IN THE SUPREME COURT OF IOWA

No. 14–1174

Filed February 17, 2017

STATE OF IOWA,

Appellee,

vs.

DAIMONAY DARICE RICHARDSON,

Appellant.

On review from the Iowa Court of Appeals.

Appeal from the Iowa District Court for Linn County, Mary E. 

Chicchelly, Judge.

A juvenile convicted of second-degree murder seeks further review 

of a court of appeals decision affirming the district court’s restitution 

order. DECISION OF COURT OF APPEALS AND JUDGMENT AND 

SENTENCE OF DISTRICT COURT AFFIRMED.

Mark C. Smith, State Appellate Defender, Rachel C. Regenold (until 

withdrawal), then Theresa R. Wilson, Assistant Appellate Defender, for 

appellant.

Thomas J. Miller, Attorney General, Martha E. Trout, Assistant 

Attorney General, and Jerry Vander Sanden, County Attorney, for 

appellee.
2

MANSFIELD, Justice.

After pleading guilty to second-degree murder, the defendant was 

ordered to pay $150,000 in mandatory restitution to the estate of the 

victim. See Iowa Code § 910.3B (2013). The defendant was fifteen years 

old at the time of the offense. We are asked to decide whether Iowa law 

authorized the sentencing court to consider the age of the defendant and 

related circumstances before ordering this restitution. If not, we must

determine whether mandatory minimum restitution violates the 

defendant’s rights under article I, section 17 of the Iowa Constitution.

For the reasons discussed herein, we conclude that a recent 

change in Iowa sentencing law does not affect mandatory minimum 

restitution under Iowa Code section 910.3B. We further conclude that 

section 910.3B is not unconstitutional either as applied to all juvenile 

homicide offenders or as applied to this defendant. Accordingly, we 

affirm the judgment and sentence of the district court and the decision of 

the court of appeals.

I. Background Facts and Proceedings.

On June 10, 2013, officers with the Cedar Rapids Police 

Department were dispatched to an apartment complex after tenants and 

maintenance supervisors noticed a foul odor and flies emanating from an 

apartment. Inside the apartment, officers discovered a decomposing 

body later identified as that of Ronald Kunkle. Kunkle had been stabbed 

to death.

During the ensuing investigation, officers learned that the 

defendant, fifteen-year-old Daimonay Richardson, and her nineteen-yearold boyfriend D’Anthony Curd had used Kunkle’s electronic benefit 

transfer (EBT) card to make purchases at a gas station on May 19. 
3

Richardson had been kicked out of her home a few months before1 and 

was residing in another apartment in the same complex. Richardson 

had an arrangement with the tenant of that apartment in which she 

traded babysitting services for permission to stay there and apparently 

for alcohol and drugs. Curd also lived in the same apartment part of the 

time.

On August 19, officers interviewed Richardson regarding Kunkle’s 

death. Richardson eventually confessed that she helped Curd murder 

Kunkle on or about May 18. According to Richardson, Curd had been 

with Kunkle in Kunkle’s apartment that day and said that he saw Kunkle 

with $2000 in cash. Curd then developed a plan for the two of them to 

go back to Kunkle’s apartment, stab Kunkle to death, and take the 

$2000. Curd said to Richardson, “[Y]ou’re going to have to stab him 

first, that way if we get caught, you will get in trouble if you snitch on 

us . . . .”

Curd grabbed two knives out of the butcher block, gave one to 

Richardson, and they went back to Kunkle’s apartment. Richardson had 

her knife in her front pocket; Curd had his in his back pocket.

Inside Kunkle’s apartment, Curd and Kunkle played beer pong for 

about five minutes, at which point Curd signaled to Richardson to stab 

Kunkle. She stabbed Kunkle once in the neck, and after that Curd 

jumped on Kunkle and—in Richardson’s words—“started stabbing him 

everywhere, literally, thigh, legs, stomach, shoulder . . . , 

everywhere . . . .” As Curd was stabbing Kunkle, Richardson also 

stabbed Kunkle two more times. When Kunkle’s body was found, he had 

1Richardson’s mother and stepfather later testified that they were willing to keep 

her in the home, but she chose not to abide by the rules of the household, rendering 

her unwelcome in the family home.

 
4

approximately thirty-seven stab wounds, the great majority of them 

inflicted by Curd. In a subsequent proffer, Richardson said that the 

stabbing was entirely Curd’s plan and “would have never happened” 

otherwise. However, she acknowledged that Curd did not force her to go 

along with his plan.

Once Kunkle was dead, Richardson helped Curd move the body 

and clean up the crime scene. Curd was unsuccessful in finding the

$2000 but retrieved Kunkle’s billfold which contained an EBT card. Both 

Richardson and Curd then returned to the apartment where Richardson 

had been staying. They took showers and changed their clothes. 

Richardson continued to live in that apartment until she was arrested for 

Kunkle’s murder months later. 

Richardson was charged with first-degree murder. See Iowa Code 

§ 707.2. Before trial, Richardson entered into a plea agreement with the 

State. The agreement called for Richardson to give a proffer statement 

and later to testify at Curd’s first-degree murder trial. If the State 

concluded Richardson’s proffer testimony was truthful, she would be 

permitted to plead guilty to aiding and abetting second-degree murder, a 

class “B” felony in violation of Iowa Code section 703.1 and section 

707.3. If the State concluded the proffer statement was not truthful, 

there would be no plea agreement but the statement could not be used in 

the future for any purpose, including impeachment.

Richardson’s proffer interview took place on February 5, 2014, in 

the presence of both of her counsel. The next day, Richardson pled 

guilty to second-degree murder pursuant to the plea agreement. There 

was no agreement between the State and Richardson on sentence. 

Richardson understood that the State would be seeking a fifty-year 

sentence with a mandatory thirty-five years of incarceration. She was 
5

free to advocate for a much more lenient sentence. In the guilty plea 

colloquy, Richardson admitted that she had actively participated with 

Curd in stabbing Kunkle, that Kunkle died as a result of being stabbed, 

and that she had acted with malice aforethought.

A sentencing hearing took place on May 28, May 30, and June 6. 

The presentence investigation report recommended that Richardson be 

sentenced to fifty years in prison. The sentencing hearing revealed that 

Richardson had been raised by her mother as one of several siblings. 

When Richardson was ten, the family moved from the Chicago area to 

Iowa. At the age of thirteen, Richardson was raped. Richardson did not 

tell anyone because she did not trust anyone and did not think they 

would care.

Richardson’s grandmother, with whom Richardson was quite close,

passed away around the same time. Richardson began abusing 

marijuana and alcohol. Richardson’s performance in school deteriorated, 

and she had to repeat seventh grade. In 2012, Richardson became 

increasingly involved with Curd, who was then eighteen and an older and 

somewhat controlling figure in her life. Richardson’s mother and 

stepfather tried unsuccessfully to keep Richardson away from Curd. 

When Richardson was forced to leave the family home in the spring of 

2013, she was homeless for a period of time before moving into the 

apartment where she was living at the time of Kunkle’s murder.

At the sentencing hearing, Richardson showed considerable 

remorse for Kunkle’s death. As the district court related,

When asked how she felt about the situation, she tearfully 

replied, “I don’t feel like a human. I feel like...I deserve to be 

down. I should have took his place. I should have stood 

there and said no to him, but because I was so selfish I 

stayed there. I caused all of this. And I can’t change it. I 

can’t make him come back and as much as I want to I 
6

can’t...take the pain away. I can say I’m sorry but sorry 

doesn’t -- sorry don’t change nothing.” Ms. Richardson went 

on to testify that because of her actions, she wasn’t even 

sure she wanted to ask for her freedom anymore. The Court 

finds these statements to be genuine and insightful, showing 

a great deal of remorse, not about being caught, but about 

the life she took from Mr. Kunkle.

At the sentencing hearing, Richardson also presented expert 

testimony from a forensic psychologist who opined that Richardson 

would not likely have perpetrated the offense by herself and had been 

subjected to numerous adverse developmental factors. These factors 

included her age at the time of the offense, transgenerational family 

dysfunction, residential transience, sexual assault, early teen onset of 

alcohol and drug abuse, and victimization in a predatory relationship 

with the codefendant. The psychologist concluded that Richardson had a

good potential for establishing a constructive, contributing adulthood 

and a low likelihood of future serious violence.

The district court, in a lengthy July 18 sentencing decision, 

determined that continued confinement of Richardson was warranted

but rejected a mandatory term of incarceration.2 The court explained,

2The court made a record based on Richardson’s age at the time of the offense 

and other Miller/Ragland factors. In State v. Ragland, we said that a sentencing court 

“must consider” the following Miller factors when a sentencing a juvenile to a possible 

sentence of life without parole:

(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.”

836 N.W.2d 107, 115 n.6 (Iowa 2013) (alterations in original) (quoting Miller v. Alabama, 

567 U.S. ___, ___, 132 S. Ct. 2455, 2468, 183 L. Ed. 2d. 407, 423 (2012)). We 

subsequently held that the rationale of Miller applies to all cases where a juvenile could

 
7

[T]he Court believes that the programs, facilities and 

personnel available, together with the structured 

environment that would be provided within the Correctional 

System, will more effectively lead to Ms. Richardson’s 

rehabilitation in a way that will eventually lead to her safe 

reentry into society. That said, the Court feels that an 

indeterminate term of years herein is appropriate, without 

any mandatory minimum term imposed. This will allow Ms. 

