                    IN THE COURT OF APPEALS OF IOWA

                                   No. 18-0988
                              Filed October 9, 2019


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

EDDY SHAMI MULIGANDE,
     Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Story County, Steven P. Van Marel,

District Associate Judge.



      Eddy Shami Muligande appeals his sentence for two charges of public

intoxication, second offense. AFFIRMED.



      John L. Dirks of Dirks Law Firm, Ames, for appellant.

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

Attorney General, for appellee.



      Considered by Potterfield, P.J., and Doyle and May, JJ.
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MAY, Judge.

       Eddy Shami Muligande pled guilty to two charges of public intoxication,

second offense. Each violation was a serious misdemeanor under Iowa Code

sections 123.46(2) and 123.91 (2018).        For each violation, the district court

imposed a one-year term of confinement.            The court ran the sentences

consecutively for a total indeterminate term not to exceed two years.

       Muligande argues “his sentence of two years for two counts of public

intoxication with a prior conviction” violates the prohibitions of cruel and unusual

punishment found in the Eighth Amendment to the U.S. Constitution and article I,

section 17 of the Iowa Constitution. This is true, Muligande argues, because his

prison sentence is “grossly disproportionate” to his crimes. We disagree.

       We review an allegedly unconstitutional sentence de novo.            State v.

Richardson, 890 N.W.2d 609, 614 (Iowa 2017). Our review begins with the words

of our constitutions. The Eighth Amendment of the United States Constitution

reads: “Excessive bail shall not be required, nor excessive fines be imposed, nor

cruel and unusual punishments inflicted.”       Article I, section 17 of the Iowa

Constitution reads: “Excessive bail shall not be required; excessive fines shall not

be imposed, and cruel and unusual punishment shall not be inflicted.”

       Neither clause “contain[s] a proportionality provision.”    See Crawley v.

State, No. 15-1812, 2017 WL 108298, at *3 (Iowa Ct. App. Jan. 11, 2017)

(McDonald, J., concurring specially) (citing State v. Bruegger, 773 N.W.2d 862,

873 (Iowa 2009)). Moreover,

       [a]s Justice Thomas noted with respect to the . . . Eighth Amendment
       to the Federal Constitution:
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              “[T]he Cruel and Unusual Punishments Clause was
              originally understood as prohibiting torturous methods
              of punishment—specifically methods akin to those that
              had been considered cruel and unusual at the time the
              Bill of Rights was adopted.” The clause does not
              contain a “proportionality principle.” In short, it does
              not authorize courts to invalidate any punishment they
              deem disproportionate to the severity of the crime or to
              a particular class of offenders. Instead, the clause
              “leaves the unavoidably moral question of who
              ‘deserves’ a particular nonprohibited method of
              punishment to the judgment of the legislatures that
              authorize the penalty.”

Id. (quoting Miller v. Alabama, 567 U.S. 460, 503–04 (2012) (Thomas, J.,

dissenting)); see, e.g., In re Kemmler, 136 U.S. 436, 446 (1890) (noting “cruel and

unusual punishment” encompasses barbarous types of punishment, such “as

burning at the stake, crucifixion[,] breaking on the wheel, or the like”).

       The parties agree, however, that binding precedent requires this court to

conduct a proportionality review. As our supreme court recently explained in State

v. Wickes, “[w]e use a three-part test to determine whether a sentence is ‘grossly

disproportionate’ under the Cruel and Unusual Punishment Clauses of the State

and Federal Constitutions.” 910 N.W.2d 554, 572 (Iowa 2018) (citation omitted).

       “The first part is a threshold inquiry examining ‘whether the sentence being

reviewed is “grossly disproportionate” to the underlying crime,’ which ‘involves a

balancing of the gravity of the crime against the severity of the sentence.’” Id.

(citation omitted). “No further analysis is required if the sentence being reviewed

does not raise an inference of gross disproportionality.” Id. “If the threshold test

is met, we partake in the second step, which requires us to engage in an

intrajurisdictional analysis to compare the challenged sentence to sentences of

other crimes within our jurisdiction.” Id. “Under the third step, we engage in an
                                         4


interjurisdictional review and examine the sentences for similar crimes in other

jurisdictions.” Id.

