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State v. Wise

Court of Appeals of Iowa

May 16, 2018

STATE OF IOWA, Plaintiff-Appellee,
v.
GARY R. WISE, Defendant-Appellant.

          Appeal from the Iowa District Court for Black Hawk County, Bradley J. Harris, Judge.

         A defendant appeals his sentence on constitutional grounds following his conviction for first-degree robbery.

          Mark C. Smith, State Appellate Defender, and Stephan J. Japuntich, Assistant Appellate Defender, for appellant.

          Thomas J. Miller, Attorney General, and Sharon K. Hall, Assistant Attorney General, for appellee.

          Considered by Vaitheswaran, P.J., and Potterfield and Tabor, JJ.

          TABOR, Judge.

         When he was eighteen years old, Gary Wise held up a Pizza Hut at gunpoint. After being convicted of robbery in the first degree, Wise received an indeterminate twenty-five-year prison sentence and must serve at least seven-tenths of the maximum term before he is eligible for parole. On appeal, Wise contends the mandatory minimum sentence violates the prohibition on cruel and unusual punishment because it is grossly disproportionate as applied to his situation. Because we defer to the legislature's authority to set the length of sentences, the gravity of his offense was on par with the severity of the punishment, and his age was not a unique factor generating a high risk of gross disproportionality, we affirm.

         I. Facts and Prior Proceedings

         On the day of the offense, around 11:30 p.m., Wise entered the Pizza Hut where he used to work, pointed a handgun at employees, and ordered them to lie on the floor. Wise covered the bottom half of his face with a bandana but his former co-workers recognized his physical features and his voice. Wise took money from the cash registers and a safe. When police stopped Wise, he admitted the handgun and stolen cash were in his car. Officers also found a Pizza Hut money tray in the car. During a police interview Wise confessed to carrying out the robbery. "Wise reported to police he had been struggling both financially and emotionally and his actions occurred in the spur of the moment."

         Wise agreed to a bench trial on the minutes of evidence. The district court found him guilty of first-degree robbery, in violation of Iowa Code sections 711.1 and 711.2 (2013), a class "B" felony with a maximum sentence of twenty-five years. Iowa Code § 902.9(b). This term is generally indeterminate but, under the mandatory minimum sentencing provision, Iowa Code section 902.12(e), Wise must serve at least seven-tenths, or seventeen-and-a-half years.

         Wise appeals his sentence under the cruel-and-unusual-sentencing clauses of the federal and state constitutions. See U.S. Const. amend. VIII; Iowa Const. art. 1, § 17. He argues the seven-tenths rule creates a sentence that is grossly disproportionate to the gravity of the offense, to other felony offenses for which the mandatory minimum is imposed, and to sentencing provisions for the same offense in other jurisdictions. Wise also asserts the sentence is cruel and unusual as applied due to his specific circumstances, particularly the fact he was "mere months past the age of minority" and had "no appreciable criminal history" when he engaged in armed robbery. Wise asked the Iowa Supreme Court to retain his appeal to address what he bills as a "substantial issue of first impression" in Iowa, but the supreme court transferred the case to us.

         II. Scope of Review

         We review challenges to the constitutionality of a sentence de novo. State v. Zarate, 908 N.W.2d 831, 840 (Iowa 2018). An illegal sentence may be challenged at any time. Id.

         III. ...


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