Richardson to embrace the services and treatment offered, 

and will allow her to prove herself to the parole board as time 

progresses.

The court thus sentenced Richardson to an indeterminate term of 

incarceration not to exceed fifty years with twenty-five years of the 

sentence to be suspended. The court also ordered Richardson to pay 

$150,000 in restitution to the estate of Ronald Kunkle “[p]ursuant to 

Iowa Code section 910.3B.” Richardson did not raise any objection to 

the $150,000 restitution award at the time of sentencing.

Nonetheless, on appeal, Richardson challenges only the $150,000 

restitution award. Richardson contends the sentencing court had

discretion under recently enacted Iowa Code section 901.5(14) (2014) to 

impose a lower amount of restitution and should have exercised that 

discretion to reduce the award. Alternatively, Richardson maintains

section 910.3B, to the extent it mandates a $150,000 restitution award, 

violates article I, section 17 of the Iowa Constitution both on its face as it 

pertains to all juvenile offenders and as applied to the particular 

circumstances of her case. Richardson argues that a recent decision 

from the United States Supreme Court and subsequent decisions of our 

court sustain her claim that her age and culpability are necessary factors 

to consider in awarding restitution under the statute. See Miller v. 

Alabama, 567 U.S. ___, 132 S. Ct. 2455, 183 L. Ed. 2d 407 (2012); State 

be potentially sentenced to a mandatory minimum period of incarceration. See State v. 

Lyle, 854 N.W.2d 378, 400–01 (Iowa 2014).

___________________________
8

v. Lyle, 854 N.W.2d 378 (Iowa 2014); State v. Ragland, 836 N.W.2d 107

(Iowa 2013); State v. Pearson, 836 N.W.2d 88 (Iowa 2013); State v. Null, 

836 N.W.2d 41 (Iowa 2013).

We transferred Richardson’s case to the court of appeals. Relying 

on its opinion in a companion case,3 that court concluded Iowa Code 

section 901.5(14) does not authorize a lower restitution amount. The 

court reasoned that “sentence,” as used in the statute, does not apply to 

restitution or fines. The court also rejected Richardson’s facial challenge 

to section 910.3B. The court noted that “[n]either Miller nor Iowa’s Miller

progeny mention restitution or fines.” Finally, the court rejected 

Richardson’s as-applied challenge to her restitution order, finding the 

restitution not constitutionally excessive because it bore a reasonable 

relationship to the harm caused by the offense. On these grounds, the 

court of appeals affirmed the district court’s restitution order.

We granted Richardson’s application for further review.

II. Standard of Review.

“We review ‘the trial court’s application of pertinent sentencing 

statutes for corrections of error at law.’ ” State v. Calvin, 839 N.W.2d 

181, 184 (Iowa 2013) (quoting State v. Hawk, 616 N.W.2d 527, 528 (Iowa 

2000)). We review an allegedly unconstitutional sentence de novo. Lyle, 

854 N.W.2d at 382.

III. Analysis.

A. Does Iowa Code Section 901.5(14) Apply to Restitution 

Awards Under Section 910.3B? We must first determine whether Iowa 

Code section 901.5(14) confers judicial discretion over what would 

otherwise be a mandatory restitution award under section 910.3B.

3State v. Breeden, No. 14–1789, 2015 WL 8389964 (Iowa Ct. App. Dec. 9, 2015).

 
9

In 1997, the general assembly enacted legislation relating to 

“restitution for death of victim.” See 1997 Iowa Acts ch. 125, § 11 

(codified at Iowa Code § 910.3B). That law now provides in part,

In all criminal cases in which the offender is convicted of a 

felony in which the act or acts committed by the offender 

caused the death of another person, in addition to the 

amount determined to be payable and ordered to be paid to a 

victim for pecuniary damages, as defined under section 

910.1, and determined under section 910.3, the court shall 

also order the offender to pay at least one hundred fifty 

thousand dollars in restitution to the victim’s estate . . . .

Iowa Code § 910.3B(1) (2017).4

Interpreting this statute in State v. Klawonn, we held,

[T]he context of section 910.3B(1) clearly indicates the award

is mandatory once the offender’s felonious actions result in 

the loss of human life. The use of the word “shall” in section 

910.3B(1) was intended to create not merely the power to 

impose, but rather the duty upon the sentencing court to 

impose a restitution award payable to the estate of at least 

$150,000.

609 N.W.2d 515, 522 (Iowa 2000).5

Prior to 2013, there was no question that juveniles whose cases 

were transferred into district court and who were convicted of crimes as 

adults were subject to the same restitution obligations as adults. See

Iowa Code § 910.2(1) (2011) (“In all criminal cases in which there is a 

plea of guilty, verdict of guilty, or special verdict upon which a judgment 

of conviction is rendered, the sentencing court shall order that 

restitution be made by each offender to the victims of the offender’s 

4All references to the Iowa Code are to the 2017 Code unless otherwise noted.

5In 2000, we said that we were “unable to find any state in the nation with a 

similar statute for restitution.” State v. Izzolena, 609 N.W.2d 541, 550 (Iowa 2000). In 

2009, Alabama enacted a law requiring mandatory minimum restitution of $50,000 for 

certain types of murder. See Ala. Code § 15-18-68(b)(1) (Westlaw through Act 2016–485 

of 2016 1st Special Sess.).

 
10

criminal activities . . . .”); id. § 915.100(2)(a) (“In all criminal cases in 

which there is a plea of guilty, verdict of guilty, or special verdict upon 

which a judgment of conviction is rendered, the sentencing court shall 

order that restitution be made by each offender to victims of the

offender’s criminal activities.”). Iowa law drew a distinction between 

criminal cases, where restitution must be ordered, and juvenile 

delinquency proceedings, where it may be ordered. Compare id.

§ 915.100(2)(a), with id. § 232.52(2)(a)(2), and id. § 915.100(2)(b).

However, in 2013, the legislature enacted new sentencing 

legislation relating to juveniles. See 2013 Iowa Acts ch. 42, § 14 (codified 

at Iowa Code § 901.5(14) (2014)). That law provides,

Notwithstanding any provision in section 907.3 or any other 

provision of law prescribing a mandatory minimum sentence 

for the offense, if the defendant, other than a child being 

prosecuted as a youthful offender, is guilty of a public 

offense other than a class “A” felony, and was under the age 

of eighteen at the time the offense was committed, the court 

may suspend the sentence in whole or in part, including any 

mandatory minimum sentence, or with the consent of the 

defendant, defer judgment or sentence, and place the 

defendant on probation upon such conditions as the court 

may require.

Iowa Code § 901.5(14).

When Richardson was sentenced below, the district court ordered 

her to make restitution of $150,000 to Kunkle’s estate in accordance 

with Iowa Code section 910.3B(1). Richardson did not raise the potential 

applicability of the 2013 legislation at that time, nor did she object on 

constitutional grounds to mandatory restitution under section 910.3B(1). 

However, the rule of error preservation “is not ordinarily applicable to 

void, illegal or procedurally defective sentences.” State v. Thomas, 520 

N.W.2d 311, 313 (Iowa Ct. App. 1994).
11

Richardson now argues on appeal that the district court failed to 

recognize it had discretion conferred by Iowa Code section 901.5(14) to 

reduce the amount of the restitution award. In Richardson’s view, the 

phrase “mandatory minimum sentence” as used in section 901.5(14) 

includes the minimum restitution required by section 910.3B(1). And, 

according to Richardson, the phrase “suspend the sentence in whole or 

in part” in section 901.5(14) provides sentencing judges with authority to 

impose a lower restitution amount than section 910.3B(1) would 

otherwise require. Richardson thus contends that the 2013 legislation

effectively amended section 910.3B(1) as to juvenile homicide offenders. 

The State, on the other hand, maintains that “sentence” as used 

throughout section 901.5(14) does not include restitution. Hence, the 

State urges that the 2013 legislation had no effect on section 910.3B(1).

The fighting issue before us is largely the meaning of “sentence” as 

used in Iowa Code section 901.5(14). Our first step in statutory 

interpretation is to determine whether the language is ambiguous. Iowa 

Ins. Inst. v. Core Grp. of Iowa Ass’n for Justice, 867 N.W.2d 58, 71–72 

(Iowa 2015). If the language is unambiguous, our inquiry stops there. 

State v. Starkey, 437 N.W.2d 573, 575 (Iowa 1989). “A statute is 

ambiguous if reasonable minds differ or are uncertain as to the meaning 

of the statute.” Rhoades v. State, 880 N.W.2d 431, 446 (Iowa 2016). “We 

determine whether a statute is ambiguous or unambiguous by reading 

the statute as a whole.” State v. DeSimone, 839 N.W.2d 660, 666 (Iowa 

2013). “[T]he determination of whether a statute is ambiguous does not 

necessarily rest on close analysis of a handful of words or a phrase 

utilized by the legislature, but involves consideration of the language in 

context.” Rhoades, 880 N.W.2d at 446.
12

The wording of section 901.5(14) itself offers limited guidance as to 

whether “sentence” includes a restitution award. This provision does 

authorize a court to suspend “the sentence” in whole or in part, 

“including any mandatory minimum sentence.” Iowa Code § 901.5(14). 

