IN THE SUPREME COURT OF IOWA

No. 11–1214

Filed August 16, 2013

STATE OF IOWA,

Appellee,

vs.

DESIRAE MONIQUE PEARSON,

Appellant.

On review from the Iowa Court of Appeals.

Appeal from the Iowa District Court for Des Moines County, 

Cynthia H. Danielson, Judge.

A juvenile challenges her sentence as cruel and unusual under the 

State and Federal Constitutions. DECISION OF COURT OF APPEALS 

VACATED; DISTRICT COURT SENTENCE VACATED AND CASE 

REMANDED. 

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

and David Arthur Adams, Assistant Appellate Defenders, for appellant.

Thomas J. Miller, Attorney General, Elisabeth S. Reynoldson, 

Assistant Attorney General, Patrick C. Jackson, County Attorney, and 

Tyron T. Rogers, Assistant County Attorney, for appellee.
2

APPEL, Justice.

Seventeen-year-old Desirae Pearson was convicted by a jury of two 

counts of first-degree robbery and two counts of first-degree burglary for 

her actions at two separate homes on Thanksgiving night in 2010. The 

district court sentenced her to serve concurrent sentences for the 

convictions arising from each transaction—one count of first-degree 

robbery and one count of first-degree burglary—but ordered those two 

sentences be served consecutively. Because each first-degree robbery 

conviction carries a sentence of twenty-five years imprisonment subject 

to a seventy percent mandatory minimum, Pearson received a fifty-year 

sentence and will be ineligible for parole until she serves thirty-five years. 

Pearson argues her sentence is cruel and unusual as applied to her 

under the Eighth Amendment to the United States Constitution and 

article I, section 17 of the Iowa Constitution. For the reasons expressed 

below, we vacate Pearson’s sentence and remand the case to the district 

court for further proceedings.

I. Background Facts and Prior Proceedings.

Pearson was born in August 1993. According to her presentence 

investigation report, when she was six or seven years old, Pearson was 

hit by a car and hospitalized for several days. Though subsequent 

neurological and psychiatric testing did not reveal any particularized 

concerns, Pearson’s parents believed they saw changes in her behavior 

following the accident, especially with regard to anger management.

Prior to her arrest in the present matter, Pearson arguably had a 

penchant for simple misdemeanor theft and engaging in physical 

altercations. In 2002, she entered into an informal adjustment 
3

agreement following an allegation of fifth-degree theft.1 In 2003, she was 

alleged to have engaged in assault and fifth-degree theft, but her case 

was held open for further review. In 2004, she was alleged to have 

engaged in an assault, but she was warned and her case was dismissed. 

In 2006, she received a warning after allegedly engaging in disorderly 

conduct. She also entered into a second informal adjustment agreement

following an allegation of fifth-degree theft. In 2007, she was adjudicated 

delinquent for disorderly conduct following a fight with a fellow classmate 

at school. In 2008, she entered into her third informal adjustment 

agreement following an allegation of assault. Finally, in 2009, she was 

alleged to have engaged in disorderly conduct, again by fighting, but she 

was warned and her case was dismissed. Importantly, though Pearson 

has been the subject of frequent law enforcement intervention, prior to 

her arrest in the present matter she had only been adjudicated 

delinquent one time and had never been the subject of an adult criminal 

proceeding.

At the time of her arrest, Pearson lived with her parents, her two 

sisters, and her two young nephews. She has two older brothers and two 

older stepsiblings who lived outside the home. Her father’s police record 

contained two convictions for operating while intoxicated. Her mother’s 

record was clean. Pearson’s parents perceived her as one who “is angry 

and fights,” but indicated she is a “smart girl” they would like to see 

remain at home to finish high school and have a career. Pearson’s 

parents perceived that Pearson has a discipline problem. They resorted 

to grounding her as a method of punishment. 

 

1Under Iowa Code section 714.2(5), theft of property not exceeding $200 in value 

is fifth-degree theft. It is classified as a simple misdemeanor. Iowa Code § 714.2(5)

(2001).
4

Prior to her arrest, Pearson was in eleventh grade at the local 

alternative high school. The presentence investigation report indicated

Pearson spent much of her free time “running around with her friends.” 

She indicated that many of her friends were negative influences, and she 

claimed they were a significant reason she got into trouble. While 

Pearson did not acknowledge having a drug problem, she admitted to 

smoking marijuana daily as well as taking prescription drugs during the 

year prior to her arrest. Though she does not believe she has an alcohol

problem, she admitted to consuming alcohol on the day of her arrest. A 

predisposition report in a previous juvenile court matter indicated, 

however, that in 2008 evaluators at the University of Iowa hospitals 

diagnosed Pearson with mild to moderate child-onset conduct disorder, 

alcohol abuse, cannabis abuse, mathematic disorder, and a reading 

disorder.

On November 25, 2010, Pearson and her boyfriend, Devon 

Lukinich, armed themselves with BB guns that looked like handguns 

and went on a robbery spree in Burlington and West Burlington. At the 

time, Pearson was seventeen years and three months old. Lukinich was 

also approximately seventeen years old. Pearson and Lukinich wore 

bandanas to conceal their faces and gloves to guard against leaving 

fingerprints. Pearson also wore a parka with a fur-lined hood pulled over 

her head.

Around 9:15 p.m., Pearson and Lukinich were allegedly involved in 

an altercation with a Burlington resident that led to a 911 call. Though 

Pearson and Lukinich had fled the scene by the time police arrived, the 

resident relayed information about Pearson’s vehicle to police, who then 

put out the description of the vehicle to officers in the area.
5

Around 9:45 p.m., Pearson and Lukinich knocked on the door of 

Zachary Moore. When Moore opened the door, Pearson pointed her BB 

gun at Moore and told him that he was being robbed. Lukinich then 

informed Moore that Pearson was not joking and that he would shoot 

him if Pearson would not. Lukinich told Moore he was looking for the 

“weed money” as well as two individuals. Moore testified he laid on the 

floor while the pair took his laptop, television, iPod, a handheld 

videogame game system, a small global positioning device (GPS), and 

some cash.

After reconnecting his landline telephone, which had been 

disconnected by Pearson and Lukinich when they rummaged through his 

apartment, Moore called the police. When police arrived, Moore found 

his cell phone with the battery disconnected on his front step. Moore 

testified he believed Lukinich was in control of the robbery because 

Lukinich checked the other rooms of Moore’s home while Pearson sat on 

the couch, was the one who unhooked the television, and was the only 

one who spoke after they entered the apartment.

Pearson and Lukinich returned home to unload their loot.

2 The 

pair lived in the basement of a house owned by Lukinich’s mother’s

boyfriend. Pearson and Lukinich then went to a McDonald’s, where they 

purchased strawberry milk shakes.

Later that night, Pearson and Lukinich entered the home of Joan 

Wright, an eighty-one-year-old woman, and her son, Ronald Wright. At 

the time, Joan was in bed and Ronald was in the basement. Lukinich

climbed through a kitchen window and opened a door for Pearson. 

 

2Police later recovered Moore’s iPod and laptop in the basement but as of the 

time of the trial they had not recovered his television. No mention was made at trial as 

to the recovery of the portable gaming system or the GPS.
6

Pearson took cash out of a purse that was sitting on the kitchen table. 

The pair also took three pill bottles containing prescription medication. 

Lukinich then went into an unoccupied bedroom, while Pearson stood in 

the hallway just outside the doorway. After hearing noises and seeing 

the shadows of people she did not recognize, Joan got out of bed to 

investigate. She saw Lukinich in her son’s bedroom, holding Ronald’s 

two shotguns in their cases. Lukinich told Joan to go back to her 

bedroom, and Pearson told Joan to do as she was told. Lukinich and 

Pearson then opened their jackets, revealing the BB guns. When Joan 

yelled to her son that they were being robbed, Lukinich pushed her 

backward into a doorframe. The force of the blow fractured her shoulder. 

