                    IN THE COURT OF APPEALS OF IOWA

                                   No. 16-2174
                             Filed January 10, 2018


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

DENEM NULL,
     Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Linn County, Ian K. Thornhill, Judge.



      Denem Null appeals the sentences imposed on his convictions for crimes

he committed as a juvenile. AFFIRMED.



      Mark C. Meyer, Cedar Rapids, for appellant.

      Thomas J. Miller, Attorney General, and Louis S. Sloven, Assistant Attorney

General, for appellee.



      Heard by Danilson, C.J., and Doyle and Mullins, JJ.
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DOYLE, Judge.

       Denem Null appeals following a second resentencing for crimes he

committed as a juvenile. He argues the district court failed to adequately state its

reasons for imposing consecutive sentences. He also claims Iowa Code section

902.4 (2009) is unconstitutional as applied to him.

       I. Background Facts and Proceedings.

       Null was sixteen years old when he shot and killed Kevin Bell during a

robbery. After he entered guilty pleas, district court sentenced Null to a fifty-year

term of incarceration for second-degree murder and a twenty-five-year term for

first-degree robbery.    Each sentence carried a seventy-percent mandatory

minimum term.       The district court ordered Null to serve the sentences

consecutively.

       On direct appeal from his convictions and sentences, Null claimed the

mandatory minimum sentence he was required to serve—in excess of fifty years—

amounted to a de facto life sentence, thereby violating federal and state

constitutional protections against cruel and unusual punishment. See, e.g., Miller

v. Alabama, 567 U.S. 460, 479 (2012) (holding sentencing schemes that mandate

life in prison without possibility of parole for juvenile offenders who commit

homicide offenses unconstitutional under the Eighth Amendment). Our supreme

court held that juvenile offenders facing mandatory minimum prison terms of more

than fifty years are entitled to an individualized sentencing hearing to determine

their parole eligibility. State v. Null (Null I), 836 N.W.2d 41, 70-71 (Iowa 2013).

The court noted specific considerations the district court must contemplate in

sentencing these juvenile offenders, such as the difference in culpability between
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children and adults, their increased ability to change, and that lengthy prison

sentences without the possibility of parole are only appropriate “in rare or

uncommon cases.” Id. at 74-75. The court vacated Null’s sentence and remanded

the case to the district court for individualized resentencing, ordering the court to

consider whether the imposition of consecutive sentences would result in a prison

term so lengthy it violates the Iowa Constitution’s protections against cruel and

unusual punishment. Id. at 76-77.

       The district court held a resentencing hearing on remand. In its written

order, the court summarized the evidence presented at the resentencing hearing:

               [Null] is currently 23 years old, but was 16 years, 10 months,
       and 14 days old at the time he shot and killed Kevin Bell. [Null] had
       a rough childhood. His parents were never married and his father
       left when [Null] was four (4) years old. [Null] has two younger half-
       siblings. [Null] was primarily raised by his mother, who has a history
       of drug and alcohol abuse. [Null]’s mother also worked as a stripper
       and prostitute. Throughout the course of his childhood, [Null]’s
       mother brought several of her “boyfriends” into [Null]’s life. Many of
       these boyfriends were physically abusive to [Null] and [Null]’s
       mother. Both grandmothers described [Null]’s childhood as difficult
       and characterized him as being torn between his mother and his
       father. [Null] did spend periods of time in his father’s care. Several
       Juvenile Court and DHS services were provided to [Null] throughout
       his childhood. These interventions are thoroughly summarized in the
       [presentence investigation report] and [Null]’s Addendum to
       Sentencing Memorandum filed under seal. While in residential
       treatment from January 2008 to January 2009, [Null] was sexually
       abused by a female staff member.
               [Null] presented evidence of a history of mental illness in his
       family, including his own, mostly untreated, mental health issues.
       [Null] did receive some mental health treatment at age five (5),
       however, his mother would not allow him to take medication as
       prescribed.
               While incarcerated, [Null] has taken advantage of the
       programs offered to him, including the completion of his GED. [Null]
       is also taking college courses and has taken advantage of job
       opportunities in prison. He has had some discipline problems during
       his incarceration and transition from county jail to prison, but these
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       incidents were minor. The Court also received evidence of [Null]’s
       artistic talents.
               [Null] testified at the resentencing hearing. In addition to
       recounting the difficulties with his childhood and the circumstances
       of his crimes, [Null] described how his incarceration and his
       continued maturity have affected his attitude. Unlike his original
       sentencing hearing, [Null] displayed remorse for his crime. He also
       acknowledged he needs additional treatment and services, some of
       which are not available to him in prison at this time due to the
       structure and length of his prison sentence. [Null] also stated he is
       not currently on any medication.
               [Null]’s mitigation specialist, Ms. Wilson, gave several
       opinions on how [Null]’s personal characteristics and the
       circumstances of his life should reduce the amount of punishment
       imposed by the Court. Ms. Wilson opined that instability in [Null]’s
       life has made him more susceptible to negative influences. She also
       opined that the circumstances of his youth have inhibited his ability
       to succeed in life and that only now, through the structure of the
       department of corrections, has [Null] been able to display his
       potential. Ms. Wilson testified that [Null]’s early use of drugs,
       specifically marijuana, negatively affected his cognitive abilities and
       was extremely harmful to him. Ms. Wilson also pointed to the fact
       that [Null] is of “mixed-race” and that this has caused him to have
       “identity confusion.”