This provision also authorizes a court to “defer judgment or sentence” 

and place the defendant on probation. Id.

Elsewhere in Iowa Code section 901.5, though, references to 

“sentence” include fines but not restitution. For example, section 

901.5(1) empowers the district court to “defer judgment and sentence” in 

accordance with chapter 907, while section 901.5(3) authorizes the court 

to “suspend the execution of the sentence” as provided in chapter 907. 

See id. § 901.5(1), (3). Additionally, section 901.5(5) allows the court to 

“defer the sentence” when authorized by section 907.3. See id.

§ 901.5(5). Section 907.3—referenced by these subsections—is the 

section entitled, “Deferred judgment, deferred sentence, or suspended 

sentence.” See id. § 907.3.

We long ago held restitution is mandatory even when the foregoing 

sentencing options are exercised. See State v. Kluesner, 389 N.W.2d 370, 

372–73 (Iowa 1986) (holding that restitution is mandatory even when the 

sentencing options under section 907.3 are exercised). Because the 

authority to defer judgment or sentence does not include the authority to 

defer restitution, we have also held that an application for discretionary 

review is the proper way to challenge a restitution order in a deferred 

judgment case. State v. Stessman, 460 N.W.2d 461, 464 (Iowa 1990). 

Hence, the word “sentence” as used in other parts of section 901.5 does 

not include restitution.

We can draw other lessons from examining Iowa Code section 

901.5 as a whole. The section introduces all of its numbered 
13

subsections—including section 901.5(14)—with the following clause: “At 

the time fixed by the court for pronouncement of judgment and sentence, 

the court shall act accordingly[.]” Iowa Code § 901.5. Section 901.5(14) 

is simply the fourteenth in a list of numbered items following this 

preamble. And as the preamble states, each item in the list is something 

that, if ordered, shall be ordered at the time of “pronouncement of 

judgment and sentence.” Id.

Restitution is not mentioned anywhere within the list. Instead, 

another section in another chapter—i.e., section 910.3—covers the 

process for ordering restitution. And in contrast to section 901.5’s 

preamble, section 910.3 indicates that restitution may be ordered “[a]t

the time of sentencing or at a later date to be determined by the court.” 

Id. § 910.3 (emphasis added).6 This critical timing difference further 

supports the proposition that section 901.5(14), like the rest of section 

901.5, has no bearing on restitution and concerns nonrestitution matters 

that must be ordered at the time of pronouncement of judgment and 

sentence, not later.

In sum, “sentence” as used in Iowa Code sections 901.5(1), 

901.5(3), and 901.5(5) excludes restitution. One can therefore

reasonably say that the same term appearing in section 901.5(14)—

which has similar references to suspending the sentence or deferring 

judgment or sentence—does not include restitution, either. Going 

further, section 901.5 matters must occur at the time of pronouncement 

of judgment and sentence. Restitution determinations, on the other 

6Even though the $150,000 award in homicide cases is mandatory, it is a 

minimum, and a victim’s family might seek to claim more, necessitating a later hearing. 

See Iowa Code § 910.3B(1).

 
14

hand, can occur later. This also supports a determination that section 

901.5(14) does not address restitution.

Adding force to these arguments is certain language at the 

beginning of Iowa Code section 901.5(14) itself. This language reads, 

“Notwithstanding any provision in section 907.3 or any other provision of 

law prescribing a mandatory minimum sentence for the offense . . . .” Id.

§ 901.5(14) (emphasis added). As we have already noted, the crossreferenced provision, section 907.3, relates to deferred judgments, 

deferred sentences, and suspended sentences. See id. § 907.3. It 

identifies certain circumstances including forcible felonies where 

incarceration is mandatory and the deferred and suspended options are 

not available. But as discussed above, section 907.3 has no bearing on 

restitution; that is a separate overriding requirement unaffected by 

section 907.3. Thus, if one applies the canons of ejusdem generis and 

noscitur a sociis, one would read “any other provision of law prescribing a 

minimum sentence” to refer to similar kinds of provisions as section 

907.3. See In re Estate of Sampson, 838 N.W.2d 663, 670 (Iowa 2013) 

(discussing ejusdem generis); Mall Real Estate, L.L.C. v. City of Hamburg, 

818 N.W.2d 190, 199 (2012) (discussing noscitur a sociis). In that event, 

section 901.5(14) would not apply to restitution.

Additionally, Iowa Code section 901.5(14) refers to “a mandatory 

minimum sentence for the offense.” Iowa Code § 901.5(14) (emphasis 

added). Yet the restitution under Iowa Code section 910.3B is not tied to 

a particular offense or group of offenses. Rather, it requires an offense 

(namely a felony) and that “the act or acts committed by the offender 

caused the death of another person.” Iowa Code § 910.3B(1).

Nonetheless, it is true that the Iowa Code does not define

“sentence” anywhere. We have said that a sentence is “[t]he judgment 
15

formally pronounced by the court or judge upon the 

defendant . . . imposing the punishment to be inflicted.” Klouda v. Sixth 

Judicial Dist. Dep’t of Corr. Servs., 642 N.W.2d 255, 261 (Iowa 2002) 

(alteration in original) (quoting Sentence, Black’s Law Dictionary (6th ed. 

1990)); see also 4 Charles E. Torcia, Wharton’s Criminal Procedure § 535,

at 424 (13th ed. 1992) (defining sentence as “the pronouncement by a 

court of the penalty imposed upon the defendant after a judgment of 

guilty”). As we discuss in the next part of our opinion, a restitution 

award under section 910.3B is partly punitive. Therefore, depending on 

the context, restitution could be considered part of the “sentence.”

We think we have said enough to demonstrate that reasonable 

minds can differ as to whether “sentence” as used in section 901.5(14) 

includes a restitution award. It would not be surprising that the 

meaning of “sentence” depends on the context. We have said the same 

thing repeatedly about the meaning of “conviction.” See, e.g., State v. 

Deng Kon Tong, 805 N.W.2d 599, 601–02 (Iowa 2011); Daughenbaugh v. 

State, 805 N.W.2d 591, 597, 599 (Iowa 2011). Because section 901.5(14)

is ambiguous, we must employ additional tools of statutory 

interpretation to ascertain statutory meaning.

One possible tool is to examine how the phrase “mandatory 

minimum sentence” is used elsewhere in the Iowa Code. Does it include 

restitution in other contexts? Notably, Black’s Law Dictionary defines 

“sentence” as “[t]he judgment that a court formally pronounces after 

finding a criminal defendant guilty” or “the punishment imposed on a 

criminal wrongdoer” but defines “minimum sentence” as “[t]he least 

amount of time that a convicted criminal must serve in prison before 

becoming eligible for parole.” Sentence, Black’s Law Dictionary (10th ed. 

2014); Minimum Sentence, Black’s Law Dictionary; see State v. Hoyman, 
16

863 N.W.2d 1, 11 (Iowa 2015) (citing Black’s Law Dictionary in 

interpreting a criminal statute).

Other provisions of the Iowa Code use “mandatory minimum 

sentence” to refer to a mandatory period of incarceration. See Iowa Code 

§ 124.413 (section entitled “Mandatory minimum sentence”); id.

§ 232.45(14)(a) (cross-referencing section 124.413); id. § 462A.14(3)(a) 

(“mandatory minimum sentence of incarceration”); id. § 901.5(7) (“The 

court shall inform the defendant of the mandatory minimum sentence, if 

one is applicable.”); id. § 901.10(2) (allowing reductions in the 

“mandatory minimum sentence” for certain offenses if the defendant 

pleads guilty or cooperates in the prosecution of other persons); id.

§ 903A.2(5) (addressing the interaction between earned time accrued by 

inmates and “any mandatory minimum sentence”); id. § 903A.5(1) 

(addressing the interaction between earned time and certain “mandatory 

minimum sentence[s]”); id. § 904.902 (“An inmate serving a mandatory 

minimum sentence of one year or more . . . .”); id. § 906.5(1)(a) (stating 

that the board of parole does not need to annually review the status of a 

person “serving a mandatory minimum sentence”); id. § 907.3(1)(a)(7) (“a 

mandatory minimum sentence must be served or mandatory minimum 

fine must be paid”); id. § 907.3(2)(a)(3) (“a mandatory minimum sentence 

must be served or mandatory minimum fine must be paid”); id.

§ 907.3(3)(c) (“[a] mandatory minimum sentence of incarceration”); id.

§ 907.3(3)(f) (“[a] mandatory minimum sentence or fine imposed for a 

violation of section 462A.14”).

Besides the foregoing provisions, we are aware of one other 

instance where our Code uses the phrase “mandatory minimum 

sentence.” This is section 907.3A, which relates to youthful offenders. 

Until 2013, this section read in part as follows:
17

Notwithstanding any provision of the Code which prescribes 

a mandatory minimum sentence for the offense committed 

by the youthful offender, following transfer of the youthful 

offender from the juvenile court back to the court having 

jurisdiction over the criminal proceedings involving the 

youthful offender, the court may continue the youthful 

offender deferred sentence or enter a sentence, which may be 

a suspended sentence.

