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State v. Graham

Supreme Court of Iowa

May 25, 2017

STATE OF IOWA, Appellee,

         On review from the Iowa Court of Appeals.

         Appeal from the Iowa District Court for Polk County, Jeffrey D. Farrell, Judge.

         Defendant seeks further review of a denial of a motion to correct an illegal sentence.

          Mark C. Smith, State Appellate Defender, and Theresa R. Wilson, Assistant Appellate Defender, for appellant.

          Thomas J. Miller, Attorney General, Timothy M. Hau and Kevin R. Cmelik, Assistant Attorneys General, John P. Sarcone, County Attorney, and Nan Horvat, Assistant County Attorney, for appellee.

          APPEL, JUSTICE.

         In this case, Bradley Graham, a juvenile offender convicted of one count of sex abuse in the third degree, challenges his lifetime special sentence of parole and the lifetime requirement that he register as a sex offender as cruel and unusual punishment under the Eighth Amendment of the United States Constitution and under article I, section 17 of the Iowa Constitution. The district court held Graham's lifetime special sentence and lifetime registration requirement were not cruel and unusual punishment because a juvenile offender could petition the Iowa Department of Corrections for discharge from both the lifetime special sentence and the lifetime registration requirement.

         Graham appealed on the grounds that the special sentence and registration requirements violated the Cruel and Unusual Punishment and Due Process Clauses of the United States and Iowa Constitutions. The court of appeals affirmed the district court. We granted further review. We now affirm the decision of the court of appeals and the judgment of the district court.

         I. Factual and Procedural Background.

         A. Guilty Plea to One Count of Sexual Abuse.

         Graham was charged in 2010 with three counts of sexual abuse in the third degree in violation of Iowa Code sections 709.1 (defining sexual abuse), 709.4(1) (sexual abuse in the third degree by force or against the will), and 709.4(2)(b) (sexual abuse in the third degree and the other person is twelve or thirteen years old) (2009) for conduct occurring when Graham was seventeen years old. These charges related to sex acts that allegedly occurred involving Graham and T.C. when T.C. was thirteen years of age.

         On November 15, 2010, Graham pled guilty to one count of third-degree sexual abuse as the result of a sex act with T.C. when Graham was seventeen years of age and T.C. was thirteen years of age. See Iowa Code § 709.4(2)(b). Graham did not plead guilty on the basis of "by force or against the will" under Iowa Code section 709.4(1). Graham was immediately sentenced to an indeterminate period not to exceed ten years. Under Iowa Code section 903B.1, Graham was sentenced to a special sentence of lifetime supervision by the department of corrections. Graham was also required to register for life on the sex offender registry when he was released under Iowa Code section 692A.16.

         B. Motion and Hearing on Illegal Sentence.

         On September 6, 2013, Graham filed a pro se motion to correct an illegal sentence. In the handwritten explanation accompanying the motion, Graham argued, among other things, that the special sentence of lifetime parole and lifetime sex offender registration requirement were "inhumane" because he was a juvenile at the time of the offense.

         A hearing was held on Graham's motion on September 4, 2014. The State did not contest whether Graham should receive a resentencing hearing. The district court ordered a resentencing hearing based on the agreement of the parties.

         Prior to the hearing on resentencing, Graham was discharged from incarceration and began serving his lifetime special sentence. Pursuant to the lifetime special sentence, Graham was placed at a work-release program at the Fort Des Moines Community Corrections Center. According to an officer at the work-release program, Graham was participating in sex offender treatment and other support programs while at the facility.

         The resentencing hearing was held on August 18, 2015. Graham's appointed counsel did not modify Graham's original application. Graham's counsel also did not file a brief before the district court.

         At the resentencing hearing, Graham's counsel argued that under Iowa Code section 901.5(14) (2015), the judge could suspend any part of a juvenile's sentence in whole or in part, including the special sentence of lifetime parole. Graham's counsel asked the judge to suspend all but ten years of the special sentence of lifetime parole. Graham's counsel argued the special sentence of lifetime parole was punitive, because if Graham violated the terms of parole, Graham would face additional prison time. Graham's counsel specifically did not challenge a special sentence of parole of up to ten years. Graham's counsel challenged the sentence only to the extent it imposed a lifetime of parole.

         Graham's counsel also argued that "the 2, 000-foot rule" established in Iowa Code section 692A.114 was punitive and the court had the authority to suspend part of the sentence under section 901.5(14). Graham's counsel noted that if Graham violated the 2000-foot rule, new criminal charges may be filed under Iowa Code section 692A.111. Graham's counsel asked the court to immediately suspend the 2000-foot rule as it applied to Graham.

