IN THE SUPREME COURT OF IOWA
No. 11–1228
Filed February 14, 2014
STATE OF IOWA,
Appellee,
vs.
ANTHONY ALLEN HOECK,
Appellant.
On review from the Iowa Court of Appeals.
Appeal from the Iowa District Court for Scott County, Gary D.
McKenrick, Judge.
An applicant seeks further review of a court of appeals decision
affirming the constitutionality of the applicant’s sentence of life in prison
with immediate parole eligibility. DECISION OF COURT OF APPEALS
AND JUDGMENT OF DISTRICT COURT IS CONDITIONALLY
AFFIRMED; CASE REMANDED WITH DIRECTIONS.
Mark C. Smith, State Appellate Defender, and Robert P. Ranschau,
Assistant Appellate Defender, for appellant.
Anthony A. Hoeck, Fort Madison, pro se.
Thomas J. Miller, Attorney General, Richard J. Bennett Sr.,
Assistant Attorney General, Michael J. Walton, County Attorney, for
appellee.
2
WIGGINS, Justice.
We must decide the constitutionality of the applicant’s sentence on
his conviction for first-degree kidnapping. The applicant was a juvenile
at the time of the kidnapping. He was originally sentenced to life in
prison without parole for the kidnapping. The jury also found him guilty
of murder in the second degree, robbery in the first degree, conspiracy,
possession of an offensive weapon, and criminal gang participation. The
court imposed consecutive sentences on these convictions. The
combined sentences on these charges amounted to a possible total of
ninety-five years in prison.
In 2011, after the United States Supreme Court decided Graham v.
Florida, 560 U.S. 48, 130 S. Ct. 2011, 176 L. Ed. 2d 825 (2010), the
applicant filed a motion to correct an illegal sentence on the kidnapping
conviction. The applicant only raised the constitutionality of his
sentence under the Eighth Amendment to the United States Constitution
in his motion.1 He claimed the sentence was illegal under the Federal
Constitution because the sentence imposed life in prison without the
possibility of parole. Finding the sentence illegal under the Federal
Constitution, the district court corrected the applicant’s sentence on the
kidnapping conviction to life in prison with immediate parole eligibility.
On appeal, the applicant continues to claim his sentence is
unconstitutional under the United States Constitution. For the first time
1In his motion, the applicant cited Veal v. State, 779 N.W.2d 63 (Iowa 2010), and
State v. Bruegger, 773 N.W.2d 862 (Iowa 2009), for the proposition that an illegal
sentence could be raised at any time. He did not cite Veal or Bruegger for the
proposition that a sentence of life in prison without the possibility of parole for a
juvenile violated the Iowa Constitution. The Eighth Amendment states, “Excessive bail
shall not be required, nor excessive fines imposed, nor cruel and unusual punishments
inflicted.” U.S. Const. amend. VIII.
3
on appeal, however, he also claims his sentence is unconstitutional
under the Iowa Constitution.
In his pro se supplemental brief filed in his appeal, the applicant
raised several additional issues. These include the district court’s failure
to have him present at the sentence correction hearing, its failure to
articulate reasons for imposing consecutive sentences at the original
sentencing, and its failure to advise the applicant of his right of
allocution at the original sentencing.
We transferred his appeal to the court of appeals. The court of
appeals affirmed the applicant’s conviction and sentence as corrected.
On further review, we find the applicant’s sentence is constitutional
under the Federal Constitution because he is immediately eligible for
parole. We do not reach the applicant’s claim that his sentence is illegal
under the Iowa Constitution. Instead, if the applicant timely amends his
application to correct an illegal sentence under the Iowa Constitution, we
remand this case to the district court to decide the claims he made under
our state constitution. We will let the court of appeals decision stand as
our final decision as to all other issues raised by the applicant.
Therefore, we conditionally affirm the decision of the court of appeals and
the judgment of the district court.
I. Background Facts and Proceedings.
On May 13, 1994, a jury convicted Anthony Hoeck of kidnapping
in the first degree, among other charges. For the kidnapping in the first-
degree conviction, the district court sentenced Hoeck to life in prison
without the possibility of parole. The district court also sentenced Hoeck
to a combined possible ninety-five years under the other counts.