Id. § 907.3A(3) (2013). Section 907.3A addressed what happened to a 

“youthful offender” when he or she turned eighteen and was returned to 

the jurisdiction of the district court. See State v. Iowa Dist. Ct., 616 

N.W.2d 575, 580 (Iowa 2000) (discussing this section). A juvenile 

charged with committing, say, a forcible felony when under the age of 

sixteen could be waived to district court to be prosecuted as a “youthful 

offender.” See id. If the juvenile were convicted in district court, 

sentence would be deferred and supervision would be transferred back to 

juvenile court. See id. Hence, section 907.3A described what would 

occur if the juvenile were returned to the district court after aging out of 

the juvenile system.

The same 2013 legislation that added Iowa Code section 901.5(14) 

also amended section 907.3A on youthful offenders to read as follows:

Notwithstanding any provision of the Code which prescribes 

a mandatory minimum sentence for the offense committed 

by the youthful offender, following transfer of the youthful 

offender from the juvenile court back to the court having 

jurisdiction over the criminal proceedings involving the 

youthful offender, the court shall order one of the following 

sentencing options:

(1) Defer judgment and place the youthful offender on 

probation, upon the consent of the youthful offender.

(2) Defer the sentence and place the youthful offender 

on probation upon such terms and conditions as the court 

may require.

(3) Suspend the sentence and place the youthful 

offender on probation upon such terms and conditions as 

the court may require.
18

(4) A term of confinement as prescribed by law for the 

offense.

(5) Discharge the youthful offender from youthful 

offender status and terminate the sentence.

Id. § 907.3A(3)(a) (2014); see 2013 Iowa Acts ch. 42, § 15. The 2013 

legislation thus expanded the sentencing options available for the 

youthful offender who turned eighteen, “[n]otwithstanding any provision 

of the Code which prescribes a mandatory minimum sentence for the 

offense committed by the youthful offender.” Iowa Code § 907.3A(3)(a). 

But the options have to do with the offender’s liberty. That is why 

“confinement” alone—not “confinement” and “restitution,” for example—

is listed as one of the options. In other words, “mandatory minimum 

sentence” as used in the very next section of the 2013 legislation—i.e., 

section 15 rather than section 14—refers to incarceration because this 

section describes four alternatives to incarceration and one 

nonalternative.

It is logical to conclude the legislature intended “mandatory 

minimum sentence,” when used in consecutive sections of the same 

2013 law, to have the same meaning. “When the same term appears 

multiple times in the same statute, it should have the same meaning

each time.” State v. Paye, 865 N.W.2d 1, 7 (Iowa 2015); see also Tiano v. 

Palmer, 621 N.W.2d 420, 423 (Iowa 2001) (“When the same word or term 

is used in different statutory sections that are similar in purpose, they 

will be given a consistent meaning.”).

For all these reasons, we have decided that Iowa Code section 

901.5(14) does not authorize the district court to modify a restitution 

award otherwise required by section 910.3B(1). Restitution under 

chapter 910 is mandatory, may be imposed later, and operates 

independently from the section 901.5 sentencing options available to a 
19

court. Because Iowa Code section 901.5(14) does not apply to restitution 

under section 910.3B, the district court lacked statutory discretion to 

reduce Richardson’s payment to Kunkle’s estate below $150,000.7

B. Facial Challenge to Section 910.3B. We next turn to 

Richardson’s legal challenge to the constitutionality of Iowa Code section 

910.3B as it relates to all juvenile homicide offenders. She argues the 

statute violates article I, section 17 of the Iowa Constitution to the extent 

it imposes mandatory restitution on a juvenile homicide offender without 

a court first considering the Miller/Ragland factors. Article I, section 17 

provides in part that “excessive fines shall not be imposed, and cruel and 

unusual punishment shall not be inflicted.” Iowa Const. art. I, § 17. 

Richardson asserts a facial constitutional challenge under both clauses.

1. Cruel and unusual punishment challenge. We have not had the 

opportunity to determine whether a mandatory restitution award 

constitutes cruel and unusual punishment prohibited by article I, section 

17 of the Iowa Constitution. In State v. Izzolena, we held that Iowa Code 

section 910.3B did not on its face violate the Excessive Fines Clause or 

the Due Process Clause of the United States or Iowa Constitutions. 609 

N.W.2d 541, 551, 553 (Iowa 2000). However, that case did not involve a 

challenge of unconstitutionality under the cruel and unusual 

punishment clause. See id. at 546–47. Two years ago, in Lyle, we held 

that “all mandatory minimum sentences of imprisonment for youthful 

offenders are unconstitutional under the cruel and unusual punishment 

clause in article I, section 17 of our constitution.” 854 N.W.2d at 400. 

7We acknowledge that under the rule of lenity, criminal statutes are strictly 

construed. See Hoyman, 863 N.W.2d at 18. Here, this rule of construction does not 

overcome the other reasons we have detailed for construing Iowa Code section 901.5(14) 

as not covering the topic of restitution.

 
20

Richardson asks us to extend this holding to mandatory minimum 

restitution amounts.

We do not believe the cruel and unusual punishment clause is at 

issue here. As we pointed out in Izzolena, the excessive fines clause 

“limit[s] the government’s power to punish” through monetary exactions. 

609 N.W.2d at 548. If the cruel and unusual punishment clause also 

limited fines, the excessive fines clause would be duplicative and 

unneeded.8

In Eighth Amendment jurisprudence, the two constitutional 

clauses are not interchangeable. See Alexander v. United States, 509 

U.S. 544, 113 S. Ct. 2766, 125 L. Ed. 2d 441 (1993). In Alexander, the 

petitioner challenged the forfeiture of his businesses and property as part 

of a criminal proceeding. Id. at 546, 113 S. Ct. at 2769, 125 L. Ed. 2d at 

447–48. He claimed the forfeiture violated the Eighth Amendment “either 

as a ‘cruel and unusual punishment’ or as an ‘excessive fine.’ ” Id. at 

558, 113 S. Ct. at 2775, 125 L. Ed. 2d at 455. However, the Court 

distinguished the two claims, noting that the court of appeals had 

incorrectly “lumped the two together.” Id. The Court reasoned,

Unlike the Cruel and Unusual Punishments Clause, which is 

concerned with matters such as the duration or conditions of 

confinement, “[t]he Excessive Fines Clause limits the 

government’s power to extract payments, whether in cash or 

8Richardson cites a 1799 Virginia case where the court struck down a joint fine 

assessed against three defendants convicted of assault and battery. See Jones v. 

Commonwealth, 5 Va. (1 Call) 555 (1799). According to Richardson, this case illustrates 

that a disproportionate fine can violate both the excessive fines clause and the cruel and 

unusual punishment clause. We believe Richardson’s reading of the Virginia case, 

which she borrows from a law review article, is mistaken. Although the Virginia opinion 

is a bit difficult for us to read today, because in nineteenth-century style it is a tag-team 

of the views of three judges, no view is expressed therein that the joint fine specifically 

violated the cruel and unusual punishment clause. One judge said it was an excessive 

fine, id. at 556–57, another said it simply violated “the bill of rights” without specifying 

the clause, id. at 557–59, and a third judge dissented, id. at 560.

 
21

in kind, as punishment for some offense.” The in personam

criminal forfeiture at issue here is clearly a form of monetary 

punishment no different, for Eighth Amendment purposes, 

from a traditional “fine.” Accordingly, the forfeiture in this 

case should be analyzed under the Excessive Fines Clause.

Id. at 558–59, 113 S. Ct. at 2775–76, 125 L. Ed. 2d at 455 (alteration in 

original) (citations omitted) (quoting Austin v. United States, 509 U.S. 

602, 609–10, 113 S. Ct. 2801, 2805–06, 125 L. Ed. 2d 488, 497 (1993)).

While we “jealously guard our authority to interpret the Iowa 

Constitution independently,” In re J.C., 877 N.W.2d 447, 458 (Iowa 

2016), we read article I, section 17 in the same dual fashion. The text of 

article I, section 17—like that of the similarly worded Eighth 

Amendment—observes a distinction between punishment of a physical 

nature, such as confinement, and punitive financial measures. 

Therefore, we do not believe that Iowa Code section 910.3B restitution 

can amount to “cruel and unusual punishment.”

2. Excessive fines challenge. We thus turn to whether mandatory 

$150,000 restitution as applied to a juvenile homicide offender violates

the excessive fines clause of article I, section 17. In Izzolena, as noted, 

we rejected a facial challenge to Iowa Code section 910.3B brought by a 

defendant who had been ordered to pay $150,000 in victim restitution 

under section 910.3B following a conviction for unintentionally causing 

the death of another by operating a motor vehicle in a reckless manner. 

609 N.W.2d at 545, 551. We first determined that the restitution award 

under section 910.3B has “several punitive elements” and therefore 

should be considered a “fine” within the meaning of both the Eighth 

Amendment and article I, section 17. Id. at 548–49. However, we held 

the mandatory $150,000 award was not unconstitutionally “excessive.” 