         In support of his motion for resentencing, Graham offered an August 17, 2015 email from his parole officer, James Michels. According to Michels, Graham arrived at the Fort Des Moines Community Corrections Center on April 15, 2015. He had obtained employment and was a hard worker. He was attending a sex offender treatment group and was on time and participating in the group. Since coming to the facility, Graham had been written up for two major violations, one involving being out of place and the other for possession or use of alcohol. Michels concluded that Graham "has been honest when he made poor choices and accepted the consequences." Michels expressed the hope "that his special [sentence] can be modified due to his offense happening when he was 17 years old."

         On the question of whether the special lifetime sentence of parole was cruel and unusual, the State argued Graham was not without hope. The State asserted Graham could request the department of corrections to release him from his special sentence of lifetime parole at any time. See Iowa Code § 906.15. Likewise, the State argued, Graham could apply to the department of corrections to be released from the sex offender registry requirement. See id. § 692A.128.

         The State argued the district court could not reduce the lifetime special sentence to a special sentence of a term of years or suspend the sex offender registration requirement. According to the State, Graham's sole recourse was to request a modification of the special sentence or registration requirements through the appropriate administrative channels.

         In addition to Michels's letter, the district court also had before it Graham's original presentence investigation and a progress report. The presentence investigation outlined a history of juvenile and adult infractions, mostly involving burglary and theft. As a juvenile, Graham resided for a period of time at the Eldora Training School, earning a high school diploma there. Graham reported he had been physically abused by his mother's boyfriend when he was around seven or eight years old. He was taken away from his mother at age eight and lived with his grandmother until she passed away. At that time, he began living with his mother again and started "getting into trouble." Graham reported contact and visits with his father, who was serving a twenty-five-year prison sentence in Anamosa State Prison.

         The court progress report dated May 12, 2015, indicated that Graham had a risk assessment score for violence of "3 (moderate)" and a victimization score of "4 (moderate/high)." The progress report listed a number of infractions in prison. Because of scheduling and disciplinary reasons, he was unable to complete the sex offender treatment program prior to his release on parole. The progress report indicated that Graham met diagnostic criteria for substance dependence or abuse related to marijuana and alcohol. According to assessment tools utilized by the department of corrections, Graham was categorized in a group that had "a below average probability of success and an above average chance of violent criminal activity." The department of corrections' recommendations were "for compliance with [an] on-going mental health treatment plan and continued participation in an intensive sex offender treatment program."

         After the State concluded its argument, the district court gave Graham an opportunity to make a statement, which he declined. The court found that Graham was eligible for parole on the day he began his special sentence. According to the court, the special sentence did not carry with it any mandatory minimum. The court emphasized that it did not believe it had the authority to "stop the special sentence at a certain point in time." The court read Iowa Code section 901.5(14) as authorizing it to enter a suspended sentence or suspend part of a mandatory sentence, but not to cut off Graham's special sentence.

         The district court did not expressly address the issue of Graham's challenge to the 2000-foot rule. But it stated,

And the Sex Offender Registry laws are going to apply to you. But they apply to anyone that commits a sex offense. And there's other case law to suggest that's not a violation of the cruel and unusual punishment clause of the Constitution either. So I think that decision is compliant with the law that governs what I have to do.

         After the hearing, the district court entered a written order. The court ruled the special sentence was not cruel and unusual. Citing State v. Lyle, 854 N.W.2d 378, 400 (Iowa 2014), the court noted the length of the sentence was not unconstitutional and the court did not have the authority to cut the length of the special sentence. The court did not specifically address in its written order the constitutionality of the 2000-foot rule of the sex offender registry. The court denied Graham's motion to correct an illegal sentence.

         Graham appealed. We transferred the case to the court of appeals.

         C. Issues Raised on Appeal.

         As an initial matter, the court of appeals held that a defendant does not have a right of appeal for a denial of a motion to correct an illegal sentence. The court therefore chose to treat Graham's appeal as a petition for writ of certiorari and granted the writ. The court declined to extend our juvenile cruel-and-unusual-punishment cases to lifetime special sentence or sex offender registration categorically with respect to juveniles. See State v. Sweet, 879 N.W.2d 811 (Iowa 2016); Lyle, 854 N.W.2d 378; State v. Ragland, 836 N.W.2d 107 (Iowa 2013); State v. Null, 836 N.W.2d 41 (Iowa 2013). The court of appeals also held the special sentence and sex offender registration were not grossly disproportionate to the gravity of Graham's offense, especially given the availability of early discharge and modification. Finally, the court of appeals held that Graham's due process challenges to his sentence were not preserved because they were not raised before the district court.

         Graham applied for further review. We granted Graham's application. On appeal, Graham claims (1) a mandatory special sentence of lifetime parole is categorically cruel and unusual punishment and violates due process when imposed on a juvenile, (2) mandatory lifetime sex offender registration is categorically cruel and unusual punishment and violates due process when imposed upon a juvenile, and (3) a mandatory special sentence of lifetime parole and mandatory lifetime sex offender registration, ...

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