IN THE COURT OF APPEALS OF IOWA

No. 13-1837

Filed August 13, 2014

STATE OF IOWA,

Plaintiff-Appellee,

vs.

ROBERT S. WINFREY,

Defendant-Appellant.

________________________________________________________________

Appeal from the Iowa District Court for Polk County, Douglas F. Staskal, 

Judge.

Following the district court’s grant of Robert Winfrey’s motion to correct his 

illegal sentence of life imprisonment without the possibility of parole mandated by 

the 1971 Code of Iowa upon his first-degree-murder conviction, a crime he 

committed as a juvenile, Winfrey appeals, asserting his new sentence is 

functionally unconstitutional. AFFIRMED.

Gary Dickey of Dickey & Campbell Law Firm, P.L.C., Des Moines, for 

appellant.

Thomas J. Miller, Attorney General, Darrel Mullins, Assistant Attorney 

General, John P. Sarcone, County Attorney, and Jaki M. Livingston, Assistant 

County Attorney, for appellee.

Considered by Vaitheswaran, P.J., and Doyle and Tabor, JJ. McDonald, 

J. takes no part.
2

DOYLE, J.

Convicted of first-degree murder, a crime he committed as a juvenile, 

Robert Winfrey was sentenced to life imprisonment without the possibility of 

parole as mandated by the 1971 Code of Iowa. Following the district court’s 

grant of his motion to correct his illegal sentence, Winfrey was resentenced to life 

imprisonment with the possibility of parole. He now appeals, asserting his new 

sentence is functionally unconstitutional. He also asserts his resentencing 

counsel provided ineffective assistance. Upon our review, we affirm.

I. Background Facts and Proceedings.

Winfrey was convicted following a jury trial of the crime of first-degree 

murder in September 1972. See Iowa Code §§ 690.1, .2 (1971); see also State 

v. Winfrey, 221 N.W.2d 269, 270 (Iowa 1974). He committed the crime when he 

was seventeen-years-and-nine-months old. See Winfrey, 221 N.W.2d at 270. At 

the time of his sentence, the mandatory punishment for a first-degree-murder 

conviction was “imprisonment for life at hard labor in the penitentiary,” see Iowa 

Code § 690.2 (1971), and Winfrey was so sentenced. Because his sentence 

was for life, Winfrey was not eligible for parole. See Iowa Code § 247.5 (1971)

(“The board of parole shall, except as to prisoners serving life terms, . . . have 

power to parole persons convicted . . . .”).

The Iowa Supreme Court affirmed Winfrey’s conviction on direct appeal, 

and more detailed background facts of that case can be found in its opinion. See 
3

Winfrey, 221 N.W.2d at 270-71.1 Relevant here, the court summarized testimony 

given at an evidentiary hearing concerning Winfrey’s background as follows:

Winfrey . . . had completed ten years of school and had been 

in special classes for slow learners. Since age [twelve] he had lost 

time from school during periods he was in Eldora or jail. . . .

Pursuant to court order Winfrey was examined by . . . a 

psychiatrist. . . . [The psychiatrist] testified [Winfrey] does not have 

a typical mental disorder and that tests indicated Winfrey was in the 

low average range of intelligence with an I.Q. score range of 

approximately [eighty-five to ninety]. He opined Winfrey was “some 

place in the fourteen to fifteen year old range of mental age” and 

capable of understanding a statement of rights allegedly read to 

him but depending upon how the statement was presented to 

him. . . . [The psychiatrist further testified:]

Because of his experience, there is no doubt that Mr. 

Winfrey knows what happens to you if you are found 

guilty of something in a court of law. . . . It is still my 

opinion that Mr. Winfrey was competent and able to 

make decisions at the time of his apprehension. This 

would, however, depend upon the circumstances and 

explanations given to him.

Id. at 271-72.

In June 2012, the United States Supreme Court decided Miller v.

Alabama, 132 S. Ct. 2455, 2469-75 (2012). There, the Court determined

the Eighth Amendment prohibited “a sentencing scheme that 

mandates life in prison without possibility of parole for juvenile 

offenders.” The Court found that defendants who committed 

homicide crimes as juveniles and faced a sentence of life without 

parole were entitled to a sentencing hearing that would permit the 

sentencing court to consider the individual characteristics of the 

defendant and the individual circumstances of the crime as 

mitigating factors for a lesser sentence.

