IN THE SUPREME COURT OF IOWA

No. 09–0993

Filed December 17, 2010

JULIO BONILLA,

Appellant,

vs.

STATE OF IOWA,

Appellee.

Appeal from the Iowa District Court for Polk County, Carla T. 

Schemmel, Judge.

Defendant claims sentence of life in prison without parole for a 

juvenile nonhomicide offense violates the prohibition on cruel and 

unusual punishment. SENTENCE VACATED AND CASE REMANDED 

FOR RESENTENCING CONSISTENT WITH THIS OPINION.

Mark C. Smith, State Appellate Defender, and Theresa R. Wilson, 

Assistant State Appellate Defender, for appellant.

Thomas J. Miller, Attorney General, Thomas W. Andrews, Assistant 

Attorney General, John Sarcone, County Attorney, and Nan Horvat, 

Assistant County Attorney, for appellee.
2

STREIT, Justice.

Julio Bonilla was convicted of kidnapping in the first degree in 

adult court for an offense committed at the age of sixteen.1 He was 

sentenced to mandatory life in prison without the possibility of parole 

pursuant to the Iowa Code. Under the recent United States Supreme 

Court decision Graham v. Florida, ___ U.S. ___, ____, 130 S. Ct. 2011, 

2033–34, 176 L. Ed. 2d 825, 848–50 (2010), this sentence constitutes 

cruel and unusual punishment in violation of the Eighth Amendment of 

the Federal Constitution. The clauses of Iowa Code sections 902.1 and 

906.5 (2003) that make Bonilla ineligible for parole are unconstitutional 

as applied to Bonilla. These clauses are also severable. Therefore, 

Bonilla’s sentence must be adjusted to life in prison with the possibility 

of parole.

I. Background Facts and Prior Proceedings.

In 2005, Julio Bonilla was convicted of kidnapping in the first 

degree, a class “A” felony, in violation of Iowa Code sections 710.1 and 

710.2. Bonilla was sentenced to life imprisonment without parole 

 1Throughout this opinion, we proceed based on the trial court’s finding of fact 

that Bonilla was sixteen at the time of his crime. The State suggests Bonilla may not 

have been sixteen at the time of his crime, arguing his precise birth date was never 

“verified” because Bonilla was born in El Salvador and Bonilla is “mature-looking.” 

After a bench trial, the district court entered findings of fact, including finding that 

Bonilla was sixteen years of age at the time of the incident. At trial, Bonilla testified he 

was sixteen at the time of the crime. The State did not present any evidence to the 

contrary and concedes “all parties proceeded on the assumption” that Bonilla’s age was 

correct.

The State has not pointed to any evidence it could present beyond speculation. 

Although the State’s conclusory speculation does not raise a material issue of fact to 

support an evidentiary hearing revisiting the district court’s factual findings, because 

the constitutional challenge to Bonilla’s sentence was first raised on appeal, the district 

court may determine on remand whether further hearing on this issue is required. Cf. 

Kyle v. State, 322 N.W.2d 299, 302–03 (Iowa 1982) (finding in a postconviction relief 

action that defendant’s affidavit asserting decision to plead guilty was not voluntary, 

despite previous colloquy to the contrary, raised material issue of fact necessitating an 

evidentiary hearing).
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because under Iowa Code section 902.1, class “A” felonies are punishable 

by a mandatory life sentence without the possibility of parole. Bonilla 

was sixteen years old at the time of the offense.

Bonilla filed an application for postconviction relief, which was 

denied by the district court. Bonilla appealed this denial but does not 

raise any of the issues that were before the district court. Instead, 

Bonilla raises, for the first time, the argument that his sentence of life in 

prison without parole violates his constitutional right against cruel and 

unusual punishment.

II. Scope of Review.

We review constitutional claims de novo. Formaro v. Polk County, 

773 N.W.2d 834, 838 (Iowa 2009). This court may correct an illegal 

sentence at any time. Iowa R. Crim. P. 2.24(5)(a). A claim that a 

sentence is unconstitutional because it constitutes cruel and unusual 

punishment is a claim of an illegal sentence and may therefore be raised 

at any time. Veal v. State, 779 N.W.2d 63, 64 (Iowa 2010); State v. 