Id. at 551.
22

In Izzolena we pointed out that the statute “applies only to 

felonious acts resulting in death.” Id. at 550. The mandatory restitution 

provided by the statute “could not be imposed in a case involving an 

unintentional or negligent offender.” Id. We also recognized that the 

statute “only applies to offenders who committed a crime which caused 

the death of another human.” Id. “The seriousness of this harm, in the 

final analysis, is unmatched in the broad spectrum of crimes.” Id. We 

further observed that other criminal laws in Iowa authorized “enormous 

fines” which “help[ed] place the penalty imposed by section 910.3B in 

context.” Id.; see also State v. Di Paglia, 247 Iowa 79, 85–86, 71 N.W.2d 

601, 604–05 (1955) (finding that a fine of up to $10,000 for bribery in 

athletic contests—the equivalent of approximately $64,000 in 2000—did 

not violate article I, section 17). Ultimately, in Izzolena, we said,

Considering the nature of the offense, resulting harm, 

and the great deference afforded the legislature, we conclude 

section 910.3B does not on its face violate the Excessive 

Fines Clause of our state and federal constitutions. The 

minimum restitution award of $150,000 is high, but not 

grossly disproportionate to the gravity of the offenses covered 

under the statute.

609 N.W.2d at 551.

Our analysis in Izzolena under both the United States and the 

Iowa Constitutions drew upon recent United States Supreme Court 

precedent. In United States v. Bajakajian, the United States Supreme 

Court had held it would violate the Eighth Amendment to order a 

defendant to forfeit all of the $357,144 he failed to report in violation of 

federal law considering that his crime was “solely a reporting offense,” he 

would have been able “to transport the currency out of the country so 

long as he reported it,” he was not in the class of persons targeted by the 

statute, and the harm caused by his actions was “minimal” and resulted 
23

in “no loss to the public fisc.” 524 U.S. 321, 337–39, 118 S. Ct. 2028, 

2038–39, 141 L. Ed. 2d 314, 331–32 (1998). According to the Bajakajian

Court, a forfeiture that was “grossly disproportional to the gravity of the 

defendant’s offense” would be unconstitutional. Id. at 337, 118 S. Ct. at 

2038, 141 L. Ed. 2d at 329.

We adopted that standard in Izzolena for restitution. 609 N.W.2d

at 549. Therefore, we concluded a restitution award with punitive 

characteristics would violate the excessive fines clause of article I, 

section 17 if it was “grossly disproportional to the gravity of the 

defendant’s offense.” Id. (quoting Bajakajian, 524 U.S. at 337, 118 S. Ct. 

at 2038, 141 L. Ed. 2d at 331).9

Richardson does not ask us to overrule Izzolena for adult 

defendants. And we are not the only jurisdiction to uphold large 

mandatory fines in criminal cases. See, e.g., Gordon v. State, 139 So. 3d 

958, 959–60, 964 (Fla. Dist. Ct. App. 2014) (finding that mandatory fines 

of $100,000 and $500,000 imposed on an oxycodone trafficker did not 

violate the Eighth Amendment or article I, section 17 of the Florida 

Constitution); Commonwealth v. Carela-Tolentino, 48 A.3d 1221, 1222

(Pa. 2012) (mem.) (per curiam) (rejecting a federal and state excessive 

fines challenge to a mandatory $25,000 fine imposed in drug possession 

case). However, Richardson urges that the legal landscape has changed 

as to juvenile homicide offenders since Izzolena was decided. As we have 

already noted, in Lyle, we decided all mandatory minimum prison 

sentences for juvenile offenders violate the cruel and unusual 

9Two years ago, the Supreme Court indicated that the punitive purposes of 

restitution may be sufficient to bring it within the purview of the Eighth Amendment’s 

Excessive Fines Clause. Paroline v. United States, 572 U.S. __, __, 134 S. Ct. 1710, 

1726, 188 L. Ed. 2d 714, 732–33 (2014).

 
24

punishment clause of the Iowa Constitution. 854 N.W.2d at 400. 

Richardson maintains that under the rationale of Lyle, we should find a 

mandatory restitution award violates the excessive fines clause of the 

Iowa Constitution when imposed upon a juvenile homicide offender.

Richardson seizes on language in Lyle focusing upon the critical 

importance of sentencing discretion when sentencing juveniles: “[E]ven a 

short [mandatory] sentence . . . deprives the district court of discretion in 

crafting a punishment that serves the best interests of the child and of 

society.” Id. at 402. “Article I, section 17 . . . prohibits the one-size-fitsall mandatory sentencing for juveniles.” Id. at 403; see also id. at 401 

(“The mandatory nature of the punishment establishes the constitutional 

violation.”).

Yet, we believe that a mandatory period of incarceration is 

fundamentally different from the $150,000 restitution award at issue 

here. No court, to our knowledge, has applied Miller to fines or 

restitution. Imprisonment is qualitatively different because it 

incapacitates the individual and foreswears rehabilitation during the 

period of incarceration. See id. at 400. As we put it in Lyle, there is a 

sense in which imprisonment “write[s] off” the incarcerated individual 

during his or her term of incarceration. Id. at 401; see also Pearson, 836 

N.W.2d at 96 (indicating that imprisonment deprives a juvenile of 

“leading a more normal adult life”). Thus, being incarcerated and owing 

a restitution debt are simply not comparable. One is a matter of liberty, 

the other a financial obligation.

Also, even if Iowa Code section 910.3B did not exist, juveniles who 

committed felonious homicides would still be subject to substantial 

financial obligations to their victims’ heirs and estates. See Iowa Code 

§§ 611.20–.22; id. §§ 613.15–.15A; Iowa Supreme Ct. Att’y Disciplinary 
25

Bd. v. Ouderkirk, 845 N.W.2d 31, 32–33 (Iowa 2014) (noting that a 

multimillion dollar wrongful-death judgment was recovered against an 

individual convicted of voluntary manslaughter).

In fact, payments on wrongful-death judgments and settlements 

are credited against section 910.3B restitution. See Iowa Code § 910.8 

(“[A]ny restitution payment by the offender to a victim shall be set off 

against any judgment in favor of the victim in a civil action arising out of 

the same facts or event.”). In State v. Klawonn, we held that the receipt 

of a $275,000 settlement by the victim’s widow had the effect of 

canceling the defendant’s $150,000 restitution obligation. See 688 

N.W.2d 271, 275–76 (Iowa 2004). In State v. Driscoll, we held that civil 

settlement payments of $165,000 and $130,000 respectively should be 

credited against two restitution awards of $150,000 that had been 

ordered after the defendant committed homicide-by-vehicle resulting in 

two deaths. 839 N.W.2d 188, 189, 192 (Iowa 2013). The credited 

payments thereby eliminated all but $20,000 of the defendant’s future 

restitution obligation. Id.

Furthermore, like section 910.3B restitution, wrongful-death 

judgments are not dischargeable in bankruptcy if based on “willful and

malicious injury.” See 11 U.S.C. § 523(a)(6) (2012); Iowa Code 

§ 910.3B(1). In short, given the statutory coordination between civil 

damages and criminal restitution payments to avoid double recovery, see

Klawonn, 688 N.W.2d at 275, and given that $150,000 is not 

extraordinary or even generous compensation for the death of a person, 

it would not be fair to equate it to a mandatory term of incarceration.10

10This is true even considering that Iowa Code section 910.3B allows separate 

recovery of “pecuniary damages.” See Iowa Code § 910.3B(1).

 
26

In a sense, Iowa Code section 910.3B functions as an alternative to 

a wrongful-death action. Instead of retaining an attorney and bringing 

suit, a victim’s family may prefer to rely on the minimum $150,000 

restitution afforded by section 910.3B. It is entirely plausible that 

relatives of decedents allowed estates to be closed and the wrongfuldeath statute of limitations to run based on having received mandatory 

restitution awards.

Additionally, our justice system is replete with mandatory 

payments. In Lyle, we reasoned that the constitutional defect arose once 

the legislature mandated any period of incarceration for a juvenile who 

committed a crime. 854 N.W.2d at 401 (“The mandatory nature of the 

punishment establishes the constitutional violation.”). Yet if we applied 

that logic to fines and restitution, a juvenile could not be subjected to 

any kind of financial penalty without a Miller/Ragland hearing. A 

Miller/Ragland hearing would be required, potentially, before the court 

could impose the scheduled fine for a speeding ticket on a juvenile.

Richardson makes a broad statement that “juvenile offenders are 

not in the same position as adult offenders to afford restitution payments 

due to an inability to achieve a comparable level of earning capacity.” 

However, Richardson cites no data for this assertion. In fact, juvenile 

offenders like Richardson could be in a better position than comparable 

adult offenders to repay $150,000 restitution because of their younger 

age and the shorter period for which they will be incarcerated. Cf. State 

v. Mayberry, 415 N.W.2d 644, 645–47 (Iowa 1987) (rejecting a claim in a 

pre-Iowa Code section 910.3B first-degree murder case that the 

$60,828.53 restitution award against the defendant serving a life 

sentence was unconstitutionally excessive, even though calculations 

showed he would be unable to repay it in his lifetime).
27

Finally, a defendant is not required to pay the $150,000 restitution 

all at once. For each defendant, a restitution payment plan is prepared 

taking into account the defendant’s income and other circumstances. 

See Iowa Code § 910.5(1)(d)(1). The payment plan can be amended as 

those circumstances change. See id. §§ 910.5(1)(d)(2), .7(2); State v. 

Morris, 858 N.W.2d 11, 16 & n.4 (Iowa 2015); Izzolena, 609 N.W.2d at 

553 n.8; Klawonn, 609 N.W.2d at 519 (“The restitution statute permits 

the court to structure a plan of restitution to help diminish the collateral 

consequences of a civil judgment.”). Thus, restitution is less one-sizefits-all than a cursory review of section 910.3B alone might suggest. Cf.

