IN THE COURT OF APPEALS OF IOWA No. 19
- 0137 Filed March 4, 2020 STATE OF IOWA, Plaintiff
- Appellee,
vs. TREVION DUPRI SMITH - TOLES, Defendant
- Appellant.

________________________________________________________________ Appeal from the Iowa District Court for Pottawattamie County, Jeffrey L. Larson , Judge.

Trevion Smith
- Toles appeals the sentence imposed upon his conviction of first
- degree robbery. AFF IRMED.

Martha J. Lucey , State Appellate Defender, and Nan Jennisch, Assistant Appellate Defender, for appellant. Thomas J. Miller, Attorney General, and Zachary Miller, Assistant Attorney General, for appellee.
Considered by Vaitheswaran, P.J. , and Mullins and Ahlers, JJ.2

MULLINS , Judge . Trevion Smith
- Toles was sixteen years of age when he and three other individuals engaged in conduct resulting in Smith
- Toles being charged with first
degree robbery. Following Smith
- Toles’s guilty plea, the matte r proceeded to sentencing and consideration of juvenile sentencing factors. See, e.g. , Miller v. Alabama , 567 U.S. 460, 477

– 78 (2012); State v. Lyle , 854 N.W.2d 378, 404 n.10 (Iowa 2014). At the hearing, the court received conflicting recommendations f rom both witnesses and counsel as to whether Smith
- Toles should be incarcerated or released to engage in community
- based rehabilitation serv ices. It also received an abundance of evidence specific to Smith
- Toles concerning the mitigating features of his y outh, his home and family environment, the circumstances of the crime and how youth may have played a role in its commission, the challenges he would face in going through the criminal process, and his prospects for rehabilitation. Smith
- Toles’s statement of allocution and his counsel’s arguments also included mitigating information. In imposing sentence, the court was torn, noting “prison is not a great option for you because of your young age and all of the mitigating circumstances that the attorneys talked about.” The court proceeded to Smith
- Toles’s poor track record and the need for protection of the community, both of which the court indicated weighed against placing Smith
- Toles on probation. The court noted residential correctional facilities wo uld not be a workable option for rehabilitation given the level of supervision Smith
- Toles required , which the facilities could not provide

. Ultimately, the court sentenced Smith
- Toles to a term of imprisonment not to3

exceed twenty
- five years. As to its option of imposing a mandatory minimum of seventy percent of the sentence prior to parole or work release eligibility, 1 the court declined to impose the minimum given Smith
- Toles’s young age. Smith
- Toles appeals, arguing the court improperly cons idered ch aracteristics of youth as aggravating, rather than mitigating, factors in imposing sentence. 2 Specifically, he maintains the factors cited by the court in its decision to send him to prison “were immaturity, impetuosity, and failure to appreciate risks
an d consequences,” which “cannot be used to justify a harsher sentence.” We agree that considering the features of yo uth as aggravating circumstances in sentencing would amount to an abuse of discretion. See, e.g. , Lyle , 854 N.W.2d at 402 n.8; State v. P earson , 836 N.W.2d 88, 97 (Iowa 2013). Here, however, to put it simply, we agree with the State that the court considered the features of Smith
- Toles’s youth as mitigating circumstances. The reasons for the court’s decision to send Smith
- Toles to prison were protection of the community, his need for rehabilitation, and his poor prospects for rehabilitation without going to prison. While Smith
- Toles attempts to put words in the district

1 Iowa Code section 902 .12(1)(e) (2018) requires denial of parole or work release for individuals convicted of first
- degree robbery until they have served seventy percent of their maximum prison sentence. While the court can impose a minimum term, the mandatory nature is uncons titutional as to juvenile offenders. See Lyle , 854 N.W.2d at 404. 2 As the State points out, recent legislation, effective July 1, 2019, limits our ability to consider appeals of convictions when a defendant has pled guilty. See 2019 Iowa Acts ch. 140, § 28(a)(3) (codified at Iowa Code § 814.6(1)(a)(3) (2019)). However, the State filed its brief before our supreme court decided whether the legislation is retroactive. The court recently ruled the new legislation does “not apply to a direct appeal from a judgment and sentence entered before July 1, 2019.” State v. Macke , 933 N.W.2d 226, 228 (Iowa 2019).4

court’s mouth, we conclude the court considered the features of his y outh as mitigating , not aggravating , and we find no abuse of discretion. Finding no abuse of discretion, we affirm the sentence imposed upon Smith
Toles’s conviction of first
- degree robbery. AFFIRMED.