       As we apply this test, we always bear in mind the “substantial deference”

owed “to the penalties the legislature has established for various crimes.” Id. We

always remember that sentencing statutes “are cloaked with a presumption of

constitutionality.” State v. Wade, 757 N.W.2d 618, 622 (Iowa 2008) (citation

omitted).   “We do not sit as a ‘superlegislature’ to second-guess [the] policy

choices” embodied in those statutes. Ewing v. California, 538 U.S. 11, 28 (2003).

       It is, therefore, “rare that a sentence will be so grossly disproportionate to

the crime as to satisfy the threshold inquiry and warrant further review.” Wickes,

910 N.W.2d at 573 (citation omitted). “While a sentence to a term of years might

be so lengthy as to violate the Cruel and Unusual Punishment Clause, such an

occurrence outside the context of capital punishment has been ‘exceedingly rare.’”

Bruegger, 773 N.W.2d at 873 (citation omitted).

       So we begin by considering the “gravity” of Muligande’s crimes. Wickes,

910 N.W.2d at 572. Although public intoxication may not be rare, we cannot say

it is innocuous. It creates significant dangers both for offenders and those whom

they encounter. As we said in State v. Gear, “[t]he State has a strong interest in

protecting its inhabitants against intoxicated persons who harass other citizens and

do violence both to themselves and to others.” No. 08-1620, 2009 WL 3086587,

at *5 (Iowa Ct. App. Sept. 17, 2009). This interest is magnified when dealing with

repeat offenders like Muligande. “Recidivism has long been recognized as a

legitimate basis for increased punishment” because, among other things, the State
                                          5

has “a valid interest in deterring and segregating habitual criminals.” Ewing, 538

U.S. at 25 (citation omitted).

       We next consider the “severity” of Muligande’s punishment. Wickes, 910

N.W.2d at 572. We do not find his sentence to be “so lengthy” as to raise

constitutional concerns. Bruegger, 773 N.W.2d at 873. Also, it bears emphasis

that Muligande did not receive a flat sentence. Rather, he was sentenced to an

indeterminate term with no mandatory minimum. This means he is immediately

eligible for parole. See State v. Propps, 897 N.W.2d 91, 101 (Iowa 2017). His

“behavior in prison” will have an impact on when parole will be available. See id.

       In short, we find “the severity of the sentence” imposed on Muligande is not

“grossly disproportionate” to the “gravity” of his crimes. Wickes, 910 N.W.2d at

572. “No further analysis is required.” Id.

       We conclude Muligande’s sentence does not violate the Eighth Amendment

to the U.S. Constitution or article I, section 17 of the Iowa Constitution. We affirm.

       AFFIRMED.

       Potterfield, P.J., concurs; Doyle, J., concurs specially.
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DOYLE, Judge (concurring specially)

       Although the record clearly shows Muligande is no Otis Campbell, 1 two

years’ imprisonment for public intoxication is stunning. Iowa may have had some

of the toughest public intoxication laws and harshest penalties among all states, 2

but those are public-policy decisions for the legislature to make.           “[W]e owe

substantial deference to the penalties the legislature has established for various

crimes.” State v. Harrison, 914 N.W.2d 178, 204 (Iowa 2018) (quoting State v.

Oliver, 812 N.W.2d 636, 650 (Iowa 2012)). The majority has the law right and I am

duty-bound to concur.




1
  Mayberry’s affable town drunk who appeared in episodes of CBS’s TV sitcom The Andy
Griffith Show from 1960 to 1967.
2
  I note that second and subsequent public intoxication offenses are no longer subject to
the increased penalties. Section 123.91 was recently amended to except public
intoxication convictions from increased penalties for second and subsequent alcohol
related convictions. See 2019 Iowa Acts ch. 140, § 42. At the time Muligande was
convicted section 123.91 (2018) provided that a second public-intoxication conviction was
a serious misdemeanor subject to imprisonment not to exceed one year under section
903.1(1)(b). A third or subsequent conviction was an aggravated misdemeanor subject to
imprisonment not to exceed two years under section 903.1(2). After July 1, 2019, a public
intoxication offense, whether first, second, or subsequent, is a simple misdemeanor
subject to imprisonment not to exceed thirty days. Iowa Code §§ 123.46(2), 903.1(1)(a)
(Supp. 2019).