Lukinich decided to take one of Ronald’s shotguns, and the pair left the 

home. Police responded to the Wrights’ home around 11:44 p.m.

Just moments after they left the Wrights’ home, police 

apprehended Pearson and Lukinich in their car. At the time, Pearson 

was driving. After securing warrants to search the vehicle, police found

pill bottles bearing the names of Joan and Ronald. They recovered

Ronald’s shotgun and cash matching the amount stolen from Moore and 

Joan. They also discovered two BB guns, BBs, two bandanas, a 

stocking, and two pairs of gloves. When the officers first viewed the BB 

guns in the trunk of the vehicle, the officers thought the weapons were 

real handguns. One of the BB guns bore a strong resemblance to a 

Glock model 30 handgun and the other to a Taurus PT 1911 handgun.

On May 4, 2011, a jury found Pearson guilty of first-degree robbery 

and first-degree burglary for her actions at Moore’s house. The jury also 
7

found her guilty of first-degree robbery and first-degree burglary for her 

actions at the Wrights’ house.

3

Roughly two weeks later, Pearson wrote a letter to the district court 

in which she admitted the facts of each crime in substantially the same 

way they were presented at trial. According to Pearson, she took some 

pills, “chilled” at home for a while, and went to her family’s house. She 

and Lukinich then shoplifted two stores before Lukinich suggested they 

go to an elderly woman’s home, presumably for the purpose of 

committing a theft. While they were hiding in the bushes outside the 

woman’s home, Pearson wrote, Lukinich saw someone in Pearson’s car. 

Pearson stated they yelled at the man and started shooting at his house. 

They got into the car and, as they pulled away, a man came out of a 

house with a gun. Lukinich leaned out the window and continued firing 

shots.

According to Pearson, Lukinich then suggested going to another 

house where marijuana was located. Pearson indicated that Lukinich 

told her to knock on the door, that she told the person who answered the 

door (Moore) “to get down,” and that Lukinich stated he would shoot the 

man if she would not. Pearson admitted to taking cash and a laptop 

while looking for marijuana. She stated Lukinich stole the television and 

the iPod. She then admitted to dropping the stolen items off at home

before going to McDonald’s to get strawberry milk shakes.

After driving around for some time, the pair stopped to check out 

another house (the Wrights’). Pearson wrote that Lukinich climbed 

through a window and unlocked the door for her, that they took some 

pills and cash from the kitchen, and that although she told Lukinich 

 

3The jury found Lukinich guilty of the same crimes.
8

they should leave, he started to look through another room. Pearson

recounted how Joan confronted them, how Lukinich told Joan to go back 

to bed, how she repeated Lukinich’s statement to Joan, and how 

Lukinich showed Joan his weapon. Pearson stated she started to leave 

before hearing stumbling and observed Lukinich behind her. Pearson

then noted their car was stopped moments later by police.

After expressing remorse for her actions, the victims, and her 

family, Pearson admitted that she deserved punishment for her conduct, 

but requested that she receive a lesser sentence than the maximum she 

was facing. She wrote, “I always thought that going to prison could not 

happen to me because I would never do anything serious enough for it to 

happen.” Pearson continued, “I know now it can happen to anyone if you 

don’t think before you act, if you are under the influence, and if you 

think you won’t get caught.”

In mid-July, Pearson wrote a second letter to the district court. In 

this letter, Pearson stated she was “not the person who committed those 

crimes” because at the time she “was influenced and on drugs.” Pearson 

asked for “a second chance to live [her] life other than behind bars.” She 

also expressed remorse for the victims and asked for “another 

punishment instead of spending 25 years in prison.”

Pearson and Lukinich appeared for sentencing on July 22. Ronald

Wright gave an impact statement in which he stated his mother spent 

two months in rehab following surgery. He also expressed his opinion 

that Pearson and Lukinich should receive at least half of their potential 

total sentence. A victim coordinator read Joan Wright’s impact 

statement aloud. Joan’s statement informed the district court that her 

injuries sustained during the robbery required the implantation of a 

metal plate in her shoulder, secured by twenty to twenty-five screws and 
9

pins.4 Joan’s statement reiterated that she spent two months in the 

hospital and a nursing home following surgery and indicated she still 

experienced pain in her arm. Joan stated that she suffered from 

worsening vision problems because she missed an eye appointment 

following her shoulder surgery, that she was still frightened to be left 

alone at home, and that she missed taking flowers to her mother’s grave 

on Christmas because she was in the nursing home. The victim 

coordinator read a similar statement from Moore, who indicated that he 

was still negatively affected by the events of the robbery and that he 

believed Pearson and Lukinich should receive life sentences.

The State asked the district court to order concurrent sentences 

for Pearson for the robbery and burglary at Moore’s home and concurrent 

sentences for the robbery and burglary at the Wrights’ home. The State 

further requested that the sentences stemming from each transaction 

run consecutively to result in a total of fifty years.

Pearson’s attorney acknowledged the mandatory minimums and 

argued Pearson should be sentenced to concurrent sentences totaling 

twenty-five years. Pearson’s attorney cited the United States Supreme 

Court’s statements that juveniles are less deserving of the most severe 

punishments due to their lessened culpability and that juveniles “must 

have some meaningful opportunity to obtain release based upon

demonstrated maturity and rehabilitation.” Pearson’s attorney argued 

that if Pearson was released on parole after serving 17.5 years, the 

mandatory minimum of a twenty-five-year sentence, she would be more 

likely to be able to contribute to society in a meaningful way than she 

 

4At trial, Joan’s surgeon testified that Joan would not regain full strength or full 

mobility in her shoulder.
10

could if released in her fifties. When the district court asked Pearson for 

her statement, she replied that she did not have anything to say other 

than what she included in her written statement to the court.

In sentencing Pearson to fifty years, the district court found that 

while her file reflected a troubled family life, a troubled history, the lack 

of a support structure, and negative influences, these circumstances did 

not justify her criminal actions. The court considered Joan’s serious 

injuries and the fact that the victims did not feel safe in their homes. 

The court emphasized Pearson and Lukinich had “thrown their futures 

away,” stating, “It’s a tragedy in terms of your futures. There is no doubt 

that it’s a waste of your lives, but it’s the unalterable choice that you 

have made.”

The district court continued, 

I understand the argument that as young people you may 

not have had wisdom and the ability to distinguish what the 

result of your actions were going to be, but it doesn’t 

diminish in any way the results of your actions.

The district court then observed Pearson had prior experience with the 

court system, stating, “[T]he court system has been trying for years to 

provide Miss Pearson with the support, the education, the training, the 

life skills necessary to turn her life around. She hasn’t done so.”

The district court found Pearson had committed a series of bad 

choices. The court recognized that Pearson was one month shy of her 

eighteenth birthday at the time of sentencing and that her record 

indicated five curfew violations as well as a number of other matters 

processed by the juvenile court system. It further noted that she had 

been expelled from the traditional school system in ninth grade, that she 

worked at McDonald’s, and that she had parents and siblings in the 

area. The district court found that Pearson had a recurring issue with 
11

assaults since the age of fourteen and that she and her family had been 

provided with numerous services to address and resolve underlying 

issues. The court expressed its belief that Pearson and others who wrote 

statements in her favor wanted to blame her friends, alcohol use, drug 

use, a bad family relationship, and poor parenting, but that “the bottom 

line is that you are responsible for your actions and you’re responsible 

for your choices.” The court continued, “What is clear is that you knew 

what you were doing, you understood the impact that it was going to 

have on your victims, and you did it.”

The district court interpreted Pearson’s second letter requesting a 

punishment other than a twenty-five-year sentence as asking for an 

alternative form of punishment to a prison sentence, to which it stated, 

“That’s not the reality here. There is no alternative. The only question 

before the court today is whether the four sentences will run 

concurrently or consecutively.” The court found Pearson’s second letter 

signified Pearson did “not understand the significance of the crime that 

[she had] committed and the impact,” based on the fact she had been 

repeatedly informed each conviction carried a twenty-five-year sentence.

