REMANDED.

      Wiggins, Hecht, and Appel, JJ., join this opinion.          Hecht, J.,

separately files a special concurrence. Appel, J., separately files a special
                                    6

concurrence in which Wiggins, J., joins. Mansfield, J., files a dissenting

opinion in which Waterman and Zager, JJ., join.
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                                                #15–0829, State v. White

HECHT, Justice (concurring specially).

      I concur in the court’s determination that Khasif White’s sentence

must be vacated. I again write separately because I have concluded “that

article I, section 17 of the Iowa Constitution prohibits a mandatory term

of incarceration for any offense committed by a juvenile offender.” State

v. Roby, 897 N.W.2d 127, 149 (Iowa 2017) (Hecht, J., concurring

specially).
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                                                   #15–0829, State v. White

APPEL, Justice (concurring specially).

      For the reasons stated in my special concurrence in State v. Roby,

for now I join the court’s opinion.       897 N.W.2d 127, 150 (Iowa 2017)

(Appel, J., concurring).   I reiterate, “If implementation of this decision

proves inconsistent, confusing, difficult, or unworkable, the obvious

solution would be to move to the analysis in [State v.] Sweet, [879

N.W.2d 811 (Iowa 2016),] and categorically eliminate the application of

adult mandatory minimum sentences to juvenile offenders.” Id.

      Wiggins, J., joins this special concurrence.
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                                                  #15–0829, State v. White
MANSFIELD, Justice (dissenting).

      I respectfully dissent.   I would not find that the district court

abused its discretion. As a practical matter, the district court’s April 30,

2015 resentencing order required Mr. White to serve approximately two

more years in prison before becoming eligible for parole. This falls well

within the district court’s “broad discretion” in these matters. See State

v. Roby, 897 N.W.2d 127, 161 (Iowa 2017) (Zager, J., dissenting).

      As noted by the majority, White was convicted of three second-

degree robberies.     The most serious was the third, which White

committed in February 2010 when he was less than two months short of

his eighteenth birthday.     White and two companions waited as an

immigrant who spoke little English cashed a $480 check at a

convenience store. They then followed this man back to his apartment.

While one companion held the man down, White punched and kicked the

man in the face and demanded the money.          Others in the apartment

building apparently heard the commotion and came to the man’s

assistance. White and the companions ran off but were apprehended.

The man suffered visible abrasions on his forehead, nose, and leg as a

result of White’s assault.

      White pled guilty to all three robberies under an agreement that

the parties would recommend concurrent sentences.            Second-degree

robbery carries a ten-year sentence and, at that time, a requirement that

the person serve seventy percent of the sentence before being eligible for

parole.   See Iowa Code § 711.3; id. §§ 902.9(4), .12(5) (2009).      White

received the jointly recommended concurrent sentences in July 2010.

      In September 2014, White filed for resentencing in light of State v.

Lyle, 854 N.W.2d 378 (Iowa 2014). Before his resentencing took place,
                                    10

the district court ordered the department of corrections to provide a

progress report.      The report described White’s “lengthy history of

disciplinary action” including “thirty-two major reports.” Notably, even

as the resentencing proceeding was pending, White incurred three

additional major reports. By then, White was almost twenty-three years

old. He was at offender privilege level 1 (on a 0 to 4 scale) and was not

eligible for a job or any prison programming at that level.

      Reasonable people can debate the appropriateness of the sentence

in this case.       Personally, I am convinced that White would have

committed more crimes if he had not been incarcerated in 2010, but I

question the length of time he has been required to serve. This seems

too severe to me.

      Yet I see no basis for my views to displace those of the district

court. That court clearly considered all the Miller/Ragland factors. Here

are the factors:

      (1) the “chronological age” of the youth and the features of
      youth, including “immaturity, impetuosity, and failure to
      appreciate risks and consequences”; (2) the “family and
      home environment” that surrounded the youth; (3) “the
      circumstances of the . . . offense, including the extent of [the
      youth’s] participation in the conduct and the way familial
      and peer pressures may have affected [the youth]”; (4) the
      “incompetencies associated with youth—for example, [the
      youth’s] inability to deal with police officers or prosecutors
      (including on a plea agreement) or [the youth’s] incapacity to
      assist [the youth’s] own attorneys”; and (5) “the possibility of
      rehabilitation.”

State v. Ragland, 836 N.W.2d 107, 115 n.6 (Iowa 2013) (alterations in

original) (quoting Miller v. Alabama, 567 U.S. 460, 477–78, 132 S. Ct.

2455, 2468 (2012)). And here are some relevant excerpts from what the

court said at the resentencing:

      You had a very experienced public defender assisting you,
      although you were new to the criminal process in the sense
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     of, you know, being in adult court facing felony charges. So I
     appreciate that and I understand that.