State v. Ragland, 836 N.W.2d 107, 110 (Iowa 2013) (discussing Miller) (internal 

citations omitted).

 

1 The supreme court opinion, as it appears in the North Western Reporter, 

erroneously indicates the murder occurred in 1970. Winfrey, 221 N.W.2d at 270. 

District court records establish the murder actually occurred in 1972.
4

Following Miller, Winfrey filed a pro se motion to correct his illegal 

sentence. However, in July 2012, Governor Terry Branstad commuted Winfrey’s 

sentence, along with other similarly sentenced inmates, to a term of life with no 

possibility of parole for sixty years and directed that no credit be given for earned 

time. See id. (discussing the commutations and providing the full text of 

Ragland’s nearly identical commutation). Ragland was then pending before our 

supreme court, and the district court entered a stay pending the outcome of that 

case.

Ragland was decided in August 2013. Id. at 108. There, the court 

concluded the Governor’s commutation of Ragland’s life sentence to a life 

sentence with the possibility of parole in sixty years was the functional equivalent 

to life without parole, and it held that Miller applies to such sentences. Id. at 121-

22. The court explained:

Ragland was originally sentenced without the benefit of an 

individualized sentencing hearing. The commutation lessened his 

sentence slightly, but without the court’s consideration of any 

mitigating factors as demanded by Miller. While such a review 

process might still permit a life-without-parole sentence to be 

imposed in a murder case, it might also result in a sentence far less 

than life without parole. Thus, Ragland was entitled to be 

sentenced with consideration of the factors identified in Miller. 

Additionally, he was entitled to be resentenced under the 

individualized process because Miller applies retroactively.

Id. at 122.

Since Ragland, the Iowa Supreme Court has “applied the reasoning in 

Miller to sentences that effectively deprived a juvenile offender of a meaningful 

opportunity for early release on parole during the offender’s lifetime based on 

demonstrated maturity and rehabilitation.” State v. Lyle, ___ N.W.2d ___, 2014 
5

WL 3537026, *2 (Iowa 2014) (citing State v. Null, 836 N.W.2d 41, 72 (2013)). 

Further, the court has applied its reasoning “not just to a de facto life sentence or 

one that is the practical equivalent of a life sentence without parole, . . . but also 

to a lengthy term-of-years sentence.” Id. (internal quotation marks and citations 

omitted). Most recently, the court held by majority that article I, section 17 of our 

constitution “forbids a sentencing schema for juvenile offenders that deprives the 

district court the discretion to consider youth and its attendant circumstances as 

a mitigating factor and to impose a lighter punishment, including one that 

suspends all or part of the sentence, including any mandatory minimum.” Id. at 

*23. The majority in Lyle reiterated that its holding did “not prohibit judges from 

sentencing juveniles to prison for the length of time identified by the legislature 

for the crime committed” or “prohibit the legislature from imposing a minimum 

time that youthful offenders must serve in prison before being eligible for parole.” 

Id. Rather, it prohibited “the one-size-fits-all mandatory sentencing for juveniles.” 

Id.

After the court issued its decision in Ragland, the district court issued an 

order setting Winfrey’s motion for a hearing, and it directed the preparation of a 

presentence investigation report (PSI). At the hearing in October 2013, the court 

determined Winfrey’s motion should be granted, and it proceeded to the matter of 

resentencing Winfrey. The State requested the court sentence Winfrey to life 

with the possibility of parole. Neither Winfrey nor his counsel provided any 

mitigating reasons, as contemplated in Miller and Ragland, to impose a lighter 

punishment than that requested by the State.
6

The district court issued its initial ruling from the bench, imposing “the 

sentence of life imprisonment” with “no restrictions on Mr. Winfrey’s eligibility for 

parole.” The court concluded Winfrey’s eligibility for parole was “entirely up to 

the parole board.” In determining Winfrey’s new sentence, the court explained in 

great detail all the factors it considered and reasons it found to impose that 

sentence. Relevant to the present appeal, the court stated:

The court has considered the contents of the [PSI] and, of course, 

the comments of the victim’s daughter and on behalf of her family. 