The district court also expressed concern the judicial system was 

providing “repeated opportunities to young offenders to avoid the 

ramifications of their actions.” The court continued, “I think people truly 

believe that anything you do prior to turning 18 is gone on your 18th 

birthday, and that’s not the case.” The court concluded granting four 

concurrent sentences on four class “B” forcible felonies “would imply that 

a criminal defendant can only receive one sentence regardless of the 

number or seriousness of their crime,” which would “continue to send 

the wrong message to any other individuals considering committing 

criminal acts.”
12

In addition, the district court acknowledged the Supreme Court’s 

statements about juveniles with regard to their “immature decisionmaking and their ability to change and rehabilitate.” The district court 

indicated its belief that juveniles should have “the opportunity to do 

those things, and the benefit of having some meaningful opportunity to 

ultimately be released.”

Finally, after the court recognized that a potential release date is

often a motivating factor to an inmate, it stated the primary purpose of 

Pearson’s sentencing was protection of the public, not rehabilitation. 

The court stated, “I don’t believe that the focus here today should be on 

the rehabilitation of the defendants, but rather the protection of society 

in these particular cases.” The district court explained,

The question of whether Miss Pearson will be able to 

contribute to society in any meaningful way is not really the 

issue that the Court finds determinative, particularly in the 

face of the fact that Miss Pearson has previously received 

any number of rehabilitation attempts in the past to set her 

on the correct path without success. 

After sentencing Pearson, the district court concluded by saying it 

did not take the sentencing of juveniles to lengthy prison terms lightly. It 

also expressed its hope Pearson would take advantage of the 

rehabilitative and educational programs offered in prison so that she

could ultimately return to the community at the appropriate time.

Pearson appealed, and we transferred her case to the court of 

appeals. The court of appeals upheld Pearson’s sentence. The court of 

appeals determined Pearson’s actions fell “squarely within the welldefined parameters” of the robbery statute. The court of appeals agreed 

with the findings of the district court that Pearson was nearly an adult 

when she committed her crimes, that she had a history of assaultive 

behavior, and that she had failed to take advantage of rehabilitative 
13

opportunities. The court acknowledged Pearson would have to spend the 

majority of her life in prison, but held her sentence was not 

disproportionate to her crimes, finding the district court had properly 

considered Pearson’s age.

We granted further review.

II. Standard of Review.

A challenge to a sentence as illegal may be brought at any time. 

State v. Bruegger, 773 N.W.2d 862, 869 (Iowa 2009). We review 

constitutional challenges to illegal sentences de novo. Id.

III. Discussion.

A. Positions of the Parties. Pearson argues her sentence is 

unconstitutional as applied to her under the Eighth Amendment to the 

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

Constitution. Pearson notes that she was only seventeen years old at the 

time of the crimes and that under the district court’s sentence, she is not 

eligible for parole until she is almost fifty-three years old. She argues the 

district court was not interested in rehabilitation, but rather solely in 

incapacitation. Pearson argues that she never took the lead in any of the 

robberies and that she took only minimal actions secondary to those of 

Lukinich, who threatened to shoot Moore, who was more active in 

looking for items to steal in the homes of Moore and the Wrights, and 

who pushed Joan Wright to the ground. She also cites her relationship 

with Lukinich and her obvious immaturity.

Pearson also argues a seventy percent mandatory minimum for 

first-degree robbery is not in line with other offenses subject to seventy 

percent mandatory minimums as applied to her. She asserts the

aggregated seventy percent mandatory minimums lead to punishment far 

harsher than that imposed in other jurisdictions for similar crimes.
14

The State responds that the thirty-five-year minimum sentence is 

not grossly disproportional under the test outlined by the United States 

Supreme Court in Rummel v. Estelle, 445 U.S. 263, 100 S. Ct. 1133, 63 

L. Ed. 2d 382 (1980), Solem v. Helm, 463 U.S. 277, 103 S. Ct. 3001, 77 

L. Ed. 2d 637 (1983), and Ewing v. California, 538 U.S. 11, 123 S. Ct. 

1179, 155 L. Ed. 2d 108 (2003) (plurality opinion). The State argues that 

even if Pearson’s case warrants an as-applied review, this court should 

defer to the legislature because the legislature is the “clearest and most 

reliable objective evidence of how our society views a particular 

punishment today.” The State asserts Pearson’s sentence is not grossly 

disproportionate to her crime because of the nature of the crimes which 

caused the victims fear and pain. The State points to Pearson’s history 

with the juvenile justice system as support for the proposition that her 

sentence fits her crime. The State then turns to intrajurisdictional and 

interjurisdictional analyses, concluding Pearson has failed to establish 

either prong. The State further argues that to the extent Pearson has 

raised a claim under the Iowa Constitution, she fails to demonstrate her 

case is a “rare” case warranting an as-applied review. See Bruegger, 773 

N.W.2d at 884.

B. Analysis. At the outset, we consider the applicability of the 

United States Supreme Court’s approach in Miller v. Alabama, 567 U.S. 

___, 132 S. Ct. 2455, 183 L. Ed. 2d 407 (2012), to Pearson’s sentencing. 

In State v. Null, 836 N.W.2d 41 (Iowa 2013), also decided today, we 

explored in detail the contours of Miller, as well as the Supreme Court’s 

decisions in Roper v. Simmons, 543 U.S. 551, 125 S. Ct. 1183, 161 L. Ed. 

2d 1 (2005), and Graham v. Florida, 560 U.S. 48, 130 S. Ct. 2011, 176 L. 

Ed. 2d 825 (2010). We need not repeat the analysis here. In Null, we 

reversed a juvenile’s sentence and remanded the case to the district 
15

court for reconsideration in light of Miller. 836 N.W.2d at 86. On 

remand, we emphasized the district court must recognize that because 

“ ‘children are constitutionally different from adults,’ they ordinarily 

cannot be held to the same standard of culpability as adults in criminal 

sentencing.” Id. at 74 (quoting Miller, 567 U.S. at ___, 132 S. Ct. at 2464, 

183 L. Ed. 2d at 418). We emphasized that if the district court believes 

an exception to this general rule applies, the district court should make 

specific findings. Id. In making such findings, we required the district 

court to “go beyond a mere recitation of the nature of the crime, which 

the Supreme Court has cautioned cannot overwhelm the analysis in the 

context of juvenile sentencing.” Id. at 74–75 (citing Graham, 560 U.S. at 

___, 130 S. Ct. at 2032, 176 L. Ed. 2d at 847, and Roper, 543 U.S. at 

572–73, 125 S. Ct. at 1197, 161 L. Ed. 2d at 24). We stated the typical 

characteristics of youth, such as immaturity, impetuosity, and poor risk 

assessment, are to be regarded as mitigating instead of aggravating

factors. Id. (citing Miller, 567 U.S. at ___, 132 S. Ct. at 2467–69, 183 L. 

Ed. 2d at 422–24).

In addition, we emphasized the district court must recognize that

“ ‘[j]uveniles are more capable of change than are adults’ and that as a 

result, ‘their actions are less likely to be evidence of “irretrievably 

depraved character.” ’ ” Id. (quoting Graham, 560 U.S. at ___, 130 S. Ct. 

at 2026, 176 L. Ed. 2d at 841). We noted that while some juvenile 

offenders might be irreparably lost, it is very difficult to identify those 

falling into that category and that even trained psychologists have 

difficulty making this type of prediction. Id.; accord Graham, 560 U.S. at 

___, ___, 130 S. Ct. at 2026, 2029, 176 L. Ed. 2d at 841, 844; Roper, 543 

U.S. at 573, 125 S. Ct. at 1197, 161 L. Ed. 2d at 24. “Because 

‘incorrigibility is inconsistent with youth,’ care should be taken to avoid 
16

‘an irrevocable judgment about [an offender’s] value and place in 

society.’ ” Null, 836 N.W.2d at 75 (quoting Miller, 567 U.S. at ___, 132 

S. Ct. at 2467, 183 L. Ed. 2d at 422). Finally, in Null, a case involving a 

homicide, we indicated a very long prison sentence of more than fifty-two 

years without the possibility of parole should be “rare or uncommon.” Id. 

