IN THE COURT OF APPEALS OF IOWA

No. 16-0055

Filed August 17, 2016

STATE OF IOWA,

Plaintiff-Appellee,

vs.

KENNETH OWEN BARRY,

Defendant-Appellant.

________________________________________________________________

Appeal from the Iowa District Court for Polk County, Karen A. Romano, 

Judge.

Kenneth Barry appeals the denial of his motion to correct an illegal 

sentence. AFFIRMED.

Kevin Hobbs, West Des Moines, for appellant.

Thomas J. Miller, Attorney General, and Tyler J. Buller, Assistant Attorney 

General, for appellee.

Considered by Vogel, P.J., and Doyle and Bower, JJ.
2

DOYLE, Judge.

Kenneth Barry appeals the denial of his motion to correct an illegal 

sentence, which he brought pursuant to State v. Lyle, 854 N.W.2d 378, 403 

(Iowa 2014).1 Barry, a minor at the time he committed the offenses for which he 

was sentenced, argues his sentence is illegal because it contains a mandatory 

minimum term. He asserts Lyle requires his resentencing.

Barry was charged with two counts of robbery in the second degree and 

one count of conspiracy to commit robbery. Barry was sixteen years and eight 

months old at the time he committed the criminal offenses. Pursuant to a plea 

agreement, Barry pled guilty to all three counts and was sentenced to a period of 

imprisonment not to exceed ten years for each count, with the robbery counts 

running concurrent to each other but consecutive to the conspiracy count, for a 

total period of imprisonment not to exceed twenty years. He was required to 

serve a minimum sentence of seven years on the robbery counts. See Iowa 

Code § 902.12(1) (2013) (requiring those convicted of certain felonies to serve a

minimum of seven-tenths of the maximum sentence). More than a year after 

sentencing, Barry moved to correct his sentence, alleging Lyle required the court 

to reconsider imposing the mandatory minimum sentence. The district court 

denied the motion, and Barry now appeals.

 

1

In Lyle, the Iowa Supreme Court held that

article I, section 17 of the Iowa Constitution forbids a mandatory minimum 

sentencing schema for juvenile offenders that deprives the district court of 

the discretion to consider youth and its attendant circumstances as a 

mitigating factor and to impose a lighter punishment by eliminating the 

minimum period of incarceration without parole.

854 N.W.2d at 404.
3

Barry’s argument is premised on a faulty foundation. The fact that his 

sentence imposes a mandatory minimum period of time he must serve before 

being eligible for parole does not make his sentence illegal per se. As our 

supreme court noted, the Lyle holding “does not prohibit judges from sentencing 

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

committed, nor does it prohibit the legislature from imposing a minimum time that 

youthful offenders must serve in prison before being eligible for parole.” Lyle, 

854 N.W.2d at 403. The section 902.12 schema

requiring a juvenile to serve seventy percent of the period of 

incarceration before parole eligibility may not be imposed without a 

prior determination by the [sentencing] court that the minimum 

period of incarceration without parole is warranted under the factors 

identified in Miller [v. Alabama, 132 S. Ct. 2455, 2468 (2012),] and 

further explained in [State v. Null, 836 N.W.2d 41, 74-75 (Iowa 

2013)].

Id. at 404 n.10. The factors to be used by a court sentencing a juvenile include:

(1) the age of the offender and the features of youthful behavior, 

such as “immaturity, impetuosity, and failure to appreciate risks and 

consequences”; (2) the particular “family and home environment” 

that surround the youth; (3) the circumstances of the particular 

crime and all circumstances relating to youth that may have played 

a role in the commission of the crime; (4) the challenges for 

youthful offenders in navigating through the criminal process; and 

(5) the possibility of rehabilitation and the capacity for change.

Id. (citing Miller, 132 S. Ct. at 2468; Null, 836 N.W.2d at 74-75; and State v. 

Pearson, 836 N.W.2d 88, 95-96 (Iowa 2013); State v. Ragland, 836 N.W.2d 107, 

115 n.6 (Iowa 2013)). If the court finds the mandatory minimum sentence is 

warranted, the sentencing court may impose the sentence provided for under the 

statute. See id. That is what occurred here.
4

At the sentencing hearing, the court detailed the reasons for the sentence 

it imposed upon Barry. It considered that Barry was a “young person,”2and that 

he had committed the crimes when he was sixteen years old. The court 

discussed at length the nature of the offenses and role of other accomplices, 

Barry’s level of responsibility, his cooperation with law enforcement, his attempts 

at and prospects for future rehabilitation, his history in juvenile court, his ability to 

understand his behavior, his difficulties at the State Training School, the impact 

of the offenses on the victims, and the plea agreement. It summarized its 

reasons in the written sentencing order, in which the court indicated it considered 