The court has reviewed as best it can the original court file, which 

contains some documents that give some insight into the defendant 

and, of course, the court has considered the defendant’s own 

statements and has attempted to apply the factors that the court is 

required to apply in assessing an appropriate sentence in a case of 

an individual who was a juvenile offender when the offense 

occurred for which a sentence of life imprisonment was imposed.

Legally the court finds itself concluding that it is in effect 

imposing a sentence under Iowa Code Section 690.2 of the 1971 

Code of Iowa, which provided for the life sentence for individuals 

convicted of first-degree murder. And the court agrees with the 

arguments of counsel for the State that that sentence itself is not 

what has been declared recently by our supreme courts, the federal 

supreme court as well as the state supreme court, to be 

unconstitutional. It is the aspect of the sentence that prevents any 

consideration of such a defendant for parole, which is not 

constitutional.

So essentially the court is choosing between a sentence of 

life imprisonment with the opportunity for parole and a sentence of 

life imprisonment with no opportunity for parole. . . .

. . . .

So the court has considered all of these and given this 

matter a great deal of thought. The court could not impose a 

sentence of life imprisonment without parole eligibility under the 

cases without identifying Mr. Winfrey as a rare individual who 

essentially could be identified as a danger without any redeeming 

value, and I think we could argue about that. But I don’t think this is 

a case where I can identify to the satisfaction of a reviewing court 

something—and articulate something in particular that would justify 

that kind of sentence.

At this point in time I think that it’s completely up to the board 

of parole to determine whether Mr. Winfrey and when Mr. Winfrey is 

rehabilitated and is capable of living in society without being a 
7

danger to others. I certainly would not at this point in time 

recommend—for a lot of the reasons that I just said, I would not 

recommend parole until there’s been a fairly significant length of 

time of demonstrated commitment to education. Because coming 

out of prison after forty-one years without even a high school 

diploma is not a recipe for success. Obviously, someone who has 

spent forty-one years in prison . . . has learned a lot of ways to live 

and do things that are not acceptable in society, so I would caution 

any correctional professionals or parole boards to be very careful 

about granting a parole in this case.

But having said all of that, again, on balance I think the 

sentence that is mandated in this case is life imprisonment with the 

opportunity for parole, and that’s the sentence that the court 

imposes.

The same day, the district court entered its written sentencing order adjudging 

Winfrey guilty of first-degree murder, in violation of Iowa Code sections 690.1 

and .2 (1971), and imposing a life sentence as provided by 690.2 (1971). 

Additionally, the court struck down “the unconstitutional portion of Iowa Code 

[sections] 902.9 and 902.3” (2013), and it sentenced Winfrey “to life with the 

possibility of parole.”

Winfrey now appeals.

II. Scope and Standards of Review.

“An unconstitutional sentence is an illegal sentence. Consequently, an 

unconstitutional sentence may be corrected at any time.” Lyle, 2014 WL 

3537026 at *2 (citations omitted). We ordinarily review a challenge to an illegal 

sentence for correction of legal errors. Ragland, 836 N.W.2d at 113; see also

Iowa R. App. P. 6.907. However, when, as here, a defendant mounts a 

constitutional challenge to an allegedly illegal sentence, our review is de novo. 

See Null, 836 N.W.2d at 48. Ineffective-assistance-of-counsel claims are also 

reviewed de novo. State v. Showens, 845 N.W.2d 436, 440 (Iowa 2014).
8

III. Discussion.

On appeal, Winfrey makes two arguments. First, he argues his new 

sentence is still the functional equivalent of a lifetime sentence without the 

possibility of parole, which is unconstitutional under Miller and Ragland. 

Secondly, and alternatively, Winfrey contends his most recent sentencing 

counsel was ineffective for failing to provide “mitigation evidence of the kind 

contemplated by Miller and Null” at his resentencing hearing. We address his 

arguments in turn.

A. Constitutional Claim.

Winfrey asserts his new sentence is unconstitutional because, as his 

argument goes, the sentence “has no statutory anchor whatsoever in the 1971 

Code” and because there “is no mechanism” for the board of parole to consider 

his new parole eligibility, given the existing rules. He points out that section 

247.5 of the 1971 Code did not provide any authority to parole offenders serving 

life terms. Likewise, the current Code expressly prohibits parole eligibility to 

class “A” felons unless “the governor commutes the sentence to a term of years.” 