Here, the district court sentenced Pearson to consecutive terms 

totaling thirty-five years imprisonment without the possibility of parole. 

We think in light of the principles articulated in Miller and Null that it 

should be relatively rare or uncommon that a juvenile be sentenced to a 

lengthy prison term without the possibility of parole for offenses like 

those involved in this case. Otherwise, we would be ignoring the 

teaching of the Roper–Graham–Miller line of cases that juveniles have less 

culpability than adults, that the few youth who are irredeemable are 

difficult to identify, and that juveniles have rehabilitation potential 

exceeding that of adults.

Though Miller involved sentences of life without parole for juvenile 

homicide offenders, its reasoning applies equally to Pearson’s sentence of 

thirty-five years without the possibility of parole for these offenses. 567 

U.S. at ___, 132 S. Ct. at 2465, 183 L. Ed. 2d at 420 (concluding that 

nothing Graham “said about children—about their distinctive (and 

transitory) mental traits and environmental vulnerabilities—is crimespecific”); accord Null, 836 N.W.2d at 65. Therefore, we think a minimum 

of thirty-five years without the possibility of parole for the crimes involved 

in this case violates the core teachings of Miller. We think the principles 

in Miller as developed by the Supreme Court in its Eighth Amendment 

jurisprudence are instructive on the resolution of this case. As in Null, 

we independently apply article I, section 17 of the Iowa Constitution, 
17

adopt the principles underlying Miller, and apply them to the facts of this 

case. See 836 N.W.2d at 70 & n.7; see also Bruegger, 773 N.W.2d at 

883–84.

We have no occasion to consider whether Miller’s principles must 

be applied to all juvenile sentences. Instead, we need only decide that 

article I, section 17 requires an individualized sentencing hearing where, 

as here, a juvenile offender receives a minimum of thirty-five years

imprisonment without the possibility of parole for these offenses and is 

effectively deprived of any chance of an earlier release and the possibility 

of leading a more normal adult life.

Nothing in Bruegger is to the contrary. In Bruegger, we considered 

whether the sentence imposed upon an adult amounted to cruel and 

unusual punishment. 773 N.W.2d at 878–88. While the adult sentence 

was enhanced by juvenile adjudication, prevailing federal law, which 

Bruegger did not contest, emphasized that such sentences should be 

treated as adult sentences for adult crimes. 773 N.W.2d at 885–86. 

Further, though we indicated an as-applied challenge brought by an 

adult convicted of crime should be rare and described the circumstances 

that made Bruegger’s case meet that demanding standard,

5 but we did 

not circumscribe or limit the types of as-applied challenges that may be 

made under the Eighth Amendment or article I, section 17 of the Iowa 

Constitution for adult convictions, let alone juvenile convictions, or 

indicate the factors considered were applicable in every case or 

exhaustive. Id. at 884–85. Certainly, nothing in Bruegger should be 

 

5In Bruegger, the particular circumstances were a broadly framed underlying 

crime, Bruegger’s young age when he committed the prior offense, and a geometric 

increase in penalty due to the enhancement resulting from the juvenile adjudication. 

773 N.W.2d at 884–85.
18

read as contrary to the principles of the Roper–Graham–Miller trilogy with 

respect to sentences imposed as a result of juvenile convictions.

We also note that the district court here did not have the benefit of 

Miller or Null when it sentenced Pearson. Our review of the district 

court’s handling of Pearson’s sentencing convinces us the district court 

did not consider the principles underlying Miller. For example, the 

district court indicated it understood the argument that Pearson, as a 

young person, may lack the ability to appreciate the results of her 

actions, but then stated that argument “doesn’t diminish in any way the 

results of [her] actions.” It is true that Pearson’s youthfulness does not 

lessen the results of her actions insofar as the impact they had on the 

lives of the victims, yet under Miller and Null, a juvenile’s culpability is 

lessened because the juvenile is cognitively underdeveloped relative to a 

fully-developed adult. Miller, 560 U.S. at ___, ___, 132 S. Ct. at 2464–69, 

2475, 183 L. Ed. 2d at 418–24, 430; Null, 836 N.W.2d at 74. This 

lessened culpability is a mitigating factor that the district court must 

recognize and consider. Miller, 560 U.S. at ___, 132 S. Ct. at 2469, 183 

L. Ed. 2d at 424; Null, 836 N.W.2d at 60.

The district court declared, “[T]he bottom line is that you are 

responsible for your actions and you’re responsible for your choices.” 

The court further stated Pearson did “not understand the significance of 

the crime that [she had] committed and the impact.” While it is true that 

juveniles lack the maturity to fully understand the consequences of their 

actions, under Miller and Null this too is a mitigating factor. Miller, 567

U.S. at ___, 132 S. Ct. at 2468–69, 183 L. Ed. 2d at 422–23; Null, 836

N.W.2d at 60. Again, the district court did not treat it as such.

Finally, the district court stated, “I don’t believe that the focus here 

today should be on the rehabilitation of the defendants, but rather the 
19

protection of society in these particular cases.” Yet, under Miller, 

Graham, and Null, rehabilitation is an important factor and to predict 

that a juvenile cannot be rehabilitated is very difficult. Miller, 567 U.S. at 

___, 132 S. Ct. at 2469, 183 L. Ed. 2d at 424; Graham, 560 U.S. at ___, 

___, 130 S. Ct. at 2026, 2029, 176 L. Ed. 2d at 841, 844; Null, 836

N.W.2d at 67; see also Roper, 543 U.S. at 573, 125 S. Ct. at 1197, 161 

L. Ed. 2d at 24. The district court should have considered rehabilitation 

as a factor in sentencing Pearson.

In sum, the district court emphasized the nature of the crimes to 

the exclusion of the mitigating features of youth, which are required to be 

considered under Miller and Null. Accordingly, we vacate Pearson’s 

sentence and remand the case to the district court for application of the

Miller standards as described in Null and this opinion.

Based on this disposition, it is unnecessary for us to address other 

arguments raised by Pearson in challenging her sentence. We do not 

consider, for instance, whether the sentence would violate the

proportionality concepts of Weems v. United States, 217 U.S. 349, 367, 

30 S. Ct. 544, 549, 54 L. Ed. 793, 798–99 (1910), Solem, Ewing, or any 

other proportionality test that might be applied in this case or any other 

issue related to Pearson’s sentencing. These challenges are not ripe at 

this time and must wait until after the district court has resentenced 

Pearson.

IV. Conclusion.

For the above reasons, we vacate the sentence imposed by the 

district court and remand the case to the district court for further 

proceedings.

DECISION OF COURT OF APPEALS VACATED; DISTRICT 

COURT SENTENCE VACATED AND CASE REMANDED. 
20

All justices concur except Cady, C.J., who concurs specially; and

Mansfield, Waterman, and Zager, JJ., who dissent. Zager, J., also writes 

a separate dissent. 
21

#11–1214, State v. Pearson

CADY, Chief Justice (concurring specially). 

I concur with the majority opinion but write separately to 

emphasize that, although the holding in this case is properly limited to 

its facts, neither the Supreme Court’s opinion in Miller v. Alabama, 567 

U.S. ___, 132 S. Ct. 2455, 183 L. Ed. 2d 407 (2012), nor our decisions 

today in State v. Ragland, 836 N.W.2d 107 (Iowa 2013), and State v. Null, 

836 N.W.2d 41 (Iowa 2013), express the full scope of the changing 

landscape of juvenile justice. This landscape should be observed by all 

judges and carefully considered when sentencing juvenile offenders as 

adults. 