Hoeck appealed his original convictions. See State v. Hoeck, 547
N.W.2d 852, 855 (Iowa Ct. App. 1996). In that appeal, he challenged the
4
district court’s decision to overrule his motion for change of venue, the
admission of evidence at trial, and the sufficiency of the evidence. Id. at
856. Hoeck also raised an ineffective-assistance-of-counsel claim. Id.
The court of appeals affirmed his convictions. Id. at 863. Nine years
later, he filed an application for postconviction relief, which the court of
appeals determined was untimely. Hoeck v. State, No. 09–0830, 791
N.W.2d 710, at *2 (Iowa Ct. App. Nov. 10, 2010) (unpublished opinion).
His present appeal involves a motion to correct an illegal sentence
filed on May 24, 2011. Hoeck alleged in his motion that pursuant to
Graham, his sentence of life in prison without parole for the kidnapping
charge was unconstitutional. The district court granted the motion,
correcting the sentence for the kidnapping conviction to life in prison
with immediate parole eligibility. Hoeck was not present for the sentence
correction hearing. Thereafter, Hoeck filed a pro se motion asking the
court to vacate its order and resentence him with him present. The court
denied this motion.
Hoeck filed a notice of appeal. Hoeck also filed a pro se
supplemental brief. We transferred the case to the court of appeals. The
court of appeals affirmed the district court’s ruling. It held the corrected
sentence for kidnapping did not violate the United States Constitution. It
also held the district court was not required to vacate all of Hoeck’s
sentences on the nonkidnapping convictions when it corrected Hoeck’s
sentence on the kidnapping conviction. Rather, the district court could
sever the illegal sentence from the other legal sentences and correct only
the illegal sentence. Furthermore, the court of appeals held Hoeck did
not have to be present to correct an illegal sentence so long as the
disposition would not be aided by Hoeck’s presence and the modification
does not make the sentence more onerous. Finally, the court of appeals
5
held the other issues raised by Hoeck were not preserved; thus, they
were not properly before the court. Hoeck filed for further review, which
we granted.
II. Issues.
When we accept a case on further review, “we have the discretion
to review all or some of the issues” the parties raised on appeal and in
the application for further review. State v. Clay, 824 N.W.2d 488, 494
(Iowa 2012). We exercise our discretion to review only Hoeck’s
substantive claim that his sentence of life in prison with immediate
parole eligibility is categorically unconstitutional under the Federal
Constitution. For the reasons stated later in this opinion, we will not
reach Hoeck’s claims that his sentence is unconstitutional under the
Iowa Constitution. We choose not to address the other issues raised by
Hoeck in this appeal and will allow the court of appeals decision on those
issues to stand as our final decision. See id. (recognizing the court of
appeals decision is our final decision on issues we choose not to review).
III. Standard of Review.
We normally review claims a sentence is illegal for correction of
errors at law. State v. Davis, 544 N.W.2d 453, 455 (Iowa 1996). A
defendant may challenge an illegal sentence at any time. State v.
Pearson, 836 N.W.2d 88, 94 (Iowa 2013). A defendant’s claim a sentence
is unconstitutional because it is cruel and unusual punishment is a
claim the sentence is illegal. Bonilla v. State, 791 N.W.2d 697, 699 (Iowa
2010). We review de novo a constitutional challenge to an illegal
sentence. Pearson, 836 N.W.2d at 94.
IV. Analysis.
A. Whether Hoeck’s Corrected Sentence Categorically Violates
the Eighth Amendment of the United States Constitution. The
6
Supreme Court has interpreted the Eighth Amendment of the United
States Constitution as it relates to juvenile sentencing in a trilogy of
cases. First, in Roper v. Simmons, the Supreme Court recognized a
categorical rule prohibiting courts from imposing the death penalty
against persons who committed their crimes while under the age of
eighteen. 543 U.S. 551, 578, 125 S. Ct. 1183, 1200, 161 L. Ed. 2d 1, 28
(2005). In the second case, Graham, the Supreme Court determined
courts could not impose life in prison without parole for a juvenile who
did not commit a homicide offense. 560 U.S. at 75, 130 S. Ct. at 2030,
176 L. Ed. 2d at 845–46. Finally, in Miller v. Alabama, the Supreme
Court stated life in prison without parole was not appropriate for a
juvenile who committed a homicide offense unless the juvenile received
an individualized sentencing hearing to consider the characteristics of
the juvenile and the nature of the crime. 567 U.S. ___, ___, 132 S. Ct.
2455, 2468–69, 183 L. Ed. 2d 407, 422–24 (2012).
