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Byrd v. State

Court of Appeals of Iowa

January 10, 2018

BRANDY BYRD, Applicant-Appellant,
v.
STATE OF IOWA, Respondent-Appellee.

         Appeal from the Iowa District Court for Linn County, Mary E. Chicchelly, Judge.

         A defendant appeals the denial of an application for postconviction relief.

          John W. Pilkington of Nidey, Erdahl, Tindal & Fischer, P.L.C., Marengo, for appellant.

          Thomas J. Miller, Attorney General, and Benjamin Parrott, Assistant Attorney General, for appellee

          Considered by Vaitheswaran, P.J., McDonald, J., and Goodhue, S.J.[*]

          GOODHUE, Senior Judge.

         Brandy Byrd's application for postconviction relief (PCR) was denied by an order entered August 31, 2016. Byrd appeals.

         I. Background Facts and Proceedings

         Byrd and her friend, David Keegan, lured a Pizza Hut delivery driver into an apartment on January 6, 2002, where Byrd hit him in the head with a hammer and Keegan slit his throat. The victim died and was robbed in the process. Byrd was charged with first-degree murder and first-degree robbery, and on July 15, 2003, she was convicted of both charges after a jury trial. Byrd was sentenced on September 22, 2003, to a life sentence without the possibility of parole and ordered to pay restitution to the victim's estate in the amount of $250, 000. Byrd appealed her conviction, and her conviction was affirmed. State v. Byrd, No. 03-1578, 2004 WL 2387048, at *4 (Iowa Ct. App. Oct. 27, 2004). Procedendo was issued on February 4, 2005.

         Byrd filed a PRC application on November 12, 2008. Although the legality of the felony-murder instruction used in her trial was raised as a claim in the direct appeal, between her trial and her first PCR action, the use of willful injury as a predicate offense to felony murder had been determined to be reversible error under many, if not most, circumstances. See State v. Heemstra, 721 N.W.2d 549, 558 (Iowa 2006). Under the ineffective-assistance-of-counsel rubric, and because of Heemstra, Byrd raised the use of the felony-murder rule again in the PCR. Her claims were denied by the district court, and she appealed.

         This court considered the appropriateness of the felony-murder rule as applied to Byrd's claim and again denied relief, noting that Heemstra only applied to willful injury as a predicate offense and not to robbery and, in any event, Heemstra was not to be applied retroactively. Byrd v. State, No. 08-1930, 2012 WL 836391, at *1 (Iowa Ct. App. Mar. 14, 2012). In addition, in her appeal of the previous PCR, Byrd challenged trial counsel's failure to object to the court's imposition of a $250, 000 restitution amount instead of the statutory minimum of $150, 000. Id. No record had been made explaining how the court arrived at the amount set. Id. Because of the lack of any record, this court preserved the matter for a possible future proceeding. Id. Otherwise, Byrd's claims were denied. Wat *2.

         Although Keegan was only seventeen and one-half at the time of the murder, Byrd was twenty. Keegan was also convicted of first-degree murder and robbery, and initially, both Keegan and Byrd were sentenced to life in prison without the possibility of parole. Keegan was resentenced to life but became eligible for parole because he was a juvenile at the time of the murder. See State v. Lyle, 854 N.W.2d 378, 402 (Iowa 2014) (noting mandatory life without parole had been determined to violate the cruel and unusual punishment prohibition of both the Iowa and United States Constitutions when applied to minors). Because she was not a juvenile, Byrd was not resentenced, and her sentence remained life without parole.

         Byrd correctly asserts the jury could have found her guilty as an aider and abettor rather than as principal. She then contends an aider and abettor cannot receive greater punishment than a principal. She claims the jury should have received a limiting instruction requiring it to find her guilty as a principal to justify the sentence imposed. Byrd has again raised the amount of restitution as an issue.

         II.Error ...


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