           Your family and home environment is something that
     we learned a little bit about today from your mother with
     regard to your father. I think that’s something that the
     higher court wants the court, such as a judge such as
     myself, to consider, because it does have an impact when
     you see . . . someone, in your case father figure, committing
     harmful acts, potential criminal acts, and the way youth
     react to that. We understand it’s not always positive and
     you’re getting leadership in the wrong way.          So I do
     appreciate that.

           ....

           . . . [T]hose three offenses, I think, need to be
     considered more seriously than the instance where there’s
     just the one. That . . . plays directly into factor number
     three, but I think also it plays to factor number one. . . . I
     think the failure to appreciate risk and consequences go
     down as there are additional offenses. If you commit one
     and you do it again and then you do it again, I think as you
     repeated offenses, the appreciation of the risk and
     consequences becomes greater through the additional
     offenses.

           So we get down to five. Possibility of rehabilitation,
     capacity for change.     That’s something that’s really
     important for me. . . .

            Your record isn’t that good. And I appreciate what you
     say and particularly appreciate what your mother said. . . .
     But, you know, a lot of times actions speak louder than
     words. I would understand going to prison at 17 and having
     some problems adjusting, that I would understand. But
     your problems went on from 2010 through 2011 into 2012 to
     the point where you got into this program that sent you over
     to Fort Madison. There you did pretty well. And if that had
     been sustained in total, maybe I would look at it a little
     differently, though it would be tougher.

           Then you got back to Anamosa and you had three
     major reports, including another assault. And the assault,
     you spoke to that, which I appreciate, but the assault is of
     concern.

     Today’s decision holds that what the district court did wasn’t good

enough. The district court not only needed to apply the Miller/Ragland

factors to Mr. White, something it clearly did, but it also needed to
                                     12

ground its application in juvenile brain science as filtered through expert

testimony.     Justice Zager has already thoroughly critiqued this

fundamental redefinition of the Miller/Ragland factors.       See Roby, 897

N.W.2d at 154–57, 161.      I will not restate what he said in his Roby

dissent. I will offer only two additional, hopefully new observations.

      First, the majority confuses the general and the specific. It is one

thing to say that science indicates that the brains of juveniles, in general,

are less developed than those of adults. This was what the United States

Supreme Court concluded in Miller. In the Supreme Court’s view, this

difference justified the elimination of a particularly harsh sentencing

option for juveniles—mandatory life-without-parole. Miller, 567 U.S. at

470–71, 132 S. Ct. at 2464.

      However, it is quite another thing to say it is possible to

scientifically calibrate the sentence of any particular juvenile offender.

This seems to me a fool’s errand given what we know today. Criminal

sentencing may be many things, but it isn’t science.

      To quote one observer who is sympathetic to the recent shift in

juvenile sentencing law:

      We can look at a brain scan of a broad cross-section of
      adolescents and compare that with a brain scan of a broad
      cross-section of adults and see significant differences that
      might well justify substantial legal distinctions. But we
      neither know, nor even could know, where a particular
      adolescent is on the developmental curve.

Paul S. Davies & Peter A. Alces, Neuroscience Changes More than You

Can Think, 2017 U. Ill. J.L. Tech. & Pol’y 141, 155 (2017).

      Reread the five Miller/Ragland factors I’ve quoted above.       These

aren’t matters of science. They are more accurately described as “tools

for weighing juvenile culpability.” That is why no one, until this court in
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Roby, found that they needed to be presented to the sentencing court

through expert testimony.

      I fear that requiring a “scientific” basis for any mandatory

minimum sentence, regardless of the crimes committed or the length of

sentence, is simply a backdoor way of eliminating mandatory minimums.

      Second, the majority continues to focus only on procedure, not

substance. Telling district courts they need to utilize science and expert

testimony in making their findings isn’t helpful until you tell them what

they need to find.    In the context of life-without-parole sentences, the

United States Supreme Court has been clear: no life-without-parole

sentence unless the “crime[] reflects irreparable corruption.” Montgomery

v. Louisiana, 577 U.S. ___, ___, 136 S. Ct. 718, 734 (2016) (quoting Miller,

567 U.S. at 479–80, 132 S. Ct. at 2469).

      Similar clarity regarding the Iowa standard would benefit our

district judges.     Our court has extended Miller to all mandatory

minimums but has yet to say what the substantive standard is. Plainly

it isn’t “irreparable corruption”; we are talking in this case about a seven-

year mandatory minimum.        Still, our court hasn’t told district courts

what that standard is. This isn’t about moving the goal posts. The court

has yet to erect the goal posts.

      Again, I fear the court’s reluctance to provide some description of a

constitutionally adequate mandatory minimum sentence for a juvenile

means we are just on a way station toward eliminating all mandatory

minimums for juveniles.

      For the foregoing reasons, and those set forth in Justice Zager’s

Roby dissent, I would affirm the district court’s resentencing order.

      Waterman and Zager, JJ., join this dissent.
