IN THE COURT OF APPEALS OF IOWA
No. 14-2171
Filed March 9, 2016
STATE OF IOWA,
Plaintiff-Appellee,
vs.
DEMARCUS RAY MCLEMORE,
Defendant-Appellant.
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Appeal from the Iowa District Court for Black Hawk County, James C.
Bauch, Judge.
Demarcus Ray McLemore challenges the legality of the sentence imposed
following resentencing on his second-degree-murder conviction. AFFIRMED.
Lisa A. Allison of Allison Law Firm, L.L.C., Des Moines, for appellant.
Thomas J. Miller, Attorney General, and Tyler J. Buller, Assistant Attorney
General, for appellee.
Considered by Vaitheswaran, P.J., and Doyle and Mullins, JJ.
2
DOYLE, Judge.
Demarcus Ray McLemore challenges the sentence imposed on his
conviction for second-degree murder, an offense he committed when he was
seventeen years old. After pleading guilty to the 1998 crime, McLemore was
sentenced to a term of not more than fifty years in prison and was ordered to
serve a mandatory minimum of eight-five percent of his sentence before
becoming eligible for parole. In 2014, McLemore was resentenced pursuant to
Miller v. Alabama and its progeny,1 which require that juvenile offenders receive
individualized sentencing hearing before a lengthy, mandatory-minimum
sentence is imposed. The district court imposed a sentence of no more than fifty
years in prison and required that McLemore serve seventy percent of his
sentence before becoming eligible for parole.
On appeal, McLemore contends his sentence is illegal and violates the
Iowa Constitution’s prohibition on cruel and unusual punishment because under
the law at the time of his resentencing, a person under the age of eighteen who
commits first-degree murder is eligible for parole after twenty-five years, see
Iowa Code § 902.1(2)(a) (2013) (stating a person convicted of a class “A” felony
who was under the age of eighteen at the time of the offense shall be eligible for
parole after twenty-five years), while a person under the age of eighteen who
1
See Miller v. Alabama, 132 S. Ct. 2455, 2469 (2012) (holding a sentence of mandatory
life imprisonment without the possibility of parole is unconstitutional under the Eighth
Amendment when applied to a juvenile offender); State v. Lyle, 854 N.W.2d 378, 400
(Iowa 2014) (reaching the same conclusion as Miller after analyzing under the Iowa
Constitution); State v. Null, 836 N.W.2d 41, 72 (Iowa 2013) (applying Miller to cases
involving a lengthy term-of-years sentence); State v. Pearson, 836 N.W.2d 88, 96 (Iowa
2013) (holding a sentence of thirty-five years without the possibility parole on two counts
of burglary and two counts of robbery violates Miller principles); State v. Ragland, 836
N.W.2d 107, 121-22 (Iowa 2013) (applying the Miller holding to sentences that are the
functional equivalent of life without parole).
3
commits second-degree murder may be required to serve thirty-five years in
prison before being eligible for parole, see Iowa Code §§ 707.3 (setting the
maximum sentence for a person who commits second-degree murder at not
more than fifty years in prison), 902.12(1) (requiring a person convicted of
second-degree murder to serve at least seven-tenths of the maximum term
before being eligible for parole). Following McLemore’s appeal, our supreme
court severed the statutory provisions that prescribed a mandatory minimum
sentence for juvenile offenders who commit first-degree murder. See State v.
Louisell, 865 N.W.2d 590, 599-600 (Iowa 2015). In his reply brief, McLemore
concedes the Louisell ruling remedies the defect that he alleged rendered his
sentence unconstitutional.
McLemore raised only the “cruel and unusual punishment” claim in his
initial appeal brief. Rather than address that argument, the State analyzes the
propriety of McLemore’s sentence under the Miller factors. See Lyle, 854
N.W.2d at 404 n.10 (listing the factors). In his reply brief, McLemore raises an
alternative ground of error: he complains that in determining the likelihood he can
be rehabilitated, the district court reviewed the “actual data” contained in his
prison record and presentence-investigation report concerning his conduct over
the past fifteen years rather than predicting how McLemore might fare based on
the record available at the time of his initial sentencing in 1999.
We do not typically consider arguments raised for the first time in a reply
brief. See State v. Terry, 569 N.W.2d 364, 369 (Iowa 1997). McLemore claims it
is permissible as a response to an issue the State raised for the first time in its
appeal brief, citing State v. Carroll, 767 N.W.2d 638, 644-45 (Iowa 2009).
4
However, the facts of Carroll are distinct from the facts before us, rendering its
holding inapplicable here. In Carroll, the defendant raised ineffective-assistance
claims relating to an allegedly illegal search and the sufficiency of the State’s
evidence. 767 N.W.2d at 644. The State argued that the defendant’s guilty plea
waived any challenge to constitutional infirmities that occurred before he entered
his plea. See id. The supreme court held that under those circumstances, the
defendant could raise a challenge to the adequacy of counsel’s representation
based on what the defendant alleged to be an involuntary and unintelligent guilty
plea for the first time in his reply brief as a response to the State’s waiver
argument. See id. at 644-45. Here, McLemore was not responding to the
State’s attack on a claim properly before us. The State’s briefing of a separate
issue, wholly unrelated to the claim McLemore raised in his initial brief, did not
open the door for McLemore to raise a new claim for the first time in his reply
brief after his initial argument was vitiated by the Louisell holding.
Finding no merit on any claim properly before us, we affirm.
AFFIRMED.