Bruegger, 773 N.W.2d 862, 871–72 (Iowa 2009).

III. Merits.

Bonilla filed a postconviction relief action. Because he complains 

his sentence is illegal, however, the claim “is not a postconviction relief 

action.” Veal, 779 N.W.2d at 65. In Veal, the district court had 

dismissed the case under the statute of limitations. Id. at 64. This court 

remanded for consideration on the merits and ordered the district court 

to “treat her application for postconviction relief as a challenge to an 

illegal sentence.” Id. at 65; see also Iowa R. Crim. P. 2.24(5)(a). We 

remanded to provide the district court the first opportunity to assess 

whether, under the facts of the case, Veal’s sentence of life in prison 

without parole as a juvenile for a homicide offense constituted cruel and 
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unusual punishment. Veal, 779 N.W.2d at 65. Bonilla’s postconviction 

action must also be construed as a motion to correct an illegal sentence. 

Id. Here, however, there is no need to remand to the district court for 

consideration of the legal issue because the United States Supreme 

Court has already addressed the category of juveniles into which Bonilla 

falls: juveniles who have committed a nonhomicide offense for which they 

have been sentenced to life in prison without parole. See Graham, ___ 

U.S. at ___, 130 S. Ct. at 2033–34, 176 L. Ed. 2d at 848–50.

A. Cruel and Unusual Punishment. Bonilla argues his sentence 

of life in prison without parole constitutes cruel and unusual 

punishment under the United States and Iowa Constitutions. He argues 

that because he was a juvenile at the time of his offense and did not 

commit homicide, the United States and Iowa Constitutions prohibit a 

sentence of life in prison without parole.

The Eighth Amendment to the Federal Constitution states: 

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

cruel and unusual punishments inflicted.” U.S. Const. amend. VIII. 

Article I, section 17 of the Iowa Constitution states, “Excessive bail shall 

not be required; excessive fines shall not be imposed, and cruel and 

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

In Graham, the United States Supreme Court held the United 

States Constitution “prohibits the imposition of a life without parole 

sentence on a juvenile offender who did not commit homicide.” ___ U.S. 

at ___, 130 S. Ct. at 2034, 176 L. Ed. 2d at 850. The Court explained, “A

life without parole sentence improperly denies the juvenile offender a 

chance to demonstrate growth and maturity.” Id. at ___, 130 S. Ct. at 

2029, 176 L. Ed. 2d at 845.
5

Graham adopted a categorical rule prohibiting the imposition of a 

life-without-parole sentence for juvenile nonhomicide offenders. The 

Court explained that a categorical rule “is necessary to prevent the 

possibility that life without parole sentences will be imposed on juvenile 

nonhomicide offenders who are not sufficiently culpable to merit that

punishment.” Id. at ___, 130 S. Ct. at 2030, 176 L. Ed. 2d at 845. The 

court further held a state must provide “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.

Bonilla’s claim falls squarely within the United States Supreme 

Court’s decision in Graham. Bonilla was convicted of the nonhomicide 

crime of kidnapping in the first degree, a class “A” felony. Bonilla was 

sentenced to life in prison without parole pursuant to Iowa Code section 

902.1, which provides that an individual convicted of a class “A” felony 

will be sentenced to life and “shall not be released on parole unless the 

governor commutes the sentence to a term of years.”2 Graham applies 

retroactively to Bonilla because it is a new rule of substantive law 

clarifying the Eighth Amendment prohibition on cruel and unusual 

punishment. See Schriro v. Summerlin, 542 U.S. 348, 351–52, 124 S. Ct. 

2519, 2522–23, 159 L. Ed. 2d 442, 448 (2004) (“Such rules apply 

retroactively because they ‘necessarily carry a significant risk that a 

defendant . . .’ faces a punishment that the law cannot impose upon 

him.” (quoting Bousley v. United States, 523 U.S. 614, 620, 118 S. Ct. 

1604, 1610, 140 L. Ed. 2d 828, 838–39 (1998))); Goosman v. State, 764 

N.W.2d 539, 544 (Iowa 2009).