An obvious correlation exists between the life-without-parole 

context of Miller and Graham6 and sentences that effectively deprive 

offenders of a meaningful opportunity for release in their lifetime. It 

comes as no surprise, then, that our decisions today recognize de facto 

life sentences very clearly exist. See Ragland, 836 N.W.2d at 109–26; 

Null, 836 N.W.2d at 45–87. Yet, applying the teachings of Roper,

7

Graham, and Miller only when mortality tables indicate the offender will 

likely die in prison without ever having the opportunity for release based 

on demonstrated maturity inadequately protects the juvenile’s 

constitutional rights. 

Indeed, limiting the teachings and protections of these recent cases 

to only the harshest penalties known to law is as illogical as it is unjust. 

In Null, we thoroughly examined recent advances in neuroscience, which 

illustrate the decreased culpability of the juvenile offender. See Null, 836

 

6Graham v. Florida, 560 U.S. 48, 130 S. Ct. 2011, 176 L. Ed. 2d 825 (2010).

7Roper v. Simmons, 543 U.S. 551, 125 S. Ct. 1183, 161 L. Ed. 2d 1 (2005).
22

N.W.2d at 54–55. While this logic has been applied in the context of the 

death penalty and life-without-parole sentences, it also applies, perhaps 

more so, in the context of lesser penalties as well. After all, as the Court 

declared in Miller, nothing that Graham “said about children—about their 

distinctive (and transitory) mental traits and environmental 

vulnerabilities—is crime-specific.” Miller, 567 U.S. at ___, 132 S. Ct. at 

2465, 183 L. Ed. 2d at 420. 

Nor could it be. As the background of this case demonstrates, a 

juvenile’s impetuosity can lead them to commit not only serious crimes, 

but considerably pettier crimes as well. Although Desirae Pearson was a 

participant of a senseless evening of crime—all while stopping in the 

middle to enjoy a milk shake with her boyfriend—she also committed 

theft in the fifth degree at several other times during her youth. Can we 

honestly say, as a matter of law, that the transient immaturity of 

Pearson’s youth played no part at all in the commission of these lesser 

offenses, decreasing her culpability? The answer, of course, is that we 

cannot. 

Thus, the juvenile offender’s decreased culpability plays a role in 

the commission of both grievous and petty crimes. Notably, even Chief 

Justice Roberts’s dissenting opinion sensed Miller’s reasoning applies 

well beyond the context of homicide and calls into question a number of 

current practices, such as trying juveniles as adults and sentencing 

juveniles according to mandatory minimums. See id. at ___, 132 S. Ct. at

2482, 183 L. Ed. 2d at 437–38 (Roberts, C.J., dissenting). It may be 

natural to assume the stakes are simply lower regarding the latter 

category of crimes, but denying juveniles who commit lesser crimes the 

protections afforded in Miller denies them their rights under the Eighth 

Amendment and article I, section 17 of the Iowa Constitution no less 
23

than denying a juvenile who commits a considerably more serious crime 

the very same protections. 

The court’s holding is limited to the bizarre facts of this case—both 

Pearson’s senseless and violent, though nonhomicidal, crime spree and 

the district court’s approach during sentencing. After all, Pearson 

somehow faced more time in prison without the possibility of parole than 

all offenders except a juvenile convicted of first-degree murder. See Iowa 

Code § 902.1(2) (Supp. 2011). Consequently, Pearson’s constitutional 

claim prevails under even the narrowest step forward in our 

jurisprudence. 

Thus, wisely, the decision today takes a modest, incremental step, 

one with which I totally agree. Yet, our understanding of adolescent 

neuroscience and our approach to juvenile justice are rapidly evolving. 

Children are indeed different for the purposes of criminal sentencing. 

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

(majority opinion). The full breadth of the protections articulated in 

Roper, Graham, and Miller, as well as our own trilogy of cases we decide 

today, may yet reach further towards justice. We leave that conclusion 

for another day. In the meantime, these cases should be instructive to 

all judges today that the Miller factors should be applied to all juveniles 

sentenced as adults regardless of the crime. As the Attorney General’s 

National Task Force on Children Exposed to Violence stated in a 

thoughtful and detailed policy recommendation: “We should stop treating 

juvenile offenders as if they were adults, prosecuting them as adults in 

adult courts, incarcerating them as adults, and sentencing them to 

harsh punishments that ignore their capacity to grow.” Office of Juvenile 

Justice & Delinquency Prevention, U.S. Dep’t of Justice, Report of the 

Attorney General’s National Task Force on Children Exposed to Violence
24

§ 6.9, at 189 (2012). In other words, applying the teachings of Miller

irrespective of the crime or sentence is simply the right thing to do, 

whether or not required by our Constitution. 
25

#11–1214, State v. Pearson

MANSFIELD, Justice (dissenting).

I respectfully dissent. The sentence in this case is a harsh one. Its 

severity results from a combination of two things: (1) the general 

assembly’s decision to require persons who commit first-degree robbery 

to serve seventeen and one-half years in prison (or seventy percent of 

their twenty-five-year sentence) before being eligible for parole; and 

(2) the district court’s decision to “box car” (or run consecutively) the two 

first-degree robbery sentences in this case.

The severity of this sentence is only partly related to the 

defendant’s age. This sentence would have been harsh even if the 

defendant had been legally an adult, rather than just seventeen years 

and three months old, at the time she went on this crime spree with her 

eighteen-year-old boyfriend. 

Needless to say, I am not a member of the general assembly, nor

am I the trial judge. I do not get to decide the proper sentence in this 

case. In addition, the defendant has not argued that the district court 

abused its sentencing discretion.8

Thus, the only question before us is whether the sentence violates 

the United States or Iowa Constitution because it is “cruel and unusual.” 

For the reasons stated herein, I agree with the court of appeals that the 

sentence is not so “grossly disproportionate” as to render it 

 

8Another serious issue, not raised by Pearson on appeal, but touched upon in 

some of the correspondence with the district court, is that Pearson is African-American. 

Twenty-five percent of Iowa’s prison population is African-American, as compared to 

2.9% in the general population. Iowa Dep’t of Human Rights, Div. of Criminal & 

Juvenile Justice Planning, Iowa Prison Population Forecast FY 2011–2021 (2011), at 29, 

available at http://www.humanrights.iowa.gov/cjjp/images/pdf/Forecast2011.pdf. 

This is due in large part to the number of African-Americans serving “70 percent” 

sentences. Id. at 2.
26

unconstitutional. See State v. Oliver, 812 N.W.2d 636, 650–51 (Iowa 

2012) (citation and internal quotation marks omitted).

I. Some Key Facts.

The majority has accurately described the facts of this case. 

However, I would like to emphasize a few points.

The guns wielded by Pearson and her boyfriend Lukinich during 

the robberies appeared to be real handguns to the victims and initially to 

the police. Only later when the police picked the guns up did they learn 

the guns were CO2 powered BB guns.

The first robbery victim described a terrifying scene. He opened 

the door; Pearson pointed one of the guns at him and told him he was 

being robbed. Lukinich then pointed his own gun at the victim and said, 

“If she don’t shoot you, I will.” The victim was forced to lie down on the 

floor while Pearson and Lukinich rummaged through the house and 

grabbed numerous items.

The main victim of the second robbery turned out to be an elderly 

woman. While getting ready for bed, she heard noises in the night and 

went downstairs with her walker. She was confronted by Pearson and 

Lukinich, both wielding what appeared to be handguns. She yelled for 

her son who lived with her. As soon as she called out, Lukinich pushed 

her against the wall, causing her shoulder to fracture in several places. 

Pearson and Lukinich then left the house with a shotgun, cash, and 

prescription medicine they had taken.