       Analyzing the factors set out by the supreme court in Null I, the district court

determined that, although Null was a minor at the time he committed his crimes

and possessed the “immaturity and impetuosity” of the average adolescent male,

his juvenile disciplinary history led Null to have “a heightened sense of the risks

and consequences of his actions as compared to the average nearly 17-year-old

male.” The court then noted Null’s “difficult, tragic” home life created Null’s attitude

that he was “destined” to be a criminal and “was a significant contributing factor”

leading to the commission of his crimes. The court observed that Null’s “demeanor

and attitude were significantly less defeatist at the resentencing hearing.”

However, the court stated that nothing at the resentencing hearing changed its

perception “of the heinous nature of the crimes” Null committed or his significant
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role in the conduct. Despite his “poor track record as a juvenile and the heinous

nature” of his crimes, the court found Null “has the potential to be rehabilitated” if

provided “the right environment, support, and treatment,” and noted Null’s artistic

talent “can be fostered as part of treatment and rehabilitation.” The court then

resentenced Null to the same sentences—a fifty-year term of incarceration on the

murder conviction and a twenty-five-year term on the burglary conviction—but

found that imposing a mandatory minimum sentence of any kind was unwarranted.

The court also ordered the sentences run consecutively.

       Null appealed the resentencing order, arguing imposition of the consecutive

sentences was an abuse of discretion and cruel and unusual punishment, in

violation of the Iowa Constitution. State v. Null (Null II), No. 15-0833, 2016 WL

4384614, at *1 (Iowa Ct. App. Aug. 17, 2016).             This court rejected Null’s

arguments. Id. at *3 We recognized that, “although the court ordered consecutive

sentences, it also ordered Null not be subject to any minimum term before

becoming eligible for parole,” providing Null a meaningful opportunity to obtain

release and demonstrating that Null received an individual sentencing hearing as

is constitutionally required. See id.; Null I, 836 N.W.2d at 71. However, after Null

was resentenced, “our supreme court overruled precedent which allowed us to

affirm a district court’s decision to run sentences consecutively as part of an overall

sentencing plan.” Null II, 2016 WL 4384614, at *3 (citing State v. Hill, 878 N.W.2d

269, 275 (Iowa 2016)). Because the district court failed to provide an adequate

explanation for imposing consecutive sentences, we vacated that portion of Null’s

sentence and remanded to the district court to “determine whether the sentences

should run consecutive or concurrent and provide reasons for its decision.” Id.
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       The district court held another resentencing hearing on remand.          Null

presented additional evidence concerning the unavailability of some rehabilitative

options in prison. After considering that evidence and restating its findings from

its two prior sentencing orders, the court again imposed consecutive sentences.

Null then filed this, his third, appeal.

       II. Standard of Review.

       We apply one of three standards of review to a sentencing challenge,

depending on the nature of the challenge. See State v. Seats, 865 N.W.2d 545,

552 (Iowa 2015). We review a sentence that is within the statutory limits for an

abuse of discretion. See id. When the court imposes a sentence that is not

authorized by statute, our review is for correction of errors at law. See id. at 553.

We review challenges to the constitutionality of a sentence de novo. See id.

       III. Discussion.

       Null asserts two claims in this appeal: (1) the district court abused its

discretion in imposing consecutive sentences and (2) Iowa Code section 902.4 is

unconstitutional as applied to him.

       A. Consecutive Sentences.

       Null asserts the district court abused its discretion in imposing consecutive

sentences in two respects. First, he claims the facts of his case do not warrant

imposition of consecutive sentences. Second, he claims the district court failed to

consider the way his sentence would be implemented when it imposed consecutive

sentences.

       The sole purpose for remand following this court’s decision in Null II was for

the trial court to “determine whether [Null’s] sentences should run consecutive or
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concurrent and provide reasons for its decision.”        2016 WL 4384614, at *3.

Following that resentencing hearing, the court quoted the reasons it provided for

imposing Null’s original sentence in 2011. The court then considered the new

evidence Null provided during the resentencing hearing and stated:

       [N]one of what I hear today changes my assessment, my original
       assessment and my original reasons for imposing consecutive
       sentences. I feel that consecutive sentences are appropriate in this
       case for all the reasons I stated . . . on June 10th of 2011, for all of
       the reasons that are stated in the April 17, 2015 resentencing order,
       and again, for the reasons that I said on the record back then and
       state now, that the nature and circumstances of the offense and the
       history and characteristics of the defendant, including his age, all the
       Miller factors, his prior juvenile conduct that I referenced, the
       recommendations that were in the presentence report originally, the
       recommendations that I’ve heard from counsel here today and at
       prior hearings, and . . . the offense conduct, all of that, and as well
       as the opportunity and I think the ability for the defendant to be
       rehabilitated, all that taken together warrants imposition of
       consecutive sentences.