Lyle, 854 N.W.2d at 403 (indicating that one-size-fits-all mandatory 

prison terms for juveniles are unconstitutional). It is true that a 

restitution payment plan requires regular periodic payments, but most 

Iowans carry ongoing financial obligations as part of their monthly lives, 

such as home loans, car loans, credit card debt, and student loans.11

In Mayberry, we took note of the flexibility afforded by Iowa Code 

section 910.7 in rejecting the defendant’s Eighth Amendment excessive 

fines challenge: “[U]nder Iowa Code section 910.7, a plan of restitution is 

reviewable at any time during the period of probation, parole, or 

11Richardson maintains that restitution is different because payment of 

restitution may affect voting rights. To be precise, under article II, section 5 of the Iowa 

Constitution, it is the conviction of an “infamous crime” that results in the loss of voting 

rights. See Griffin v. Pate, 884 N.W.2d 182, 185 (Iowa 2016). The governor has the 

ability to restore voting rights to persons convicted of infamous crimes through the 

pardoning power. Id. at 194. Different governors have followed different approaches in 

deciding when to use executive clemency to restore voting rights. See id. The current 

stated policy requires the person to discharge his or her sentence, but does not require 

him or her to have completed restitution. Instead, the person “must submit 

documentation demonstrating [he or she is] on a payment plan and [has] paid on these 

costs in good faith.” See FAQ - Voting, Office of the Governor of Iowa, at 2 (Sept. 1, 

2016), https://governor.iowa.gov/sites/default/files/documents/FAQ%20-

%20Voting.pdf.

 
28

incarceration at the request of the offender or the party who prepared the

plan of restitution.” 415 N.W.2d at 647. This flexibility does not exist for 

civil wrongful-death judgments. They can be collected at any time in any 

amount, subject only to certain federal limits. See, e.g., 15 U.S.C. 

§ 1673(a) (limiting wage garnishment to twenty-five percent of disposable 

earnings).

We conclude section 910.3B does not on its face violate the 

excessive fines clause of the Iowa Constitution as it relates to juvenile 

homicide offenders. The $150,000 minimum restitution award is not 

grossly disproportionate to the offense for the reasons we previously 

discussed in Izzolena, and Lyle does not undermine that holding as to 

juveniles for the reasons discussed here. The diminished culpability of 

youth does not make it unconstitutional for the legislature to mandate a 

$150,000 restitution award (with credits for payments on civil judgments 

or civil settlements) against all persons who are convicted of a felony that 

results in the death of another.

C. As-Applied Constitutional Challenge. Lastly, Richardson

raises an as-applied challenge to the $150,000 restitution ordered in her 

specific case. We previously addressed two such challenges the same 

day we decided Izzolena.

In Klawonn, we considered an as-applied challenge to a $150,000 

restitution-for-death award brought by a twenty-four-year-old motorist 

who was convicted of involuntary manslaughter after driving seventy 

miles per hour in a forty-mile-per-hour zone. 609 N.W.2d at 517. 

Although the defendant’s driving resulted in a fatal collision, no drugs or 

alcohol was involved. Id. The defendant nonetheless raised an asapplied challenge under both the Eighth Amendment and article I, 

section 17, asserting “the $150,000 restitution award . . . [was] excessive 
29

in light of all of the underlying facts and circumstances of the offense.” 

Id. at 518. We summarized the defendant’s position as follows:

[H]e claims the traffic offense of speeding does not justify 

punishment in the form of a restitution award of $150,000. 

Additionally, he asserts the award is excessive because it is 

not dischargeable in bankruptcy and will likely constitute a 

debilitating financial burden for the remainder of his life.

Id.

We found no constitutional violation. Id. at 519. We emphasized 

that the defendant had driven recklessly at seventy miles per hour on a 

city street. Id. at 518. We found that “the $150,000 restitution award is 

not grossly disproportionate to the gravity of the offense of involuntary 

manslaughter involving the reckless operation of a motor vehicle.” Id. at 

519.

In State v. Rohm, we likewise considered an as-applied challenge. 

609 N.W.2d 504, 514 (Iowa 2000). There the defendant had purchased 

liquor to be served at a party hosted by her sons, aged nineteen and 

twenty, after one of them “persuaded her he would simply find another 

means to obtain liquor if she refused to purchase it.” Id. at 507. A 

fourteen-year-old learning-disabled boy consumed the alcohol at the 

party and died of alcohol poisoning. Id. at 507, 509. The defendant was 

convicted of involuntary manslaughter and ordered to pay the $150,000 

restitution award. Id. at 509.

As in Klawonn, we rejected the defendant’s as-applied challenges 

to the restitution award under the Eighth Amendment and article I, 

section 17. We pointed out,

Although her conduct was passive in the sense that she did 

not participate in the consumption of liquor with the minors, 

she was the source or supplier of the liquor. She supplied 

large amounts of liquor, some with very high levels of 

alcohol. There was also evidence to support a finding she 
30

knew the liquor was being consumed. Whether passive or 

active, her conduct was extremely serious under the 

circumstances of the case.

Id. at 514.

Here, Richardson pled guilty to aiding and abetting a murder with 

malice aforethought. She knew that Curd’s plan was to kill Kunkle, and 

she joined in and actively participated in the plan. She does not dispute 

that her acts were a cause of Kunkle’s death. As in Klawonn and Rohm, 

the issue here is whether the $150,000 restitution award required by 

section 910.3B is grossly disproportionate to the gravity of the offense 

committed. See Klawonn, 609 N.W.2d at 518; Rohm, 609 N.W.2d at 514.

As we have already discussed, excessive-fine analysis primarily 

focuses “on the amount of the punishment as it relates to the particular 

circumstances of the offense.” Izzolena, 609 N.W.2d at 551. “The ‘fine’ 

must bear some relationship to the gravity of the offense it is designed to 

punish.” Klawonn, 609 N.W.2d at 518 (citing Bajakajian, 524 U.S. at 

327, 118 S. Ct. at 2028, 141 L. Ed. 2d at 325). The issue is whether “the 

restitution award [is] grossly disproportionate to the offense.” Rohm, 609 

N.W.2d at 514.

In In re Property Seized from Terrell, we addressed an excessive 

fines claim in the context of a juvenile delinquency proceeding. See 639 

N.W.2d 18 (Iowa 2002). In that case, a youth was adjudicated a 

delinquent in connection with the attempted burglary of stereo 

equipment from a parked car and possession of burglary tools. Id. at 19. 

The state brought an action to forfeit the vehicle the juvenile was using. 

Id. As a result, the youth lost his own vehicle that he claimed to be 

worth between $8850 and $9050. Id. at 21. We rejected the juvenile’s 

claim this was an unconstitutionally excessive fine under the Eighth 

Amendment and article I, section 17. Id. at 19 & n.1, 21–22. We found 
31

the youth had failed to establish even a prima facie case that the loss of 

his vehicle, when compared to the severity of his offenses, was grossly 

disproportionate. Id. at 22.

Richardson argues her age at the time of the offense, her history of 

substance abuse, the rape she suffered, her difficult home life, and her 

relationship with Curd are all “circumstances of the offense” that make 

the $150,000 restitution award disproportionate to the gravity of the 

offense. Nonetheless, the offense committed by Richardson was 

extremely serious in nature. Richardson admitted she stabbed Kunkle 

with a steak knife once in his neck and twice in the side as part of a plan 

to kill him for cash. Richardson also admitted to helping Curd conceal 

Kunkle’s body in the apartment and destroying evidence of the couple’s 

involvement. In pleading guilty to aiding and abetting second-degree 

murder, Richardson acknowledged acting intentionally with malice 

aforethought in killing Kunkle. Although Richardson was a juvenile and 

we have no reason to question her psychologist’s testimony that she 

would not have perpetrated this killing on her own, she intentionally 

participated in the taking of a human life. By contrast, the conduct 

involved in Klawonn and Rohm was merely reckless.

Even after taking into account Richardson’s age and her personal 

history as aspects of the gravity of her offense, on this record we do not 

find the $150,000 restitution award unconstitutionally excessive in 

violation of the Iowa Constitution.

Our record does not include an actual restitution payment plan. 

We do not consider today whether Iowa Code section 910.3B could be 

unconstitutional as applied to a juvenile homicide offender because of 

her specific payment plan. We have previously held that ability-to-pay 

challenges to restitution are premature until the defendant has 
32

exhausted the modification remedy afforded by Iowa Code section 910.7. 

State v. Jackson, 601 N.W.2d 354, 357 (Iowa 1999). On a related note, 

we are also not addressing the possibility that a juvenile homicide 

offender could show a restitution payment plan so deprives her of the 

opportunity for rehabilitation as to undermine the guarantees of Miller, 

Lyle, Ragland, Pearson, and Null. See Miller, 567 U.S. at __, 132 S. Ct. at 

2470, 183 L. Ed. 2d at 423–24; Lyle, 854 N.W.2d at 399–400; Ragland, 

836 N.W.2d at 121; Pearson, 836 N.W.2d at 96; Null, 836 N.W.2d at 71–

72.

IV. Conclusion.

For the reasons stated above, we affirm the decision of the court of 

appeals and the judgment and sentence of the district court.

DECISION OF COURT OF APPEALS AND JUDGMENT AND 

SENTENCE OF DISTRICT COURT AFFIRMED.