Both of these victims submitted written victim impact statements, 

which were read by the victim coordinator at sentencing. The first victim 

stated, “I truly believe that they [Pearson and Lukinich] should both 

remain behind bars for the extent of my life and theirs.” The second 

victim asked that each of the defendants be imprisoned for fifty years. 
27

The State requested consecutive sentences for each defendant on the two 

robberies.

The presentence investigation does not indicate that Pearson came 

from a troubled family background. Into her high school years, she lived 

at home with her parents, who had been married for the past twentythree years. Her father was disabled and stayed at home during the day; 

her mother had been working for the same employer for the past twelve 

and one-half years. According to Pearson’s juvenile court officer, “There 

are no concerns of them trying to cover up their daughter’s negative 

behaviors. They are very concerned for Desirae’s well being.”

Pearson’s juvenile record dates back to elementary school.9 When 

she was fourteen, Pearson was expelled from her local high school for a 

serious assault on another female student. She received juvenile court 

services and a year later was allowed to return to that school. The 

following year, when Pearson was nearly sixteen, she was discharged 

from juvenile court services. She also began attending the alternative 

high school, which she was still attending at the time of her and 

Lukinich’s crime spree. There are indications that Pearson regularly 

used marijuana and possibly alcohol and prescription drugs.

After Pearson was convicted of the two robberies (and two 

burglaries) arising out of these home invasions, and while she was 

awaiting sentencing, she wrote two letters to the judge. In the first letter, 

she confessed her crimes and requested “a lesser sentence than what I 

am facing.” However, just before sentencing, Pearson sent the court 

 

9As noted by the majority, Pearson’s parents believed that her behavior changed 

after she was hit by a car when she six or seven years old and hospitalized for several 

days. However, the University of Iowa hospitals ran both neurological and psychiatric 

exams that did not detect anything amiss.
28

another, shorter letter in which she asked not to go to prison, i.e., “a 

second chance to live life other than behind bars.”

The district court certainly was aware of Pearson’s youth. In fact, 

Pearson’s attorney briefed and argued Graham v. Florida, 560 U.S. 48, 

130 S. Ct. 2011, 176 L. Ed. 2d 825 (2010). Miller v. Alabama, 567, U.S. 

___, 132 S. Ct. 2455, 183 L. Ed. 2d 407 (2012), had not yet been decided. 

He urged that juveniles are “less deserving of the most severe 

punishments . . . more capable of change and less likely to show 

evidence of irretrievably depraved character than adults.” He added that 

a juvenile offender “must have some meaningful opportunity to obtain 

release based upon demonstrated maturity and rehabilitation.” He 

concluded, “[T]he fact that juveniles tend to make immature decisions 

should influence the Court to sentence Miss Pearson to the minimum 

possible, which is still in my opinion a very large sentence of 25 years.”

The district court commented on what it perceived to be Pearson’s 

“troubled” family life and history, and “very negative influences” on her. 

It noted that efforts by the juvenile court system to rehabilitate her had 

apparently been unsuccessful. It also indicated that it did not believe 

Graham was applicable because “we are not discussing a life sentence for 

Miss Pearson.” Ultimately, the court decided to make the 

robbery/burglary sentences for the second home invasion consecutive to 

the robbery/burglary sentences for the first home invasion. The district 

court commented, “I don’t believe that the focus here today should be on 

the rehabilitation of the defendants, but rather the protection of society 

in these particular cases.” It also pointed out the seriousness of the 

injuries to the second victim.
29

II. Because This Case Does Not Involve a Sentence of Life 

Without Parole (LWOP) or Its Practical Equivalent, Graham and 

Miller Do Not Apply.

As I’ve already indicated, I carry no particular brief for the 

sentence Pearson received in this case. Although it does not exceed what 

the State and the two main victims requested, it is longer than I would 

have imposed. But the district court is surely right: It is not a life 

sentence.

Any fair reading of Graham and Miller requires us to acknowledge 

this point. In Graham, the Court held that “for a juvenile offender who 

did not commit homicide the Eighth Amendment forbids the sentence of 

life without parole.” 560 U.S. at ___, 130 S. Ct. at 2030, 176 L. Ed. 2d at 

845 (“This Court now holds . . . .”). The Court went on: 

A State is not required to guarantee eventual freedom to a 

juvenile offender convicted of a nonhomicide crime. What 

the State must do, however, is give defendants like Graham 

some meaningful opportunity to obtain release based on 

demonstrated maturity and rehabilitation.

Id. at ___, 130 S. Ct. at 2030, 176 L. Ed. 2d at 845–46. The Court made 

clear that it was establishing a “categorical rule.” Id. at ____, 130 S. Ct.

at 2032, 176 L. Ed. 2d at 848. But of course, Pearson falls outside the 

category. She will be eligible for parole when she is in her early fifties. 

She has a “meaningful opportunity to obtain release based on 

demonstrated maturity and rehabilitation.” Id. at ___, 130 S. Ct. at 

2030, 176 L. Ed. 2d at 846.

In Miller, the Court decided that “the Eighth Amendment forbids a 

sentencing scheme that mandates life in prison without possibility of 

parole for juvenile offenders.” 567 U.S. at ___, 132 S. Ct. at 2469, 183 L. 

Ed. 2d at 424 (“We therefore hold . . . .”). The Court added that “[i]n 

imposing a State’s harshest penalties, a sentencer misses too much if he 
30

treats every child as an adult.” Id. at ___, 132 S. Ct. at 2468, 183 L. Ed. 

2d at 422–23. “Mandatory life without parole for a juvenile precludes 

consideration of his chronological age and its hallmark features . . . .” Id. 

at ___, 132 S. Ct. at 2468, 183 L. Ed. 2d at 423. But Miller does not 

cover Pearson’s circumstances either. She did not receive “a State’s 

harshest penalt[y],” nor was her penalty “mandatory.”

In short, Graham and Miller have a lot to say about youth and 

immaturity, much of which would be obvious anyway to an experienced 

Iowa trial judge. But they have nothing to say about this case, because it 

does not involve an actual or de facto life sentence. The observations 

about juvenile offenders in Graham and Miller are there only to justify 

restricting the most severe form of imprisonment—life without parole—

for these offenders.

The majority here rewrites those cases. Yet it does not manage 

even to be consistent with today’s decision in State v. Null, 836 N.W.2d 

41 (Iowa 2013). In Null, the majority found that a sentence of 52.5 years 

before eligibility for parole fell under Graham and Miller because the mere 

“prospect of geriatric release” was insufficient. 836 N.W.2d at 71. Here, 

without adding much to what it said in Null, the court concludes that a 

sentence of thirty-five years before eligibility for parole falls under 

Graham and Miller. Pearson would be eligible for parole when in her 

early fifties, so the problem here is not “geriatric release,” but that 

Pearson has been deprived of “the possibility of leading a more normal 

adult life.” Thus, we now have two standards for when Graham and 

Miller apply. And for good measure, the majority fires a shot across the 

bow: “We have no occasion to consider whether Miller’s principles must 

be applied to all juvenile sentences.” The first question a trial judge or 
31

attorney might ask in the next juvenile offender case is, “Where does the 

law stand?”

Regardless of the outer limits of the majority’s rulings, it is clear 

the court has now transformed Miller and Graham into a platform to 

potentially overturn hundreds of non-LWOP prison sentences imposed on 

juvenile offenders in Iowa. This would be unprecedented. While some 

jurisdictions have concluded that Graham and Miller apply to “de facto” 

life sentences where the defendant will not be eligible for parole until she 

is at or approaching her life expectancy, no other appellate court has 

adopted the majority’s reading of those cases. The Iowa Supreme Court 

stands alone.10

For example, recently the Illinois Court of Appeals was confronted 

with a challenge to a lengthy prison sentence for a sixteen-year-old girl 

who had aided and abetted her twenty-year-old boyfriend in murdering 

an uncle who had molested her. People v. Pacheco, 991 N.E.2d 896, 

898–99, 2013 WL 3193670, at *1 (Ill. App. Ct. 2013). The mandatory 

minimum was twenty years; the trial court sentenced the defendant to 

thirty years in prison. Id. at 903–04, 907–08, 2013 WL 3193670, at *7, 

*11. The court had little difficulty in concluding that the Supreme 

Court’s line of cases was inapplicable. Id. at 898–99, 906–07, 2013 WL 

3193670, at *1, *10.11

 

10In addition to the discussion here, I refer the reader to the out-of-state cases 

cited in part II of my dissent in Null.