See Iowa Code § 902.1(1) (2013).2 He also cites the board of parole’s 

administrative rules, which dictate how the board interviews inmates for parole 

determinations, see id. § 904A.4(2), exempting class “A” felons from parole 

eligibility and consideration. See Iowa Admin. Code r. 205-8.2 (“The board shall 

not grant parole to an inmate serving a mandatory minimum sentence. . . . 

Mandatory sentences are as follows: (a) A life sentence imposed for conviction of 

 

2

“Murder in the first degree is a class ‘A’ felony.” Iowa Code § 707.2.
9

a [c]lass ‘A’ felony pursuant to Iowa Code section 902.1.”).3 However, given the 

recent case-law precedent, to the extent these provisions restrict the board of 

parole from considering Winfrey’s parole eligibility; those provisions too are 

clearly unconstitutional under Miller and Ragland. See Ragland, 836 N.W.2d at 

121-22.

We agree with the State that the proper way to address any constitutional 

infirmity here is severance. See Bonilla v. State, 791 N.W.2d 697, 702 (Iowa 

2010) (“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.”). Severing the offending 

portions, those that do not permit the parole board from considering Winfrey for 

parole eligibility, leaves Winfrey serving a life sentence with the possibility of 

parole. See id.

Furthermore, we agree with the State that the existing administrative rules 

afford the board flexibility to consider Winfrey’s new parole eligibility without 

requiring resentencing at this point. The board’s rules specifically provide 

options for waiver and variance of their existing rules, allowing the board to 

“suspend[] in whole or in part the requirements or provisions of a rule as applied 

to an identified person on the basis of the particular circumstances of that 

person,” such as complying with the Iowa Constitution. See Iowa Admin. Code r. 

205-16.1. Furthermore, the board may grant a waiver from a rule if “the 

requested waiver is consistent with applicable statutes, constitutional provisions, 

 

3 Winfrey also notes Iowa Administrative Code rule 205-8.6(4) provides that 

Class “A” felons “serving a sentence more than [twenty-five years] are excepted from the 

annual review requirement of 8.6(3).”
10

or other provisions of the law.” See Iowa Admin. Code r. 205-16.3 (emphasis 

added). Should the board not take it upon itself to consider Winfrey’s new parole 

eligibility, Winfrey can file a petition for waiver for parole consideration under 

chapter 16 of the parole board’s rules. See Iowa Admin. Code r. 205-16.6 

(setting for the content necessary for filing a petition for waiver). We further 

agree that until and unless a petition for waiver by Winfrey for parole 

consideration is denied by the parole board, the matter is not ripe for our review. 

See State v. Tripp, 776 N.W.2d 855, 859 (Iowa 2010) (finding issue involving 

“administrative decisions that have yet to be made” not ripe for adjudication). 

Accordingly, we affirm his new sentence.

B. Ineffective-Assistance Claim.

Additionally, Winfrey contends his resentencing counsel was ineffective for 

failing to provide “mitigation evidence of the kind contemplated by Miller and Null”

at his resentencing hearing. To prevail, he must show trial counsel (1) breached 

an essential duty and (2) prejudice resulted. Strickland v. Washington, 466 U.S. 

668, 687 (1984). Ordinarily, we preserve ineffective-assistance-of-counsel 

claims for postconviction-relief actions, permitting the development of a proper 

record. Null, 836 N.W.2d at 48. This also “allows the attorney charged to 

respond to a defendant’s claims.” State v. Brubaker, 805 N.W.2d 164, 170 (Iowa 

2011); see also State v. Coil, 264 N.W.2d 293, 296 (Iowa 1978) (“Even a lawyer 

is entitled to his day in court, especially when his professional reputation is 

impugned.”). The record does not provide sufficient details about Winfrey’s 

attorney’s failure to present mitigation evidence at the resentencing, such as the 

mitigation evidence submitted at Winfrey’s suppression-of-evidence hearing. 
11

See Winfrey, 221 N.W.2d at 270-71. Accordingly, we preserve this claim for 

possible postconviction-relief proceedings.

IV. Conclusion.

Because we agree with the State that Winfrey’s new sentence is not 

unconstitutional and Winfrey has an avenue to pursue consideration of his parole 

eligibility, we affirm his sentence. We preserve his ineffective-assistance-ofcounsel claim for possible postconviction-relief proceedings.

AFFIRMED.