 2Although Bonilla could theoretically receive a commutation from Iowa’s 

governor, the Supreme Court of the United States rejected the “remote possibility” of 

executive clemency in the cruel and unusual punishment analysis of Graham. ___ U.S. 

at ___, 130 S. Ct. at 2027, 176 L. Ed. 2d at 842.
6

Under Graham, Bonilla’s federal constitutional right to be free from

cruel and unusual punishment was violated when he was sentenced to 

life in prison without parole for the nonhomicide crime of kidnapping in 

the first degree. Because Bonilla has successfully asserted a claim under 

the United States Constitution, we need not address the boundaries of 

the Iowa Constitution’s prohibition on cruel and unusual punishment.

B. Remedy. Graham did not specify how the states should adjust 

the sentences of juveniles previously sentenced to life in prison without 

parole for a nonhomicide crime. Graham held “[i]t is for the State, in the 

first instance, to explore the means and mechanisms for compliance.” 

Graham, ___ U.S. at ___, 130 S. Ct. at 2030, 176 L. Ed. 2d at 846.

Although Bonilla was sixteen at the time of his crime, he was tried

as an adult. Under Iowa Code section 702.11(1), kidnapping is a forcible 

felony. The juvenile court does not have jurisdiction over juveniles who 

are sixteen or seventeen at the time of their crime and are accused of 

committing a forcible felony. See Iowa Code § 232.8(1)(c). Instead, the 

sixteen or seventeen year old is tried in adult court. The juvenile may 

then seek a waiver from adult court to the juvenile court for good cause. 

Id.

Bonilla was charged with kidnapping in the first degree. Because 

kidnapping is a forcible felony, he was tried in adult court. Id.

§§ 232.8(1)(c), 702.11. When a juvenile is convicted of a forcible felony in 

adult court, the juvenile is sentenced pursuant to section 902.9. Id.

§ 232.8(1)(c). Section 902.9 provides “[t]he maximum sentence for any 

person convicted of a felony shall be that prescribed by statute or, if not 

prescribed by statute” and a felony other than a class “A” felony, the 

defendant shall be sentenced as described in section 902.9. Kidnapping 
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in the first degree is a class “A” felony. Id. § 710.2. Section 902.1 

provides the penalty for a class “A” felony:

Upon a plea of guilty, a verdict of guilty, or a special 

verdict upon which a judgment of conviction of a class “A” 

felony may be rendered, the court shall enter a judgment of 

conviction and shall commit the defendant into the custody 

of the director of the Iowa department of corrections for the 

rest of the defendant’s life. Nothing in the Iowa corrections 

code pertaining to deferred judgment, deferred sentence, 

suspended sentence, or reconsideration of sentence applies 

to a class “A” felony, and a person convicted of a class “A” 

felony shall not be released on parole unless the governor 

commutes the sentence to a term of years.

Pursuant to section 902.1, Bonilla was sentenced to life in prison and 

does not have the possibility of parole other than commutation by the 

governor. As described above, application of section 902.1 to Bonilla 

violates the Federal Constitution.

Iowa Code section 4.12 provides:

If any provision of an Act or statute or the application 

thereof to any person or circumstance is held invalid, the 

invalidity does not affect other provisions or applications of 

the Act or statute which can be given effect without the 

invalid provision or application, and to this end the 

provisions of the Act or statute are severable.

“When parts of a statute or ordinance are constitutionally valid, but 

other discrete and identifiable parts are infirm, we may sever the 

offending portions from the enactment and leave the remainder intact.” 

Am. Dog Owners Ass’n, Inc. v. City of Des Moines, 469 N.W.2d 416, 418 

(Iowa 1991) (per curiam); see also State v. Aldrich, 231 N.W.2d 890, 895–

96 (Iowa 1975); State v. Blyth, 226 N.W.2d 250, 261–62 (Iowa 1975). 

“Severance is appropriate if it does not substantially impair the 

legislative purpose, if the enactment remains capable of fulfilling the 

apparent legislative intent, and if the remaining portion of the enactment 

can be given effect without the invalid provision.” Am. Dog Owners 
8

Ass’n, 469 N.W.2d at 418. Similarly, where a portion of a defendant’s 

sentence is improper or invalid, if possible, this court can sever the 

sentence without disturbing the balance of the sentence. State v. 