11The court explained:

[T]he Supreme Court in Roper [v. Simmons, 543 U.S. 551, 125 S. Ct. 

1183, 161 L. Ed. 2d 1 (2005)], Graham, and Miller was only concerned 

with the death penalty and life without the possibility of parole, which 

are the two most severe punishments allowed under the United States 

Constitution. We agree with the State “[i]t would be a great stretch to say 

that Graham meant to require legislatures and courts to treat youths and 

adults differently in every respect and every step of the criminal process.” 
32

In People v. Perez, the California Court of Appeal recently rejected a 

Graham/Miller challenge to consecutive mandatory minimum sentences 

for forcible lewd acts committed when the defendant was sixteen years 

old. 154 Cal. Rptr. 3d 114, 115, 118–21 (Ct. App. 2013). Under the 

overall sentence, the defendant would not be eligible for parole for thirty 

years, when he would be forty-seven years old. Id. at 120. Still, the 

court had no difficulty upholding the sentence because “[t]he central 

focus in the majority opinions [of the United States Supreme Court] was 

the fact the offenders had been exposed to the ‘harshest’ available 

sentence.” Id. at 120–21. As the court put it, “[T]his is not an LWOP 

case. The state’s most severe penalties are not at stake here.” Id. at 

121. The court added, “There is a bright line between LWOPs and long 

______________________

As we have covered this topic in a broad manner, we now look at 

defendant’s specific arguments.

. . . .

Defendant next argues the automatic imposition of any adult 

sentence on a juvenile defendant as a result of the automatic transfer 

statute violates the eighth amendment and the proportionate penalties 

clause. As stated earlier, when taken to its logical extreme, defendant’s 

argument would make any statute unconstitutional which imposes on a 

juvenile transferred to adult court the same mandatory minimum 

sentence applicable to an adult for the same offense. We disagree.

Defendant reads Roper, Graham, and Miller too broadly. The 

Supreme Court did not hold in Roper, Graham, or Miller the eighth 

amendment prohibits a juvenile defendant from being subject to the 

same mandatory minimum sentence as an adult, unless the mandatory 

minimum sentence was death or life in prison without the possibility of 

parole. Defendant was sentenced to neither of these. The minimum 20-

year term defendant faced in this case does not compare with the death 

penalty or a mandatory term of life in prison without the possibility of 

parole. The sentencing range applicable to defendant in this case is not 

unconstitutional pursuant to Roper, Graham, and Miller, and the 

sentence defendant received violated neither the eighth amendment nor 

the proportionate penalties clause.

Pacheco, 991 N.E.2d at 906–07, 2013 WL 3193670, at *10–11.
33

sentences with eligibility for parole if there is some meaningful life 

expectancy left when the offender becomes eligible for parole.” Id. at 119.

As the Colorado Court of Appeals recently stated:

Lehmkuhl has cited no post-Graham decision, nor 

have we found one, that has determined that a sentence 

affording a defendant a chance to be paroled within his 

natural lifetime violates Graham’s requirement that 

defendants be given a meaningful opportunity to obtain 

release.

People v. Lehmkuhl, ___ P.3d ___, ___, 2013 WL 3584754, at *3 (Colo. 

App. 2013).

We can now look forward to a flurry of new proceedings as the 

State, defense attorneys, and our own judicial system sort through the 

unresolved issues raised by the majority opinion. For example, if a 

sentence of thirty-five years without parole implicates Graham and Miller, 

as my colleagues believe, then the current sentencing law governing 

juveniles who commit class “A” nonhomicide felonies would appear to be 

in constitutional jeopardy. That law was enacted by the legislature in 

2011 in response to Graham. See 2011 Iowa Acts ch. 131, § 147 (codified 

at Iowa Code § 902.1(2) (Supp. 2011)). It provides that any juvenile who 

commits a Class “A” felony other than first-degree murder shall 

automatically receive a life sentence but shall be eligible for parole “after 

serving a minimum term of confinement of twenty-five years.” Id. 

Certainly, a twenty-five year mandatory term of imprisonment would 

prevent the offender from “living a more normal adult life.” If so, my 

colleagues seemingly have doomed one of our legislature’s enactments.12

 

12The majority does not respond to the substance of this argument. Instead, in 

Null, citing yet another law review article, the majority dismisses it as a “slippery-slopetype argument.” I believe the implications of a judicial decision are a fair topic for 

discussion.
34

We can get a good sense of how many new proceedings this 

decision could generate by looking at data from the Division of Criminal 

and Juvenile Justice Planning within the Iowa Department of Human 

Rights. According to these data, as of May 31, 2013, there were 425 

inmates serving time in Iowa prisons for offenses committed before the 

age of eighteen. See Iowa Dep’t of Human Rights, Div. of Criminal & 

Juvenile Justice Planning, Current Inmates Under 18 at Time of Offense

(May 31, 2013), available at http://www.humanrights.iowa.gov/cjjp/ima

ges/pdf/Prison_Population_Juveniles_05312013.pdf. Only thirty-six of 

these individuals had committed Class “A” felonies. Id. Thus, the vast 

majority of these individuals are serving prison terms of various lengths 

but not LWOP terms. Thanks to the current decision, they may now 

have a ticket to court and a potential resentencing.13

Of course, a court should not refrain from rendering a decision 

because it may have far-reaching effects. But before we kick start a 

process that could overturn approximately 400 prison sentences, and 

put ourselves at odds with every other state and federal appellate 

interpretation of Graham and Miller, we owe it to the public to explain 

clearly what we are doing and why the law requires it. The majority 

opinion falls short.14

 

13Some of these persons may have received term-of-years sentences that amount 

to de facto life sentences, as arguably occurred in Null, but I suspect that is not a large 

group.

14The majority tries to defend itself from the charge that it has muddied the 

waters by including a footnote in Null that muddies the waters even more. Thus, the 

majority points out that Miller does not achieve “certainty” because it does not foreclose 

LWOP. True enough, but irrelevant. The issue is not whether the law is “certain” in 

some absolute sense; that is unattainable. The issue is whether my colleagues have 

created more uncertainty by eliminating the bright-line rule in Miller that limits its 

application to LWOP sentences.
35

The majority is unable to improve upon its scant reasoning in Null. 

Again and again, Miller made clear that it was addressing life without 

parole sentences, described variously as “the most serious penalties,” 

“the most severe punishments,” “the harshest sentences,” the “most 

severe penalties,” “the law’s harshest term of imprisonment,” “this 

ultimate penalty for juveniles,” “this lengthiest possible incarceration,” “a 

sentence of life (and death) in prison,” “a State’s harshest penalties,” 

“that harshest prison sentence,” “this harshest possible penalty,” and 

“the harshest possible penalty.” See 567 U.S. at ___, 132 S. Ct. at 2460, 

2464–69, 2475, 183 L. Ed. 2d at 414, 418–22, 424, 430. My colleagues 

simply ignore this limiting language, which the United States Supreme 

Court was careful to use throughout its opinion.

To be sure, the majority includes the same escape hatch as in 

Null—namely, that it is applying the principles of Miller under article I, 

section 17 of the Iowa Constitution. While this may protect the majority 

from having its reasoning reviewed by the United States Supreme Court, 

it fails to explain why all other state courts to apply the same principles 

have reached a different conclusion. As noted, one of the central 

principles of Miller is that it applies only to the most severe penalties. 