All justices concur except Appel, Wiggins, and Hecht, JJ., who 

dissent.
33

#14–1174, State v. Richardson

APPEL, Justice (dissenting).

I respectfully dissent. For the reasons expressed below, I would 

remand this case to the district court for consideration of the potentially 

reduced culpability of a juvenile offender before the imposition of 

punishment through restitution under Iowa Code section 910.3B (2013).

I. Applicability of Ragland–Null–Lyle to a Challenge to the 

Amount of Restitution in a Criminal Case Under the Excessive Fines 

Clause of Article I, Section 17 of the Iowa Constitution.

A. Introduction. In this case, Daimonay Richardson pled guilty 

to aiding and abetting second-degree murder in connection with the 

death of Ronald Kunkle. At the time of the murder, Richardson was a 

troubled fifteen-year-old girl. At the time of the crime, her father had 

abandoned her, and for many years, her main caregiver was her 

maternal grandmother. She was sexually assaulted at the age of twelve, 

had to repeat seventh grade, and began to use drugs and alcohol at an 

early age. The facts surrounding the crime are outlined in the majority 

opinion. Richardson’s codefendant, D’Anthony Curd, was four years 

older than Richardson and encouraged her to skip school and use drugs. 

She assisted Curd in stabbing Ronald Kunkle to death while under the 

influence of drugs.

At the sentencing hearing, Richardson presented testimony from 

Dr. Mark Cunningham, a forensic psychologist. He testified to the 

presence of twenty-one adverse developmental factors that reduced 

Richardson’s moral culpability for the crime:

1. Age 15 at time of the offense.

2. Trans-generational family dysfunction.

3. Hereditary predisposition to alcohol and drug use.
34

4. Alcoholism of father.

5. Abandonment [by] father.

6. Failure of mother to effectively bond to her.

7. Learning disability.

8. Emotional and supervisory neglect.

9. Amputation of relationship with psychological parent 

[grandmother] as a pre-adolescent.

10. Death of psychological parent.

11. Residential transience.

12. Household transitions and instability.

13. Sexual assault.

14. Premature sexualization.

15. Target of peer harassment and bullying.

16. Early teen onset of alcohol and drug abuse.

17. Inadequate mental health interventions.

18. Explosion from maternal household.

19. Victimization in predatory relationship with codefendant.

20. Domination by the predatory codefendant in the murder.

21. Heavy substance abuse, including synthetic cannabinoid 

proximate to offense.

The district court entered an order awarding restitution in the 

amount of $150,000 to the estate of the victim under Iowa Code section 

910.3B.

B. Overview of Legal Issue. In a series of cases, we have held 

the district court must consider the limited culpability of juvenile 

offenders in imposing criminal sentences. State v. Lyle, 854 N.W.2d 378, 

402 (Iowa 2014); State v. Ragland, 836 N.W.2d 107, 122 (Iowa 2013); 

State v. Null, 836 N.W.2d 41, 72 (Iowa 2013). These cases generally 
35

incorporate and expand upon the teachings of the United States 

Supreme Court in Miller v. Alabama, 567 U.S. ___, 132 S. Ct. 2455, 183 

L. Ed. 2d 407 (2012).

In Miller, the United States Supreme Court noted that children 

were “constitutionally different” from adults for purposes of sentencing. 

567 U.S. at ___, 132 S. Ct. at 2464, 183 L. Ed. 2d at 418. According to 

the Court, children have a “lack of maturity” and an “underdeveloped 

sense of responsibility,” leading to “recklessness, impulsivity, and 

heedless risk-taking.” Id. (quoting Roper v. Simmons, 543 U.S. 551, 569, 

125 S. Ct. 1183, 1195, 161 L. Ed. 2d 1, 21 (2005)). Further, the United 

States Supreme Court emphasized that children are more vulnerable to 

“ ‘negative influences and outside pressures,’ including from their family 

and peers.” Id. (quoting Roper, 543 U.S. at 569, 125 S. Ct. at 1195, 161 

L. Ed. 2d at 22). Finally, the Court noted that a child’s character is not 

as well formed as an adult’s and thus his actions are “less likely to be 

‘evidence of irretrievabl[e] deprav[ity].’ ” Id. (quoting Roper, 543 U.S. at 

570, 125 S. Ct. at 1195, 161 L. Ed. 2d at 22)).

Our cases, however, have all arisen in the context of a cruel and 

unusual punishment challenge to a term of imprisonment. This case 

raises the interesting question of whether the principles of our cruel and 

unusual punishment cases involving juvenile offenders apply to a 

challenge under the excessive fines clause of the Iowa Constitution—

article I, section 17—to an award of restitution in a criminal case under 

Iowa Code section 910.3B.

Iowa has a two-tiered restitution regime that applies in criminal 

cases. Under Iowa Code section 910.2, an offender is required to make 

restitution to the victims of crimes. The damages recoverable under Iowa 

Code section 910.2 include pecuniary damages, which are,
36

all damages to the extent not paid by an insurer, which a 

victim could recover against the offender in a civil action 

arising out of the same facts or event, except punitive 

damages and damages for pain, suffering, mental anguish, 

and loss of consortium.

Iowa Code § 910.1(3).

In addition, Iowa Code section 910.3B requires an offender 

convicted of a felony resulting in death to pay at least $150,000 in 

restitution to the victim’s estate. The restitution award under this 

section does not impede or supersede a civil action for damages arising 

out of the same facts, but is an offset against any judgment in favor of 

the victim. See id. §§ 910.3B(2), .8.

In State v. Izzolena, we considered a challenge to Iowa Code section 

910.3B on the ground that the imposition of a $150,000 restitution 

award amounted to an unconstitutional excessive fine under the Eighth 

Amendment of the United States Constitution and article I, section 17 of 

the Iowa Constitution. 609 N.W.2d 541, 545 (Iowa 2000). In Izzolena, 

the offender was found guilty of vehicular homicide and the district court 

imposed a $150,000 restitution award under Iowa Code section 910.3B. 

Id.

We first considered whether the Excessive Fines Clause was 

applicable to restitution under Iowa Code section 910.3B. Id. at 547. We 

canvassed the history of the Excessive Fines Clause, concluding that the 

framers of the United States Constitution were concerned with limiting 

the power of the government to punish. Id. at 549. We noted that our 

cases stated that restitution was not designed solely to compensate 

victims, but to rehabilitate and instill responsibility in criminal offenders. 

Id. at 548; see also State v. Kluesner, 389 N.W.2d 370, 372 (Iowa 1986); 

State v. Haines, 360 N.W.2d 791, 795 (Iowa 1985). We further noted that 

Iowa Code section 910.3B revealed punitive purposes. Izzolena, 609 
37

N.W.2d at 548. We noted that under the statute, no proof was required 

to support damages. Id. at 548–49. We also noted that an award of 

restitution is not dischargeable in bankruptcy, suggesting the punitive 

nature of the award. Id. at 549.

We thus held that although restitution might serve a remedial 

purpose, it was still subject to the Excessive Fines Clause because it 

served in part to punish. Id. We stated that under the Excessive Fines 

Clause, the test was whether the penalty is “grossly disproportional to 

the gravity of the defendant’s offense.” Id. (quoting United States v. 

Bajakajian, 524 U.S. 321, 337, 118 S. Ct. 2028, 2038, 141 L. Ed. 2d 

314, 331 (1998)).

We concluded, however, that the imposition of a $150,000 

restitution award on its face did not violate the Excessive Fines Clause. 

Id. at 551. We declined to address the question of whether the 

punishment was constitutional under the facts of the case as the 

argument was not raised in the district court or on appeal. Id.

Three members of the Izzolena court dissented. The dissenters 

discussed whether the fine imposed would deprive the defendant of a 

livelihood. Id. at 555 (Lavorato, J., dissenting). They stated that the 

proper course was to remand the matter to the district court for a 

“meaningful hearing.” Id. at 556 (emphasis omitted).

C. Application to Richardson. There are two potential attacks to 

the $150,000 fine in this case. The first line of attack is whether the fine 

imposed deprives Richardson of a livelihood. This is a consequential 

attack that concerns itself only with the amount of the award. There is 

substantial support for this line of attack in the literature and caselaw. 

Even offenders who commit serious criminal offenses cannot become 

wage slaves upon their release or encounter financial burdens so 
38

onerous that the offender ends up with an extended term of incarceration 

arising from inability to pay an excessive fine. See Cortney E. Lollar, 

Punitive Compensation, 51 Tulsa L. Rev. 99, 100 (2015) (decrying 

situations when criminal defendants end up being incarcerated for a 

longer period of time than for their original sentence due to a failure to 

pay a restitution obligation); Nicholas M. McLean, Livelihood, Ability to 

Pay, and the Original Meaning of the Excessive Fines Clause, 40 Hastings 

Const. L.Q. 833, 895–96 (2013) (suggesting excessive-fines test regarding 

livelihood includes ability to pay in light of earning capacity, financial 

resources, and burdens fine places on defendant and his dependents).

