IN THE COURT OF APPEALS OF IOWA

No. 14-2171

Filed March 9, 2016

STATE OF IOWA,

Plaintiff-Appellee,

vs.

DEMARCUS RAY MCLEMORE,

Defendant-Appellant.

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Appeal from the Iowa District Court for Black Hawk County, James C. 

Bauch, Judge.

Demarcus Ray McLemore challenges the legality of the sentence imposed 

following resentencing on his second-degree-murder conviction. AFFIRMED.

Lisa A. Allison of Allison Law Firm, L.L.C., Des Moines, for appellant.

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

General, for appellee.

Considered by Vaitheswaran, P.J., and Doyle and Mullins, JJ.
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DOYLE, Judge.

Demarcus Ray McLemore challenges the sentence imposed on his 

conviction for second-degree murder, an offense he committed when he was 

seventeen years old. After pleading guilty to the 1998 crime, McLemore was 

sentenced to a term of not more than fifty years in prison and was ordered to 

serve a mandatory minimum of eight-five percent of his sentence before 

becoming eligible for parole. In 2014, McLemore was resentenced pursuant to 

Miller v. Alabama and its progeny,1 which require that juvenile offenders receive 

individualized sentencing hearing before a lengthy, mandatory-minimum 

sentence is imposed. The district court imposed a sentence of no more than fifty 

years in prison and required that McLemore serve seventy percent of his 

sentence before becoming eligible for parole.

On appeal, McLemore contends his sentence is illegal and violates the 

Iowa Constitution’s prohibition on cruel and unusual punishment because under 

the law at the time of his resentencing, a person under the age of eighteen who 

commits first-degree murder is eligible for parole after twenty-five years, see 

Iowa Code § 902.1(2)(a) (2013) (stating a person convicted of a class “A” felony 

who was under the age of eighteen at the time of the offense shall be eligible for 

parole after twenty-five years), while a person under the age of eighteen who 

 

1 See Miller v. Alabama, 132 S. Ct. 2455, 2469 (2012) (holding a sentence of mandatory 

life imprisonment without the possibility of parole is unconstitutional under the Eighth 

Amendment when applied to a juvenile offender); State v. Lyle, 854 N.W.2d 378, 400 

(Iowa 2014) (reaching the same conclusion as Miller after analyzing under the Iowa 

Constitution); State v. Null, 836 N.W.2d 41, 72 (Iowa 2013) (applying Miller to cases 

involving a lengthy term-of-years sentence); State v. Pearson, 836 N.W.2d 88, 96 (Iowa 

2013) (holding a sentence of thirty-five years without the possibility parole on two counts 

of burglary and two counts of robbery violates Miller principles); State v. Ragland, 836 

N.W.2d 107, 121-22 (Iowa 2013) (applying the Miller holding to sentences that are the 

functional equivalent of life without parole).
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commits second-degree murder may be required to serve thirty-five years in 

prison before being eligible for parole, see Iowa Code §§ 707.3 (setting the 

maximum sentence for a person who commits second-degree murder at not 

more than fifty years in prison), 902.12(1) (requiring a person convicted of 

second-degree murder to serve at least seven-tenths of the maximum term 

before being eligible for parole). Following McLemore’s appeal, our supreme 

court severed the statutory provisions that prescribed a mandatory minimum 

sentence for juvenile offenders who commit first-degree murder. See State v. 

Louisell, 865 N.W.2d 590, 599-600 (Iowa 2015). In his reply brief, McLemore 

concedes the Louisell ruling remedies the defect that he alleged rendered his 

sentence unconstitutional.

McLemore raised only the “cruel and unusual punishment” claim in his 

initial appeal brief. Rather than address that argument, the State analyzes the 

propriety of McLemore’s sentence under the Miller factors. See Lyle, 854 

N.W.2d at 404 n.10 (listing the factors). In his reply brief, McLemore raises an 

alternative ground of error: he complains that in determining the likelihood he can 

be rehabilitated, the district court reviewed the “actual data” contained in his 

prison record and presentence-investigation report concerning his conduct over 

the past fifteen years rather than predicting how McLemore might fare based on 

the record available at the time of his initial sentencing in 1999.

We do not typically consider arguments raised for the first time in a reply 

brief. See State v. Terry, 569 N.W.2d 364, 369 (Iowa 1997). McLemore claims it 

is permissible as a response to an issue the State raised for the first time in its 

appeal brief, citing State v. Carroll, 767 N.W.2d 638, 644-45 (Iowa 2009). 
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However, the facts of Carroll are distinct from the facts before us, rendering its 

holding inapplicable here. In Carroll, the defendant raised ineffective-assistance 

claims relating to an allegedly illegal search and the sufficiency of the State’s 

evidence. 767 N.W.2d at 644. The State argued that the defendant’s guilty plea 

waived any challenge to constitutional infirmities that occurred before he entered 

his plea. See id. The supreme court held that under those circumstances, the 

defendant could raise a challenge to the adequacy of counsel’s representation 

based on what the defendant alleged to be an involuntary and unintelligent guilty 

plea for the first time in his reply brief as a response to the State’s waiver 

argument. See id. at 644-45. Here, McLemore was not responding to the 

State’s attack on a claim properly before us. The State’s briefing of a separate 

issue, wholly unrelated to the claim McLemore raised in his initial brief, did not 

open the door for McLemore to raise a new claim for the first time in his reply 

brief after his initial argument was vitiated by the Louisell holding.

Finding no merit on any claim properly before us, we affirm.

AFFIRMED.