Miller did not constitutionalize every sentencing proceeding whereby a 

juvenile is sent to prison.

The concurrence in this case, while intended to bolster the 

majority opinion, only exposes its flaws. In a backhanded way, the 

concurrence expresses the view that Miller applies to all “lesser crimes”—

not merely “lengthy” prison sentences or “consecutive mandatory 

minimum” sentences. Thus, the concurrence says, 

[D]enying juveniles who commit lesser crimes the protections 

afforded in Miller, denies them their rights under the Eighth 

Amendment and article I, section 17 no less than denying a 
36

juvenile who commits a considerably more serious crime the 

very same protections.

But if “denying” Miller to a juvenile who commits a lesser crime 

violates the Eighth Amendment and article I, section 17, then Miller must 

apply to all juveniles who commit crimes. In any event, this novel and 

even broader interpretation of Miller only adds to the uncertainty 

engendered by the majority opinions in this case and Null. If the justices 

joining the majority in these two decisions cannot agree on what they 

stand for, how are the bench and bar to follow them?15

Also, the concurrence speaks of our “rapidly evolving” approach to 

juvenile justice and the “changing landscape of juvenile justice.” I agree 

with these observations but draw a different conclusion from them. 

Elected officials are better situated than a state supreme court to reflect 

rapid developments and changing landscapes. Our court can only 

resolve particular cases that are brought to us. When we decide a case, 

we are limited to the record made by the parties before us; we do not 

have the benefit of input from other Iowans. And when we render a 

 

15The concurrence says it would be “illogical” to limit Miller to the harshest 

penalties and cites Chief Justice Roberts’s dissent in Miller for that point. But Chief 

Justice Roberts was making that point by way of criticizing the Miller decision as 

fundamentally wrong. See Miller, 567 U.S. at ___, 132 S. Ct. at 2482, 183 L. Ed. 2d at 

437–38 (Roberts, C.J., dissenting). The Miller majority clearly indicated that a 

combination of two factors was necessary to render a punishment cruel and unusual: a 

crime committed by a youth and a sentence of life without parole. A reading of the case 

that focuses on youth alone rather than youth plus the harshest penalty is simply not 

faithful to the Supreme Court’s opinion. That is why no other court has adopted it. In 

the words of the California Court of Appeal:

[N]o high court has articulated a rule that all minors who commit adult 

crimes and who would otherwise be sentenced as adults must have the 

opportunity for some discretionary reduction in their sentence by the 

trial court to account for their youth. Perez’s sentence, albeit long, still 

leaves plenty of time for him to be eligible for parole. It passes 

constitutional muster.

Perez, 154 Cal. Rptr. 3d at 121.
37

constitutional decision, as here, that effectively freezes the status quo 

until the next decision.16

Appellate judges do not have a monopoly on understanding the 

problems of youth. The average Iowan surely knows that juveniles are 

generally less “culpable” than adults. And the complex juvenile justice 

system that our elected representatives have enacted reflects this. See

Iowa Code ch. 232 (2013).

Our duty as judges is to leave it to the legislature to determine 

both crimes and the range of punishments; “culpability” is basically their 

call. We are authorized to step in only in the rare case, such as 

mandatory LWOP for juvenile offenders, where the punishment is “cruel 

and unusual.”

III. The Defendant’s Sentence Is Not Unconstitutional Under 

Bruegger/Oliver.

This then leads to the question whether the sentence is 

unconstitutional under the proportionality analysis set forth in State v. 

Bruegger, 773 N.W.2d 862 (Iowa 2009), and Oliver 812 N.W.2d 636. 

Pearson is not making a categorical challenge, only an as-applied one.17 

This is a close call for me.

 

16After indicating that Miller applies to lesser crimes, the concurrence seemingly 

pulls back and says that the majority opinion “is limited to the bizarre facts of this 

case.” I do not see any such fact-based limitation in the majority’s opinion. The 

concurrence further describes the majority opinion as a “modest, incremental step.” I 

do not believe those words fairly describe an opinion that significantly departs from 

just-decided United States Supreme Court precedents and that may overturn many 

existing prison sentences.

17As she puts it:

There is no argument that individuals convicted of robbery in the first 

degree should not be sentenced to an indeterminate term of 

imprisonment not to exceed twenty-five years[,] that the court can run 

various sentences as concurrent or consecutive sentences or that, in 

most instances involving adult offenders, a mandatory minimum 

sentence of seventy percent is cruel or unusual. . . . As stated above, 
38

We first must decide whether the sentence is “grossly 

disproportionate” to the crimes. If the sentence does not create an 

inference of gross disproportionality, no further inquiry is necessary. 

Oliver, 812 N.W.2d at 650. “Our principal task at this stage is to 

‘balanc[e] the gravity of the crime against the severity of the sentence.’ ” 

Id. (quoting Bruegger, 773 N.W.2d at 873). “[I]t is rare that a sentence 

will be so grossly disproportionate to the crime as to satisfy the threshold 

inquiry and warrant further review.” Id.

Although it is a close question, I am unable to reach the 

conclusion that the sentence is so grossly disproportionate to the crimes 

committed as to be unconstitutional under Oliver and Bruegger. Pearson 

was an active participant in two separate home invasions with guns. 

While the guns were BB guns, the victims did not know that and the 

situation easily could have escalated into a deadly scenario. One person 

suffered a significant injury. Although Pearson did not personally inflict 

the injury, she was an active participant in both robberies—wielding a 

gun, confronting the victims, and carrying off items from the homes. 

Additionally, while Pearson was a juvenile at the time of the crimes, she 

was close to legal adulthood at the age of seventeen years and three 

months old. Also, though the record indicates that Pearson had 

problems with assaultive behavior and anger management as a juvenile, 

these crimes were not anger-driven. In one of her letters to the court, 

Pearson admitted that she and Lukinich shoplifted at two stores and 

______________________

defendant here asserts that the imposition of the seventy percent 

mandatory minimum sentence under section 902.12, particularly when 

applied in consecutive terms of imprisonment, is a violation of the cruel 

and unusual punishment prohibitions as that prohibition is applied to 

this defendant in this specific instance.
39

unsuccessfully tried to break into one home before committing the two 

robberies/burglaries here.

I agree with the court of appeals: “Certainly arguments can be 

made that the seventy percent mandatory minimum is longer than our 

society finds acceptable . . . .” State v. Pearson, No. 11–1214, 2012 WL 

3194101, at *4 n.3 (Iowa Ct. App. Aug. 8, 2012). I also agree with the 

court of appeals: “but the prerogative to make such a change lies with 

our legislature [i.e., society’s elected representatives].” Id.

IV. Unresolved Questions.

I do not address the separate question, not raised on appeal, 

whether the consecutive sentences were an abuse of sentencing 

discretion by the district court. See, e.g., State v. August, 589 N.W.2d 

740, 745–46 (Iowa 1999) (finding no abuse of discretion in the imposition 

of consecutive sentences). This is a serious question for me. I also do 

not address any other matters not raised on appeal. I would simply hold 

that the Eighth Amendment and article I, section 17 have not been 

violated.

Waterman and Zager, JJ., join this dissent.
40

#11–1214, State v. Pearson

ZAGER, Justice (dissenting).

I join with Justice Mansfield’s well-reasoned dissent. I write 

separately to renew my objection to the application of Graham v. Florida, 

560 U.S. 48, 130 S. Ct. 2011, 176 L. Ed. 2d (2010), and Miller v. 

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

lengthy term-of-years sentences, also sometimes described as de facto 

sentences of life without parole. For the reasons set forth in my dissent 

in State v. Null, 836 N.W.2d 41, 84–88 (Iowa 2013) (Zager, J., dissenting), 

I believe neither Graham nor Miller apply to Pearson’s sentence, and I 

would affirm the sentence imposed by the district court.