       On appeal, Null complains that the court only provided “general

observations” and “cited nothing specific” justifying the imposition of consecutive

sentences. We disagree. The court imposed consecutive sentences for the same

reasons it had cited in determining terms of incarceration were appropriate. This

practice is permissible as long as the sentencing court explicitly states its reasons.

See Hill, 878 N.W.2d at 275.          The district court’s reasoning is not rendered

insufficient by summarizing those reasons rather than restating them in great

detail; the court’s reasons need only be sufficiently detailed to allow us to review

the sentencing court’s exercise of its discretion. See State v. Thacker, 862 N.W.2d

402, 408 (Iowa 2015). The overall record here is sufficient to allow us to review

the court’s exercise of discretion.
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       We then review the reasons the district court provided for imposing

consecutive sentences to determine whether the court abused its discretion. An

abuse of discretion will be found only if the district court’s ruling rests on clearly

untenable or unreasonable grounds. See Willard v. State, 893 N.W.2d 52, 58

(Iowa 2017). A ground or reason is untenable if it is based on an erroneous

application of law. See id. In imposing consecutive sentences, the court relied on

pertinent matters such as “the nature of the offense, the attending circumstances,

the defendant’s age, character, and propensities or chances for reform,” State v.

Johnson, 476 N.W.2d 330, 335 (Iowa 2015), along with the factors required for

individualized sentencing as set out in Null I, 836 N.W.2d at 76-77.

       Null disagrees with the district court’s conclusions based on the facts of his

case and argues it failed to properly weigh the sentencing factors. However, his

disagreement with the sentences imposed does not equate to an abuse of

discretion. See State v. Pena, No. 15-0988, 2016 WL 1133807, at *1 (Iowa Ct.

App. Mar. 23, 2016) (“[M]ere disagreement with the sentence imposed, without

more, is insufficient to establish an abuse of discretion.”).

       Null also asserts the district court failed to take into account the practical

effect the imposition of consecutive sentences would have in the amount of time

he serves. He testified that the Iowa Department of Corrections (IDOC) will only

provide him the treatment he needs for parole when he is within seven years of his

discharge date.     He argues that even though the district court waived the

mandatory minimum sentences, he is only “theoretically eligible” for parole at the

present time while serving a “de facto” minimum sentence based on the IDOC’s

policies.
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       Our supreme court has noted “that immediate eligibility for parole is not the

same as immediately coming before the parole board for review.” State v. Propps,

897 N.W.2d 91, 101 (Iowa 2017). Although the parole board must review the

status of individuals eligible for parole on an annual basis, “in our juvenile

sentencing cases, we have never required that release on parole be immediate.”

Id. Instead, in those cases where the sentencing court exercises its discretion to

determine a juvenile defendant should be eligible for parole, the juvenile defendant

“must be given a realistic and meaningful opportunity to demonstrate maturity and

rehabilitation.” Id. at 102-03. Null’s immediate eligibility for parole comports with

constitutional requirements:

       Because an indeterminate sentence allows for immediate eligibility
       for parole, a juvenile is able to demonstrate to the parole board
       whether he or she appreciated the harm done and utilized the options
       available for reform. If rehabilitation has not yet occurred, the parole
       board may make the decision to continue incarceration until the
       juvenile has demonstrated through his or her own actions the ability
       to appreciate the severity of the crime. This is consistent with the
       approach of our prior holdings in the area of juvenile sentencing,
       because it allows for a realistic and meaningful opportunity for parole
       upon the juvenile’s demonstration of maturity and rehabilitation.

Id. at 102.

       Because the district court provided adequate reasons for imposing

consecutive sentences and did not abuse its discretion in doing so, we reject Null’s

claims.
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       B. Iowa Code section 902.4.

       Null also argues the imposition of a one-year limit on when the court may

reconsider a juvenile offender’s felony sentence set forth in Iowa Code section

902.41 is unconstitutional as applied to the facts and circumstances of his case.

However, Null never raised this claim in the district. As a result, we will not

consider this claim for the first time on appeal. See State v. Derby, 800 N.W.2d

52, 60 (Iowa 2011) (stating issues not raised before the district court—even

constitutional issues—cannot be raised for the first time on appeal).

       We affirm Null’s sentence.

       AFFIRMED.




1
  This section states in relevant part:
                For a period of one year from the date when a person convicted of
        a felony, other than a class “A” or class “B” felony, begins to serve a
        sentence of confinement, the court, on its own motion or on the
        recommendation of the director of the Iowa department of corrections, may
        order the person to be returned to the court, at which time the court may
        review its previous action and reaffirm it or substitute for it any sentence
        permitted by law.
Iowa Code § 902.4.