Hoeck’s corrected sentence is factually dissimilar from these cases.
Hoeck did not receive the death penalty; therefore, Roper is inapplicable.
Hoeck did not receive life without parole for a homicide offense; therefore,
Miller is inapplicable.2
Hoeck’s original sentence on the kidnapping was factually similar
to Graham. Hoeck’s original sentence was a sentence of life in prison
without parole for a nonhomicide offense. This sentence was
categorically unconstitutional under Graham. See Graham, 560 U.S. at
74, 130 S. Ct. at 2030, 176 L. Ed. 2d at 845 (holding the Eighth
Amendment prohibits a sentence of life in prison without parole for a
2Hoeck was convicted of murder in the second degree; however, he received a
term not to exceed fifty years for this crime. He does not challenge this sentence, and
even if he did challenge this sentence, it does not fit under the facts of Miller.
7
juvenile who commits a nonhomicide offense). The district court
recognized the unconstitutionality of Hoeck’s original sentence under
Graham. The district court corrected Hoeck’s unconstitutional sentence
by sentencing Hoeck to life in prison with immediate parole eligibility.
This made his corrected sentence constitutional under Graham for at
least two reasons.
First, the corrected sentence is factually dissimilar from the
sentence in Graham. Whereas the court in Graham sentenced the
defendant to life in prison without parole, id. at 57, 130 S. Ct. at 2020,
176 L. Ed. 2d at 834, Hoeck received life in prison with immediate parole
eligibility. Second, the Graham rationale is inapplicable to Hoeck’s
corrected sentence. In Graham, the Supreme Court was concerned with
the ability of a juvenile to have a meaningful opportunity to obtain
release from jail if the juvenile demonstrated rehabilitation and maturity.
Id. at 75, 130 S. Ct. at 2030, 176 L. Ed. 2d at 845. Here, Hoeck has
immediate parole eligibility and has an immediate opportunity to obtain
release under the holding in Graham.
Striking parole ineligibility to convert an unconstitutional sentence
to a constitutional one is an appropriate remedy. Bonilla, 791 N.W.2d at
701–02. In Bonilla, we recognized that Graham did not specifically
explain how the states should adjust the sentences of juveniles convicted
of a nonhomicide crime and sentenced to life in prison without parole.
Id. at 701. Instead, the Supreme Court left it to the states to decide the
proper way for a state to comply with Graham. Id. We determined that
under our statutory scheme, it was appropriate to sever the invalid
portion of a sentence without disturbing the remainder of the sentence.
Id. at 702. For a juvenile previously sentenced to life in prison without
parole for a nonhomicide crime, the appropriate remedy under Graham
8
was to sever the parole ineligibility from the juvenile’s sentence and
sentence the juvenile to life in prison with the possibility of parole. Id. at
703. The district court correctly followed Bonilla when it corrected
Hoeck’s sentence.
Therefore, we find Hoeck’s sentence as corrected by the district
court is constitutional under the Federal Constitution because he is now
eligible for immediate parole.
B. Whether Hoeck’s Corrected Sentence Violates Article I,
Section 17 of the Iowa Constitution. On appeal, Hoeck raises claims
under the Iowa Constitution for the first time. We acknowledge a
defendant can raise the claim that his or her sentence is an illegal
sentence at any time, even on a collateral attack. Veal v. State, 779
N.W.2d 63, 65 (Iowa 2010). However, our reading of the briefs leaves us
with more questions than answers as to the specific claims Hoeck is
raising under the Iowa Constitution. Additionally, we are not convinced
the claims are fully briefed or the factual issues necessary to decide the
Iowa constitutional claims are developed. Consequently, it would be a
disservice to Hoeck, the State, and our system of justice to decide these
claims without a thorough vetting of the claims in the district court. As
one scholar noted:
Another option is for a court to spot an issue that has
not been briefed and, if the issue looks decisive, remand it
for resolution in the first instance by the lower court. This is
the most procedurally conservative approach to addressing a
new issue and is the only one fully consistent with the usual
rule that issues not raised below will not be considered on
appeal. Remand protects the role of the district court, which
may have useful light to shed on the issue.
Barry A. Miller, Sua Sponte Appellate Rulings: When Courts Deprive
Litigants of an Opportunity to Be Heard, 39 San Diego L. Rev. 1253, 1300
(2002) (footnotes omitted).
