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.
F ollowing the district court’s grant of Robert Winfrey’s motion to correct his illegal sentence of life imp risonment 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 , W infrey 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.

C onsidered 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. F ollowing the district court’s grant of his motion to correct his illegal sentence , Winfrey was re sentenced to life imprisonment with the possibility of parole. He now appeals , asserting his new sentence is functionally unconstitutional

. He also asserts his re sentencing 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). H e committed the crime when he

was seventeen
- year s - and

- nine

- months old. See Winfrey , 221 N.W.2d at 270. At the time of his sentence, the mandatory pun ishment 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 tha t case can be found in its opinion. See3

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 bee n 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] doe s 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 ran ge of mental age ” and capable of understanding a statement of rights allegedly read to him but depending upon how the statement w as 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 circums tances 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 sente ncing 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 om itted).

1 The supreme court opinion, as it appears in the North Western Reporter, erroneous ly 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, Gov ernor Terry Branstad commuted Winfrey ’ s
sentence , along with other similarly sentenced inmates, to a term of life with no possibility of pa role for sixty y ears 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 co urt 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 th e functional equivalent to life without parole, and it held that Miller applie s 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 proce ss 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 juvenil e offender of a meaningful opportunity for early release on parole during the offender ’ s lifetime based on demonstrated maturity and rehabilitation. ” St ate v

. Lyle , ___ N.W.2d ___, 20145

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 c itations 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 circumstanc es 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 legi slature 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 pr ohibited “ 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 investiga tion 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. Ne ither 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 i n 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, wh ich 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 a7
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 hig h 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 sente nce 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

r eviewed 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, Winfre y 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

. Constitution al Claim

. Winfrey asser ts 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 senten ce 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 elig ibility 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 consider ing Winfrey’s parole eligibility ; those provisions too are clearly unconstitutional under Miller and Ragland

. See Ragland

, 836 N.W.2d at
121

- 22.
W e 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 ar e constitutionally valid, but other discrete and identifiable parts are infirm, we may sever the offending portions from the enactment and leave the remainder intact.”). S evering the offending portions , those that do not permit the parole board from consi dering 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 parol e 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[] i n whole or in part the requirements or provisions of a rule as ap plied to an identified person on the basis of the particula r 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 Admin istrative Code r ule 205

- 8.6(4) provides that Class “A” felons “serving a sentence more than [twenty

- five years] are except ed 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 adjudi cation). Accordingly, we affirm his new sentence.
B

. Ineffective -

Assistance Claim

. Additionally, Winfrey contends his re sentencing counsel was ineffective for failing to provide “ mitigation evidence of the kind contemplated by Miller and Null ”
at his r esentencing 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 postconvictio n - 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 2 93, 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 re sent encing, 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 wit h 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

- of

counsel claim for possible postconviction

- relief proceedings.
AFFIRMED.