Maghee, 573 N.W.2d 1, 7 (Iowa 1997).

Severance is appropriate here. The last clause of the last sentence 

of section 902.1, stating “a person convicted of a class “A” felony shall 

not be released on parole unless the governor commutes the sentence to 

a term of years,” is unconstitutional as applied to Bonilla. This last 

clause can be severed from the remainder of section 902.1. The statute, 

as it applies to Bonilla, will read:

Upon a plea of guilty, a verdict of guilty, or a special 

verdict upon which a judgment of conviction of a class “A” 

felony may be rendered, the court shall enter a judgment of 

conviction and shall commit the defendant into the custody 

of the director of the Iowa department of corrections for the 

rest of the defendant’s life. Nothing in the Iowa corrections 

code pertaining to deferred judgment, deferred sentence, 

suspended sentence, or reconsideration of sentence applies 

to a class “A” felony, and a person convicted of a class “A” 

felony shall not be released on parole unless the governor 

commutes the sentence to a term of years.

Therefore, Bonilla continues to serve a life sentence but must be subject 

to the possibility of parole.

Iowa Code section 906.5 provides the mechanism by which the 

parole board considers parole case reviews. Section 906.5(1) establishes 

annual case reviews for inmates. Inmates convicted of a class “A” felony, 

however, are exempted from the annual case review. Iowa Code 

§ 906.5(1). This exemption from consideration for parole, as applied to 

Bonilla, is unconstitutional. The clause “other than a class ‘A’ felon” can 
9

be severed from section 906.5. Therefore, the provisions of section 906.5 

establishing parole reviews will apply to Bonilla.3

We remand to the district court for resentencing consistent with 

this opinion.

IV. Conclusion.

Bonilla was convicted of the nonhomicide crime of kidnapping in 

the first degree. Because he was a juvenile at the time of the 

nonhomicide offense, the mandatory sentence of life in prison without 

the possibility of parole violated the Eighth Amendment of the United 

States Constitution under Graham, ___ U.S. at ___, 130 S. Ct. at 2033–

34, 176 L. Ed. 2d at 848–50. We find the clauses of Iowa Code sections 

902.1 and 906.5 prohibiting parole are unconstitutional as applied to 

Bonilla and severable. Therefore, Bonilla shall be sentenced to life in 

prison, with the potential of parole.

 3Section 906.5 also prohibits parole review until inmates have served the 

mandatory minimum sentence for their crime as established by statute. Because 

kidnapping in the first degree carries a life sentence without parole, there is no 

mandatory minimum sentence established by statute.

There is, however, a mandatory minimum sentence for kidnapping in the second 

degree. See Iowa Code §§ 710.3, 902.9, 902.12. In 2003 (when the offense took place), 

a defendant was required to serve eighty-five percent of the sentence for kidnapping in 

the second degree. See Iowa Code §§ 902.12, 903A.2; see also State v. Ceaser, 585 

N.W.2d 192, 196 n.1 (Iowa 1998) (noting the rule in section 902.12 requiring a 

defendant to serve one hundred percent of the sentence is modified by section 903A.2 

allowing a fifteen percent reduction of sentence for good conduct time, therefore 

resulting in required service of eighty-five percent), overruled on other grounds by 

Bruegger, 773 N.W.2d at 871–72. Section 902.12 now requires those convicted of 

kidnapping in the second-degree to serve seven-tenths of the maximum sentence of 

twenty-five years, or seventeen-and-one-half years. Therefore, had Bonilla been 

convicted in adult court of kidnapping in the second degree, he would not be eligible for 

parole for a substantial portion of his sentence.

By striking the unconstitutional statutory provisions which prevent Bonilla from 

ever receiving consideration for parole, Bonilla will become eligible for an annual case 

review immediately. He will therefore be eligible for a parole case review before an 

individual convicted of second degree kidnapping. When a portion of a statute is 

unconstitutional, we sever the offending portions from the enactment and leave the 

remainder intact. Am. Dog Owners Ass’n, 469 N.W.2d at 418. We leave to the 

legislature whether and how to correct this apparent inconsistency.
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SENTENCE VACATED AND CASE REMANDED FOR 

RESENTENCING CONSISTENT WITH THIS OPINION.