9
Accordingly, we will not reach Hoeck’s challenges to his corrected
sentence under the Iowa Constitution on this record. Therefore, we will
affirm his corrected sentence as not being an illegal sentence under the
United States Constitution. However, we will remand this case to the
district court to allow Hoeck and the State to fully develop and argue
Hoeck’s claims under the Iowa Constitution if he desires to do so. See In
re R.E.K.F., 698 N.W.2d 147, 150–51 (Iowa 2005) (affirming a case
conditionally on the issues tried below, but remanding the case for
further proceedings under the Iowa Indian Child Welfare Act); State v.
Powell, 684 N.W.2d 235, 242 (Iowa 2004) (affirming a case conditionally
and remanding it to the district court to develop a factual record and to
determine if an actual conflict exists); In re Prop. Seized from Brown, 501
N.W.2d 472, 473 (Iowa 1993) (affirming on one issue and remanding it to
the district court to develop a factual record on whether the appellant’s
possession of the device is legal).
V. Conclusion and Disposition.
We find the district court’s sentence of life in prison with
immediate parole eligibility does not violate the United States
Constitution’s categorical prohibition against cruel and unusual
punishment. We do not reach Hoeck’s claim that his sentence is illegal
under the Iowa Constitution. If, within ninety days from the issuance of
procedendo, Hoeck amends his application to request correction of an
illegal sentence under the Iowa Constitution, we remand the case to the
district court for further proceedings on his state constitutional claims.
If he does not, the district court order will stand as the final judgment in
this case. If Hoeck does amend his application, the district court shall
hold further proceedings consistent with the amended application. We
will let the court of appeals decision stand as our final decision on all
10
other issues raised by Hoeck. Accordingly, we affirm the decision of the
court of appeals and the judgment of the district court and affirm
Hoeck’s conviction and sentence. Finally, we do not retain jurisdiction.
We assess the costs against Hoeck.
DECISION OF COURT OF APPEALS AND JUDGMENT OF
DISTRICT COURT IS CONDITIONALLY AFFIRMED; CASE REMANDED
WITH DIRECTIONS.
All justices concur except Mansfield, Waterman, and Zager, JJ.,
who concur in part and dissent in part.
11
#11–1228, State v. Hoeck
MANSFIELD, Justice (concurring in part and dissenting in part).
I agree that the sentence as corrected by the district court should
be affirmed. However, I would not make the affirmance conditional.
Let’s recap what is before this court. In 1994, Hoeck was
convicted of first-degree kidnapping, second-degree murder, first-degree
robbery, criminal gang participation, conspiracy, and a weapons offense
for his leading role in the brutal assault, abduction, and murder of a
seventeen-year-old girl. See State v. Hoeck, 547 N.W.2d 852, 855–56
(Iowa Ct. App. 1996). Pursuant to Iowa law, Hoeck received a mandatory
life-without-parole sentence on the first-degree kidnapping conviction.
Because Hoeck was seventeen years old when he committed these
crimes, he filed a postconviction relief proceeding to vacate his life-
without-parole sentence on the kidnapping charge after the United States
Supreme Court decided Graham v. Florida in 2010. See Graham v.
Florida, 560 U.S. 48, 82, 130 S. Ct. 2011, 2034, 176 L. Ed. 2d 825, 845
(2010) (holding that a juvenile may not constitutionally be sentenced to
life without parole for a nonhomicide offense). The district court,
applying our decision in Bonilla v. State, struck the “without parole”
portion of the kidnapping sentence and did not otherwise modify Hoeck’s
sentence. See Bonilla v. State, 791 N.W.2d 697, 702 (Iowa 2010)
(deciding that the appropriate remedy in Iowa for correction of an life-
without-parole sentence in light of Graham was to eliminate the “without
parole” provision).
As a result of the district court’s resentencing, Hoeck is now
currently eligible for parole. No mandatory minimums apply to his
sentence.
12
Nevertheless, Hoeck appealed the district court’s ruling to this
court. On appeal, Hoeck argues that a juvenile offender cannot receive
even a life-with-parole sentence without consideration of individualized
factors relating to youth. Hoeck raises this argument under both the
Federal and the Iowa Constitutions. Yet this argument clearly has no
traction under federal constitutional law, as the majority points out in
part IV(A) of its opinion. Accordingly, Hoeck’s appellate argument
focuses on the Iowa Constitution.