To the extent that Richardson seeks to raise a consequential type 

of claim based on deprivation of the ability to earn a livelihood, I agree 

that it should be deferred until Richardson is released from prison and 

until the terms of any restitution order are known. We have recognized 

that with respect to the obstacles created by imposition of restitution 

awards, Iowa law places limits on enforcement and collection of the fine 

and permits the court to structure a plan of restitution to help diminish 

the collateral consequences of a civil judgment. See State v. Klawonn, 

609 N.W.2d 515, 518–19 (Iowa 2000). The best time to measure the 

impact of any restitution award on the ability of Richardson to earn a 

livelihood will be measured on her release when a court can examine the 

burdens of the restitution award and the ability of the recently released 

Richardson to generate income.

There is another type of challenge to the restitution award, 

however, not one based upon the consequences of an award on the 

offender’s ability to earn a livelihood, but instead based on the gravity of 

the offense. See id. at 518. The focus is not on the impact of the amount 
39

of the award, but instead on the nature of the underlying crime. 

Analysis of the gravity of the offense is a fact-specific inquiry. Id.

In my view, inquiry into the gravity of the offense includes 

consideration of criminal culpability. The relatively recent case of 

Paroline v. United States, tends to support the view that relative 

culpability is a factor in determining applicability of the Excessive Fines 

Clause. See 572 U.S. ___, ___, 134 S. Ct. 1710, 1727–28, 188 L. Ed. 2d 

714, 734–35 (2014). Examination of relative culpability clearly allows an 

offender to offer evidence of reduced criminal culpability under the 

Ragland–Null–Lyle line of reasoning.

In this case, Richardson received a hearing. The question is, 

however, whether at the hearing the district court is required to consider 

evidence that her criminal culpability is reduced because of her age at 

the time of the crime and other related developmental issues. A 

reduction in the amount of the fine based on asserted lack of criminal 

culpability should not be determined at the time of release, when 

evidence will be hard to come by, but at the time of imposition of the 

restitution award.

I do not suggest the amount of restitution must be reduced in this 

case or in any other case, based on the lessened culpability of juvenile 

offenders. I do think, however, the fact that an offender was a juvenile 

must be considered in any punishment regime in which culpability is a 

factor.

Richardson’s expert at the hearing presented twenty-one 

developmental factors that reduced Richardson’s culpability in this 

matter. They included her age of fifteen at the time of the offense, the 

alcoholism and abandonment by her father, a learning disability, failure 

to bond with her mother, emotional and supervisory neglect, sexual 
40

assault, alcohol and drug abuse, heavy substance abuse proximate to 

the offense, inadequate mental health interventions, peer harassment 

and bullying, and domination by the predatory codefendant in the crime. 

Based on my review of the record, it is unclear whether the district court 

understood that it was required to consider the evidence offered by 

Richardson or whether the district court in fact considered the evidence 

in making its restitution award. The district court cited the evidence, but 

the district court did not make specific findings. 

Under the circumstances, I think the proper approach is to 

remand the case for further proceedings before the district court. On 

remand, the district court should expressly consider the Miller factors 

outlined in Ragland, Null, and Lyle, make appropriate factual findings, 

and set the amount of restitution award in this case.

I agree that any challenge to the $150,000 restitution award as 

excessive and in violation of the excessive fines clause of article I, section 

17 of the Iowa Constitution is not ripe.

II. Interpretation of Iowa Code Section 901.5(14).

I also respectfully dissent with respect to the majority’s 

interpretation of Iowa Code section 901.5(14) (2014). I conclude the 

statute means what is says, namely, a district court may suspend any 

part of a sentence, including restitution, in whole or in part. Because the 

district court did not appear to be aware of that discretion, the case 

should be remanded to the district court for further consideration.

Iowa Code section 901.5(14) was enacted in part in response to our 

holdings with respect to mandatory minimum sentences for juvenile 

offenders.

I begin with the language of Iowa Code section 901.5(14). This 

Code provision states,
41

Notwithstanding any provision in section 907.3 or any other 

provision of law prescribing a mandatory minimum sentence 

for the offense, if the defendant, other than a child being 

prosecuted as a youthful offender, is guilty of a public 

offense other than a class “A” felony, and was under the age 

of eighteen at the time the offense was committed, the court 

may suspend the sentence in whole or in part, including any 

mandatory minimum sentence, or with the consent of the 

defendant, defer judgment or sentence, and place the 

defendant on probation upon such conditions as the court 

may require.

Iowa Code § 901.5(14). As is apparent, the statue provides the court 

“may suspend the sentence in whole or in part, including any mandatory 

minimum sentence.”12 I draw two conclusions from the statutory 

language.

First, the legislature selected the term “sentence” in the statute. 

We have repeatedly held the term “sentence” includes restitution in a 

criminal case. See, e.g., Izzolena, 609 N.W.2d at 551 (“Restitution . . . is 

a part of the sentencing process.”); State v. Alspach, 554 N.W.2d 882, 

883 (Iowa 1996) (recognizing that “restitution is a phase of sentencing”); 

see also 4 Robert R. Rigg, Iowa Practice SeriesTM, Criminal Law § 33:5, at 

905 (2016–2017 ed.) (characterizing restitution as “part of the sentence 

imposed” under our cases). Others authorities have come to the same 

conclusion. See, e.g., United States v. Simpson, 885 F.2d 36, 38 (3d Cir. 

1989) (holding sentences include all consequences of convictions); United 

States v. Satterfield, 743 F.2d 827, 837–38 (11th Cir. 1984) (stating that 

Congress intended restitution to be part of the criminal sentence to make 

the victim whole); 6 Wayne R. La Fave, et al., Criminal Procedure

12In Lyle, 854 N.W.2d at 404, we held that mandatory minimum sentences for 

youths could not be imposed without a hearing to consider the factors outlined in 

Miller, 567 U.S. ___, 132 S. Ct. 2455, 183 L. Ed 2d 407. We have no occasion here to 

consider the extent to which Iowa Code section 901.5(14) complies with Lyle or any 

other authority.

 
42

§ 26.6(c), at 1068 (4th ed. 2015) (“[E]very jurisdiction provides for victim 

restitution to be included in a criminal sentence.” (Emphasis added.)); 

Keven Bennardo, Restitution and the Excessive Fines Clause, 77 La. L. 

Rev. 21, 21 (2016) (“Restitution is an important component of a criminal 

offender’s sentence.” (Emphasis added.)); Cortney E. Lollar, What is 

Criminal Restitution?, 100 Iowa L. Rev. 93, 94 (Iowa 2014) (“Restitution 

imposed as part of a criminal sentence has become a core component of 

criminal punishment.” (Emphasis added.)). If the legislature intended 

the statute to apply narrowly, it could have used narrow language. It did 

not.

As succinctly noted by an appellate court, the term “sentence” is 

not synonymous with the term “jail.” State v. Josephson, 858 P.2d 825, 

826 (Idaho Ct. App. 1993); see also Smarr v. Pa. Bd. of Prob. & Parole, 

748 A.2d 799, 801 (Pa. Commw. Ct. 2000) (holding a sentence is not 

limited to period of incarceration), disapproved of on other grounds by 

Martin v. Pa. Bd. of Prob. & Parole, 840 A.2d 299, 308–09 (Pa. 2003). The 

terms “sentence” and “judgment” are generally synonymous. See State v. 

Turbeville, 686 P.2d 138, 146–47 (Kan. 1984); accord People v. Adams, 

220 N.E.2d 17, 18 (Ill. App. Ct. 1962). A sentence is the judgment 

formally announced by the court after conviction imposing the 

punishment to be inflicted. Klouda v. Sixth Judicial Dist. Dep’t of Corr. 

Servs., 642 N.W.2d 255, 261 (Iowa 2002). And, the judgment includes 

any order of restitution.

Second, under the statute, the district court may suspend any part 

of the sentence, “including any mandatory minimum sentence.” Iowa 

Code § 901.5(14). The use of the term “including” demonstrates that the 

relief was not limited to mandatory minimum sentences. By using the 

term “including,” the legislature contemplated the statute had a larger 
43

reach than simply allowing the district court to suspend a mandatory 

minimum sentence. The logical conclusion is that it includes any part of 

the sentence, just as the language of the statute indicates.

I do not think the introductory and closing language of the statute 

changes the analysis. In the introductory “notwithstanding” phrase, the 

legislature makes clear that all mandatory minimums are affected by the 

statute. The closing language emphasizes the availability of a deferred 

judgment or probation. These phrases may have been added for 

emphasis, but they are not inconsistent with the notion that the district 

court may suspend any part of a sentence.

Based on my examination of the record, I conclude the district 

court did not realize that, under the statute, it had authority to consider 

“suspending” the total amount of restitution in its sentencing order 

based upon the youth of the offender. As a result, remand is required. 

See State v. Ayers, 590 N.W.2d 25, 32–33 (Iowa 1999).13

Wiggins and Hecht, JJ., join this dissent.

13The State has a brief heading indicating that Iowa Code section 901.5(14) is 

not retroactive and does not apply in this case. Aside from the heading, no argument is 

presented in its brief. We thus have no occasion to consider whether the statute is 

retroactive or prospective only. See Iowa Supreme Ct. Att’y Disciplinary Bd. v. McGrath, 

713 N.W.2d 682, 693 n.3 (Iowa 2006) (considering an issue waived when respondent 

raised an issue in an introductory heading, but made no argument nor cited authority 

in support of the issue); accord State v. Vaughan, 859 N.W.2d 492, 503 (Iowa 2015); 

Iowa Supreme Ct. Att’y Disciplinary Bd. v. Morris, 847 N.W.2d 428, 434 (Iowa 2014).