Barry’s age, the nature of the offenses committed, the plea agreement, and 

“other factors as follows”:

[Barry] was sixteen years of age at the time these offenses 

were committed. The court has conducted an individualized 

sentencing hearing and has considered all factors required 

pursuant to [Miller, Null, Pearson, Ragland,] Roper v. Simmons, 

543 U.S. 551 (2005), and Graham v. Florida, 560 U.S. 48 (2010).

This court’s specific findings set forth on the record are 

incorporated herein as though fully set forth. In summary, the court 

recognizes the United States Supreme Court and the Iowa 

Supreme Court [have determined] that children are different, they 

have less developed judgment, [they] are susceptible to peer 

pressure, and their character is not fully formed. [Barry]’s 

diminished culpability is a factor in this criminal sentencing. The 

appellate courts require this court to recognize that a juvenile is 

more capable of change than an adult and that a juvenile’s actions 

are less likely to be evidence of irretrievable depraved character. A 

lengthy prison sentence without a meaningful opportunity for parole 

should be a rare or uncommon occurrence. The typical 

characteristics of youth—immaturity, impetuosity, and poor risk

assessment—are to be considered mitigating, not aggravating, 

factors. However, the court still considers the protection of public 

safety in its determination. The appellate cases on juvenile 

sentencing do not guarantee a youth a specific length of sentence 

or even eventual release, only that he be given a meaningful 

 

2 Barry was two days shy of being eighteen years old at the time of sentencing.
5

opportunity to demonstrate rehabilitation and fitness to return to 

society.

In considering the facts and circumstances of this case, the 

court finds that [Barry] had prior contact with juvenile authorities, 

spent time in a youth shelter, and was provided an opportunity for 

substance abuse treatment and probation through the juvenile 

court. [Barry]’s behavior while under the supervision of the juvenile 

court did not improve but deteriorated. While [Barry]’s youth, 

immaturity, underdeveloped judgment, and vulnerability to peer

pressure are taken into account, the court finds that return to the 

community at this time is not appropriate. The court has also 

considered the seriousness of the offenses, the use of a weapon, 

and the impact on the victims.

After considering all appropriate sentencing factors to be applied to a juvenile 

offender, the court concluded that imposition of the mandatory minimum 

sentence was warranted.

In denying Barry’s motion to correct an illegal sentence, the district court 

pointed out:

At [Barry]’s sentencing hearing, the court discussed at length 

on the record and/or in the sentencing order each of the five factors 

set forth in Lyle. The transcript of the sentencing hearing reflects a 

lengthy discussion of [Barry]’s age and features of youthful 

behavior; his particular upbringing and services through the juvenile

court; the circumstances of the crime and his role (bringing the gun 

into the situation), including his truthfulness with authorities and his 

testimony at the trial of a co-defendant; and the possibility of 

rehabilitation and capacity for change. There was no specific

discussion of his challenges in navigating the criminal process, but 

it is clear he was always represented by counsel, who worked 

diligently to negotiate a plea deal for him. The court referenced the 

presentence investigation and all of the attachments thereto, which 

included records of [Barry]’s family history, treatment services, 

evaluations, and juvenile court records. The court did consider all 

of the factors set forth in Lyle and the earlier juvenile sentencing 

cases.

We agree with the district court that it did not impose an illegal sentence.

Barry makes no assertion the sentencing process was deficient in any 

way. Instead, because he was sentenced before Lyle was filed, he argues he is 
6

entitled to an automatic resentencing as Lyle “appears to require” the 

resentencing of all juveniles serving mandatory minimum sentences at the time 

Lyle was filed. Indeed, Lyle states that its holding “will require all juvenile 

offenders who are in prison under a mandatory minimum sentence to be returned 

to court for resentencing.” 854 N.W.2d at 403. However, we believe Barry reads 

Lyle too broadly, and we wholeheartedly agree with the district court’s response

to Barry’s argument:

Although Lyle appears to require resentencing of all juvenile 

offenders with a mandatory minimum sentence, the supreme court 

surely meant all juvenile offenders who have not had an 

individualized sentencing hearing where the five Lyle factors were 

considered. Here, if a new sentencing hearing is held, the court will 

be considering the exact same factors that it already considered on 

June 23, 2014, as those are the same factors now set forth in Lyle. 

To “re-do” a sentencing hearing which is not constitutionally 

defective serves no purpose.

We affirm the district court’s denial of Barry’s motion to correct his sentence.

AFFIRMED.