Hoeck develops this state constitutional argument in twenty pages
of his brief. See Appellant’s Br. at 31–51. The gist of Hoeck’s argument
is that a district court must be given discretion to consider the factors of
youth before sentencing a juvenile to life with parole, even if there is no
mandatory minimum. “When defendant was originally sentenced the
district court was not given any discretion to consider any mitigating
factors that may have warranted a lesser sentence.” Id. at 50. In
Hoeck’s view, regardless of parole eligibility, a life sentence violates the
Iowa Constitution unless the district court can consider the youth factors
before determining whether to impose that sentence.
This is a categorical argument. True, the defendant cites to State
v. Bruegger, 773 N.W.2d 862 (Iowa 2009), but he does not do so to raise
an as-applied disproportionality challenge. Hoeck does not claim that
his existing sentence, under which he is presently eligible for parole for
the serious crimes he committed in 1993, is grossly disproportionate.
Rather, Hoeck cites Bruegger (1) to assert that we have applied the Iowa
Constitution more stringently than the United States Constitution, (2) for
the proposition that a challenge to an illegal sentence can be raised at
any time, and (3) for the principle that we will vacate and remand rather
than allow a sentence that is or may be illegal to stand. For the last of
13
these three points, Hoeck also cites Veal v. State, 779 N.W.2d 63, 65
(Iowa 2010).3
Thus, we have before us a straightforward question: Does the Iowa
Constitution categorically prohibit the general assembly from making a
life sentence the designated punishment for a heinous crime when that
crime is committed by a seventeen-year-old, even if there is no
mandatory minimum the defendant must serve before becoming eligible
for parole?
I think the answer is clearly no. In my view, the general assembly,
expressing the will of the people of this state, may require juveniles who
commit first-degree kidnapping to serve life in prison, so long as parole is
available. But more importantly, I think we ought to answer the
question. We owe it to the citizens of this state to clarify the limits and
scope of State v. Null and State v. Pearson when presented to us in a case
that meets our prior error preservation requirements. See State v. Null,
836 N.W.2d 41, 70–71, 77 (Iowa 2013) (applying the Iowa Constitution
and reversing a sentence that requires a juvenile to serve at least 52.5
years before being eligible for parole); State v. Pearson, 836 N.W.2d 88,
96, 98 (Iowa 2013) (applying the Iowa Constitution and reversing a
sentence that requires a juvenile to serve at least thirty-five years before
being eligible for parole).
3We transferred the case to the court of appeals, which rejected Hoeck’s
categorical argument without undertaking a separate analysis under the United States
and the Iowa Constitutions. The court of appeals also rejected Hoeck’s pro se appellate
arguments relating to other matters—correctly in my view. My colleagues would allow
the court of appeals’ decision to stand on these matters, and I concur in that approach.
Hoeck’s further review application to our court reiterated that his life-with-
parole sentence violated both the United States and Iowa Constitutions because “the
district court was not given any discretion to consider any mitigating factors” related to
youth.
14
Other trial judges in our state have done the same thing that this
trial judge did: When a person comes before the court who received a
mandatory life-without-parole sentence for a crime committed as a
juvenile, they are resentencing the person to life with parole. If this
procedure doesn’t meet state constitutional requirements, we ought to
tell them. Notably, the Massachusetts Supreme Judicial Court recently
had no difficulty in drawing lines for its trial judges under the
Massachusetts Constitution. See Diatchenko v. Dist. Att’y, 1 N.E.3d 270,
285–86, 466 Mass. 665, 672–73 (Mass. 2013). It went beyond Miller v.
Alabama, 567 U.S. ___, 132 S. Ct. 2455, 183 L. Ed. 2d 407 (2012), in
holding that even discretionary life without parole for a juvenile who
commits first-degree murder violated the Massachusetts Constitution.
Diatchenko, 1 N.E.3d at 284–85, 466 Mass. at 671. However, it held that
mandatory life with parole was a suitable remedy for both federal and
state constitutional claims. Id. at 285–86, 466 Mass. at 672–73.
In this case, the State understood what Hoeck was claiming on
appeal. Its attorney opened his argument to us as follows:
May it please the Court. It is the State’s position that the
defendant’s life sentence for first degree kidnapping was
corrected in the district court at the hearing in July of 2011.
Applying Graham and Bonilla, he obtained what the Supreme
Court—the U.S. Supreme Court says you have to have. In a
non-homicide juvenile situation, you have to have a
meaningful opportunity for release on parole. Miller, we
submit, does not apply here, nor is there any basis similar to
Null or Pearson to apply the Miller sentencing factors here
because he indeed has a meaningful opportunity for parole
....
(Emphasis added.)
But even assume for a moment that Hoeck’s position is unclear. I
do not think we get to both (1) affirm his sentence and (2) order the case
below to continue so Hoeck can keep challenging that same sentence.
15
Our options are rather to affirm Hoeck’s sentence, reverse outright
because the sentence is invalid, or reverse and remand for further
proceedings because Hoeck has shown the sentence may be invalid. In
Veal, for example, we reversed the dismissal of the postconviction relief
proceeding and remanded for further proceedings. See Veal, 779 N.W.2d
at 65 (“[T]he judgment of the district court is reversed, and the matter
remanded to the district court for further proceedings.”). The
requirement that we fish or cut bait on appeal by either affirming the
district court order in its entirety or reversing it at least in part, but not
doing both at once, is an important, historic limitation on our appellate
power. It forces appellate courts to adhere to their proper role as
decisonmakers, instead of acting as generalized case supervisors.
It is true that we have “conditionally affirmed” district court rulings
at times in the past. See, e.g., Frontier Leasing Corp. v. Links Eng’g, LLC,
781 N.W.2d 772, 776 (Iowa 2010); WSH Props., L.L.C. v. Daniels, 761
N.W.2d 45, 52 (Iowa 2008); In re R.E.K.F., 698 N.W.2d 147, 151 (Iowa
2005); State v. Powell, 684 N.W.2d 235, 241–42 (Iowa 2004). Those
cases are all different from the present situation. In every one of those
cases, we rendered a decision on all issues before us, but we could not
determine the final outcome of the case without more information. So, to
minimize the possible need for a future appeal, we conditionally affirmed.
We made clear what additional information was needed below, and what
the alternative outcomes would be—i.e., an affirmance or something else
depending on what the information showed.
In re R.E.K.F. is a good example of this. It was a termination of
parental rights proceeding. In re R.E.K.F., 698 N.W.2d at 148. We ruled
that the state had failed to give the required notice to the correct Indian
tribe. Id. at 150. However, rather than reversing the order terminating
16
parental rights, we conditionally affirmed it, explaining that the
termination order would stand if the tribe failed to respond or determined
the child was not eligible for tribal membership. Id. at 151.
Several things about In re R.E.K.F. should be noted. We decided
the entire appeal. Id. Unlike here, we did not leave a door open for new
arguments. Indeed, the very purpose of the conditional affirmance was
to close that door. Presumably, we ordered a conditional affirmance in In
re R.E.K.F. because of the time urgency associated with parental rights
cases. See id. That way, if it turned out the tribe had no interest in the
proceeding, the termination order could stand without further delay. Id.
(“If the Seneca Nation fails to respond within the appropriate timeframe
or replies and determines Ruby is not eligible for tribal membership, the
juvenile court’s original order of termination will stand.”).
Here, by contrast, we are purporting to affirm the final judgment in
Hoeck’s postconviction relief proceeding while letting the case go back so
Hoeck can expand upon his challenges to his sentence. The only
contingency is whether Hoeck will expand on what he previously filed,
something he will surely do. What happens next is totally undetermined,
except for the fact that the case will continue. This is really a reversal,
therefore. Yet my colleagues are apparently reluctant to call it that,
perhaps because it just doesn’t sit right with them, and perhaps because
they would also have to say what Hoeck has raised that merits reversal.
There is no reason to extend the heretofore limited concept of
“conditional affirmance.” We don’t have a child that needs permanency.
We aren’t saving ourselves another appeal. Hoeck won’t suffer prejudice
if we simply affirm because we have previously held that a challenge to
an illegal sentence is not subject to the three-year time bar.
17
I realize the normal practice is to require arguments to be raised
for the first time in the district court. There are good reasons for that
practice. But we changed that law with respect to illegal sentences, and
we now have a purely legal issue under the Iowa Constitution that has
been briefed to us, in far more detail than this court normally requires
for challenges under the Iowa Constitution. The district court is going to
wonder why we didn’t decide it.
For the foregoing reasons, I concur in part and dissent in part.
Waterman and Zager, JJ., join this concurrence in part, dissent in
part.